Opinion
Civil Action No. 03-2352-CM.
January 21, 2005
MEMORANDUM AND ORDER
Plaintiff Sharon Heard filed the instant action alleging race discrimination and retaliation in violation of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and the Kansas Act Against Discrimination (KAAD), Kan. Stat. Ann. § 44-1001 et seq. Plaintiff also asserts a civil rights claim pursuant to 42 U.S.C. § 1983. This matter is before the court on defendants' Motion For Summary Judgment (Doc. 22).
I. Facts
The court construes the facts in the light most favorable to plaintiff as the non-moving party pursuant to Fed.R.Civ.P. 56.
Plaintiff is an African-American female. Plaintiff began working for the Board of Public Utilities (BPU) in June 1974 as a programmer. Plaintiff continued her employment with defendant until the time she applied for long-term disability.
Plaintiff initially named the BPU as a separate party defendant. Because the BPU lacks the capacity to be sued, the parties have stipulated that the Unified Government is the proper party defendant. For purposes of this opinion, the court will hereafter refer to BPU and the Unified Government as "defendant."
Defendant promoted plaintiff from programmer, to program analyst, to system analyst, and ultimately to Director of Information Services (DIS) in 1988. During her fourteen years as DIS, plaintiff reported to at least five different supervisors. In November 1997, defendant hired Nancy Zielke as Assistant General Manager of Finance. Plaintiff began reporting to Zielke in the latter part of 1997, and continued to do so until plaintiff took medical leave in May 2001.
Alleged Disparate Treatment
Plaintiff contends that she was subjected to disparate treatment by Zielke. Specifically, plaintiff alleges that:
A. Plaintiff received a memo from Zielke expressing dissatisfaction with the performance of plaintiff's department in meeting a target date for a project.
B. Plaintiff received two voicemail messages from Zielke, one which allegedly stated; "If I hear again that there is network activity going on, somebody is going to have to answer," and the other allegedly stating, "I got pulled out of a pension meeting by someone that says there's a network meeting going on. I want to know agenda, who, and I want you in my office Monday morning at 8:00."
C. Plaintiff was not included in meetings in which she believes she should have participated.
D. Zielke made comments to plaintiff during staff meetings about plaintiff's projects being behind schedule or about plaintiff being late to staff meetings. It is possible that the Information Services Department was behind schedule on completing a certain service request project.
E. Zielke made a comment at a staff meeting in which the gun buy-back program was being discussed. Zielke allegedly commented, "Now Sharon can sell her gun back."
F. Zielke wrote in her personal notes of a staff meeting that plaintiff had "rambled."
G. Plaintiff was not made a voting member of the Business Technology Oversight Committee.
H. Zielke communicated with plaintiff's subordinates and plaintiff's secretary about projects being worked on by the Information Services Department.
It is undisputed that Zielke never used any racial slur toward plaintiff and that defendant did not terminate or suspend plaintiff, nor did defendant reduce plaintiff's pay or benefits, demote her in any way, or transfer plaintiff to any other location or job.
Internal Complaint
Plaintiff filed an internal complaint of discrimination in June 1999. Sharron Parker was responsible for conducting investigations into complaints of discrimination. Parker sent a copy of plaintiff's complaint to Zielke on July 1, 1999.
In mid-to-late June 1999, Zielke was in the process of completing plaintiff's performance evaluation. Zielke testified that, when initially completing the evaluation, she erroneously marked the cooperation element as "Meets Requirement," when her intent at the time was to mark the element as "Needs Improvement." Zielke's final 1999 performance review of Heard, dated July 2, 1999, was marked "Needs Improvement" in the area of cooperation.
On November 2, 2000, plaintiff sent a memo to Parker inquiring about the status of her complaint. On December 2, 2000, Parker responded to plaintiff's inquiry, indicating, inter alia, that "the documentation provided does not suggest poor performance [by plaintiff] of such a magnitude to warrant the behaviors directed toward the complainant that have been observed by others and reported." (December 1, 2000 Letter from Parker). Parker also indicated in the letter that she (Parker) had been subject to varying degrees of both implicit and explicit intimidation regarding the complaint.
Management requested that Parker share her findings with regard to plaintiff's complaint prior to making the findings public. On March 30, 2001, Parker issued her findings with regard to plaintiff's complaint. Ultimately, Parker opined that plaintiff's allegations of discrimination had merit.
On March 30, 2001, Parker issued an addendum to her findings, recommending that Zielke be disciplined. Parker also suggested implementation of such things as scheduled one-on-one meetings with management to discuss goals and objectives, timely and appropriate performance feedback, clarification of plaintiff's job responsibilities, and allowing plaintiff to bid upon and receive the Technology Officer Position.
Plaintiff points out that none of Parker's suggestions was implemented. However, General Manager Leon Daggett had serious doubts about the adequacy and accuracy of Parker's report. Zielke announced in April 2001 that she was resigning to take a job as Assistant Vice Chancellor for Fiscal Operations for the University of Missouri-Kansas City. At about the same time, plaintiff took medical leave, and then a long-term disability commencing in May 2001.
"Technology Officer Position"
Plaintiff alleges that Zielke created a Manager of Information Technology Position and that Rick Yarnell was named to that position in an acting capacity. According to Zielke's deposition testimony cited by plaintiff, Zielke recalls that a reorganization of the Information Services department was considered, with discussion about adding three new positions — a Manager of Fiscal Services, a Legislative Specialist, and a Technology Officer. However, according to the evidence in the record — in particular the deposition testimony of Zielke, Donald Woodson, and Daggett, defendant never created a position of Manager of Information Technology, and Yarnell never served as Acting Manager of Information Technology. Plaintiff never applied for any position known as Manager of Information Technology.
The court points out that defendant stated this very fact in its Statement of Uncontroverted Facts. In response, plaintiff merely stated, "Controverted," with no citation to any portion of the record.
Alleged Retaliation
Plaintiff alleges that she was targeted for additional disparate treatment as a result of filing her complaint. The alleged retaliatory conduct consisted of:
A. Two memos from the Daggett, one commenting upon the failure of anyone in plaintiff's department to attend a scheduled breakfast meeting, and the other commenting upon staff members putting the budget process in jeopardy through individual communications to board members. The memo concerning the budget process referenced other departments in addition to Information Services, and asked all department heads to communicate to their employees that it is unacceptable behavior for individual employees to lobby board members for their independent budget desires.
B. A 1999 performance review by Zielke in which plaintiff was rated as "Needs Improvement" in the area of cooperation. The review also indicated that plaintiff was meeting objectives overall and recommended plaintiff for a pay increase.
C. Two conversations, one between Zielke and Bernie Cervera, the other between Zielke and Laurie Brough, in which plaintiff's internal complaint was referenced.
D. A request made by Zielke to Liz Monger to draft a report regarding the work being done by the Information Services Department on a particular service request. Zielke conducted a performance review of plaintiff in 2001, which indicated that plaintiff was meeting objectives.II. Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue 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." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. 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." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut"; rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
III. Discussion
Title VII of the Civil Rights Act of 1964 makes it an "unlawful employment practice for an employer to . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Such a claim can survive summary judgment only where the plaintiff has presented sufficient evidence as to show there is a genuine issue of material fact pertaining to whether the plaintiff's race actually motivated the allegedly discriminatory conduct. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000); Fed.R.Civ.P. 56(c). In determining whether the circumstantial evidence presented by the plaintiff in a given case is sufficient to establish a genuine issue of material fact, the Supreme Court has directed the application of the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973).
The McDonnell Douglas framework comprises three burden shifting steps. Initially, the burden rests with the plaintiff to establish a prima facie case of racial discrimination. Id. at 802. If the plaintiff has established a prima facie case, the burden then shifts to the defendant to "articulate some legitimate, nondiscriminatory reason" for its employment action. Id. Finally, if the defendant articulates a nondiscriminatory reason, the burden shifts back to the plaintiff to show the proffered reason is merely a pretext for racial discrimination. Id. at 804.
To establish a prima facie case of race discrimination, plaintiff must show that 1) she belongs to a protected class, 2) she suffered an adverse employment action, and 3) defendant treated similarly situated employees differently. Trujillo v. Univ. of Colo. Health Scis. Ctr., 157 F.3d 1211, 1215 (10th Cir. 1998). To establish a prima facie case of retaliation, plaintiff must show that (1) she engaged in protected opposition to discrimination, (2) defendant subjected her to an adverse employment action subsequent to the protected activity, and (3) a causal connection exists between the protected activity and the adverse employment action. Pastran v. K-Mart Corp., 210 F.3d 1201, 1205 (10th Cir. 2000). The court addresses plaintiff's race discrimination and retaliation claims simultaneously because both claims fail for the same reason.
Defendant contends that plaintiff did not suffer any adverse employment action. The court turns to the recent Tenth Circuit case of Stover v. Martinez, 382 F.3d 1064 (10th Cir. 2004), which states:
Although we will liberally construe the phrase adverse employment action, . . . the action must amount to "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or . . . causing a significant change in benefits.". . . Mere inconveniences or alterations of job responsibilities do not rise to the level of an adverse employment action.Id. at 1071 (citations omitted). Under this standard, the court finds that, even aggregating plaintiff's claims, plaintiff did not suffer discriminatory treatment severe enough to constitute an adverse employment action. Plaintiff alleges discriminatory conduct, but fails to set forth any evidence, credible or otherwise, of how such conduct, if it even occurred, significantly impacted plaintiff's employment status with the defendant, or plaintiff's future employment prospects. No such evidence exists, and in its absence, plaintiff cannot meet the burden of establishing that she experienced an adverse employment action. Plaintiff has failed to meet her Rule 56 burden of demonstrating a significant change in her employment status such that any rational finder of fact could determine that she experienced an adverse employment action.
With respect to plaintiff's allegation that she was denied the Manager of Technology Officer Position, there is no credible evidence in the record to suggest that such a position was even created. Indeed, the evidence in the record points to the contrary. Moreover, plaintiff does not dispute that she never applied for this position. In order for a plaintiff to assert that her employer discriminated against her by failing to hire, rehire, or promote her, that employee must have applied for the position she was denied. Garcia v. Pueblo Country Club, 299 F.3d 1233, 1238 (10th Cir. 2002); Bennett v. Quark, Inc., 258 F.3d 1220, 1228 (10th Cir. 2001).
The court concludes that plaintiff has failed to come forward with evidence sufficient for a jury to find that plaintiff suffered unlawful adverse employment action. For this reason, the court grants defendant's motion for summary judgment in its entirety.
IT IS THEREFORE ORDERED that defendants' Motion For Summary Judgment (Doc. 22) is granted.