Opinion
Civil Action Nos. 99-2492-CM, 99-2489-CM.
February 1, 2002
MEMORANDUM AND ORDER
Pending before the court is defendants City of Topeka, Kansas and Joan Wagnon's motion to dismiss or for summary judgment (Doc. 140). Plaintiff filed these actions pro se, alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., the Vietnam Era Veterans' Readjustment Assistance Act (VEVRA), 38 U.S.C. § 4211 et seq., and the Kansas Veterans' Preference Act (VPA), Kan. Stat. Ann. § 73-201 et seq.
Following an order of this court and the entry of a pretrial order, plaintiff maintains his Title VII discrimination and retaliation claims raised against defendant City of Topeka, Kansas ("City"). In his Title VII claims, plaintiff alleges that defendant City failed to hire him due to impermissible reverse gender discrimination and that defendant City failed to hire him in retaliation for his filing of complaints with the Kansas Human Rights Commission ("KHRC"). In addition, plaintiff maintains his state law Kansas VPA claim raised against both defendant City, Kansas and defendant Wagnon. In his VPA claims, plaintiff alleges that defendants failed to hire him in violation of the Kansas VPA.
Plaintiff appears to have abandoned his ADEA claim, 29 U.S.C. § 621 et seq., as it is not referenced in the parties' pretrial order. Hullman v. Bd. of Trustees of Pratt Comm. Coll. , 950 F.2d 665, 667 (10th Cir. 1991) ("The pretrial order supersedes the pleadings and controls the subsequent course of litigation."); Fed.R.Civ.P. 16(e).
Although addressed in defendants' motion, the court does not construe plaintiff's claims as asserting a claim for retaliation under the Kansas VPA. See (Pretrial Order, at 3-5) ("Plaintiff alleges that he was qualified for each of the two positions [Topeka Housing Authority Executive Director and Environmental Code Service Officer] and that he was not hired because of his male gender, retaliation for filing KHRC charges, and his status as an honorably discharged military veteran.").
Although defendants title their motion a "motion to dismiss or for summary judgment," the court construes the motion as one for summary judgment, given the evidence presented in support of and in opposition to the motion. In their motion, defendants contend that plaintiff is unable to maintain his Title VII retaliation claim and his Kansas VPA claim and ask the court to grant judgment in their favor on these claims. For the reasons set forth below, defendants' motion is granted.
The court does not construe defendants' brief to seek judgment as a matter of law on plaintiff's Title VII reverse gender discrimination claim, as no arguments are directed toward that cause of action. The court declines to broadly construe defendants' motion to address all of plaintiff's claims because defendants' brief is not a picture of clarity and the court must draw all reasonable inferences in favor of plaintiff under summary judgment standards.
I. 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).
• Pro Se Considerations
The court is mindful that plaintiff in this action appears pro se and that his response is entitled to a somewhat less stringent standard than a response filed by a licensed attorney. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, this does not excuse plaintiff from the burden of coming forward with evidence to support his claims as required by the Federal Rules of Civil Procedure and the local rules of this court. Pueblo Neighborhood Health Ctrs., Inc. V. Losavio, 847 F.2d 642, 649 (10th Cir. 1988). Even a pro se plaintiff must present some "specific factual support" for his allegations." Id.
• Facts
• Parties' Failure to Follow Summary Judgment Rules
In his response briefs, plaintiff attempts to dispute the defendants' version of the facts. However, plaintiff's response brief falls short of satisfying the requirements imposed by Fed.R.Civ.P. 56 and D. Kan. Rule 56.1. Specifically, D. Kan. Rule 56.1 provides, "A memorandum in opposition to a motion for summary judgment shall begin with a section that contains a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute shall be numbered by paragraph, shall refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, shall state the number of movant's fact that is disputed." D. Kan. Rule 56.1 (emphasis added). Although plaintiff's response brief is set up in numbered paragraphs to address the facts set forth by defendants, plaintiff has, in many instances not cited to any portion of the record to support his assertions. Or, alternatively, if plaintiff has cited to the record, it is not cited with particularity, as required. Instead, plaintiff directs the court to "see Plaintiff exhibits deposition." (Pl.'s Response (Doc. 157), at ¶ 5). Moreover, the court notes plaintiff's responses and exhibits are numerous.
Despite these failings, the court recognizes that pro se litigants should not succumb to summary judgment merely because they fail to comply with the technical requirements involved in defending such a motion. See Woods v. Roberts, 1995 WL 65457, *2 (10th Cir. Feb. 17, 1995) (unpublished). To that end, the court has searched plaintiff's responsive submittals and attachments to determine whether genuine issues of material fact exist. However, the court declines to step into the role of advocate for the pro se litigant and notes that "a litigant's pro se status does not vitiate his obligation to comply with the Federal Rules of Civil Procedure." United States v. Ware, 172 F.R.D. 458, 459 (D.Kan. 1997) (citing Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994)). "Having chosen to file a civil action in the district court, [a pro se litigant] assumed the responsibility for complying with the rules of civil procedure." Chester v. Green, 120 F.3d 1091, 1091 (10th Cir. 1991). Therefore, where plaintiff has failed to provide sufficient information to controvert a fact set forth by defendants, the court will deem that fact admitted for purposes of this motion.
In addition, the court notes that many of the facts asserted by defendants are not properly supported as required by summary judgment rules. District of Kansas Local Rule 56.1(d) provides that "[a]ll facts on which a motion . . . is based shall be presented by affidavit, declaration under penalty of perjury, and/or relevant portions of pleadings, depositions, answers to interrogatories and responses to requests for admissions." Therefore, the court has not included defendants' unverified facts in its recitation of the facts of this case and, consequently has not considered the unverified facts in reaching a decision on defendants' pending motion. Given these considerations, the facts are as follows.
• Plaintiff's Application for Employment with Defendant City
Plaintiff applied for employment with defendant City as the Executive Director of the Topeka Housing Authority (hereinafter "THA position") and as the Environmental Code Service Officer (hereinafter "ECS position"). Plaintiff was not hired for either of these positions. Defendant City asserts that both applicants hired into these positions were evaluated by the hiring personnel as having more directly relevant background and experience than plaintiff and all other non-selected applicants.
Plaintiff asserts in his response that he applied for 30 to 40 jobs with the City over 14 years. However, as set out in its analysis infra, the court finds plaintiff has preserved his claims only with respect to the THA and ECS positions.
• THA Position
Defendant City hired Sherry McGowan into the THA position on June 9, 1997. The THA position required a bachelor's degree, at least five years of experience in housing or social service, a high level of written and oral communications, and computer knowledge. Ms. McGowan's background and experience included: college social work education; three years of law schooling with emphasis on family and business law; 10 years of real estate sales and contracting background; three years of managing and maintaining at least 60 rental units; experience in grant writing and consulting with non-profit organizations; two years of service on the Governor's Commission on Housing Homelessness; and three years service on Mayor's Commission on Affordable Housing. In addition, defendant Wagnon had a long standing friendship and personal trust in Ms. McGowan.
In contrast, Ms. Kim Austin-Smith, the Human Resources Director for defendant City since June 1997, attested that plaintiff's resume and application for the THA position reflected no information on the extent of real estate management or maintenance experience he had, and it showed plaintiff did not meet the required minimum of five years of housing work experience. Plaintiff testified that at the time of his application he, in fact, had received a masters degree in public administration, had 15 years of real estate management experience, and had an additional five years experience in construction management.
Ms. Austin-Smith further attested that, even if Ms. McGowan had not been hired for the THA position, other applicants were also more qualified than plaintiff for the position. The second person in line for the position had five years of direct experience in managing public housing programs, including section 8 and housing projects, and also had a masters degree in public administration. The third person in line for the position was a 20-year Navy veteran who would have had more military background than plaintiff.
• ECS Position
Defendant City hired Meg Perry into the ECS position on January 20, 1998. Ms. Austin-Smith attested that Ms. Perry was the best qualified applicant for the ECS position and had the most directly applicable experience and background. Specifically, Ms. Perry's qualifications included five years as a code enforcement officer spanning a broad spectrum of duties, including investigations, training, code enforcement, manual drafting, nuisance abatement cases, preparing reports for city and county planning hearings, ordinance drafting, and supervision (including supervision and training of land use regulation enforcement and code enforcement staff). In addition, Ms. Perry had a masters degree, three to five years of progressively responsible management and supervisory experience, and six years of membership in professional code enforcement organizations in both Kansas and California. Further, Ms. Perry held progressively responsible offices in code enforcement organizations, which included newsletter editing and seminar responsibilities and the teaching of a nuisance abatement class.
Ms. Austin-Smith attested that, in contrast, plaintiff's resume reflected no progressively responsible management or supervisory experience and contained no directly related experience. Seven applicants were referred for review. Plaintiff was not among the referrals.
Ms. Austin-Smith further attested that, even if Ms. Perry had not been hired for the ECS position, the other referrals were also more qualified than plaintiff for the position. The next person in line had three years of supervisory experience over a health agency, two years directly supervising a code compliance operation, and three years of military service, including a tour in Vietnam with an honorable discharge. The next most qualified applicant for the job also had progressively responsible management and supervisory experience and was a retired Marine Corps colonel.
• Defendant Mayor Wagnon's Involvement
The Director of the Human Resources Department, not defendant Wagnon, had final authority to make the hiring decision regarding both the THA and ECS positions. Defendant Wagnon did not make any final decision regarding whether plaintiff should be hired for these two positions. However, defendant Wagnon attested that she believed the City's Human Resources Department had exercised "superior judgment" in hiring Ms. McGowan and Ms. Perry for the positions, as they "each had superior qualifications to [plaintiff]."
• Plaintiff's Reputation
Ms. Austin-Smith attested that, based upon her knowledge of plaintiff's reputation among City employees as a difficult and aggressive individual, upon her belief that plaintiff attempts to influence the City's Human Resources Department staff members both on the telephone and in person, and based upon her observation of plaintiff's demeaning presentation to the Mayor and City Council, hiring plaintiff would be a "severe mistake" and "not in the best interests of the city." Specifically, Ms. Austin-Smith attested that she believed plaintiff would be a "disruptive influence" in the workforce. Since 1990, plaintiff has had the reputation among City Human Resources department staff as demanding and rude.
Robert Bugg, the City's Human Resources director from 1987-1997, attested that plaintiff is perceived "as being a very difficult person to work with." Plaintiff has the reputation with Mr. Bugg as someone who is "demanding, loud, argumentative, obnoxious, generally mistreating Personnel staff, disruptive, belligerent, accusatory, threatening suit, disrespectful, harsh, insistent, treating the Personnel Director worse than any other applicant in ten years, . . . rude, uncooperative, litigious, disrespectful, accusatory, . . . and unable to listen to an explanation." Therefore, Mr. Bugg attested that "it would have been irresponsible to hire [plaintiff] . . . who would then have to deal with the public and other City employees . . . because his harsh personality would be very disruptive in the workplace, and he would cause the stress level to rise among those forced to work with him." Moreover, plaintiff was perceived by several female public employees as "hating women and targeting female public employees for particularly virulent and focused mistreatment."
Further, at least one City Council member attested that they were so concerned about plaintiff's potential for physical confrontation during a City Council hearing in which plaintiff was involved that they requested law enforcement officers be present to provide security.
In addition, a private attorney at law in Topeka, Kansas, who represented an individual sued by plaintiff in an unrelated lawsuit, attested that plaintiff made abusive and harassing telephone calls to his office, forcing him to bar plaintiff from "coming to, and from calling, our law office for the protection of our law office staff and business associates, of me and my family." Plaintiff contends that this attorney was violent towards him, when, after following the attorney's directions, plaintiff arrived at Mr. McKenzie's office to pick up documents.
• Plaintiff's Veteran's Preference Claim
Plaintiff is an honorably discharged veteran. Plaintiff contends that, under the Kansas VPA, as an honorably discharged military veteran, plaintiff is entitled to a city job for which he applies and can reasonably do. Plaintiff testified, "I have a right to be treated the same as any other applicant except for veterans privilege, which I have a right to that job." Plaintiff testified that defendant Wagnon reported to him that veteran's preference was not a priority to her in hiring. Plaintiff further testified that defendant Wagnon told him that "city personnel would not hire [him] no matter what [he] did."
IV. Title VII Claims
• Claims Preserved
As noted, plaintiff maintains his Title VII discrimination and retaliation claims raised against defendant City. Specifically, plaintiff has alleged that defendant City failed to hire him due to impermissible reverse gender discrimination and that defendant City failed to hire him in retaliation for his filing of complaints with the KHRC. As previously noted, plaintiff makes in his response a general reference that he has been denied 30 to 40 positions with the City over the past 14 years, plaintiff has preserved his Title VII claims only as to the THA and ECS positions. In the pretrial order, plaintiff asserts as factual background for his case that:
Plaintiff applied for the position of Topeka Housing Authority Director for which a non-military veteran female was hired, and the position of Environmental Code Services Director for which a non-military veteran female was hired. Plaintiff alleges that he was qualified for each of the two positions and that he was not hired because of his male gender, retaliation for filing KHRC charges, and his status as an honorably discharged military veteran. . . . Plaintiff alleges he filed charges of discrimination with the [Equal Employment Opportunity Commission] and KHRC, each of which issued plaintiff "no probable cause" determinations and that he filed these consolidated lawsuits after receiving those "no probable cause" notifications.
Plaintiff states that he has been denied over 30 jobs he could have done, and non-veterans under KSA 73-201 were hired to the jobs instead of him. Plaintiff states the denial of employment was in violation of Kansas Veterans law section 73 of Kansas statutes INCLUDING KSA 73-202 THRU 73-204, and case law with it. Also, Plaintiff contends his claims can go back ten years to present, under continuing course of conduct doctrine. . . . Plaintiff also alleges retaliation by City employees against him in violation of his civil rights and EEO laws.
In the pretrial order, plaintiff does not reference with respect to his Title VII claims any positions other than the THA and ECS positions. Moreover, the pretrial order further specifies that it "shall supersede the parties' pleadings and control the future course of this action, unless modified to prevent injustice." Accordingly, the court finds plaintiff has preserved his Title VII claim only as to the THA and ECS positions. Hullman , 950 F.2d at 667 ("The pretrial order supersedes the pleadings and controls the subsequent course of litigation."); Fed.R.Civ.P. 16(e).
The court recognizes, however, that plaintiff proceeds pro se. Accordingly, where plaintiff is able to produce evidence to the court that he has preserved his Title VII claim as to any of the generally referenced positions, he may do so prior to trial. Where sufficient evidence is produced, the court may consider modifying the pretrial order "to prevent injustice."
• Exhaustion of Administrative Remedies
Defendant City asserts that plaintiff has not exhausted his administrative remedies for his Title VII retaliation claims. Specifically, defendant City appears to argue that plaintiff failed either to file a charge of discrimination or if he did file a charge, plaintiff failed to submit it timely to either the Equal Employment Opportunity Commission ("EEOC") or the KHRC.
1. Exhaustion
Exhaustion of administrative remedies is a jurisdictional prerequisite to bringing suit under Title VII. Seymore v. Shawver Sons, Inc. , 111 F.3d 794, 799 (10th Cir. 1997); Jones v. Runyon , 91 F.3d 1398, 1399 (10th Cir. 1996). Title VII requires a plaintiff to exhaust administrative remedies before filing suit in federal court. Khader v. Aspin, 1 F.3d 968, 971 n. 3 (10th Cir. 1993). To exhaust administrative remedies, a plaintiff must timely file a charge of discrimination with the EEOC. 42 U.S.C. § 2000e-5 (e) and (f)(1). The charge must be in writing, signed, verified and must contain a clear and concise statement of the facts. 29 C.F.R. § 1601.9 and 1601.12(3). The purposes of the exhaustion requirements are to provide notice of the alleged violation to the charged party, and to provide the EEOC with the opportunity to conciliate the claim. Seymore , 111 F.3d at 799.
Plaintiff has not presented evidence that he exhausted his administrative remedies with respect to the THA position. That is, there is no evidence presented to establish plaintiff filed a charge regarding the THA position with either the EEOC or the KHRC, as required. 42 U.S.C. § 2000e-5(e) and (f)(1). None of the charges presented to the EEOC or KHRC can be construed as asserting a complaint regarding the City's failure to hire plaintiff for the THA position. Accordingly, the court lacks subject matter jurisdiction over plaintiff's Title VII claims as they relate to the THA position. Seymore , 111 F.3d at 799. The court grants defendant City's motion on this basis and dismisses plaintiff's Title VII retaliation claim as it relates to the THA position.
The court has reviewed the charges presented in the parties' summary judgment papers.
In contrast, as discussed below, plaintiff has set forth evidence of exhaustion with respect to the ECS position. That is, plaintiff filed a charge of discrimination with the KHRC on June 18, 1999, asserting that the "City of Topeka, Kansas" failed to hire him for the "head of environmental services position." Therefore, defendant City's motion is denied on this basis.
• Timely Exhaustion
A complainant must file a charge with the EEOC within 180 days of the occurrence of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e). However, where a complainant also files a charge with a state or local agency with authority to grant or seek relief from the practice charged, the time limit for filing with the EEOC is extended to 300 days. Id.; Equal Employment Opportunity Comm'n v. Commercial Office Prods. Co. , 486 U.S. 107, 110 (1988).
42 U.S.C. § 2000e-5(e) provides that "a charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred . . . except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with at State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred. . . ."
Plaintiff timely exhausted his Title VII retaliation claim with respect to the ECS position. In his KHRC charge of June 18, 1999, which appears to have been jointly filed with the EEOC, plaintiff asserted that the "City of Topeka, Kansas" failed to hire him for the "head of environmental services position." Plaintiff indicated that he received notice that he "was not selected for the position" "on or about" January 1998. Drawing all reasonable inferences in the light most favorable to the plaintiff, the court assumes plaintiff received notice of the denial on January 31, 1998. Therefore, plaintiff had 300 days from January 31, 1998 — until November 27, 1998 — in which to file a charge in compliance with Title VII's time requirements. Because plaintiff filed the ECS charge on June 18, 1999, the charge was timely filed and the court denies defendant City's motion for summary judgment on this basis.
As the court has dismissed plaintiff's Title VII retaliation claims as they relate to the THA position, the court does not reach defendant City's additional exhaustion arguments directed at plaintiff's THA Title VII retaliation claims.
C. Title VII Retaliation
Plaintiff claims that defendant City's failure to hire him for the position of ECS position was in violation of Title VII. Specifically, plaintiff claims in part that defendant City's decision to deny him employment was in retaliation for his filing of KHRC charges. In his charge regarding the ECS position, plaintiff alleged that the City's decision not to hire plaintiff was "an act of retaliation for my having filed previous complaints against the [City]."
Defendant City argues plaintiff is unable to establish a causal connection between his filing of charges of discrimination and the City's failure to hire him for the ECS position. In addition, defendant City argues that, even if plaintiff is able to establish a prima facie case, he is unable to set forth evidence of pretext, sufficient to rebut the City's legitimate nondiscriminatory reasons for not hiring plaintiff into the ECS position. The court agrees.
To establish a prima facie case of unlawful retaliation, plaintiff must establish: 1) he was engaged in protected opposition to Title VII discrimination; 2) he was subject to adverse employment action; and 3) a causal connection between the protected opposition and the adverse employment action. Bullington v. United Air Lines, Inc. , 186 F.3d 1301, 1320 (10th Cir. 1999).
Plaintiff can establish the causal connection by "evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action." Burrus v. United Tel. Co. of Kan., Inc. , 683 F.2d 339, 343 (D.Kan. 1982); see also Medlock v. Ortho Biotech, Inc. , 164 F.3d 545, 550 (10th Cir. 1999) (where plaintiff is able to show a close proximity in time between the alleged retaliatory acts and the protected conduct, a causal connection may be inferred).
If plaintiff demonstrates a prima facie case, the burden of production shifts to defendant to articulate a legitimate, nonretaliatory reason for the adverse employment action. Garcia-Harding v. Bank Midwest , 964 F. Supp. 1492, 1510 (D.Kan. 1997). If defendant does so, the burden shifts back to the plaintiff to show that the articulated reason was a mere pretext for discrimination. Id.
• Prima Facie Case of Retaliation
The court finds plaintiff has not set forth sufficient evidence to establish a prima facie case of Title VII retaliation. Plaintiff's proof establishes that he engaged in protected activity by the filing of charges of employment discrimination prior to his application for the ECS position with the City. However, the charge filed against the City closest in time to the alleged retaliatory failure to hire in January 1998 was on December 13, 1995, alleging sex and age discrimination — a period of more than two years. This time period of two years is not, considering the Tenth Circuit's precedent, sufficient to give rise to a causal connection.
"Protected activity is 'the bringing of charges. . . .'" Heiman v. United Parcel Service, Inc., 12 Fed. Appx. 656, 665 (10th Cir. 2001).
Even if the court considers the charges plaintiff filed against other employers as a sufficient basis for the retaliation claim, see 42 U.S.C. § 2000e-3(a) ("It shall be an unlawful employment practice for an employer to discriminate against any . . . applicants for employment, . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, . . . under this subchapter."), the charge closest in time to the January 1998 alleged retaliatory failure to hire was filed against the Kansas Department of Transportation on July 26, 1996, alleging age discrimination and unlawful retaliation — a period of approximately a year and a half. As discussed, infra, this time period is insufficient to establish a causal connection under Tenth Circuit precedent.
The Tenth Circuit has "held that a one and one-half month period between protected activity and adverse action may, by itself, establish causation. By contrast, [the Tenth Circuit has] held that a three-month period, standing alone, is insufficient to establish causation." Anderson v. Coors Brewing Co. , 181 F.3d 1171, 1179 (10th Cir. 1999) (citation omitted); see also Heiman, 12 Fed. Appx. at 665 ("Our cases demonstrate that an intervening period of nearly six months is not sufficiently 'close temporal proximity' such that an inference of causation is warranted based on timing alone.").
Where, as in the case before the court, there is no "close temporal proximity between the protected activity and the retaliatory conduct, the plaintiff must offer additional evidence to establish causation." O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001). Plaintiff has not come forth with additional evidence of causation from which a reasonable jury could find in his favor. Accordingly, given the significant period of time between plaintiff's protected activity and the alleged retaliatory act, and considering the absence of any intervening evidence of antagonism or retaliatory animus, the court finds plaintiff has failed to establish a prima facie case of retaliation.
2. Evidence of Pretext
Even if the court were to find plaintiff set forth sufficient evidence to establish a prima facie case, he has not presented evidence sufficient to rebut defendant City's asserted legitimate nondiscriminatory reasons. Defendant City asserts that plaintiff was denied employment on two bases. First, defendant City asserts that the individual hired into the position was more qualified, as she had more relevant experience than plaintiff. Second, defendant City asserts that plaintiff's reputation among City employees for being disruptive and difficult to communicate with was an alternate reason for denying plaintiff employment.
The court notes that the City counsel's personal viewpoints about plaintiff's abilities and character are not relevant to the matter before it. There is no evidence that Mr. Plinsky was involved in the hiring decision at issue in this case. Therefore, although Mr. Plinksy has littered his brief to this court with "character assassinations" of plaintiff, the court has given no weight to Mr. Plinksy's personal opinion and hereby admonishes him that such language is inappropriately placed in federal court filings. Moreover, the court instructs Mr. Plinsky to follow proper decorum when addressing this, or any other, court.
Construing plaintiff's responses liberally, the court finds plaintiff's evidence is insufficient to create an issue of fact as to pretext. To avoid summary judgment, plaintiff must produce specific facts to show a genuine issue of fact as to pretext. Branson v. Price River Coal Co. , 853 F.2d 768, 771-72 (10th Cir. 1988). A plaintiff demonstrates pretext by showing either "a discriminatory reason more likely motivated the employer or . . . that the employer's proffered explanation is unworthy of credence." Texas Dep't of Cmty. Affairs v. Burdine , 450 U.S. 248, 256 (1981). For example, a plaintiff may demonstrate "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons." Morgan v. Hilti, Inc. , 108 F.3d 1319, 1323 (10th Cir. 1997). However, a plaintiff's "mere conjecture that [his] employer's explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary judgment." Branson , 853 F.2d 768, 772 (10th Cir. 1988).
• Qualifications
Plaintiff first asserts that he, in fact, is more qualified for the ECS position than Ms. Perry, who was hired. However, plaintiff has not presented evidence to rebut Ms. Perry's qualifications for the position, which included: five years as a code enforcement officer spanning a broad spectrum of duties, including investigations, training, code enforcement, manual drafting, nuisance abatement cases, preparing reports for city and county planning hearings, ordinance drafting, and supervision (including supervision and training of land use regulation enforcement and code enforcement staff); a masters degree; three to five years of progressively responsible management of supervisory experience; six years of membership in professional code enforcement organizations in both Kansas and California; and progressively responsible offices in code enforcement organizations, which included newsletter editing and seminar responsibilities and the teaching of a nuisance abatement class.
Nor has plaintiff presented evidence to rebut the City's assertion that his application for the ECS position did not reflect any progressively responsible management or supervisory experience and did not contain any directly related experience for the position. Plaintiff does provide evidence that at the time of his application for this position, he had received a political science and public administration degree with departmental honors, a masters degree in public administration and had management experience. Plaintiff further attests that he lived in the City of Topeka for 40 years and had superior education and grades, making him the superior candidate for the ECS position.
However, plaintiff's evidence regarding his own qualifications is insufficient to create a triable issue of fact regarding pretext as it relates to his qualifications for the ECS position. An applicant's own subjective evaluation that his qualifications are greater than another applicant's is not, without more, sufficient to establish pretext. Furr, 82 F.3d at 988 ("It is the manager's perception of the employee's performance that is relevant, not the plaintiff's subjective evaluation. . . ."). Moreover, a disparity in qualifications must be "overwhelming" to be evidence of pretext. Bullington, 186 F.3d at 1319. An employer's choice to hire one out of several similarly qualified candidates, without more, is not evidence of pretext. Id.
Even if plaintiff were to establish that his qualifications were greater than those of Ms. Austin-Smith, there is no evidence all of these qualifications were presented to the individual who made the decision to deny plaintiff the ECS position. Accordingly, the court finds plaintiff has not come forward with evidence that defendant City's decision to hire Ms. Perry rather than plaintiff was based on any discriminatory animus and, therefore, he has not established that defendant City's proffered reason was pretextual.
• Reputation
Plaintiff next asserts that he has a positive reputation in the community and, therefore, defendant City's assertion that his negative reputation was the basis for the denial of employment is pretextual. It is undisputed that plaintiff has done good work in the Topeka community. For example, plaintiff testified that he received the good neighbor award from Topeka Association of Neighborhoods in 1991, he has been involved with his church activities, and he has been involved with Topeka Jaycees and received awards at the local and state level for speaking and public relations for the Jaycee's in the late 1980s. Plaintiff also testified about various support he has provided to political candidates in the Topeka area over the years and about issues he has raised with the City Council.
However, it is also undisputed that plaintiff has acted in disruptive ways with City personnel. For example, City Human Resource personnel attested that plaintiff had a reputation among City employees as a "difficult and aggressive individual," as someone who is "demanding, loud, argumentative, obnoxious, . . . belligerent, accusatory, . . . disrespectful, harsh, insistent, and litigious . . .," and as someone who is difficult to work with. Based on this reputation, Ms. Austin-Smith, the City's Human Resources director, attested that hiring plaintiff would be a "severe mistake" and "not in the best interests of the city." Moreover, Mr. Robert Bugg, a past City Human Resources director attested that "it would have been irresponsible to hire [plaintiff] . . . who would then have to deal with the public and other City employees . . . because his harsh personality would be very disruptive in the workplace, and he would cause the stress level to rise among those forced to work with him." Plaintiff has not set forth evidence to rebut these assertions by City personnel. Even if all of plaintiff's disruptive behavior was related to his efforts to speak up for his employment rights or the employment rights of others, there is a point at which his actions may no longer be protected by Title VII. See Robbins v. Jefferson County Sch. Dist., 186 F.3d 1253, 1259 (10th Cir. 1999) ("'otherwise protected conduct may be so disruptive or inappropriate as to fall outside the statute's protection'") (citing Rollins v. State of Fla. Dep't of Law Enforcement, 868 F.2d 397, 401 (11th Cir. 1989)). Nor has plaintiff come forth with additional evidence to establish that the City's explanation for their failure to hire him is not worthy of credence. Plaintiff has set forth no evidence casting doubt on the legitimacy of the City's rationale for not hiring him into the ECS position. And the court may not "second guess business decisions made by employers, in the absence of some evidence of impermissible motives." Lucas v. Dover Corp., Norris Div., 857 F.2d 1397, 1403-04 (10th Cir. 1988). Without such evidence, the court cannot infer that the City acted for discriminatory reasons.
The court finds plaintiff has not set forth evidence, other than his own personal opinion, sufficient to raise an issue of fact as to whether the decision maker for the ECS position did not believe plaintiff had a negative reputation. As noted, more than "mere speculation" is necessary to establish pretext and survive summary judgment. Branson , 853 F.2d at 772.
• Conclusion
Accordingly, the court finds plaintiff has failed to set forth evidence sufficient to create a triable issue of fact regarding either a prima facie case of retaliation or pretext with regard to his Title VII retaliation claims. The court grants defendant City's motion seeking judgment in its favor on plaintiff's Title VII retaliation claim as it relates to the ECS position. Plaintiff's Title VII retaliation claim regarding the ECS position is dismissed.
Therefore, plaintiff's Title VII claims remain only with regard to his claims of reverse gender discrimination regarding the THA and ECS position.
Although the court has dismissed plaintiff's Title VII retaliation claim with respect to the THA position due to plaintiff's failure to exhaust administrative remedies, the court has not been presented with evidence to determine whether plaintiff has exhausted his Title VII claim for reverse gender discrimination with respect to the THA position.
V. Kansas Veteran's Preference Act (VPA)
Plaintiff maintains his state law Kansas VPA claim raised against both defendant City and defendant Wagnon. Plaintiff alleges that defendant City and defendant Wagnon unlawfully denied him public employment in violation of the Kansas VPA. Specifically, plaintiff alleges that "he has been denied over 30 jobs that he could have done, and non-veterans under KSA 73-201 were hired to the jobs instead of him." (Pretrial Order, at 3). Defendants appears to argue that plaintiff has not come forth with evidence sufficient to survive summary judgment on his VPA claim. The court agrees.
• The Kansas VPA
The Kansas VPA provides, in relevant part:
In grateful recognition of the services, sacrifices and sufferings of persons who served in the army, navy, air force or marine corps of the United States . . . and have been honorably discharged therefrom, they shall be preferred for appointments and employed to fill positions in every public department and upon all public works of the state of Kansas, and of the counties and cities of this state, if competent to perform such services; . . . and when any such ex-soldier, . . . shall apply for appointment to any such position, place, or employment, the officer, board or person whose duty it is or may be to appoint a person to fill such place shall, if the applicant be a man or woman of good reputation, and can perform the duties of the position applied for by him, or her, appoint said ex-soldier . . . to such position, place, or employment. . . ."
Kan. Stat. Ann. § 73-201 (emphasis added). Therefore, to realize the statute's preference in public employment, a qualifying veteran must be able to perform the duties of the position at issue, must be competent to perform those duties, and must be a man or woman of good reputation. See id.
When examining a veteran's claim under the Kansas VPA, Kansas court's have directed that "[t]he inquiry starts with the presumption that public officers do their duty, that they act fairly, from good motives, and with the purpose and intention of obeying the law." Ray v. Miller, 78 Kan. 843, 846-47, 98 P. 239, 240 (1908). An official's decision regarding whether a veteran is competent to perform the public position the veteran seeks is "final unless it is shown that [the official] acted in bad faith." State v. McNeill, 83 Kan. 234, 235, 109 P. 783, 784 (1910) (citing State v. Addision, 76 Kan. 699, 92 P. 581 (1907) (emphasis added)). To establish a violation of the VPA, a veteran must provide "evidence of facts which are inconsistent with official probity." Id. Suspicion, surmise, insinuation, and innuendo are not enough to overthrow this presumption. Ray, 78 Kan. at 847, 98 P. at 240.
• Claims Preserved
First, the court notes that plaintiff has failed to present evidence to support his claim that he has been denied "30 positions." Plaintiff must "set forth specific facts showing that there is a genuine issue for trial" regarding these positions. Anderson, 477 U.S. at 256. Plaintiff may not simply rest upon his pleadings to satisfy his burden. Id. Rather, plaintiff 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.
Although plaintiff generally has referenced 30 positions for which he has applied, he has not set out evidence regarding his VPA claim as to each of these positions. A review of the exhibits plaintiff submitted in support of his response shows that plaintiff, in a letter dated February 8, 1990 to Mayor Felker of the City of Topeka, Kansas, referenced several positions for which he applied and was not hired between 1989 and 1990. However, plaintiff has not presented evidence regarding his specific qualifications for each of these positions or regarding the City's response to his applications. Therefore, the court finds plaintiff has preserved his VPA claim only with respect to the two positions for which evidence has been presented — the THA and ECS positions.
• Analysis
The court finds plaintiff has not presented evidence to rebut the presumption that the public officer who made the decision not to hire plaintiff into the THA and ECS positions was acting in good faith and with the "purpose and intention of obeying the law." Ray, 78 Kan. at 846-47, 98 P. at 240. Without a showing of bad faith by the decision maker, the court is unable to disturb the decision of the City not to hire plaintiff.
• Inquiry into Plaintiff's Qualifications
The evidence shows defendant City did make inquiry into the qualifications of plaintiff by reviewing his application for employment. The evidence also shows that defendant City decided that plaintiff did not possess equal qualifications for either the THA or ECS positions as the individuals hired. As noted by the Kansas Supreme Court, defendant City's decision, when it appears "to have been honestly made, is not open to review or revision by the courts." The Kansas Supreme Court further noted that the "Legislature has placed the authority of making appointment mainly in the administrative officers and boards, and vested them with a discretion and judgment to determine who is best qualified to serve the public, and the general rule in such cases is that the courts cannot supervise the exercise of such authority, nor control the discretion and judgment vested." Dever v. Humphrey, 68 Kan. 759, 763, 75 P. 1037, 1039 (1904).
Plaintiff testified that defendant Wagnon reported to him that veteran's preference was not a priority to her in hiring. Plaintiff further testified that defendant Wagnon told him that "city personnel would not hire [him] no matter what [he] did." However, plaintiff has not established that Mayor Wagnon was the decisionmaker or that she influenced the decision of the hiring personnel regarding plaintiff's applications. In fact, it is uncontroverted that, although defendant Wagnon agreed with decision not to hire plaintiff, she did not play a part in arriving at the employment decision. Therefore, the court finds her state of mind, without more, is insufficient to establish bad faith.
• Plaintiff's Reputation
As set out in its Title VII analysis, plaintiff has not come forth with evidence, other than his own suspicions, to call into question the City's decision not to hire plaintiff due to his negative reputation among City employees. A requirement for appointment to public employment under the VPA is to be a man or woman of good reputation. Therefore, even if the court were to assume plaintiff were more qualified than the candidates chosen for the THA and ECS positions, plaintiff has not presented evidence that the City's decision not to hire him due to his poor reputation was made in bad faith. As noted above, it is uncontroverted that plaintiff's reputation among at least some City workers and in the City's Human Resources Department was negative. Plaintiff can point to no evidence to establish that his reputation was, in fact, a positive one or to show the decision maker acted in bad faith in relying on plaintiff's reputation as a reason to deny him employment.
• Conclusion
Given the plaintiff's failure to set forth evidence to show bad faith on the part of the defendant City or defendant Wagnon, the court finds no reasonable jury could conclude, even when viewing the evidence presented in the light most favorable to plaintiff, that defendants denied plaintiff employment in bad faith and without fair consideration of his qualifications, in violation of the Kansas VPA. See McNeill, 83 Kan. at 235, 109 P. at 784. Plaintiff's Kansas VPA claim is dismissed in its entirety.
• Order IT IS THEREFORE ORDERED that defendants' motion for summary judgment (Doc. 140) is granted. The court grants judgment to defendant City on plaintiff's Title VII claim for retaliation regarding both the THA and ECS positions. Plaintiff's Title VII claims for retaliation are dismissed. Therefore, plaintiff's only remaining Title VII claim is for reverse gender discrimination regarding the THA and ECS positions.
The court notes that defendant City did not move for judgment on this portion of plaintiff's Title VII claims; therefore, the court has not addressed them.
Further, the court grants judgment to defendant City and defendant Wagnon on plaintiff's Kansas VPA claims. Plaintiff's Kansas VPA claims are dismissed.
IT IS SO ORDERED.