United States District Court, D. Kansas
MEMORANDUM AND ORDER
F. MELGREN UNITED STATES DISTRICT JUDGE
Roger Mathews filed suit against Defendant Butler Community
College (“BCC”) alleging age discrimination and
retaliation. Defendant now seeks summary judgment on
Plaintiff's claims (Doc. 43). Because the Court finds
that genuine issues of material fact exist, the Court denies
Factual and Procedural Background 
Roger Mathews was born in 1951. In 2015, at the time of the
events at issue, he was 64 years old. Defendant BCC hired
Plaintiff in October 1980, as a part-time instructor. On
August 1, 1986, Defendant hired him as a full-time employee.
He continued his employment with Defendant for 35 years,
until December 2015.
reported to Valerie Haring, the “lead” art
instructor, and Jay Moorman, the Dean of the Fine Arts
Department. Moorman reported to Karla Fisher, the Vice
President of Academics. Fisher reported to Kim Krull, the
President. Krull was responsible for the day-to-day college
operations, and she reported to the BCC Board of Trustees
(“the Board”). The Board is the ultimate decision
maker regarding employment policies and termination decisions
taught ceramics, jewelry, and stained glass. He consistently
performed his duties in a satisfactory manner. Prior to
August 14, 2015, he was never disciplined by Defendant, and
he received favorable performance and student evaluations.
used for Plaintiff's art classes included a variety of
kilns, torches, and other items. Plaintiff showed his
students how to make jewelry, glass, and ceramic pieces by
demonstrating the techniques used for those processes.
Plaintiff made his own projects by using Defendant's
kilns and torches. He purchased the materials for his own
projects using his own funds. Plaintiff also purchased glass,
precious metals, saw blades, and other items for students to
use in class. Plaintiff sold the items that he created at his
Wichita art gallery, the Mathews Gallery.
knew that Plaintiff used college-owned equipment and
electricity for the items which Plaintiff sold for himself.
He never made any objection. Other instructors in the
department did the same thing. Moorman never told Plaintiff
or any other instructor that they should stop the practice,
and he is not aware of any policy of Defendant's that
prohibited a faculty member from using the college's
tools, equipment, or electricity for their own use.
April 24, 2015, shortly after 6:00 a.m., there was a fire in
the art lab area. Public Safety Department police officer,
Kellen Morris, smelled smoke within building 300 while he was
unlocking buildings. He investigated and found an active fire
burning in Room 324, an area with three large kilns. This
room was assigned to Plaintiff for his classes. Nobody was in
paper, cardboard, and wood items had been stacked on top of a
heated electric kiln and had caught fire. Other combustible
materials, wooden materials, and other flammable materials
were nearby the electric kiln and the other two kilns. In
addition, an acetylene tank and its connected torch had been
Dorado Fire Department was called. Before they arrived,
approximately six minutes after the alarm sounded, Officer
Morris had already extinguished the flames. The arriving
firefighters made sure the fire was completely extinguished
and carried out the debris. There was some smoke damage, and
the estimated loss was $100.
fire in Room 324 was caused by the one electric kiln. On the
evening preceding the fire, Plaintiff had been alone in the
art lab from approximately 4:30 p.m., when classes ended,
until approximately 10:30 p.m., working on making fused glass
pieces. Plaintiff was using the other two kilns, but he did
not use the electric kiln. The other two kilns that were
being used by Plaintiff were programmed to run over several
days. There was no requirement that somebody had to monitor
the kilns while they completed their cycle.
kiln that was involved in the fire was not on when Plaintiff
left the art lab. If it had been on, it would have made a
clicking sound. The electric kiln involved in the fire had
not been used for more than a year and a half. To turn the
kiln on, someone had to program the touchpad. Plaintiff
stated that he was the only person who know how to ignite the
electric kiln. Plaintiff denied turning it on and speculated
that it must have been a computer glitch.
“Tim” Bryan (48 years old) was the Director of
Public Safety/Chief of Police of Defendant. He held several
previous positions as a certified law enforcement officer.
Pursuant to Kansas statutory law, Defendant established a
campus police department whose officers held the same full
law enforcement powers and authority as city police or
sheriff deputies to investigate crimes near campus.
Bryan went to the scene of the fire after it had been
extinguished. Plaintiff also came to campus shortly after
being notified of the fire. Chief Bryan and Plaintiff spoke.
During the conversation, Plaintiff told Chief Bryan that the
two kilns that had been turned on were for fused glass art
made by his students. He also told Chief Bryan that some of
the items in the kilns were glass products that he had made
to sell at his own personal retail art business. Plaintiff
stated that he frequently sold art items for profit at
Mathews Gallery that he had made using Defendant's kilns.
When Chief Bryan asked Plaintiff who had given Plaintiff
permission to make his own work in the kilns, Plaintiff
stated “nobody, ” but that he had done it for
years. Chief Bryan told Plaintiff that the art lab was a
crime scene, and although he was not going to
Mirandize him, Plaintiff was his number one suspect.
Plaintiff stated that he felt intimidated because Chief Bryan
was wearing body armor and carrying a gun.
Bryan seized the glass pieces that were in the kilns not
involved in the fire and told Plaintiff that they were
evidence of criminal charges. Plaintiff was given an empty
box and told to gather his personal possessions. An officer
under Chief Bryan's supervision told Plaintiff to leave
investigation into Plaintiff after the fire included
potential criminal violations for (1) theft (unauthorized
control over property or services), (2) maintaining a public
nuisance (causing or continuing a condition which endangers
the public health or safety), and (3) interference with a law
enforcement investigation. The third potential crime was
because Bryan told Plaintiff not to speak to a student
witness before Bryan spoke to her and Plaintiff spoke to her.
During Bryan's investigation, he discovered that
Plaintiff only had one speeding ticket on his record.
returned to work after being gone for a week on a previously
planned absence. He taught his regular art classes as usual
for the remainder of the 2015 spring semester. There was no
communication about the fire. At the end of the school
semester, Plaintiff cleaned up his art rooms, including Room
324, to eliminate any fire hazards as required by Dean
Moorman. Plaintiff cleaned up to Moorman's satisfaction.
26, 2015, Moorman asked Plaintiff if he was going to retire.
Plaintiff did not answer the question. According to Vicki
Long, director of Defendant's Human Resources, it is not
common to ask employees if they intend to retire.
15, 2015, Plaintiff, with his adult son present, met with
Vice President Fisher and Moorman. Fisher memorialized this
meeting in an undated memorandum that was copied to Human
Resources Director Vicki Long, Dean Moorman, and Chief Bryan.
In this meeting, Fisher told Plaintiff that Human Resources
Director Vicki Long and Chief Bryan had different views on
how to proceed with Plaintiff.
stated that Long had consulted with Bob Overman
(Defendant's employment lawyer), and both Long and
Overman did not believe that there was a basis for
Plaintiff's termination or non-renewal of Plaintiff's
contract. Fisher told Plaintiff that Chief Bryan believed he
had a strong criminal case against Plaintiff and that
criminal charges were pending. She stated that if Plaintiff
did not retire, Chief Bryan was going to move forward with
prosecution. She also stated that if Plaintiff ended his
employment with Defendant, Chief Bryan agreed to hold the
charges “in abeyance.” Fisher stated that she was
not asking Plaintiff to retire but that she was simply giving
him the information. Fisher also told Plaintiff that he
should meet with Chief Bryan.
Long received Fisher's memorandum, she knew that it was a
violation of Defendant's policies to tell Plaintiff that
if he did not retire that Defendant would have him
prosecuted. In addition, Chief Bryan had never been involved
in personnel decisions involving Defendant's employees,
other than when he was that employee's supervisor. He had
no supervisory authority over Plaintiff.
asked to meet with Chief Bryan after his meeting with Fisher.
On June 16, 2015, Plaintiff, along with his adult son, met
with Chief Bryan. The meeting was recorded by Plaintiff.
Plaintiff initially asked what laws he broke. Chief Bryan
told Plaintiff about three crimes that he believed Plaintiff
committed and gave him a copy of the statutes and the
sentencing grid. Chief Bryan told Plaintiff that he had been
in law enforcement for 30 years. He stated that he reported
to the county attorney and not to Defendant's employment
attorney. Chief Bryan told Plaintiff that he never accused
Plaintiff of committing arson but that he did tell him that
the matter was initially being investigated as arson.
Plaintiff asked what he needed to do to avoid prosecution,
Chief Bryan stated that he was obligated to present the
felony case to the district attorney. He stated, however,
that he could make recommendations to the attorney, such as
asking that the charges be “no billed” or not
prosecuted. Chief Bryan stated that if an “alternative
solution” was put upon him to make a recommendation to
the district attorney, he would do so. Chief Bryan also
stated that he had suspended the case out of courtesy to
Plaintiff and in collaboration with the college. He told
Plaintiff that he needed to get an attorney. Chief Bryan
informed Plaintiff that if Plaintiff's attorney came
forward with a legal agreement with the school and the school
said that they were not interested in prosecuting that Bryan
would make that recommendation.
23, 2015, Plaintiff's attorney emailed a copy of the June
16 recorded meeting to Defendant's attorney.
Plaintiff's attorney told Defendant's attorney that
Plaintiff was in a protected age group and that it was
improper to demand retirement or prosecution. Plaintiff
declined to retire.
June 2015, Krull (Defendant's President) recommended to
the Board that Plaintiff's 2015-2016 employment contract
be terminated. Krull's recommendation was based on the
serious nature of the fire incident. It was also based on
violations that had occurred in 2002, 2004, 2007, 2008, and
fire marshal typically visited Defendant annually. Defendant
regularly received the first marshal reports on the Fine Art
and Humanities building. With regard to the fire marshal
reports of 2002, 2004, 2007, 2008, and 2009, Plaintiff did
not receive any discipline for those reports at the time.
Plaintiff was always cooperative and promptly took care of
the problem. Plaintiff also did not receive any discipline
for those reports between 2009 and 2015. Plaintiff did not
receive any fire marshal notices between 2009 and 2015.
the administration was gathering the fire marshal reports
that concerned Plaintiff, Long became aware of other
employees who had also received fire marshal writeups. She
did not recommend discipline for any of the other employees.
Long and Moorman were unaware of any other employees
disciplined or terminated based on fire marshal reports.
has a progressive discipline policy. The policy states that
an employee who has violated Defendant's policies will
receive a verbal warning, a written warning, another written
warning, perhaps a suspension, and then termination. The
policy also states that “[e]mployment of an employee
can be terminated without following the disciplinary process
if it is determined that gross misconduct has
occurred.” When disciplinary action was being discussed
in June 2015 regarding Plaintiff, there was no consideration
given to imposing a type of discipline less severe than
communicated the administrative recommendation for
termination to Plaintiff both verbally on June 23, and by
letter dated June 27. The recommended action could not be
taken without approval of the Board. Moorman, Plaintiff's
direct supervisor, was not consulted or ...