MEMORANDUM AND ORDER
Richard D. Rogers United States District Judge
In this action plaintiff alleges that she lost a job with the City of Topeka and was not rehired to other positions in violation of: Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Kansas Act Against Discrimination (“KAAD”), K.S.A. 44-1001 et seq.; and 42 U.S.C. § 1983. Plaintiff alleges that defendant City of Topeka: discriminated against her on the basis of sex; retaliated against her for engaging in protected opposition to alleged discrimination; made hiring decisions which had an illegal disparate impact against women; and denied plaintiff placement on a reemployment list in violation of her due process rights. This case is now before the court upon defendant’s motion for summary judgment. The court finds that the motion should be granted largely because plaintiff’s job was permanently eliminated for budgetary reasons and plaintiff was not eligible for other employment in which she expressed interest or for placement on a reemployment list.
I. SUMMARY JUDGMENT STANDARDS
Summary judgment is warranted if the materials on record show that there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” FED.CIV.P. 56(a). The court views “all of the facts in the light most favorable to the non-movant and reasonable inferences from the record must be drawn in favor of the non-moving party.” Piercy v. Maketa, 480 F.3d 1192, 1197 (10th Cir. 2007). From this viewpoint, the court attempts to determine whether a reasonable jury could return a verdict in favor of the non-moving party. Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). “While we view the record in the light most favorable to the non-moving party, that party must still identify sufficient evidence requiring submission to the jury to survive summary judgment.” Piercy, 480 F.3d at 1197. In other words, the court may consider evidence produced by the moving party as well as the absence of admissible evidence in favor of an essential element of the non-moving party’s claim. Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000). “If the evidence [in support of a claim] is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250 (1986)(interior citations omitted). “[P]urely conclusory allegations of discrimination” which are devoid of “concrete particulars” are not sufficient to avoid summary judgment. Pucino v. Verizon Wireless Communications, Inc., 618 F.3d 112, 119 (2d Cir. 2010)(interior quotations omitted); see also, Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998)(non-moving party must set forth specific facts admissible in evidence from which a rational jury could find for non-movant). “Unsubstantiated allegations carry no probative weight . . . evidence, including testimony, must be based on more than mere speculation, conjecture, or surmise.” Bones, 366 F.3d at 875.
II. UNCONTROVERTED FACTS
Plaintiff began employment with the City of Topeka in the Topeka Fire Department in 1985. During the course of her career with the Fire Department she progressed through fire fighter, fire inspector and training officer positions. In January 2004, she became Chief of Administration. This was a management position. In September 2004, she became Deputy Chief of Support Services (DCSS). At that time, the Department also had a Deputy Chief of Operations.
In 2009, plaintiff made application for the Fire Chief position. In August 2009, plaintiff was informed that she was not selected for that post and that she was being moved to “performance management” where she would be supervised by Dennis Taylor, who worked outside of the Fire Department. Taylor testified in his deposition that his title at the time was Performance Management Coordinator and Director of Labor Relations. Doc. No. 147-7, p. 6. Plaintiff was to assist with strategic planning as a “Management Analyst.” However, she continued to be paid from the Fire Department budget. A significant part of plaintiff’s job was to work on standard operating guidelines for the Fire Department. In addition, she was to work on workforce development training. Plaintiff was concerned about losing her job. When she questioned Taylor about this around November 2009, he told her that she need not be worried and he showed her the budget book which contained her position. At this time, most of the nation was suffering the effects of what has been called the Great Recession.
On November 3, 2009, the City Manager of Topeka, Norton Bonaparte, sent city employees an email informing them that sales tax revenues were $1 million less than budgeted and that cuts would have to be made in the 2009 budget and budget expectations for 2010. On January 29, 2010, Bonaparte sent another email to all city employees stating that to meet the constraints of the 2010 budget some currently filled positions may be eliminated in addition to some currently vacant positions. At that point in time, the city was spending more than its revenues.
Bonaparte, Taylor, Jacque Russell (the City Human Resources Director) and the finance director worked together on recommendations for reductions in force. Taylor wrote a memorandum for Bonaparte which stated that the 2011 budget would have to provide for $5, 100, 000 in lower labor costs than 2009 and “will require the elimination of more positions than required by the 2010 Adopted Budget.” Taylor consulted with Bonaparte regarding possible reductions in force in the Fire Department. Taylor recommended the elimination of plaintiff’s DCSS position to help meet cost savings goals while terminating as few positions as possible. Bonaparte decided to eliminate plaintiff’s position as DCSS. Five other filled positions, four of which were management positions (like plaintiff’s) were also eliminated. Male and female employees occupied these jobs. Doc. No. 148-9. Taylor stated that the value or “criticality” of each position was considered to determine what positions could be eliminated with as little impact to the City as possible.
On February 11, 2010, plaintiff met with Jacque Russell and Taylor and was informed that her job had been eliminated and her employment was being terminated. Plaintiff has testified in a deposition that during this meeting that the term “laid off” was used by someone to describe the job action. Doc. No. 147-8 at p. 125 of the deposition. She also testified that the terms “eliminated”, “terminated” and “fired” were used. Id. at p. 105 of the deposition. It is undisputed that at the meeting, plaintiff was given a letter signed by Russell which stated:
Due to the continued economic downturn and the salary reductions in the 2010 adopted budget, I regret to inform you that the City of Topeka has to make the difficult decision of permanently eliminating certain positions. This is official notice that due to a permanent reduction in force your position as Deputy Fire Chief is being eliminated effective February 11, 2010.
Doc. No. 147-38. The letter then made reference to the City Personnel Code Article VIII, Section 2 and its provisions for severance pay. Id.
The termination form plaintiff later received from the City listed the “reason/code for separation” as “Layoff/Budget.” The City Personnel Code states with regard to “Short Term Reduction in Force: Lay Offs” in Article VIII, Section 1:
A lay off is a temporary reduction in the work force due to a shortage of funds, lack of work, abolishment of a position or other material change in duties or organization. It differs from other forms of separation in that there is an anticipated reinstatement of the employee as soon as the conditions which necessitated the lay off are ameliorated.
The City Personnel Code also provides in Article VIII, Section 1, that employees laid off shall be placed on a reemployment eligibility list and given first consideration when a vacancy occurs in the same or similar position the employee last held. But, under Article VIII, Section 2, employees who are eligible for recall are not eligible for severance pay. Plaintiff received substantial severance pay (approximately $80, 000) shortly after her job was eliminated.
Bonaparte described the job reductions in a letter to the Mayor and City Council in July 2010 as follows:
During 2010, it became imperative that we resize the organization to fit the “new normal” of the current economic situation. We have done so, as indicated above, through short-term tactical changes in the way we do business, cutting management positions by more than 14%, and reducing the overall workforce by more than 11% through a combination of position elimination and holding positions open for the next 18 months.
Plaintiff’s job duties as DCSS were divided up and given to other employees. Some narrative statements in city budget documents continued to refer to the DCSS position. But, the DCSS position was shown on a list of abolished positions published by the City and later personnel schedules did not list the DCSS position.
After losing her job as DCSS in February 2010, plaintiff sent a letter to Jacque Russell in October 2010 expressing interest in a Deputy Fire Chief position which was formally posted in January 2011. She also included her resume. She did not fill out a formal employment application, but she asked to be notified if there was anything else she needed to do. Specifically, plaintiff’s letter stated: “Please keep this request on file and notify me of any currently open or upcoming open management positions within the Topeka Fire Department.” The City did not make any response to this letter or notify plaintiff of open positions.
The posting for the Deputy Fire Chief position stated that it was open to Fire Department employees only. Plaintiff was not a Fire Department employee. The minimum qualifications for the position included eight years of chief officer/company officer-level experience as Captain, Battalion Chief and/or Shift Commander. Plaintiff never held the position of Captain, Battalion Chief or Shift Commander. Plaintiff was not hired for the spot.
Applications for an open position as Training Officer were accepted until June 24, 2011. After the deadline, on July 20, 2011, plaintiff wrote a letter expressing interest in the position and included her resume. She did not submit a formal employment application. The position was open only to Fire Department employees. Plaintiff was ...