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Dinkens v. New Dawn Enterprises, LLC

United States District Court, D. Kansas

March 26, 2014



RICHARD D. ROGERS, District Judge.

This case contains a claim of retaliation under 42 U.S.C. ยง 1981 and a state-law claim for tortious interference with an expected business relationship. Plaintiff claims that defendants retaliated against plaintiff for filing an administrative complaint alleging discrimination by warning a prospective employer not to hire plaintiff. Plaintiff further claims that this caused the prospective employer to withdraw a job offer that plaintiff had accepted. This case is now before the court upon the motion for summary judgment of defendants New Dawn Enterprises, L.L.C. d/b/a Creative Business Solutions and Kristina Dietrick. Doc. No. 41.


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).

"Once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in the complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.... These facts may be shown by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings by themselves." Southway v. Central Bank of Nigeria , 149 F.Supp.2d 1268, 1273 (D.Colo.2001), aff'd, 328 F.3d 1267 (10th Cir.2003).

"Summary judgment is... appropriate when the court concludes that no reasonable juror could find for the non-moving party based on the evidence presented in the motion and response." Southway , 149 F.Supp.2d at 1273. "The operative inquiry is whether, based on all documents submitted, reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict.... Unsupported allegations without any significant probative evidence tending to support the complaint' are insufficient... as are conclusory assertions that factual disputes exist." Id . (interior citations and quotations omitted). The evidence presented must be based on more than mere speculation, conjecture, or surmise to defeat a motion for summary judgment. Rice v. United States , 166 F.3d 1088, 1092 (10th Cir. 1999).


For the purposes of the summary judgment motion, the following facts shall be considered uncontroverted. In April 2012, plaintiff, who is African-American, applied by email for a job with the United Way of Greater Topeka. She submitted a resume that did not include her previous employment with Florence Crittenton Services of Topeka, Inc. or her current employment with St. Francis Hospital. Plaintiff had a job with Florence Crittenton until December 2010. She filed a charge of discrimination with the Kansas Human Rights Commission against Florence Crittenton on or about June 11, 2011.

Plaintiff was interviewed for a position with United Way by Miriam Krehbiel, the President and CEO, and Tom Stratton, the Vice President of Community Impact. During the interview, plaintiff did not mention her previous full-time employment with Florence Crittenton, although she did mention her position at that time with St. Francis Hospital. Both were entry-level positions, not related to plaintiff's professional development. Plaintiff was not asked during the interview whether there were any other employers not listed on her resume, nor was she asked at any time during the interview to relate her complete work history.

On May 1, 2012, Stratton extended an offer of employment at United Way to plaintiff. She accepted. A copy of the job offer was transmitted to Alisa Mezger-Crawford, an employee of defendant Creative Business Systems ("CBS"). CBS is a human resources consulting company which provided services to Florence Crittenton and United Way. Defendant Kristina Dietrick is the owner and President of CBS.

Back when plaintiff worked for Florence Crittenton, Dietrick participated in a meeting on December 4, 2010 with plaintiff and JoLana Pinon, the CEO of Florence Crittenton. The meeting concerned whether plaintiff would accept a schedule change. Plaintiff felt that she was being forced to change her schedule, which had been approved to accommodate her disability, while a white employee was allowed to retain a certain schedule. Plaintiff left the organization. Dietrick wrote after the meeting that plaintiff's resignation was being accepted by Florence Crittenton and that plaintiff was leaving in good standing. As mentioned previously, plaintiff filed a discrimination complaint with the Kansas Human Rights Commission against Florence Crittenton in June 2011. Dietrick was involved in responding to plaintiff's charge of discrimination and attending meetings with Pinon and Florence Crittenton's attorney regarding the charge. Dietrick received a copy of the right-to-sue letter which was sent from the EEOC to Florence Crittenton in February 2012. The letter initiated a 90-day period in which plaintiff could file suit against Florence Crittenton. Defendant Dietrick was concerned about this.

Tom Stratton notified Mezger-Crawford of United Way's employment offer to plaintiff because CBS provided new employee orientation and human resources training for United Way. At the same time, Stratton emailed plaintiff to ask when she could start and to inform plaintiff that she would meet with Mezger-Crawford or someone else to work out the details, such as filling out paperwork. United Way did not ask Mezger-Crawford or CBS to do a background check on plaintiff, although CBS did perform such work for United Way upon request.

On May 3, 2012, Mezger-Crawford forwarded Stratton's email regarding plaintiff's hiring to Dietrick commenting, "I just saw this... I had no idea this was someone they were contemplating hiring." About two hours later, Dietrick emailed Krehbiel, stating: "Please contact me as soon as possible." Krehbiel, who was out of town, asked if they could speak by phone. Dietrick responded that Krehbiel could call around the lunch hour and that Dietrick would step out of her lunch meeting to talk.

Krehbiel, Stratton and Dietrick spoke over the phone around noon on May 3, 2012. Dietrick stated that she was familiar with plaintiff, that there were "red flags" concerning plaintiff and that Dietrick was concerned that plaintiff wouldn't be a good fit for United Way. Krehbiel stated that they had checked with plaintiff's past employers. Dietrick asked that plaintiff's application be forwarded and was told that plaintiff was not required to complete an application, only submit a resume. So, Dietrick asked that plaintiff's resume be forwarded. Krehbiel forwarded plaintiff's resume to Dietrick during the late evening of May 3, 2012 and said that she wanted "to clear this up tomorrow if possible." Dietrick emailed back that: "We will clean this ...

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