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Mathews v. Butler Community College

United States District Court, D. Kansas

September 17, 2019




         Plaintiff 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 Defendant's motion.

         I. Factual and Procedural Background [1]

         Plaintiff 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.

         He reported to Valerie Haring, the “lead” art instructor, and Jay Moorman, the Dean of the Fine Arts Department.[2] 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 for Defendant.

         Plaintiff 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.

         Equipment 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.

         Moorman 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.

         On 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 the room.

         Flammable 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 left open.

         The El 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.

         The 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.

         The 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.

         James “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.

         Chief 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.

         Chief 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 campus.

         Bryan's 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.

         Plaintiff 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.

         On May 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.

         On June 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.

         Fisher 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.

         When 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.

         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.

         When 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.

         On June 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.

         In late 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 2009.

         The 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.

         When 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.

         Defendant 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 termination.

         Long 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 ...

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