United States District Court, D. Kansas
MEMORANDUM & ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.
Tracey Karrick filed this lawsuit against defendant, her
former employer, asserting that defendant discriminated
against her on the basis of gender in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq., and the Equal Pay Act, 29 U.S.C. § 206(d)(1), and
that it discriminated against her on the basis of age in
violation of the Age Discrimination in Employment Act, 29
U.S.C. § 621 et seq. Plaintiff also asserts that
defendant retaliated against her in violation of Title VII.
This matter is presently before the court on
defendant’s motion for summary judgment on all claims
(doc. 72). As explained below, the motion is denied in its
following facts are uncontroverted, stipulated in the
pretrial order, or related in the light most favorable to
plaintiff as the nonmoving party. The Board of Public
Utilities (“BPU”) is a public utility that
provides potable water and electrical services to its
customers. It is an administrative agency of the defendant
Unified Government of Wyandotte County/Kansas City, Kansas.
As a municipal utility, the BPU has its own Department of
Fleet Maintenance that coordinates the vehicle maintenance of
BPU’s company vehicles and trucks. The Department of
Fleet Maintenance is located in two garages-the
“Service Center Garage,” which is the main garage
for electrical repair work, and “Muncie.”
August 2007, defendant promoted plaintiff (who was first
hired by defendant in May 1986) from Supervisor of Vehicle
Maintenance to Superintendent of Transportation. Her title
subsequently changed from Superintendent of Transportation to
Superintendent of Fleet Maintenance. As the Superintendent of
Fleet Maintenance, plaintiff was responsible for ensuring
proper and reliable transportation, suitably equipped at the
least cost, with adequate controls to provide proper fleet
administration. Plaintiff was also responsible for keeping
accurate records relating to inventory. In this position,
plaintiff reported to Bill Johnson, the Manager of Electric
Operations and Technology. Beginning in early 2015, plaintiff
began voicing concerns to Mr. Johnson about her compensation
as a Superintendent as compared to the compensation received
by male BPU Superintendents. On February 2, 2015, plaintiff
and Mr. Johnson met for more than one hour to discuss her
salary concerns as well as concerns relating to Mr.
Johnson’s treatment of plaintiff as compared to her
male counterparts with respect to company phones,
compensatory time off and the use of company vehicles.
Tuesday, May 17, 2016, plaintiff was attempting to leave the
Service Center Garage to attend a wake around 4pm. When
plaintiff’s personal vehicle would not start, she asked
another employee, Chris Park, to “jump start” her
car, which allowed plaintiff to drive her vehicle. Mr. Park
advised plaintiff that he believed that the BPU’s
storeroom had a battery that would fit in her vehicle. After
leaving the wake, plaintiff called Mr. Park at the Service
Center Garage, who confirmed that the garage had a battery in
stock that would fit in her vehicle. Plaintiff asked Mr. Park
whether he would install the battery for her and advised him
that she would pay for the battery the following day. Mr.
Park agreed to do so and plaintiff returned to the garage.
Mr. Park installed the battery in plaintiff’s vehicle
and plaintiff again advised him that she would pay for the
battery the next day.
time, Factory Motor Parts (“FMP”) was the
exclusive supplier of car batteries to the BPU. After the
installation of the battery in plaintiff’s vehicle,
plaintiff had a discussion with FMP’s battery
representative, Mike Olson, about the cost of the battery.
Ultimately, Mr. Olson agreed to sell the battery to plaintiff
at FMP’s cost and indicated that he would need to
invoice the BPU for the battery to secure that pricing for
plaintiff. Accordingly, on May 24, 2016, FMP generated an
invoice to the BPU for the car battery that was installed in
plaintiff’s vehicle. Plaintiff told Mr. Olson that she
would pay the invoice personally. As of May 31, 2016,
plaintiff had not yet paid the invoice. The parties dispute
when plaintiff actually obtained the invoice and who provided
the invoice to her, but those facts are not critical to the
disposition of the motion.
1, 2016, a grievance meeting was held concerning disciplinary
action taken by plaintiff against one of her subordinates.
The meeting was attended by plaintiff; Bill Johnson; the
subordinate who was challenging the action; a union
representative; Jason McVay, the Fleet Maintenance
Supervisor; and Sam DeLeon, BPU’s Human Resources
Director. During this meeting, Mr. Johnson became aware that
Mr. Park, on BPU time, had installed a battery from the
BPU’s inventory into plaintiff’s personal
vehicle. It is unclear whether Mr. Johnson knew at this time
that plaintiff had not yet paid the invoice for the battery.
In any event, immediately after the grievance meeting,
plaintiff called Sara Bryant, the Lead Garage Clerk, and told
her that she needed the invoice to pay for the battery. Ms.
Bryant located the invoice, provided it to plaintiff and
advised her to call FMP representative Donna Brammer with her
credit card number. The record reflects that plaintiff called
FMP on June 1, 2016 at 3pm and that she left a message for
Ms. Brammer. Plaintiff’s evidence reflects that she
then returned the invoice to Ms. Bryant and asked Ms. Bryant
to contact Ms. Brammer and to pay the invoice with
plaintiff’s credit card information. Ms. Bryant did not
note any attempt to call FMP until June 7, 2016, when she
left a message for Ms. Brammer and returned the invoice to
9, 2016, the human resources department had initiated an
internal investigation into the installation of the battery
into plaintiff’s vehicle. Mr. DeLeon assigned Judy
Woodruff, one of the department’s Compliance
Coordinators, to investigate plaintiff’s conduct. On
the morning of June 9, 2016, Ms. Woodruff contacted FMP and
learned from Ms. Brammer that plaintiff’s invoice
remained unpaid. Ms. Woodruff then contacted plaintiff to
schedule a meeting for later that afternoon. Before that
meeting took place, Ms. Bryant successfully contacted Ms.
Brammer and paid plaintiff’s invoice with
plaintiff’s credit card number. Later that day,
plaintiff met with Mr. DeLeon, Mr. Johnson and Ms. Woodruff
to discuss plaintiff’s removal of BPU property from the
storeroom for personal use. At the end of the meeting,
plaintiff was placed on administrative suspension with pay
pending the investigation. Over the next several weeks, Ms.
Woodruff interviewed numerous BPU employees about the
incident. At the end of her lengthy investigative report, Ms.
Woodruff concluded that an unwritten procedure exists within
the BPU that permits employees to purchase merchandise from
the BPU warehouse or BPU vendors but that the employee is
required to pay for the merchandise at the time of the order
or at the time the merchandise is picked up. Ms. Woodruff
concluded that plaintiff violated this unwritten policy by
paying for the battery at a later date and that plaintiff
should not have asked a BPU employee to install the battery
in her personal vehicle while on BPU time. Ms.
Woodruff’s investigation also uncovered that plaintiff,
in June 2014, had been in an accident in her company vehicle
and, in violation of company policy, had never reported the
accident. Plaintiff’s evidence, however, reflects that
the “accident” did not result in any damage to
the company vehicle and, accordingly, did not require
completion of an accident report.
25, 2016, Bill Johnson issued a “Conduct
Memorandum” to plaintiff. A Conduct Memorandum is the
BPU’s response to an employee’s violation of a
company rule or policy. In the Conduct Memorandum, Mr.
Johnson explained that he was recommending the termination of
plaintiff’s employment based on two rule
violations-theft of BPU property and “failure to report
the unsafe operation and incident of a vehicle on Company
business.” The following day, Mr. DeLeon sent plaintiff
a letter informing her of the BPU’s determination that
she had violated two rules and that her employment had been
terminated effective July 26, 2016. Since plaintiff’s
termination, Jason McVay has served as the Acting
Superintendent of Fleet Maintenance and is receiving
“step up” pay for those additional
responsibilities. Mr. McVay is substantially younger than
plaintiff, who was nearing eligibility for full retirement.
facts will be provided as they relate to the specific
arguments raised by the parties in their submissions.
Summary Judgment Standard
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.
Gender and ...