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Greer v. City of Wichita

United States District Court, D. Kansas

June 29, 2018




         Plaintiff Anjela Greer brings a claim under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. § 4301 et seq., against Defendants City of Wichita, Kansas; Wichita Art Museum, Inc.; and Patricia McDonnell. Plaintiff is a member of the United States Navy Reserves. She claims that Defendants discriminated against her, based on her military affiliation and/or obligations, when they did not consider her for the position of Museum Operations Supervisor in July 2014. All Defendants now seek summary judgment asserting that Plaintiff was not qualified for the position and that there is no evidence of discriminatory treatment due to her military status (Docs. 141, 145). Because the Court finds that Plaintiff cannot establish a question of fact as to whether her military status was a motivating factor in Defendants' decision to disqualify her for the position, the Court grants Defendants' motions.

         I. Factual and Procedural Background

         Plaintiff Anjela Greer enlisted in the Navy Reserves in 1998 and has served since that time. The U.S. Navy requires her attendance at training one day a month and two weeks a year. She is also subject to call-up and deployment.

         In 2008, Plaintiff applied for the position of security guard at Defendant Wichita Art Museum (“WAM”) with Defendant City of Wichita, Kansas. The City of Wichita (“the City”) is a municipal corporation, and WAM is a not-for-profit corporation. The City and WAM have a joint operating agreement. Part of this agreement includes staffing. Most employees at WAM work for the City but some work for WAM. Historically, the only full-time employee of WAM was the Director. Defendant Patricia McDonnell has been the Director since August 2012.

         The City hired Plaintiff as a “custodial guard, ” a non-supervisory position. Shortly after she was hired, Plaintiff was deployed to Kuwait for a year. The City of Wichita held the position for her during the duration of her deployment.

         Plaintiff returned to Wichita in October or November 2009. She began her employment with the City as a full-time security guard for WAM on November 29, 2009. She was assigned first shift security guard.

         When Plaintiff began work, Mike Seis supervised her in his position of Museum Operations Supervisor (“MOS”). The MOS was and is employed by the City. The MOS is responsible for supervising the security guards on a day-to-day basis.

         Within one month of beginning her employment, Seis switched Plaintiff to the second shift. Plaintiff testified that Seis also assigned Plaintiff the title of Second Shift Supervisor. There was no interview or a pay increase. There is only one security guard on duty at WAM for the second shift, unless there are special events in the evening. Plaintiff says that her supervisory duties included giving permission to leave early, correcting employees' behavior as appropriate, and consulting with Seis on employee evaluations and scheduling.

         Terri Poynter is WAM Director McDonnell's executive assistant, and Poynter routinely works with McDonnell on a daily basis. Seis stated that Poynter complained about Plaintiff's military service and training obligations. Plaintiff said that Poynter personally said to her that she did not know why WAM kept her because Plaintiff was always gone for military leave and obligations.

         In April 2014, Plaintiff inquired with McDonnell about a weekend guard supervisor position that had recently become available. Plaintiff stated that McDonnell laughed about it. Plaintiff also stated that McDonnell said that you're still in the military, military thing, the crap, and you're not going to be considered or promoted or you're not going to do anything here.[1]

         On April 15, 2014, McDonnell recommended to the City that Seis be terminated from his employment as MOS, and the City did so. Seis consulted with an attorney and was allowed to resign. When Seis left, McDonnell and Jan Harper (CFO of WAM) asked Kevin Bishop to fill the position on an interim basis. Bishop had been employed by WAM as the Museum Store Manager from 1999 through 2014. Bishop did not want the job and had to be asked three times before he agreed to do it.

         When an interim position is open at the City, there is no formal application or interview process. Bishop began managing the security guards at WAM, including Plaintiff. In addition, Bishop oversaw all the physical maintenance of the museum, facility management, and a variety of other tasks.

         In the spring of 2014, McDonnell contacted Olivia Hensley, a Human Resources Specialist employed by the City, to prepare a MOS job description. Hensley worked as the designated HR Specialist for multiple departments, including WAM. Part of Hensley's job duties included ensuring that City policies and procedures were followed during the hiring process. She also worked with WAM in hiring and firing employees.

         The City uses its Neogov system (an electronic database) to post, apply, and submit information by the City about open employment positions. To apply for a position, the applicant must create a user account. After the account is created, the applicant applies for each position for which he or she chooses to apply. Applicants can also upload various relevant documents including resumes, or, if they seek veteran's preference during the process, a DD214 form (a Certificate of Release or Discharge from Active Duty).

         After a position closes on Neogov, the HR Specialist reviews the applications. The application process can proceed in one of two manners. The Department Head can “rank” the applications and determine the top candidates they would like to interview for the position or the HR Specialist can create a list of interview candidates based on the applications and various City policies, including Veteran's Preference. At the end of this process, the HR Specialist determines whether or not the ranking process complies with equal opportunity laws and City of Wichita policies.

         Alternatively, the Department Head can allow the HR Specialist to screen the applications and submit only those individuals who are qualified for an interview. The HR Specialist will provide a list of individuals whose applications met minimum qualifications. Individuals who submit applications but who are not qualified based on the information submitted are notified through a system-generated email that the application process ended and they were not selected.

         On June 3, 2014, security guard Mary Hernandez slammed a steel door into Plaintiff's shoulder with such force that it cracked the laptop in Plaintiff's backpack. Hernandez told Plaintiff that she meant to do it. Plaintiff stated that McDonnell responded to the incident by telling Plaintiff that “being in the military I figured you would be able to handle it.” In early summer, McDonnell and Hensley worked together to finalize the previously prepared job description for the MOS. It was determined that the job would be open to applications for a minimum of three days. It was only open to City employees currently working at WAM. The 2014 MOS position required the following experience and education requirements:

Graduation from a four-year college with a degree in criminal justice, business or public administration, or other related field, plus at least three years of experience in a museum environment, security or law enforcement related field, one of which is in a supervisory capacity. An equivalent combination of education, experience and training may be considered.

         In June or July 2014, McDonnell and Harper had two meetings with Bishop to discuss with him the prospect of becoming the permanent museum supervisor. He expressed reticence at both meetings.

         The City posted the MOS opening on July 21, 2014, through 3:00 p.m. on July 24, 2014, using its Neogov system. Harper called Bishop and told him the MOS position was open. Bishop did not want the job but believed that he was expected to apply, so he did. He felt it was either that or he would be out of work. While the posting was still open, Bishop called Plaintiff to let her know the MOS job was posted because he thought she may be a good fit for the position.

         Plaintiff submitted her application for the MOS position on July 23, 2014. On her application, she listed her current position as “Security.” She stated that she was in that position from 11/2009 through present. Plaintiff listed her duties as:

Monitors security of property, art works on display. Against theft, fires and vandalism. Inventory artwork daily and hourly per shift. Able to recognize and report needed repairs to supervisor. Monitor security systems alarms and conditions. Develop and maintain a working relationship with all associates including the public. To communicate clearly ...

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