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Nguyen v. Unified Government of Wyandotte County

United States District Court, D. Kansas

January 29, 2018

HOANG NGUYEN, Plaintiff,



         Plaintiff Hoang Nguyen brings this action against his employer the Unified Government of Wyandotte County/Kansas City, Kansas (“Defendant”), alleging discrimination on the basis of race and national origin and retaliatory non-promotion under Title VII and 42 U.S.C. § 1981. This matter is before the Court on the parties' cross motions for summary judgment (Docs. 42 and 44). The motions are fully briefed and the Court is prepared to rule. For the reasons stated below, the Court denies Plaintiff's motion for summary judgment and partially grants Defendant's motion for summary judgment.

         I. Summary Judgment Standard

         Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.[1] In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.[2] “There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party.”[3] A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.”[4] An issue of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.”[5]

         To prevail on a motion for summary judgment on a claim upon which the moving party also bears the burden of proof at trial, the moving party must demonstrate “no reasonable trier of fact could find other than for the moving party.”[6] The facts “must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.”[7] Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence.[8] The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.[9] “Where, as here, the parties file cross-motions for summary judgment, we are entitled to assume that no evidence needs to be considered other than that filed by the parties, but summary judgment is nevertheless inappropriate if disputes remain as to material facts.”[10] The Court considers cross-motions separately: the denial of one does not require the grant of the other.[11] “To the extent the cross-motions overlap, however, the Court may address the legal arguments together.”[12]

         Finally, summary judgment is not a “disfavored procedural shortcut;” on the contrary, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.”[13] In responding to a motion for summary judgment, “a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.”[14]

         II. Uncontroverted Facts

         Defendant is a consolidated government of a county and a city of the first class with all the powers, functions, and duties afforded to counties and cities of the first class under the Kansas Constitution and statutes. Defendant is also a Kansas municipal corporation organized and existing under the laws of the State of Kansas. The Kansas City Board of Public Utilities (“BPU”) is an administrative agency of Defendant. The BPU is a public utility that provides potable water and electrical services.

         On or about May 31, 2003, Defendant hired Plaintiff, an Asian-American male of Vietnamese origin, as a Mechanical Engineer to work at its Quindaro Plant. In the fall of 2010, the position of Director of Electric Production Operations was posted available following the retirement of John Fuentes. The Director position required “a B.S. in Mechanical Engineering from an accredited institution and a minimum of 5 years related work in coal fired steam-electric generation; or, equivalent professional experience consisting of a minimum of 10 years of progressive operating experience, 4 years management/supervision experience with additional post high school education preferred.”[15] Plaintiff applied for the position.

         At the time, Don Gray, the General Manager of BPU, and Darrell Dorsey, then Manager of Electric Production and Supply, disagreed regarding whether the vacant position should be filled with an engineer or someone with significant plant operations experience. Gray preferred someone with operational experience, while Dorsey wanted to fill the position with an engineer. Gray delegated the task of selecting a new director to Dorsey, the manager of that department.

         After going through the selection process, Dorsey recommended Plaintiff for the position over Patrick Knefel, a BPU employee who did not possess an engineering degree but had over 30 years of operations experience. Gray accepted Dorsey's recommendation and awarded the position to Plaintiff, effective January 1, 2011.

         On February 2, 2012, prior to Dorsey's retirement, Gray issued a memorandum to BPU employees and the Board advising that Dorsey's manager position would become two positions: 1) Manager of Electric Production and 2) Manager of Electric Supply.[16] At the same time, Gray appointed Dong Quach as Acting Manager of Electric Production and Bob Adams as Acting Manager of Supply. On or about February 28, 2012, Dorsey retired and Quach became Plaintiff's supervisor.

         On March 15, 2012, Plaintiff received a positive evaluation.[17]

         On October 3, 2012, Gray and Quach met with Plaintiff. Gray informed Plaintiff that he was being removed from the position of Director of Electric Production Operations due to concerns over morale and reports of one of Plaintiff's shift supervisors being under the influence of alcohol while at work.[18] Plaintiff was demoted to Mechanical Engineer, but his salary remained at the director level through the end of the year.

         Gray appointed Knefel as Acting Director of Electric Production Operations in the meantime. Gray tasked Quach with finding a new Director and working to elevate Plaintiff to a higher engineering position. On or about January 3, 2013, after Quach created a new Senior Engineering position, Plaintiff was promoted to Senior Engineer.[19]

         On March 15, 2013, Plaintiff submitted a written internal complaint to Defendant's Human Resources Division, stating:

I was demoted from Director Electric Production Operations to Mechanical Engineer by Mr. Don Gray at 9:30 a.m. October 3rd, 2012 in his conference room without any reasons. He promoted Patrick Knefel to take my job.
* * *
I believed I have been discriminated, unfaired (sic) treated, violated (sic) my EEO. I have worked hard on all my assignments. However, I am suffering by this unfair treatment and discrimination since.[20]

         Plaintiff requested the job posting for the Director position be taken down while the situation remained unresolved.[21] He also requested reinstatement as Director of Electric Production Operations.[22]

         That same day, Ashley Culp, Defendant's Employment and Compliance Coordinator, sent Plaintiff a memorandum acknowledging receipt of his complaint and informed him that Human Resources (“HR”) would “conduct[] a thorough investigation” of his complaint.[23] On April 12, 2013, Culp sent Plaintiff a memorandum informing him that “[b]ased upon the information this office has received, there is no evidence of discrimination, unfair treatment, or violation of EEO . . . .”[24]

         On October 31, 2013, following the selection process, Dong Quach recommended Knefel for the position of Director of Electric Production Operations. Gray approved Quach's recommendation and promoted Knefel to Director of Electric Production Operations.

         Knefel retired on March 1, 2014, which led to the posting of his position in Job Bid No. 4112. The minimum requirements for the Director position were:

a B.S. in [e]ither Electrical or Mechanical Engineering from an accredited institution and a minimum of 5 years related work in coal fired steam-electric generation; or, equivalent professional experience consisting of a minimum of 10 years of progressive operating experience, 4 years management/supervision experience with additional post high school education preferred. The incumbent must have extensive knowledge and understanding of power plant theory and operating principles and good understanding of all aspects of power plant maintenance, engineering and environmental. The incumbent must have the ability to simultaneously manage a variety of issues and objectively interact with both union and non-union employees as necessary. Must be a good communicator with verbal, numerical, and planning perception to a high degree (sic).[25]

         Plaintiff, Jason Moe, George Cooper, Tung Nguyen, Chad Newbill, Daniel Rollins, David Lynnes, and Josef Perez applied for the job. All but Perez were interviewed.

         Defendant hired John Fuentes, a former Director of Electric Production Operations, to consult and assist Quach with the selection of a new director. In September 2014, Quach and Fuentes interviewed seven applicants using a questionnaire pre-approved by HR.

         On October 3, 2014, in an internal office memo to Gray, Quach recommended Moe for the job, stating: “After a thorough review, Jason Moe is being recommended for [Director of Electric Production Operations]. Jason has demonstrated extensive power plant knowledge and a good command of understanding in the power plant industry.”[26] Quach testified that:

Overall Jason Moe kn[e]w the plant really well and he has a great personality to be as a supervisor and he - as far as personality, I mean, he can talk to anybody. He can fit in any environment and he can rally people, so those are the three key things at that time we looked at.[27]

         Quach also testified that Moe's communication skills were exceptional: “he has no accent and he definitely speaks clearly and people can understand him easily.”[28] In contrast, Quach testified that Plaintiff was “hard to understand sometimes, ” “he tend[ed] to speak pretty softly, ” his “pronunciation . . . is a little bit deficient . . . given the time he's been in [the U.S.]”, and “it's very hard to understand him” particularly in a big group meeting.[29] Quach said that communication skill was a significant factor in his decision not to select Plaintiff for promotion.[30]

         Gray had the ultimate authority to approve or deny a manager's recommendation. As he had done previously, Gray deferred to the judgment of his manager and adopted Quach's recommendation to promote Moe.

         On November 10, 2014, Plaintiff filed a charge with the Equal Employment Opportunity Commission (“EEOC”), alleging discrimination on the basis of race and national origin and retaliation for complaining of discrimination. The EEOC issued Plaintiff a notice of right to sue on June 27, 2016. Plaintiff filed this action on September 26, 2016, alleging discrimination on the basis of race and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (race and national origin discrimination) and 42 U.S.C. § 1981 (race discrimination), and retaliatory nonselection in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981.[31]

         III. Analysis

         Defendant seeks summary judgment on four grounds: 1) Plaintiff's § 1981 claims fail as a matter of law because he did not assert them under § 1983; 2) Plaintiff's retaliatory non-selection claim fails for lack of causal connection; 3) Plaintiff's discrimination and retaliation claims fail because he cannot meet his burden of showing Defendant's nondiscriminatory reasons for not promoting him were pretexts; and 4) § 2000e-3 of Title VII and § 1981a(b) prohibit Plaintiff from recovering compensatory damages against a political subdivision based upon claims of discrimination and retaliatory non-selection. Plaintiff seeks summary judgment on his discrimination claim, arguing Defendant's stated nondiscriminatory reasons are unsupported by the record and that his Vietnamese accent was the real reason for his demotion and non-promotion. Because the issues in Plaintiff's motion overlap with Defendant's third ground for summary judgment, the Court will address them together.

         A. Section 1981 Claims and the Effect of Failing to Allege § 1983

         It is well-settled law that § 1983 provides the exclusive remedy for pursuing damages against a municipality for claims arising under § 1981.[32] Plaintiff concedes this and that he did not cite § 1983 in his amended complaint or the Pretrial Order. He argues, however, that he has essentially asserted a claim under §§ 1981 and 1983. Alternatively, he argues the proper remedy for this “mere pleading defect” is to permit him to amend his complaint to add a § 1983 claim.[33]In support of this argument, Plaintiff cites several decisions authorizing such relief: Bolden v. City of Topeka, [34] Dockery v. Unified School District No. 231, [35] Stewart v. Board of Commissioners for Shawnee County, Kansas, [36] and Sims v. Unified Government of Wyandotte County.[37]

         The Supreme Court has rejected a heightened standard of pleading in claims against municipalities.[38] “Nevertheless, pursuant to Fed.R.Civ.P. 8(a), a plaintiff must make at least minimal factual allegations on every element.”[39] Conclusory allegations will not sustain a plaintiff's pleading burden.[40] With these principles in mind, the Court finds that Plaintiff's allegations in his amended complaint and the Pretrial Order fail to state a municipal liability claim under § 1983.

         A plaintiff suing a county/city under § 1983 must plead the defendant “caused the harm through the execution of its own policy or customs or by those whose edicts or acts may fairly be said to represent official policy.”[41] The latter method generally entails alleging a “final policymaker” acted in violation of his equal rights.[42] Plaintiff did not cite § 1983 or allege that his demotion and non-promotion were consistent with a custom, practice, or policy of Defendant's. Nor did Plaintiff allege that a city official with final policymaking authority discriminated against him on the basis of his race or national origin.

         The factual allegation that “Gray . . . had the authority to implement the demotion”[43]appears to be the sole allegation that could be interpreted to mean that Gray was a final policymaker. But this allegation is conclusory because “[a]n official is not a policymaker simply by virtue of possessing discretionary authority to exercise certain functions authorized by municipal policy; what is required is final authority to establish the policy itself.”[44] Moreover, the identification of a final policymaker is a legal issue for the Court to decide under state and local law.[45] Kansas law places final authority over county personnel decisions in the elected board of county commissioners except for employees of independently elected officials.[46]Absent allegations that the exception applies, the Court concludes Plaintiff's pleadings fall short of stating a municipal liability claim.[47]

         As to the proper remedy for this pleading defect, the Court finds allowing amendment inappropriate at this stage. The cases cited by Plaintiff are all factually distinguishable. In Bolden, the plaintiff had previously advanced both § 1981 and § 1983 claims, and the Tenth Circuit specifically found that the former implicitly incorporated the allegations contained in the latter.[48] Further, the plaintiff in Bolden appeared pro se. In Dockery, Stewart, and Sims, leave to amend was allowed in response to a motion to dismiss, not a motion for summary judgment.[49]

         Here, Plaintiff appears through counsel, who has offered no good cause for the pleading deficiencies. More importantly, amendment now will work substantial prejudice to Defendant and the Court. Discovery is closed and the trial is scheduled in less than three months. No discovery has been conducted on the existence of Defendant's policies or procedures, or the extent of Gray's authority to implement policy and whether his decisions are subject to meaningful review.[50] Allowing Plaintiff to amend his claims now would create prejudice by requiring additional discovery. Given the absence of good cause and the substantial prejudice, the Court denies leave to amend and grants Defendant summary judgment as to the § 1981 claims.[51] This conclusion renders discussion unnecessary as to Defendant's argument regarding § 1981a(b)'s limitations on compensatory damages.

         B. Discriminatory Non-Promotion Based on Race or National Origin

         Count I alleges that Plaintiff was not promoted in 2014 as the Director of Electric Production Operations, even though he possessed superior qualifications, because of his race or national origin. Both parties seek summary judgment on this claim.

         The parties agree the familiar McDonnel Douglas[52] burden shifting framework applies here. Under McDonnell Douglas, Plaintiff initially bears the burden of production to establish a prima facie case of discrimination or retaliation.[53] If Plaintiff establishes a prima facie case, the burden shifts to Defendant to articulate a facially nondiscriminatory reason for its actions.[54] If Defendant articulates a legitimate nondiscriminatory reason, the burden shifts back to Plaintiff to present evidence from which a jury might conclude that Defendant's proffered reason is pretextual, that is, “unworthy of belief.”[55]

         Defendant concedes Plaintiff can establish a prima facie case of discrimination based on race or national origin. The burden thus shifts to Defendant to articulate a legitimate, nondiscriminatory reason for not promoting Plaintiff. Defendant asserts that Quach selected Moe over Plaintiff because: 1) Moe was the most qualified candidate, 2) he had extensive power plant knowledge; and 3) he possessed superior interpersonal, leadership, and communication skills. The Court finds that Defendant has articulated facially nondiscriminatory reasons for not selecting Plaintiff for promotion.

         Defendant contends Plaintiff cannot show that its proffered, nondiscriminatory reasons for selecting Moe were pretexts. Plaintiff argues pretext based on the following: 1) Moe did not meet the objective qualifications for the Director position, thus Defendant's claim that “Moe was the most qualified candidate” is false; 2) Defendant's investigation of his internal complaint was so inadequate that it supports an inference of discrimination; and 3) both Gray and Quach commented about Plaintiff's accent yet there is no evidence that it affected his performance as Director.

         1. ...

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