Redmond v. Mirror, Inc.

Filing 46

MEMORANDUM AND ORDER granting in part and denying in part 31 Motion for Summary Judgment. Signed by District Judge Daniel D. Crabtree on 9/5/2017. (ms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BYRON A. REDMOND,
Plaintiff,
v.

Case No. 16-cv-4021-DDC-KGS

THE MIRROR, INC.,

Defendant.

MEMORANDUM AND ORDER
Plaintiff brings this action against his former employer, alleging that defendant subjected
him to disparate treatment, discharged him from his employment, and retaliated against him,
violating Title VII (42 U.S.C. § 2000e-2), 42 U.S.C. § 1981, and the Kansas Acts Against
Discrimination (Kan. Stat. Ann. § 44-1001, et seq.). Defendant has filed a Motion for Summary
Judgment. Doc. 31. Plaintiff has responded to the Motion. Doc. 40. And, defendant has filed a
Reply. Doc. 45. After considering the parties’ arguments, the court grants defendant’s motion in
part and denies it in part. The court explains this ruling, below.
I.

Facts

The following facts govern this motion and are uncontroverted or, where controverted,
are recited in the light most favorable to plaintiff, the party opposing summary judgment. Scott
v. Harris, 550 U.S. 372, 378 (2007). Defendant is a non-profit residential reentry facility that
contracts with the federal Bureau of Prisons (“BOP”) to house and provide re-entry services to
federal offender inmates as they make the transition back into society after incarceration.
Defendant hired plaintiff on August 13, 2013, to work as a part-time Program Technician at its
location in Topeka, Kansas. The job duties of a Program Technician involve daily monitoring of

federal offender clients and addressing their needs. Part-time Program Technicians work a
maximum of 20 to 25 hours a week on a varying schedule.
Mary Handley (Director of Federal Programs Northern Region) hired plaintiff and
supervised him during his employment with defendant. When Ms. Handley hired plaintiff, she
knew that he intended to work full-time at another facility. For this reason, she hired plaintiff as
a part-time employee. Ms. Handley also testified that she thought plaintiff’s past experience at
other residential facilities made him a desirable candidate for the Program Technician position.
On August 12, 2013, plaintiff signed the Program Technician job description and
defendant’s personnel policy acknowledgment page. The policies that plaintiff acknowledged
included the following:
Group 2 — The examples provided below should result in a
written warning (a single somewhat more serious violation or a
repeated violation or failure by the employee to affect a positive
change on previously cited performance problems) and/or
termination (if the seriousness of the violation warrants it or
frequency of the violation adversely affects the quality of service
provided by the agency).
Leaving Mirror work location without permission during
working hours. Leaving the Mirror work site for personal reasons
during regular working hours without notice to or permission from
your immediate supervisor (or the program director or a Mirror
administrator).
Disregard for safety rules. Neglect or carelessness in observance
of established safety rules, resulting in exposure of other
employees or clients to possible injury or damage, or resulting in
actual injury to the employee or to other employees or clients or
damage to Mirror property. Examples of this might include the
following: malicious mischief horseplay, other undesirable conduct
or tampering in any way with safety equipment.
Insubordination. Insubordination is the refusal by an employee to
perform work assigned to them or to comply with the written or
verbal instructions of their supervisor (or an administrator).
Use of abusive or threatening, harassing language against
clients or other staff persons.
Sleeping or dozing during working hours.
2

Breaching federal or state confidentiality regulations (inclusive
of CFR-42 or CFR-45).
Unsatisfactory work performance as related to AAPS
Licensure Standards, BOP or other contract requirements.
(Employees that continue to fail to meet the required paperwork
and proper procedure demands set forth in AAPS Licensure
Standards, the BOP or other contracts may need to be disciplined
and assisted with a corrective action plan to correct their
inaccuracies in documentation).
Doc. 34-2 at 35. When defendant hired plaintiff, it placed him on an initial six-month
probationary period. Plaintiff completed the probationary period.
The “Float” Position
Defendant employs one Program Technician in the “float” position for each of its shifts.
The “float” position exists to assist other workers during the course of a shift. Defendant expect
floaters to work independently and with less supervision than other staff. Program Technicians
assigned to work the “float” position do not receive additional pay for their work in this position.
In June 2014, Ms. Handley changed the work schedule so that full-time employee Kyle
Weishaar was working in the “float” position during the 1:00 p.m. to 9:00 p.m. shift. Ms.
Handley explained that she made this change to ensure that Mr. Weishaar, as a full-time
employee with no other employment, was assigned 40 hours a week. Indeed, Ms. Handley is
required to schedule defendant’s full-time employees to work 40 hours per week.
On June 7, 2014, plaintiff sent an email to Ms. Handley, objecting to the schedule
change. His email recited:
Mary, I feel it is very unfair to change the schedule without our
knowledge! You are inconveniencing 3 people to appease 1
person, who if I’m not mistaken requested to work extra hours,
which is overtime. I perceive this as Blatant Favoritism and the
previous schedule should be honored. Approximately 4 months
ago I recall you stating that you wanted techs who were mainly
allowed the privilege to float to work the building to gain
experience. I feel it is important that the techs who work the
3

buildings the majority of the time be given the opportunity to float
as a reprieve break of not having the stress and responsibility of
that task each work shift. As you know from working as a tech
this past week it can become quite hectic at times. It will be
beneficial to the morale and well being of all tech employees if
they are allowed to float and all future schedules should reflect this
change when Mr. King’s employment begins and next month.
Thanks to your attention concerning this manner.
Byron
Redmond.
Doc. 33-2 at 27.1
On June 7, 2014, Ms. Handley responded to plaintiff’s email complaint. She told
plaintiff that she was required to schedule full-time employees to work 40 hours a week. She
also told plaintiff that she gave preference to employees whose primary employment was with
defendant when she made the schedule. Ms. Handley also testified that sometimes, but not
always, seniority plays a role in her scheduling decisions.
Throughout plaintiff’s employment with defendant, he also held another full-time job
with another employer. Also, during plaintiff’s employment, defendant employed two part-time
Program Technicians—Ronnie Arnold and Leroy Wycoff. Mr. Arnold and Mr. Wycoff both are
African-American, and they also held full-time jobs with other employers during their part-time
employment with defendant. Program Technician Leroy Wycoff did not consider the “float
position” a desirable one. But, plaintiff testified that he wanted to work the float position

1
Defendant has submitted its summary judgment exhibits in a manner that the court is not
accustomed to seeing. Instead of providing each exhibit as a separate document filed on CM/ECF,
defendant submitted only three exhibits—each exhibit includes excerpts from a deposition transcript.
Attached to each transcript are various documents that the parties marked as exhibits during that
deposition. In its summary judgment motion, defendant references these documents by deposition
number and Bates number. But, they are difficult to locate in the summary judgment exhibits because
two of the three exhibits span some 50 pages each and include several deposition exhibits. This
unconventional practice has made the court’s task more difficult than necessary and complicated the work
required to identify the undisputed summary judgment facts.
4

because he thought it would allow him to go from working part-time to full-time.2 Plaintiff
previously had told Ms. Handley that he wanted to work full-time for defendant.
Complaints about Plaintiff’s Work Performance
On June 12, 2014, two of defendant’s employees, Britney Champagne and Kyle
Weishaar, complained to Ms. Handley about plaintiff’s behavior and job performance. Ms.
Champagne and Mr. Weishaar later sent an email to Ms. Handley, memorializing their
complaints about plaintiff’s performance.
On June 19, 2014, Program Technician Joe Scherr sent an email to Ms. Handley. The
email alleged that Mr. Scherr had caught plaintiff certifying that an inmate had completed his
chores when he had not done so. Mr. Scherr told Ms. Handley that plaintiff was not checking to
ensure that inmates were completing chores.
Defendant Disciplines Plaintiff for Falsifying Residential Headcount Sheets
Defendant requires Program Technicians to conduct routine headcounts of residents.
This requires the Program Technician to record on the headcount sheets that he or she has seen
each resident in each hour. Plaintiff concedes that his job duties required him to conduct a
complete and accurate headcount of all residents at least every hour.
On August 31, 2014, plaintiff was assigned to work Building 4 from 7:30 a.m. to 3:30
p.m. Plaintiff recorded on his headcount sheet that resident T.B. was present in the facility at
11:40 a.m., 12:45 p.m., 1:40 p.m., 2:45 p.m., and 3:15 p.m. Program Technician Robert Toeller
relieved plaintiff from his shift at 3:30 p.m. Mr. Toeller was scheduled to work Building 4 from
3:30 p.m. to 11:30 p.m. When Mr. Toeller conducted a routine headcount around 5:00 p.m., he
could not find resident T.B. Mr. Toeller tried to find the resident’s location using defendant’s

2
The summary judgment record shows that this was plaintiff’s belief. But nothing in the summary
judgment evidence confirms his belief. That is, plaintiff cites no evidence showing that if he worked in
the float position on a part-time basis, defendant eventually would convert him to full-time employment.
5

GPS monitoring system, and he determined that T.B. had cut or removed his GPS monitoring
strap at 11:00 a.m. After searching the premises, defendant’s employees eventually found the
strap of T.B.’s GPS monitoring device in his locker.
Program Technician Leroy Wycoff is responsible for GPS monitoring of defendant’s
inmate residents. Mr. Wycoff received training on defendant’s GPS monitoring system through
a company known as Veritracks. Defendant provides simple instructions to its resident inmates
about the GPS monitors. Defendant attaches the GPS monitoring straps to the residents’ ankles,
and it forbids them from removing the units. Defendant also instructs the inmate residents to
charge the units for one hour each day. Veritracks sends alerts by text message to Mr. Wycoff
and Ms. Handley’s cell phones when a resident’s GPS monitoring strap has “really low” battery
power or when someone cuts or removes the GPS monitoring strap. Mr. Wycoff estimates that
Veritracks notifies defendant by text message alert within five minutes of an inmate cutting the
device’s strap. Ms. Handley agrees that Veritracks sends an alert almost immediately but she
notes that exceptions exist. For example, if no one has “cleared” an earlier alert from the
software system, then a new alert will not issue. Doc. 40-3 (Handley Dep. 33:5–14). Ms.
Handley explained that “it’s not a foolproof system.” Id. Everyone who receives a text message
alert about GPS monitoring shares responsibility for notifying employees at the facility about the
alert.
Mr. Wycoff testified that he recalled receiving a text message alert from Veritracks on
August 31, 2014, to notify defendant of a cut GPS monitoring strap. Mr. Wycoff initially
testified that he received the alert between 4:30 and 5:00. He also testified that he recalled
receiving the text alert as he was driving to work to start his shift at 5:00 p.m. But later, Mr.
Wycoff testified that he was not comfortable saying that he received the text alert after 4:00 p.m.

6

Instead, he explained, he would need to review the Veritracks system to determine the time he
received the alert.
Defendant never determined when T.B. left the facility. T.B.’s roommate reported seeing
T.B. in their room at 2:00 p.m. Mr. Wycoff is not aware of anyone reviewing video footage of
the facility to determine when or how T.B. left the facility. Mr. Wycoff testified that defendant
does not review video footage routinely, but he also testified that defendant could have done so
to determine when T.B. absconded. Ms. Handley also testified that she never looked at video
footage to determine when T.B. had left the facility, even though, she concedes, this would have
allowed her to determine easily when T.B. actually absconded.
When Ms. Handley reviewed plaintiff’s headcount sheet, she saw that plaintiff had
marked T.B. present at both 2:45 p.m. and 3:15 p.m. At 8:58 p.m., Ms. Handley called plaintiff
about T.B’s escape. Ms. Handley testified that plaintiff told her during this phone call that he
had not seen T.B since 2:35 p.m. But plaintiff testified that he told Ms. Handley that he last saw
T.B. during his checks. Doc. 40-5 at 3 (Redmond Dep. at 57:13–58:14). Plaintiff concedes,
however, that some confusion exists about what he said during the telephone call. Plaintiff was
drinking alcohol that evening to celebrate the Labor Day holiday, and he believes he
misunderstood what Ms. Handley was asking him. After talking on the phone with plaintiff, Ms.
Handley believed that he had falsified the headcount sheet because he had told her that he last
had seen T.B. at 2:35 p.m., but then marked him as present at both 2:45 p.m. and 3:15 p.m.
When Ms. Handley reviewed Mr. Toeller’s headcount sheet for August 31, 2014, she saw that
Mr. Toeller correctly had noted T.B. as “absconded” from 5:00 p.m. until 11:00 p.m.3

3
Plaintiff asserts that Mr. Toeller (who is Caucasian) initially counted T.B. as present at the facility
at 5:00 p.m. and 6:00 p.m. But the testimony he cites does not support this assertion. Instead, the
headcount sheet states that T.B. had absconded from 5:00 p.m. until 11:00 p.m. No evidence suggests
that Mr. Toeller submitted a headcount sheet that contained false information. Ms. Handley also testified
7

On September 2, 2014, Ms. Handley issued a written disciplinary action, placing plaintiff
on a 60-day probationary period for falsifying headcount records. When presented with the
disciplinary action, plaintiff objected that defendant was holding him accountable for a resident
who was discovered missing at 5:00 p.m., but he had left the facility at the end of his shift around
3:40 p.m. Plaintiff also disagreed that the resident had cut his GPS monitoring strap at 11:00
a.m. because no one received an alert or notified the facility of an alert of a cut strap during his
shift. Ms. Handley never explained to plaintiff why no one received an alert about a cut strap.
Plaintiff also denied falsifying the headcount logs. He told Ms. Handley that T.B. was present
when he did his checks. But, despite these protests about the discipline, plaintiff wrote on the
bottom of the disciplinary action form: “I feel 30 days would be more appropriate for the
situation.” Doc. 33-2 at 29.
Ms. Handley knows of no other employee who falsified a headcount showing that a
resident was present when, in fact, the employee had not seen the resident at the facility.4 Ms.
Handley does not discipline employees who correct their own headcount sheets before turning
them into defendant. She acknowledged the employees often make corrections to the time sheets
before submitting them to defendant.
Ms. Handley testified about one incident when a Program Technician erroneously
reported a resident as present on his headcount sheet when the resident, in fact, had absconded.
On this occasion, Ms. Handley received a GPS strap alert for inmate resident O.S. Ms. Handley
called Program Technician Gerald Loney (who is Caucasian) at 1:15 a.m. to report the alert. She

that no falsification occurs if an employee makes corrections to a headcount sheet before turning it in to
defendant.

4

Plaintiff contends that Mr. Toeller falsified his headcount sheet, but the evidence he cites does not
support this contention. Also, plaintiff conceded in his deposition that he “doesn’t know” if Mr. Toeller
falsified his headcount sheet. Doc. 33-2 at 16 (Redmond Dep. 192:5–8).
8

instructed Mr. Loney to look for him in the facility. Mr. Loney conducted a headcount, and
found O.S. nowhere in the facility. Mr. Loney began standard escape procedures, and he called
Ms. Handley back to inform her that the resident had escaped. Mr. Loney’s headcount sheet
shows that O.S. was present from 1:25 a.m. to 7:00 a.m. But, it also shows that another resident,
Thomas, was present earlier, but missing from 1:25 a.m. to 7:00 a.m. After reviewing the
headcount sheet on October 24, 2014, Ms. Handley believed that Mr. Loney erroneously marked
Thomas as absent instead of marking O.S.’s line on the headcount sheet. During her tenure with
defendant, Ms. Handley has never had two residents abscond at the same time.
Gynger Jarboe (Head Program Technician) testified that defendant’s policy requires
employees to conduct a headcount every hour, but she also acknowledged that other job duties
may prevent an employee from performing the headcount exactly on the hour. Defendant never
disciplined Ms. Jarboe for failing to complete her headcounts correctly on a near-hourly basis.
But, Mr. Jarboe also never testified that she had falsified her headcounts at any time in her
employment.
Plaintiff’s Performance Evaluation and Transfer to PRN Position
On September 9, 2014, Ms. Handley completed plaintiff’s annual Employee Performance
Evaluation. Ms. Handley marked plaintiff’s overall performance level as “Competent.” She also
included specific comments about issues that plaintiff needed to address, including:
(1) “follow[ing] the directives given by the Management staff and shared in staff meetings,
emails and the Com Log;” (2) attending staff meetings; and (3) communicating with staff about
his whereabouts. Doc. 33-1 at 32–33. But, Ms. Handley testified that plaintiff was entitled to
continue working for defendant based on his performance evaluation on September 9, 2014.

9

On October 5, 2014, defendant transferred plaintiff from a part-time Program Technician
position to a PRN or “as needed” Program Technician position. Defendant made this transfer
because the BOP recently had sanctioned it for failing to have the federally-required number of
female employees working during all shifts. So, to comply with the federal requirements,
defendant made changes to plaintiff’s employee status and schedule.5
Plaintiff is Disciplined for Allowing a Resident to Go Outside, Unsupervised
Ms. Handley came to defendant’s facility on October 11, 2014, around 10:00 p.m., to
cover a shift for another Program Technician. When she arrived, she saw a resident sitting
outside. The resident was smoking, and the resident was unsupervised. Plaintiff was the
Program Technician on duty at the time, working in the float position. Plaintiff knows that
defendant prohibits residents from going outside without supervision. But, plaintiff contends,
defendant was short-staffed at the time. Program Technician Leroy Wycoff was scheduled to
work from 3:30 p.m. to 7:30 a.m., but Mr. Wycoff had called in absent. Plaintiff testified that he
was working two jobs because he was the only Program Technician on duty at the time.
When Ms. Handley arrived at the facility and saw the resident smoking, plaintiff was
inside the facility distributing medications. Plaintiff did not know that the resident had gone
outside, unsupervised. Ms. Handley asked plaintiff what the resident was doing outside, and he
told her that he didn’t know the resident was outside because he was busy distributing
medications.
On October 15, 2014, Ms. Handley issued plaintiff a written disciplinary action for
allowing a resident to remain outside, unsupervised, in violation of policy. Plaintiff was upset

5
Plaintiff asserts no claims based on his transfer to another position. Plaintiff also asserts no
claims based on his September 9, 2014 performance evaluation.
10

that Ms. Handley had disciplined him for this incident. He told her that he couldn’t believe she
was writing him up when he was working two jobs at the same time.
Plaintiff Misses a Staff Meeting
Defendant held a mandatory staff meeting on October 30, 2014. Plaintiff received notice
of the meeting a week in advance. Plaintiff knew that defendant requires employees to obtain
permission to miss staff meetings before the meeting is held. Indeed, plaintiff had sought and
obtained permission to miss meetings in the past. Plaintiff did not attend the October 30, 2014
meeting, and he never asked for permission to miss the meeting. Plaintiff was unable to attend
the meeting because he was working at his full-time job when the meeting occurred.
Mr. Wycoff testified that he was unable to attend staff meetings on occasion, and
defendant never reprimanded or disciplined him for missing those meetings. But, Mr. Wycoff
never testified that he failed to obtain advance permission to miss the meeting before it occurred.
To the contrary, Mr. Wycoff testified that defendant knew he couldn’t attend the meetings.
Plaintiff’s Termination
On October 30, 2014, Ms. Handley and Gynger Jarboe (Head Program Technician) met
with plaintiff and terminated his employment. During the termination meeting, plaintiff
attempted to provide Ms. Handley a document showing that he was distributing medications at
9:59 p.m. on October 11, 2014, when Ms. Handley had observed the resident outside smoking,
unsupervised. Ms. Handley did not look at the document, but instead she informed plaintiff of
his termination.
Ms. Handley did not give plaintiff any written notice of his termination. She also does
not recall what reasons she provided for the termination other than mentioning that plaintiff was
on probation at the time. Defendant’s articulated reason for terminating plaintiff’s employment

11

was his failure to seek permission to miss the mandatory staff meeting and his continued poor
performance while on probation. Ms. Handley has disciplined other employees in the past for
failing to attend mandatory meetings without permission.
II.

Legal Standard

Summary judgment is appropriate if the moving party demonstrates that “no genuine
dispute [about] any material fact” exists and that it “is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). When applying this standard, the court views the evidence and draws
inferences in the light most favorable to the non-moving party. Nahno-Lopez v. Houser, 625
F.3d 1279, 1283 (10th Cir. 2010). A disputed “issue of fact is ‘genuine’ ‘if the evidence is such
that a reasonable jury could return a verdict for the non-moving party’ on the issue.” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). And an “issue of fact is ‘material’
‘if under the substantive law it is essential to the proper disposition of the claim’ or defense.” Id.
(quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
The moving party bears “‘both the initial burden of production on a motion for summary
judgment and the burden of establishing that summary judgment is appropriate as a matter of
law.’” Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (quoting Trainor v.
Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002)). To carry this burden, the
moving party “‘need not negate the non-movant’s claim, but need only point to an absence of
evidence to support the non-movant’s claim.’” Id. (quoting Sigmon v. CommunityCare HMO,
Inc., 234 F.3d 1121, 1125 (10th Cir. 2000)).
If the moving party meets its initial burden, the non-moving party “‘may not rest upon its
pleadings, but must set forth specific facts showing a genuine issue for trial [on] those dispositive
matters for which it carries the burden of proof.’” Id. (quoting Jenkins v. Wood, 81 F.3d 988,

12

990 (10th Cir. 1996)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Anderson,
477 U.S. at 248-49. “To accomplish this, the facts must be identified by reference to affidavits,
deposition transcripts, or specific exhibits incorporated therein.” Adler, 144 F.3d at 671 (citing
Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992)).
“Unsubstantiated allegations carry no probative weight in summary judgment proceedings.”
Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004) (citing Phillips v. Calhoun,
956 F.2d 949, 951 n.3 (10th Cir. 1992)). To survive summary judgment, the non-moving party’s
“evidence, including testimony, must be based on more than mere speculation, conjecture, or
surmise.” Id. (citing Rice v. United States, 166 F.3d 1088, 1092 (10th Cir. 1999)).
Summary judgment is not a “disfavored procedural shortcut.” Celotex, 477 U.S. at 327.
To the contrary, it is an important procedure “designed ‘to secure the just, speedy and
inexpensive determination of every action.’” Id. (quoting Fed. R. Civ. P. 1).
III.

Analysis

Plaintiff asserts disparate treatment and retaliation claims under Title VII, § 1981, and the
Kansas Act Against Discrimination (“KAAD”). The court addresses each claim, separately, in
the sections below.
A.

Plaintiff’s Disparate Treatment Claims

The court analyzes plaintiff’s Title VII, § 1981, and KAAD disparate treatment claims
under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012) (applying
McDonnell Douglas to Title VII claim); Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.
1995) (applying McDonnell Douglas to Title VII and § 1981 discrimination claims); Reber v.

13

Mel Falley, Inc., 683 P.2d 1229, 1230–32 (Kan. 1984) (adopting McDonnell Douglas framework
for KAAD discrimination claims).
The McDonnell Douglas framework involves a three-step analysis. Garrett v. HewlettPackard Co., 305 F.3d 1210, 1216 (10th Cir. 2002). First, a plaintiff must provide a prima facie
case of discrimination. Id.; see also Khalik, 671 F.3d at 1192. A prima facie case of
discrimination requires plaintiff to demonstrate that: (1) he is a member of a protected class, (2)
he suffered an adverse employment action, and (3) the challenged action occurred under
circumstances giving rise to an inference of discrimination. Bennett v. Windstream Commc’ns,
Inc., 792 F.3d 1261, 1266 (10th Cir. 2015) (citing E.E.O.C. v. PVNF, LLC, 487 F.3d 790, 800
(10th Cir. 2007)). If plaintiff meets this burden, then the burden shifts to defendant to produce a
legitimate, non-discriminatory reason for the adverse employment action. Khalik, 671 F.3d at
1192 (citing Garrett, 305 F.3d at 1216). If defendant satisfies that burden, the burden then shifts
back to plaintiff to show that plaintiff’s protected status was a determinative factor in the
employment decision or that the employer’s explanation is pretext. Id. (citing Garrett, 305 F.3d
at 1216).
Plaintiff asserts that defendant discriminated against him based on his race in four distinct
ways: (1) defendant changed plaintiff’s schedule in June 2014, removing him from the float
position; (2) defendant placed plaintiff on 60 days’ probation for falsifying a headcount sheet; (3)
defendant issued plaintiff a written disciplinary action for allowing a resident to smoke outside
and unsupervised; and (4) defendant terminated plaintiff on October 30, 2014. The court
addresses each allegedly discriminatory act using the McDonnell Douglas burden-shifting
framework below.

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1. The Schedule Change
Plaintiff asserts that defendant discriminated against him when Ms. Handley changed the
schedule in June 2014, removing plaintiff from the float position. Defendant argues that plaintiff
cannot establish the second element of a prima facie case—that the schedule change constitutes
an adverse employment action.
“Adverse employment action includes ‘significant change in employment status, such as
hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.’” Piercy v. Maketa, 480 F.3d 1192, 1203 (10th
Cir. 2007) (quoting Hillig v. Rumsfeld, 381 F.3d 1028, 1032–33 (10th Cir. 2004)). But, “‘a mere
inconvenience or an alteration of job responsibilities’” is not considered “‘an adverse
employment action.’” Id. (quoting Sanchez v. Denver Pub. Schs., 164 F.3d 527, 532 (10th Cir.
1998)). Indeed, our Circuit has held that the denial of a transfer to a position with “the same
salary and benefits . . . [and] substantially similar duties” was not “an adverse employment
action” because the position was “a purely lateral transfer.” Sanchez, 164 F.3d at 532. The
Circuit explained: “If a transfer is truly lateral and involves no significant changes in an
employee’s conditions of employment, the fact that the employee views the transfer either
positively or negatively does not of itself render the denial or receipt of the transfer [an] adverse
employment action.” Id. at 532 n.6.
Here, plaintiff has adduced no evidence that his reassignment from the float position
involved a significant change in his conditions of employment. To the contrary, the undisputed
evidence establishes that the “float” position has substantially similar job duties as a Program
Technician working in a regular position—the only difference is that the floaters assist other
positions and work more independently. The undisputed evidence also establishes that Program

15

Technicians working in the float position receive no additional pay. Plaintiff’s complaints about
the schedule change are based on his own perceptions of the float position, but, as the Circuit
held in Sanchez, plaintiff’s negative view about the schedule change does not make it an adverse
employment action when it “involves no significant changes in the employee’s conditions of
employment.” Id. at 532 n.6. The court thus concludes as a matter of law that the schedule
change does not constitute an adverse action. As a consequence, plaintiff has failed to establish a
prima facie case of discrimination.
But, even if plaintiff had established a prima facie case, defendant offers a legitimate,
non-discriminatory reason for the schedule change. Ms. Handley explained that she made the
change to ensure that a full-time employee was assigned to work 40 hours a week—as she is
required to do. Plaintiff speculates that defendant’s reason is pretext because Kyle Weishaar, the
full-time employee Ms. Handley assigned to work in the float position, was assigned to work 40
hours a week in different shifts before the schedule change. But, plaintiff’s speculation on this
point cannot rebut Ms. Handley’s testimony that she made the schedule change to accommodate
this full-time employee so that he was assigned 40 hours of work each week. Plaintiff cannot
establish pretext with such speculation. See Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875
(10th Cir. 2004) (explaining that non-moving party must present evidence “based on more than
mere speculation, conjecture, or surmise” to avoid summary judgment).
Plaintiff also argues that this reason is pretext because, even though he was a part-time
employee, he had worked more than 40 hours a week and thus was similarly-situated to other
full-time employees. Plaintiff offers no legal authority to support this argument either. It is
undisputed that plaintiff was a part-time employee and that he held another full-time job with a
different employer the entire time defendant employed him. It is also undisputed that that Kyle

16

Weishaar was a full-time employee. Plaintiff has adduced no evidence showing that Ms.
Handley’s reason for making the schedule change was pretext. Defendant is entitled to summary
judgment on this claim.
2. Plaintiff’s Discipline for Falsifying the Headcount Sheet
Plaintiff next asserts that defendant discriminated against him based on his race when Ms.
Handley issued him a written disciplinary action, placing plaintiff on a 60-day probationary
period for falsifying headcount records. Defendant does not dispute that plaintiff has established
a prima facie case of discrimination. Defendant instead moves to the second step of the burdenshifting analysis, arguing a legitimate, nondiscriminatory reason supported its decision to impose
the discipline. Defendant asserts that it disciplined plaintiff for falsifying his headcount sheets
on August 31, 2014, because he had recorded resident T.B. present at the facility at 2:45 p.m.
and 3:15 p.m. Ms. Handley asserts that she honestly believed that plaintiff had falsified the
headcount sheet in violation of policy. And, based on this belief, she imposed the discipline.
Plaintiff asserts that defendant’s reason for the discipline is pretext because disputed facts
exist whether Ms. Handley honestly believed that plaintiff falsified the headcount sheet. To
show pretext, plaintiff must produce evidence of “‘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 non-discriminatory reasons.’” PVNF,
LLC, 487 F.3d at 805 (quoting Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193,
1203 (10th Cir. 2006)). Plaintiff indeed has come forward with facts showing sufficient
weaknesses in Ms. Handley’s belief that plaintiff falsified his headcount sheet to survive
summary judgment.

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Defendant asserts that Ms. Handley honestly believed that plaintiff had falsified his
headcount sheet because he had marked T.B. present at 2:45 p.m. and 3:15 p.m. but later told
Ms. Handley in a phone conversation that he had last seen T.B. at 2:35 p.m. But, plaintiff
disputes that he told Ms. Handley this information. Although plaintiff concedes that he may
have misunderstood Ms. Handley’s questions when she called him on the evening of August 31,
2014, because he had been drinking alcohol, plaintiff specifically testified that he told Ms.
Handley during this phone conversation that he last saw T.B. during his checks. Doc. 40-5 at 3
(Redmond Dep. at 57:13–58:14). Plaintiff also disputed that he had falsified the headcount sheet
when Ms. Handley presented him with the written discipline on September 2, 2014. He told Ms.
Handley in that meeting that T.B. was present when he had completed his checks so his
headcount sheet was accurate.
It is also undisputed that defendant never determined when T.B. actually had left the
Mirror facility. Significant fact issues exist on this issue, and they could permit a reasonable jury
to infer that T.B., in fact, was at the facility when plaintiff performed his checks. And, thus, a
reasonable jury could infer that Ms. Handley’s belief that plaintiff had falsified his headcount
sheets was not an honest one. The summary judgment facts are that defendant first realized that
T.B. was missing around 5:00 p.m. on August 31, 2014, when Program Technician Robert
Toeller performed a routine headcount and was unable to locate T.B. Defendant’s GPS
monitoring system reported that T.B. had cut or removed his GPS monitoring strap at 11:00 a.m.
But, T.B.’s roommate reported seeing T.B. in their shared room at the facility at 2:00 p.m. And
no one at the facility received an alert about a cut strap during plaintiff’s shift that ended at 3:30
p.m. Viewing the facts in the light most favorable to plaintiff, the alert did not issue until 4:00
p.m. or 5:00 p.m. based on Leroy Wycoff’s testimony that he recalled receiving the alert on his

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phone as he was driving to work to begin his 5:00 p.m. shift. Ms. Handley explained that the
Veritracks system may have delayed issuing the alert if someone had failed to clear the system of
an earlier alert. She also testified that the Veritracks system is not foolproof.
A reasonable jury could conclude from these facts that Ms. Handley honestly believed
that plaintiff had falsified his headcount sheet because the evidence suggests that T.B. left the
facility during plaintiff’s shift and thus was not present when plaintiff conducted his headcounts.
But, a reasonable jury also could infer from these facts that T.B. didn’t leave the facility until
after plaintiff’s shift had ended, so it was unreasonable for Ms. Handley to believe that plaintiff
had falsified his headcount sheet. The court cannot decide this issue on summary judgment.
Plaintiff thus has established a genuine issue of fact whether defendant’s reason for disciplining
plaintiff for the falsified headcount sheet was pretext. The court denies summary judgment on
plaintiff’s disparate treatment claim based on the September 2, 2014 discipline.
3. Plaintiff’s Discipline for the Resident Found Outside
Smoking and Unsupervised
Plaintiff next asserts that defendant discriminated against him based on his race when Ms.
Handley issued him a written disciplinary action for allowing a resident to smoke outside of the
facility unsupervised. Defendant does not dispute that plaintiff has established a prima facie case
of discrimination. But, defendant asserts that it had a legitimate, nondiscriminatory reason for
imposing the discipline. Defendant’s policy prohibits residents to go outside unsupervised. Ms.
Handley saw a resident outside of the facility smoking a cigarette and unsupervised while
plaintiff was on-duty as the Program Technician. Plaintiff thus violated defendant’s policy by
allowing the resident to go outside unsupervised. Defendant had a legitimate, nondiscriminatory
reason for disciplining plaintiff.

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Plaintiff asserts that defendant’s reason is pretext because he never allowed the resident
to go outside unsupervised. Instead, plaintiff asserts that he was busy distributing medications to
other residents and that he did not know that the resident was outside unsupervised. Plaintiff
appears to dispute the fairness of the discipline, but he fails to come forward with facts showing
that the discipline was pretext for race discrimination. See Dewitt v. Sw. Bell Tele. Co., 845 F.3d
1299, 1307 (10th Cir. 2017) (explaining that the court’s role “isn’t to ask whether the employer’s
decision was wise, fair, or correct, but whether it honestly believed the legitimate,
nondiscriminatory reasons it gave for its conduct and acted in good faith on those beliefs.”
(citations, internal quotation marks, and internal alterations omitted)). The undisputed facts are
that plaintiff violated policy. He was the Program Technician on duty, and he failed to monitor
one of the residents who went outside, unsupervised, to smoke. Plaintiff thus fails to
demonstrate pretext. Defendant is entitled to summary judgment on this claim.
4. Plaintiff’s Termination
Last, plaintiff asserts that defendant discriminated against him based on his race when it
terminated his employment. Defendant does not dispute that plaintiff can establish a prima facie
case of discrimination. Defendant contends, however, that it had a legitimate, nondiscriminatory
reason for firing plaintiff. On September 2, 2014, defendant placed plaintiff on 60-days’
probation for falsifying the headcount sheet. On October 30, 2014, plaintiff failed to attend a
mandatory staff meeting without requesting permission to miss the meeting before it occurred.
That same day, defendant terminated plaintiff’s employment for failing to seek permission to
miss the mandatory staff meeting and for performing poorly while on probation.
Defendant asserts that plaintiff cannot establish that its reasons for terminating plaintiff’s
employment were pretext. Indeed, the undisputed facts establish that plaintiff missed the

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mandatory meeting and never asked defendant for permission to do so. It also is undisputed that
Ms. Handley had disciplined other employees in the past for failing to attend mandatory
meetings without permission. But this was not the only reason for plaintiff’s termination.
Defendant also terminated plaintiff’s employment because he had continued to perform poorly
while on probation. And, as explained above, plaintiff has come forward with sufficient
evidence for a jury to infer that defendant’s reason for placing plaintiff on 60 days’ probation
was pretext. So, a reasonable jury could infer that the probationary period was pretext, thus
disbelieving one of defendant’s reasons for terminating plaintiff.
The only other performance issues that plaintiff cites are the discipline plaintiff received
for allowing the resident to smoke outside, unsupervised, and certain deficiencies that defendant
identified in plaintiff’s September 9, 2014 performance evaluation. Although the performance
evaluation identified several areas where plaintiff could improve his performance, it also marked
plaintiff’s overall performance level as “Competent.” The court cannot conclude, as a matter of
law, that the reasons given for termination, standing alone, are not pretextual. On these facts, the
court denies summary judgment on plaintiff’s discriminatory termination claim.
B.

Retaliation Claims

Plaintiff asserts that defendant disciplined him and terminated his employment as
retaliation for complaining about race discrimination. The McDonnell Douglas burden-shifting
framework also applies to plaintiff’s Title VII, § 1981, and KAAD retaliation claims. See
Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1174 n.7 (10th Cir. 2007) (“Title
VII’s standards apply to the KAAD”); Davis v. Unified Sch. Dist. 500, 750 F.3d 1168, 1170
(10th Cir. 2014) (applying McDonnell Douglas framework to Title VII and § 1981 retaliation

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claims); Fugett v. Security Transp. Servs., Inc., 147 F. Supp. 3d 1216, 1234–35 (D. Kan. 2015)
(analyzing Title VII and KAAD retaliation claims using McDonnell Douglas framework).
Where no direct evidence of retaliation exists, plaintiff first must establish a prima facie
case of retaliation by showing that: “(1) he engaged in protected activity; (2) he suffered an
adverse employment action; and (3) there is a causal connection between his protected activity
and the adverse employment action.” Davis, 750 F.3d at 1170 (citing Twigg v. Hawker
Beechcraft Corp., 659 F.3d 987, 998 (10th Cir. 2011)). “The Supreme Court has . . . clarified the
causation standard for Title VII retaliation claims, explaining: ‘[A] plaintiff making a retaliation
claim under § 2000e–3(a) must establish that his or her protected activity was a but-for cause of
the alleged adverse action by the employer.’” Id. (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar,
__ U.S. __, 133 S. Ct. 2517, 2534 (2013)).
Next, if plaintiff meets this prima facie burden, the burden shifts to defendant to articulate
a legitimate, non-retaliatory reason for the adverse employment action. Crowe v. ADT Sec.
Servs., Inc., 649 F.3d 1189, 1195 (10th Cir. 2001). And, last, where defendant satisfies this
burden, the burden shifts back to plaintiff to show that defendant’s proffered reasons for its
actions are pretextual. Id. (citing Young v. Dillon Cos., 468 F.3d 1243, 1249 (10th Cir. 2006)).
Defendant argues that plaintiff cannot assert a prima facie case of retaliation because he
never engaged in protected activity. The court agrees. Plaintiff contends he opposed
discrimination when he sent Ms. Handley an email on June 7, 2015, complaining about the
schedule change that removed him from the float position. The entire text of the email is recited
in the unconverted facts section above. See also Doc. 33-2 at 27. But this email never alleges
that plaintiff was complaining about race discrimination. Instead, plaintiff’s email asserts that it
was “unfair to change the schedule” without plaintiff’s knowledge. Id. The email also says that

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the schedule change was an inconvenience to three other people and amounted to favoritism, but
it never asserted the favoritism was based on race. In his Opposition, plaintiff contends that the
three other people he referenced in the email are African-American employees. But his email
never states that the decision to assign the float position to a full-time Caucasian employee was
discriminatory to three African-American employees. Plaintiff’s email also asserts that keeping
the schedule as it was “will be beneficial to the morale and well being” of employees. Id. In
sum, plaintiff’s email addresses the inconvenience and hardship of the schedule change, but
never asserts that the schedule change was racial discrimination. Such complaints do not
constitute protected activity. See, e.g., Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203
(10th Cir. 2008) (holding in an ADEA case that plaintiff had not engaged in protected opposition
to age discrimination when he complained about the company’s management and his negative
performance evaluations because “[a]lthough no magic words are required, to qualify as
protected opposition the employee must convey to the employer his or her concern that the
employer has engaged in a practice made unlawful by the ADEA”); Anderson v. Acad. Sch. Dist.
20, 122 F. App’x 912, 916 (10th Cir. 2004) (“[A] vague reference to discrimination and
harassment without any indication that this misconduct was motivated by race (or another
category protected by Title VII) does not constitute protected activity and will not support a
retaliation claim.”); Boese v. Fort Hays State Univ., 814 F. Supp. 2d 1138, 1146 (D. Kan. 2011),
aff’d, 462 F. App’x 797 (10th Cir. 2012) (holding that complaints about working conditions that
did not allege that the adverse conditions were based on sex is not protected activity under Title
VII).
Also, the context of Ms. Handley’s response to plaintiff’s email shows that plaintiff made
no complaints about race discrimination. Ms. Handley advised plaintiff that she was required to

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schedule full-time employees to work 40 hours a week. She also informed plaintiff that she gave
preference to employees whose primary employment was with defendant when she made the
schedule. Ms. Handley never addressed any concerns about racial discrimination in her response
because plaintiff had not asserted any such complaints. Because plaintiff never complained
about race discrimination, he cannot establish that he engaged in protected activity—the first
requirement of a prima facie case. Plaintiff’s claim thus fails as a matter of law.
Plaintiff also fails to establish the third requirement of a prima facie case—a causal
connection between his June 7 email and his disciplinary actions and termination. Plaintiff
points to the temporal proximity between his June 7 email and the September 2 and October 15
disciplinary actions and the October 30 termination. A plaintiff may demonstrate a causal
connection with evidence of temporal proximity between the protected activity and an adverse
employment action. Foster v. Mountain Coal Co., LLC, 830 F.3d 1178, 1191 (10th Cir. 2016).
But, our Circuit has held that “a one and one-half month period between protected activity and
adverse action may, by itself, establish causation” but “a three-month period, standing alone, is
insufficient to establish causation.” Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th
Cir. 1999) (citations omitted). Here, the first adverse action—the September 2, 2014
discipline—occurred just a few days shy of the three month mark after plaintiff sent the June 7
email. The other adverse actions—the October 15 discipline and the October 30 termination—
occurred well after three months from when plaintiff sent the June 7 email. Plaintiff also cites
other reasons that he believes the discipline and termination were pretextual, but he makes no
connection between his June 7 email and those allegedly discriminatory actions. Without such
evidence, plaintiff fails to establish a causal connection. Defendant is entitled to summary
judgment on plaintiff’s retaliation claim.

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IV.

Conclusion

In sum, the court concludes that a genuine dispute of material fact exists for plaintiff’s
disparate treatment claim based on the September 2, 2014 discipline he received for falsifying
the headcount sheet and his October 30, 2014 termination. The court thus denies defendant’s
summary judgment motion against these claims. But, the court grants summary judgment
against plaintiff’s other disparate treatment claims. The court also grants summary judgment
against plaintiff’s retaliation claim.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s Motion for
Summary Judgment (Doc. 31) is granted in part and denied in part.
IT IS SO ORDERED.
Dated this 5th day of September, 2017, at Topeka, Kansas.
s/ Daniel D. Crabtree______
Daniel D. Crabtree
United States District Judge

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