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Davis v. Unified School District No. 500

United States District Court, Tenth Circuit

August 15, 2013



ERIC F. MELGREN, District Judge.

Plaintiff Charles Davis filed suit against his current employer, Defendant Unified School District No. 500, and his supervisor, Defendant Stephen Vaughn, alleging retaliation in violation of Title VII of the Civil Rights Act[1] and 42 U.S.C. § 1981, as well as failure to timely pay overtime compensation in violation of the Fair Labor Standards Act.[2] Defendants move for summary judgment on all claims. Because no reasonable jury could find for Davis on any of his claims based upon the stark evidence presented, the Court grants Defendants' motion for summary judgment.

I. Factual Background[3]

Plaintiff Charles Davis began his employment as a custodian with Defendant Unified School District No. 500 ("USD 500") in 1991. From 1993 to 2001, Davis was employed as a head custodian at Bethel Elementary School. During that time, he received several poor performance reviews from the school principal, which Davis believed were due solely to his resemblance to the principal's ex-husband. From 2001 to 2007, Davis worked as the head custodian at Wyandotte High School under the supervision of principal Walter Thompson and Joseph Herbin, Coordinator of Buildings and Grounds. Davis also accused Principal Thompson of retaliatory conduct, although he could not articulate a reason for the alleged animosity.

On July 25, 2007, an assistant principal at Wyandotte High School found Davis lying naked on his stomach on the school roof, and when asked what he was doing, Davis said that he was taking a break and getting some sun. Davis agreed with the assistant principal's written account of the encounter, although Davis contended that he was wearing underwear. In response to this incident on the roof, Principal Thompson recommended to the school district's Director of Human Resources, Defendant Stephen Vaughn, that Davis be terminated from employment. Vaughn investigated the incident and concurred with the termination recommendation. The School Board also concurred.

Davis exercised his right to a termination appeal before a hearing committee of two School Board members. The hearing committee recommended discipline less than termination in part because the committee believed Davis was acting under the influence of prescription drugs. The hearing committee submitted a written report with their recommendation. That report, written in 2007, stated: "Mr. Davis' supervisors describe the quality of Mr. Davis' work as average and/or marginal. Regarding his job performance, Mr. Davis contends that he has done the work requested but acknowledges that his work record is not without blemish."[4] The report went on to say that Davis's behavior and failure to notify his supervisor that he was impaired "raise[d] doubts about Mr. Davis' fitness to manage others, "[5] but also stated that the hearing committee was "confident that Mr. Davis has the character and ability to rebound from this circumstance and [we] encourage him to do so."[6] Based on the report from the hearing committee, Davis was suspended without pay for thirty days and demoted from the head custodian position to a custodian position. Head custodians and custodians have different duties and responsibilities, and receive correspondingly different compensation.

On April 9, 2008, Davis filed an administrative charge with the EEOC, alleging that his demotion from head custodian was an act of racial discrimination. Vaughn investigated the complaint with assistance from USD 500's Human Resources Department and outside counsel, and submitted written responses to the EEOC charge. The EEOC issued a notice of dismissal and right to sue on Davis's complaints on August 25, 2008, but Davis did not pursue a civil lawsuit.

Since returning from his suspension without pay in August 2007, Davis has been employed as a custodian with USD 500. Davis began applying for numerous positions within USD 500, including head custodian positions, in November 2008. Each building within USD 500 has a head custodian. When a vacancy for head custodian arises, the Buildings and Grounds department, led by Herbin, prepares a request for the Human Resources Department to fill the position. The Human Resources Department then posts the head custodian job vacancy internally for two weeks, during which any current custodian can apply for the position online. According to Vaughn, "[USD 500's] practice is not to hire from the outside for Head Custodian, " but to promote current custodians.[7] The Human Resources Department receives all of the internal job applications, reviews them, and forwards qualified applicants for the hiring manager's consideration. For head custodian positions, the hiring managers are Herbin and the school principal at the building with the vacancy. The principal, sometimes with Herbin's assistance, conducts interviews and selects the candidate to fill the head custodian vacancy. The Human Resources Department receives notification of the selection and extends the offer to the successful candidate. The School Board must approve of the selection, and does routinely approve the hires for head custodian vacancy. The Human Resources Department and Vaughn individually do not make promotion decisions within the Maintenance and Custodial Department. Vaughn has the authority to disapprove of a candidate selected for a position, but he has never disapproved a transfer or promotion recommendation submitted by Herbin.

Between November 24, 2008, and November 30, 2012, Davis applied for fourteen positions with USD 500. Many of these positions were head custodian vacancies. Herbin testified that for each head custodian vacancy, the building administrator or school principal made the hiring decision. Davis contends that Herbin was party to those decisions because USD 500's interrogatories indicated that the School Board's final decision to hire the successful candidates was made upon the recommendations of the building administrator or principal, Herbin, and the superintendent. Davis also takes issue with the fact that he did not receive notice that he had been "referred for consideration" for two of the head custodian positions that he applied for.

In November 2010, Davis filed a second EEOC charge alleging that USD 500 had retaliated against him by denying him overtime pay and a promotion to head custodian. The EEOC dismissed the charge. Davis filed a third EEOC charge in October 2011, in which Davis again alleged unlawful denial of a promotion due to retaliation, race, color, and age. The Human Resources Department provided information for USD 500's response to Davis's third charge, which was dismissed by the EEOC. After receiving his third right to sue letter, Davis initiated this lawsuit on January 6, 2012.

Davis asserts two claims against USD 500 and one against Vaughn. One of Davis's claims against USD 500 alleges that the district failed to timely pay overtime compensation in violation of the FLSA. USD 500 compensates employees for hours worked in a week above 40 hours at a rate of one and one-half times the employees' regular wages. Custodians must receive approval for overtime from Herbin or the building administrator or principal at their work location. All USD 500 employees are required to report overtime work on a time sheet. If that time sheet is turned in no later than two days after the end of a pay period, the overtime compensation will be included in the next regularly scheduled paycheck. If, however, the time sheet is turned in more than two days after the conclusion of the pay period, the employee's overtime will not be processed and paid until the following pay period. Overtime compensation should be paid 15 to 30 days after submission of the time sheet.

In January 2010, Davis sent a complaint to the Human Resources Department, alleging harassment and retaliation and stating that Davis had not been paid overtime compensation due to him. Vaughn investigated the complaint and sent Davis a letter that acknowledge the contents of Davis's complaint and informed Davis that no pay records had been discarded and no overtime compensation was owed. Although discovery dealt with overtime payments made in January 2010, Davis now claims that he was not compensated for overtime that he submitted on January 9, 2012, until February 15, 2012, and that overtime submitted on October 12, 2012, was not compensated until November 30, 2012.

Davis's second claim against USD 500 alleges that the district unlawfully retaliated against Davis for opposing racial discrimination by failing to promote Davis to head custodian, in violation of Title VII and 42 U.S.C. § 1981. Finally, Davis alleges that Vaughn retaliated against Davis in violation of § 1981. Both USD 500 and Vaughn move for summary judgment on all claims. Because no reasonable jury ...

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