Mitchell v. Kansas City Kansas School District
MEMORANDUM AND ORDER granting 38 Motion for Summary Judgment. See Order for details. Signed by District Judge Carlos Murguia on 4/7/17. Mailed to pro se party Jack Allen Mitchell, II by regular and certified mail. (Certified Tracking Number: 7012 3460 0000 8262 5989) (kao)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JACK ALLEN MITCHELL, II,
Case No. 16-2145
KANSAS CITY KANSAS SCHOOL
MEMORANDUM & ORDER
This matter comes before the court upon defendant Kansas City Kansas School District’s
Motion for Summary Judgment (Doc. 38). Plaintiff Jack Allen Mitchell, II, appearing pro se, opposes
On March 7, 2016, plaintiff filed this case using the court’s form employment discrimination
complaint (Doc. 1). On December 6, 2016, the court entered a pretrial order that is now the operative
pleading in this case (Doc. 34). Plaintiff alleges that defendant violated Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e–e17, by terminating plaintiff’s employment based on race
discrimination or retaliation. Plaintiff seeks reinstatement, back pay dating back to October 30, 2015,
reinstatement of retirement credit, repaid benefits, reinstatement of benefits, actual damages, and
attorney fees, should plaintiff retain counsel.
Parties proceeding pro se
The court interprets pro se filings liberally, but parties proceeding pro se are still required to
comply with the rules of procedure, both federal and local. Keehner v. Dunn, 409 F. Supp. 2d 1266,
1270 (D. Kan. 2005). The court may not act as an advocate for a pro se party, but will overlook “a
failure to cite proper legal authority, confusion of legal theories, and poor syntax or sentence
Summary judgment standard
Summary judgment is appropriate if the moving party demonstrates that there is “no genuine
issue as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). In applying this standard, the court views the evidence and all reasonable inferences therefrom
in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670
(10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The party moving for summary judgment has the burden to show “the lack of a genuine issue
of material fact.” Ascend Media Prof’l Servs., LLC v. Eaton Hall Corp., 531 F. Supp. 2d 1288, 1295
(D. Kan. 2008) (citing Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986))). Once the moving party meets this initial burden,
the burden then shifts to the nonmovant to “set forth specific facts showing that there is a genuine issue
for trial.” Id. (citing Spaulding, 279 F.3d at 904 (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986))).
The nonmovant may not rest on his pleadings or “rely on ignorance of the facts, on speculation,
or on suspicion and may not escape summary judgment in the mere hope that something will turn up at
trial.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 259 (1986)); Conaway v. Smith, 853
F.2d 789, 794 (10th Cir. 1988). Instead, the nonmovant is required to set forth specific facts, by
referencing affidavits, deposition transcripts, or exhibits, from which a rational trier of fact could find
for him. Fed R. Civ. P. 56(c)(1); see also Ascend Media, 531 F. Supp. 2d at 1295 (citing Adams v. Am.
Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000)). Summary judgment is not a
“disfavored procedural shortcut” —it is an “integral part of the Federal Rules as a whole, which are
designed to secure the just, speedy and inexpensive determination of every action.” Celotex Corp., 477
U.S. at 327 (quoting Fed. R. Civ. P. 1).
The facts are generally undisputed. As required by the local rules, defendant set forth
a statement of uncontroverted facts, separately numbered and referring with particularity to those
portions of the record upon which it relies. D. Kan. Rule 56.1(a). The rules provide that all facts set
forth in such a statement are deemed admitted for the purposes of summary judgment unless
specifically controverted by the statement of the opposing party. The responding party must “refer
with particularity to those portions of the record upon which the opposing party relies.” D. Kan. Rule
56.1(b)(1). The Rules further provide that if the nonmoving party “relies on any facts not contained in
the movant’s memorandum, that party must set forth each additional fact in a separately numbered
paragraph, supported by references to the record.” Rule 56.1(b)(2). “All facts on which a motion or
opposition is based must be presented by affidavit, declaration under penalty of perjury, and/or
relevant portions of pleadings, depositions, answers to interrogatories, and responses to requests for
admissions.” Rule 56.1(d). Plaintiff, as a pro se party, was provided a full copy of these rules as
required by 56.1(f).
Plaintiff generally does not sufficiently controvert defendant’s statements. He does not provide
the court with a statement of uncontroverted facts. Plaintiff’s response contains only the same
numbered paragraphs from defendant’s motion, admitting or denying most of defendant’s statements,
sometimes citing to one of plaintiff’s attached exhibits. Many of plaintiff’s responses are conclusory
denials. These are insufficient on a motion for summary judgment.
When plaintiff cites any record evidence or exhibit in support of a factual assertion, he
generally refers to the exhibit as a whole. It would be inappropriate for the court to search through
plaintiff’s exhibits for evidence to support his case. Especially where, as here, plaintiff included hours
of video and audio recording, and other exhibits that do not have apparent relevance. The court would
consider such action impermissible advocacy on the behalf of a pro se party. “[I]t is the responding
party’s burden to ensure that the factual dispute is portrayed with particularity, without . . . depending
on the trial court to conduct its own search of the record.” Cross v. The Home Depot, 390 F.3d 1283,
1290 (10th Cir. 2004). The response includes no argument section.
The Uncontroverted Facts
The following facts are either: not disputed, insufficiently contested, or where contested are
viewed in the light most favorable to plaintiff:
Plaintiff is an African-American. He began working for defendant as a school bus driver on
September 10, 2014. Miguel Martin, defendant’s Assistant Director of Transportation, hired plaintiff.
Mr. Martin was plaintiff’s supervisor throughout plaintiff’s employment. He felt that plaintiff needed
to improve his attitude and that plaintiff’s attitude did not improve during the course of his
employment. Mr. Martin reported receiving an unusually high number of complaints regarding
plaintiff, usually regarding his interactions with co-workers.
In November 2014, plaintiff was placed on administrative leave without pay for three days after
an incident where plaintiff falsely reported that he had checked his bus for a missing student, later
found the student was on his bus and did not immediately report that fact, left the bus lot with the
student, used profanity in front of the student, and used his cell phone while driving. After this
incident, plaintiff was warned that any future violations of school district policy would lead to
discipline that could include terminating his employment. Plaintiff testified at his deposition that he
does not claim that the discipline he received as a result of the November 2014 incident was based on
On January 14, 2015, plaintiff filed a physical and sexual assault complaint on behalf of
another school bus driver, Jovita Banuelos. Plaintiff testified at his deposition that he does not suggest
or argue that he was fired because he made the report on behalf of Ms. Banuelos.
On February 24, 2015, plaintiff did not follow procedures for reporting his absence from work,
which resulted in students being left outside on a cold day until a substitute driver could be sent to pick
them up. Mr. Martin spoke to plaintiff about proper procedures for reporting an absence following this
incident. Plaintiff testified at his deposition that he does not argue that any action taken by defendant
regarding the February 24, 2015 incident was based on race.
Also in February 2015, a safety/efficiency route staff member was assigned to ride along with
plaintiff, because it was defendant’s policy to do ride alongs when a bus driver was assigned a new
route. Mr. Martin reported that plaintiff treated the staff member inappropriately and in a
condescending manner. Mr. Martin reported that he later spoke to plaintiff about this incident and
plaintiff raised his voice during their discussion. Plaintiff testified at his deposition that he does not
claim that defendant took discriminatory action against him as a result of this incident.
In October 2015, Mr. Martin and plaintiff had a number of conversations about whether
plaintiff could get a shuttle ride to the south bus lot. Generally shuttle rides are only available to bus
drivers who need to change busses during their route. This does not include plaintiff. Mr. Martin
reported that plaintiff walked away from one of their discussions, and that plaintiff yelled at a female
employee on another day apparently about the same issue, after which Mr. Martin asked plaintiff to
come in his office. Once inside, plaintiff complained about the number of female employees in the
workplace and was reprimanded. Plaintiff testified at his deposition that he does not argue that
anything relating to these shuttle bus disagreements or conversations was racially discriminatory or
On October 30, 2015, a school bus driven by another school bus driver, backed into a vehicle
Ms. Banuelos was driving. Plaintiff did not witness the accident and was not present at the scene,
although he was nearby. Ms. Banuelos was plaintiff’s girlfriend at the time, and she notified plaintiff
of the accident after which he joined her at the accident location. Valencia Hunter, employed by
defendant, was making an accident report and she and plaintiff had a discussion. Ms. Hunter felt that
plaintiff interrupted and interfered with her investigation, that she attempted to explain that it was her
job to complete the report, and that he argued with her throughout the process.
At some point, plaintiff spoke with Mr. Martin and requested the rest of the day off to be with
his girlfriend. Mr. Martin told plaintiff he could have the day off, but without pay. Plaintiff and Ms.
Banuelos did not leave the area for 1–1.5 hours. Mr. Martin says that he eventually contacted the
Kansas City Kansas School District Police Department because plaintiff was not leaving and Mr.
Martin had received reports about his inappropriate behavior. The police arrived and asked plaintiff to
leave, after which plaintiff left.
On November 5, 2015, plaintiff, Bermeeka Mitchel (plaintiff’s sister), Mr. Martin, Lenora
Miller (Mr. Martin’s supervisor), and Gail Taylor (Human Resources Director), among others,
attended a meeting to discuss the October 30, 2015 incident. What was discussed at the meeting and
plaintiff’s demeanor and cooperativeness are disputed.
On December 2, 2015, plaintiff met with Ms. Miller, Dr. Wilcox (Lead Director of Human
Resources), and two union representatives. Plaintiff attached an audio recording of the meeting.
On December 9, 2015, plaintiff filed a charge with the Equal Employment Opportunity
Commission (“EEOC”) alleging race discrimination and retaliation.
On December 21, 2015, plaintiff was advised that a recommendation for termination of his
employment would be made based on plaintiff’s aggressive behavior towards other employees, the
unusually high number of complaints received regarding plaintiff, and concern for other employees’
safety. On January 5, 2016, plaintiff met with the Director of Transportation, Dr. Wilcox, and union
representatives to discuss the recommendation of termination. The recommendation went to the school
board and was passed by a vote of 5–0 and an administrative appeal process took place. At the appeal
hearing, the committee found that plaintiff had violated policies during his employment and
recommended that the termination of plaintiff’s employment be upheld. The board of education again
voted unanimously to uphold this decision. On February 5, 2016, plaintiff filed a second EEOC charge
Plaintiff’s claims for discrimination based on race or retaliation are based on the actions of Ms.
Miller and the school’s chief of police. Plaintiff does not offer any evidence that either individual
treated him differently than any other similarly situated individual. But he believes that they
discriminated against him and that they treated him differently than others. Plaintiff argues that the
protected acts he engaged in were his complaints to the EEOC.
Defendant seeks summary judgment because it argues that plaintiff provides no argument or
evidence in support of his Title VII claim and therefore cannot establish a prima facie case.
Race discrimination claim
Under the McDonnell Douglas Corp. v. Green, burden-shifting framework, plaintiff has the
initial burden to establish a prima facie case of race discrimination. Canady v. Gen. Motors Corp., 368
F. Supp. 2d 1151, 1156 (D. Kan. 2004) (citing McDonnell Douglas, 411 U.S. 792 (1973)). Plaintiff
must show disparate treatment by showing that (1) he belongs to a protected class; (2) he suffered an
adverse employment action; and (3) defendant treated similarly situated employees differently. Id.
(citing Trujillo v. Univ. of Colo. Health Scis. Ctr., 157 F.3d 1211, 1215 (10th Cir. 1998)). If plaintiff
makes this preliminary showing, the burden shifts to defendant to show a facially nondiscriminatory
basis for its action. If defendant makes this showing, the burden shifts back to plaintiff, to show that
defendant’s nondiscriminatory basis for taking the adverse employment action is pretextual.
Defendant argues that plaintiff provides no evidence that other similarly situated employees
were treated differently or that defendant’s proffered nondiscriminatory reasons for terminating
plaintiff’s employment were pretextual.
The parties agree that plaintiff is African American, satisfying the first element of a prima facie
case. Also, the parties agree that he was fired, which constitutes an adverse employment action—the
second element. However, regarding the third element, the court finds that plaintiff provided no
evidence or argument that other similarly situated employees were treated differently.
At plaintiff’s deposition, plaintiff was asked what employees were treated differently than him.
He responded: “I don’t have that information at this time.” (Doc. 39-3.) He was then asked how he
was treated differently, to which he responded “Because I believe [Ms. Miller] did. I don’t know how
right now, but I believe she did.” (Id.) Defendant’s statement of uncontroverted facts set out that
plaintiff did not have any evidence of racially motivated acts, that he was treated differently by Ms.
Miller, or that he had any other reason besides his belief that she discriminated against him. Plaintiff
admitted these statements. Plaintiff has not provided any evidence that a similarly situated employee
was treated differently. Therefore, summary judgment is appropriate as a matter of law and
defendant’s motion is granted.
Even if plaintiff had established a prima facie case for race discrimination, the court agrees that
plaintiff has provided no evidence that defendant’s stated nondiscriminatory reasons for terminating
plaintiff’s employment were pretextual. If plaintiff had made a prima facie case for race
discrimination, defendant would have had the burden to show a facially nondiscriminatory basis for
terminating his employment. Defendant has produced numerous nondiscriminatory and nonretaliatory reasons for terminating plaintiff’s employment. The December 21, 2015 letter sent to
plaintiff by Ms. Miller enumerated a variety of instances when plaintiff was believed to have violated
Kansas City Kansas Board Policies, including many of the circumstances described in the facts above.
The burden then shifts back to plaintiff to show that these reasons were pretextual. As noted
above, plaintiff does not include an argument section in his response to defendant’s motion for
summary judgment. Instead, he merely kept the same format as defendant’s statement of
uncontroverted facts and responded to those statements. Plaintiff has not shown pretext—summary
judgment is appropriate on plaintiff’s race discrimination claim for this additional reason.
The Tenth Circuit provides two methods by which a plaintiff may prove a retaliation claim.
Either “directly show that retaliatory animus played a motivating part in the employment decision” or
under the Mcdonnell Douglas burden-shifting framework, set out a case of retaliation. Twigg v.
Hawker Beechcraft Corp., 659 F.3d 987, 998 (10th Cir. 2011) (quoting Fye v. Okla. Corp. Comm’n,
516 F.3d 1217, 1224–25 (10th Cir. 2008)). A prima facie case for retaliation under McDonnell
Douglas requires plaintiff to show “(1) that he engaged in protected opposition to discrimination, (2)
that a reasonable employee would have found the challenged action materially adverse, and (3) that a
causal connection existed between the protected activity and the materially adverse action.” Id.
(quoting Somoza v. Univ. of Denver, 513 F.3d 1206, 1212 (10th Cir. 2008)). If plaintiff makes out a
prima facie case, defendant must give a non-retaliatory reason for the adverse actions. If defendant
makes that showing, the burden shifts back to plaintiff to show pretext.
Defendant argues that plaintiff did not engage in protected activity until after defendant had
decided to take adverse action against him. Additionally, defendant argues there is no causal
connection between plaintiff’s EEOC charge and defendant’s decision to fire plaintiff. Finally, even if
plaintiff were able to make a prima facie case for retaliation, defendant argues that it had a legitimate
non-retaliatory basis for terminating plaintiff’s employment and there is no evidence that this decision
The court agrees. Plaintiff provides no argument in support of either method for showing that
retaliation played a role in defendant’s decision to terminate plaintiff’s employment. Plaintiff’s
response does not include any argument or address the McDonnell Douglas burden-shifting
framework. Therefore summary judgment is appropriate on plaintiff’s retaliation claim.
IT IS THEREFORE ORDERED that defendant’s Motion for Summary Judgment (Doc. 38)
This case is closed.
Dated April 7, 2017, at Kansas City, Kansas.
s/ Carlos Murguia
United States District Judge
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