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Bush v. City of Gardner

United States District Court, D. Kansas

December 1, 2017

Mary Beth Bush, Plaintiff,
City of Gardner, Defendant.


          John W. Lungstrum United States District Judge.

         Plaintiff filed this lawsuit against her former employer, the City of Gardner, Kansas, alleging that the City eliminated plaintiff's position on the basis of her age, race and/or in retaliation for plaintiff's engaging in protected activity in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq; 42 U.S.C. § 1981; and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. This matter is presently before the court on the City's motion for summary judgment (doc. 80). As will be explained, the motion is granted with respect to plaintiff's race discrimination claim and is otherwise denied.

         I. Facts

         The following facts are uncontroverted, stipulated in the pretrial order, or related in the light most favorable to plaintiff as the nonmoving party. The City of Gardner, Kansas is a municipal corporation governed by a five-member City Council presided over by a Mayor. Plaintiff Mary Beth Bush, a Caucasian female, began her employment with the City of Gardner in October 2006 when she was hired as the Human Resources Manager. The first several years of plaintiff's employment passed without incident.

         In July 2012, Cheryl Harrison-Lee, an African-American female, became the City Administrator. As the City Administrator, Ms. Harrison-Lee served as the chief administrative assistant to the Mayor and the administrative officer of the City's government. Ms. Harrison-Lee and plaintiff enjoyed a good working relationship at the start of Ms. Harrison-Lee's employment as the City Administrator. In January 2013, the City created a new position, Administrative Services Manager (ASM), which was responsible for managing Human Resources, Risk Management, Information Technology, Buildings and Maintenance, and the City Clerk. Plaintiff was promoted to the position and received a significant increase in salary. At that time, plaintiff was almost 55 years old. In April 2013, Chris Morrow became the Mayor of the City of Gardner. Ms. Harrison-Lee completed a 2013 performance evaluation for plaintiff indicating that plaintiff's performance as the ASM exceeded expectations.

         The City contends that Ms. Harrison-Lee, in 2014, began having concerns about plaintiff's performance and plaintiff's lack of a college degree. In June 2014, plaintiff and Ms. Harrison-Lee attended a comprehensive Human Resources conference in Florida. According to the City, Ms. Harrison-Lee realized during the conference that plaintiff did not have a sufficient understanding of current best practices in human resources and lacked the requisite education to succeed in the ASM role. The City asserts that Ms. Harrison-Lee knew by June 2014 that it would be difficult for the City to continue with plaintiff as the ASM and that Ms. Harrison-Lee decided to proceed towards eliminating the ASM position. Nonetheless, the 2015 budget, which was approved in August 2014, included funding for the ASM position. The budget also included funding for two new positions that would report to the ASM-a Network Administrator position and a Human Resources Supervisor position.

         In August 2014, the City received a notice from the United States Department of Labor (“DOL”) advising the City that it was going to conduct an audit to determine compliance with the Fair Labor Standards Act. The audit was conducted in response to a former employee's complaint to the DOL regarding unpaid overtime. The DOL determined that the City Clerk position had been misclassified and the City was required to pay overtime wages to the complaining party. The City contends that it was plaintiff's responsibility to ensure that the City Clerk position was correctly classified under the Fair Labor Standards Act, although the evidence reflects that the ultimate responsibility for classification of positions rested with the City Administrator. In any event, Ms. Harrison-Lee was displeased that plaintiff had not properly classified the City Clerk. During this same time frame, Ms. Harrison-Lee discovered that a current employee of the City did not have the education credentials that he had indicated on his resume when he applied for employment with the City. Plaintiff had failed to verify the employee's credentials and, apparently, never verified the credentials of any applicant. Plaintiff concedes that Ms. Harrison-Lee was “rightfully” upset with her over this issue.

         There is evidence that at some point between November 2014 and mid-January 2015, plaintiff began to fear that her employment as the ASM was at risk. She met with City Council President Kristina Harrison to express concerns that Ms. Harrison-Lee was removing job duties from her; that her working relationship with Ms. Harrison-Lee had changed in a negative way; and that Ms. Harrison-Lee was not communicating with plaintiff on a regular basis. Plaintiff began updating her resume. In November 2014, the City began recruiting applicants to fill the Human Resources Supervisor and Network Administrator positions.

         In early January 2015, the City hired a 49-year-old Caucasian male as the Network Administrator. After that hiring decision, plaintiff learned that the Network Administrator would not report to her as outlined in the budget but would instead report directly to Ms. Harrison-Lee. On January 15, 2015, the City conducted telephone interviews for the Human Resources Supervision position. During those interviews, plaintiff heard Ms. Harrison-Lee state that the current Human Resources staff did not know what they were doing. According to the City, Ms. Harrison-Lee was pleased with the quality of applicants for the Human Resources Supervisor position and, after the interviews, determined that the ASM position was no longer necessary and could be eliminated. The candidate ultimately hired by the City was a Caucasian male who was older than plaintiff.

         On Friday, January 23, 2015, Ms. Harrison-Lee, Mayor Morrow and Council President Kristina Harrison discussed the possibility of eliminating the ASM position in light of the newly hired Network Administrator and the available qualified candidates for the Human Resources Supervisor position. On Monday, January 26, 2015, plaintiff sent an email to Mayor Morrow and Council President Harrison with the subject line “Hostile Work Environment.” In her lengthy complaint, plaintiff stated that Ms. Harrison-Lee had created a hostile work environment with respect to her treatment of plaintiff and City staff. Plaintiff expressly stated that the creation of a hostile work environment is prohibited under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967. Although the remainder of plaintiff's complaint is devoid of any references to age-based or race-based conduct, plaintiff described Ms. Harrison-Lee's conduct as “rude, ridiculing and demeaning” and stated that Ms. Harrison-Lee created an environment of “fear and intimidation.”

         Upon receipt of plaintiff's email, Mayor Morrow hired an investigator, Shelly Freeman, to investigate plaintiff's complaint. Ms. Freeman interviewed plaintiff, Ms. Harrison-Lee, and several other City employees before ultimately determining that no hostile work environment existed. On March 2, 2015, Ms. Freeman orally presented her findings to the City Council. On March 6, 2015, Ms. Freeman and the Mayor met with plaintiff and Ms. Harrison-Lee (separately) to explain the findings of the investigation. On March 16, 2015, Ms. Harrison-Lee recommended to the City Council that the ASM position be eliminated. The City Council voted unanimously to eliminate the ASM position. Plaintiff was offered a newly created Special Events Coordinator position at a significantly reduced salary and she declined that offer. At the time her employment ended, plaintiff was 57 years old.

         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 movant points out a lack of evidence to support an essential element of that claim and the nonmovant cannot identify specific facts that would create a genuine issue.” Id. at 1143-44.

         III. Age ...

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