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Karrick v. Unified Government of Wyandotte County

United States District Court, D. Kansas

June 5, 2018

Tracey Karrick, Plaintiff,
Unified Government of Wyandotte County/Kansas City, Kansas, Defendant.



         Plaintiff 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 entirety.

         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 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.”

         In 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.

         On 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.

         At that 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.

         On June 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 plaintiff.

         By June 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.

         On July 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.

         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. Gender and ...

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