United States District Court, D. Kansas
MEMORANDUM & ORDER
JOHN W. LUNGSTRUM, District Judge.
Plaintiff Phillip Hayes filed this lawsuit against his former employer asserting claims of racial discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981; and 42 U.S.C. § 1983. This matter is presently before the court on defendant's motion for summary judgment on all claims (doc. 85). As explained below, the motion is granted.
The following facts are uncontroverted, stipulated in the pretrial order, or related in the light most favorable to plaintiff as the nonmoving party. Defendant Unified Government of Wyandotte County/Kansas City, Kansas is a municipality organized and existing under the laws of the state of Kansas. Plaintiff Phillip Hayes, an African-American male, began his employment with defendant in February 2004 as a Laborer Water Serviceman within the Water Operations Division of the Board of Public Utilities (BPU). Plaintiff ultimately advanced to the position of Lead Person. The BPU, one of defendant's administrative agencies, is a municipally-owned utility which supplies electricity and drinking water to the residents of Kansas City, Kansas.
During his employment with BPU, plaintiff was permitted to perform side jobs outside of his BPU working hours and plaintiff, as "Hayes Plumbing, " performed private contract plumbing work for BPU customers. Relevant to this case, plaintiff, on September 24, 2011, reconnected water service from the main water line to a BPU customer's residence in Kansas City, Kansas. This work was performed by plaintiff as Hayes Plumbing and not as a BPU employee. The materials that plaintiff supplied to reconnect the customer's water service included a meter yoke, copper piping and a white plastic barrel.
When water service is connected in Kansas City, Kansas, it must be inspected by BPU employees prior to the BPU restoring water service. Toward that end, plaintiff, after reconnecting water service on September 24, 2011, called the BPU to have his work inspected. When a BPU employee arrived to inspect the work, the employee realized that plaintiff had not obtained the necessary permit to perform the work and that the permit had not been obtained until September 26, 2011, after the work was performed. Moreover, the permit was obtained by Dove Construction rather than by plaintiff.
When he learned that plaintiff did not obtain a permit for the work, Steve Green, BPU's director of Water Distribution, asked Karen Jones, a supervisor in the Water Distribution Department, to inspect the work and to take pictures of the work. After reviewing the photographs, Mr. Green observed that the materials used by plaintiff for the work were the same materials used by the BPU at that time, including a "Mueller" branded meter yoke. At that point, Mr. Green asked a BPU employee responsible for building security to determine whether any surveillance or records from the BPU facility where plaintiff worked showed any activity by plaintiff on September 24, 2011. Computer logs obtained by that employee indicated that plaintiff entered the BPU facility through a side door on September 24, 2011 despite the fact that plaintiff was not scheduled to work that day for BPU and in fact did not perform work at BPU that day.
Mr. Green reviewed video surveillance of the facility for September 24, 2011 and observed plaintiff accessing his work truck and removing a white Tyvek suit from the truck. According to Mr. Green's affidavit, Mr. Green believes, based on the manner in which plaintiff was carrying the Tyvek suit, that plaintiff was using the suit to conceal additional items that he removed from the truck and that those items appeared to be wrapped in the suit. Mr. Green avers that, based on his knowledge concerning the shape and size of a meter yoke, he believed that plaintiff was concealing a meter yoke underneath the Tyvek suit. Mr. Green further avers that Mueller meter yokes were stored on plaintiff's work truck.
At that point, Mr. Green met with plaintiff to inquire about the work he had performed on September 24, 2011. During that meeting, plaintiff advised Mr. Green that he had purchased the material he used for the work at KC Winnelson, a plumbing hardware store located in Kansas City, Kansas. Mr. Green asked plaintiff to provide receipts for his purchases, but he did not do so. Mr. Green avers that, based on his prior experience working with KC Winnelson, he knew that KC Winnelson did not sell Mueller branded products. Nonetheless, he contacted KC Winnelson to inquire whether they had sold any material, including a meter yoke, to plaintiff or to Dove Construction. KC Winnelson advised Mr. Green that it had not sold any material to plaintiff or Dove Construction. Mr. Green avers that he also contacted Mainline Supply, another plumbing hardware store located in Kansas City, Kansas, because Mainline Supply was the only local store that he knew that stocked and sold Mueller parts. Mainline Supply advised Mr. Green that they had not supplied any Mueller meter yokes to plaintiff or to Dove Construction. Mr. Green then had a second meeting with plaintiff. At that meeting, plaintiff stated that the BPU customer who resided at the home where he performed the work had provided the materials that plaintiff used in the water service reconnection. Mr. Green then followed up with the BPU customer, who advised Mr. Green that she did not provide the materials and that she was invoiced by plaintiff for the materials. It is undisputed that the BPU customer paid plaintiff $1000.00 for the work he performed at the residence.
Mr. Green avers that, based on the sum of the information he gathered during his investigation, he determined that plaintiff had stolen a Mueller meter yoke, concealed it with the Tyvek suit, and then used that meter yoke to renew water service for the outside job he performed. As a result, Mr. Green made the decision to terminate plaintiff's employment for violating Rule 17 of the BPU employee handbook, which provides that an employee who commits theft of BPU property may be terminated for a first offense. Plaintiff's employment was terminated on October 6, 2011.
As part of his lawsuit, plaintiff asserts that his employment was terminated in retaliation for a prior complaint of racial discrimination lodged by plaintiff concerning a retirement party held at BPU on October 30, 2008-nearly three years prior to plaintiff's termination. At that retirement party, a Caucasian BPU employee used a Tyvek suit to dress up as a member of the Ku Klux Klan. BPU's Director of Human Resources avers that the employee was disciplined with a one-week suspension; a one-year probationary period; and mandatory sensitivity training. Plaintiff testified that he complained to Mr. Green about the incident immediately following the party. Additional facts will be provided as they relate to the specific arguments raised by the parties in their submissions.
II. Summary Judgment Standard
"Summary judgment is appropriate if the pleadings, depositions, other discovery materials, and affidavits demonstrate the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1136, 1143 (10th Cir. 2013) (quotation omitted); see Fed.R.Civ.P. 56(a). A factual issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Water Pik, Inc., 726 F.3d at 1143 (quotation omitted). "The nonmoving party is entitled to all reasonable inferences from the record; but if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the ...