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Bruce v. Unified School District 259

United States District Court, D. Kansas

June 1, 2018

BAXTER BRUCE, Plaintiff,
v.
UNIFIED SCHOOL DISTRICT 259, Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

         Plaintiff Baxter Bruce filed this action against Defendant Unified School District 259 (“USD 259” or “the District”), asserting claims of sex and race discrimination under Title VII, associational discrimination in violation of the Americans With Disabilities Act (“ADA”), and retaliation. USD 259 filed a motion for summary judgment, arguing that Bruce has failed to establish a prima facie case of employment discrimination or retaliation; and, even if he has, USD 259 is entitled to judgment as a matter of law because it had legitimate non-discriminatory and non-retaliatory reasons for every action it has taken in relation to Bruce. For the following reasons, the Court grants USD 259's motion for summary judgment (Doc. 24).

         I. Factual and Procedural Background[1]

         USD 259 is a school district in Wichita, Kansas, and it operates the Wichita Public Schools. When he filed his complaint on May 2, 2016, Bruce was a 52-year-old African American male. He lives in Wichita and has been employed by USD 259 since 1993. He is currently a supervisor in the District's Safety Services Department.

         A. General Background

         Bruce was first promoted to a managerial position in 2002. Currently, he is employed as the District's Security Communications Supervisor, which is also referred to as the Supervisor of Dispatch or simply Supervisor Dispatch.[2] He is the only USD 259 employee who holds his title(s) and performs his essential job functions.

         Approximately 40 employees, including Bruce, work within the Safety Services Department. Bruce, as well as the other Department supervisors report directly to the Department's Executive Director. From 2008 through June 2013, the Department's Executive Director was Debbie McKenna. USD 259 hired the current Executive Director, Terri Moses, shortly after McKenna left.

         During the period at issue, from early 2013 through August of 2016, there were four Department supervisors that reported to Executive Director Moses: Bruce, Stephanie Quick, Chuck Newman, and Michele Zahner.[3] Zahner left the Department in August of 2016. It appears that her position has not been filled as the three remaining supervisors are the only individuals currently reporting directly to the Executive Director.

         Generally speaking, Quick is responsible for providing, developing, or scheduling training for Safety Services personnel, as well as school administrators and other school personnel. Newman is primarily responsible for the supervision of approximately 26 school-based security officers and an additional security officer assigned to the Administrative Center. And, during her tenure, Zahner worked primarily as the liaison between USD 259 and seven School Resource Officers-commissioned police officers employed by the Wichita Police Department and assigned to each of the USD 259 high schools.

         Bruce is primarily responsible for supervising the six dispatchers working in the Safety Services Department. These dispatchers, as well as Bruce, take calls from parents, teachers, building administrators, the police, and members of the public regarding a variety of school safety concerns. Additionally, they also dispatch USD 259 security officers to various school facilities to investigate matters that have been reported. Bruce and his staff work in a subdivision of the Safety Services Department known as “dispatch” or the “dispatch office.”

         B. Bruce's allegations of discrimination and retaliation

         The parties agree that the job descriptions and organizational hierarchy described above accurately reflect the Safety Services Department when Bruce was initially promoted, and as the Department operates currently. However, in November 2012, Bruce requested leave under the FMLA to aid his disabled mother, who required 24-hour care. USD 259 granted Bruce's request for FMLA leave.[4] After he submitted his request, however, Bruce claims that USD 259 retaliated against him by assigning him to second shift, and later changing his job title, responsibilities, and position in the hierarchy for a period beginning in 2013 until Zahner left the department in August of 2016.

         1. Shift Change

         Bruce first claims that the District retaliated against him for requesting FMLA leave by changing him from his normal first shift to second shift. In March or early April 2013, McKenna met with USD 259's Chief Human Resources Officer, Shannon Krysl, and then met separately with Bruce; the purpose of these meetings was to discuss the impact that the sudden loss of a dispatcher (other than Bruce) who worked first shift would have on the Safety Services Department.[5] McKenna determined that it would be most effective for the Department to move Bruce to second shift temporarily until a new dispatcher could be hired because she anticipated Bruce would be gone for portions of many first shifts. Bruce was then moved to second shift, and Earl Wilson, a white male, took over Bruce's first shift. There is a genuine dispute whether the Executive Director arranged for other staff to back up Wilson for breaks and absences, and that back-up structure was something that Bruce never received while he worked either the first or second shift.

         Upon learning of his temporary move to second shift, Bruce made a complaint with the Department of Labor. Bruce spent no more than five days on second shift before USD 259 returned him to first shift. And he performed the same tasks and had the same job responsibilities on second shift as he did on first shift.

         2. Organizational Hierarchy

         Bruce also claims that his position in the organizational hierarchy changed in 2013 as retaliation for requesting FMLA leave. According to Bruce, Zahner “took control” of the dispatch office and he was functionally subordinated to her.

         In 2011, Executive Director McKenna eliminated the former department titles and granted all four department heads the title of “Department Supervisor.” However, at some point in 2013, Bruce started being referred to as “Security Communications Supervisor” or “Supervisor of Dispatch.” On one Safety Services Department Organizational Chart, Bruce's position is titled “Supervisor Dispatch, ” while the other three supervisor positions are titled “Safety Services Supervisor.”

         Bruce was listed as “Lead Dispatcher” in the initial electronic version of the “Support Centers Directory” for the 2013-14 year. Moses identified the error, and the directory was corrected so that Bruce was listed as a “Supervisor of Dispatch.”[6] However, Moses was not-nor was anyone else in the Safety Services Department-responsible for drafting or editing the Support Centers Directory, which is made by the District's Communications Department. Moreover, Bruce testified that he was not aware of any instances in which he was referred to as “Lead Dispatcher” by a supervisor or in any other USD 259 records or directories.[7]

         Bruce testified that two security officers asked him if he was “Lead Dispatcher” at work, although it is not clear when this happened. According to Bruce, one security officer asked him “[w]hat's this lead dispatch thing?” and the other asked him “a lead dispatcher? Ooh, Michele [Zahner] got your job.” Bruce was asked how he responded, and he testified: “I said, ‘it's just a document.' ” When asked if he knew that was true, he answered: “Well, I had to do my supervisor role.”[8]

         In the summer of 2013, Moses presented Bruce with a draft Safety Services Department Organizational Chart. At the time, Moses was in the process of evaluating the status of the Safety Services Department and determining how it could potentially run more effectively. During her meeting with Bruce to discuss the draft organizational chart, she informed him that she was contemplating incorporating Zahner into dispatch in some capacity. According to Bruce, the chart showed Bruce reporting only to Zahner. Bruce testified that Moses then told him “I am placing you under Michele [Zahner].” Bruce immediately informed her that he did not like the idea of reporting to Zahner. As a result, the draft organizational chart was not adopted.

         With the exception of the draft organizational chart, Bruce's job description has never required him to report to Zahner or another Safety Services supervisor. Bruce testified that he reports to Executive Director Moses and that she is his boss. Although Bruce testified that Moses told him to speak with Zahner before speaking with Moses, he noted that he could always talk to her in person or on the phone, and he could not point to a single instance in which he had to go through Zahner first. Additionally, Zahner never ordered Bruce to do anything-he has not received any orders from anyone other than the Executive Director.

         Beginning approximately in the summer of 2013, Bruce was required by Moses to report his FMLA absences to Jan Stowell, Jeannette Parker, Newman, Quick, and Zahner.[9] USD 259 explains that dispatch must be covered at all times, so Bruce, as Supervisor of Dispatch, must notify someone when he is absent for any reason-FMLA or otherwise. This is the only evidence that Bruce was required to report anything to someone other than the Executive Director.

         3.Bruce's Job Description and Responsibilities

         In addition to changes in the Department organizational structure, Bruce also claims that Zahner took control of his responsibilities after he requested FMLA leave. The Security Communications Supervisor/Supervisor of Dispatch is responsible for supervising the six dispatchers working in the Safety Services Department. USD 259's job description for the Security Communications Supervisor provides that the position “[supervises dispatch personnel and all functions of Security Communications.” The job description then provides:

         Essential Performance Responsibilities:

. Schedules assignments for all dispatchers
. Monitors the activities of all Security communications personnel on day, night, weekend, and holiday assignments
. Monitors district radio traffic and Security Communications telephone calls
. Conducts and supervises routine and emergency electronic building checks
. Monitors alarms and troubleshoots for all USD 259 facilities, notifies appropriate personnel
. Monitors and/or prepares and delivers a daily report of noteworthy Security Communications issues
. Facilitates training for Security Communications personnel
. Assumes primary responsibility for personnel assignments in emergency situations and/or approved leave requests
. Assists with routine and emergency situations pertaining to USD 259 properties, personnel, and students as requested to do so
. Develops policies and procedures regarding area of responsibility
. Interviews prospective employees
. Monitors and reports activities of Kansas One-Call
. Manages Security Communications expenses and makes recommendations regarding the Safety Services Budget
. Provides supervisory duties (i.e. mentoring, coaching, evaluation)
. Participates as a member of the District Crisis Team

         The document also states: “Additional Duties: Performs other duties as assigned.”

         Although not mentioned in the official job description, all of the supervisors employed in the Safety Services Department, including Executive Director Moses, are required to “work ballgames, ” i.e., attend and supervise extracurricular events such as football and basketball games from time-to-time.

         Executive Director McKenna stated in an affidavit that one of Bruce's “primary responsibilities” in his supervisory position is to ensure that the dispatch desk is staffed at all times.[10] In order to do so, Bruce has the authority, without seeking the approval of the Executive Director, to schedule dispatchers to work overtime if the situation required it. Besides two of Bruce's responsibilities-supervising the dispatch personnel and ensuring the dispatch desk is staffed-the evidence does not suggest that any of Bruce's other responsibilities are more important or essential than the rest.

         4. Bruce's claims that his responsibilities were reassigned

         Bruce alleges that many of his responsibilities were taken away from him or reassigned to Zahner between early-2013 and August of 2016. The Court describes each of these allegations in turn.

         a. Zahner assisted Bruce with dispatcher evaluations in 2013-14

         As mentioned in his job description, Bruce is responsible for conducting evaluations of the dispatchers working under his supervision. During the 2013-14 evaluation period, Zahner assisted Bruce with the dispatcher evaluations by typing up the evaluations for Bruce, because Zahner is a better typist than Bruce.[11] Bruce signed each evaluation, and testified that each evaluation was “accurate, ” and that he did not have any objections to any of the evaluations. Bruce signed the evaluations on the line indicating “Evaluator's Signature, ” and Zahner signed below Bruce's signature. And in May of 2017, Bruce spoke to Zahner by phone and told her that he appreciated her help with the evaluations.

         b. Bruce was removed from the Incident Command Backup rotation

         The Safety Services Department has an Incident Command Backup rotation in place (which is composed of all four Department supervisors) in case there is an emergency and the Executive Director is unavailable to respond. In these circumstances, the person in the Incident Command Backup rotation would temporarily fill in for the Executive Director. Bruce was removed from the rotation in the summer of 2013, because the dispatch desk must be covered at all times, especially during an emergency. Thus, according to Moses, it would not be efficient to have Bruce on the Incident Command Backup rotation because there were not many individuals, other than the dispatchers, who could cover the dispatch desk.[12] Moses placed Bruce back on the rotation in 2016 after the Department trained enough people to cover the dispatch desk during emergencies.

         c. Zahner assisted Bruce with revising the written protocols for dispatch

         Shortly after she came on the job, Moses discovered that dispatch did not have a complete set of written “protocols” for dispatchers to follow to ensure consistency. Moses decided that the written protocols would need to be revised and new protocols would need to be added. She went to Bruce first and asked him to be in charge of the revisions. After delay, Bruce submitted a single draft protocol to Moses that she believed had several problems.[13] Bruce did not provide any other protocols to Moses. In the hope of speeding up the process, Moses then asked Zahner to work with Bruce, the other dispatchers, as well as the security officers, to prepare the written protocols. In carrying out this assignment, Zahner did not provide substantive information herself. Rather, she relied on information furnished by Bruce, the dispatchers under his supervision, and the security officers, and then reduced the information in writing in the form of written protocols.

         d. Executive Director Moses included Zahner in emails to dispatch

         Bruce testified that Moses would sometimes include Zahner in emails that only involved the dispatch office. He also stated in an affidavit that Zahner “routinely sent emails to my staff without first going through me . . . .”[14] While the District did not controvert Bruce's statements, the parties provided just one email chain to the Court. On June 18, 2014, nearly a year after Bruce claims he was placed “under” Zahner, Bruce sent an email chastising Moses for sending an email to the dispatchers.[15]

         e. Zahner redecorated the dispatch office

         According to Bruce, Zahner “decorated” and “redecorated” the dispatch office space; decisions that he was not “involved in.”[16] When asked what decisions Zahner made for the dispatch office, Bruce testified:

Michele [Zahner] just bought stuff and come in there and-well, I don't know if we-we had the place remodeled, but she bought the decorations and stuff and just decorated, which is appreciated, but it-I mean, I wasn't going to say, no, I don't want that done. I'm a team player, so I-you know, team effort. She did a good job, don't get me wrong.[17]

         Although Bruce claims that the dispatch office space was an area under his control, there has been no evidence presented to the Court that would suggest that Bruce is (or was) responsible for decorating the dispatch office space.

         f. Zahner's involvement in meetings over dispatch

         Bruce claims that Zahner “presented at and led multiple meetings of the dispatchers, and she corresponded to the dispatch staff directly and without [his] approval.”[18] The deposition testimony Bruce cites in support of this claim, [19] begins with counsel's question to Bruce regarding Zahner presenting at and being allowed to “run the dispatchers' meetings.” Bruce was asked “what date or dates did Michele Zahner, quote ‘run a dispatchers' meeting?' ” Bruce could not recall a date, but answered that it happened “more than once.” He complained that “it confuses the employees of . . . who their direct line supervisor is” when they see him as “one of the crowd participating in the same training, ” and that his authority as a supervisor was undercut when Zahner led the training instead of him. He replied affirmatively when asked “isn't it true that what she talked about was technology?” He further testified that he presented at some of these meetings as well, but could not estimate a percentage.

         The details of the unknown number of meetings led by Zahner are vague, but Bruce acknowledged that Zahner talked about technology, [20] and that he presented at some of these meetings as well. Bruce indicated during his deposition that these were quarterly meetings.

         The record before the Court contains substantive details of only a single meeting (although it is not clear if this meeting was one of the dispatch meetings Bruce complains about). In May of 2015, the Safety Services Department held its annual “End of Year Meeting/Safety Services Training.” The purpose of the 2015 meeting was, in large part, to foster team building within the Department. Both Zahner and Quick approached Moses before the meeting and volunteered to assist with the planning, preparation, and presentation of materials at the meeting. Bruce never volunteered to assist in any way with the meeting. According to the District, had he done so, he would have been allowed to present materials to the Department as Zahner and Quick had done.

         g. Bruce was not involved in implementing the new surveillance system

         In May 2013, USD 259 purchased a centralized IP video surveillance system from Aventura Technologies, Inc. for approximately $3 million. Although surveillance and alarms are obviously a matter of concern to the Safety Services Department, the Aventura system is administered by USD 259's Information Services and Technology Department.[21] The implementation of the new system affected the entire Safety Services Department, not just dispatch.[22] As a result, it was incumbent on the entire department to learn the system. To do so, Zahner, on her own initiative, trained herself and then helped train others in the Safety Services Department, including the dispatchers, how to use the system.[23]

         There is some confusion regarding Zahner's and Bruce's respective roles in implementing the new system. In her affidavit, Moses stated: “I never assigned Zahner the task of implementing the Aventura surveillance system, and I never removed this task from Bruce's job duties. In his response, Bruce stated that it was uncontroverted that “Zahner was not made the contact person with respect to the implementation of the Aventura surveillance system.”[24] However, in attempting to controvert a completely unrelated statement of fact, Bruce claimed that “Zahner was appointed to be the contact person when dealing with Aventura . . . instead of [Bruce].”[25] In support, Bruce cites to his deposition testimony, where he testified that he knows Zahner “was given Aventura, ” as she was “the person for safety services . . . that contacted and worked with Aventura.”[26] While Bruce has controverted whether Zahner was appointed to be the contact person when dealing with Aventura, it is uncontroverted that the task was never removed from Bruce's job duties, because it was not one of his job duties to begin with.

         h. Bruce was required to “work ballgames”

         Finally, although Bruce's claims primarily focus on Zahner taking control of his responsibilities, Bruce contends in the pretrial order that USD 259 retaliated against him by increasing his workload.[27] During his deposition, Bruce was asked what evidence he had that his workload increased as a result of his FMLA leave request. He answered, simply: “Working ballgames.” This appears to be the only evidence pertaining to whether his workload was increased.

         5. Additional allegations of discrimination or retaliation

         At no point during his employment by USD 259 have Bruce's salary or benefits been reduced. However, Bruce claims that after his FMLA leave request, he started noticing that his work was being scrutinized more closely than similarly-situated white colleagues and female colleagues. During his deposition, however, Bruce was unable to recall “any evidence” that his actions were more closely monitored than others.[28] The only evidence Bruce submitted is a statement Bruce made in an affidavit after USD 259 filed the present motion for summary judgment. In the affidavit, Bruce states that after Moses became Executive Director, “I started noticing my work was being scrutinized more closely than similarly-situated white colleagues and female colleagues.”[29]

         Bruce also claims that after his FMLA leave request, he was denied training opportunities. The uncontroverted evidence shows that Moses has only denied one training request sent to her by Bruce. The request was made in 2015, and it was denied because of the high cost of the eight-week training program (approximately $10, 000) and the budget constraints placed on the Department. Bruce's only attempt to controvert this is his own affidavit, in which he states that his “training session was less expensive than other training sessions for other employees, such as Stephanie Quick and Michele Zahner.”[30] Moses' affidavit, however, states that neither Zahner nor Quick have attended any trainings that were more expensive than the $10, 000 training that Bruce requested to attend.[31]

         Bruce claims that Executive Director McKenna disciplined him once for “giving overtime, ” stating that Bruce should have come in and worked it. Yet, according to Bruce, “Michele [Zahner] or Stephanie [Quick] would not have been expected to work to cover an [sic] shift in dispatch, even though they are supervisors.”[32]

         Bruce claims that three dispatchers who work under Bruce told Bruce that Moses was “insistent on saying something negative” about Bruce, “looking for something negative” about Bruce, and “felt uncomfortable” with Moses's line of questioning.[33] Bruce finally claims that he has witnessed Moses display a racial bias against black people while serving at USD 259. First, Moses made a racially insensitive joke in his presence that offended him where Moses referred to three new potential employees whose names began with the letter “K, ” and Moses referred to them as the “KKK.” Second, Moses has asked Bruce to lower Laurie Anderson's performance evaluation, and Moses said that she would not allow Laurie ...


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