Petty v. Topeka, City of et al

Filing 161

MEMORANDUM AND ORDER: 145 Motion for Summary Judgment is granted and 157 Motion to Amend/Correct and 129 Motion in Limine are moot. Signed by U.S. District Senior Judge Richard D. Rogers on 10/25/2013. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KATHRYN MARIE PETTY,

)
)
)
)
)
)
)
)
)
_

Plaintiff,
v.
CITY OF TOPEKA,
Defendant.

Case No. 12-4080-RDR

MEMORANDUM AND ORDER
In this action plaintiff alleges that she lost a job with
the City of Topeka and was not rehired to other positions in
violation of:

Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq.; the Kansas Act Against Discrimination
(“KAAD”),

K.S.A.

44-1001

et

seq.;

and

42

U.S.C.

Plaintiff alleges that defendant City of Topeka:

§

1983.

discriminated

against her on the basis of sex; retaliated against her for
engaging in protected opposition to alleged discrimination; made
hiring decisions which had an illegal disparate impact against
women; and denied plaintiff placement on a reemployment list in
violation of her due process rights.

This case is now before

the court upon defendant’s motion for summary judgment.

The

court finds that the motion should be granted largely because
plaintiff’s job was permanently eliminated for budgetary reasons
and plaintiff was not eligible for other employment in which she
expressed interest or for placement on a reemployment list.

I.

SUMMARY JUDGMENT STANDARDS
Summary judgment is warranted if the materials on record

show that there is “no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law.”
the

FED.CIV.P. 56(a).

light

most

The court views “all of the facts in

favorable

to

the

non-movant

and

reasonable

inferences from the record must be drawn in favor of the nonmoving party.”
2007).

Piercy v. Maketa, 480 F.3d 1192, 1197 (10th Cir.

From this viewpoint, the court attempts to determine

whether a reasonable jury could return a verdict in favor of the
non-moving party.

Bones v. Honeywell Int’l, Inc., 366 F.3d 869,

875 (10th Cir. 2004).

“While we view the record in the light

most favorable to the non-moving party, that party must still
identify sufficient evidence requiring submission to the jury to
survive summary judgment.”

Piercy, 480 F.3d at 1197.

In other

words, the court may consider evidence produced by the moving
party as well as the absence of admissible evidence in favor of
an essential element of the non-moving party’s claim.

Adams v.

Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000).
“If the evidence [in support of a claim] is merely colorable, or
is

not

significantly

granted.”

probative,

summary

judgment

may

be

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-

250 (1986)(interior citations omitted).

“[P]urely conclusory

allegations

devoid

of

discrimination”

which
2

are

of

“concrete

particulars”

are

not

sufficient

to

avoid

summary

judgment.

Pucino v. Verizon Wireless Communications, Inc., 618 F.3d 112,
119 (2d Cir. 2010)(interior quotations omitted); see also, Adler
v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998)(nonmoving

party

must

set

forth

specific

facts

admissible

in

evidence from which a rational jury could find for non-movant).
“Unsubstantiated allegations carry no probative weight . . .
evidence, including testimony, must be based on more than mere
speculation, conjecture, or surmise.”
II.

Bones, 366 F.3d at 875.

UNCONTROVERTED FACTS
Plaintiff began employment with the City of Topeka in the

Topeka Fire Department in 1985.

During the course of her career

with the Fire Department she progressed through fire fighter,
fire inspector and training officer positions.
she

became

position.

Chief

of

Administration.

This

In January 2004,
was

a

management

In September 2004, she became Deputy Chief of Support

Services (DCSS).

At that time, the Department also had a Deputy

Chief of Operations.
In

2009,

position.

plaintiff

made

application

for

the

Fire

Chief

In August 2009, plaintiff was informed that she was

not selected for that post and that she was being moved to
“performance management” where she would be supervised by Dennis
Taylor,

who

testified

in

worked
his

outside

deposition

of

the

that
3

Fire

his

Department.

title

at

the

Taylor
time

was

Performance
Relations.

Management

Coordinator

Doc. No. 147-7, p. 6.

strategic

planning

continued

to

be

as

a

paid

significant part of

and

the

Analyst.”

Fire

plaintiff’s

of

Labor

Plaintiff was to assist with

“Management

from

Director

However,

she

budget.

A

Department

job was to work on standard

operating guidelines for the Fire Department.

In addition, she

was to work on workforce development training.
concerned about losing her job.

Plaintiff was

When she questioned Taylor

about this around November 2009, he told her that she need not
be worried and he showed her the budget book which contained her
position.

At this time, most of the nation was suffering the

effects of what has been called the Great Recession.
On November 3, 2009, the City Manager of Topeka, Norton
Bonaparte,

sent

city

employees

an

email

informing

them

that

sales tax revenues were $1 million less than budgeted and that
cuts

would

have

to

be

expectations for 2010.

made

in

the

2009

budget

and

budget

On January 29, 2010, Bonaparte sent

another email to all city employees stating that to meet the
constraints of the 2010 budget some currently filled positions
may

be

eliminated

positions.

in

addition

to

some

currently

vacant

At that point in time, the city was spending more

than its revenues.
Bonaparte, Taylor, Jacque Russell (the City Human Resources
Director)

and

the

finance

director
4

worked

together

on

recommendations

for

reductions

in

force.

Taylor

wrote

a

memorandum for Bonaparte which stated that the 2011 budget would
have to provide for $5,100,000 in lower labor costs than 2009
and

“will

require

the

elimination

of

required by the 2010 Adopted Budget.”

more

positions

than

Taylor consulted with

Bonaparte regarding possible reductions in force in the Fire
Department.

Taylor recommended the elimination of plaintiff’s

DCSS position to help meet cost savings goals while terminating
as few positions as possible. Bonaparte decided to eliminate
plaintiff’s position as DCSS.

Five other filled positions, four

of which were management positions (like plaintiff’s) were also
eliminated.

Male

Doc. No. 148-9.
of

each

could

be

position

and

female

employees

occupied

these

jobs.

Taylor stated that the value or “criticality”
was

eliminated

considered
with

as

to

little

determine
impact

what

to

the

positions
City

as

possible.
On February 11, 2010, plaintiff met with Jacque Russell and
Taylor and was informed that her job had been eliminated and her
employment was being terminated.

Plaintiff has testified in a

deposition that during this meeting that the term “laid off” was
used by someone to describe the job action.
p. 125 of the deposition.

Doc. No. 147-8 at

She also testified that the terms

“eliminated”, “terminated” and “fired” were used.

5

Id. at p. 105

of

the

deposition.

It

is

undisputed

that

at

the

meeting,

plaintiff was given a letter signed by Russell which stated:
Due to the continued economic downturn and the salary
reductions in the 2010 adopted budget, I regret to
inform you that the City of Topeka has to make the
difficult decision of permanently eliminating certain
positions.
This is official notice that due to a
permanent reduction in force your position as Deputy
Fire Chief is being eliminated effective February 11,
2010.
Doc. No. 147-38.

The letter then made reference to the City

Personnel Code Article VIII, Section 2 and its provisions for
severance pay.

Id.

The termination form plaintiff later received from the City
listed the “reason/code for separation” as “Layoff/Budget.”

The

City Personnel Code states with regard to “Short Term Reduction
in Force:

Lay Offs” in Article VIII, Section 1:

A lay off is a temporary reduction in the work force
due to a shortage of funds, lack of work, abolishment
of a position or other material change in duties or
organization.
It differs from other forms of
separation
in
that
there
is
an
anticipated
reinstatement
of
the
employee
as
soon
as
the
conditions
which
necessitated
the
lay
off
are
ameliorated.
The City Personnel Code also provides in Article VIII, Section
1, that employees laid off shall be placed on a reemployment
eligibility list and given first consideration when a vacancy
occurs in the same or similar position the employee last held.
But, under Article VIII, Section 2, employees who are eligible
for

recall

are

not

eligible

for
6

severance

pay.

Plaintiff

received

substantial

severance

pay

(approximately

$80,000)

shortly after her job was eliminated.
Bonaparte described the job reductions in a letter to the
Mayor and City Council in July 2010 as follows:
During 2010, it became imperative that we resize the
organization to fit the “new normal” of the current
economic situation.
We have done so, as indicated
above, through short-term tactical changes in the way
we do business, cutting management positions by more
than 14%, and reducing the overall workforce by more
than 11% through a combination of position elimination
and holding positions open for the next 18 months.
Plaintiff’s job duties as DCSS were divided up and given to
other

employees.

Some

narrative

statements

in

city

documents continued to refer to the DCSS position.
DCSS

position

was

shown

on

a

list

of

budget

But, the

abolished

positions

published by the City and later personnel schedules did not list
the DCSS position.
After losing her job as DCSS in February 2010, plaintiff
sent

a

letter

interest in

to

Jacque

Russell

a Deputy Fire Chief

posted in January 2011.

in

October

position

2010

expressing

which was formally

She also included her resume.

She did

not fill out a formal employment application, but she asked to
be

notified

Specifically,

if

there

was

plaintiff’s

anything
letter

else

stated:

she

needed

“Please

to

keep

do.
this

request on file and notify me of any currently open or upcoming
open management positions within the Topeka Fire Department.”

7

The City did not make any response to this letter or notify
plaintiff of open positions.
The posting for the Deputy Fire Chief position stated that
it was open to Fire Department employees only.
not a Fire Department employee.
the

position

officer-level

included

eight

experience

Shift Commander.

as

Plaintiff was

The minimum qualifications for
years

of

Captain,

chief

officer/company

Battalion

Chief

and/or

Plaintiff never held the position of Captain,

Battalion Chief or Shift Commander.

Plaintiff was not hired for

the spot.
Applications for an open position as Training Officer were
accepted until June 24, 2011.
2011,

plaintiff

wrote

a

After the deadline, on July 20,

letter

position and included her resume.
employment application.
Department
employee

employees.

at

that

expressing

interest

in

the

She did not submit a formal

The position was open only to Fire
Plaintiff

time.

was

Plaintiff

not
was

a

Fire

not

Department

hired

for

the

position.
The Deputy Fire Chief position again fell open in November
2011.
Fire
years

The posting for the position stated that it was open to
Department
of

chief

employees

only.

officer/company

The

position

officer-level

Captain, Battalion Chief and/or Shift Commander.

required
experience

five
as

On November

28, 2011, plaintiff sent a letter stating that she was applying
8

for

the

position,

but

she

did

not

submit

an

electronic

employment application as required by the job posting.

The

letter

for

also

applications.

came

after

the

November

23,

2011

deadline

The City appointed Neil Hix to fill the Deputy

Fire Chief position.

Hix did not apply for the position, but

was selected by the City Fire Chief to fill it.
The City Fire Chief position became open on December 23,
2011.

Applications were accepted through November 23, 2011.

Interim City Manager Dan Stanley stipulated that the position
was open only to Fire Department employees.

Stanley appointed

Greg Bailey as the Interim Fire Chief while the application
process

was

ongoing.

City

ordinances

allowed

external

candidates to be hired as Fire Chief and as an entry level fire
fighter, but required that all other Fire Department positions
be filled by internal candidates.

Stanley decided to exclude

external

Chief

candidates

from

the

Fire

position

because

he

believed that the previous selection of an external candidate
had created friction and animosity within the Fire Department.
After the deadline, plaintiff submitted a letter of interest on
November

28,

application.

2011.

She

did

not

submit

an

electronic

Of course, she was not a Fire Department employee

at that time.
Stanley decided to pick Greg Bailey, whom he had appointed
as Interim Fire Chief, to be the permanent Fire Chief.
9

Bailey

had not applied for the position.

It is undisputed that Stanley

had the legal authority to circumvent the application process
and make the appointment.
Females make up approximately 4% to 5% of the Topeka Fire
Department workforce.
the

percentage

of

The percentage is slightly higher than
females

employed

by

fire

departments

nationally.
Additional

uncontroverted

facts

may

be

included

in

the

court’s discussion of the legal arguments in this case.
III.

BURDEN-SHIFTING FRAMEWORK
There is no direct evidence that gender discrimination or

retaliation motivated the adverse employment actions alleged by
plaintiff.

Therefore, the court must apply the burden-shifting

framework established in McDonnell Douglas Corp. v. Green, 411
U.S.

792

(1973)

in

analyzing

plaintiff’s

discriminatory treatment and retaliation.1

claims

of

This requires the

court to consider whether indirect evidence of discrimination or
retaliation creates a material issue for trial.

Under McDonnell

Douglas, plaintiff must first present a prima facie case of
discriminatory treatment or retaliation.
summary

1

judgment,

The court will
Title VII claim
under the KAAD.
2004); Munoz v.
2002).

the

McDonnell

Douglas

“In the context of
framework

requires

a

assume that the rules and standards applicable to plaintiff’s
are generally applicable to plaintiff’s state law claims
See Goico v. Boeing Co., 347 F.Supp.2d 955, 979 n.4 (D.Kan.
Western Resources, Inc., 225 F.Supp.2d 1265, 1269 (D.Kan.

10

plaintiff to raise a genuine issue of material fact on each
element

of

the

prima

facie

case,

differing factual situations.”

as

modified

to

relate

to

Rakity v. Dillon Cos., 302 F.3d

1152, 1164 (10th Cir. 2002).
In general, a prima facie case of discriminatory treatment
requires proof of:
adverse

1) membership in a protected class; 2) an

employment

action;

and

similarly situated employees.

3)

disparate

treatment

among

Carney v. City and County of

Denver, 534 F.3d 1269, 1273 (10th Cir. 2008).

To present a prima

facie case of discriminatory treatment in hiring plaintiff must
demonstrate that:

1) she belongs to a protected class; 2) she

applied for and was qualified for a job for which the employer
was seeking applicants; 3) despite her qualifications, she was
rejected; and 4) after her rejection, the position remained open
and the employer continued to seek applicants from persons of
plaintiff’s qualifications.

McDonnell Douglas, 411 U.S. at 802;

Garrison v. Gambro, Inc., 428 F.3d 933, 937 (10th Cir. 2005).
A

prima

facie

case

of

retaliation

requires

proof

that:

1)

plaintiff engaged in protected opposition to discrimination; 2)
she suffered an action that a reasonable employee would have
found

materially

adverse;

and

3)

there

was

a

causal

nexus

between the opposition to discrimination and the adverse action.
Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 998 (10th Cir.
2011).
11

If plaintiff produces a prima facie case of discriminatory
treatment or retaliation, the burden then shifts to the employer
to

produce

a

legitimate,

nondiscriminatory

taking the disputed employment action.

justification

Id.

for

If the employer

meets this burden of production, then the burden shifts back to
plaintiff to provide evidence showing that the proffered reason
for

the

adverse

retaliation.

Id.

action

is

a

pretext

for

discrimination

or

Upon a summary judgment motion, plaintiff has

the burden of showing that a rational factfinder could determine
that

the

employer’s

proffered

reason

was

so

inconsistent,

implausible, incoherent or contradictory that it is unworthy of
belief.

Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1120

(10th Cir. 2001)(quoting, Olson v. General Elec. Astrospace, 101
F.3d 947, 951-52 (3d Cir. 1996)(further quotation and citation
omitted)).
whether
correct,

In evaluating pretext, the relevant inquiry is not

the
but

employer’s
whether

proffered
the

reasons

employer

were

honestly

wise,

fair

believed

reasons and acted in good faith upon those beliefs.

or

those

Bullington

v. United Air Lines, Inc., 186 F.3d 1301, 1318 (10th Cir. 1999).
IV. ANALYSIS OF PLAINTIFF’S DISPARATE TREATMENT AND RETALIATION
CLAIMS
A.
Plaintiff’s claim that her
illegal disparate treatment must fail.

termination

constituted

Plaintiff’s termination argument is not so much that the
City did not have budgetary reasons to terminate employees, as
12

that the City had discriminatory reasons to terminate plaintiff
(as opposed to other employees) as it responded to its financial
shortfall.
a

In other words, plaintiff admits that defendant had

legitimate,

nondiscriminatory,

eliminating plaintiff’s job.

nonpretextual

reason

for

But, plaintiff contends that sex

discrimination was part of the process of selecting plaintiff’s
position for elimination.

Plaintiff has no persuasive evidence

to support this contention.
Plaintiff
argument:

makes

a

number

of

points

in

support

of

her

1) that the City could have eliminated the Deputy

Chief of Operations position instead of plaintiff’s position; 2)
that a female IT Department Manager was laid off at the same
time as plaintiff even though a list produced by the City showed
no savings from the action; 3) that plaintiff’s position was not
mentioned in

memoranda and correspondence addressing possible

reductions in force written prior to her termination; and 4)
that plaintiff received some assurances that her job was safe.
Doc. No. 148, pp. 33-37.

These points are inadequate to create

a material issue of fact as to plaintiff’s termination claim for
the following reasons.
Plaintiff has not produced an inference of discrimination
by comparing her treatment with that of a similarly situated
male employee.

Plaintiff suggests that the City could have

eliminated the Deputy Chief of Operations (DCO) position which
13

was occupied by a male.

But, plaintiff provides no proof that

the DCSS and the DCO positions were similarly situated.

The two

positions had different titles, duties and qualifications.
is

undisputed

that

the

DCO

position

had

oversight

suppression division of the fire department.
uncontroverted fact # 14.
DCSS.

over

It
the

See Doc. No. 146,

This was not plaintiff’s role as

At the time of her termination, plaintiff’s “management

analyst”

duties

were

significantly

different.

It

is

also

undisputed that applicants for the Deputy Fire Chief position
which remained after plaintiff’s position was eliminated, were
required to have experience as a Captain, Battalion Chief and/or
Shift Commander that plaintiff was not required to have as DCSS.
See Doc. No. 146, uncontroverted facts ## 97, 98, 111 and 115.
In sum, plaintiff has not shown that similarly situated male
employees kept their jobs or otherwise produced evidence which
would

show

that

defendant

intended

to

discriminate

against

plaintiff on the basis of her sex in deciding to terminate her
position

as

DCSS.

discrimination,

Rather

plaintiff

than

merely

create

invites

the

an

inference

court

to

of

second

guess defendant’s management decisions as it faced a serious
budgetary situation.
Plaintiff makes reference to the termination of a female IT
Department Manager; an action that plaintiff alleges produced no
budgetary savings.

This does not prove a discriminatory motive
14

with regard to the elimination of plaintiff’s position which did
produce

budgetary

accomplished

savings.

significant

Nor
savings

does
by

position in addition to many others.
too little information

in the

it

deny

that

eliminating

the

City

plaintiff’s

Plaintiff simply provides

particular instance

of the IT

Department Manager to support an inference of discrimination.
Plaintiff also fails to prove discrimination by referring
to statements to the effect that plaintiff’s appointment as a
“management analyst” was indefinite or of unknown duration, or
that her position was secure as of November 2009.

There is no

indication that these statements were knowingly false or that
for some reason they were meant to disguise sex discrimination.
Also, the fact that plaintiff’s position was not specifically
proposed for elimination in memos written prior to the reduction
in force does not prove discrimination or support an inference
of discrimination.
the City

A memorandum written by Dennis Taylor for

Manager’s consideration in making reduction-in-force

decisions does not mention plaintiff’s DCSS position.
148-8, Ex. 150.

Doc. No.

But, it does not specifically designate any

management position for elimination or for preservation.
memo

merely

consider.

provides

information

for

the

City

Manager

The
to

All of this evidence is not significantly probative

of discrimination and merely asks a factfinder to engage in
speculation.
15

Finally,

plaintiff

discrimination

by

attempts

to

contending

create

that

an

inference

defendant

has

of
made

inconsistent or confusing explanations of its job actions.

The

Tenth Circuit has recognized that in some cases an attack upon
an employer’s explanation for a job action may create a material
issue of fact regarding discriminatory motive when:

1) the

attack

validity

of

any

action;

2)

the

raises

a

nondiscriminatory

genuine
reason

issue
for

as

the

to

the

employer's

explanation is so fishy or suspicious, the employer lacks all
credibility; 3) the employer raises many reasons for its action
and the plaintiff raises substantial doubt about a number of
them;

4)

reasons,

the

plaintiff

leaving

only

discredits

subjective

the

reasons

employer’s
for

the

objective
employer’s

decision; or 5) the employer has changed its explanation under
circumstances that suggest dishonesty or bad faith.

Jaramillo

v. Colorado Judicial Dept., 427 F.3d 1303, 1310 (10th Cir. 2005).
None of these situations arise here.
The primary reason given for the termination of plaintiff’s
DCSS position has been the financial problems facing the City.
This is the reason listed in the letter informing plaintiff of
the job action.

Plaintiff has not discredited this explanation

at all.

Dennis Taylor recommended that plaintiff’s position be

selected

for

critical

than

the

reduction

other

in

positions
16

force
and

because
it

it

offered

seemed

less

significant

savings.

This

reasoning

also

has

not

been

discredited.

Plaintiff has cast doubt upon a statement made by an attorney
for the City who suggested in response to an administrative
request for information that plaintiff’s work as DCSS had been
completed.

See Doc. No. 146, uncontroverted fact # 148.

statement does not appear correct.

That

But, this is not sufficient

to suggest that the City’s reasons for eliminating plaintiff’s
job were fishy, suspicious, inconsistent or suggestive of an
illegal animus.
In summary, the court finds no reasonable grounds on this
record for a jury to hold that plaintiff was terminated because
of her sex.

Therefore, summary judgment is warranted against

plaintiff’s termination claim.

See McGowan v. City of Eufala,

472 F.3d 736, 747 (10th Cir. 2006)(“If the reason for the claimed
adverse action does not flow from a discriminatory motive, it
lacks the requisite causal connection to the adverse action.”).
B.
Summary judgment must be granted against plaintiff’s
failure to hire claims.
Plaintiff contends that she suffered sex discrimination or
retaliation because she was not considered for four positions
within

the

Fire

Department

following

elimination of her DCSS position.

the

February

11,

2010

These positions were:

the

Deputy Fire Chief position in January 2011, the Training Officer
position

in

June

2011,

the

Deputy

17

Fire

Chief

position

in

November 2011, and the Fire Chief position in November 2011.
Plaintiff is not alleging disparate treatment as to the November
2011

Deputy

Fire

Chief

and

Fire

Chief

positions,

only

retaliation and disparate impact.
It is uncontroverted that plaintiff was not a Topeka Fire
Department
position

employee

on

defendant’s

after

February
proposed

11,

she

was

2010.

terminated
Plaintiff

uncontroverted

facts

from

does

#96,

the

not

#104

DCSS

dispute
and

#128

which state that plaintiff was not a Fire Department employee in
January 2011, June 2011 and November 2011.
and 148.

See Doc. Nos. 146

Plaintiff also lists as a proposed uncontroverted fact

(#206) that she did not have access to the job postings for
Deputy Fire Chief, Training Officer and Fire Chief positions
because she no longer worked for the City.

Doc. No. 148.

No

action was taken to return plaintiff to employment with the City
between February 11, 2010 and January 2011.

Obviously, she was

not a Fire Department employee because she had been terminated
on February 11, 2010.

Plaintiff’s receipt of a large severance

pay award buttresses this conclusion.
It is

further

uncontroverted that to be eligible to be

hired for the Deputy Fire Chief openings in January 2011 and
November 2011 or the Training Officer opening in June 2011, an
applicant had to be a Fire Department employee.
146, uncontroverted fact # 88.
18

See Doc. No.

This requirement derives from

Charter Ordinance No. 10 as construed in Bradshaw v. City of
Topeka, Case No. 08-C-599 (Shawnee County Dt. Ct. 5/28/2009).
Since plaintiff was not a Fire Department employee at the time
of those openings, plaintiff was not qualified to be hired to
those

positions.

facie

case

plaintiff

cannot

discriminatory

of

Therefore,

treatment

or

prove

a

retaliation

prima
as

to

those positions.
Similarly, plaintiff cannot demonstrate a prima facie case
of retaliation with regard to the Fire Chief position.

Although

Charter Ordinance No. 10 permitted external candidates to be
hired as Fire Chief, it is undisputed that the job posting in
November 2011 was limited to Topeka Fire Department employees.
See Doc. No. 146, uncontroverted fact # 124.

This was the

Interim City Manager’s stipulation in order to limit friction
within the Fire Department.

It is also uncontroverted that the

Interim City Manager ultimately decided not to hire through the
recruitment and application process and instead appointed the
Interim Fire Chief to be the Fire Chief.

The appointee had been

a Fire Marshall in the Fire Department before being made Interim
Fire Chief.

While plaintiff could not be considered a rank

outsider, because she was not a Fire Department employee at the
time the Fire Chief position was being filled, plaintiff cannot
demonstrate that she was qualified for the position according to
the undisputed requirements of the defendant.
19

Defendant has elaborated that after plaintiff’s termination
plaintiff was not hired or rehired to a different position with
the Fire Department (or she cannot prove in this litigation that
she was eligible to be hired) because she did not make formal
application, she did not make a timely application, and, in some
instances, she did not have the requisite qualifications.

None

of these alternative explanations or arguments have been proven
to be so inconsistent, suspicious or dishonest that they can be
considered evidence of pretext.

Indeed, they cast significant

doubt upon plaintiff’s ability to recover if she were to proceed
to trial upon any of her claims regarding the Training Officer,
Deputy Chief or Fire Chief positions.
C.
Summary judgment is warranted against plaintiff’s
claims that she was discriminated and retaliated against because
she was not considered eligible for placement on a reemployment
list.
Plaintiff
discriminated

alleges
or

that

she

retaliated

was

treated

adversely

and

against

because

she

not

was

considered eligible for reemployment with defendant in the same
manner as employees who are temporarily laid off.
of

the

Personnel

Code

of

the

City

of

Topeka

Article VIII
distinguishes

between a “Short Term Reduction in Force: Lay Offs” in Section 1
of Article VIII and “Permanent Reduction in Force: Severance
Pay” in Section 2 of Article VIII.

The Code describes a “lay

off” in Section 1 as “a temporary reduction in work due to a

20

shortage of funds, lack of work, abolishment of a position or
other material change in duties or organization” which “differs
from other forms of separation in that there is an anticipated
reinstatement of the employee as soon as the conditions which
necessitated the lay off are ameliorated.”
Section

1

sets

out

performance

and

Doc. No. 148-5.

seniority

criteria

for

determining which employees will be laid off and criteria for
laid-off employees to be placed on a “reemployment eligibility
list” and given “first consideration when a vacancy occurs in
the same or similar position [as] the employee last held.”

Id.

Section 2 describes the procedures for offering severance pay to
employees “who have lost their job through no fault of their
own” and who have lost the right to recall, waived the right to
recall

or

Employees

are
who

not
are

considered

eligible

for

eligible
recall

for
are

recall.

not

eligible

Id.
to

receive severance pay.
Defendant did not treat plaintiff as eligible for placement
on the reemployment list.

Defendant offered plaintiff severance

pay and plaintiff accepted it.

Plaintiff contends that she

should have been placed on the reemployment list because, among
other reasons, her job was abolished due to a shortage of funds.
She also notes that the termination form she received marked
“layoff/budget”

as

the

grounds

21

for

termination

(although

the

form did not list “permanent reduction in force” as a possible
reason for termination).
It appears to the court that the job action taken against
plaintiff is more reasonably considered as a permanent reduction
in force under Section 2 of Article VIII than a short-term or
temporary reduction in force under Section 1 of Article VIII.
Therefore,

defendant

did

not

act

unreasonably

by

failing

to

place plaintiff on a reemployment list and, instead, offering
plaintiff severance pay.

This will be discussed again in more

detail later in this opinion.

In any event, plaintiff does not

attempt to show that plaintiff’s treatment in this regard was
different

from

employees.

how

defendant

treated

similarly

situated

So, even if defendant acted unreasonably, there are

no grounds on this record to find that defendant’s action was
motivated by gender bias or retaliatory reasons.

See Piercy,

480 F.3d at 1200 (“[e]ven a mistaken belief can be a legitimate
non-pretextual reason for an employment decision”); Stover v.
Martinez,

382

F.3d

1064,

1076

(10th

Cir.

2004)(quoting

Bullington, supra, for the proposition that courts should not
inquire as to whether an employer’s reasoning is wise, fair or
correct, but whether the employer acted honestly and in good
faith).

Accordingly,

plaintiff’s

claims

summary

that

she

judgment
was

22

is

warranted

discriminated

against

against

or

retaliated against because of the defendant’s failure to place
plaintiff on a reemployment list.
IV. SUMMARY JUDGMENT IS WARRANTED AGAINST PLAINTIFF’S DISPARATE
IMPACT CLAIM.
Plaintiff states in her factual contentions in the pretrial
order

that

she

has

raised

a

claim

of

disparate

impact

in

violation of Title VII “regarding the Defendant’s reliance on an
ordinance requiring [defendant] to hire current employees for
positions other than entry level firefighter and Fire Chief.”
Doc. No. 143, p. 11.

This refers to Charter Ordinance No. 10.

Defendant argues for summary judgment against this claim for the
following

reasons:

administrative

1)

remedies

as

plaintiff
to

the

has

failed

Training

to

Officer

exhaust
and

both

Deputy Fire Chief employment decisions; 2) the failure to hire
plaintiff for the November 2011 Deputy Fire Chief position was
not an application of Charter Ordinance No. 10; 3) the failure
to hire plaintiff for the Fire Chief position in 2011 was not an
application of Charter Ordinance No. 10; and 4) plaintiff cannot
show

the

alleged

policy

or

practice

results

in

a

legally

significant disparity.
In

response,

plaintiff

admits

that

this

court

has

previously ruled plaintiff did not timely exhaust administrative
remedies as to the Training Officer position and the January
2011 Deputy Fire Chief position.

23

Doc. No. 135, p. 9.

Plaintiff

argues

that

there

is

a

disputed

fact

issue

as

to

whether

plaintiff timely exhausted administrative remedies regarding the
November

2011

contends

that

Deputy
there

Fire
is

a

Chief

position.

disputed

fact

Plaintiff

issue

as

to

also

whether

Charter Ordinance No. 10 was applied to the November 2011 Deputy
Fire Chief position and the 2011 Fire Chief position opening.
Finally, plaintiff refers to a city report which states that
females are “greatly underutilized” within the Fire Department.
This reference apparently responds to defendant’s claims that
plaintiff

cannot

show

the

alleged

policy

or

practice

has

resulted in a legally significant disparity.
After reviewing these arguments, the court believes summary
judgment is warranted against the disparate impact claim for the
following reasons.

First, the court has already ruled that

plaintiff did not timely exhaust her administrative remedies as
to any job action taken before December 5, 2011.
the

decisions

to

hire

persons

other

than

This excludes

plaintiff

for

the

Training Officer and January 2011 Deputy Fire Chief positions.
Second, summary judgment is justified as to any disparate
impact claim regarding the Fire Chief position.

The Charter

Ordinance which plaintiff identifies in the final pretrial order
as the policy under challenge did not limit the applicants for
the Fire Chief position to internal candidates.

The Charter

Ordinance provides that external candidates may be hired to the
24

Fire

Chief

position.

The

decision

to

exclude

external

candidates from consideration for the position was made by the
Interim City Manager.
had

any

impact

Department.

upon

There is no evidence that this decision
any

other

hiring

decision

for

the

Fire

As defendant has noted, the Tenth Circuit has held

that “[a] claim of discrimination resulting from the mode of
filling a single position does not give rise to a disparate
impact.”

Coe v. Yellow Freight Sys., Inc., 646 F.2d 444, 451

(10th Cir. 1981).

So, plaintiff has no disparate impact claim as

to the November 2011 Fire Chief opening.
As for the November 2011 Deputy Fire Chief position, we
believe

there

is

a

material

issue

of

fact

as

to

whether

plaintiff timely exhausted her administrative remedies upon this
claim.

The record does not make it clear when the decision to

reject plaintiff’s “application” was communicated to plaintiff.
The time period for bringing an administrative complaint does
not

begin

to

run

adverse action.

until

plaintiff

had

notice

of

the

alleged

See Proctor v. United Parcel Service, 502 F.3d

1200, 1207 (10th Cir. 2007).

In addition, we believe an issue of

fact exists as to whether the requirement that only internal
candidates be considered for the position stems from the policy
set forth in Charter Ordinance No. 10.
Nevertheless, summary judgment must be granted against the
disparate

impact

claim

as

it

pertains
25

to

the

November

2011

Deputy

Fire

Chief

position

because

plaintiff

evidence supporting a prima facie case.

does

not

have

“[A] plaintiff may

establish a prima facie case of disparate impact discrimination
by showing that a specific identifiable employment practice or
policy

caused

significant

disparate

impact

on

a

protected

Carpenter v. Boeing Co., 456 F.3d 1183, 1187 (10th Cir.

group.”
2006).

a

This means a plaintiff must show that there is a legally

significant disparity between the gender composition, caused by
the

challenged

employment

practice,

of

the

pool

of

those

enjoying a job or job benefit, and the gender composition of the
qualified applicant pool.
198

F.3d

1305,

1312

&

Id. at 1193 (quoting Crum v. Alabama,
n.11

(11th

Cir.

1999)).

The

proper

comparison is between the composition of the at-issue jobs and
the

composition

labor market.
It

appears

would

of

qualified

population

in

the

relevant

Id. (quoting Wards Cove, 490 U.S. at 650-51)).

that

create

the

plaintiff

the

proper

has

no

statistical

comparison

involving

population in the relevant labor market.

evidence
the

which

qualified

Plaintiff’s reference

to a report remarking generally upon the “underutilization” of
females in the Fire Department without addressing the qualified
population in the labor market for Deputy Fire Chief or even for
fire department employees in general does not suffice to make a
prima

facie

case.

This

analysis

plaintiff’s Fire Chief claim.
26

would

apply

as

well

to

Moreover,

if

plaintiff

did

not

have

the

qualifications

stipulated for the position of Deputy Fire Chief or if she did
not submit a timely and proper application, then she may not
have standing to bring a disparate impact claim challenging the
policy set out in Charter Ordinance No. 10.

See Santana v. City

and County of Denver, 488 F.3d 860, 866 (10th Cir. 2007).

As

plaintiff does not dispute the facts alleged regarding her lack
of required experience for the position of Deputy Fire Chief,2
summary judgment is warranted.
V.
SUMMARY JUDGMENT
PROCESS CLAIM.

IS

WARRANTED

AGAINST

PLAINTIFF’S

DUE

Plaintiff alleges that she had a constitutionally protected
property interest in being placed on a reemployment list and
given preference for open positions for which she was qualified
after she was terminated and the DCSS position was abolished.
See Pretrial order, Doc. No. 143, pp. 10-11.
that

this

without

alleged

due

property

process

and

recovery under § 1983.

interest

therefore

was

Plaintiff asserts

denied

plaintiff

is

to

plaintiff

entitled

to

Defendant contends that plaintiff’s §

1983 claim is untimely because it was not raised within two
years of the alleged violation.

Defendant also contends that

plaintiff did not have a property interest in being placed on a

2

Plaintiff states that she had five years experience as DCSS, but not that
she satisfied the listed requirements.

27

reemployment list. The court finds defendant’s latter argument
persuasive and shall not rule upon the limitations issue.3
Property interests are not derived from the Constitution,
they “are created and their dimensions are defined by existing
rules or understandings that stem from an independent source
such as state law-rules or understandings that secure certain
benefits

and

that

support

claims

of

entitlement

to

those

benefits.” Bd. of Regents of State Colleges v. Roth, 408 U.S.
564, 577 (1972).
that

she

had

position.

Unlike many cases, plaintiff is not arguing

a

property

interest

in

maintaining

her

DCSS

Instead, she is claiming that the job action taken

against her should have been treated as a temporary layoff, not
a

permanent

reduction

in

force,

and

consequently,

under

the

terms of the City Personnel Code (Article VIII, Section 1), she
was

entitled

The

court

to

does

preferential
not

believe

consideration

a

reasonable

for

jury

reemployment.
could

find

in

accord with plaintiff.
The letter plaintiff received when she was informed of the
job action stated that her job was being eliminated due to a
“permanent reduction in force.”
the

provisions

in

the

City

The letter made reference to

Personnel

Code

which

concern

a

“permanent reduction in force,” that is Article VIII, Section 2.
3

The court also will not rule upon defendant’s argument that plaintiff’s
acceptance of severance pay constitutes accord and satisfaction which bars
any claim to placement on a reemployment list.

28

Of course, plaintiff received a substantial amount of severance
pay.
2.

Severance pay is discussed in Article VIII Sections 1 and
But, it is not an entitlement for employees who lose their

jobs as part of a “short-term reduction in force” or “lay off”
as described in Section 1 of Article VIII, unless such employees
sign a waiver of their right to recall.

Doc. No. 148-5.

Plaintiff contends that there is a material issue of fact
as to whether defendant intended plaintiff’s dismissal to be
permanent

for

several

plaintiff

received

a

reasons.

First,

check-the-box

plaintiff

termination

notes

notice

that
which

listed the reason for her termination as “layoff/budget.”
No. 148-10.

Doc.

This is not evidence that plaintiff’s termination

was a temporary reduction in force because the form does not
distinguish between “short-term” and “permanent” reductions in
force.

Neither term is listed among the form’s choices for

“REASON/CODE FOR SEPARATION.”

Indeed, the category “REASON/CODE

FOR SEPARATION” does not attempt to describe whether the job
action is short-term or permanent, only the reason for the job
action.

There is no dispute that budgetary reasons were given

for plaintiff’s termination.
accurate

to

list

the

reason for separation.

Thus, it was at least partially

combined

phrase

“layoff/budget”

as

the

It is also noteworthy that on the form

plaintiff refers to the job action in her own writing as a
dismissal,

not

a

layoff.

One
29

could

infer

from

plaintiff’s

comment that it was understood that this was not a short-term
reduction in force covered in Section 1 of Article VIII.
Second, plaintiff notes that the City said it “abolished”
plaintiff’s

DCSS

position.

This

reduction in force was short-term.

does

not

reflect

that

the

While Article VIII Section 1

states that a temporary reduction in the work force may be due
to a “shortage of funds, lack of work, abolishment of a position
or other material change in duties or organization,” it does not
imply that these reasons for a temporary job action are what
distinguish

a

temporary

reduction in force.

reduction

in

force

from

a

permanent

The difference, according to Section 1, is

whether “there is an anticipated reinstatement of the employee
as soon as the conditions which necessitated the lay off are
ameliorated.”

Doc. No. 148-5.

Here there is no evidence that

it was anticipated that plaintiff would be reinstated.
Plaintiff makes other similar arguments which attempt to
infer a lack of permanence in the job action from the reason for
the job action.

Plaintiff argues that the City eliminated her

job because of a shortage of funds, lack of work, or material
change in the organization.

None of these reasons suggest that

the reduction in force was short-term rather than permanent.

A

permanent loss of position could result for these reasons as
much as a temporary reduction in force.

30

Plaintiff also references a memo from the City Manager to
the Mayor and City Council in July 2010.

The memo stated that

“it became imperative that we resize the organization . . .
through short[-]term tactical changes in the way we do business,
cutting management positions by more than 14%, and reducing the
overall workforce by more than 11% through a combination of
position elimination and holding positions open for the next 18
months.”
next

18

Doc. No. 148-12.
months”

as

We do not read “short-term” or “the

modifying

the

clause

“cutting

management

positions by more than 14%” and we do not believe it would be
reasonable to do so in the context of this record, particularly
the

letter

to

plaintiff

which

described

the

job

action

as

“permanent” and made reference to Section 2 of Article VIII
which concerns “permanent reductions in force:
Plaintiff’s

receipt

of

severance

pay

severance pay.”
is

also

material

evidence that plaintiff did not have a property right to be
placed on a reemployment list.

Both Section 1 and Section 2 of

Article VIII indicate that eligibility for severance pay means
ineligibility for recall or reemployment.4

Section 1 states that

“Employees who waive their right to recall shall immediately
become eligible to receive severance pay.”

Doc. No. 148-5.

Section 2 states that “Employees who are eligible for recall
shall not be eligible to receive severance pay.”
4

Id.

“Recall” appears to be another term for “reemployment” in Article VIII
Sections 1 and 2.

31

Plaintiff argues that a material issue of fact is created
because defendant has admitted that plaintiff was eligible “for
rehire” as an entry-level firefighter and as Fire Chief.
court rejects this contention.

The

Under city ordinances and the

City Personnel Code, plaintiff was eligible to apply for an
entry-level

firefighter

position

or

Fire

Chief

because

the

ordinances and the Personnel Code did not limit these positions
to internal candidates.5

Thus, as a person who was no longer

employed by the Fire Department, plaintiff could apply for those
positions.

Whether

this

could

be

considered

“rehire,” may be a matter of semantics.
however,

that

plaintiff

was

a

potential

This does not imply,

eligible

for

preferential

consideration as part of a reemployment list.
Finally,
eliminated,
employees,
This

plaintiff

instead
and

conflates

it

contends
was

therefore,
the

divided

the

job

permanence

permanence of the work.

that

of

her
and

up

action
the

work
given

was

job

not

action

was
to

not
other

permanent.
with

the

The work once assigned to plaintiff as

DCSS may have continued forward in the hands of other employees,
but plaintiff’s job position as DCSS was permanently eliminated.
Section 2 of Article VIII does not limit the reasons for making
a permanent reduction in force
5

to the five specific reasons

Obviously, the City Manager could and did limit the applicant pool for the
November 2011 Fire Chief position to current fire department employees, but
this was not required by city ordinance or the Personnel Code.

32

listed in that part of the Personnel Code.6

Thus, plaintiff

could have been permanently terminated from the Fire Department
and

could

have

been

denied

any

right

to

reemployment

under

Section 2 of Article VIII for any reason without violating the
Due Process Clause of the Constitution.
In summary, the evidence and arguments before the court
would not permit a reasonable jury to conclude that plaintiff
had a property interest in being placed on a reemployment list.
VI.

CONCLUSION
For

the

above-stated

reasons,

defendant’s

summary judgment (Doc. No. 145) shall be granted.

motion

for

This action

renders plaintiff’s motion to amend/correct pretrial order (Doc.
No. 157) and plaintiff’s motion in limine (Doc. No. 129) moot.
IT IS SO ORDERED.
Dated this 25th day of October, 2013, at Topeka, Kansas.

s/Richard D. Rogers
United States District Judge

6

Section 2 of Article VIII provides that severance pay may be provided to
employees separated from their job “for reasons such as but not limited to
the following:
1. An employee is not recalled from lay off . . .; 2. An
employee voluntarily waives the right to recall . . .; 3. Work is eliminated
and is not anticipated to be necessary in the foreseeable future; 4. Work is
reassigned to other employees; or 5. The qualifications for a position
change.”

33