Mozella M. Dyer, Plaintiff,
Cynthia Lane, et al., Defendants.
MEMORANDUM AND ORDER
J. THOMAS MARTEN, JUDGE.
Plaintiff Mozella Dyer worked for the Kansas School District serving Kansas City, Kansas until her termination. She brings the present action against defendants Unified School District No. 500, Kelli Mather, Barbara Kirkegaard and Cynthla Lane, alleging race discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981. In addition, she brings claims against the School District for retaliation in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.; deprivation of a property interest in her continuing employment without due process, in violation of the Fourteenth Amendment and 42 U.S.C. § 1983; and breach of an implied-in-fact contract of employment. The defendants have moved for summary judgment or dismissal of Dyer’s claims.
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff’s claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. “In the language of the Rule, the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
Findings of Fact
Dyer began working for the School District in January 1995, when she was hired as a programmer. She was assigned to the Technology Department and given the job title of Technology Manager. While employed in the Technology Department, Dyer also performed certain of the functions of a human resources information systems manager. Dyer was transferred to the Human Resources Department, effective July1, 2007, where she was formally assigned the job title of HR Systems Information Manager. She continued to perform that job throughout her tenure with the School District.
At the time of the transfer, Cynthia Lane was the Assistant Superintendent of Business and Finance, and in that capacity she was consulted by Joe Fives, the Director of the Technology Department, and by John D. Rios, then the head of the Human Resources Department, about this transfer. The transfer was recommended and approved because Dyer previously had been working for the Human Resources Department by preparing reports and responding to that department’s information needs. The District determined it was not an efficient use of resources for Dyer to continue to report to a supervisor in the Technology Department. Although Lane was consulted about the proposed transfer, the actual decision was made by Fives and Rios.
Dyer had a written job description for her position as Human Resources Information Systems Manager. In that position, Dyer was responsible for database administration, database development, data needs of Human Resources, payroll management, employee leave, applicant tracking, financial and accounting functions, and safety and security of all employee data. She was responsible to the Executive Director of Human Resources. Her job duties included preparation of reports to assist the Human Resources Department with data that could be utilized in decision making.
After her transfer to Human Resources, Dyer was given additional duties to serve as Substitute Teacher Coordinator or Administrator. These additional duties were assigned to Dyer in January 2008. She continued in this role for three and one half years, from 2008 until her removal from that position by defendant Barbara Kirkegaard on or about August 15, 2011.
In her capacity as Substitute Teacher Administrator, Dyer was responsible for retention, training, assignment, and discipline of the District’s substitute teachers. In that capacity, she supervised two secretaries/administrative assistants: Sheffer Wynn, who is African-American, and Rose Vasquez, who is Hispanic-American. She also prepared a Substitute Teacher Manual distributed to all current substitute teachers serving the District. It was Dyer’s duty to ensure, without exceptions, that the substitute teachers met their essential functions as set out in the handbook that she created.
With regard to performance evaluation, the handbook provides that formal evaluations of substitute teaches are not routinely completed. However, “when a substitute teacher’s performance is reported to be unsatisfactory, the Substitute Services Department will notify the substitute in writing. If a second unsatisfactory performance is reported, the substitute teacher will be notified again in writing and may be scheduled for a conference with the Substitute Teaching Administrator.” A substitute teacher “may be removed from the approved substitute teacher list when three (3) or more unsatisfactory reports have been received by the Substitute Services Department.” Moreover, a substitute “may immediately be removed for any incident involving incompetence, immorality, insubordination, gross misconduct, neglect of duty, physical or verbal abuse of students or others, and/or for accusations resulting in a criminal investigation.”
Dyer acknowledges that was her responsibility to enforce personnel and human resources policies regarding substitute teachers that she oversaw and, specifically, to enforce the disciplinary rules and procedures (up to removal from the substitute teacher list).
On numerous occasions, Dyer disciplined substitute teachers for Handbook violations, particularly after receiving performance complaints from school principals or building administrators. Normally, Dyer disciplined substitutes by simply excluding them from teaching in a particular building. But she also held conferences with substitute teachers and, on occasion, removed persons from the active substitute teacher approved list. Such discipline included an official reprimand of Helen Greaves for making inappropriate comments and use of profane language to students; removal of Romain Kenner from active substitute teacher status for failure to comply with various rules set out in the Substitute Teacher Handbook; reprimand of Terresa Martinez for violation of Internet acceptable use policy; removal of Bert Flynn from the active substitute teacher list because of complaints from various schools requesting that he not return to their building and because of an incident in which Flynn allegedly put his arm around a student in a choke hold; removal of Jorge Geronimo from active substitute teacher status based on violation of the Substitute Teacher Handbook when he created a disturbance by asking two students for a hug; letter advising Millie Washington that she would be removed as an active substitute teacher if she did not attend three substitute teacher in-service training sessions by a date certain; reprimand of Clarence Rainey for incidents of alleged name calling and use of demeaning language; and reprimand of Leslie Ann Davis for leaving a substitute assignment early to go to a doctor’s appointment and for exercising poor judgment by leaving her class unattended to take a student to the office.
Dyer did not personally decide which substitute teacher would be assigned to a particular vacancy. “It was all done systematically through the computer.” Each substitute teacher could enter into the computer (the SubFinder) locations, grade levels, and subjects that he or she was willing to teach, and then the computer program would randomly select persons for the substitute teaching assignments available each day. “I had no control over the standard substitute.” The Substitute Teachers Handbook explains this random assignment procedure:
Substitute teachers are called on a rotation basis by the SubFinder system. Although most substituting needs are not known until the day of the assignment, substitutes can expect to be notified as early as three weeks in advance of assignment by SubFinder. SubFinder will call substitutes from 5:00 p.m. to 10:00 p.m. and will resume calling at 5:00 a.m. and will continue until approximately 90 minutes before an assignment is scheduled to begin.
The only authorized exceptions to the assignment of substitute teachers through the SubFinder system are: (1) assignment of an emergency substitute teacher, which would be accomplished by either Dyer or the substitute teacher secretaries, (2) when a school principal asks for a specific substitute teacher, or (3) when the SubFinder system had failed to fill a vacancy.
Dyer reported to Tom Petz, Substitute Teacher Administrator, a Human Resources Director, until he retired in June, 2010. She then reported to Kirkegaard, who had become the Lead Human Resources Director. Kirkegaard continued to supervise Dyer until her termination.
In March 2008, Dyer submitted a “Classified Grievance Form” to the School District in which she requested additional compensation for having taken on the Substitute Teacher Administrator duties two months earlier. She withdrew her grievance on April 7, 2008. By e-mail on that date, she wrote to Jill Shackelford (with a courtesy copy to Rios),
I would like to rescind my classified complaint and apologize for any inconvenience that I may have caused for my previous actions. I understand that in this era we are all trying to do more with less. Everyone has to step up and give more of one’ s self . This is not an act to lessen one’s value but a testament to the character and integrity of individuals.
Dyer renewed her request for additional compensation on May 28, 2010. She e-mailed Lane with a request for a raise based on performance of both Human Resources Information Systems Manager and Substitute Teacher Administrator job duties. She wrote, “I am highly aware that we are in a budget crunch, ” but nonetheless requested a “position adjustment/correction” so that she would be placed in a Director position, at Class 13, Step. B. “I know everyone has received additional duties but I have received additional duties, as well as an additional job.”
On June 11, 2010, Dyer e-mailed Jayson Strickland, Assistant Superintendent of Teaching for Learning, asking about her request. “I had e-mailed it to Dr. Lane; she replied that it was forwarded to you.” Strickland is African-American. On June 29, 2010, Dyer emailed District Superintendent Ray Daniels, seeking a merit increase of one additional step on the Class 5 salary matrix because of her work putting the SCI Financial and Human Resources and Payroll system in place.
Dyer’s e-mail correspondence indicates that between May and September 2010, she was seeking a “fair and just” compensation increase from Strickland, including placement on a Class 13 salary level. A September 17, 2010 e-mail from Strickland to Dyer states that he would “follow up with” Kirkegaard “so that we can come to a resolution regarding this issue.”
Kirkegaard recalls meeting with Strickland about Dyer’s request for additional compensation. She told Strickland that she did not believe it would be appropriate to place Dyer on a Class 13 salary level (up from a Class 5) because that is a level assigned to Human Resources Directors and other School District Directors, and is only one level below executive directors and assistant superintendents. Putting Dyer on a Step 8 would have put her on a level above all of the human resources directors.
Although he sought input from Kirkegaard, Strickland made the decision not to raise Dyer from a Class 5 to a Class 13 pay level. There were no other Class 5 employees in the Human Resources Department who were raised to a Class 13 pay scale during 2010.
It is uncontroverted that the District has substantially reduced its work force over the past several years due to cuts in state funding in a cumulative amount of $63 million. In 2009, the School District received a cut of almost $30 million, in state funding, requiring 400 lay-offs “so everyone that remained had to take on additional duties.” For example, the Director of Human Resources took on supervision of the Migrant Program and After School tutoring program. Dr. Kelli Mather, Chief Financial- Officer, took on supervision of the Department of Educational Research and Assessment. The Director of Student Services took on the supervision of the Alternative School Program and the Homeless Program. The Director of Curriculum has been assigned oversight of the Professional Development Committee. Strickland was assigned supervision of 6 departments. Four assistant superintendent positions were consolidated to two. Kirkegaard took on additional duties in the Human Resources Department.
Dyer was not required to perform at any higher level or rate than others in School District management positions. Kirkegaard testified that, “We had to do everything we could to help meet the needs of our kids because we had a lot of funding cuts so we lost a lot of positions. In order to ... get the work done and help meet the needs of our kids and our students and our schools we had to work beyond the regular duty day.” Lane testified that “there’s probably not a position at central office that doesn’t have additional duties to what they had prior to that cut, ” and “everybody’s doing more with less, not only at central office, but throughout the whole school system. “ Budget shortfalls and cuts specifically required reductions in force in the Human Resources Department, which had to be restructured with additional duties assigned to the employees remaining in the department. With the employee layoffs and a hiring freeze, District employees had to pick up more work and do things that they were not required to do in the past. Dyer herself acknowledges that the Human Resources Department has been downsized, and that due to the reductions in force it has been regarded as good fortune in the Department simply to keep one’s job.
Managerial and supervisory employees of the District generally have not received additional compensation for taking on additional duties, work, or jobs. Supplemental contracts are only available where an employee takes on job duties that are very different from the previously assigned job, such as a classroom teacher who becomes a sports coach. Supplemental contracts are available only to bargaining unit employees. As an administrator, Dyer could not be given a supplemental contract and was expected to do whatever it takes to perform her assigned job tasks. Due to the budget cuts, most managerial employees have worked more for the same salary.
In her Response, Dyer indicates three instances in which managerial employees were given additional compensation, but these all appear to involve exceptional circumstances, such as when the District Director of Procurement was also made to serve as Athletic Director, necessitating substantial work on evenings and weekends, or when managerial employees were given one-time awards for work on specific projects.
Prior to the end of 2010, District administrative offices were located in a central office location in downtown Kansas City (approximately 65, 000 square feet) and an Indian Springs office (approximately 100, 000 square feet). Effective January I, 2011, those 2 offices were consolidated into a single location, with the total amount of office space now much reduced. The new consolidated School District administrative office is located at 2010 North 59th Street, Kansas City, Kansas. The entire Human Resources Department has moved to this new location.
It was the responsibility of Kelli Mather, Chief Financial Officer, to assign and allocate office space at the new consolidated central office, with Mather having to allocate the space that every employee needed to do his or her job. “There’s not a formula. It’s a decision based on job functions.”
Dyer had an office in the central office building in downtown Kansas City. Some time during December 2010, the floor plan for the new consolidated office space was released, including office space for employees of the Human Resources Department. That floor plan showed that Dyer would be assigned a cubicle, not an office. Strickland told Kirkegaard of this assignment, and Kirkegaard in turn discussed this office the cubicle assignment with Dyer.
Kirkegaard recalls telling Strickland in December 2010 that she had some confidentiality concerns about assigning Dyer to a cubicle because Dyer’s job duties included unemployment hearings, interviews, and disciplinary meetings. Strickland told Kirkegaard that there would be a conference room located near Dyer’s cubicle that Dyer could use for those activities. He also told her that there would be sufficient space assigned to Dyer so that she could perform her job.
Kirkegaard told Dyer that she would be able to perform all of her confidential job tasks in the conference room. After reviewing her assigned office space in the new building, Dyer e-mailed Strickland requesting that she be given closed office space.
Strickland emailed Dyer that offices might be available for coordinator-level managers. However, it had been determined that “you being in a secluded cubicle close in proximity to conference rooms would have to suffice for now. You will have consistent access to those conference rooms to conduct confidential business.” Kirkegaard later told Strickland that if the criteria for receiving an office was being in a position of “coordinator or above, ” then Dyer “qualifies for an office. She is a class 5 administrator which is way above a class 3 coordinator.” Kirkegaard recalls further discussions with Strickland about Dyer’s assignment to a cubicle, instead of an office, in January 2011. At some point in time, Strickland told Kirkegaard that the cubicle would be assigned to Dyer for the time being.
Lane, who became School District Superintendent on July I, 2010, was advised by either Strickland or Mather about Dyer’s request to be assigned an office in the new administrative offices. Lane discussed this matter with Mather, and they agreed that the general principle for assigning space should be “space adequate to do the job duties for the individuals.” Directors generally were to have offices of roughly equal size, shared office spaces had to have enough space for more than one employee, and cubicles generally had standardized sizes. Mather followed those criteria in allocating office space.
Mather determined that Dyer would not be assigned an office because she was given a cubicle “that was several times larger than other employees in the building, so office or not, she had what she needed in order to perform her duties.” Her cubicle was a larger-size one so that she could have the things she needed to do her job, and the cubicle was located outside of a conference room that she could use when necessary to meet with the substitute teachers.
Dyer was not the only coordinator level employee who was not given an individual office. For example, Darryl Garrison was assigned a cubicle. Coordinators, like other employees, “were given space that was designed so that they could do their job.” Other employees classified as administrators have similar space as was assigned to Dyer in the new office location. Other administrators were given a shared office, with two or three employees per office.
Lane deferred to Mather to determine the adequacy of assigned office space, including the space assigned to Dyer. When Mather tells her that assigned office space is adequate, Lane accepts that. “I’m more concerned about the fact we have kids that have classrooms in closets than I am about the size of somebody’s office or cubicle space.”
The cubicle assigned to Dyer in the new administrative offices is not standard size, but is larger than all of the other cubicles in use in the Human Resources Department. It has higher walls than the standard cubicle. Dyer could also use the adjacent conference room as needed. While Dyer complains in her response that she had to share the conference room with other employees, she acknowledges that she had access to the conference room, and makes no claim that the access to the conference room was ever denied when she needed it. Dyer has acknowledged that after the move to the new office location, she received a larger cubicle than she had originally been assigned and that if she needed a confidential space at the new office location, one would be provided.
Armand Dyer, Jr., the plaintiff’s husband, was employed by the School District as a paraprofessional at Coronado Middle School between October 2006 and February 2008. The plaintiff signed a document dated January 30, 2008 that approved Armand Dyer for service as an emergency substitute teacher effective January 20, 2008. John D. Rios, then Assistant Superintendent for Human Resources, approved Armand Dyer for an “additional position of emergency substitute teacher, “effective January 30, 2008, and so advised Armand Dyer by letter dated February 13, 2008. When Armand Dyer became a substitute teacher for the District, he received a copy of the Substitute Teacher Handbook and he attempted to follow its rules and instructions.
Kirkegaard, Lane, and Edwin Hudson (who became Chief of the Human Resources Department in May 2011) did not know that Armand Dyer was a School District substitute teacher, or that Dyer was supervising him in her capacity as Substitute Teacher Administrator until August 2011 when investigation of job performance issues relating to the plaintiff was undertaken by the Human Resources Department. Dyer alleges she ...