United States District Court, D. Kansas
MEMORANDUM AND ORDER
L. TEETER UNITED STATES DISTRICT JUDGE.
Kemuel Godoy-Guzman brings this action against his former
employer, Defendant Unified Government of Wyandotte County
and Kansas City, Kansas, alleging disparate treatment,
hostile work environment, retaliation, and retaliatory
harassment in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C.
§§ 2000e, et seq. Defendant moves for summary
judgment on all claims. Doc. 43. For the following reasons,
the Court denies Defendant's request for summary judgment
on Plaintiff's claims for retaliation-to the extent that
claim is premised on Plaintiff's termination-and
retaliatory harassment. But the Court grants Defendant's
request for summary judgment on Plaintiff's disparate
treatment and hostile work environment claims, and on his
claim for retaliation on all other bases.
Plaintiff's Employment History
October 2013, Defendant-a municipality located in Wyandotte
County, Kansas City, Kansas-hired Plaintiff as a Fleet
Maintenance Worker in its Public Works/Fleet Services
Division. Doc. 30 at 2 ¶¶ 1, 3-4. Two months later,
Plaintiff was elevated to the position of Fleet Maintenance
Technician I. Id. at 2 ¶ 5. During his
employment with Defendant, Plaintiff was responsible for
performing preventative maintenance on and repairing
Defendant's vehicles, including vehicles used by
Defendant's Police Department and Sheriff's
Department. Doc. 44 at 5 ¶ 13.
September 2015 Harassment Complaint
in 2015, Plaintiff-who is Hispanic and was born in Mexico
(Doc. 30 at 2 ¶ 2)- was subjected to a number of
derogatory race- and national-origin-based remarks by his
coworkers. The comments were principally made by Patrick
Garrett (initially a Fleet Maintenance Technician II, and
then, as of August 27, 2015, Lead Fleet Maintenance
Technician), Rita Adams (Clerk II), Steve Stratton (Fleet
Maintenance Technician II), and Shawn Vanderwerf (Fleet
Maintenance Technician II). Doc. 44 at 10 ¶ 29. The
uncontroverted evidence establishes the following comments:
• When Plaintiff spoke English, Plaintiff's
coworkers made fun of his accent and told him to “speak
English” (even though he was). Id. at 10
• When a dispatcher announced crimes such as auto theft
over the police radio (which the fleet services employees
could hear in the police vehicles they were servicing),
Garrett commented to Plaintiff that the thieves were his
• After Garrett's truck was stolen, Garrett
commented to Plaintiff that Garrett knew Plaintiff's
cousins did it and that Garrett's truck was
“probably in Mexico by now.” Id.
• Plaintiff's coworkers called him “KG”
instead of his full name because they had difficulty
pronouncing it. Id.
• When Plaintiff spoke to his family members on the
phone in Spanish, Stratton told Plaintiff to “speak
English, this is America.” Id.
• When Plaintiff played Mexican music in the shop his
coworkers told him to turn it off, but when other genres of
music were played, no one was told to turn off the music.
• Garrett and Stratton asked Plaintiff if he was related
to Mexican drug cartel leader El Chapo. Id.
• Garrett told Plaintiff that he looked too
“Mexican” without his glasses and that Garrett
did not like that. Doc. 52 at 10 ¶ 24.
• Garrett alleged Plaintiff was going to Texas to buy or
sell cocaine. Id.at 10 ¶ 28.
• After Plaintiff injured his back at work, Vanderwerf
accused Plaintiff of faking the injury and “putting
down” his Mexican race because Mexicans were supposed
to be hard workers. Id. at 10 ¶ 30.
• When Plaintiff showed photos of his baby, who is
light-skinned, Vanderwerf asked Plaintiff if he was sure the
baby was his and told him he should get a DNA test. Doc. 44
at 10 ¶ 30. This prompted Plaintiff to stop showing
pictures of his children to his coworkers. Doc. 52 at 10
conduct culminated in an incident on September 9, 2015
involving Adams and Garrett. Doc. 44 at 11 ¶ 31. At
lunch, Adams, apparently incensed that her food order from a
Mexican restaurant was incorrect, complained:
“Motherfuckers couldn't get my order right.
Bitches. That's why I hate those fucking wetbacks. They
need to go back to their fucking country.” Id.
Noticing Plaintiff-who was also sitting and eating his
lunch-Adams continued: “No offense, but I fucking hate
them.” Id. Garrett subsequently walked in and
Plaintiff told Garrett about Adams's comment.
Id. In response, Garrett took an unopened bottle of
water that was sitting on a table, began opening it, and
stated, “Hey KG. Turn around and let me pour this down
your back.” Id. When Plaintiff asked what
Garrett meant, Garrett claimed he was joking. Id.
same day, Plaintiff called Defendant's Human Resources
Department (“HR”) to report that he had been
subject to unwanted comments and treatment by some of his
coworkers. Id. at 10 ¶ 27. Plaintiff discussed
his complaint with Renee Ramirez (HR Director) and Shakeva
Christian (HR Manager) on the phone two days later.
Id. at 10 ¶ 29. During the call, Plaintiff told
Ramirez and Christian that several employees-including
Garrett, Adams, Stratton, and Vanderwerf-had made jokes and
remarks regarding his race or national origin. Id.
and Christian investigated Plaintiff's complaints and, at
the conclusion of the investigation, recommended that
Garrett, Adams, and Stratton be disciplined for violation of
Defendant's Harassment in the Workplace
policy. Id. at 14 ¶¶ 45-46.
Merle McCullough-who, as Fleet Services Supervisor, was in
charge of the Fleet Services Division (Id. at 4
¶ 6)-followed their advice and issued the recommended
discipline. Id. at 15 ¶ 47. Stratton was issued
a written warning, Adams was suspended without pay for one
day, and Garrett was suspended without pay for five days.
Id. at 14 ¶ 46. All three employees were also
required to attend training aimed at preventing workplace
Plaintiff's harassment complaint and the resultant
discipline, Plaintiff's coworkers no longer made jokes or
comments about his race or national origin. Id. at
15 ¶ 53. Indeed, Plaintiff felt that Garrett, Adams, and
Stratton limited or avoided interacting with him.
Id. at 15 ¶ 51. But, although his coworkers no
longer made such remarks, they made other comments regarding
Plaintiff's complaint to HR. Id. at 15 ¶
53. For example, Lawrence “Bubba” Harvey made
comments such as “watch out what you're saying
because KG is here, he might go to Human Resources and
report” and “I don't care if you report me or
not.” Id. Other comments by Plaintiff's
coworkers included: “Don't say nothing because we
have a crybaby here”; “Somebody is going to go to
Human Resources”; “That didn't offend you,
did it?”; and “Did I say something wrong?”
Id. Plaintiff did not report these comments to HR
because he did not want to look like he would go to HR
“every time for any little thing” and, because
the race- and national-origin-based comments had stopped, he
thought he could handle “the other stuff.”
Id. at 16 ¶ 54.
also claims that, following his complaint to HR, he received
harder and more complicated work. Plaintiff alleges that
Vanderwerf would leave the harder repairs for him so that, if
the repairs took a long time or didn't get done,
Plaintiff would look bad. Id. at 17 ¶ 61.
Plaintiff also alleges that Garrett-who, as Lead Fleet
Maintenance Technician, had the ability to assign
work-related tasks to other technicians (Id. at 13
¶ 40)-gave him the hardest and most complicated work.
Id. at 18 ¶ 64.
Plaintiff's Discipline and Retaliation Complaint
this time, in late 2015, Plaintiff applied for a promotion
and, effective November 5, 2015, was elevated to the position
of Fleet Maintenance Technician II. Doc. 30 at 3 ¶ 10;
Doc. 52 at 15 ¶ 68. McCullough opposed Plaintiff's
promotion because he had concerns about Plaintiff's work
performance-even though Plaintiff had not been issued any
discipline for poor work, or any other reason, in 2015. Doc.
44 at 16 ¶ 56; Doc. 52 at 15 ¶ 69. Because
Plaintiff was the highest seniority applicant, he was
ultimately awarded the position. Doc. 44 at 16 ¶ 56.
Shortly after Plaintiff was promoted, McCullough assigned
Plaintiff to repair a bus that other mechanics had been
unable to fix. Id. at 18 ¶ 66. When Plaintiff