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Johnson v. Unified School District No. 500

United States District Court, D. Kansas

June 21, 2018

TODD JOHNSON, Plaintiff,



         Plaintiff Todd Johnson brings this action against Defendant Unified School District 500 alleging claims of disability discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. Plaintiff, a former employee of Defendant, claims that Defendant discriminated against him on the basis of his disability when it did not re-hire him for any one of numerous positions for which he applied. Plaintiff also alleges that Defendant discriminated against him by deciding to cease considering him for any future employment whatsoever. This matter is before the Court on Defendant's Motion for Summary Judgment (Doc. 43) and Plaintiff's Motion to Strike the Affidavits of Susan Westfahl, Leala Taylor, Phyllis Olbert and Jewell Ragsdale, Which Were Submitted in Connection with Defendant's Motion for Summary Judgment (Doc. 47). The motions are fully briefed and the Court is prepared to rule. For the reasons stated in detail below, Plaintiff's motion to strike is granted in part and found as moot in part, and Defendant's motion for summary judgment is granted.

         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 [dispute] of material fact unless the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party.”[3] A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.”[4] A dispute of fact is “genuine” if “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.”[5]

         The moving party initially must show the absence of a genuine dispute of material fact and entitlement to judgment as a matter of law.[6] In attempting to meet this standard, a movant who does not bear the ultimate burden of persuasion at trial need not negate the nonmovant's claim; rather, the movant need simply point out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.[7]

         Once the movant has met the initial burden of showing the absence of a genuine dispute of material fact, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.”[8] The nonmoving party may not simply rest upon its pleadings to satisfy its burden.[9] Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.”[10] In setting forth these specific facts, the nonmovant must identify the facts “by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.”[11] To successfully oppose summary judgment, the nonmovant must bring forward “more than a mere scintilla of evidence” in support of his position.[12] A nonmovant “cannot create a genuine issue of material fact with unsupported, conclusory allegations.”[13] 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.”[14]

         II. Plaintiff's Motion to Strike the Affidavits of Susan Westfahl, Leala Taylor, Phyllis Olbert, and Jewell Ragsdale

         Before considering the uncontroverted facts in this case, the Court must address Plaintiff's motion to strike the affidavits of Susan Westfahl, Leala Taylor, Phyllis Olbert, and Jewell Ragsdale, which Defendant has submitted in support of its summary judgment arguments. Plaintiff moves to strike the affidavits pursuant to Fed.R.Civ.P. 37(c)(1) because Defendant never previously disclosed these affiants as witnesses as required by Fed.R.Civ.P. 26 and the Court's scheduling order. All four affiants were at all relevant times—and remain today— Defendant's employees. Specifically, Ms. Westfahl is Clerk for Defendant's Board of Education, Ms. Taylor is the Principal of Douglass Elementary School, Ms. Olbert is the Office Manager for Sumner Academy of Arts & Science, and Ms. Ragsdale is the Principal of Coronado Middle School.

         On February 15, 2017, Defendant served upon Plaintiff its initial Rule 26 disclosures.[15]

         Although Defendant's initial disclosures included eight individually-named witnesses, seven of whom are Defendant's employees, it did not include the four witnesses at issue in Plaintiff's motion to strike. On February 23, 2017, Magistrate Judge Gerald L. Rushfelt issued the scheduling order for this case.[16] That order provides:

. . . In addition to other sanctions that may be applicable, a party who without substantial justification fails to disclose information required by Fed.R.Civ.P. 26(a) or Fed.R.Civ.P. 26(e)(1) is not, unless such failure is harmless, permitted to use evidence at trial, at a hearing, or on a motion any witness or information not so disclosed. See Fed.R.Civ.P. 37(c)(1).
Supplementation of those disclosures under Fed.R.Civ.P. 26(e) must be served throughout the case at such time and under such circumstances as required by that rule. In addition, final supplemental disclosures must be served in any event 40 days before the deadline for completion of all discovery. The supplemental disclosures served 40 days before the deadline for completion of all discovery must identify all witnesses and exhibits that probably or even might be used at trial. The opposing party and counsel should be placed in a realistic position to make judgments about whether to take a particular deposition of pursue follow-up “written” discovery before the time allowed for discovery expires. . . .[17]

         The scheduling order set a deadline of September 1, 2017 for the completion of all discovery.[18] Thus, the parties were to provide final supplementation of their Rule 26 disclosures 40 days prior to that date, or by August 8, 2017. Defendant supplemented its disclosures on July 21, 2017 with the names of four additional current and former employees.[19] However, Defendant's supplemental disclosures did not include the names of the four witnesses whose affidavits Plaintiff moves to strike.

         Under Fed.R.Civ.P. 37(c)(1), when a party fails to designate a witness as required by Fed.R.Civ.P. 26(a),

the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).[20]

         A district court has discretion in deciding whether a Rule 26 violation is harmless or substantially justified.[21] In so deciding, the Court looks to several factors: “(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or willfulness.”[22] The burden to demonstrate that the failure to disclose is harmless or substantially justified is on the party who failed to properly disclose.[23]

         Plaintiff argues that the affidavits of Ms. Westfahl, Ms. Taylor, Ms. Olbert, and Ms. Ragsdale should be stricken because these individuals were never previously identified as witnesses and their affidavits are now being offered to deny or rebut Plaintiff's claim of disability discrimination. Specifically, Ms. Westfahl's affidavit describes the role of Defendant's Human Resources Department in the hiring of job applicants and sets forth the number of applicants for various positions for which Plaintiff applied but was not hired.[24] The remaining three affidavits discuss the qualifications of the individuals who were ultimately hired for the positions of Principal's Secretary at Douglass Elementary School (Taylor Affidavit), [25] High School Athletics Secretary/Principal's Secretary at Sumner Academy of Arts & Science (Olbert Affidavit), [26] and Principal's Secretary/Treasurer at Coronado Middle School (Ragsdale Affidavit).[27] Plaintiff points out that the information set forth in the affidavits was known to Defendant well before the close of discovery, as was the identity of the four affiants, who are all Defendant's employees. Plaintiff argues that Defendant has no valid justification for its failure to disclose these affiants, and that Plaintiff will be prejudiced if the Court considers their affidavits because Plaintiff had no opportunity to discover information about their testimony, through taking their depositions or otherwise. Plaintiff argues that curing such prejudice would require reopening discovery and that additional briefing on dispositive motions may be necessary.

         Defendant makes a variety of arguments in opposition to Plaintiff's motion to strike. With respect to Ms. Westfahl, Defendant argues that she “falls under a category of witness that was identified, ”[28] namely witnesses needed to lay the foundation for the admission of exhibits.[29]Defendant also argues that Ms. Westfahl's affidavit was submitted in lieu of that of Dr. Kelli Mather, who was included in Defendant's supplemental disclosures but was sick at the time Defendant's summary judgment motion was due and therefore unable to sign an affidavit. Dr. Mather is, and was at all relevant times, Defendant's Chief Operations Officer and was deposed during discovery. Defendant states that as the records custodian for the Board of Education, Ms. Westfahl “was the only individual with the care and custody of the records of the Defendant such that she could attest to the same facts to which Dr. Mather would have in her affidavit.”[30]Defendant further argues that it should be permitted to substitute the affidavit of Dr. Mather[31]— which has since been executed—for that of Ms. Westfahl, as the two affidavits are not materially different and substitution would “not result in any additional facts or evidence which would require further response from Plaintiff.”[32]

         The Court finds as moot Plaintiff's motion to strike with respect to the affidavit of Ms. Westfahl and grants Defendant's request for leave to substitute Dr. Mather's affidavit for that of Ms. Westfahl. Although Defendant should have been better prepared to file its summary judgment motion and properly executed supporting affidavits on the date they were due— particularly given that it requested and received three extensions of time[33]—the Court finds no prejudice to Plaintiff in allowing the substitution. Dr. Mather was included in Defendant's supplemental Rule 26 disclosures, Plaintiff has taken her deposition, and her affidavit is not materially different from that of Ms. Westfahl. Thus, the Court will not forbid Defendant the ability to rely upon Dr. Mather's affidavit because she was ill and unable to sign it at the time Defendant's summary judgment motion was due to be filed.

         With respect to the remaining three affidavits, Defendant argues that the Court should deny Plaintiff's motion to strike because its omission of Ms. Taylor, Ms. Olbert, and Ms. Ragsdale from its Rule 26 disclosures was both substantially justified and harmless. As set forth above, these affidavits discuss the qualifications of candidates who were hired instead of Plaintiff for certain positions. Defendant argues that the applications of the successful candidates have been produced in discovery and, therefore, “Plaintiff has had every opportunity to explore and discover the qualifications of th[ose] candidate[s] and the process that led to selection through discovery.”[34] Defendant further argues that these affidavits do not challenge any of Plaintiff's proffered qualifications, that they contain facts presented elsewhere in the record, and that the failure to timely identify the affiants was an oversight.[35] Defendant also offers to produce these affiants for their depositions to cure any possible prejudice to Plaintiff, and submits that reopening discovery to do so would not delay or otherwise impact the trial.[36]

         Finally, with regard to Ms. Olbert and Ms. Ragsdale, Defendant argues that it was not under any obligation to identify these witnesses because their affidavits concern positions (i.e., Athletics Secretary/Assistant Principal's Secretary and Principal's Secretary/Treasurer) that Plaintiff failed to identify in his Complaint or discovery responses as underlying his discrimination claim. Defendant states that “Plaintiff is clearly not pursuing claims based on these two positions for which he applied but was not hired. Accordingly, Defendant was not under any obligation pursuant to Fed.R.Civ.P. 26 to identify witnesses concerning these two positions.”[37]

         The Court finds Defendant's argument that it was not required to identify Ms. Olbert and Ms. Ragsdale unpersuasive, given that Defendant now offers these witnesses to defeat claims that it is simultaneously contending Plaintiff is not raising. Plaintiff was questioned at his deposition regarding the positions discussed in these affidavits, [38] and the parties stipulated in their October 2017 pretrial order that Plaintiff applied for these positions.[39] Thus, Defendant cannot reasonably contend not to have known that the job openings discussed by Ms. Olbert and Ms. Ragsdale were at issue in this case substantially in advance of submitting its motion for summary judgment in December 2017.

         Defendant is offering the affidavits of Ms. Taylor, Ms. Olbert, and Ms. Ragsdale—who are employed by Defendant and whose identities were known to Defendant prior to the close of discovery—to deny or rebut Plaintiff's allegation of disability discrimination by showing that certain positions to which he applied were filled by better-qualified candidates. Therefore, Defendant should have timely disclosed these witnesses pursuant to Rule 26, and the Court finds that Defendant's failure to do so is prejudicial to Plaintiff. Plaintiff had no knowledge of these witnesses or opportunity to depose them prior to the filing of Defendant's summary judgment motion.[40] Defendant's argument that Plaintiff did not need to know the identity of these witnesses because the evidence they offer was available elsewhere in the record is unavailing; Plaintiff was entitled to the opportunity to depose witnesses whose statements would be used in support of summary judgment against him.

         Further, the Court disagrees with Defendant that reopening discovery would not prejudice Plaintiff or delay the trial date for this matter, which is a mere two months away and which has already been continued once due to the parties' repeated requests for extensions of time to complete summary judgment briefing. Another round of briefing following additional discovery certainly would have delayed the trial of this case.[41] Defendant has failed to make a showing that its failure to disclose Ms. Taylor, Ms. Olbert, and Ms. Ragsdale was substantially justified or harmless, and Plaintiff's motion to strike is granted as to these witnesses' affidavits.

         III. Uncontroverted Facts

         As an initial matter, the parties have made the process of determining the uncontroverted facts in this case unnecessarily difficult for the Court. D. Kan. Rule 56(b)(1) provides that “[a] memorandum in opposition to a motion for summary judgment must begin with a section containing a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute must . . . refer with particularity to those portions of the record upon which the opposing party relies. . . .” In his response brief, Plaintiff states that many of Defendant's facts are “undisputed but immaterial, ” and then proceeds to qualify his response with other facts and with arguments of counsel. Plaintiff then sets forth his own additional facts pursuant to D. Kan. Rule 56(b)(2). In its reply, Defendant also qualifies many of its responses to Plaintiff's statements of fact. Rather than stating that the fact is controverted and citing to those portions of the record on which it relies as required by D. Kan. Rule 56(c), Defendant often objects to Plaintiff's attempt to “color the testimony” and argues that the facts alleged are unsupported and should be disregarded, sometimes for overly technical reasons.

         These tactics on both sides are improper and have resulted in many pages of unnecessary briefing by the parties, much additional time and effort expended by the Court, and confusion for all. The Court has nonetheless attempted to cull the following stipulated or uncontroverted facts from the Pretrial Order and the parties' voluminous briefing. If controverted, the facts are construed in the light most favorable to Plaintiff.[42]

         Defendant is the unified school district for Kansas City, Kansas. At all relevant times, Shelly Beech was a Director of Human Resources (“HR”) for Defendant, and Robert Wilcox, Ph.D., was Defendant's Lead HR Director. HR Directors are involved in several aspects of the hiring process for positions within the district. Specifically, they review materials sent by the hiring manager for a particular position, conduct the initial screening of applications to make sure that candidates hold any necessary certifications, and pass along to the building principal or administrator the materials of those applicants who possess the required qualifications. The building principal or administrator is part of an interview committee, which selects the individuals to be interviewed. When a candidate has been recommended for hire, the HR Director confirms his or her references, pulls together a salary package, extends an employment offer, and then works to bring the hired employee on board. Defendant's HR Department and Board of Education must give final approval for the hiring of each applicant.[43] Similarly, disciplinary actions, including the termination of an employee at the recommendation of his or her supervisor, must receive final approval from the HR Department.[44]

         In addition to their involvement in the hiring process, HR Directors deal with issues related to harassment, discrimination, retaliation, and investigations into such matters. Defendant maintains policies and procedures that prohibit discrimination in hiring based on disability or perceived disability. Specifically, Defendant's written policy states that “[d]iscrimination against any individual on the basis of race, color, national origin, sex/gender . . . disability, age, religion, or any other basis prohibited by law in the admission or access to, or treatment or employment in the District's programs and activities is prohibited.”[45] Defendant's policy further provides that disability harassment includes conduct that has the effect of interfering with an individual's work performance or employment opportunities, and that such harassment is not to be tolerated in the school district.[46]

         Complaints of discrimination are to be promptly investigated in a thorough and complete manner and resolved using Defendant's discrimination complaint procedures. Defendant's policy states that “[a]ny incident of discrimination in any form shall promptly be reported to an employee's supervisor, the building principal or the district compliance coordinator for investigation.”[47] Complaints of discrimination can also be made to an individual in the HR Department. Defendant's policy provides for the resolution of complaints through both formal and informal procedures.[48]

         Plaintiff Todd Johnson received a bachelor of science degree from Arkansas Tech University in 2010. While in college, he was a student assistant to the basketball team for the 2009-2010 season. Upon graduating, he worked as an assistant basketball coach and residential dorm director at East Central Community College in Decatur, Mississippi from June 2010 to December 2012. On October 21, 2013, Plaintiff was hired by Defendant as an ISS Monitor at J.C. Harmon High School. That position required Plaintiff to monitor students during in-school suspension, assist students with homework, diffuse potentially aggressive situations, provide security in the cafeteria, and communicate with security personnel and parents. Plaintiff's fluency in Spanish allowed him to communicate with parents of students at J.C. Harmon, where nearly 70 percent of the student body speaks Spanish. Plaintiff also served as an assistant high school basketball coach at Sumner Academy of Arts & Science for the 2013-2014 school year. Plaintiff does not have a valid Kansas teaching certificate, substitute teaching certificate, or Kansas State High School Activities Association Rule 10 Certification (“Rule 10 Certification”). However, Plaintiff believed that his NCAA certification through LexisNexis allowed him Rule 10 Certification.

         In 2014, Plaintiff began experiencing cramping in his toes and feet that eventually led to swelling and difficulty walking. In May 2014, he was diagnosed with POEMS Syndrome, a form of multiple myeloma, and in April, began taking leave from work to deal with his medical issues. In the summer of 2014, Ms. Beech explained to Plaintiff that if he was not able to return to work after his leave had been exhausted, his employment could be terminated. Ms. Beech told Plaintiff that if he resigned but was able to return to work in the future, “he could apply for a job he was qualified for.”[49] On August 8, 2014, Plaintiff voluntarily resigned his employment with Defendant. Plaintiff testified that although Ms. Beech did not guarantee that he would be selected for a position when he applied to be rehired, he believed—based on his conversations with her—that he would receive “priority treatment”[50] and that he would be “highly considered for the positions [he] was qualified for.”[51]

         In the fall of 2015, Plaintiff began communicating with Ms. Beech regarding his desire to be rehired by Defendant. On September 1, 2015, Plaintiff emailed Ms. Beech in follow up to a recent phone conversation, stating that per her request, he was communicating with her on jobs he felt he was qualified for.[52] Plaintiff ultimately applied for thirteen different positions with Defendant in the fall of 2015. Plaintiff submitted applications for five of those positions on September 1, 2015—Middle School Computer Applications Teacher, part-time Middle School Boys' Assistant Basketball Coach, Family Service Worker, High School Treasurer, and Truancy Program Specialist.

         Defendant received thirty-seven applications for the position of Middle School Computer Applications Teacher, which required a valid Kansas teaching certificate. Plaintiff did not possess a Kansas teaching certificate and, therefore, was not among the qualified applicants for this position.[53] Moreover, this position was never filled due to budgetary constraints. The position of part-time Middle School Boys' Assistant Basketball Coach—to which twenty-four people applied—also required either a Kansas teaching certificate or a Rule 10 Certification, neither of which Plaintiff possessed. Thus, Plaintiff was not qualified for this coaching position.[54] Further, Plaintiff sent an email to Ms. Beech on October 12, 2015 withdrawing his application for this position due to conflicts with his motivational-speaking schedule.[55]

         Defendant received sixteen applications for the Family Service Worker position. Defendant considered a background in social work to be a minimum qualification for this position, and Plaintiff has no such background. In addition, Defendant filled this opening in August 2015, before Plaintiff submitted his application on September 1.[56]

         Defendant received fifty-one applications for the position of High School Treasurer. This position required a minimum of two years of experience in accounting or bookkeeping, but did not require an accounting degree. Although Plaintiff testified to some accounting and bookkeeping experience from prior work in a non-school setting, his application did not specifically list that experience.[57] Plaintiff's application did reference his experience handling budgeting and expenses during his time as a basketball coach.[58] Plaintiff interviewed for the High School Treasurer position, but was not selected. The individual chosen for the job was a college student working toward an accounting degree. Defendant judged that this individual's skills, personality, and positive and professional attitude would be a good fit for the position and the office environment.

         Defendant received thirteen applications for the position of Truancy Program Specialist. Plaintiff interviewed for this position on October 15, 2015, but was not hired. The candidate who was hired for this position was already working for Defendant as a migrant data specialist, and had prior experience as an attendance secretary. Thus, this individual was familiar with Defendant's attendance process and how truancy is handled within the school district. The successful candidate was also familiar with student data programs, district operations, and Kansas truancy laws.

         Plaintiff applied for three additional positions on September 21, 2015, including part-time Substitute Teacher, part-time Short-Term Suspension Monitor, and Parent Liaison/Recovery Room Teacher. The part-time Substitute Teacher position required a valid Kansas teaching certificate or a substitute teaching certificate. Defendant was aware that Plaintiff had neither, but nonetheless selected Plaintiff for an interview. Although Plaintiff sent Ms. Beech an email on September 22, 2015 reminding her that he was on a “disability ticket to work” program and asking whether he could begin substitute teaching immediately, [59] he never interviewed for this position. Rather, he sent Ms. Beech another email two days later, on September 24, asking for guidance on the hiring process and stating that he was no longer interested in substitute teaching.[60] Plaintiff informed Ms. Beech that he wanted to be considered instead for non- certification jobs that aligned with his educational and professional experience.[61] Non-certification jobs are those that do not require certification or licensure, such as certain coaching, custodial, secretarial, and paraprofessional positions. Plaintiff later withdrew his application for the part-time Substitute Teacher position because it was not a full-time position.[62] The Short-Term Suspension Monitor position was filled on September 16, 2015—six days prior to Plaintiff submitting his application.

         The third position to which Plaintiff applied on September 21, 2015—Parent Liaison/Recovery Room Teacher—was a full-time job and required that candidates have or be able to obtain a Kansas Emergency Substitute Certificate. Defendant received forty-two applications for this position, which shares at least some duties in common with the ISS Monitor position that Plaintiff previously held at J.C. Harmon High School. Although Plaintiff did not have a Kansas Emergency Substitute Certificate at the time he applied, Ms. Beech referred his application to two school principals. Plaintiff was never interviewed for this job opening. The individual hired for the position was already employed by Defendant and her position was being eliminated as part of a reduction in force.

         On September 28, 2015, Plaintiff applied for the position of Para Educator. The person hired for this job would be assigned to work in a special-education classroom with emotionally disturbed students. Plaintiff had no formalized training in working with special-education students and did not indicate any such experience on his resume. Nonetheless, Ms. Beech sent an email to Defendant's Special Education Coordinator on September 28, 2015 asking her to send out Plaintiff's application and indicating that Plaintiff was “qualified, a former employee . . . returning to work. References are good.”[63] Defendant received 151 applications for the Para Educator position, and although Plaintiff interviewed, he was not selected for the job. The individual who Defendant hired for this position had previous employment experience providing care, supervision, and assistance to emotionally disturbed children in a group home.

         Also on September 28, 2015, Plaintiff emailed Ms. Beech regarding his status as a disability hire. That email states, in part:

The Drs [sic] set me free today Ms. Beech. Do you or would you like info on the federal Disability Ticket to work program. It makes me a diversity hire and protects both myself and the district. My story is not only inspiring to the staff, but I've been motivational speaking to youth as well recently. I firmly believe my story and recovery can be a true asset to the di[s]trict. . . .[64]

         Ms. Beech and Dr. Wilcox testified that they did not consider Plaintiff's email communications to Ms. Beech throughout September 2015 to be rude, disrespectful, or threatening.

         On October 12, 2015, Plaintiff applied for a position as a Principal's Secretary. Defendant received 172 applications for this job opening. Plaintiff had never previously worked as a secretary in an elementary, middle, or high school, nor did his application reflect any prior experience as a secretary. His resume did reflect that he had experience with certain administrative and organizational tasks from his time as an assistant college basketball coach.[65]Plaintiff was not interviewed or hired for this position.

         Also on October 12, 2015, Plaintiff sent Ms. Beech several emails expressing confusion and frustration about the fact that he had not yet been hired. In the first email, Plaintiff indicated that he had not heard back regarding the Treasurer and Truancy Program Specialist positions for which he had interviewed, and further stated, in part:

I'm really not understanding the timing of the positions I applied for. . . .
I am extremely qualified [for] all of these positions and just confused why I can't get back into the district I resigned from in good faith, due to my disability.
Please help me understand the process and timing, because in Oct[ober] ¶ 2013 it took me 2 weeks to find a job in the district. . . .
I'm confused and frustrated and certainly hope my agreement with you to resign in good faith so that I can return when able again is honored.[66]

         Ms. Beech responded—in an email copying Dr. Wilcox—with some explanation about the hiring process. She stated that Plaintiff's application had been forwarded to the hiring managers, that he would be “eligible for any position for which [he was] qualified, ” and that he should “continue to apply for those positions [he was] interested in so that [he could be] considered.”[67] Plaintiff responded in a second email stating, in part:

I am highly qualified for all the positions I sent you. Besides waiting on my new Esub certificate, [I] just can't see why I'm not hired yet.
My resignation letter clearly stated I would be able to return in good faith once able. Your other statement to me at the time was you would have had to terminate me, which [I] then replied [I] would resign in good faith. That was our conversation.
I would just like the district to stand behind their word! Not trying to be difficult, but I am seriously confused I haven't received more interviews or offers.
I'd be happy to meet face to face to discuss![68]

         Again, Ms. Beech responded with information about the hiring process. She explained:

You are correct that you were going to be terminated because you had no more days left for leave. We had exhausted all available leave for you. I did state that you would be in good standing and would be able to apply for any position for which you are qualified once you were able to return to work. You did resign so you do have to go through the application and hiring process to come back into the district. We have large numbers of applicants apply for our positions. There is no guarantee that you will receive an interview and/or be selected for a position. As I stated earlier, this is a decision made by the hiring manager.
You have stated that you want us to stand behind our word. I believe we are doing that by sending out your application to hiring managers for their consideration. If there is more you feel we should be doing related to this statement, please let me know.[69]

         Ms. Beech also explained in a separate email that Plaintiff would need to submit a full application, rather than the internal application intended for use by current employees, “to allow[] for the hiring manager to see more information initially about [him] as the applicant.”[70] Plaintiff responded by reiterating his request for an in-person meeting.[71]

         In another email to Ms. Beech on the same date, Plaintiff followed-up on an earlier communication in which he had included information on the tax benefits of employing disabled workers. That email stated:

Is this not important to the district? A diversity hire? Disability ticket to work?
I thought this would be a positive stance for the District. Publicly especially with my #NoZer0days motivational speaking, father figure not for profit organization and the fact that the entire community is supporting me.
I'm asking for help and support from the district now![72]

         While Ms. Beech acknowledged during her deposition that Plaintiff did not curse at her or threaten her with physical harm in his October 12, 2015 emails, she also testified that in her opinion, the content of Plaintiff's emails revealed that he was becoming “increasingly agitated, ” and that when a job applicant becomes agitated, it can be a problem for the school district because it does not “know what to expect from [the applicant].”[73] Dr. Wilcox testified that he had “a level of concern” about these emails because Plaintiff seemed to be placing pressure on Ms. Beech to hire him.[74] Dr. Wilcox further testified that Defendant's HR personnel “want to be very cautious because we understand individuals can get upset during the hiring process, ”[75] and that HR tries to “make sure that [it] maintain[s] a safe standard for everyone that we work with”[76] because “[w]e never know what an individual might do.”[77]

         On October 14, 2015, Plaintiff informed Ms. Beech by email that he was withdrawing his application for the part-time Substitute Teacher position and that he was only interested in fulltime positions.[78] On the same date, Plaintiff applied for the position of Athletic Secretary/Assistant Principal. Defendant received 101 applications in response to this job posting. Although Plaintiff had experience monitoring student athletes' eligibility from his time as an assistant basketball coach at Sumner Academy of Arts & Science, he had no prior experience communicating directly with the Kansas State High School Activities Association. Plaintiff's only familiarity with the school district's student database program was from his time as an ISS Monitor, when he was required to look up students' files so that he could contact their parents. Plaintiff did not receive an interview or a job offer for this position.

         Also on October 14, 2015, Ms. Beech met with Plaintiff pursuant to his prior request for a face-to-face meeting. During that meeting, Plaintiff wore an arm brace and used a cane or crutch to walk. Plaintiff testified that he discussed with Ms. Beech the positions to which he had applied, whether he had received interviews, and the difference between internal and external applications.[79] Plaintiff did not curse at or threaten Ms. Beech during their meeting. However, Ms. Beech told Dr. Wilcox that Plaintiff was “upset because he's not getting placed in a job, ”[80]and that the meeting was “difficult.”[81]

         Following the meeting, Ms. Beech sent Plaintiff an email in which she stated, in part:

You shared with me in the meeting that you felt you should be hired back into the district since you resigned in good faith. You indicated that you thought since you had resigned rather than be terminated that you should be placed in a position without the normal hiring process. As I explained to you yesterday and previously in an email, when you resigned I would have explained to you that you would be in good standing and could re-apply when you were able to return to work. It would not have been my practice or the practice of Human Resources to tell you that you would be automatically placed in a position when you were able to return.
We will continue to screen and send your application to hiring managers for those positions for which you are qualified .....[82]

         Plaintiff replied to Ms. Beech's email, copying Dr. Wilcox, as follows:

“It would not have been my practice or the practice of Human Resources to tell you that you would be automatically placed in a position when you were able to return.”
I never said to place me, but that I should be highly recommended from the district administration. You are not quoting me properly.[83]

         Ms. Beech testified that Mr. Johnson did not curse at her in this email and that she did not view his response as belligerent behavior. Dr. Wilcox testified while he did not believe Plaintiff was threatening Ms. Beech, Plaintiff's tenor was “challenging”[84] and that Plaintiff seemed to be in “a very agitated state.”[85]

         On October 19, 2015, Plaintiff sent another email to Ms. Beech and copied Dr. Wilcox. In that email, which followed up on a discussion Plaintiff and Ms. Beech had been having concerning Plaintiff's interview for the Truancy Monitor position, Plaintiff stated, in part:

Like I stated before . . . I have many other applications in the system I am certainly qualified for if not over qualified and nor [sic] getting interviews. I stated this to you in person and will state this to Dr. Wilcox as he is being carbon copied. “This can be a positive for USD500 or a negative.” That said the ball is in the districts [sic] court. I've battled insurance companies, the state of Kansas, cancer and a disability and I've won. . . .
Now per the ADA, I feel as if I'm being passed over for positions based of [sic] my disabled state. Again, we can make this easy or hard. I will let the district decide.
Dr. Wilcox, I think it might be a good idea if I sit down with you face to face as my meeting with Ms. Beech did not have a resolution. . . . . If we need to involve Mr. Smith from the PR department I'd suggest he be involved as well.
That is my stance. Please let me know when we can arrange this meeting. Myself and my many political and professional contacts are awaiting the outcome of your decision.[86]

         Ms. Beech testified that she viewed Plaintiff's October 19, 2015 email as a threat that he would go to the news media or his political and professional contacts in the community if Defendant did not do as he wanted. In fact, Plaintiff did leave a voicemail for David Smith, Defendant's Communications Director, but never spoke with him. Ms. Beech did not interpret Plaintiff's October 19 email as a threat of physical harm.

         When Dr. Wilcox responded to Plaintiff's email on October 20, 2015 by asking what additional questions he could answer, [87] Plaintiff replied by reiterating his desire for an in-person meeting with Dr. Wilcox and expressing his frustration with not having been hired. That email reads, in part:

We need to meet. You need to make time. I'm not meeting with Shelly Beech ever again. We need a face to face or I need one with her direct supervisor.
My questions and issues will be discussed in person. I resigned “in good faith” Bob. I'm being passed over for jobs I'm highly qualified for, I'm not even getting interviews on some. I'm very upset with the district and you can make this easy or hard. [I've] already contacted David Smith, I have board members that are friends if [sic] mine concerned of your hiring process and the districts [sic] direct approach to my “trying” to return to the district that I was highly regarded in before my health issues.
Needless to say, we need a sit down![88]

         Dr. Wilcox testified that, as a human resources employee with twenty-two years of experience working with many types of individuals and personalities, he is good at reading people and interprets a statement such as “you can make this easy or hard” to be a threatening statement.[89]

         Approximately forty minutes after receiving the foregoing message from Plaintiff, Dr. Wilcox sent an email to his assistant, Lisa Wilson—copying Dr. Kelli Mather, Defendant's Chief Operations Officer—asking that Ms. Wilson have front-desk security “flag” Plaintiff. Dr. Wilcox stated:

Please contact the front security desks to flag former employee Todd Johnson. I am concerned that he might try to enter the building without an appointment. If he has an appointment and this can be confirmed, he may proceed. However, we are requesting that security calls up to the person he says he is visiting and it's then confirmed by the person he is requesting to see.[90]

         Dr. Wilcox testified that applicants who begin to challenge why they have not been hired raise his level of concern as a Human Resources employee, and that it is the responsibility of the Human Resources Department to maintain a safe environment for the persons they work with. Ms. Beech testified that although she has never personally done so, Human Resources directors may flag an individual with security when that person is of concern or may enter the building and cause a disruption. Plaintiff never expressly stated his intent to enter Defendant's offices without a prior appointment. Dr. Wilcox testified that he does not recall how many times in the past he has flagged a former employee to prevent that person from entering the building without an appointment, nor does he recall the identity of any individual he has flagged other than Plaintiff.

         Dr. Mather testified that she recalled one brief conversation with Dr. Wilcox about Plaintiff, during which Dr. Wilcox expressed concern about having to meet with Plaintiff and requested that Dr. Mather participate in that meeting. Dr. Mather did not personally review prior correspondence between Plaintiff, Dr. Wilcox, and Ms. Beech. She did agree to participate in the meeting, which was scheduled for October 26, 2015. On October 22, 2015, Dr. Wilcox sent an email to Dr. Mather explaining certain precautions to be taken for that meeting:

I am going to have Lisa schedule the meeting with Mr. Johnson by one of the conference rooms near an exit. Mr. Johnson was pretty aggressive with her on the phone as he insisted on the meeting to be scheduled for an hour. He went so far as to say to Lisa that he is giving me the “directive to call him and explain why he cannot meet for longer than an hour.”
We will also have Security lined up to be in the general area in case Mr. Johnson displays this type of behavior during the meeting.[91]

         Although Plaintiff never made an express, physical threat toward either Ms. Beech or Dr. Wilcox in their prior communications, Dr. Wilcox testified that Defendant uses these precautions when dealing with an individual who is hostile, aggressive, or displaying behavior that is not appropriate for a school setting. Dr. Wilcox testified that he could not recall the conversation he had with Ms. Wilson after she communicated with Plaintiff about scheduling an in-person meeting and, therefore, he could not say whether Plaintiff yelled at or threatened Ms. Wilson.

         On October 23, 2015, Plaintiff cancelled the October 26 meeting without explanation. His voicemail stated: “. . . this is Todd Johnson, um, my appointment with Bob, uh, Dr. Wilcox, on Monday, you can cancel that. That is all you need to know.”[92] Dr. Wilcox does not recall whether he ever personally reviewed Plaintiff's resume or applications, spoke to the hiring managers for the positions for which Plaintiff applied, or contacted Plaintiff's references. Dr. Wilcox never met Plaintiff in person or communicated with him verbally.

         On October 27, 2015, Plaintiff applied for a position as a Principal's Secretary/Treasurer. Plaintiff was one of thirty-eight applicants for this position. Again, Plaintiff had no prior experience as a secretary in an elementary, middle, or high school, nor did his application reflect any specific experience as a secretary or treasurer. Although Plaintiff testified to some accounting and bookkeeping experience from prior work in a non-school setting, his resume did not specifically describe that experience.[93] His resume did reference his experience handling budgeting and expenses during his time as a basketball coach.[94] Plaintiff was neither interviewed nor hired for the Principal's Secretary/Treasurer position.

         On the same date, Dr. Wilcox sent an email to Dr. Mather, Ms. Beech, and others stating that he was mailing a letter to Plaintiff “which will indicate that at this time his applications are not being screened for further review. Please plan to close all current applications and flag accordingly tomorrow to correspond with his receipt of this letter.”[95] The following afternoon, Dr. Wilcox directed his staff to “proceed with closing out applications for Todd Johnson. Mr. Johnson has displayed some threatening actions that have heightened our level of concern over the safety and well-being of those who might schedule a time to meet with him.”[96] Thus, Dr. Wilcox made the decision to no longer screen Plaintiff's applications for any position going forward. Although Dr. Mather's testimony is unclear about whether her approval was required before Dr. Wilcox could send the letter to Plaintiff, ...

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