Fears v. Unified Goverment of WYCO ASFME et al
MEMORANDUM AND ORDER sustaining 52 Motion for Summary Judgment. Signed by District Judge Kathryn H. Vratil on 10/8/19. Mailed to pro se party Brenda A. Fears by regular mail. (hw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRENDA A. FEARS,
UNIFIED GOVERNMENT OF
WYANDOTTE COUNTY/KANSAS CITY,
KANSAS, et al.,
MEMORANDUM AND ORDER
On November 22, 2017, Brenda A. Fears filed a complaint against the Unified Government
of Wyandotte County/Kansas City, Kansas, alleging employment claims under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the American with Disabilities Act of
1990, 42 U.S.C. §§ 12101 et seq. Complaint (Doc. #1). This matter is before the Court on
defendant’s unopposed motion for summary judgment.
Defendant’s Motion For Summary
Judgment (Doc. #52) filed July 3, 2019. For reasons stated below, the Court sustains defendant’s
The following facts are deemed admitted.1
In 1983, plaintiff, who is black, was diagnosed with a progressive eye disease. In 2006,
defendant hired plaintiff as an administrative support assistant in the Register of Deeds office. In
Plaintiff did not file a response to defendant’s motion for summary judgment.
2012, plaintiff’s vision took a turn for the worse. To address her increasing visual impairment,
plaintiff’s supervisors provided her with reasonable accommodations.
As plaintiff’s vision continued to deteriorate, she made frequent mistakes in her work and
received multiple performance warnings. On one occasion, defendant suspended her for one day
for incorrectly recording a filing fee.
On September 21, 2015, plaintiff filed a complaint with the mayor and the human resources
department, alleging race discrimination.
On September 24, 2015, plaintiff’s union filed a
grievance on her behalf alleging disparate treatment based on race, but did not pursue it.
Defendant attempted additional accommodations for plaintiff’s visual impairment, but her
performance continued to decline. Plaintiff’s supervisor eventually concluded that she was
unable to perform the essential functions of her job.
On April 19, 2016, defendant placed plaintiff on paid leave while defendant’s human
resources office looked for another job that plaintiff could perform. Plaintiff, however, was
unable to pass the required skills test for any open position.
On June 10, 2016, plaintiff exhausted her paid leave time and defendant placed her on
administrative leave for 60 days.
In August of 2016, defendant placed plaintiff on an unpaid leave of absence pending her
application for disability benefits from the Kansas Public Employees Retirement System
(“KPERS”). In her KPERS application, plaintiff stated that she was unable to perform her job or
any substantial gainful activity because of her vision and other ailments.
In February of 2017, KPERS granted plaintiff’s application for disability benefits effective
October 18, 2016. KPERS determined that plaintiff was unable to perform the duties of her
occupation due to her “physical conditions of vision, hypertension and shortness of breath that
started on April 21, 2016.”
After receiving notice that plaintiff’s KPERS application was
approved, defendant terminated her employment effective October 18, 2016.
On January 14, 2017, the Social Security Administration (“SSA”) granted plaintiff’s
application for disability benefits. The SSA found that plaintiff became disabled on April 20,
2016. In her application for Social Security benefits, plaintiff stated that she became unable to
work on April 20, 2016 because of her “disabling condition.”
On May 1, 2017, plaintiff filed a charge with the Equal Employment Opportunity
Commission (“EEOC”), alleging that defendant committed discriminatory and retaliatory acts
before removing her from her position and terminating her employment on August 9, 2016.
On November 22, 2017, plaintiff filed a complaint against defendant. As best the Court
can ascertain and construed liberally, plaintiff asserts the following claims: (1) wrongful
termination based on disability; (2) wrongful termination based on race; (3) failure to
accommodate disability; (4) discrimination in terms and conditions of employment;
(5) termination in retaliation for complaining about race discrimination; and (6) harassment based
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A factual dispute is “material” only
if it “might affect the outcome of the suit under the governing law.” Liberty Lobby, 477 U.S. at
248. A “genuine” factual dispute requires more than a mere scintilla of evidence in support of a
party’s position. Id. at 252.
The moving party bears the initial burden of showing the absence of genuine issues of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once the moving party
meets the initial burden, the burden shifts to the nonmoving party to show that a genuine issue
remains for trial with respect to the dispositive matters for which the nonmoving party carries the
burden of proof. Nat’l Am. Ins. Co. v. Am. Re-Ins. Co., 358 F.3d 736, 739 (10th Cir. 2004); see
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). As to these
matters, the nonmoving party may not rest on the pleadings but must set forth specific facts. Fed.
R. Civ. P. 56(e)(2); Matsushita, 475 U.S. at 586-87. Conclusory allegations not supported by
evidence are insufficient to establish a genuine issue of material fact. Jarvis v. Potter, 500 F.3d
1113, 1120 (10th Cir. 2007); see Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 853 (10th Cir. 1996).
When applying this standard, the Court views the factual record in the light most favorable
to the party opposing the motion for summary judgment. Duvall v. Ga.-Pac. Consumer Prods.,
L.P., 607 F.3d 1255, 1260 (10th Cir. 2010); see Ricci v. DeStefano, 557 U.S. 557, 586 (2009).
Summary judgment may be granted if the nonmoving party’s evidence is merely colorable or is
not significantly probative. Liberty Lobby, 477 U.S. at 250-51. Essentially, the inquiry is
“whether the evidence presents a sufficient disagreement to require submission to the jury or
whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52.
Local Rule 7.4
On the same day that defendant filed its summary judgment motion, it sent notice to
plaintiff explaining her burden under Rule 56 and Local Rule 56.1. Notice To Pro Se Litigant
Who Opposes A Motion For Summary Judgment (Doc. #54) filed July 3, 2019. Plaintiff has not
filed a response and the time to do so has expired.2 Pursuant to D. Kan. Rule 7.4, if a party fails
to file a timely response, the Court considers and decides the motion as uncontested and ordinarily
grants it without further notice. D. Kan. Rule 7.4(b). The Court, however, must still determine
whether the moving party has met its burden under Fed. R. Civ. P. 56, i.e. whether it has
demonstrated that no genuine issue of material fact exists and that it is entitled to judgment as a
matter of law. Reed v. Bennett, 312 F.3d 1190, 1194 (10th Cir. 2002). Under Rule 56(e), if a
party does not respond to the moving party’s factual assertions, the Court may “grant summary
judgment if the motion and supporting materials – including the facts considered undisputed –
show that the movant is entitled to it.” Fed. R. Civ. P. 56(e).
Defendant asserts that plaintiff did not timely file an EEOC charge for any of her claims.
Plaintiff’s failure to timely file an EEOC charge regarding each discrete employment incident
permits defendant to raise an affirmative defense of failure to exhaust. Lincoln v. BNSF Ry. Co.,
900 F.3d 1166, 1185 (10th Cir. 2018). To exhaust administrative remedies, plaintiff generally
must present her claims to the EEOC or authorized state agency (in Kansas, the Kansas Human
Rights Commission (“KHRC”)) and receive a right-to-sue letter based on that charge. Id. at 1181.
The charge “shall be in writing and signed and shall be verified,” 29 C.F.R. § 1601.9, and must at
a minimum identify the parties and “describe generally the action or practices complained of,” 29
Under Rule 6(a), Fed. R. Civ. P., and D. Kan. Rule 6.1(d)(2), plaintiff had until
July 24, 2019 to file a response.
C.F.R. § 1601.12(b). The charge tells the EEOC or KHRC what to investigate, provides the
opportunity to conciliate the claim and gives the charged party notice of the alleged violation. See
Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir. 2003). The requirement to present claims in a
charge to the EEOC or a state agency serves the dual purposes of ensuring that the administrative
agency has the opportunity to investigate and conciliate the claims and providing notice of the
claims to the charged party. See id. Filing an untimely charge does not deprive the Court of
jurisdiction. See Zipes v. Trans World Airlines, 455 U.S. 385, 393 (1982). The timeliness
requirement is like a statute of limitations, i.e. subject to waiver, estoppel and equitable tolling.
In Kansas, plaintiff must file an administrative charge within 300 days of the alleged
discriminatory action. See 42 U.S.C. § 2000e-5(e)(1). Plaintiff filed her initial charge on May 1,
2017 and alleges that the discrimination took place between September 1, 2015 and August 9,
2016.3 Charge of Discrimination at 1, Exhibit 1 to Complaint (Doc. #1). Accordingly, any claim
for an act which occurred before July 5, 2016 (i.e. more than 300 days before plaintiff filed the
charge on May 1, 2017) is time-barred.
As to all alleged discriminatory acts which occurred before July 5, 2016, defendant
correctly asserts that as a matter of law plaintiff’s charge was untimely. Defendant is therefore
entitled to summary judgment on the following claims: (1) failure to accommodate disability;
(2) discrimination in terms and conditions of employment; and (3) harassment based on race.
Plaintiff filed an amended charge on May 4, 2017.
Because plaintiff asserts that defendant terminated her employment on August 9, 2016, she
timely filed an EEOC charge as to the following claims: (1) wrongful termination based on
disability; (2) wrongful termination based on race; and (3) termination in retaliation for
complaining about race discrimination. Defendant asserts that it is entitled to summary judgment
on plaintiff’s wrongful termination claims because she cannot establish a prima facie case of
discrimination under the ADA or Title VII, or retaliation under Title VII.
Wrongful Termination Based On Disability
Plaintiff asserts that defendant terminated her employment because of her disability.
Defendant asserts that it is entitled to summary judgment on this claim because plaintiff has not
set forth a prima facie case of disability discrimination.
To establish a prima facie case of employment discrimination under the ADA, plaintiff
must show that (1) she is disabled within the meaning of the ADA; (2) she is qualified to perform
the essential functions of her job with or without accommodations; and (3) defendant terminated
her employment under circumstances which give rise to an inference that the termination was
based on her disability. Smothers v. Solvay Chems., Inc., 740 F.3d 530, 544 (10th Cir. 2014).
Plaintiff’s ADA claim fails as a matter of law because she has not shown that she is
qualified to perform the essential functions of her job. Although she asserts that she is a “qualified
individual with a disability,” plaintiff stated in her KPERS and Social Security disability benefits
applications that she is unable to perform her job. See Charge of Discrimination at 2, Exhibit 1
to Complaint (Doc. #1). Without a sufficient explanation for the contradiction between her charge
and her disability applications, defendant is entitled to summary judgment. See Cleveland v.
Policy Mgmt. Sys. Corp., 526 U.S. 795, 805-06 (1999).4
Wrongful Termination Based On Race
Plaintiff asserts that defendant terminated her employment because of her race. Defendant
asserts that it removed plaintiff from her position for a legitimate and non-discriminatory reason –
i.e. she was unable to perform the essential functions of her job, with or without reasonable
The Court applies the burden-shifting framework which the Supreme Court set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), to plaintiff’s claim of race
discrimination in violation of Title VII. Under this approach, plaintiff initially bears the burden
of production to establish a prima facie case of discrimination. See id. at 802. If plaintiff
establishes a prima facie case, the burden shifts to defendant to articulate a facially
In Cleveland, 526 U.S. at 805-06, the Supreme Court held as follows:
[I]n some cases an earlier [Social Security Disability Insurance] claim may turn out
genuinely to conflict with an ADA claim. Summary judgment for a defendant is
appropriate when the plaintiff fails to make a showing sufficient to establish the
existence of an element essential to [her] case, and on which [she] will bear the
burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An
ADA plaintiff bears the burden of proving that she is a “qualified individual with a
disability”—that is, a person “who, with or without reasonable accommodation, can
perform the essential functions” of her job. 42 U.S.C. § 12111(8). And a
plaintiff’s sworn assertion in an application for disability benefits that she is, for
example, “unable to work” will appear to negate an essential element of her ADA
case—at least if she does not offer a sufficient explanation. For that reason, we
hold that an ADA plaintiff cannot simply ignore the apparent contradiction that
arises out of the earlier SSDI total disability claim. Rather, she must proffer a
nondiscriminatory reason for its actions. See Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523, 1533
(10th Cir. 1995). If defendant articulates a legitimate nondiscriminatory reason, the burden shifts
to plaintiff to present evidence sufficient on which a reasonable jury might conclude that
defendant’s proffered reason is pretextual, that is, “unworthy of belief.” Randle v. City of Aurora,
69 F.3d 441, 451 (10th Cir. 1995).
As noted, plaintiff asserts that defendant terminated her employment because of her race.
Defendant responds that it terminated her employment for a legitimate and non-discriminatory
reason – i.e. plaintiff could not perform the essential functions of her job. Plaintiff fails to present
evidence that defendant’s reason is pretextual. Accordingly, defendant is entitled to summary
judgment on this claim.
Retaliatory Discharge For Complaining About Race Discrimination
Plaintiff asserts that defendant terminated her employment in retaliation for a complaint of
race discrimination which she filed with the mayor and the human resources department on
September 21, 2015. Defendant asserts that plaintiff has not set forth a prima facie case of
retaliation and, even if she could, it terminated her employment because she could not perform the
essential functions of her job.
Title VII makes it unlawful for an employer “to discriminate against any of [its] employees
. . . because [an employee] has opposed any practice made an unlawful employment practice.” 42
U.S.C. § 2000e-3(a). In the absence of direct evidence of retaliation, the Court assesses claims
under the McDonnell Douglas burden-shifting framework. Medina v. Income Support Div., 413
F.3d 1131, 1135 (10th Cir. 2005). As noted, under this burden-shifting structure, plaintiff must
first establish a prima facie case of retaliation. If she does so, the burden shifts to the employer
to articulate a legitimate nondiscriminatory reason for the adverse employment decision. From
there, the burden returns to plaintiff to show that the stated reason is pretextual. Trujillo v. Univ.
of Colo. Health Sciences Ctr., 157 F.3d 1211, 1215 (10th Cir. 1998).
To establish a prima facie case of retaliation, plaintiff must demonstrate (1) that she
engaged in protected opposition to discrimination; (2) that a reasonable employee would have
found the challenged action materially adverse; and (3) a causal connection between the protected
activity and the materially adverse action. See Argo v. Blue Cross & Blue Shield of Kan., Inc.,
452 F.3d 1193, 1202 (10th Cir. 2006) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
Assuming plaintiff has satisfied the first two elements, she fails to show a causal connection
between the complaint she filed in September of 2015 and defendant’s decision to remove her
from her position in April of 2016 (or to terminate her employment in August of 2016).
Moreover, even if plaintiff could establish a prima facie case, defendant has offered a legitimate
reason for terminating her employment – i.e. she was unable to perform the essential functions of
her job. Plaintiff has presented no evidence that defendant’s reason is unworthy of belief.
Accordingly, defendant is entitled to summary judgment on this claim.
IT IS THEREFORE ORDERED that Defendant’s Motion For Summary Judgment (Doc.
#52) filed July 3, 2019 is SUSTAINED.
IT IS FURTHER ORDERED that the Clerk of the Court should enter judgment in favor
Dated this 8th day of October, 2019 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge
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