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Redmond v. Mirror, Inc.

United States District Court, D. Kansas

September 5, 2017

BYRON A. REDMOND, Plaintiff,
THE MIRROR, INC., Defendant.


          Daniel D. Crabtree United States District Judge.

         Plaintiff 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.

         I. Facts

         The 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.

         Mary 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.

         On 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.

         The “Float” Position

         Defendant 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.

         In June 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.

         On June 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. Byron Redmond.

Doc. 33-2 at 27.[1]

         On June 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.

         Throughout 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.[2] Plaintiff previously had told Ms. Handley that he wanted to work full-time for defendant.

         Complaints about Plaintiff's Work Performance

         On June 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 performance.

         On June 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 completing chores.

         Defendant Disciplines Plaintiff for Falsifying Residential Headcount Sheets

         Defendant 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.

         On 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 removed ...

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