Bush v. City of Gardner, Kansas
MEMORANDUM AND ORDER granting in part and denying in part 80 Defendant's Motion for Summary Judgment. Signed by District Judge John W. Lungstrum on 12/01/2017. (ses)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
Mary Beth Bush,
Case No. 16-cv-2675-JWL
City of Gardner,
MEMORANDUM & ORDER
Plaintiff filed this lawsuit against her former employer, the City of Gardner, Kansas,
alleging that the City eliminated plaintiff’s position on the basis of her age, race and/or in
retaliation for plaintiff’s engaging in protected activity in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq; 42 U.S.C. § 1981; and the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq. This matter is presently before the court on the City’s
motion for summary judgment (doc. 80). As will be explained, the motion is granted with
respect to plaintiff’s race discrimination claim and is otherwise denied.
The following facts are uncontroverted, stipulated in the pretrial order, or related in the
light most favorable to plaintiff as the nonmoving party. The City of Gardner, Kansas is a
municipal corporation governed by a five-member City Council presided over by a Mayor.
Plaintiff Mary Beth Bush, a Caucasian female, began her employment with the City of Gardner
in October 2006 when she was hired as the Human Resources Manager. The first several years
of plaintiff’s employment passed without incident.
In July 2012, Cheryl Harrison-Lee, an African-American female, became the City
Administrator. As the City Administrator, Ms. Harrison-Lee served as the chief administrative
assistant to the Mayor and the administrative officer of the City’s government. Ms. HarrisonLee and plaintiff enjoyed a good working relationship at the start of Ms. Harrison-Lee’s
employment as the City Administrator. In January 2013, the City created a new position,
Administrative Services Manager (ASM), which was responsible for managing Human
Resources, Risk Management, Information Technology, Buildings and Maintenance, and the
City Clerk. Plaintiff was promoted to the position and received a significant increase in salary.
At that time, plaintiff was almost 55 years old. In April 2013, Chris Morrow became the Mayor
of the City of Gardner. Ms. Harrison-Lee completed a 2013 performance evaluation for plaintiff
indicating that plaintiff’s performance as the ASM exceeded expectations.
The City contends that Ms. Harrison-Lee, in 2014, began having concerns about
plaintiff’s performance and plaintiff’s lack of a college degree. In June 2014, plaintiff and Ms.
Harrison-Lee attended a comprehensive Human Resources conference in Florida. According to
the City, Ms. Harrison-Lee realized during the conference that plaintiff did not have a sufficient
understanding of current best practices in human resources and lacked the requisite education to
succeed in the ASM role. The City asserts that Ms. Harrison-Lee knew by June 2014 that it
would be difficult for the City to continue with plaintiff as the ASM and that Ms. Harrison-Lee
decided to proceed towards eliminating the ASM position. Nonetheless, the 2015 budget, which
was approved in August 2014, included funding for the ASM position.
The budget also
included funding for two new positions that would report to the ASM—a Network
Administrator position and a Human Resources Supervisor position.
In August 2014, the City received a notice from the United States Department of Labor
(“DOL”) advising the City that it was going to conduct an audit to determine compliance with
the Fair Labor Standards Act. The audit was conducted in response to a former employee’s
complaint to the DOL regarding unpaid overtime. The DOL determined that the City Clerk
position had been misclassified and the City was required to pay overtime wages to the
complaining party. The City contends that it was plaintiff’s responsibility to ensure that the City
Clerk position was correctly classified under the Fair Labor Standards Act, although the
evidence reflects that the ultimate responsibility for classification of positions rested with the
City Administrator. In any event, Ms. Harrison-Lee was displeased that plaintiff had not
properly classified the City Clerk. During this same time frame, Ms. Harrison-Lee discovered
that a current employee of the City did not have the education credentials that he had indicated
on his resume when he applied for employment with the City. Plaintiff had failed to verify the
employee’s credentials and, apparently, never verified the credentials of any applicant. Plaintiff
concedes that Ms. Harrison-Lee was “rightfully” upset with her over this issue.
There is evidence that at some point between November 2014 and mid-January 2015,
plaintiff began to fear that her employment as the ASM was at risk. She met with City Council
President Kristina Harrison to express concerns that Ms. Harrison-Lee was removing job duties
from her; that her working relationship with Ms. Harrison-Lee had changed in a negative way;
and that Ms. Harrison-Lee was not communicating with plaintiff on a regular basis. Plaintiff
began updating her resume. In November 2014, the City began recruiting applicants to fill the
Human Resources Supervisor and Network Administrator positions.
In early January 2015, the City hired a 49-year-old Caucasian male as the Network
Administrator. After that hiring decision, plaintiff learned that the Network Administrator
would not report to her as outlined in the budget but would instead report directly to Ms.
Harrison-Lee. On January 15, 2015, the City conducted telephone interviews for the Human
Resources Supervision position. During those interviews, plaintiff heard Ms. Harrison-Lee state
that the current Human Resources staff did not know what they were doing. According to the
City, Ms. Harrison-Lee was pleased with the quality of applicants for the Human Resources
Supervisor position and, after the interviews, determined that the ASM position was no longer
necessary and could be eliminated. The candidate ultimately hired by the City was a Caucasian
male who was older than plaintiff.
On Friday, January 23, 2015, Ms. Harrison-Lee, Mayor Morrow and Council President
Kristina Harrison discussed the possibility of eliminating the ASM position in light of the newly
hired Network Administrator and the available qualified candidates for the Human Resources
Supervisor position. On Monday, January 26, 2015, plaintiff sent an email to Mayor Morrow
and Council President Harrison with the subject line “Hostile Work Environment.” In her
lengthy complaint, plaintiff stated that Ms. Harrison-Lee had created a hostile work environment
with respect to her treatment of plaintiff and City staff. Plaintiff expressly stated that the
creation of a hostile work environment is prohibited under Title VII of the Civil Rights Act of
1964 and the Age Discrimination in Employment Act of 1967. Although the remainder of
plaintiff’s complaint is devoid of any references to age-based or race-based conduct, plaintiff
described Ms. Harrison-Lee’s conduct as “rude, ridiculing and demeaning” and stated that Ms.
Harrison-Lee created an environment of “fear and intimidation.”
Upon receipt of plaintiff’s email, Mayor Morrow hired an investigator, Shelly Freeman,
to investigate plaintiff’s complaint. Ms. Freeman interviewed plaintiff, Ms. Harrison-Lee, and
several other City employees before ultimately determining that no hostile work environment
existed. On March 2, 2015, Ms. Freeman orally presented her findings to the City Council. On
March 6, 2015, Ms. Freeman and the Mayor met with plaintiff and Ms. Harrison-Lee
(separately) to explain the findings of the investigation. On March 16, 2015, Ms. Harrison-Lee
recommended to the City Council that the ASM position be eliminated. The City Council voted
unanimously to eliminate the ASM position. Plaintiff was offered a newly created Special
Events Coordinator position at a significantly reduced salary and she declined that offer. At the
time her employment ended, plaintiff was 57 years old.
Additional facts will be provided as they relate to the specific arguments raised by the
parties in their submissions.
Summary Judgment Standard
“Summary judgment is appropriate if the pleadings, depositions, other discovery
materials, and affidavits demonstrate the absence of a genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law.” Water Pik, Inc. v. Med–Systems, Inc.,
726 F.3d 1136, 1143 (10th Cir. 2013) (quotation omitted); see Fed. R. Civ. P. 56(a). A factual
issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Water Pik, Inc., 726 F.3d at 1143 (quotation omitted). “The nonmoving
party is entitled to all reasonable inferences from the record; but if the nonmovant bears the
burden of persuasion on a claim at trial, summary judgment may be warranted if the movant
points out a lack of evidence to support an essential element of that claim and the nonmovant
cannot identify specific facts that would create a genuine issue.” Id. at 1143-44.
Age Discrimination Claim
In the pretrial order, plaintiff asserts that defendant eliminated the ASM position and
offered plaintiff the Special Events Coordinator position at a much lower salary based on
plaintiff’s age. Plaintiff concedes that she has no direct evidence of discrimination, and her
claim is therefore analyzed using the burden-shifting framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Bennett v. Windstream Communications, Inc.,792
F.3d 1261, 1266 (10th Cir. 2015). Under McDonnell Douglas, plaintiff has the initial burden of
establishing a prima facie case of discrimination.
Id. To set forth a prima facie case of
discrimination, plaintiff must establish that she is a member of a protected class, she suffered an
adverse employment action, and the challenged action occurred under circumstances giving rise
to an inference of discrimination. Id. (citing EEOC v. PVNF, LLC, 487 F.3d 790, 800 (10th Cir.
If she establishes a prima facie case, the burden shifts to defendant to assert a
legitimate, nondiscriminatory reason for the adverse employment action. Id. If defendant meets
this burden, summary judgment against plaintiff is warranted unless she introduces evidence
“that the stated nondiscriminatory reason is merely a pretext for discriminatory intent.” Id.
(citing Simmons v. Sykes Enters., 647 F.3d 943, 947 (10th Cir. 2011)).
In its motion for summary judgment, the City contends that it is entitled to summary
judgment solely because plaintiff cannot establish a prima facie case of age discrimination. In
other words, the City does not reach the issue of pretext in its motion (or, for that matter, in its
reply brief) and limits its motion strictly to the evidence concerning plaintiff’s prima facie case.
In that regard, the City contends that it is entitled to summary judgment because plaintiff cannot
establish that she was replaced by a younger person and cannot established that she was
performing satisfactory work at the time her position was eliminated. Because the City’s
arguments concerning plaintiff’s prima facie case are based on a misunderstanding of the
requisite elements that plaintiff must establish as well as the nature of plaintiff’s burden at the
prima facie stage—and because the City fails to raise the pretext issue—the City’s motion must
be denied on this claim.
The City contends that plaintiff cannot establish that she was replaced by a younger
person because she was “replaced” by someone seven years older than plaintiff. To begin,
factual issues exist as to whether plaintiff was replaced or whether her position was eliminated.
Viewing the evidence in the light most favorable to plaintiff, plaintiff’s position was eliminated
and her duties were redistributed among other positions. Specifically, the evidence reflects that
plaintiff’s ASM responsibilities were absorbed by the new Human Resources Supervisor
position; the new Network Administrator position; the public works department; and the City
Administrator herself. The court, then, rejects the argument that plaintiff cannot establish a
prima facie case because she was “replaced” by an older person. Because plaintiff’s evidence
demonstrates that her position was eliminated, she need not establish that she was replaced by a
younger person. See Hinds v. Sprint/United Management Co., 523 F.3d 1187, 1195 (10th Cir.
2010). Moreover, the Tenth Circuit has routinely held that a plaintiff’s prima facie burden is “de
minimus” and may be satisfied simply by showing that the adverse employment action occurred
under circumstances which give rise to an inference of discrimination. See Plotke v. White, 405
F.3d 1092, 1101 (10th Cir. 2005); Bennett, 792 F.3d at 1266-67 (burden of production at prima
facie stage is “not onerous”); Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 627 (10th Cir.
The City also contends that plaintiff cannot establish a prima facie case because she
cannot demonstrate that she was performing satisfactory work at the time Ms. Harrison-Lee
decided to eliminate the ASM position. This argument is rejected for two reasons. First,
plaintiff is not required to establish that she was performing satisfactory work as part of her
prima facie case. See Bennett, 792 F.3d at 1266 (plaintiff must show only that adverse action
occurred under circumstances giving rise to an inference of discrimination). Second, because
the City maintains that it eliminated the ASM position in part (if not entirely) because plaintiff
was not performing the job to Ms. Harrison-Lee’s satisfaction, the argument constitutes an
impermissible “end run” around the McDonnell Douglas analysis and the court cannot consider
it at the prima facie stage. See, e.g., EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184,
1192–94 (10th Cir. 2000) (requiring plaintiff to disprove defendant’s proffered reason for
employment decision to establish prima facie case would inappropriately short circuit
McDonnell Douglas analysis).
The only other argument asserted by the City in support of its motion for summary
judgment on plaintiff’s age claim is that the “same actor” inference is sufficient to warrant
summary judgment. That doctrine provides that, when “the employee was hired and fired by the
same person within a relatively short time span,” there is “a strong inference that the employer’s
stated reason for acting against the employee is not pretextual.” Antonio v. Sygma Network,
Inc., 458 F.3d 1177, 1183 (10th Cir. 2006). As noted earlier, the City does not even reach the
pretext analysis in its motion and the court has uncovered no cases applying the “same actor”
inference at the prima facie stage. The court refuses to do so in the absence of any authority
from the City suggesting that such an approach is appropriate.1
In the end, then, plaintiff, for purposes of her prima facie case, need only come forward
with evidence that the adverse action occurred under circumstances which give rise to an initial
inference of discrimination.
This is not an issue that is directly raised in the motion for
summary judgment, largely because it is not an element identified in the City’s narrow
articulation of the prima facie case requirements. Nonetheless, in her response to the motion for
summary judgment, plaintiff lists several reasons, with citation to the record, why she believes
that the ASM position was eliminated based on her age. The City does not address these
reasons in the argument section of its reply brief. It simply reasserts that plaintiff cannot
establish a prima facie case of age discrimination because she was replaced by an older
The City also states that Ms. Harrison-Lee hired 16 individuals during her tenure as City
Administrator and that 10 of those individuals were over the age of 40 at the time of hire. That
evidence is not at all persuasive in the absence of evidence concerning the ages of any other
applicants for those positions. The City also notes that Ms. Harrison-Lee, who was 52 years old
at the time of the elimination decision, is in the same protected class as plaintiff. This fact is not
dispositive. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (explaining
that “[b]ecause of the many facets of human motivation, it would be unwise to presume as a
matter of law that human beings of one definable group will not discriminate against other
members of their group”). The fact that Ms. Harrison-Lee is in the same protected class, then,
would not preclude a finding that the City’s stated reasons for eliminating the ASM position are
pretextual. This is particularly true where the City Council (rather than Ms. Harrison-Lee) made
the decision to elimination the ASM position.
individual. The City, then, has not satisfied its burden of demonstrating that no material issues
of fact remain for trial and that the City is entitled to judgment as a matter of law. Reed v.
Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). Summary judgment is not appropriate.
“Reverse” Race Discrimination
Plaintiff asserts in the pretrial order that defendant eliminated the ASM position and
offered plaintiff the Special Events Coordinator position at a much lower salary based on
plaintiff’s race. Because plaintiff is Caucasian and does not belong to a protected group on that
basis, her prima facie case requires her to establish “background circumstances that support an
inference that the defendant is one of those unusual employers who discriminates against the
majority.” Argo v. Blue Cross & Blue Shield of Kansas, Inc., 452 F.3d 1193, 1201 (10th Cir.
2006). In its motion for summary judgment, the City argues that plaintiff has failed to establish
any such circumstances. The court agrees and enters summary judgment in favor of the City on
Plaintiff has failed to establish any circumstances that might justify an inference of
reverse race discrimination. The record reflects that, at all times pertinent to this lawsuit, more
than 90 percent of the City’s employees were Caucasian. Plaintiff asserts that Ms. HarrisonLee, on one occasion, stated a preference for hiring an African-American candidate for an
Executive Assistant position despite the fact that the candidate scored below Caucasian
A plaintiff asserting reverse race discrimination may also proceed by coming forward with
direct evidence (or indirect evidence sufficient to support a reasonable probability) that but for
the plaintiff’s race the challenged employment decision would not have occurred. See Argo, 452
F.3d at 1201. Plaintiff has no such evidence in this case and does not suggest that she intends to
proceed under this method.
applicants on an objective job test. But plaintiff concedes that Ms. Harrison-Lee ultimately
hired a Caucasian individual for that position. Such evidence can hardly support an inference
that the City discriminates against Caucasian individuals. Plaintiff further contends that Ms.
Harrison-Lee hired an African-American candidate for the Communications Manager position
(whom plaintiff concedes was qualified) and “strayed” from City policy by paying that person a
significantly higher salary than she was previously earning. Plaintiff, however, concedes that
the salary fell within the salary range for the position and provides no other context for assessing
how this action might provide an inference of reverse race discrimination. She does not suggest,
for example, that similarly situated Caucasian employees were hired at lower salaries. Plaintiff
also contends that the City and Ms. Harrison-Lee “brought in young African-American
engineering technicians at higher wages than other employees and contrary to other prevailing
hiring and pay practices at the City.”
Apart from plaintiff’s conclusory testimony, however,
there is no evidence of any such hiring and defendant’s evidence demonstrates that Ms.
Harrison-Lee hired only one engineering technician during her tenure and that individual is
Plaintiff argues that her reverse race discrimination claim is supported by a “potentially”
race-based remark allegedly made by Ms. Harrison-Lee. According to plaintiff, Ms. HarrisonLee, on one occasion, stated as follows: “I am from the South. I have to be tough. I am used to
working with white men.” Because plaintiff provides no context whatsoever for that comment,
it constitutes, at best, a stray remark under Tenth Circuit precedent and cannot support an
inference of discrimination. See Hysten v. Burlington N. Santa Fe Ry. Co., 415 Fed. Appx. 897,
911 (10th Cir. Mar. 16, 2011) (statements made by decisionmakers unrelated to the decisional
process are “stray remarks” that are insufficient to establish bias). Even assuming that the
comment reflects some bias against Caucasian employees, the uncontroverted facts demonstrate
that the City Council unanimously voted to eliminate the ASM position and plaintiff does not
suggest that any Council members bore any animus against Caucasians. Finally, the court notes
that the two individuals hired by Ms. Harrison-Lee to absorb most of plaintiff’s
responsibilities—the Human Resources Supervisor and the Network Administrator—are both
Caucasian. In light of the totality of the circumstances, Ms. Harrison-Lee’s remark does not
support an inference of reverse race discrimination with respect to the elimination of plaintiff’s
Because plaintiff has failed to identify any circumstance sufficient to establish a prima
facie case of reverse race discrimination, summary judgment is warranted in favor of the City on
Finally, plaintiff asserts in the pretrial order that defendant eliminated the ASM position
in retaliation for plaintiff’s January 26, 2015 complaint that Ms. Harrison-Lee had created a
“hostile work environment” for plaintiff and other City staff members. The court assesses
plaintiff’s retaliation claim under the McDonnell Douglas framework. Daniels v. United Parcel
Serv., Inc., 701 F.3d 620, 638 (10th Cir. 2012). To state a prima facie case for retaliation,
plaintiff “must show (1) she engaged in protected opposition to discrimination, (2) a reasonable
employee would have considered the challenged employment action materially adverse, and (3)
a causal connection existed between the protected activity and the materially adverse action.”
Id. (quoting Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1202 (10th Cir. 2008)). If
plaintiff presents a prima facie case of retaliation, then defendant must respond with a
legitimate, nonretaliatory reason for the challenged action. Debord v. Mercy Health Sys. of
Kansas, Inc., 737 F.3d 642, 656 (10th Cir. 2013). Plaintiff, then, must show that defendant’s
stated reason is pretextual. Id.
In its motion for summary judgment, defendant contends that summary judgment is
warranted on plaintiff’s retaliation claim because plaintiff cannot establish a prima facie case of
retaliation. Specifically, the City contends that the evidence viewed in the light most favorable
to plaintiff demonstrates that she did not engage in protected opposition to discrimination
because her complaint was not based on an objectively reasonable, good faith belief that the
conduct she opposed violated Title VII or the ADEA and, in any event, she cannot establish a
causal connection between her January 26, 2015 complaint and the decision to eliminate
plaintiff’s position. The City does not assert in its motion that plaintiff has not shown pretext.
As will be explained, the court denies summary judgment on plaintiff’s retaliation claim in light
of material factual issues concerning plaintiff’s prima facie case that must be resolved at trial.3
In its reply brief, the City argues for the first time that even if plaintiff establishes a prima facie
case of retaliation, her claim must fail because the City had a legitimate non-retaliatory reason
for its decision to eliminate the ASM position and because plaintiff has not come forward with
evidence of pretext. The court cannot consider the City’s argument, however, because it was
first raised in the City’s reply brief and plaintiff did not have the opportunity to respond. See
Lynch v. Barrett, 703 F.3d 1153, 1160 n.2 (10th Cir. 2013) (court does not consider arguments
raised for the first time in reply brief).
In its motion for summary judgment, the City contends that plaintiff’s January 26, 2015
email cannot satisfy the “protected activity” prong of plaintiff’s prima facie case because it was
not based on an objectively reasonable, good faith belief that the conduct she opposed violated
Title VII or the ADEA. See Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015–16 (10th Cir.
2004) (plaintiff need not prove actual violation of Title VII but only a “reasonable good-faith
belief” that the conduct was prohibited by Title VII).
The City first challenges the
“reasonableness” of plaintiff’s belief that Ms. Harrison-Lee was discriminating against
employees based on age and/or race. According to the City, it was not objectively reasonable
for plaintiff to believe that Ms. Harrison-Lee was discriminating against anyone based on age or
race or that she was creating a hostile work environment based on age or race. The City
highlights that plaintiff’s January 26, 2015 email contains no allegations that Ms. HarrisonLee’s conduct was based on age or race and, in fact, demonstrates that Ms. Harrison-Lee treated
all staff members the same regardless of age or race. The City further contends that plaintiff
knew or should have known that Ms. Harrison-Lee’s hiring practices negated any inference of
discrimination on the basis of age or race.
The court agrees that plaintiff’s written complaint, aside from plaintiff’s reference to
Title VII and the ADEA, do not reflect any basis to believe that Ms. Harrison-Lee was engaged
in unlawful discrimination on the basis of age or race. Nonetheless, plaintiff’s evidence, taken
as a whole, is sufficient to permit a jury to believe that plaintiff reasonably, if not accurately,
believed that Ms. Harrison-Lee had engaged in discrimination. Toward that end, the evidence
reflects that plaintiff shared with Ms. Freeman that Ms. Harrison-Lee had made the comment
that “As people get older, they don’t think as clearly” and that she “had to be tough” because she
was used to “working with white men.” Plaintiff further provided to the investigator the names
of several older, Caucasian employees whom plaintiff believed were subjected to a pattern of
discrimination by Ms. Harrison-Lee. The City contends that much of this evidence is based on
hearsay and that Ms. Harrison-Lee hired many of those individuals such that any inference of
discrimination is negated.
Because the evidence is offered not to prove the truth of the
statements (e.g., that Ms. Harrison-Lee in fact treated individuals differently based on age or
race or that older people do not think as clearly) but to demonstrate the reasonableness of
plaintiff’s belief, the court discerns no hearsay issues. Moreover, the fact that an inference of
discrimination might be negated by additional facts does not render plaintiff’s belief
unreasonable as a matter of law. Viewed in the light most favorable to plaintiff, a jury could
conclude that a reasonable person with no formal training in the law could have believed that
Ms. Harrison-Lee’s remarks and her treatment of older, Caucasian employees constituted
unlawful discrimination. The court also notes that the City hired an outside investigator to
review plaintiff’s discrimination allegations.
The City, then, apparently did not perceive
plaintiff’s complaints as patently unreasonable. In short, plaintiff’s evidence is sufficient to
permit the jury to conclude that plaintiff reasonably believed that Ms. Harrison-Lee’s conduct
violated federal laws against discrimination in the workplace.
The City also asserts that plaintiff’s January 26, 2015 complaint is “likely disingenuous”
and was made in an effort to save her job such that she cannot satisfy the “good faith”
requirement of the “protected activity” prong. In support of this argument, the City emphasizes
evidence that plaintiff told her spouse during the DOL audit that she feared for her job; that
plaintiff told a close friend that she was concerned about her job “several months” before her
position was eliminated; that she was worried about getting fired when the Human Resources
Supervisor position was created during the budget process; and that she believed that Ms.
Harrison-Lee was “up to something” in the November 2014 through January 2015 timeframe
because she stopped responding to plaintiff’s work-related questions and treated plaintiff rudely.
This evidence is not sufficient to persuade the court that no reasonable jury could consider
plaintiff’s complaint to have been made in good faith.
While plaintiff was concerned about her performance during the DOL audit, the evidence
suggests that any concerns she had were alleviated once the audit was completed to the
satisfaction of Ms. Harrison-Lee. And the audit may well be what plaintiff was referencing
when she expressed concerns to her close friend—the record does not provide any context for
that alleged concern. With respect to her concern about the Human Resources Supervisor
position, plaintiff’s evidence reflects that the concern was alleviated when the approved budget
accounted for plaintiff’s position through 2015 and reflected that the Human Resources
Supervisor would report to plaintiff. Finally, plaintiff’s testimony that she thought that Ms.
Harrison-Lee was “up to something” beginning in November 2014 is not sufficient, standing
alone, to warrant the conclusion that her January 2015 complaint was “manufactured” to save
her job. A reasonable jury could still conclude, even if it believed that plaintiff was concerned
about her job, that plaintiff’s complaint was made in good faith over a concern that Ms.
Harrison-Lee was seeking to eliminate plaintiff’s position on the basis of a protected
The City relies on only one case in support of its “good faith” argument—Shinwari v. Raytheon
Aircraft Co., 16 F. Supp.2d 1308 (D. Kan. 1998). In that case, the court found that the “only
The City next asserts that summary judgment is appropriate because plaintiff cannot
establish a causal connection between her January 26, 2015 complaint and the City’s decision to
eliminate the ASM position.5 In support of this argument, the City urges that the evidence
demonstrates that the elimination decision was made in the summer of 2014, months prior to
plaintiff’s January 26, 2015 email. Viewed in the light most favorable to plaintiff, the evidence
does not support this contention. The City directs the court to one interrogatory response in
which it asserted that Ms. Harrison Lee “first considered the elimination of the Administrative
Services Position in the Spring of 2014 and decided she would work to proceed with the
elimination in the later part of June 2014.” The City also cites to evidence that the City, in
August 2014, approved the 2015 budget that included funding for a Human Resources
Supervisor position and Network Administrator position and that, just prior to the City Council
permissible inference which reasonably flows from this record is that plaintiff manufactured a
charge of discrimination to deflect attention from his own performance problems.” While the
Circuit ultimately affirmed the grant of summary judgment on the pretext issue, the Circuit
found that the plaintiff’s evidence supported a good-faith belief that Raytheon was engaged in
discrimination. Shinwari v. Raytheon Aircraft Co., 2000 WL 731782, at *6 (10th Cir. June 8,
2000). Shinwari, then, is not persuasive to the court.
In its motion, the City contends that plaintiff must demonstrate that her complaint was the “but
for” cause of her termination under the Supreme Court’s decision in University of Texas
Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013). However, the Circuit has
recognized that Nassar has not altered the burden a plaintiff bears in supporting the causation
element of a prima facie case of retaliation because Nassar was entirely consistent with the
Circuit’s precedent on that issue. See Foster v. Mountain Coal Co., 830 F.3d 1178, 1191 (10th
Cir. 2016) (citing Ward v. Jewell, 772 F.3d 1199, 1203 (10th Cir. 2014)). The court, then,
rejects any suggestion that Nassar imposes a heightened burden on plaintiff at this stage.
meeting in August 2014, Ms. Harrison-Lee told plaintiff to be “prepared” because she believed
that the Council was going to demote plaintiff.
Without question, a reasonable jury could conclude that the City had not decided to
eliminate the ASM position as of August 2014. As plaintiff highlights, the City Council, in
August 2014, approved a budget that included funding for the ASM position through 2015.
Moreover, the approved budget and related organizational charts reflect that the new Human
Resources Supervisor and Network Administrator would report to the ASM. Contrary to the
City’s suggestion, then, the fact that the City funded two new positions is not sufficient to
demonstrate that the City intended to eliminate the ASM position and replace that position with
two newly created positions. With respect to Ms. Harrison-Lee’s suggestion that the City
Council was going to demote plaintiff, it is uncontroverted that no discussions about the
demotion of plaintiff occurred at the August 2014 City Council meeting.
The City also contends that Ms. Harrison-Lee decided to eliminate the ASM position
between January 15, 2015 (when the City began telephone interviews with promising candidates
for the Human Resources Supervisor position) and January 23, 2015, when Ms. Harrison-Lee,
according to her affidavit, met with Council President Harrison and Mayor Morrow to advise
them that she wanted to eliminate the ASM position. Ms. Harrison-Lee avers that she told Ms.
Harrison and Mayor Morrow that the ASM position was no longer necessary in light of the fact
that the Network Administrator was reporting directly to Ms. Harrison-Lee and the Human
Resources Supervisor candidates were highly qualified and could oversee all HR functions.
Citing Clark County School District v. Breeden, 532 U.S. 268 (2001), the City thus argues that it
simply carried out a previously contemplated decision when it formally eliminated the ASM
position in March 2015, thus disproving plaintiff’s causation evidence.
In Breeden, the Supreme Court considered whether an employee could maintain a Title
VII retaliation claim when the employee engaged in protected activity and was transferred to
another position shortly thereafter. Id. at 272. The employee’s sole evidence of causation was
the temporal proximity between her protected activity and the adverse employment action. Id.
The employee’s supervisor, however, had mentioned contemplating the potential transfer before
the supervisor ever learned of the employee’s lawsuit. Id. at 271–72. The Supreme Court
concluded that “[e]mployers need not suspend previously planned transfers upon discovering
that a Title VII suit has been filed, and their proceeding along lines previously contemplated,
though not yet definitively determined, is no evidence whatever of causality.” Id. at 272.
Breeden is not persuasive to the court. In that case, the plaintiff’s supervisor expressly
contemplated the transfer prior to learning about the plaintiff’s lawsuit and then carried out the
transfer one month later. The plaintiff’s supervisor was the sole decisionmaker in Breeden. In
this case, Ms. Harrison-Lee apparently contemplated the elimination of the ASM decision prior
to plaintiff’s January 26, 2015 email and she mentioned that idea on January 23, 2015 to Mayor
Morrow and Ms. Harrison. But Ms. Harrison-Lee, unlike the supervisor in Breeden, had no
authority to make the elimination decision—only the City Council had the authority to do so.
There is no evidence in the record as to whether any other members of the City Council were
contemplating the elimination of the ASM position prior to plaintiff’s email. Significantly, Ms.
Harrison-Lee did not recommend the elimination of the ASM position to the City Council as a
whole until after plaintiff’s January 26, 2015 email. And the City Council, on March 16, 2015,
unanimously voted to eliminate the position just two weeks after Ms. Freeman reported to the
City Council on the outcome of her investigation into plaintiff’s complaint.
The City relies on two other cases in support of its causation argument. Both are easily
distinguished from the factual context of this case and not persuasive to the court. In Sabourin
v. University of Utah, 676 F.3d 950 (10th Cir. 2012), the Circuit rejected the plaintiff’s
retaliation claim because the plaintiff’s supervisor had decided to eliminate the plaintiff’s
position in a reduction-in-force before she learned that the plaintiff intended to take FMLA
leave. Id. at 958. That case is different because the undisputed facts revealed that the supervisor
had “unequivocally” already made the elimination decision prior to the plaintiff’s protected
activity and had established a specific date for the scheduled elimination. Id. at 959. By
contrast, the City Council made no decision in this case until after plaintiff’s January 26, 2015
email. In Sunderman v. Westar Energy, Inc., 307 Fed. Appx. 224 (10th Cir. Jan. 14, 2009), the
pertinent decisionmakers, prior to the plaintiff’s protected activity, had already had numerous,
specific meetings about a reorganization that ultimately resulted in the elimination of the
plaintiff’s position. Id. at 228. The reorganization process was well under way by the time the
plaintiff filed an administrative charge. See id. Here, there is no evidence that the City Council
contemplated the elimination of the ASM position until after plaintiff’s January 26, 2015 email.
For these reasons, the cases on which the City relies do not advance its arguments on summary
A jury, then, must decide whether the City Council was simply “proceeding along lines
previously contemplated” when it eliminated the ASM position. If the jury concludes that the
elimination decision had not been previously contemplated by the City Council, then the
temporal proximity between plaintiff’s complaint and the elimination decision is close enough to
establish the requisite causal connection for purposes of plaintiff’s prima facie case. Summary
judgment must be denied. See Conroy v. Vilsack, 707 F.3d 1163, 1181-82 (10th Cir. 2013)
(temporal proximity of one-and-a-half months establishes causation).
IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s motion for
summary judgment (doc. 80) is granted in part and denied in part.
IT IS SO ORDERED.
Dated this 1st day of December, 2017, at Kansas City, Kansas.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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