Humphrey v. Kansas, State of, Department of Wildlife, Parks & Tourism

Filing 40

MEMORANDUM AND ORDER granting 32 Motion for Summary Judgment. Signed by District Judge J. Thomas Marten on 4/2/2014. (smg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PRISCILLA ANDRING HUMPHREY,
Plaintiff,
v.

Case No. 13-4025-JTM

STATE OF KANSAS DEPARTMENT OF
WILDLIFE, PARKS AND TOURISM,
Defendant.
MEMORANDUM AND ORDER
Plaintiff Priscilla Andring Humphrey filed suit against her former employer, the
State of Kansas Department of Wildlife, Parks and Tourism, alleging that her
termination was discriminatory and retaliatory under federal law. On the defendant’s
motion to dismiss, the court dismissed Humphrey’s FMLA discrimination claim and
her Title VII retaliation claim, leaving only her Title VII race/color discrimination claim.
The court now has before it the defendant’s Motion for Summary Judgment (Dkt. 32).
After reviewing the briefs on the motion, the court is prepared to rule.
I. Uncontroverted Facts
Humphrey is an African-American female who was formerly employed as an
administrative specialist by the State of Kansas Department of Wildlife, Parks and
Tourism (“the KDWPT”), which was the Division of Tourism when she began there.
Humphrey was the only black employee in the seven-person tourism office; the others
were white. Humphrey’s job responsibilities included preparing a tourism magazine
and financial transaction documents as well as handling the travel arrangements for the

division’s employees. While Humphrey worked at the KDWPT, Becky Blake—a white
female—was her immediate supervisor.
Humphrey and fiscal manager Regina Nicol shared the finance-related
responsibilities for the division until Nicol retired. They had complained to supervisors
multiple times, seeking additional help with those duties and suggesting that the
division’s administrative assistants shoulder some of the responsibility. In 2006,
Humphrey complained that she was having difficulty handling her workload, so the
department reassigned the preparation of financial transaction documents to another
employee. According to Humphrey, the reassignment was “a disaster,” so the
responsibilities came back to her. After this, requests by Humphrey or Nicol for help
with their work were denied. Humphrey knows of no evidence that would suggest
these denials by management were racially motivated and admits she was treated the
same as Nicol when she complained about the need for help with the workload.
After the 2010 Kansas gubernatorial election, Assistant Secretary Linda Craghead
assigned additional public tasks to Humphrey because she thought Humphrey
presented a more professional appearance than the other employees. In November
2011, Humphrey cut back her weekly hours at a second job at the YWCA from thirty to
thirteen as a result of her heavy workload at KDWPT. When Nicol retired in April of
2012, her share of the financial work fell on Humphrey, who received instructions to
“clear her desk” of non-financial work to handle the increased workload.
Humphrey suffers from degenerative disc disease and diabetes. Starting in 2009,
her impairments caused her to miss substantial amounts of work time. She used all of
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her vacation and sick leave credits as they accrued and sometimes had to apply for
unpaid FMLA leave. When Humphrey was absent her work would accrue, as it was not
reassigned to other workers. In April of 2012, Humphrey suffered an injury to her L5
disc, which eventually required hospitalization for three days. This injury continued to
affect Humphrey’s ability to work until her termination in June of 2012.
At the beginning of June, Ms. Humphrey had severe sinusitis, which—in
combination with her diabetes and disc disease—caused her to miss some work days
during the week of June 4. Humphrey’s work piled up in her absence. After coming to
work for less than an hour on the morning of Friday, June 8, Humphrey left just after 7
a.m. and provided no written explanation. She left her key to the front door on the desk
of KDWPT Secretary Robin Jennison. Humphrey left a voicemail for Blake that morning
after leaving: “Becky, this is Pris. Listen, I left my building key on Robin’s desk, umm, if
you need me to come in Monday and write something formally as far as a resignation
goes I will do that Monday morning. Thanks bye.” Humphrey explained in her
deposition that she left the key on Jennison’s desk because she was upset and ill.
Humphrey had been ill before—she had even taken FMLA leave earlier that week—but
she did not testify that she turned in her door key during any other spell of illness.
Later that day, Blake spoke with Humphrey on the phone. The content of the
conversation is in dispute, but the parties agree that Blake said she would take
possession of the door key until Humphrey had a chance to think over her decision. On
Saturday, June 9, Humphrey emailed Blake and Craghead indicating she wanted to go
on unpaid FMLA leave.
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On Monday, June 11, Blake explained the situation to Secretary Jennison and
Assistant Secretary Craghead. Blake told them that Humphrey had clearly expressed
her intention to quit on Friday without giving written notice two weeks in advance, as
required by Kansas Administrative Regulation 1-11-1. Due to Humphrey’s failure to
provide the requisite notice, Blake understood that Secretary Jennison had the sole
authority to decide whether Humphrey could return to work.1
Believing Humphrey had resigned and then changed her mind without giving
her two-week notice, Jennison made the decision not to reemploy her. Jennison testified
at his deposition that he had faced a similar decision when Sheila Wells had resigned in
writing just a month before, then asked to retract the resignation before the date it was
to take effect.2 Jennison made a policy decision that, in order to maintain discipline
within the agency, he would not permit Wells to continue working at KDWPT. Jennison
considered Humphrey’s situation to be similar, although he noted that Wells had given
proper written notice and Humphrey had not. Jennison added that Wells had been a
“tireless worker with emotional ups and downs,” while Humphrey “had a substantial
problem with absenteeism.” As a result of his meeting with Humphrey on June 11,
2012, Jennison was unconvinced that she should be allowed back to work. Humphrey
claims Jennison told her he was inclined to use her termination to “set precedent.”
1Indeed,

K.A.R. 1-11-1(b) states that “an employee may withdraw a resignation,” but conditions this
withdrawal on “the approval of the appointing authority.”
2Humphrey testified at her deposition that Sheila Wells verbally told supervisors that she was quitting
many times but being allowed to continue working despite these outbursts. Humphrey does not provide
any evidence that Wells’s supervisors took her frequent threats to quit seriously until she gave written
notice, at which time she was not allowed to rescind her notice. More importantly, Humphrey also does
not provide any evidence that Jennison—the decisionmaker in this case—made the decision to allow
Wells to continue working after her verbal resignations.

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Ultimately, Jennison decided not to allow Humphrey to work at KDWPT, reasoning
that if he made an exception for her, Sheila Wells would have justifiably felt she had
been treated differently a month earlier.
On October 10, 2012, Humphrey filed a charge of discrimination with EEOC,
complaining she had been terminated involuntarily because of her race and color. The
EEOC issued a Dismissal and Notice of Rights on January 8, 2013. Humphrey did not
pursue administrative relief through a state civil service appeal. She received ongoing
unemployment compensation in part because she was physically unable to return to
work.
Humphrey filed her complaint in federal court on March 20, 2013, claiming a
violation of Title VII for disparate treatment by the KWDPT because of her race.
Humphrey alleges that Blake assigned her “much more work and responsibility than
she could reasonably complete, while her white coworkers were allowed to be less
productive.” Humphrey also alleges she was treated differently than Sheila Wells, who
was allowed to return to work after giving numerous informal resignations.
II. Legal Standard
Summary judgment is warranted when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a). A disputed fact is “material” if it is essential to
proper disposition of the claim under the relevant substantive law. Wright v. Abbott
Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001). Only disputes over material facts can
create a genuine issue for trial and preclude summary judgment. Faustin v. City &
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County of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). A dispute is “genuine” if the
evidence is such that it might lead a reasonable jury to return a verdict for the
nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997). When reviewing
a motion for summary judgment, a court must view the evidence in the light most
favorable to the non-moving party. Id.
III. Analysis
Humphrey claims she was discriminated against because of her race while
employed by the KDWPT. Title VII makes it unlawful “to discharge any individual, or
otherwise to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff proves a violation
of Title VII either by direct evidence of discrimination or by following the burdenshifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817
(1973). See Crowe v. ADT Sec. Servs. Inc., 649 F.3d 1189, 1194 (10th Cir. 2011). Under the
McDonnell Douglas framework, a plaintiff must first establish a prima facie case of
discrimination by showing: 1) she belongs to a protected class; 2) she was qualified for
the position; 3) she suffered an adverse employment action; and 4) she was treated less
favorably than others not in the protected class. Exum v. U.S. Olympic Comm., 389 F.3d
1130, 1134 (10th Cir. 2004).
The burden then shifts to the defendant to produce a legitimate, non-discriminatory
reason for the adverse employment action. See Garrett v. Hewlett-Packard Co., 305 F.3d
1210, 1216 (10th Cir. 2002). If the defendant does so, the burden shifts back to the
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plaintiff to show by a preponderance of the evidence that that the plaintiff’s protected
status was a determinative factor in the employment decision or that the employer’s
explanation is pretext. Id. “To raise an inference of pretext in the face of the employer’s
legitimate, non-discriminatory explanation, the plaintiff must undermine the
employer’s credibility to the point that a reasonable jury could not find in its favor.” See
Jaramillo v. Colorado Judicial Dept., 427 F.3d 1303, 1310 (10th Cir. 2005); Swackhammer v.
Sprint/United Mgmt. Co., 493 F.3d 1160, 1169 (10th Cir. 2007). “The ultimate burden of
persuading the trier of fact that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff.” Texas Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981).
The court finds that even if Humphrey is able to establish a prima facie case, she is
unable to overcome the KDWPT’s legitimate non-discriminatory reasons for
terminating her employment. The court held in a prior order that Humphrey’s
complaint alleged a prima facie case on this claim. Humphrey has provided evidence in
support of each element, suggesting she could establish the elements of a prima facie
race discrimination case. As a black female, there is no dispute that Humphrey belongs
to a protected class. Humphrey testified at her deposition that she is qualified for the
position she lost, fulfilling the second element. Humphrey provided evidence that she
was assigned a workload greater than her white counterparts until her employment
ended due to her being unable to complete the work. Although the KDWPT disputes
this, the court construes the evidence in favor of Humphrey at this stage. Additionally,
Humphrey alleges that another similarly-situated employee, Sheila Wells, gave
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numerous informal resignations and KDWPT did not terminate her. Because
Humphrey was terminated after giving an informal resignation, she may be able to
show that she was treated differently from Wells. Even so, Humphrey ultimately fails to
establish racial discrimination by the KDWPT.
Humphrey’s complaint specifically alleges she was assigned larger workloads
than her white counterparts, which eventually led to her termination for failing to
complete all of her work. KDWPT contends that the increased workload experienced by
Humphrey was a natural consequence of employment turnover within her department,
a legitimate, non-discriminatory reason supported by the facts. Approximately a month
before Humphrey’s employment with KDWPT ended, the fiscal manager that shared
job duties with Humphrey, Regina Nichol, retired. After Nichol’s retirement,
Humphrey’s workload increased because she was asked to take on Nichol’s duties.
Humphrey claims that some of this workload should have been allocated to other
employees in the office. However, the other employees did not work in the same
position as Humphrey or the retired employee. Further, Humphrey admitted in her
deposition that she was the only one in her division that could have done the work and
a “disaster” ensued as a result of an earlier attempt to reassign some of her work to
others.
Even if Humphrey can establish a prima facie case, these facts establish a
legitimate and non-discriminatory reason for Humphrey receiving more work. The
retirement of the fiscal manager and the lack of other employees in a position to help
Humphrey contributed to her increased workload. Humphrey has not presented any
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evidence to undermine this explanation as pretextual. To the contrary, Humphrey
supports the KDWPT’s assertions by testifying that she received more work due to the
retirement of Regina Nicol rather than because of any race-related reason. Further, she
testified that she was the only other person in her division that could complete the
work. She also testified that her requests for more help were treated the same as Nicol’s
requests: they were each denied, regardless of their race.
Additionally, the KDWPT provides testimony from multiple witnesses
supporting its claim that Humphrey’s employment was terminated as a result of her
resignation without giving proper notice under the Kansas administrative regulations.
The Kansas Administrative Regulations establish a two-week written notice
requirement for employees. K.A.R. 1-11-1(a). The regulations state: “Any appointing
authority may consider the fact that a person did not give the required notice when the
person resigned from earlier employment with the state to be grounds for refusal to
employ that person.” Id.
The undisputed facts show that Humphrey left her door key on the Secretary’s
desk and then left a voicemail on her supervisor’s desk explaining her action and
offering to “write something formally as far as a resignation goes” on the next business
day. Humphrey testified at her deposition that her main reason for leaving the key was
not to resign. Humphrey’s testimony cannot contradict the contents of a voicemail
recording. Humphrey testifies that she left the key on Jennison’s desk merely because
she was ill. However, she did not testify that she took this action whenever she went on
leave. Considering that she had taken FMLA and sick leave on multiple prior
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occasions—including earlier that same week—and had not left her key or left a
voicemail offering to sign a resignation when she took that leave, the fact that Blake and
Jennison reasonably interpreted Humphrey’s acts as a resignation is not in dispute.
After meeting with Humphrey, Jennison did not allow her to rescind her
resignation, citing office discipline and stating that he wanted to use Humphrey’s
resignation to “set a precedent,” presumably that such actions would not be tolerated.
Humphrey alleges that a white employee, Sheila Wells, was allowed to return to work
after verbally resigning several times. However, Humphrey provides no evidence that
any of Wells’s supervisors took seriously any of these apparently frequent threats to
quit until Wells gave her written notice, which she was not allowed to rescind.
Additionally, Humphrey provides no evidence that Jennison was the decisionmaker in
allowing Wells to return. Jennison also testified that Wells was a tireless worker, while
Humphrey had an absenteeism problem, which tends to suggest these employees were
not similarly-situated. Further, Jennison terminated Wells after she gave her required
two-week notice of resignation, a regulatory standard by which Humphrey did not
abide. This failure to follow the state regulations qualifies as a legitimate nondiscriminatory reason for Jennison’s refusal to rehire Humphrey.
Most detrimental to Humphrey’s claims is the lack of any evidence that race
played a part in anything that happened to her while she was employed at KDWPT.
When asked at her deposition what evidence, other than her own subjective belief,
Humphrey had that the KDWPT’s actions were racially motivated, Humphrey cited
statements by Linda Craghead and Robin Jennison that “nobody gets anything for free”
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and that Jennison would use her “to set a precedent.” But Humphrey does not explain
how these statements are related to race. Humphrey relies solely on the inference
established by her prima facie case that she was treated differently from a white
employee, Sheila Wells. But Humphrey simply provides no evidence that tends to show
this different treatment was because of her race.
Considering the KDWPT to have met its burden of producing a legitimate nondiscriminatory reason for the additional workload and Humphrey’s termination,
Humphrey bears the ultimate burden of persuasion beyond a preponderance of the
evidence that she was discriminated against because of her race. See Burdine, 450 U.S. at
253. The court finds that no reasonable jury could find that Humphrey’s evidence
establishes racial discrimination by the KDWPT in this case. Accordingly, the court
grants summary judgment to the KDWPT on Humphrey’s race/color discrimination
claim.
IT IS THEREFORE ORDERED this 2nd day of April, 2014, that the State of
Kansas Department of Wildlife, Parks and Tourism’s Motion for Summary Judgment
(Dkt. 32) is granted.

s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE

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