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Brainard v. City of Topeka

United States District Court, District of Kansas

February 14, 2014



Richard D. Rogers United States District Judge

Plaintiff brings this action against the City of Topeka, alleging that she was discriminated against because of her age and sex and retaliated against because she made claims of protected activity when she was terminated from her employment with the City. She asserts claims under the Age Discrimination in Employment Act (ADEA) and Title VII of the Civil Rights Act of 1964 (Title VII). This matter is presently before the court upon defendant's motion for summary judgment. Having carefully reviewed the arguments of the parties, the court is now prepared to rule.


Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The requirement of a genuine issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Essentially, the inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Id. at 251-52.

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. See Anderson, 477 U.S. at 256. A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of [its] pleading, but must set forth specific facts showing that there is a genuine issue for trial. Id. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. See id. The court must consider the record in the light most favorable to the nonmoving party. See Bee v. Greaves, 744 F.2d 1387, 1396 (10thCir. 1984), cert. denied, 469 U.S. 1214 (1985). The court notes that summary judgment is not a “disfavored procedural shortcut;” rather, it is an important procedure Adesigned to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).


Many of the facts in this case are not disputed. The following facts are either not controverted or are viewed in the light most favorable to the plaintiff. The court will address other facts as we consider the issues raised by the parties.

Plaintiff is a female over the age of forty. She began her employment with the City of Topeka in May 1981. She was terminated from her position on February 11, 2010. She held the position of Technical Administrative Manager in the Information Technology (IT) Department at the time of her termination.

Mark Biswell was employed in the IT Department as deputy director in 2001. He was appointed interim director in 2007, and was named Director of IT in February 2008.

In March 2008, Biswell proposed a plan for restructuring the IT Department. The restructuring affected plaintiffs position, changing it from supervision to administration. Plaintiffs pay did not change when her job duties changed.

In 2008, plaintiff and a male employee, Bill Stephens, were managers in the IT department. Plaintiff had the same job classification as Stephens. Stephens' job duties, however, were very different from plaintiffs. Plaintiff referred to Stephens as her Aequal counterpart." Stephens retired in September 2009. Stephens-position was not filled after he left.

On August 18, 2009, the Topeka City Council Budget Committee voted to remove $100, 000.00 from the IT Department's budget. Prior to the vote, Biswell told the Budget Committee that a cut of this amount would force him to layoff an employee in the IT Department. On August 21, 2009, Biswell met with the City's Human Resources (HR) Director and the City Manager to discuss the loss of funding and what options were available. Biswell was instructed to prepare a letter to his staff explaining the budget problems and that there would be a layoff in the IT Department. That letter was shared with the IT staff on August 28, 2009, and it explained what procedures would be followed to determine what position would be eliminated.

In 2010, the City of Topeka instituted a reduction in force (RIF). Prior to the RIF, on January 13, 2010, Biswell met with City officials to discuss the process for the City-wide RIF that included the IT Department.

Plaintiff was terminated on February 11, 2010. Plaintiff's position was eliminated. No managers were hired or retained in the IT Department after the elimination of plaintiff's position and her termination. Four other positions were also eliminated: Computer Operator, User System Consultant, Electronics Communications Manager and Application Systems Administrative Manager. All of these positions were vacant at the time. All three IT manager positions were eliminated.

Plaintiff's major job duties as Technical Administrative Manager were payroll and invoicing. No other position in IT did her job duties. Payroll became centralized in late 2009 to 2010. The job duties being performed by plaintiff were moved to other departments and done by several existing employees: Linda Hardesty in Contracts and Procurement (purchase card reconciliation); Linda Hardesty or Terri Fincham in Contracts and Procurement (purchase requisition entry); Becky Burks in Payroll (payroll functions); Kim Johnson or Cheryl Atherly in Finance (invoice/PO matching). The other duty or duties she performed are now done by Biswell.

In carrying out the RIF, the City eliminated vacant positions first, then filled positions. Management employees were not allowed to “bump” other employees. Seniority was not a consideration for management-level employees in determining which positions were eliminated. Two criteria were used to identify which positions would be eliminated: minimizing the impact of services to the citizens and job function/reorganization.

Prior to plaintiff's termination, Biswell learned of a vacant court administrator position and inquired whether that was a position for ...

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