United States District Court, D. Kansas
BYRON A. REDMOND, Plaintiff,
THE MIRROR, INC., Defendant.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
brings this action against his former employer, alleging that
defendant subjected him to disparate treatment, discharged
him from his employment, and retaliated against him,
violating Title VII (42 U.S.C. § 2000e-2), 42 U.S.C.
§ 1981, and the Kansas Acts Against Discrimination (Kan.
Stat. Ann. § 44-1001, et seq.). Defendant has
filed a Motion for Summary Judgment. Doc. 31. Plaintiff has
responded to the Motion. Doc. 40. And, defendant has filed a
Reply. Doc. 45. After considering the parties' arguments,
the court grants defendant's motion in part and denies it
in part. The court explains this ruling, below.
following facts govern this motion and are uncontroverted or,
where controverted, are recited in the light most favorable
to plaintiff, the party opposing summary judgment. Scott
v. Harris, 550 U.S. 372, 378 (2007). Defendant is a
non-profit residential reentry facility that contracts with
the federal Bureau of Prisons (“BOP”) to house
and provide re-entry services to federal offender inmates as
they make the transition back into society after
incarceration. Defendant hired plaintiff on August 13, 2013,
to work as a part-time Program Technician at its location in
Topeka, Kansas. The job duties of a Program Technician
involve daily monitoring of federal offender clients and
addressing their needs. Part-time Program Technicians work a
maximum of 20 to 25 hours a week on a varying schedule.
Handley (Director of Federal Programs Northern Region) hired
plaintiff and supervised him during his employment with
defendant. When Ms. Handley hired plaintiff, she knew that he
intended to work full-time at another facility. For this
reason, she hired plaintiff as a part-time employee. Ms.
Handley also testified that she thought plaintiff's past
experience at other residential facilities made him a
desirable candidate for the Program Technician position.
August 12, 2013, plaintiff signed the Program Technician job
description and defendant's personnel policy
acknowledgment page. The policies that plaintiff acknowledged
included the following:
Group 2 - The examples provided below should
result in a written warning (a single somewhat more serious
violation or a repeated violation or failure by the employee
to affect a positive change on previously cited performance
problems) and/or termination (if the seriousness of the
violation warrants it or frequency of the violation adversely
affects the quality of service provided by the agency).
Leaving Mirror work location without permission
during working hours. Leaving the Mirror work site
for personal reasons during regular working hours without
notice to or permission from your immediate supervisor (or
the program director or a Mirror administrator).
Disregard for safety rules. Neglect or
carelessness in observance of established safety rules,
resulting in exposure of other employees or clients to
possible injury or damage, or resulting in actual injury to
the employee or to other employees or clients or damage to
Mirror property. Examples of this might include the
following: malicious mischief horseplay, other undesirable
conduct or tampering in any way with safety equipment.
Insubordination. Insubordination is the
refusal by an employee to perform work assigned to them or to
comply with the written or verbal instructions of their
supervisor (or an administrator).
Use of abusive or threatening, harassing language
against clients or other staff persons.
Sleeping or dozing during working hours.
Breaching federal or state confidentiality
regulations (inclusive of CFR-42 or CFR-45).
Unsatisfactory work performance as related to AAPS
Licensure Standards, BOP or other contract
requirements. (Employees that continue to fail to
meet the required paperwork and proper procedure demands set
forth in AAPS Licensure Standards, the BOP or other contracts
may need to be disciplined and assisted with a corrective
action plan to correct their inaccuracies in documentation).
Doc. 34-2 at 35. When defendant hired plaintiff, it placed
him on an initial six-month probationary period. Plaintiff
completed the probationary period.
employs one Program Technician in the “float”
position for each of its shifts. The “float”
position exists to assist other workers during the course of
a shift. Defendant expect floaters to work independently and
with less supervision than other staff. Program Technicians
assigned to work the “float” position do not
receive additional pay for their work in this position.
2014, Ms. Handley changed the work schedule so that full-time
employee Kyle Weishaar was working in the “float”
position during the 1:00 p.m. to 9:00 p.m. shift. Ms. Handley
explained that she made this change to ensure that Mr.
Weishaar, as a full-time employee with no other employment,
was assigned 40 hours a week. Indeed, Ms. Handley is required
to schedule defendant's full-time employees to work 40
hours per week.
7, 2014, plaintiff sent an email to Ms. Handley, objecting to
the schedule change. His email recited:
Mary, I feel it is very unfair to change the schedule without
our knowledge! You are inconveniencing 3 people to appease 1
person, who if I'm not mistaken requested to work extra
hours, which is overtime. I perceive this as Blatant
Favoritism and the previous schedule should be honored.
Approximately 4 months ago I recall you stating that you
wanted techs who were mainly allowed the privilege to float
to work the building to gain experience. I feel it is
important that the techs who work the buildings the majority
of the time be given the opportunity to float as a reprieve
break of not having the stress and responsibility of that
task each work shift. As you know from working as a tech this
past week it can become quite hectic at times. It will be
beneficial to the morale and well being of all tech employees
if they are allowed to float and all future schedules should
reflect this change when Mr. King's employment begins and
next month. Thanks to your attention concerning this manner.
Doc. 33-2 at 27.
7, 2014, Ms. Handley responded to plaintiff's email
complaint. She told plaintiff that she was required to
schedule full-time employees to work 40 hours a week. She
also told plaintiff that she gave preference to employees
whose primary employment was with defendant when she made the
schedule. Ms. Handley also testified that sometimes, but not
always, seniority plays a role in her scheduling decisions.
plaintiff's employment with defendant, he also held
another full-time job with another employer. Also, during
plaintiff's employment, defendant employed two part-time
Program Technicians-Ronnie Arnold and Leroy Wycoff. Mr.
Arnold and Mr. Wycoff both are African-American, and they
also held full-time jobs with other employers during their
part-time employment with defendant. Program Technician Leroy
Wycoff did not consider the “float position” a
desirable one. But, plaintiff testified that he wanted to
work the float position because he thought it would allow him
to go from working part-time to full-time. Plaintiff
previously had told Ms. Handley that he wanted to work
full-time for defendant.
about Plaintiff's Work Performance
12, 2014, two of defendant's employees, Britney Champagne
and Kyle Weishaar, complained to Ms. Handley about
plaintiff's behavior and job performance. Ms. Champagne
and Mr. Weishaar later sent an email to Ms. Handley,
memorializing their complaints about plaintiff's
19, 2014, Program Technician Joe Scherr sent an email to Ms.
Handley. The email alleged that Mr. Scherr had caught
plaintiff certifying that an inmate had completed his chores
when he had not done so. Mr. Scherr told Ms. Handley that
plaintiff was not checking to ensure that inmates were
Disciplines Plaintiff for Falsifying Residential Headcount
requires Program Technicians to conduct routine headcounts of
residents. This requires the Program Technician to record on
the headcount sheets that he or she has seen each resident in
each hour. Plaintiff concedes that his job duties required
him to conduct a complete and accurate headcount of all
residents at least every hour.
August 31, 2014, plaintiff was assigned to work Building 4
from 7:30 a.m. to 3:30 p.m. Plaintiff recorded on his
headcount sheet that resident T.B. was present in the
facility at 11:40 a.m., 12:45 p.m., 1:40 p.m., 2:45 p.m., and
3:15 p.m. Program Technician Robert Toeller relieved
plaintiff from his shift at 3:30 p.m. Mr. Toeller was
scheduled to work Building 4 from 3:30 p.m. to 11:30 p.m.
When Mr. Toeller conducted a routine headcount around 5:00
p.m., he could not find resident T.B. Mr. Toeller tried to
find the resident's location using defendant's GPS
monitoring system, and he determined that T.B. had cut or