Turner v. Wyandotte County, Kansas, Unified Government of et al

Filing 92

MEMORANDUM AND ORDER sustained in part 66 Motion for Summary Judgment. Signed by District Judge Kathryn H. Vratil on 3/2/2020. (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN TURNER,

)
)
)
Plaintiff,
)
)
v.
)
)
UNIFIED GOVERNMENT OF WYANDOTTE
)
COUNTY / KANSAS CITY, KANSAS,
)
)
)
Defendant.
)
____________________________________________)

CIVIL ACTION
No. 18-2202-KHV

MEMORANDUM AND ORDER
John Turner brings suit against the Unified Government of Wyandotte County / Kansas
City, Kansas (“Unified Government”) for employment discrimination, harassment and retaliation
based on race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq.
Pretrial Order (Doc. #55) filed August 16, 2019.

This matter comes before the Court on

Defendant’s Motion For Summary Judgment (Doc. #66) filed October 21, 2019. For reasons
stated below, the Court sustains defendant’s motion in part.
Factual Background
The following facts are undisputed or, where disputed, viewed in the light most favorable
to plaintiff.1

1

The parties assert more than 600 facts. The Court includes only those facts that are
material to resolution of this motion and that the parties support with evidence which would be
admissible at trial. Fed. R. Civ. P. 56(c)(4).

Plaintiff is African-American. Since 1986, the Kansas City, Kansas Police Department
(“KCKPD”), which is a department of the Unified Government, has employed him as a police
officer. Pretrial Order (Doc. #55) at 2.
I.

Dignitary Protection Detail
In January of 2015, Chief of Police Terry Zeigler awarded plaintiff a primary position in a
new unit called the Dignitary Protection Detail (“DPD”), which consisted of two primary and two
secondary officers. DPD officers provided protection services for, and worked closely and
attended events with elected officials, commissioners, community dignitaries and the mayor. A
DPD assignment had a higher profile than a patrol assignment. From its inception, the DPD’s
existence was a political issue and at meetings between the mayor and a Unified Government
commissioner, the commissioner questioned DPD finances.
Chief Zeigler awarded Officer Steve Rios the other primary DPD position and gave
Officers Steve Kopp and Christopher Blake the secondary positions. Secondary officers were
relief officers and only worked in the DPD about once a month. In the spring of 2015, Officer
Kopp replaced Officer Rios as a primary DPD officer. In July of 2015, Officer Steve Williams,
who is African-American, replaced Officer Kopp as a primary DPD officer and Officer Kopp left
the unit. From July of 2015 to March of 2016, plaintiff and Officer Williams were the primary
DPD officers. As of August 24, 2015, Officer Blake was the only secondary DPD officer. In
other words, during the relevant period, both primary DPD officers were African-American
(plaintiff and Officer Williams) and the secondary DPD officer (Officer Blake) was white.
According to Officer Williams, other officers made comments about the DPD such as “the
mayor and his brothers are changing the inner city” and “the brothers [are] protecting the mayor.”
Affidavit Of Steve Williams, Exhibit 27, Exhibits In Support Of Plaintiff’s Response Motion (Doc.
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#74-26) filed November 26, 2019 at 3-4. Officer Williams felt like these comments indicated that
other officers targeted him and plaintiff and expected them to fail.
II.

Recording Time In DPD
Plaintiff and Officer Williams reported to Major Rodney Smith, who in turn reported to
Chief Zeigler. In January of 2016, after defendant promoted Major Smith to deputy chief,
plaintiff and Officer Williams reported to Major Michael York. Sergeants, captains and majors
can issue discipline, but Chief Zeigler has ultimate disciplinary authority.
Plaintiff is an hourly employee. Initially, his scheduled hours were Monday through
Friday from 8:00 a.m. to 4:00 p.m. In July of 2015, plaintiff’s schedule changed to Monday
through Friday from 11:00 a.m. to 7:15 p.m. Plaintiff’s new schedule was “flex flex,” which
meant that the needs of the unit determined his hours. Before he arrived at city hall, plaintiff
would sometimes conduct surveillance of the mayor’s home and counted that time as scheduled
work time.
DPD officers recorded time differently than officers in other units did. Chief Zeigler and
Major Smith told DPD officers that they did not need to keep a daily activity log, sign in at the
very beginning of shifts or submit a form before taking a day off. Accordingly, each day after
arriving at city hall, instead of recording the exact hours that he worked, plaintiff would write his
scheduled start time and end time on the daily sign-in sheet. He did not later correct the sign-in
sheets to reflect actual hours worked, and he did not keep a personal notebook or log of time
actually worked and what he did throughout the day. Chief Zeigler also told plaintiff that DPD
officers would be working a lot of overtime, and that they should keep their overtime budget under
a certain amount. With the budget in mind, plaintiff did not always record his overtime hours.

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III.

First Internal Affairs Investigation: Allegations Of “Double-Dipping” (December of
2015)
Plaintiff and his brother, Michael Simmons, own a private security company called

Simmons Security. Simmons Security has 35 to 45 employees, most of whom are police officers
who work for the company part time while off duty.
In December of 2015, the Unified Government commissioner who had questioned the
finances of the DPD reported that an anonymous source had informed her that plaintiff, Officer
Williams and Simmons were not working their scheduled hours for defendant and were working
part time for Simmons Security while defendant was paying them. The anonymous source also
informed the commissioner that plaintiff and Simmons were working for Simmons Security and
receiving payment from a Unified Government contract. The parties refer to the commissioner’s
allegations as allegations of “double-dipping.”
On December 2, 2015, Major Smith directed the Internal Affairs (“IA”) unit to follow up
on the double-dipping allegations. Internal Affairs Detective Pamela Waldeck, who is white, led
the investigation into whether Officer Williams and plaintiff were double-dipping.

The

investigation was categorized as criminal special, i.e. she would send the case file to the district
attorney for review. Detective Waldeck focused her investigation on the time entries from
February through March 10, 2016 and only investigated plaintiff and Officer Williams because
they were the primary DPD officers and the subjects of the allegations. She did not investigate
Officer Blake or the time entries of former DPD Officers Kopp and Rios.
As part of the investigation, Detective Waldeck conducted surveillance and interviews.
She interviewed Officer Kopp and asked him if he had talked to the commissioner about the
double-dipping allegations. Officer Kopp told Detective Waldeck that the commissioner had

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asked him if his replacement was black. Detective Waldeck did not further investigate the
commissioner’s statements. Detective Waldeck did not interview the mayor or anyone in his
office about plaintiff’s time or work as a DPD officer.
On March 12, 2016, Chief Zeigler placed plaintiff on administrative leave pending the
outcome of the double-dipping investigation. As set out in a letter to plaintiff from Chief Zeigler,
the terms of plaintiff’s administrative leave were as follows: “You are relieved of your duties as a
law enforcement officer, with pay, until further notice. You are prohibit[ed] from working any
off-duty employment, that requires your law enforcement powers or jurisdictional authority, until
further notice by the Chief of Police or his designate.” Pretrial Order (Doc. #55) at 3. Plaintiff
was on paid administrative leave for five months.
In a memorandum to Major York (plaintiff’s supervisor) dated April 13, 2016, Detective
Waldeck summarized the results of her investigation up to that time. She found that “[d]uring the
surveillance of Officer Turner, he worked 17 days, 2 half days, and submitted 23 hours of overtime.
Of those days worked there were 21 hours that were not accounted for during his scheduled duty
hours.” Deposition Exhibit #67, Memorandum From Captain Pamela Waldeck To Major Mike
York Dated July 5, 2016 (Doc. #68-11) at 71. Defendant forwarded plaintiff’s case file to the
District Attorney’s Office for review and possible filing of criminal charges. The DA declined
prosecution but stated that he believed that while recording their work hours, Officer Williams and
plaintiff had made false entries with intent to defraud and that the DA had sufficient evidence to
bring criminal charges. See Deposition Exhibit #68, Memorandum From LTC. Tyrone Garner to
Chief Zeigler Dated July 14, 2016 (Doc. #68-11) at 83. The DA returned the file and Internal
Affairs transitioned it from a criminal special investigation to an administrative special
investigation, then forwarded it to Deputy Chief Tyrone Garner.
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Deputy Chief Garner, who is African-American, reviewed the IA file and made findings,
which he included in a memorandum to Chief Zeigler dated July 14, 2016. Deputy Chief Garner’s
memorandum stated that plaintiff’s actions reflected dishonesty in the inaccurate notation of time
worked and sustained the allegation that plaintiff was not working his scheduled hours. The
investigative file, including Deputy Chief Garner’s memorandum, was then forwarded to Chief
Zeigler. After reviewing the file, Chief Zeigler agreed with Deputy Chief Garner’s conclusion.
On August 4, 2016, Chief Zeigler issued plaintiff a letter of discipline dated August 2,
2016. In the letter, Chief Zeigler stated, “the investigation revealed dishonesty in the inaccurate
notation of the actual time you worked,” quoted statements from the DA and found that plaintiff
had violated Rule 3.23, which prohibits dishonesty, and Rule 3.16, which prohibits making false
reports. Deposition Exhibit #5, Letter Of Discipline From Chief Terry Zeigler To Officer J,
Turner Dated August 2, 2016 (Doc. #68-9) at 46. Chief Zeigler imposed a 30-day suspension,
removed plaintiff from his position in the DPD and prohibited him from re-bidding into the unit
for 25 months. The letter of discipline also included a last chance provision which stated as
follows: “Any violation of the Kansas City, Kansas Police Department’s Rules & Regulations
3.15, 3.16, 3.23, and/or 3.33, during the duration of your employment with the Department will
result in termination, irrespective of the existence of just cause and such termination shall be not
be grieved.” Id.
The 30-day suspension and last chance provision is consistent with what Chief Zeigler
imposed on Officers B.B. and B.M., who are white, for violating Rule 3.16 by falsely reporting
how drugs were discovered and recovered in an arrest. See Letter Of Discipline To Officer B.B.
Dated June 16, 2015 (Doc. #68-14) at 35; Letter Of Discipline To Officer B.M. Dated June 16,
2015 (Doc. #68-14) at 36. In August of 2016, he imposed the same discipline on a white detective
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who violated Rule 3.23.2 See Letter Of Discipline To Detective J.L. Dated August 2, 2016 (Doc.
#68-14) at 33.
Chief Zeigler testified that he removed plaintiff from the DPD because he had committed
major violations of the Rules and Regulations, i.e. Rules 3.16 and 3.23. Statement of Fact #72.
Because the DPD was a politically sensitive unit, Chief Zeigler felt that he should remove plaintiff
from it.3
To challenge plaintiff’s discipline, the union filed a grievance. On October 3, 2016, Chief
Zeigler responded in a memorandum which stated that on August 23, 2016, he had met with
plaintiff to discuss the discipline for violation of Rules 3.16 and 3.23 and that during the meeting,
plaintiff stated that he believed dispatch tapes, text messages and emails would prove that he was
working outside of his duty hours to fulfill the DPD’s mission and that he did not record his
overtime. Chief Zeigler indicated that IA had completed a follow-up investigation and found
evidence that plaintiff did not work his entire shift on several occasions. Chief Zeigler therefore
denied the grievance and stated, “I do believe there is substantial evidence in [this IA case file] to
justify the violations and the discipline issued to him.”

Letter From Terry Zeigler To S.

Kirkpatrick Dated October 3, 2016 (Doc. #68-9) at 49.
The union appealed Chief Zeigler’s denial to a grievance board, which is the next step in
the grievance procedure. In April of 2017, the grievance board held a hearing. At the conclusion

2

Plaintiff disputes this fact, but only asserts that the two officers who Chief Zeigler
suspended in 2015 had made a false police report and not false time entries like plaintiff, and that
defendant did not remove them from their positions or prohibit them from rebidding on their
positions. The letters of discipline, however, speak for themselves.
3

Plaintiff disputes this fact but does not dispute that Chief Zeigler testified to this,
and he presents no contrary evidence.
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of the hearing, the grievance board rescinded the original 30-day suspension and removed the
Rule 3.23 violation (dishonesty). The grievance board determined that plaintiff had violated
Rule 3.16 by making false reports, however, and recommended a 3-day suspension. Accordingly,
on April 20, 2017, Chief Zeigler rescinded the discipline that he had issued on August 4, 2016 and
imposed a 3-day suspension for violating Rule 3.16.
Effective August 18, 2016, defendant assigned plaintiff to West Patrol where he bid and
obtained a regular position. Plaintiff did not request that Chief Zeigler reinstate him to the DPD
and Chief Zeigler did not do so.
IV.

Internal Affairs Investigation Of Sgt. J.A.: Allegations Of Double-Dipping (August of
2018)
Sgt. J.A. was an officer in the community policing unit, which is a high-profile unit like

the DPD. In August of 2018, IA conducted a secret investigation into whether Sgt. J.A., who is
white, worked off-duty during his scheduled work hours. See Exhibit J, Letter of Discipline
Dated April 9, 2019 (Doc. #74-2) at 96. Because Sgt. J.A. was not aware of the investigation,
defendant did not remove him from his position during the investigation.

See Depo. Of Deputy

Chief Michael York (Doc. #74-1) at 71. Sgt. J.A. admitted that he routinely left work early to go
to his off-duty job and was paid by defendant and his off-duty employer at the same time.
Defendant placed Sgt. J.A. on the veracity list and suspended him for 45 days for violations of
Rules 3.23 (dishonesty), 1.10 (code of ethics), 2.24 (failure to supervise subordinates) and 20.07
(off-duty employment). In addition, in relevant part, Sgt. J.A.’s letter of discipline contained a
last chance agreement which stated that “any sustained violation of the off-duty policy (G.O.
20.07) will result in discipline up to and including termination of his employment.” See Exhibit J,

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Letter of Discipline Dated April 9, 2019 (Doc. #74-2) at 97.
After the investigation, Sgt. J.A. returned to his position in the community policing unit.
V.

Second Internal Affairs Investigation: Sexting Incident (August 4, 2016)
On May 17, 2016, defendant learned that in 2014 and earlier, three officers – including
plaintiff – had sent sexually explicit text messages to a female detective who was married.
Detective Waldeck investigated the incident, and plaintiff admitted his involvement. On August
4, 2016, Chief Zeigler issued a letter of discipline to plaintiff for violating Rule 2.27, which states
that “[o]fficers shall not perform any acts or make any statements, which tend to bring the
Department into disrepute or ridicule.” Statement Of Fact #91, Defendant’s Memorandum In
Support Of Summary Judgment (Doc. #67) filed October 21, 2019 at 20. He imposed discipline
of 20 points, the amount specified in the Rules and Regulations.4 A white officer admitted the
same misconduct and received the same discipline as plaintiff. Plaintiff does not claim that Chief
Zeigler disciplined him for this incident because of race.

VI.

Third Internal Affairs Investigation: Citizen Complaint (June of 2016)
In June of 2016, a citizen complained that because he opposed a tax that supported security

and cleaning services for downtown property owners, plaintiff had threatened to cease providing
security services to him through Simmons Security. On August 3, 2016, plaintiff admitted that
he was aware that the citizen had publicly expressed his opposition to the tax but stated that his
threat to cease providing security services was based on several problems at the citizen’s building.
Plaintiff denied any connection between the citizen’s opposition to the tax and his threat to stop

4

Defendant disciplines officers on a point system, and all officers are subject to the
Rules and Regulations. If an officer accumulates more than 40 points in one year, it is a “major
violation” and defendant suspends that officer.
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providing security services to him. Deputy Chief York5 reviewed the IA file and recommended
that Deputy Chief Garner find it “not sustained.” Deputy Chief Garner agreed with Deputy Chief
York and did not discipline plaintiff for this complaint.
VII.

Fourth Internal Affairs Investigation: Violation Of Terms Of Administrative Leave And
Failure To File Off-Duty Form (September of 2016)
As noted above, one of the conditions of plaintiff’s five-month administrative leave was

that he could not work in off-duty employment that required his “law enforcement powers or
jurisdictional authority.” See Statement Of Fact #102, Defendant’s Memorandum In Support Of
Summary Judgment (Doc. #67) at 24. While investigating the foregoing citizen complaint, IA
detectives came across information that plaintiff was working for Simmons Security while on
leave. IA then launched an investigation into whether plaintiff was violating the terms of his
administrative leave.
On August 3, 2016, plaintiff explained that he had understood the conditions of his
administrative leave to prohibit him from working off duty in his uniform. He admitted that he
had continued to operate Simmons Security during his leave but maintained that he was
functioning in an administrative capacity, i.e. scheduling officers to work, taking calls from
officers, etc. He did not give the officers any advice or direction and did not think that this work
required use of his authority as a police officer. Plaintiff did agree that involvement with
Simmons Security created the potential for use of his police authority.

He nevertheless

maintained that as an owner of the company, he did not utilize any police powers to do scheduling
or receive information about any incident that may have occurred on site.

5

In March of 2017, defendant promoted Major York to Deputy Chief over the
Bureau of Operations.
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During this investigation, plaintiff stated that he did not believe he had filed an updated
off-duty employment form for 2016. Defendant requires officers to file an off-duty employment
form by January 10 of each year. The officer is responsible for submitting the updated form and
defendant does not check of see whether an officer has submitted the form unless the need arises.
If for some reason defendant checks and finds that the off-duty form is not there, it is a violation
of policy.
On September 13, 2016, Deputy Chief York reviewed the IA file and found that while
plaintiff was on paid administrative leave, he was scheduling officers to work off duty for his
security business and that plaintiff had agreed that this type of activity (scheduling, fielding phone
calls from officers, etc.) could potentially fall within his authority as a police officer. Deputy
Chief York also found that plaintiff had violated a general order by failing to timely submit an
updated off-duty employment form. Based on the evidence, Deputy Chief York recommended to
Deputy Chief Garner (who was at that time serving as Acting Chief) that he classify the case as
“founded” and specified the general order and rules and regulations that he believed plaintiff had
violated.
Deputy Chief Garner did not sustain the allegation that plaintiff had violated the terms of
his administrative leave but did adopt the finding that plaintiff had violated a general order by
failing to submit an updated off-duty employment form for 2016. Until plaintiff, no one had ever
been disciplined for failing to submit an updated form. The standard discipline for such a
violation is a one-day suspension, which Deputy Chief Garner imposed.
VIII.

Early Warning System (July of 2016)
Accumulation of disciplinary action triggers an “Early Warning System.” Specifically, an
officer triggers the early warning system any time, within a 90-day period, that he or she has
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(1) three or more IA complaints that are classified as “Other Contacts” or (2) two or more IA
complaints which result in an administrative or criminal investigation. The early warning system
applies to officers who have had negative interactions with citizens or use-of-force complaints.
Its purpose is to identify officers whose behavior is problematic and intervene to correct that
behavior before it causes further harm and jeopardizes the officer’s career. When complaints
against an officer trigger the early warning system, IA reviews the officer’s professional behavior
to determine whether it requires intervention and notifies the officer’s division commander, the
bureau director and the chief of police. The division commander is responsible for meeting with
the officer regarding remedial measures. The early warning system is not a form of discipline.
In July of 2016, plaintiff accumulated three IA complaints within 90 days.

Major

Solomon Young, who is African-American and is the division commander over West Patrol, met
with plaintiff to discuss the early warning notification. During that meeting, plaintiff told Major
Young that he thought defendant was targeting and harassing him because he is black. Major
Young documented this complaint in a memorandum that he sent to Deputy Chief Smith.6
IX.

Veracity List (October of 2016)
Defendant maintains a “veracity list” of officers who commit Rules and Regulations

violations that involve dishonesty, including Rules 3.16 and 3.23. Defendant shares the veracity
list with state and federal prosecuting authorities in Wyandotte County, Kansas. The veracity list
is a means of fulfilling what KCKPD believes are its legal obligations under Brady v. Maryland,
373 U.S. 83 (1963), and avoiding civil liability. Inclusion on the veracity list has a negative
impact on an officer and limits his or her opportunities to work with the federal government. Once

6

In late 2015, defendant promoted Major Smith to Deputy Chief.
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an officer is on the veracity list, he or she remains on it indefinitely.
In October of 2016, Captain Ronald Schumaker, Internal Affairs Commander, added
plaintiff’s name to the veracity list based on Chief Zeigler’s determination in the double-dipping
investigation that plaintiff had violated Rules 3.16 and 3.23. When Captain Schumaker added
plaintiff to the list, he mistakenly listed plaintiff’s three IA complaints (i.e., the double-dipping,
sexting and administrative leave conditions investigations) instead of only the double-dipping
investigation.

Because defendant did not issue dishonesty findings in the sexting and

administrative leave investigations, Captain Schumaker should not have listed those
investigations. Captain Schumaker listed them by mistake, and his mistakes carried forward on
the veracity lists for 2017 and 2018.
Defendant’s Failure To Complete Performance Evaluations (December of 2016)

X.

Twice a year, in June and December, defendant conducts performance evaluations for law
enforcement officers. Since he started with the KCKPD, except for June and December of 2015
and June of 2016, when he was in the DPD, plaintiff has received performance evaluations twice
every year. As part of each performance review, an officer is asked to complete a “Productive
Work Environment Advisory” that consists of two questions:
1) Are you aware of the department’s strong commitment to a productive workplace
free of any form of sexual harassment or discrimination or any other similar social,
personal, or professional coercion?
2) Have you personally been the victim of any such harassment, discrimination, or
coercion in the past year in your workplace?
Statement Of Fact #122, Defendant’s Memorandum In Support Of Summary Judgment (Doc. #67)
at 28-29. The form has “yes” and “no” check boxes after each question. Below the questions,
the officer is asked, “If yes, please explain (may be brief or use additional sheets if necessary).”

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Plaintiff completed his first productive work advisory form in 1999. On that form and on
each subsequent form, plaintiff checked “yes” in response to the first question, indicating that he
was aware of the department’s strong commitment to a productive workplace.

From 1999

through 2014, plaintiff answered “no” to the second question, indicating that he had not personally
been the victim of any such harassment, discrimination or coercion in the past year.
Deputy Chief Smith, who supervised the DPD in 2015, was responsible for completing
plaintiff’s performance evaluations in June and December of 2015.

He did not complete

performance evaluations for any officers in the unit. Before December of 2016, plaintiff did not
bring that matter to the attention of Deputy Chief Smith or anyone else. Deputy Chief Smith did
not realize that he had not completed a performance evaluation for plaintiff until plaintiff
complained in December of 2016. His failure was an oversight. Deputy Chief Smith did not do
anything to correct the oversight because by the time he realized it, he felt that it was too late to
go back and do an evaluation and that it “would be compounding a foul-up.” Statement Of Fact
#131, Defendant’s Memorandum In Support Of Summary Judgment (Doc. #67) at 30. In June of
2016, Deputy Chief York, who supervised the DPD as a major in 2016, did not give plaintiff an
evaluation because plaintiff had been suspended. Also, he was not aware that plaintiff had not
received performance evaluations in 2015. If Deputy Chief York had known that plaintiff had
not received an evaluation in 2015, he would have completed one for him.
XI.

First Internal Complaint Of Discrimination And Harassment (December of 2016)
On his performance evaluation for July 1 through December 31, 2016, which he completed

on December 12, 2016, plaintiff checked “yes” to the second question on the Productive Work
Environment Advisory. His explanation was as follows:
1) SUSPENSION DAYS RECEIVED RESULTING FROM INTERNAL
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AFFAIRS COMPLAINTS INITIATED BY AN ELECTED OFFICIAL AND
KCKPD. 2) NO PERFORMANCE EVALUATIONS RECEIVED SINCE
DECEMBER 2014.
Statement Of Fact #125, Defendant’s Memorandum In Support Of Summary Judgment (Doc. #67)
at 29. At the time, plaintiff had a pending grievance over the 30-day suspension which Chief
Zeigler had imposed on August 4, 2016, based on the allegations of double-dipping.
On December 14, 2016, Major Young met with plaintiff to discuss his affirmative response
on the productive work environment advisory. On December 19, Major Young prepared a
memorandum to Deputy Chief Smith which recounted the concerns that plaintiff had expressed in
their meeting. In relevant part, Major Young’s memorandum stated as follows: (1) plaintiff’s
affirmative answer to question #2 was in regard to the IA investigation regarding time recording
and accountability issues while he was in the DPD; (2) for the past year, while plaintiff was
assigned to West Patrol, he did not have any complaints or issues with his peers, supervisors or
West Patrol commanders; (3) the DPD was under scrutiny because a commissioner’s friend did
not like the program and did not like the mayor; and (4) plaintiff felt that the complaint regarding
his time in the DPD was the result of a political feud and that defendant should reinvestigate the
facts, complaining persons and the discipline that he received. Exhibit #21, Memorandum To
LTC Rodney Smith From Major Solomon Young Dated December 19, 2016 (Doc. #68-10) at 9798.
XII.

Report Desk Complaints (January through July of 2017)
In January of 2017, defendant awarded plaintiff the report desk position at police

headquarters. Sgt. Shenee Davis, who is bi-racial (African-American and white), supervised him.
Plaintiff asserts that because of race or in retaliation for complaining about discrimination,
defendant repeatedly disciplined him and monitored his activities. On February 23, 2017, for
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example, Sgt. Davis told him that someone had complained to a major that a citizen had gone up
to the detective bureau without an escort. Plaintiff explained that the citizen was a city employee.
Sgt. Davis discussed the complaint with the major and told plaintiff that he should not allow
anyone to go beyond the lobby without an escort. Plaintiff asked for the direction in writing, so
Sgt. Davis sent him an email. Defendant did not discipline plaintiff, but he believed that Sgt.
Davis was constantly monitoring his activities in retaliation for his complaints of discrimination.
On March 8, 2017, plaintiff took a bathroom break and Deputy Chief Garner, who was
looking for him, asked over the radio which bathroom plaintiff was using.

Plaintiff was

humiliated, and he believes that the question was retaliatory.
On May 19, 2017, plaintiff took his 30-minute lunch break and left a citizen waiting for
him to take a report. Plaintiff told the citizen that he would assist him when he returned from
lunch and had time to take his report. Defendant did not require plaintiff to inform Sgt. Davis
when he left for lunch, so he left for lunch without informing Sgt. Davis that he was going to take
a lunch break or that someone was waiting.
When plaintiff returned from lunch, Sgt. Davis told him to follow her out of the lobby and
escorted him to her office. In plaintiff’s opinion, her manner was improper, disrespectful and
hostile. Sgt. Davis alerted him that a citizen had complained and that she might impose discipline.
Plaintiff verbally complained to East Patrol Captain Steve Owen, the day shift commander, and
orally and in writing to West Patrol Captain George Sims. Specifically, plaintiff stated, “Sgt.
Davis intentionally exhibited a formal display of discipline towards [him] publicly in front of
Record Services personnel, that possibly initiated or was a part of, the false complaint made against
[him].” Exhibit #28, Email From John Turner To George Sims Dated June 1, 2017 (Doc. #6811) at 16. He felt that “the behavior exhibited by Sgt. Davis was improper, disrespectful and
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create[d] an unproductive and hostile type of work environment for [him].” Id.
On May 25, 2017, Sgt. Davis issued plaintiff a letter of discipline for violating Rule 2.14
by failing to provide prompt, correct and courteous service to the citizen on May 19. The letter
stated the reason for the discipline as follows: “On 05/19/2017 you failed to provide prompt
courteous service to our citizens by taking your lunch break in lieu of completing a report. The
citizen had been waiting for a report for approximately forty (40) minutes and you failed to make
other arrangements for the report to be taken prior to leaving for lunch.” Exhibit #28, Letter Of
Discipline From Sgt. S.C. Davis To Officer John Turner (Doc. #68-11) at 15. The discipline was
15 points, which is what the Rules and Regulations specify. The union filed a grievance with
Captain Owen, who denied it. The union appealed up the chain of command with no success.
On June 8, 2017, after the discipline from Sgt. Davis, plaintiff received a Performance Evaluation
that downgraded his work performance. Plaintiff does not believe that Sgt. Davis harbors racial
animus towards him, but he believes that she retaliated against him because he was out of favor
with Chief Zeigler.
On July 13, 2017, Captain Owen issued a memorandum entitled “Report Desk Duties and
Responsibilities” which required plaintiff to use a specific restroom in the lobby. Major Kent
Anderson, division commander over East Patrol, directed Captain Owen to prepare the
memorandum so that officers knew their duties at the report desk, and he required report desk
officer to use the lobby restroom because it is closest to the report desk. Captain Owen thought
that this would cut down on wait time for citizens. To plaintiff, the requirement that he use the
restroom closest to the lobby was retaliatory because no other officer has such a restriction.
XIII.

Second Internal Complaint Of Discrimination (June of 2017)
On June 8, 2017, plaintiff received his performance evaluation for January 1 through
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June 1, 2017. On the second question of the Productive Work Environment Advisory, plaintiff
again checked the “yes” box. The next day, he submitted a two-page explanation, which listed
everything which he believed was discriminatory or retaliatory up to that point, including most of
the employment actions taken before June of 2017 that are the subjects of this lawsuit.
Major Anderson met with plaintiff to discuss his concerns and prepared a memorandum to
Chief Zeigler dated June 13, 2017, which summarized plaintiff’s complaints. Major Anderson
understood that plaintiff was complaining about a hostile work environment and retaliation. Chief
Zeigler reviewed Major Anderson’s memorandum and had Deputy Chief York respond to
plaintiff’s allegations. Defendant did not investigate plaintiff’s allegations.
XIV.

Additional Report Desk Complaints (October and November of 2017)
In October and November of 2017, Captain Owen investigated two complaints in which
citizens accused plaintiff of not taking reports. One citizen had waited for over two hours before
plaintiff served her. When plaintiff met with her a few minutes before closing, he told her that
she would need to bring in additional paperwork and that he would call her the next day. Captain
Owen recommended that both complaints be classified as “No Discipline Warranted,” but advised
plaintiff that if someone was waiting for a report for longer than an hour, he should call for
additional help.
From September through December of 2017, command staff and co-workers constantly
monitored plaintiff, which made him feel uncomfortable.

XV.

Veracity List Disclosure Letter (January 31, 2018)
On January 31, 2018, Captain Schumaker made a mistake in his veracity list disclosure
letter to plaintiff when he accidentally said that he had an obligation to notify prosecutors about a
finding that plaintiff had violated Rule 3.23. This was incorrect because after the grievance board
-18-

hearing, Chief Zeigler had rescinded plaintiff’s Rule 3.23 violation and only plaintiff’s Rule 3.16
violation remained. Captain Schumaker testified that the disclosure letter should have said
Rule 3.16.
XVI.

Complaint From Fellow Officer (March of 2018)
On March 1, 2018, when plaintiff was on his way to lunch, he saw an incapacitated man in
front of the building next door to police headquarters. Plaintiff stopped and called dispatch.
When the patrol officer responded, she told plaintiff that she would handle it and plaintiff went to
lunch down the street. Shortly after that, the patrol officer called for backup. Before plaintiff
could respond, another officer arrived to assist.
The patrol officer complained that plaintiff had left her unattended with a man who needed
assistance. On March 8, 2018, Sgt. Lucas Graves issued plaintiff a letter of discipline for violating
Rule 3.22, which states, “Officers shall always maintain competence in the performance of their
duties.” Exhibit #30, Letter Of Discipline From Sgt. L. Graves To Officer John Turner Dated
March 8, 2018 (Doc. #68-11) at 23. Sgt. Graves imposed a two-day suspension.
On March 22, 2018, the union grieved this discipline and defendant amended it to a
violation of Rule 2.14 (failure to provide prompt, correct and courteous service), which reduced
his two-day suspension to 15 points. Plaintiff asserts that as the report desk officer, responding
to people on the street is not his job, and that this discipline was retaliatory.

XVII.

Alleged Disparate Discipline Of White And Black Officers (Approx. 2015 through 2018)
Plaintiff claims that defendant treats white officers more favorably than black officers.
Specifically, plaintiff asserts as follows:
(1) On July 7, 2017, plaintiff notified Internal Affairs Captain Schumaker that 19 months
earlier, Detective Waldeck, who is white, had sent an email for her off-duty
-19-

employment during work hours. Deputy Chief Garner determined that Detective
Waldeck did not have a pattern of misusing government resources and he did not
discipline her for the email or initiate an IA investigation. Deputy Chief Garner also
testified that Detective Waldeck’s action in sending the email was reasonable in light
of department policy. Exhibit #12, Deposition Of Deputy Chief Tyrone Garner (Doc.
#74-11) at 9-12.
(2) Chief Zeigler was accused of double-dipping but was not removed from his position or
placed on leave during the investigation.
(3) Defendant did not discipline Detective J.G., who is white, for sending out emails during
work hours inquiring for officers looking for off-duty work. Exhibit #1, Deposition
Of John Turner (Doc. #74-1) at 86.
(4) Defendant did not discipline Commander R.Q., who is white, for sending out emails
during work hours inquiring for officers looking for off-duty work. Id. at 345.
(5) Defendant did not investigate a white commander whom defendant accused of not
working his full hours and counting his commute as work hours.
(6) Officers J.C., N.K., J.W. and D.D, who are white, admitted that they went home early
and were paid for entire shifts. Defendant did not discipline them for falsely recording
their work hours and did not place them on the veracity list.
(7) Defendant suspended Officer Kopp, who is white, for placing two cadets in danger but
did not remove him from the Crime Scene Investigation Unit. On another occasion,
defendant gave Officer Kopp 15 discipline points for making inappropriate comments
at an elementary school.

-20-

(8) Defendant did not place Sgt. D.S., who is white, on the veracity list or remove him
from his position when he failed to include in a report that he had used force during an
arrest.
(9) For some undisclosed violation, defendant disciplined Sgt. G.D., who is white, for an
off-duty incident. After the discipline, Sgt. G.D. returned to the same position on the
dayshift in East Patrol.
(10)

Many officers did not turn in off-duty employment forms and defendant did not

discipline them. Defendant only disciplined plaintiff for this violation.
(11)

Chief Zeigler demoted Deputy Chief Smith for having an extra-marital sexual

relationship on defendant’s property, but Chief Zeigler did not suspend him or initiate
an IA investigation. The record reflects that Deputy Chief Smith disclosed the affair
to Chief Zeigler and, as a result, Chief Zeigler found that he had violated General Order
1.10 (Code of Ethics) and Rule 2.27 and demoted Deputy Chief Smith to the rank of
captain. See Letter Of Discipline Dated February 14, 2017 (Doc. #74-2) at 92.7
(12)

Officers J.C., N.K., J.W. and D.D. and Sgts. P.T. and J.S., who are white, made

false entries on their timesheets but defendant did not add them to the veracity list.
(13)

For some undisclosed violation, defendant disciplined Captain R.B., who is white,

but did not remove him from his position.

Plaintiff also asserts that “it is [his] understanding” that Deputy Chief Smith had
not been truthful in an IA investigation regarding his time as a captain in the animal control unit.
Exhibit #2, Affidavit Of John Turner (Doc. #74-2) at 7. To support this claim, plaintiff cites his
own affidavit.
7

-21-

(14)

Captain A.K., who is white, took unlawful possession of property that belonged to

the CSI unit. Defendant did not remove him from his position and instead allowed
him to quietly retire.
(15)

For an investigation into some undisclosed violation, defendant demoted Sgt. J.D.,

who is black, gave him 30 days off, placed him on the veracity list and prohibited him
from off-duty employment. After a grievance, defendant removed the 30 days off of
work.
(16)

In 2015, defendant accused Captain Victor Webb, who is black, of sexual

harassment. Pending the investigation, Chief Zeigler placed him on administrative
leave for three months, confined him to his home during work hours and prohibited
him from obtaining off-duty employment. Chief Zeigler found no evidence of sexual
harassment but nevertheless suspended Captain Webb for 40 days and transferred him
to the night shift. On October 17, 2016, Chief Zeigler initiated another investigation
into Captain Webb for a hostile work environment complaint and eventually demoted
him to the lowest possible rank.
(17)

In early 2017, defendant initiated an IA investigation into some undisclosed

violation by Major Young, who is black, for an off-duty incident.

After the

investigation, Chief Zeigler terminated Major Young’s employment but later allowed
him to resign.
See Statement Of Facts #533-609, Plaintiff’s Memorandum In Opposition To Defendant’s Motion
For Summary Judgment (“Plaintiff’s Response”) (Doc. #73) filed November 26, 2019 at 103-14.
XVIII.

Plaintiff’s EEOC Charge (May 22, 2017)
On May 22, 2017, plaintiff filed a charge with the Equal Employment Opportunity
-22-

Commission (“EEOC”) which alleged that defendant has subjected him to discrimination,
retaliation and harassment because of racial animus. Among other things, he noted the DPD
investigation, the off-duty employment form suspension, the veracity list, disparate treatment of
black officers, his performance evaluations and the report desk incidents.
XIX.

Current Lawsuit (April 25, 2018)
On April 25, 2018, plaintiff filed his complaint for employment discrimination, harassment
and retaliation based on race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000(e) et seq. Pretrial Order (Doc. #55). On October 21, 2019, defendant filed this motion
for summary judgment on all claims. Defendant’s Motion For Summary Judgment (Doc. #66).
Legal Standard
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); Hill v. Allstate Ins. Co., 479 F.3d 735,
740 (10th Cir. 2007). 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 any genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Nahno-Lopez v. Houser, 625
F.3d 1279, 1283 (10th Cir. 2010). Once the moving party meets this burden, the burden shifts to
the nonmoving party to demonstrate that genuine issues remain for trial as to those dispositive
matters for which the nonmoving party carries the burden of proof. Applied Genetics Int’l, Inc.
v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus.
-23-

Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). To carry this burden, the nonmoving
party may not rest on the pleadings but must instead set forth specific facts supported by competent
evidence. Nahno-Lopez, 625 F.3d at 1283.
The Court views the record in the light most favorable to the nonmoving party. See
Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). It may
grant summary judgment if the nonmoving party’s evidence is merely colorable or is not
significantly probative. See Liberty Lobby, 477 U.S. at 250-51. In response to a motion for
summary judgment, a party cannot rely on ignorance of facts, speculation or suspicion, and may
not escape summary judgment in the mere hope that something will turn up at trial. Conaway v.
Smith, 853 F.2d 789, 794 (10th Cir. 1988); Olympic Club v. Those Interested Underwriters at
Lloyd’s London, 991 F.2d 497, 503 (9th Cir. 1993). The heart of 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.” Liberty Lobby, 477 U.S. at 251-52.
Analysis
Under Title VII, plaintiff asserts three race-based claims: (1) disparate treatment; (2) hostile
work environment; and (3) retaliation.8 Defendant asserts that it is entitled to summary judgment
because (1) plaintiff failed to exhaust administrative remedies for several claims, (2) plaintiff

Count I asserts “race discrimination and harassment in terms and conditions in
employment.” Pretrial Order (Doc. #55) at 21. The Court construes it as asserting separate
claims for disparate treatment and hostile work environment.
8

-24-

cannot establish a prima facie case for any claim and (3) defendant acted for legitimate, nondiscriminatory reasons.
I.

Timeliness
Defendant asserts that to the extent plaintiff’s claims are based on events that occurred

more than 300 days before May 22, 2017, the date plaintiff filed his EEOC charge, they are timebarred.
A.

Disparate Treatment Race Discrimination And Retaliatory Adverse
Employment Action Under Title VII

Under Title VII, plaintiff must base his claims for disparate treatment and retaliatory
adverse employment action on discrete acts. National R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 113 (2002); Payan v. United Parcel Service, 905 F.3d 1162, 1168 (10th Cir. 2018). If
plaintiff fails to timely file an EEOC charge regarding each discrete employment incident or
adverse action, defendant may raise an affirmative defense of failure to exhaust. Lincoln v. BNSF
Ry. Co., 900 F.3d 1166, 1185 (10th Cir. 2018). To exhaust, plaintiff generally must present his
claims to the EEOC or authorized state agency (here, the Kansas Human Rights Commission
(“KHRC”)) and receive a right-to-sue letter based on that charge. Id. at 1181. 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). 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 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

-25-

timeliness requirement is like a statute of limitations, i.e. subject to waiver, estoppel and equitable
tolling. Zipes v. Trans World Airlines, 455 U.S. 385, 393 (1982).
Here, plaintiff filed his EEOC charge on May 22, 2017. As a matter of law, any claim of
disparate treatment race discrimination or retaliatory adverse employment action that is based on
an event which occurred prior to July 26, 2016 (i.e., 300 days before plaintiff filed his charge) is
therefore time-barred. See Morgan, 536 U.S. at 113 (“Each discrete discriminatory act starts a
new clock for filing charges alleging that act.”). Indeed, plaintiff concedes that he did not exhaust
administrative remedies for discrete acts that occurred before July 26, 2016. Accordingly, for
plaintiff’s disparate treatment and retaliation claims, only events which occurred after July 26,
2016 are actionable. As a result, the following events are not independently actionable:
1. Defendant’s investigation into allegations that plaintiff was double-dipping
(December of 2015 through March of 2016);
2. Chief Zeigler’s decision to place plaintiff on administrative leave (March 12,
2016);9 and
3. Defendant’s failure to complete performance evaluations for plaintiff (December
of 2015 and June of 2016).
Plaintiff may only use these prior events as background evidence in support of timely claims. Id.

9

Defendant seeks summary judgment on the claims that it unlawfully discriminated
against plaintiff by investigating the allegations of double-dipping and placing plaintiff on
administrative leave on March 12, 2016. Plaintiff does not seek to hold defendant liable for the
discrete act of placing him on paid administrative leave on March 12, 2016 and does not claim that
the investigation was adverse action. In addition, plaintiff concedes that claims based on events
that occurred prior to July 26, 2016 are untimely. See Plaintiff’s Response (Doc. #73) at 118-19.
Plaintiff asserts that these events are evidence of a pattern of harassment, not discrete acts of
discrimination. Accordingly, defendant’s summary judgment motion on these claims is moot.
-26-

B.

Hostile Work Environment Under Title VII

As with claims for disparate treatment and retaliation, in Kansas, plaintiff must file a hostile
work environment claim under Title VII within 300 days of the unlawful employment practice.
But unlike disparate treatment and retaliation, a hostile work environment claim is composed of a
series of separate acts that collectively constitute one “unlawful employment practice.” 42 U.S.C.
§ 2000e-5(e)(1). To determine liability, if an act that contributes to the claim occurs within the
filing period, the Court may consider the entire time period of the hostile environment. Morgan,
536 U.S. at 117.
Here, plaintiff alleges that defendant began harassing him because of race in December of
2015, with the IA investigation into double-dipping, and that a pattern of harassment continued
through at least April of 2017. Plaintiff’s Response (Doc. #73) at 119. Because plaintiff’s
hostile work environment claim includes several events that occurred within the filing period (i.e.,
after July 26, 2016), the Court may consider events that contribute to the hostile work environment
even if they fall outside the 300-day period.
II.

Merits
A.

Disparate Treatment Race Discrimination Under Title VII

Count I asserts that defendant discriminated against plaintiff because of race in violation
of Title VII. Pretrial Order (Doc. #55) at 21. Defendant asserts that plaintiff cannot establish a
prima facie case of disparate treatment or show pretext for the following discrete acts:
(1) suspending plaintiff for 30 days, removing him from the DPD and not reinstating him;
(2) disciplining plaintiff for failing to submit an off-duty employment form; (3) including plaintiff

-27-

in the early warning system;10 (4) including plaintiff on the veracity list; and (5) addressing report
desk complaints against him.11 As noted, for plaintiff’s disparate treatment claims, the Court does
not consider discrete acts that occurred before July 26, 2016.
The burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), applies to plaintiff’s disparate treatment claims. Plaintiff bears the initial burden to
establish a prima facie case.

To establish a prima facie case of discrimination, he must

demonstrate that (1) he belongs to a protected class, which the parties do not dispute; (2) he
suffered adverse employment action; and (3) the challenged action took place under circumstances
which give rise to an inference of discrimination. Bird v. Regents of New Mexico State Univ.,
619 F. App’x 733, 741 (10th Cir. 2015); Hysten v. Burlington N. & Santa Fe Ry. Co., 296 F.3d
1177, 1181 (10th Cir. 2002). If plaintiff sets forth a prima facie case, the burden then shifts to
defendant to provide a legitimate, nondiscriminatory reason for the action. McDonnell Douglas,
411 U.S. at 802. If defendant successfully does so, the burden shifts back to plaintiff to show that
defendant’s stated reason is a pretext for discriminatory intent. Id. at 804.

10

Plaintiff does not claim that the early warning system was a discrete act of
discrimination. Rather, he asserts that the early warning system notification was evidence of a
hostile work environment. Plaintiff’s Response (Doc. #73) at 120. Accordingly, defendant’s
motion for summary judgment on this issue is moot.
Defendant seeks summary judgment on plaintiff’s claim that the discipline that he
received while working at the report desk was discrimination based on race. Memorandum In
Support Of Summary Judgment (Doc. #67) at 62. In response, plaintiff appears to abandon any
such claim. Specifically, he states, “While Plaintiff was subjected to some discrete discriminatory
conduct after he began work on the Report Desk, he testified consistently that he was working in
a racially hostile work environment.” See Plaintiff’s Response (Doc. #73) at 128. Plaintiff
addresses defendant’s report desk arguments only in the context of his hostile work environment
claim. Accordingly, defendant’s motion for summary judgment on this claim is moot.
11

-28-

1. Suspending Plaintiff For 30 Days, Removing Him From DPD and Not
Reinstating Him
On August 4, 2016, in conjunction with Deputy Chief Garner’s conclusions regarding the
allegations of double-dipping, Chief Zeigler suspended plaintiff without pay for 30 days, removed
him from the DPD and prohibited him from re-bidding into the DPD for 25 months for violations
of Rule 3.16 (false reports) and Rule 3.23 (dishonesty). In April of 2017, the grievance board
held a hearing on plaintiff’s suspension and removal. It reduced plaintiff’s suspension to three
days and overturned the determination that he had violated Rule 3.23 but upheld the determination
that he had violated Rule 3.16. Plaintiff did not ask for reinstatement, and Chief Zeigler did not
reinstate him. Plaintiff asserts that this discipline and the failure to reinstate him constituted race
discrimination. Defendant’s motion for summary judgment assumes that plaintiff has set forth a
prima facie case of disparate treatment but asserts that Chief Zeigler had legitimate and
nondiscriminatory reasons for the discipline in that plaintiff had violated Rules 3.16 and 3.23, and
failure to reinstate him in that the grievance board determined that plaintiff had violated Rule 3.16.
Defendant also asserts that Chief Zeigler concluded that plaintiff could not remain in the DPD
because it was a politically sensitive unit that had close contact with elected officials and plaintiff
committed the Rule 3.16 violation in performance of his DPD duties. Finally, defendant states
that in 2015, Chief Zeigler suspended two white officers for falsifying police reports in violation
of Rule 3.16.
Because defendant has stated legitimate and nondiscriminatory reasons for its actions,
plaintiff must show that defendant’s stated reasons are pretext for race discrimination.
McDonnell Douglas, 411 U.S. at 804. At this final step of the McDonnell Douglas framework,
“the presumption of discrimination created by” plaintiff’s “prima facie case ‘simply drops out of

-29-

the picture.’” Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1167 (10th Cir. 2007)
(quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510 (1993)). At this stage, plaintiff carries
the full burden of persuasion to show that defendant discriminated against him on the illegal basis
of race. Id. (citing Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1125 (10th Cir. 2005)).
Plaintiff

shows

“pretext

by

demonstrating

such

weaknesses,

implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for
its action that a reasonable factfinder could rationally find them unworthy of credence and hence
infer that the employer did not act for the asserted nondiscriminatory reasons.” Id. (quotation
omitted). A common method by which plaintiff may show pretext – and the method on which
plaintiff relies in this case – is arguing disparate treatment. Id.
Under this approach, plaintiff establishes pretext by demonstrating that defendant treated
him differently from comparable employees. Id. at 1167-68. To be a valid comparator, other
employees must be similarly situated to plaintiff in all material respects and have violated work
rules of comparable seriousness. Id. at 1167; Lucero v. Sandia Corp., 495 F. App’x 903, 909
(10th Cir. 2012); Macon v. UPS, 743 F.3d 708, 717 (10th Cir. 2014). In addition, a comparator
must have: (1) “deal[t] with the same supervisor,” and (2) been “subject to the same standards
governing performance evaluation and discipline.” Aramburu v. Boeing Co., 112 F.3d 1398,
1404 (10th Cir. 1997). The Court also compares the relevant employment circumstances that are
applicable to plaintiff, such as work history and company policies, and the intended comparable
employees. Id. Whether employees are similarly situated is a fact-intensive inquiry, and what
facts are material varies depending on the case. Lucero, 495 F. App’x at 909.
Disparate treatment does not create an inference of discrimination if defendant’s
differential treatment of similarly-situated employees is trivial or accidental or explained by a
-30-

nondiscriminatory motive. Swackhammer, 493 F.3d at 1168 (citing Kendrick v. Penske Transp.
Servs., Inc., 220 F.3d 1220, 1232 (10th Cir. 2000)); EEOC v. Flasher Co., 986 F.2d 1312, 1321
(10th Cir. 1992) (inference of illegal discrimination not legally compelled by irrational or
accidental disparate treatment between minority and non-minority employees). “[T]he existence
of differential treatment[ ] defeats summary judgment only if it could reasonably lead the trier of
fact to infer a discriminatory motive; where the evidence of pretext supports only
nondiscriminatory motives, such an inference is logically precluded and summary judgment for
the employer is appropriate.” Swackhammer, 493 F.3d at 1168.
In this respect, plaintiff offers two arguments to show pretext. First, he asserts that
defendant’s failure to investigate double-dipping by white DPD officers demonstrates pretext.
Second, plaintiff generally asserts that defendant has treated white officers more favorably and
reinstated those officers even after it disciplined them.
During the relevant period, Officer Blake was the only white officer in the DPD.
Detective Waldeck testified that she only investigated plaintiff and Officer Williams because the
commissioner had only accused them (and not others) of double-dipping. Kendrick, 220 F.3d at
1232 (differences in treatment explained by nondiscriminatory motive will not sustain claim of
pretext). The record contains no evidence that Officer Blake was double-dipping or that he had
been accused of double-dipping. Furthermore, as a secondary DPD officer, Officer Blake only
worked in the DPD once a month and was not similarly situated to plaintiff.
As to his second argument, plaintiff asserts generally that “[b]lack officers have been
treated differently than white officers accused of ‘double dipping.’” Plaintiff’s Response (Doc.
#73) at 122. Plaintiff states that “[w]hite officers subjected to internal affairs investigations for
sustained complaints of major violations of the Rules and Regulations have been reinstated to their
-31-

positions, even after receiving discipline.” Plaintiff’s Response (Doc. #73) at 125. Specifically,
plaintiff asserts that Detective Waldeck and Chief Zeigler have engaged in similar misconduct yet
received more favorable treatment. He then refers generally to “white officers” and “black
officers,” and cites his fact section. See Plaintiff’s Response (Doc. #73) at 122 (citing Statement
Of Fact #533-609). Plaintiff’s bare assertion that defendant treats white officers more favorably
than it treated him does not create a genuine issue of material fact whether Chief Zeigler’s reasons
for suspending him for 30 days, removing him from the DPD and not reinstating him are pretext
for race discrimination. Furthermore, plaintiff has not met his burden to show that generic
unidentified “white officers” were similarly situated to him in all material respects. See Lucero,
495 F. App’x at 909. Specifically, as to such officers, plaintiff fails to show that potential
comparators engaged in misconduct of comparable seriousness to his Rules 3.16 and 3.23
violations, and he fails to rule out nondiscriminatory explanations for any differential treatment.
See Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1121 (10th Cir. 2007) (to show pretext based
on differential treatment, plaintiff must rule out nondiscriminatory reasons).
Plaintiff’s arguments regarding Chief Zeigler and Detective Waldeck do not create a
genuine issue of material fact as to pretext. Chief Zeigler, as Chief of Police, is not a valid
comparator. A valid comparator must be subject to the same performance and disciplinary
standards as plaintiff. Aramburu, 112 F.3d at 1404. Furthermore, plaintiff has not shown that
Detective Waldeck violated work rules of comparable seriousness to dishonesty or making false
reports.12

12

Plaintiff asserts that on July 7, 2017, he notified Internal Affairs Captain Schumaker
that 19 months earlier, Detective Waldeck had sent an email for her off-duty employment during
work hours. Deputy Chief Garner determined that Detective Waldeck did not have a pattern of
misuse of government resources and did not discipline her for the email or initiate an IA
-32-

Other than Detective Waldeck and Chief Zeigler, plaintiff does not specifically argue that
identified white officers engaged in similar misconduct but received more favorable treatment.
The record contains evidence, however, that defendant accused Sgt. J.A., who is white, of double
dipping, but did not place him on administrative leave or remove him from his position. For
purposes of summary judgment, Sgt. J.A. is a valid comparator because he committed rules
violations of comparable seriousness to plaintiff’s violations. See Exhibit J, Letter Of Discipline
Dated April 9, 2019 (Doc. #74-2) at 96. Specifically, Sgt. J.A. admitted that he routinely left
work early to go to his off-duty job and received pay from defendant and his off-duty employer
for the same time. Defendant disciplined Sgt. J.A. for violations of Rule 3.23 (dishonesty), 1.10
(code of ethics), 2.24 (failure to supervise subordinates) and 20.07 (off-duty employment).
Although defendant imposed a 45-day suspension, placed him on the veracity list and issued a last
chance agreement, defendant did not remove Sgt. J.A. from the community policing unit, which
was a high-profile unit like the DPD. Sgt. J.A. was similarly situated to plaintiff, and defendant’s

investigation. Sending one email is not a rule violation of comparable seriousness to plaintiff’s
Rule 3.16 and 3.23 violations for submitting false reports and dishonesty, particularly in light of
Deputy Chief Garner’s testimony that he did not discipline Detective Waldeck because he thought
that her behavior was reasonable in light of department policy. Exhibit #12, Deposition Of
Deputy Chief Tyrone Garner (Doc. #74-11) at 9-12.
Plaintiff further asserts that defendant investigated him for conduct that was three years old
(i.e. the sexting incident) but did not investigate Detective Waldeck for the email which was only
19 months old. Even if this is true, it does not raise a genuine issue of material fact whether
defendant’s reasons for suspending plaintiff for 30 days, removing him from the DPD and not
reinstating him are pretextual. The timing of plaintiff’s discipline for the sexting incident bears
no relationship to the double-dipping investigation, and plaintiff has conceded that defendant did
not discipline him for the sexting incident because of his race.
In short, the record does not suggest that Detective Waldeck’s one inappropriate email was
a violation of comparable seriousness to plaintiff’s violations.
-33-

differential treatment of him creates a genuine issue of material fact whether defendant’s nondiscriminatory reason for removing plaintiff from the DPD was pretextual.13
Defendant is not entitled to summary judgment on this claim.
2. Disciplining Plaintiff For Failing To Submit An Off-Duty Employment Form
On September 28, 2016, Deputy Chief Garner, who is African-American, imposed a one-

13

Plaintiff asserts that 12 other white officers are valid comparators for purposes of
his disparate treatment claim. To prove that defendant treated him differently than similarly
situated white officers, plaintiff must identify white officers who are similarly situated in all
material respects, have dealt with the same supervisor, are subject to the same performance and
discipline standards and have violated work rules of comparable seriousness. As explained
below, except for Sgt. J.A., plaintiff has not done so.
Sgt. G.D. and Captain R.B.: These two officers are not valid comparators because plaintiff
fails to demonstrate that they violated work rules of comparable seriousness for on-duty incidents.
Detective J.G. and Commander R.Q.: These officers allegedly sent off-duty employment
emails during work hours. Sending such emails is not a violation of comparable seriousness to
plaintiff’s violations of Rule 3.16 and 3.23, so Detective J.G. and Commander R.Q. are not valid
comparators.
Officers J.C., N.K., J.W. and D.D.: These officers allegedly admitted that they went home
early but were still paid for entire shifts. Leaving early on one day is not an offense of comparable
seriousness to plaintiff’s Rule 3.16 and 3.23 violations. In addition, plaintiff does not offer
evidence that these officers were in a politically sensitive unit like the DPD.
Officer Kopp: Officer Kopp allegedly placed two cadets in danger and made inappropriate
comments at an elementary school. Plaintiff does not explain how Officer Kopp’s violations
equate to his violation of Rules 3.16 and 3.23. Officer Kopp is not a valid comparator.
Sgt. D.S.: Sgt. D.S. allegedly failed to report that he had used force during an arrest.
Plaintiff cites no evidence which suggests that he is a valid comparator.
Deputy Chief Smith: Deputy Chief Smith admitted to Chief Zeigler that he had an extramarital sexual relationship on defendant’s property. See Letter Of Discipline Dated February 14,
2017 (Doc. #74-2) at 92. Also, Deputy Chief Smith was allegedly untruthful in an IA
investigation regarding his time as a captain in the animal control unit. Plaintiff has not
demonstrated that Deputy Chief Smith was similarly situated to him in all material respects.
Captain A.K.: Captain A.K. allegedly took unlawful possession of property when he retired
from the CSI unit. Plaintiff’s information about Captain A.K. is hearsay and does not suggest that
he was similarly situated to plaintiff.
In summary, plaintiff has not shown that the foregoing white officers were similarly
situated to him in all material respects and violated work rules of comparable seriousness.
Moreover, none of them worked in politically sensitive units comparable to the DPD.
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day suspension on plaintiff for not submitting a mandatory off-duty employment form for 2016.
Plaintiff asserts that this one-day suspension constituted race discrimination. Assuming that
plaintiff has set forth a prima facie case, defendant asserts that as a matter of law, it had a legitimate
and nondiscriminatory reason for the suspension, i.e. that plaintiff had in fact failed to submit a
mandatory off-duty employment form and that a one-day suspension is the minimum discipline
for such a policy violation. Because defendant has asserted a legitimate nondiscriminatory
reason, plaintiff must show that the one-day suspension was pretext for race discrimination.
Defendant has never enforced the off-duty employment form rule against any officer other
than plaintiff, and plaintiff asserts that this shows pretext. That defendant had never enforced rule
until it enforced the rule against plaintiff creates a genuine issue of material fact as to pretext. See
Kendrick, 220 F.3d at 1230 (“A plaintiff who wishes to show that the company acted contrary to
an unwritten policy or to company practice often does so by providing evidence that he was treated
differently from other similarly-situated employees who violated work rules of comparable
seriousness.”) This evidence is sufficient to create a genuine issue of material fact as to the claim.
Defendant is not entitled to summary judgment on this claim.
3. Including Plaintiff On The Veracity List
Plaintiff asserts that defendant placed him on the veracity list because of his race.
Defendant asserts that it is entitled to summary judgment on this claim because (1) plaintiff did
not mention the veracity list in his EEOC charge and therefore failed to exhaust administrative
remedies, (2) defendant placed him on the veracity list in 2016 for legitimate and
nondiscriminatory reasons and (3) as to plaintiff’s inclusion on the list in 2017 and 2018, defendant
did not take adverse action against him.
As an initial matter, defendant’s assertion that plaintiff did not mention his inclusion on
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the veracity list in his EEOC charge is misplaced. Plaintiff mentioned the veracity list two times.
Accordingly, defendant’s claim that plaintiff failed to exhaust administrative remedies on this
ground is baseless.
a.

Veracity List For 2016 (October of 2016)

Defendant asserts that Chief Zeigler included plaintiff on the veracity list in 2016 because
he had disciplined plaintiff for violating Rule 3.16 (making false reports) and Rule 3.23
(dishonesty). If true, this is a legitimate nondiscriminatory reason, and plaintiff must show that it
is pretextual.
As evidence of pretext, plaintiff asserts that defendant has not placed white officers on the
veracity list who have committed comparable violations. As noted above, Sgt. J.A. is plaintiff’s
only valid comparator. Plaintiff cannot show pretext based on differential treatment of Sgt. J.A.,
however, because defendant did place Sgt. J.A. on the veracity list. Accordingly, the record
reflects that defendant placed a similarly situated white officer who committed similar misconduct
on the veracity list. Plaintiff has not demonstrated a genuine issue of material fact whether Chief
Zeigler placed him on the veracity list in 2016 as pretext for race discrimination. Defendant is
entitled to summary judgment on this claim.
b.

Veracity List For 2017 and 2018

As to the veracity lists for 2017 and 2018, defendant asserts that Captain Schumaker made
a mistake when he listed plaintiff for the sexting and off-duty employment form incidents and
stated in plaintiff’s veracity list disclosure letter that plaintiff had violated Rule 3.23 instead of
Rule 3.16. Plaintiff does not dispute that Captain Schumaker made a mistake and does not offer
any evidence from which a reasonable jury could conclude that Captain Schumaker’s real motive
was racial animus. See Toney v. Cuomo, 92 F. Supp. 2d 1186, 1193 (D. Kan. 2000) (deviation
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from procedure, standing alone, not sufficient to find pretext); Williams v. Potter, 331 F. Supp. 2d
1331, 1345 (D. Kan. 2004), aff’d, 149 F. App’x 824 (10th Cir. 2005) (mistake is not evidence of
intentional discrimination). Defendant is entitled to summary judgment on this claim.
B.

Retaliation Under Title VII

In December of 2016, plaintiff complained internally about race discrimination and
harassment. On May 22, 2017, he filed a charge with the EEOC. On June 9, 2017, plaintiff
again complained internally about discrimination and harassment.

Plaintiff asserts that in

retaliation for his internal complaints and EEOC charge, defendant scrutinized his work more
closely, threatened him with disciplinary action, reviewed his work unfavorably, refused to
reinstate him to the DPD, placed him on the veracity list and unfairly disciplined him. Defendant
asserts that it is entitled to summary judgment on plaintiff’s claims that the following acts were
retaliatory: (1) failure to reinstate plaintiff to the DPD after the grievance board hearing in April
of 2017; (2) placing plaintiff on the veracity list; (3) interactions with Sgt. Davis and Deputy Chief
Garner at the report desk; (4) discipline imposed by Sgt. Davis in May of 2017; and (5) Captain
Owen’s directive on report desk duties in July of 2017 and the discipline imposed by Sgt. Graves
and Captain Sims in 2018. Defendant asserts that it is entitled to summary judgment because
(1) for most of his retaliation claims, plaintiff did not exhaust administrative remedies; (2) plaintiff
cannot establish a prima facie case; or (3) defendant acted for legitimate and non-retaliatory
reasons.
Under the burden-shifting framework of McDonnell Douglas, plaintiff must first establish
a prima facie case of retaliation. 411 U.S. at 802. If he does so, the burden shifts to defendant
to articulate a legitimate and nonretaliatory reason for its actions. Id. From there, the burden
returns to plaintiff to show that defendant’s reason is pretextual. Id. at 804. To establish a prima
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facie case of retaliation, plaintiff must show that (1) he 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 his protected activity and
the materially adverse action. Payan, 905 F.3d at 1172.
1. Failure To Reinstate Plaintiff To DPD After Grievance Board Hearing
Plaintiff asserts that defendant retaliated against him by not reinstating him to the DPD
unit. Defendant asserts that it is entitled to summary judgment on this claim because plaintiff
cannot show a causal connection between his internal complaint in December of 2016 and Chief
Zeigler’s decision to not reinstate plaintiff to the DPD after the grievance board hearing in April
of 2017. Defendant also asserts that Chief Zeigler had legitimate and non-discriminatory reasons
for removing plaintiff from the DPD.
To establish a sufficient causal connection, plaintiff must show that a desire to retaliate
against his protected activity motivated defendant to commit the challenged conduct. See Hinds
v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1202-03 (10th Cir. 2008). Protected conduct that is
very closely followed by adverse action may justify an inference of retaliatory motive. Marx v.
Schnuck Mkts., Inc., 76 F.3d 324, 329 (10th Cir. 1996). For example, the Tenth Circuit has held
that a six-week period between adverse action and protect activity is close enough in time to
establish causation, but that a three-month period is not. See Anderson v. Coors Brewing Co.,
181 F.3d 1171, 1179 (10th Cir. 1999).
As a matter of law, the four months between plaintiff’s internal complaint in December of
2016 and Chief Zeigler’s decision to not reinstate plaintiff to the DPD after the grievance board
hearing in April of 2017 is insufficient to establish causation. See Hinds v. Sprint/United Mgmt.
Co., No. 05-2362-KHV, 2006 WL 3715905, at *12 (D. Kan. Dec. 12, 2006), aff’d, 523 F.3d 1187
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(10th Cir. 2008) (“Standing alone, four months between the protected activity and adverse action
is insufficient to show causation.”). Accordingly, plaintiff must produce additional evidence to
show a causal connection. Id.
To do so, plaintiff argues that he has shown retaliatory motive based on the harsh treatment
of black officers compared to white officers. He does not specify, however, the harsh treatment
to which he refers and does not explain how it connects his protected activity with Chief Zeigler’s
decision not to reinstate him. Plaintiff then asserts, somewhat confusingly, that “[t]he Chief had
no intention of returning [plaintiff] to the DPD unit. His intent never changed after Plaintiff filed
his Charge of Discrimination making this retaliation claim.” Plaintiff’s Response (Doc. #73) at
139. Plaintiff’s bare assertions are not sufficient evidence from which a reasonable jury could
infer that after the grievance board hearing, Chief Zeigler decided not to reinstate plaintiff to the
DPD in retaliation for plaintiff’s complaint about discrimination. Plaintiff has not satisfied the
causation element of his prima facie retaliation case. He therefore fails to meet his initial burden
under McDonnell Douglas and defendant is entitled to summary judgment on this claim.
2. Placement On Veracity List
As noted, in October of 2016, Chief Zeigler placed plaintiff on the veracity list. Defendant
asserts that it is entitled to summary judgment on plaintiff’s claim that Chief Zeigler acted in
retaliation for his protected opposition to discrimination because (1) plaintiff did not include this
claim in his EEOC charge, (2) he cannot show causation and (3) defendant placed him on the
veracity list for legitimate and non-discriminatory reasons.
Defendant’s argument that plaintiff did not include this claim in his EEOC charge fails.
The scope of the administrative investigation that can reasonably be expected to follow plaintiff’s
EEOC charge limits his claim in court. Smith v. Cheyenne Retirement Investors L.P., 904 F.3d
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1159, 1164 (10th Cir. 2018). In his EEOC charge, plaintiff checked the box for a retaliation claim,
stated that defendant had listed him on the veracity list and asserted that he believed defendant’s
“disciplinary actions were directed at [him] out of racial animus or retaliation.” Plaintiff’s EEOC
Charge, Exhibit A to Complaint (Doc. #1) filed April 25, 2018. Whether defendant placed
plaintiff on the veracity list would fall within the scope of what plaintiff alleged in his EEOC
charge.
As to causation, defendant asserts that plaintiff cannot establish a causal connection
because he complained about discrimination in December of 2016, i.e. three months after
defendant placed him on the list in October of 2016. Plaintiff has not presented evidence that
defendant placed him on the veracity list in retaliation for his future protected conduct. Therefore,
plaintiff has not shown a genuine issue of material fact regarding the causation element of his
prima facie retaliation case. Defendant is entitled to summary judgment on this claim.
3. Sgt. Davis’s Directive And Deputy Chief Garner’s Inquiry
In February of 2017, Sgt. Davis issued a directive to plaintiff that he should not allow
visitors beyond the lobby without an escort. 14 Plaintiff asserts that her directive shows that
defendant was constantly evaluating him and criticizing his performance, and that this was
retaliatory.
In March of 2017, Deputy Chief Garner inquired as to plaintiff’s whereabouts. When
other officers informed him that plaintiff was on a restroom break, Deputy Chief Garner asked

Specifically, plaintiff states, “In February 2017, [plaintiff] was disciplined for
allegedly allowing a visitor to go to the detective bureau unescorted. While [he] did not receive
discipline for not escorting the employee, there was constant evaluation and criticism of how he
was doing his job which was retaliatory to him.” Statement of Fact #485-486, Plaintiff’s
Response (Doc. #73) at 96-97 (citations omitted).
14

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which restroom he was in. Plaintiff asserts that Deputy Chief Garner’s question was “retaliatory
harassment.” Statement of Fact #487, Plaintiff’s Response (Doc. #73) at 97.
Defendant asserts that it is entitled to summary judgment on plaintiff’s claims that Sgt.
Davis’s directive and Deputy Chief Garner’s inquiry was retaliatory discipline. Plaintiff does not
respond to defendant’s argument and therefore fails to establish a prima facie case that Sgt. Davis
and Deputy Chief Garner’s directive and inquiry was retaliation for protected conduct. Defendant
is entitled to summary judgment on this claim.
4. Discipline From Sgt. Davis
On May 19, 2017, plaintiff went to lunch while a citizen waited for him to do a report and
the citizen complained. When he returned from lunch, Sgt. Davis “yelled in a loud voice,”
“Officer Turner, come with me.” Statement of Fact #491, Plaintiff’s Response (Doc. #73) at 97.
Sgt. Davis escorted plaintiff to her office and informed him that in response to the complaint, she
might impose discipline. On May 22, 2017, plaintiff filed his EEOC charge. On May 25, 2017,
Sgt. Davis determined that plaintiff had violated Rule 2.14 by failing to provide prompt, courteous
service and imposed discipline of 15 points, which is the amount the Rules and Regulations
specify. Plaintiff asserts that this discipline was in retaliation for his EEOC charge. Defendant
asserts that it is entitled to summary judgment on plaintiff’s claim because he cannot show adverse
action or causation, and Sgt. Davis disciplined him for a legitimate and nonretaliatory reason.
Title VII’s anti-retaliation provision does not protect an individual from all retaliation, but
only from retaliation that produces an injury or harm, i.e. a materially adverse action. Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006). A materially adverse action is one
which may dissuade a reasonable employee from making a discrimination complaint.

See

Burlington N., 548 U.S. at 68; Semsroth v. City of Wichita, 548 F. Supp. 2d 1203, 1213 (D. Kan.
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2008), aff’d, 555 F.3d 1182 (10th Cir. 2009).
Here, imposition of points that add up to more severe discipline would dissuade a
reasonable employee from complaining about discrimination and therefore qualifies as adverse
action. Plaintiff has satisfied this element of a prima facie case.
As to causation, plaintiff asserts that the timing of Sgt. Davis’s disciplinary action against
plaintiff satisfies this element.

Plaintiff may demonstrate causation “by evidence of

circumstances that justify an inference of retaliatory motive, such as protected conduct closely
followed by adverse action.” Burrus v. United Tel. Co. of Kansas, 683 F.2d 339, 343 (10th Cir.
1982). Because plaintiff filed his EEOC charge on May 22, 2017 and Sgt. Davis issued the
discipline three days later, plaintiff satisfies a prima facie case and the burden shifts to defendant
to state a legitimate and nonretaliatory reason for the discipline.
Defendant asserts that Sgt. Davis imposed the discipline because she determined that
plaintiff went to lunch while a citizen was waiting, and the citizen had complained – a legitimate
and nonretaliatory reason for her action.
As to pretext, plaintiff has not presented any evidence that Sgt. Davis disciplined him in
retaliation for his protected opposition to discrimination. Plaintiff does not deny that he went to
lunch and left the citizen waiting, and testified that he does not believe that Sgt. Davis, who is biracial, harbors racial animus against him. No reasonable jury could conclude that Sgt. Davis
disciplined plaintiff in retaliation for his protected activity. Defendant is entitled to summary
judgment on this claim.
5. Report Desk Directive And Complaint By Fellow Officer
On July 13, 2017, Captain Owen gave plaintiff a directive regarding report desk duties.
Plaintiff was the only report desk officer, and the directive required him to use the restroom in the
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lobby. Plaintiff asserts that this directive was part of the “constant monitoring and harassment”
he was experiencing, and that the restroom requirement was retaliatory harassment. Statement of
Fact #515, Plaintiff’s Response (Doc. #73) at 101.
In March of 2018, a patrol officer complained that plaintiff had left her unattended with a
man who needed assistance. Sgt. Graves issued plaintiff a letter of discipline for the incident,
which Captain Sims later modified. Plaintiff asserts that as the report desk officer, responding to
people on the street is not his job, and that this discipline was retaliatory.
For both the directive in July of 2017 and the discipline in March of 2018, defendant asserts
that it is entitled to summary judgment because plaintiff failed to exhaust administrative remedies
and cannot establish a prima facie case, and defendant acted for legitimate and nonretaliatory
reasons.
Under Title VII, plaintiff must base his retaliation claim on discrete adverse actions.
Morgan, 536 U.S. at 113; Payan, 905 F.3d at 1168. If plaintiff fails to timely file an EEOC charge
regarding each discrete employment incident or adverse action, defendant may raise an affirmative
defense of failure to exhaust. Lincoln, 900 F.3d at 1185. Plaintiff did not exhaust administrative
remedies for his retaliation claims based on Captain Owen’s report desk directive and the
discipline from Sgt. Graves and Captain Sims. On May 22, 2017, plaintiff asserted a claim with
the EEOC for retaliatory acts that occurred prior to that date. As noted above, plaintiff cannot
sue on claims for which he did not seek an administrative remedy when those incidents occurred
more than 300 days prior to the filing of his EEOC charge. See Potter, 347 F.3d at 1210. The
Tenth Circuit has held that this rule is applies equally to retaliation claims based on discrete
incidents which occurred after plaintiff filed his EEOC charge. Id. at 1211. That is, plaintiff
must file new charges for any related discrete acts that occurred after he filed his EEOC charge.
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Id. Because plaintiff did not file an EEOC charge after May 22, 2017, he failed to exhaust
administrative remedies for discrete adverse actions that occurred after that date. Defendant is
entitled to summary judgment on these claims.
C.

Hostile Work Environment Under Title VII

Plaint asserts that defendant subjected him to a racially hostile work environment.
Defendant asserts that it is entitled to summary judgment on this claim because plaintiff has not
offered any evidence to support this claim.
To establish a prima facie case of hostile work environment harassment, plaintiff must
demonstrate that based on the totality of the circumstances, (1) the harassment was pervasive or
severe enough to alter the terms, conditions or privilege of employment, and (2) the harassment
was racial or stemmed from racial animus. Witt v. Roadway Express, 136 F.3d 1424, 1432 (10th
Cir. 1998) (quoting Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994)). A showing of
pervasiveness requires “more than a few isolated incidents of racial enmity.” Bolden, 43 F.3d at
551 (citations and internal quotations omitted).

Plaintiff must show a “steady barrage of

opprobrious racial comments” and produce evidence that the workplace was permeated with
discriminatory intimidation, ridicule and insult sufficiently severe or pervasive as to alter the
conditions of his employment and create an abusive working environment. Bolden, 43 F.3d at
551 (citation omitted); Bloomer v. United Parcel Service, Inc., 94 F. App’x 820, 825 (10th Cir.
2004) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)).
Plaintiff asserts that defendant subjected him to a “daily barrage of unfair treatment by
supervisors and co-workers.” Plaintiff’s Response (Doc. #73) at 131. He asserts that the entire
workforce knew he was out of favor with Chief Zeigler and treated him poorly because of it. Id.
Specifically, as evidence of a racially hostile work environment, he asserts as follows: (1) officers
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and the command staff subjected him to increased scrutiny; (2) his sergeant told him that he had
to escort everyone out of the lobby or find someone else to escort them; (3) on one occasion,
Deputy Chief Garner asked over the radio which bathroom plaintiff was using; (4) the command
staff distributed a memorandum that required plaintiff to use a specific restroom near the lobby;
(5) supervisors disciplined him for failure to provide prompt service; (6) Sgt. Davis publicly asked
him to talk to her in private; (7) a supervisor told him not to talk to detectives; (8) supervisors
disciplined him for failing to assist an officer at the scene of an incident; (9) defendant did not
investigate his complaints; and (10) other black officers experienced pervasive harassment. See
id. at 131-32.
Plaintiff fails to establish a prima facie case of hostile work environment. He does not
present evidence of a “steady barrage of opprobrious racial comments” or explain how any of
actions listed above “stemmed from racial animus.” Bolden, 43 F.3d at 551 (citation omitted).
Simply showing that defendant disciplined him on various occasions and gave him workplace
directives is insufficient.

Id. (general torment and taunting not actionable if not racially

discriminatory). In addition, plaintiff’s hostile work environment claim fails because he bases it
on isolated events without connection in time, character or person. See Bloomer, 94 F. App’x at
824.

Absent additional evidence, he cannot simply string together the discrete events that

comprise his retaliation and discrimination claims to create a hostile work environment claim.
See id. at 825. No reasonable jury could conclude that plaintiff’s workplace was an abusive
working environment that was permeated with discriminatory intimidation, ridicule and insult
sufficiently severe or pervasive as to alter the conditions of his employment. Defendant is entitled
to summary judgment on plaintiff’s hostile work environment claim.

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Conclusion
Plaintiff has established a genuine issue of material fact as to the following claims
(1) whether defendant did not reinstate him to the DPD because of race; and (2) whether defendant
suspended him for failing to submit an updated off-duty employment because of race.
IT IS THERFORE ORDERED that Defendant’s Motion For Summary Judgment (Doc.
#66) filed October 21, 2019 is SUSTAINED in part.
Dated this 2nd day of March, 2020 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge

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