Opinion
Civil Action No. 98-1196-CM
April 19, 2001
MEMORANDUM AND ORDER
Fourteen plaintiffs bring this cause of action against the Sedgwick County Sheriff's Department alleging racial discrimination in violation of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e, et seq. and 42 U.S.C. § 1981 and 1983. This matter is before the court on defendant's motion for summary judgment (Doc. 232). Defendant also has filed a motion for leave to supplement its statement of uncontroverted facts (Doc. 257) and second motion for leave to supplement its statement of uncontroverted facts (Doc. 264). Both of defendant's motions for leave to supplement its statement of uncontroverted facts are granted.
Plaintiffs also moved for leave to file a surreply brief in response to defendant's reply brief (Doc. 268). In support, plaintiffs contend that defendant presents brand-new issues in its reply that were never before raised in its briefing or in the pretrial order. Federal Rule of Civil Procedure 56(c) requires the nonmoving party to be given notice and a reasonable opportunity to respond to the movant's summary judgment materials. Thus, when a moving party advances in a reply new reasons or evidence in support of its motion for summary judgment, the nonmoving party should be granted an opportunity to respond. However, if the district court grants summary judgment for the movant without relying on the new materials and arguments in the movant's reply brief, the court may preclude a surreply. Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1164 (10th Cir. 1998). Having accepted defendant's reply brief, this court has two permissible courses of action. It could either permit a surreply, or it could refrain from relying on any new material contained in defendant's reply brief. Id.
Plaintiffs contend that defendant presented the following new issues in its reply brief: 1) whether the court has jurisdiction over plaintiffs' retaliation claims under §§ 1981 and 1983; 2) whether plaintiffs can use evidence which was not specifically listed in the pretrial order to rebut defendant's assertions in its summary judgment motions; and 3) whether defendant is entitled to judgment as a matter of law on plaintiff's § 1983 claims. Plaintiffs also contend that recent developments, namely the termination of plaintiff Wesley Roberts and one of plaintiffs' witnesses, require that they be permitted to file a surreply brief.
The court in this case chooses the option of refraining from relying on any new material contained in defendant's reply brief. Rather than determining whether plaintiffs' retaliations claim can proceed under §§ 1981 and 1983, the court will review that claim on its merits. Moreover, the court will not exclude consideration of evidence not specifically listed in the pretrial order. The court notes, however, that defendant's original summary motion contained an argument that defendant is entitled to judgment on plaintiffs' § 1983 claims because plaintiffs failed to identify defendant's policies which violated the law. Thus, the court can consider and rely on this argument for purposes of this opinion. Finally, plaintiffs' request to include new evidence is not based on any new evidence or arguments set forth by defendant in its reply brief. Accordingly, the court finds no basis upon which to grant plaintiffs' motion. Plaintiff's motion for leave to file a surreply brief is denied.
The court construes the facts in the light most favorable to plaintiffs as the non-moving party pursuant to Fed.R.Civ.P. 56.
Defendant is a county-wide law enforcement agency headquartered in Wichita, Kansas. Defendant is responsible for general law enforcement duties throughout Sedgwick County, Kansas and for the confinement of pre-trial detainees and inmates at the Sedgwick County Adult Detention Facility (SCADF). Defendant's operational framework is that of a paramilitary organization, meaning that it has a defined rank structure, with operational authority and responsibility increasing upwardly in the hierarchical chain of command. Defendant employs deputy sheriffs, who are fully-commissioned law enforcement officers with the power to arrest and the authority to carry firearms, and detention deputies, who perform corrections and jail functions at SCADF.
The sheriff occupies an elected position and has ultimate operational responsibility. The undersheriff is appointed by the sheriff and is the second in command. Directly below the undersheriff, in descending order, are majors, captains, lieutenants, sergeants, and corporals. Population control officers, inmate coordinators, and work release coordinators are the non-entry level positions at SCADF. The command staff, which consists of the sheriff, undersheriff, all majors, and an executive officer, meets regularly to discuss department business and promotions.
Work assignments may vary and are made by supervisors for each detention deputy on a daily basis. At SCADF, inmates are housed in pods or dormitories, which include general recreation areas and stations for the officers assigned to pod duty. Officers assigned to "direct pods" have inmate contact, meaning that the officers are not separated by physical barriers from the inmates. Officers assigned to "indirect pods" are physically separated from inmates assigned to those pods. Besides pod duty, deputies may be assigned to work other positions, such as rover, master control, booking, visitation, or processing. Master control is a room within the facility where deputies control visual and audio surveillance equipment and security locks and doors. There are no permanent assignments.
Detention deputies who successfully complete their basic training course are assigned to SCADF where they receive initial on-the-job training. Such training includes pod work. After a time, deputies may receive training in booking and master control.
Commissioned officers may receive promotions to sergeant, lieutenant, captain, and major; detention deputies may be promoted to corporal, detention sergeant, and detention lieutenant. The process for promotions to the positions of detention corporal, detention sergeant, and detention lieutenant includes a written examination, an oral interview board, consideration of past performance evaluations, education, and longevity with the department. Detention deputies seeking promotions must meet threshold eligibility requirements, which apply to all officers.
Promotion exams are administered in the fall of each year. Deputies may study for promotion exams by obtaining study packets from the department. Moreover, deputies who have not received training in all areas may nevertheless study for the exams by reading the department policy and procedure manuals. After the conclusion of the examination process, eligibility list are established which identify groups of deputies to be considered for promotion during the following year. Eligibility lists consist of the top 25% of promotion candidates, or the top-rated 12 candidates, whichever is greater. The lists are presented to the sheriff, who consults with the command staff concerning promotions. The sheriff makes the final decision regarding whom to promote. According to department policy, promotions occur when vacancies in the ranks higher than deputies occur. If there are no such openings, there are no promotions.
A. Plaintiffs
There are fourteen plaintiffs in this action. The court will briefly discuss each plaintiff and his or her relevant circumstances.
1. Plaintiff Edward Caban
Plaintiff Edward Caban began his employment with defendant on November 13, 1995. He applied for and obtained a position as a detention deputy, the position he currently holds. Caban has not tested for promotion.
a. Money Ticket Error
On June 24, 1999, Caban received a verbal counseling for a "money ticket error." Money tickets are forms generated by department personnel to document inmates' currency when they are booked into jail. On June 18, 1999, Lt. Hand ordered Caban to submit a report documenting a money ticket error that had occurred on June 3, 1999. On June 3, 1999, Caban had signed for a money envelope filled out in the amount of $27.07; inside the envelope, however, was $27.17. The outside of the envelope actually said 27.07, but there was a "1" written over the "0." The money ticket also was initially entered into the computer incorrectly.
Caban failed to submit the error report on June 18, 1999. Such reports are necessary to fulfill the department's obligations, as well as those of bank auditors, in regard to the jail account. Caban eventually submitted the report on June 23, 1999. Because the failure to timely submit a report is a dereliction of duty, Hand verbally counseled Caban. Caban later testified that the counseling was discriminatory and retaliatory, that he did not hear about any caucasian officers being disciplined for missing money, and that he heard that plaintiff Lewis and African-American deputy Thomas Haynes have been counseled.
b. Non-Regulation Footwear
Caban also claims that he was subjected to discriminatory discipline when he received a verbal counseling for wearing non-regulation footwear. On September 16, 1999, Lt. Houston, while walking through the facility to inspect Pod 4, passed the holding cells in the inner core hallway where he noticed Caban, who was speaking with an inmate at the time, was wearing some type of hiking boot instead of regulation footwear. Houston did not stop to speak to Caban about the matter at that time.
As Houston returned from inspecting Pod 4, he noticed Caban was still talking to the inmate. Houston went into the watch commander's office, contacted Sgt. Plant, and asked him if he were aware that Caban was wearing unauthorized footwear. Plant responded that he was not aware, so Houston told Plant to find out whether Caban had a medical reason for wearing the boots.
About 15 minutes later, Plant called Houston and stated that he had talked with Caban. Plant reported that Caban had stated that he did not have a medical reason for wearing unauthorized footwear and that he would start wearing his issued footwear. Caban also told Plant that he had seen approximately five other deputies in the past three minutes wearing unauthorized footwear and that Caban felt that Houston was singling him out. Caban stated that he wanted to see the sheriff about this and other issues.
Capt. Paige, Houston, and Caban met and discussed the situation. Caban stated that he had been wearing unauthorized footwear for about eight months or more and that he was concerned about being singled out. Houston told Caban that he was not being singled out but that Caban was the only officer Houston saw wearing unauthorized footwear. Paige then asked Caban why he wanted to see the sheriff, and Caban said that he wanted clarification of the term "open door policy." Houston told Caban that, if he wished to see the sheriff, he would have to send a deputy's report through the channels identifying the topic of the discussion. At the end of the conversation, Houston told Caban that he (Houston) needed a deputy's report from Caban concerning the wearing of unauthorized footwear for documentation of the conversation, to which Caban responded that he would comply.
Houston received Caban's report on September 17, 1999. In the report, Caban stated that he was singled out, that he felt it was unfair that Houston went to Plant about the matter, and that he (Caban) saw other deputies that day wearing unauthorized footwear. A roll-call inspection of detention deputies occurred on September 17, 1999, and no deputy was found to be wearing unauthorized footwear.
c. E-Mail Regarding Recruit Training
Caban also claims that he was discriminated against when Lt. Burns sent an e-mail to detention lieutenants and sergeants that made it appear that Caban was being critical of them. The situation arose when Caban, who was at the time a field training deputy for a class of detention deputy recruits, sent an e-mail to Sgt. Hoch, who was responsible for officer training. The message, which was sent on August 28, 2000, expressed concerns that Caban had about the training detention deputies recruits were receiving from deputies working at the facility. Hoch forwarded the e-mail through the chain of command to his supervisor, Burns. Hoch testified that he felt that Burns, as training lieutenant, needed to know about Caban's concerns so that the matter could be looked into and, if need be, corrected. Caban does not dispute that Hoch did not intend his actions to be discriminatory or retaliatory.
When Burn's received the e-mail from Hoch, he forwarded the message, which contained Caban's original message, to several officers who had administrative responsibilities for the facility. Burns's message identified Caban as the sender of the original message and noted, for the recipients, that the names of the field training deputies assigned to recruit training should be identifiable from the records. Burns concluded his message with the phrase, "Enough said." Burns testified that this was his way of telling the recipients to look into the matter because he felt Caban's concerns were legitimate, that corrective action may be needed, and that he never intended his message to be discriminatory or retaliatory. Caban, on the other hand, contends that Burns's forwarded the e-mail in a manner that suggested Caban was making complaints to the very people about whom Caban was complaining, and that this evidence's Burns's intent to discriminate and retaliate.
2. Plaintiff Barbara Maxwell
Plaintiff Barbara Maxwell began her employment with defendant on March 2, 1987, as a detention deputy. She tested for promotion in 1993, 1995, 1996, 1997, and 1998. She was promoted to detention sergeant in 1994 and to detention lieutenant in 1999, a position she currently holds. Maxwell's performance evaluation scores have increased each time she has received an evaluation.
a. Assignment to Work Release
Between 1991 and 1993, Maxwell served in the position of temporary assistant work coordinator. Maxwell wrote a report expressing her interest in the position on a permanent basis. The job was given instead to Todd Larson. Maxwell believes that this was discriminatory because, she claims, she was more qualified; both had degrees, but Maxwell had more seniority and had trained Larson in the facility. After Larson's assignment to assistant work release coordinator, there were two assistant work release coordinator positions-Larson occupied one, and Maxwell occupied the other.
Maxwell's assignment as temporary work release coordinator ended when she was transferred back to the jail when the jail was short-staffed. Because there was no difference in rank or pay between assistant work release coordinator and detention deputy, Maxwell's pay was not reduced when she transferred back to the jail. The temporary position she vacated was never filled by another deputy.
b. Third Shift Training List
Maxwell testified that, when she was a third shift supervisor, the responsibility to make personnel assignments (scheduling) was rotated among the supervisors on that shift in four-month increments. Maxwell claims that she identified African-American and white deputies who needed to be trained in the hopes that those officers would get trained during her four-month rotation. However, her list was not utilized after her rotation ended, and Maxwell contends that white officers who were not on her list received training.
3. Plaintiff LaSanda Linzy
Plaintiff LaSanda Linzy began her employment with defendant on September 1, 1982. She applied for and received a position as detention deputy. Linzy tested for promotion in 1999 and 2000, and was promoted to sergeant effective February 2000, a position which she currently holds.
a. Burglary of Linzy's Home
Linzy's home was burglarized in July 1998, and money and jewelry were taken. Linzy told the Wichita Police Department that plaintiffs Holloway, Wright, and McClinton, and Deputy Haynes had all been to her house, and in August she provided a report to Bardezbain that identified these individuals as possible suspects. Bardezbain was assigned to the Professional Standards Unit (PSU), which has the responsibility to investigate complaints about, and alleged misconduct of, department employees. Bardezbain had asked Linzy to submit the report explaining why she had identified those persons.
Both the Wichita Police department and the PSU interviewed plaintiff Holloway regarding the burglary. Capt. Steed of the sheriff's department recommended that an investigation be commenced by the PSU. Steed testified that he recommended an investigation because at least two deputies, Holloway and Haynes, were suspects and that, as employees of a law enforcement agency, it was imperative to determine whether either deputy was actually involved in criminal activity. Steed contends that his recommendation was not motivated by an intent to discriminate or retaliate, and plaintiff's contend that Cpt. Steed's intent was discriminatory and retaliatory.
Sgt. Oliver assisted Lt. Woods with the investigation, during which Holloway was interviewed more than once. Holloway agreed to take a polygraph examination. The first polygraph resulted in a conclusion that Holloway was being deceptive in answering certain key questions. Holloway requested a second polygraph, which she took and passed. By way of a report dated February 4, 1999, Woods notified Holloway that the investigation was complete and inconclusive. Plaintiff Holloway admits that she thinks the sheriff's department had a duty to investigate the circumstances of the burglary, but claims that the investigation was conducted in a discriminatory manner. Plaintiff Holloway was never disciplined in relation to the burglary.
4. Plaintiff Willetta Moore
Plaintiff Willetta Moore began her employment with defendant on December 16, 1991. Moore was a detention deputy when she tested for promotion in 1996 and 1998. She received a promotion to sergeant in July 1999, a position she currently holds.
Moore has learned each position detention deputies may work, has served on at least one interview board for new applicants, and has delivered instruction at the training academy. She did not take the 2000 promotion exam for lieutenant because of her university class load and her responsibilities for training deputies. Moreover, Moore has never applied for a road deputy's position. However, each time she has taken a promotion exam, Moore had no trouble obtaining a copy of the supervisory manual from which to study.
a. Failure to Cooperate with an Investigation
On October 8, 1999, Paige verbally counseled Moore for failing to cooperate with the investigation into the death of inmate Samuel Penn. Specifically, she was counseled for failing to cooperate with the Kansas Bureau of Investigation and the sheriff's investigators. The issue of Moore's failure to cooperate had been identified by Woods during the course of the investigation and was contained in his report of August 25, 1999.
During the verbal counseling, Paige told Moore that the purpose of the counseling was to discuss how her actions violated policy and to educate and assist her so that she would not violate policy under similar circumstances in the future. Moore stated that she understood the issues raised. Moore later testified that she believed the reprimand to be retaliatory because there was a year-long delay between the incident and the reprimand and because she received the reprimand after the instant lawsuit was filed.
5. Plaintiff Dwayne Wright
Plaintiff Dwayne Wright began his employment with defendant on November 13, 1989, after applying for and receiving a position as detention deputy. Wright tested for promotions in 1992, 1993, 1995, 1997, 1998, and 2000, and was promoted to Population Control Coordinator in 1991, Inmate Coordinator in 1994, and Detention Sergeant in 1999, a position he still holds. Wright has never received a substandard evaluation.
6. Plaintiff Vincent Michael Roberson
Plaintiff Vincent Michael Roberson began his employment with defendant on November 13, 1989 as a detention deputy. Roberson tested for promotion in 1993, 1996, 1997, and 1998, and received a promotion to detention sergeant in July 1999. Roberson resigned effective November 2000. Roberson never received a performance evaluation that was substandard.
7. Plaintiff Carla McClinton
Plaintiff Carla McClinton began her employment with defendant as a detention deputy on February 24, 1994. She applied for the position of sheriff's deputy, but did not successfully complete the testing process. McClinton is currently a detention deputy, tested for promotion in 2000, and is ranked first on both the 2001 eligibility lists for sergeant and corporal.
a. McClinton's Uniform Violation
On August 18, 1999, Houston verbally counseled McClinton concerning her violation of the department's uniform rules and for failing to obey a supervisor's orders.
8. Plaintiff Floyd Hunt
Plaintiff Floyd Hunt began his employment with defendant on June 4, 1990, after applying for and receiving a position as detention deputy, a position he still holds. Hunt tested for promotion in 1993, 1996, 1997, and 1998. He was offered a promotion to corporal in 1999, but refused the promotion.
a. Bond Envelope Oversight
On February 24, 1997, Cpl. Beauchesne learned from the Wichita Municipal court clerk that a cash bond envelope for an particular inmate was short $10. Hunt was the inmate's releasing deputy and was $10 long at shift change. Cpl. Beauchesne informed Lt. Breedlove of the situation, and $10 was placed in a cash bond envelope, which was then placed in the city's cash box at the clerk's request. Hunt was verbally counseled for this oversight concerning the bond money.
b. Hunt's Security Breach
On March 19, 1999, Bardezbain entered the secured part of the facility from the administration area and found the second floor south slider door open. Bardezbain checked the doors in the area and returned to find the slider doors still open. Over the previous few weeks, the first shift staff had been instructed many times to keep the sliders closed between the housing areas and the facility core and to only open the sliders when necessary.
On that day, Hunt was working overtime and was assigned to master control. Bardezbain contacted Brock by radio and instructed Brock to meet him on the second floor, where they discussed the security problem. Bardezbain instructed Brock to verbally counsel Hunt regarding the open slider. Brock wrote a report to document the counseling, which was placed in Hunt's employee file. Hunt was informed that, in the future, he was required to pay close attention to the security sliders and ensure that security is maintained, opening the sliders only when necessary, and closing them as soon as possible. 9. Plaintiff Wesley Roberts
Plaintiff Wesley Roberts began his employment with defendant on November 13, 1989. He applied for and received a position as detention deputy, a position he currently holds. Roberts has not tested for promotions because, defendant claims, a foot injury Roberts suffered prevents him from responding to incidents within the facility. He cannot, therefore, perform an essential function of the job. Roberts contends that the only reason he never tested for promotions was because defendant has always told him he was not promotable because of the foot injury. Roberts claims that he always wanted to be promoted.
a. Roberts's Suspension
On August 18, 1999. Houston was informed that Roberts was wearing black canvas tennis shoes rather than his regulation shoes. Houston reviewed various records of Roberts's, but found no restriction from a doctor stating that Roberts could not wear regulation footwear. Houston also contacted the human resources department and instructed the department to check Roberts's personnel file for any such documentation, but none was located.
The next day, Houston instructed Lt. White to advise Roberts that he needed to secure a doctor's excuse, including a statement that he could not wear regulation footwear, the reason why he could not do so, and for how long. As of September 3, 1999, Houston had not received a doctor's excuse from Roberts. Roberts, however, contends that he had turned in a prescription to White from his doctor on at least several occasions since 1993. In any event, Houston told White to have Roberts see him.
Houston spoke with Roberts on September 3, 1999, and asked him why he had not supplied a written doctor's excuse regarding his footwear. Roberts stated that he had gone to his doctor to get one, the documentation he needed was in storage, and that he was told it would take some time to get the information from storage. When asked, Roberts stated that the restriction on his footwear would last forever. Houston explained that employers have the right to require periodic reexamination and updates on employee restrictions. Roberts said that his attorney told him not to provide any more documentation regarding the footwear.
Around September 9, 1999, Houston learned that Roberts's file contained a document stating, "Deputy Roberts needs to wear a comfortable shoe." There was nothing in the file stating that Roberts was to forego wearing regulation footwear. That same day, Houston summoned Roberts to his office and discussed his findings. Houston told Roberts that he needed a doctor's excuse by the next day stating that he could not wear regulation footwear. Roberts stated that he would not provide the excuse. In response, Houston told Roberts that he was giving him a direct order to provide the excuse. Roberts stated that he would not, so Houston asked if he was disobeying a direct order, to which Roberts replied, "Yes."
At that point, Houston took Roberts into Capt. Bardezbain's office and advised the captain of the situation. Roberts acknowledged that he stated that he would not obey Houston's order, and further stated that he had brought a medical release about two years ago and that he was questioning the department's motives. Bardezbain gave the same order, and Roberts again stated that he would not comply, nor would he start wearing regulation footwear.
On September 10, Bardezbain met with Roberts and Houston about trying to work out a compromise. Bardezbain asked Roberts if he would be willing to wear a different shoe, such as a black walking shoe, if the department would forego requiring a medical release. Roberts stated that he was not willing to change his position.
On October 5, 1999, Houston personally reviewed Roberts's personnel files and found only the doctor's note, dated September 16, 1998, recommending that Roberts wear comfortable shoes. Later that day, Houston met with Roberts and showed Roberts a copy of the doctor's note. Houston asked Roberts if this was the doctor's excuse about which Roberts had been talking, and Roberts indicated that it was not. According to Roberts, the documentation that he previously had provided was on a doctor's prescription-type form. Houston told Roberts that he had not found anything like that during his review of Roberts's files. Houston asked Roberts if he would reconsider his position, and Roberts replied that he would not.
In correspondence dated October 14, 1999, Michael Pulice, the undersheriff, suspended Roberts for ten working days, beginning October 14, 1999 and continuing until October 27, 1999. On October 28, 1999, Roberts presented for duty wearing non-regulation footwear and did not have a doctor's statement indicating the need for an accommodation.
Pulice wrote a letter to Roberts dated October 29, 1999, which addressed the fact that Roberts returned to work wearing footwear that was not on compliance with the uniform policy. The letter reiterated that Roberts needed a doctor's excuse to continue wearing non-regulation footwear. The letter also stated that, because Roberts had no prescription and had refused to change into appropriate footwear, he was suspended for an additional fifteen days without pay. Roberts's suspension was construed to have begun on October 28, 1999 and to continue through November 18, 1999. The letter informed Roberts that the suspension could be terminated at any time prior to November 18 upon his compliance with the uniform policy. The letter further stated that, if Roberts continued to disregard the orders of his direct supervisors and the uniform policy, he would be indefinitely suspended, without pay, and that, if this occurred, an employment status hearing would be held to evaluate his continued service to the department.
10. Plaintiff Eric Dobbins
Plaintiff Eric Dobbins began his employment with defendant on May 8, 1996, after applying for and receiving a position as detention deputy. Dobbins has not tested for any promotions. When Dobbins applied to work for defendant, it was explained to him that the department was hiring at that time for the position of detention deputy and that detention deputy was the position for which Dobbins applied. Dobbins contends that no one explained that, if he were hired as a detention deputy, he could not attain a position beyond the rank of lieutenant. During the first three weeks he worked for defendant, Dobbins received training in pod, rover, work release, processing duties, and property. Dobbins received some of his training from plaintiff Roberson.
11. Plaintiff Rhonda Lewis
Plaintiff Rhonda Lewis began her employment with defendant on January 16, 1990, as a detention deputy. Lewis tested for promotion in 1993, 1996, and 1998, but did not receive a promotion. Lewis resigned on August 12, 1999. Lewis worked in pods, processing, property, rover, work release, and master control. Plaintiff's counsel has moved to withdraw as plaintiff Lewis's counsel.
12. Plaintiff Deborah Nesbit
Plaintiff Deborah Nesbit began her employment with defendant on February 24, 1994, as a detention deputy. Nesbit tested for promotion in 1999, but was not promoted. Nesbit resigned effective April 20, 2000. Nesbit worked in pod, rover, work release, and master control, and had been trained in all floor positions. Nesbit never tested for the corporal's position because she did not want to work it on a permanent basis. She was not denied the opportunity to take the corporal's exam. Nesbit does not believe that her race affected the way she was scheduled for work assignments or that her assignments to areas other than booking and property were based on her race.
13. Plaintiff Julie (Miller) Eckels
Plaintiff Julie (Miller) Eckels began her employment with defendant on November 13, 1995, after applying for and receiving a position as detention deputy. Eckels resigned on July 22, 2000. During her employment, Eckels did not test for any promotions. She was eligible to take the corporals's examination but did not do so. Eckels received training for all detention deputy jobs.
14. Plaintiff Brandi Holloway
Plaintiff Brandi Holloway began her employment with defendant on January 22, 1996 as a detention deputy. Holloway resigned on October 17, 1999. During her employment, Holloway did not test for any promotions. She resigned from the department after becoming eligible to test but before a promotion exam was given.
a. Holloway's Work History
Holloway had requested in writing to be trained in master control, booking, and property. Holloway received that training and, in fact, worked all positions available to detention deputies. While Holloway never applied for a promotion and was, therefore, never denied a promotion, Holloway testified that she did want to be promoted.
B. PWEA
In 1999, defendant began using a "Productive Work Environment Advisory" (PWEA) form. As best the court can discern, the PWEA is a form, given to employees in conjunction with their performance evaluations, which asks whether the employee has been a victim of harassment or discrimination and informs the employee that he or she may report any such conduct to supervisors. Sheriff Hill introduced the PWEA at a command staff meeting and, according to Steed, who was in attendance at the meeting, it was believed by the command staff that the utilization of the PWEA in the department would serve the purpose of providing an additional way to identify unlawful harassment if it existed. Plaintiffs, however, claim that the purpose of the PWEA was retaliatory and that the PWEA was used in an intimidating manner. The PWEA is given to all employees, regardless of assignment, rank, or race.
C. Overtime
Mandatory overtime has sometimes been used at the department. Overtime also has been utilized on a voluntary basis. At times, sign-up sheet have been used, and officers sign up for available overtime. Other times, supervisors call deputies who are known to want to work overtime. Supervisors also commonly ask deputies on a shift to work overtime on the next shift by making overtime availability known over the facility radio system. Plaintiffs allege that they have been discriminated against on the basis of their race in being denied voluntary overtime assignments.
D. Inmate Abuse Claims
Plaintiffs contend that the beating of African-American inmates by white deputies and officers contributed to a hostile work environment. Specifically, plaintiffs allege that they witnessed white guards beat African-American inmates who were shackled and defenseless while the officers yelled racial slurs. They also allege that they were physically excluded from areas while white guards beat African-American inmates.
The evidence in the record is as follows. Caban testified that he has seen pictures of inmates Conley and Vaden, and indeed took the photographs of Vaden, both of whom had visible physical injuries. Caban did not see either inmate being beaten, but testified that he heard from Roberson and Deputy Ross that Vaden had been abused. Caban also saw injuries (after the fact) inflicted on inmate Urbina by caucasian deputies. Caban testified that other deputies gave him information about the death of inmate Sean Penn. Caban claims that he saw two caucasian deputies escorting a noncombative, shackled African American inmate down a busy hallway while the inmate was naked. Caban could not recall this ever being done to a caucasian inmate.
Maxwell testified that Deputy Lemons told her that she (Lemons) saw a deputy strike an inmate. Maxwell does not know who the deputy or the inmate was. Maxwell also testified that Deputy Johnson-Wootson told her she saw a white officer strike a black inmate but does not remember when it happened. Maxwell further testified that an inmate told her that he had been beaten and accused her of doing nothing about it, but Maxwell could not recall the inmate's name or when it happened.
Dobbins testified that a black inmate told Dobbins that officers threw the inmate down, kicked him while he was handcuffed, called him "nigger," and told him that if he made a certain comment towards another white deputy, it would be his last. Dobbins does not remember the inmate's name. Dobbins also testified that Deputy Price told him she saw deputies take a pregnant female down on her stomach. Dobbins also saw Deputy Berry strike a handcuffed black inmate in the face while other white deputies sat on him. Dobbins does not, however, remember the inmate's name or who the other deputies were. Dobbins also claims he remembers hearing an inmate being beaten. Dobbins also saw an Hispanic inmate thrown to the floor by numerous caucasian officers and saw caucasian Deputy Tracey punch the inmate repeatedly after the inmate was handcuffed, then pick the inmate up and punch him again and again. Dobbins testified that, before inmate Penn's death, Penn told Dobbins that caucasian deputies had been calling him "nigger" and numerous other names. Dobbins further testified that he heard caucasian deputies make jokes and comments with relation to the death of Penn, to the effect that the deputies were glad Penn was gone.
Holloway has testified that she heard inmate Hayden screaming, "Please don't hit me. Don't hit me anymore. I'm down, I'm down. Please stop hitting me," while deputies were in his room. Holloway could not, however, see into the room. Holloway also testified that she saw Deputy Gibson grab a non-combative black inmate by the throat and throw him against a door, causing the window on the door to break. Holloway further testified that he saw caucasian Sgt. Brock, in about 1997, choking an Hispanic inmate until the inmate passed out. This occurred in booking because the inmate would not tell Brock his name. Holloway also claims that in 1996, while working in booking, she was asked to search a combative black female. While she was searching the inmate, the other deputies in booking, who were caucasian, locked her into the cell with the inmate for approximately two minutes. The other deputies, Holloway claims, laughed about it when they let her out. Holloway also testified that she saw African American inmate Milo Jones, who was being held in booking, without clothes about ten times over a three month period.
Linzy testified that she heard Deputy Grote say that he "beat the shit out of" an inmate, but Grote did not name the inmate. Linzy also testified that she has heard recent complaints from African American inmates about abuse by certain caucasian deputies. In 1997, Linzy saw caucasian Deputy Russell strike an Hispanic inmate who was shackled and standing still.
Wright testified that he received an inmate request form from inmate Vaden, in which Vaden claimed that Sgt. Nunnelly and another white deputy took him out of his cell, threw him up against the wall, smashed his head into a hallway wall, punched him, and called him "nigger this, nigger that." Wright testified that he also received an inmate request form from whom he thinks was inmate Bond describing the same incident. Wright testified that he saw Vaden's injuries. Wright also overheard Deputy Tracey say, "I bet he won't do that shit no more," and interpreted Tracey's comment to mean that he beat someone. At a time Wright thinks was a couple of days later, a black inmate told him officers had been beating a black inmate, but the only person the inmate "sort of" identified was an unknown sergeant. Wright further testified that inmates Johnson and Bailey complained that they were abused by officers. Wright claims that, in 1990, he saw Sgt. Peterson use excessive force on a black inmate. Wright also testified that he heard Deputy Linnebur call black inmates and deputies "boy." Wright further testified that he saw Brock hit an Hispanic inmate with white Deputy Hoffman watching. When Wright received the assignment of population control in 1991, white Deputy Ted Gibson told him "you've got the complexion for the connection" as he rubbed his skin. Wright responded that at least one of the African American deputies was finally able to get something, to which Gibson replied, "You need to wait your turn." Then, when Wright made inmate coordinator in 1994, Deputy Gibson said, "Apparently that job is a black job." With respect to the same job, white Deputy Carol Williams said, "The only way you get that job is if you are black," and white Deputy Owen Grote asked, "Do you have to be a certain color to get that job?"
Roberson testified that other officers told him an inmate was dragged from his cell, beaten, and thrown back in. Roberson also testified that he believes inmate Bentley has been abused more than once. Roberson further stated that he saw, from his vantage point in master control, Nunnelly strike the hand-cuffed and leg-shackled inmate Vaden about the head and back after Vaden "started trying to snatching himself away" from Nunnelly on an elevator. Roberson then saw Nunnelly drag Vaden in the booking column and heard him call Vaden a "black son of a bitch." Roberson also testified that he saw a handcuffed and shackled black inmate he thinks was named Revels thrown into a van by a white officer while a sergeant he thinks was Nunnelly watched. On one occasion, (then) Sheriff Hill came to the commissary and told Roberson that he would need to count on his fingers and toes.
Moore testified that, during a disturbance in the pods, she saw Deputy Devous strike inmate Bently, and Bently strike Devous in the nose. Moore also testified that deputies would occasionally drag Bently through the hallways and bump him up against the walls, but Moore cannot recall any dates and times when this occurred.
Nesbit testified that she saw Nunnelley hit inmate Butner.
Moore testified that, on seven or eight occasions, she saw African American inmates dragged by white officers when the inmates were being taken down the hall.
McClinton testified that he heard caucasian Deputy Gregg call an inmate a "nigger." McClinton also claims that Plant and Paige smiled at her when she returned to the facility after getting her finger smashed in a door while trying to stop someone from entering the facility. McClinton also testified that she saw caucasian Sgt. Cook slap African American inmate Clarence Ford. Inmate Ford was apparently out of control and yelling racial slurs, claiming that the department had killed inmate Penn. McClinton further testified that, in 1998, she was placed in a pod with a dangerous inmate. caucasian Peterson did not lock the inmate down, and the inmate attacked McClinton.
Eckels testified that she witnessed Deputy Gibson use excessive force on an inmate by running into him. Eckels also testified that she heard Steed say that caucasian deputies who were involved in the death of African American inmate Sean Penn were "heroes" while caucasian deputies who were present "whooped it up and clapped for these guys." Inmate Sean Penn had stabbed and killed a deputy sheriff. Eckels further testified that she was told by caucasian Deputy Gregg that he had called an inmate "My nigger." Eckels claims that she saw caucasian deputies dragging handcuffed African American inmate Bentley and that Bently's face "was kind in messed up." Eckels also wrote a report concerning the alleged abuse of Hispanic inmate Quinones by caucasian officers.
Hunt testified that, in early 1999, he saw African American inmate Milo Jones naked and shackled in booking. The inmate had apparently been kicking on the door. Hunt stated that he never saw a caucasian inmate treated this way. Hunt also saw caucasian Brock dragging an inmate by the leg shackles on the inmate's legs. Hunt claims that he heard Corporal Beauchesne refer to Hunt as a "slave." Hunt testified that, in early 1991, Deputy Allison told Hunt that Hunt had hair like a "brillo pad."
Roberts testified that he heard white deputies using racial slurs and epithets against African American inmates. Roberts, however, could not identify which white deputies. Roberts also testified that he witnessed caucasian Deputy Dave Hoffman call an African American inmate a "black mother fucker." Roberts further stated that he was told by certain African American inmates that they were beaten by caucasian deputies. In 1998, Roberts heard caucasian Major Reese say to Maxwell, Wright and himself, "you know what they say when there's more than one or two of you together."
E. Racial/Retaliatory Remarks, Slurs, Epithets, Jokes, and Cartoons
Plaintiffs allege that they were subjected and exposed to racial remarks, slurs, epithets, jokes, and cartoons. McClinton could recall only one incident when she claims a department employee racially slurred her. McClinton was not, however, present when the incident allegedly occurred.
Hunt testified that he was offended when he heard that Deputy Gregg used the word "nigger" in McClinton's presence. But Hunt does not know in what context Gregg used the word, nor was Hunt present when the word was used. Eckels testified that Deputy Gregg told her he used the "N" word in McClinton's presence. Hunt further testified that he saw a cartoon drawn on the squad room bulletin board at the jail, depicting African American inmate Ford kneeling down with someone urinating on his head. Roberts also saw the cartoon of inmate Ford.
Dobbins, Nesbit, and Wright heard about an incident on June 25, 1998, shortly after the death of inmate Penn, in which Gary Steed spoke to a group of employees. Steed said, "The fourteen deputies that filed the lawsuit must have felt it was worth it because they put they're putting their jobs on the line," and that if these plaintiffs could file a lawsuit, other deputies could countersue. These comments will be referred to hereinafter as the "Steed Comment." Eckels, Holloway, Hunt, Linzy, McClinton, Caban, and Roberson all testified that they were present when Steed made this comment. Roberts was not present during the Steed Comment, but claims that Steed made this comment to him in a meeting he had with Steed in Steed's office.
Caban testified that he has seen one cartoon in the facility that he would characterize as racist. Caban also testified that Deputy Hana Hoffman said, in Caban's presence, "These black-these black gang bangers need to find themselves another job, another career move." Further, while Caban was training in booking, Linda Norgard told him he was "stupid," and once said, "I'm tired of seeing all these black inmates in here." Caban reported this incident to Lt. Byington, who in turn verbally reprimanded Norgard in Caban's presence. Caban additionally testified that, after this lawsuit was filed, Deputy Armstrong said to him, "How do you figure $10 million," in a disrespectful, sarcastic, almost "snarling" manner.
Holloway testified that Hand confused her with another officer and said, "Well, you know, you guys all look alike." Holloway also testified that she witnessed Deputy Linnebur call an African-American inmate a "stupid ass bitch" and a "black bitch." In June 1998, Holloway found a sheet of paper in the courthouse link entitled "rules for feeding monkeys." The courthouse link is a walkway connecting the courthouse to the jail. The link is not restricted to sheriff's personnel-city warrants officers, Wichita police detectives, and Kansas Highway patrol troopers have access to the link. Holloway believed the material was racist but does not recall the paper containing any racial slurs or epithets other than the "monkey" reference. Holloway testified that she believes the sheriff's employees placed the paper in the link because sheriff's employees use the link more that other people. Holloway also testified that once when she was working in booking, a white deputy wrote on one of the inmate's faces in the booking sheet with whiteout.
Linzy testified that Fred Linnebur called her a "stupid black bitch" and that Sharon Willits called her a "crazy bitch,"and believes she called her a "crazy black bitch" another time. Linzy further testified that, after the lawsuit was filed, Deputy Bahm said he saw no purpose or validity in the suit, that it was a joke, and "what are you doing?" or "what are you trying to do?" In addition, after the lawsuit was filed, Deputy Russel told Linzy that she was "crazy" and had "nothing to complain about."
Roberson testified that in 1991, 1992, or 1993, Danna Hoffman referred to him as "boy." A sergeant brought Roberson and Hoffman together to discuss the situation. Roberson now considers the matter resolved and has had no further problems with Hoffman.
Wright testified that in 1990, Deputy Tatro was referring to an inmate and used the word "nigger" in his presence. Wright also testified that he saw a cartoon, which is referred to herein as the "Harvey Cartoon." The Harvey Cartoon depicted African American deputy Reggie Harvey with what appears to be a noose around his neck, and with a caption implying that he was a gang member.
F. The Charge of Discrimination
The Kansas Human Rights Commission (KHRC) filed a charge of discrimination with the Equal Opportunity Employment Commission (EEOC). The EEOC issued a "Notice of Charge of Discrimination" on September 26, 1996, identifying the person filing the charge as the KHRC. By way of correspondence dated January 23, 1998, the KHRC notified defendant that it had investigated the charges and found no probable cause to believe a violation had occurred.
II. Standards
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
A. Title VII: Exhaustion of Administrative Remedies
Defendant argues that it is entitled to summary judgment on plaintiffs' Title VII claims because plaintiffs failed to file a charge of discrimination with the EEOC and, therefore, failed to exhaust their administrative remedies. Exhaustion of administrative remedies is a prerequisite to instituting a Title VII action in federal court. Khader v. Aspin, 1 F.3d 968, 970 (10th Cir. 1993). In this case, the KHRC filed a charge of discrimination with the EEOC. The EEOC, in turn, issued a notice of right to sue letter to the KHRC. Thus, plaintiffs admit that they themselves did not file a complaint of discrimination with the EEOC. Plaintiffs argue, however, that they are entitled to avail themselves of the single-filing rule.
Federal courts have recognized a single filing rule under which, in appropriate circumstances, a plaintiff who has not filed an EEOC charge may join a Title VII action filed by a complying plaintiff. Lange v. Cigna Individual Fin. Servs. Co., 759 F. Supp. 764, 767 (D.Kan. 1991) (recognizing single filing rule). Thus, courts permit similarly situated individuals to join the action of a plaintiff even though the individual has not filed his or her own EEOC charge, so long as at least one plaintiff has complied with the filing requirements. Thiessen v. Gen. Elec. Capital Corp., 996 F. Supp. 1071, 1075 (D.Kan. 1998). Moreover, the individual claims of the filing and non-filing plaintiffs must have arisen out of similar discriminatory treatment in the same time frame. Lange, 759 Supp. at 767-68.
The single filing rule assumes that at least one plaintiff in a lawsuit did file a timely EEOC charge. Thus, if at least one of the plaintiffs in the instant suit had filed a charge with the EEOC, the single filing rule would apply. However, no plaintiff in this lawsuit filed an EEOC charge. There is, therefore, no plaintiff upon whom the others can "piggyback." The single filing rule is therefore not applicable in this case. To hold otherwise would allow non-charging plaintiffs to circumvent the well-settled rules regarding Title VII filing requirements. "In particular, such a rule would allow a would-be plaintiff who missed the statutory time limit for filing an EEOC charge to file an independent lawsuit by relying upon the timely charge of some other individual, even though that individual is not named in the lawsuit. Under such circumstances, as here, there would be no ' joining with another plaintiff who has filed . . . a charge,' a procedure which, in the Court's view, the single filing rule contemplates." Equal Employment Opportunity Comm'n v. Air Line Pilots Ass'n., 885 F. Supp. 289, 293 (D.C. 1995) (quoting Foster v. Gueory, 665 F.2d 1319, 1322 (D.C. Cir. 1981)).
Alternatively, plaintiffs argue that the doctrine of equitable tolling applies. The timely filing of a discriminatory charge may be equitably tolled where a plaintiff has been "lulled into inaction" by his or her past employer, state or federal agencies, or the courts. Johnson v. United States Postal Serv., 861 F.2d 1475, 1480 (10th Cir. 1988). Under Tenth Circuit law, this requires that plaintiff show that the employer, agency, or court engaged in "active deception" which caused his or her filing to be untimely. Id. at 1481.
Plaintiffs contend that the KHRC, a state agency, lulled them into inaction. To support this assertion, plaintiffs have produced an affidavit of Wes Roberts, wherein he states that the KHRC informed plaintiffs that the KHRC would file charges with the EEOC on plaintiffs' behalf and that plaintiffs need do nothing further but to wait for a right to sue letter. There is no other evidence in the record supporting plaintiffs' contention.
Hearsay testimony that would be inadmissible at trial cannot be used to defeat a motion for summary judgment. Adams v. Am. Guar. and Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000). In this case, the statements of Roberts are unsubstantiated hearsay. Moreover, Roberts's statements are the only evidence upon which plaintiffs rely to survive summary judgment on this issue. Thus, Roberts's statements, standing alone, cannot defeat defendants' motion for summary judgment.
More importantly, defendants have produced evidence in the form of a letter from the KHRC Executive Director Robert Lay to Wes Roberts dated March 27, 1997. In that letter, Mr. Lay states that the KHRC does not intend to sue under federal law. Significantly, Mr. Lay states, "I believe the individual officers who believe they were discriminated against would have to file separate, individual discrimination complaints with the KHRC and the EEOC over these matters in order to then seek right to sue letters from EEOC and/or dismissal of related individual KHRC complaints in order to take the whole matter to court." This letter counters plaintiffs' contention that they were lulled into inaction by the KHRC. Accordingly, because plaintiffs have failed to exhaust their administrative remedies, and because the doctrine of equitable tolling is not applicable in these circumstances, plaintiffs' Title VII claims are hereby dismissed.
B. Statute of Limitations on § 1981 and § 1983 Claims
Defendants contend that plaintiffs' claims under 42 U.S.C. § 1981 and 1983 are limited to conduct which occurred within the statute of limitations period. In this case, the two-year statue of limitation set forth in Kan. Stat. Ann. § 60-513(a)(4) applies to plaintiffs' § 1981 claims. See Goodman v. Lukens Steel Co., 482 U.S. 656, 660-62 (1987) (the forum state's statute of limitations for personal injury actions provides appropriate limitations period for claims under § 1981). Plaintiffs' claims under § 1983 also are subject to a two-year statute of limitations. Laurine v. Tate, 220 F.3d 1213, 1218 (10th Cir. 2000). Plaintiffs filed the instant action on June 10, 1998. Accordingly, any claims based on conduct or events that occurred prior to June 10, 1996 are time-barred.
C. Hostile Work Environment
Plaintiffs contend that they were subjected to a hostile work environment in violation of §§ 1981 and 1983. A plaintiff may bring a hostile work environment claim under § 1981, Aramburu v. Boeing Co., 112 F.3d 1398, 1410 (10th Cir. 1997), and under § 1983, Noland v. McAdoo, 39 F.3d 269, 271 (10th Cir. 1994). Defendant argues plaintiffs' hostile work environment claim is without merit.
Title VII, § 1981, and § 1983 employment discrimination claims share the same standards and burdens. Drake v. City of Fort Collins, 927 F.2d 1156, 1162 (10th Cir. 1991). Thus, plaintiffs must present evidence of an objectively hostile work environment. Aramburu, 112 F.3d at 1410. To survive summary judgment, plaintiff must show that "the harassment was pervasive or severe enough to alter the terms, conditions, or privilege of employment . . . and the harassment was racial or stemmed from racial animus." Bolden v. PRC, Inc., 43 F.3d 545, 551 (10th Cir. 1994) (citing Merito Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). To constitute an actionable claim for hostile work environment, a plaintiff must be subjected to a "steady barrage of opprobrious racial comments;" a few isolated incidents of racial enmity or sporadic racial slurs is insufficient. Id.
The court is mindful of the rule set forth by the Supreme Court in Meritor Savings Bank v. Vinson, 477 U.S. 57, 69 (1986). In Meritor, the Court stated that the existence of sexual harassment must be determined "in light of the record as a whole," and the trier of fact must examine the totality of the circumstances, including "the context in which the alleged incidents occurred." Accordingly, this court must examine the totality of the circumstances when reviewing a summary judgment motion. Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1262 (10th Cir. 1998). "Indeed, the very term 'environment' indicates that allegedly discriminatory incidents should not be examined in isolation." Id. Thus, whether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances, which may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
Disregarding plaintiffs' statements that are inadmissible hearsay, and further disregarding those events which occurred prior to June 10, 1996, the court finds that there is evidence in the record from which a reasonable fact finder could determine that a hostile work environment existed. There exists evidence that some plaintiffs witnessed white deputies and officers beating African-American inmates. There is also evidence that some plaintiffs were exposed to racial remarks and slurs, directed both at them, other deputies, and inmates. Further, there is evidence in the record that at least three cartoons, which could be construed as racial, were posted at various locations at the facility. Looking at the frequency of the conduct, much of which could be construed as discriminatory, its severity, and whether it is physically threatening or humiliating, the court determines that a genuine issue of facts remains regarding whether the environment in which plaintiffs worked was hostile. Summary judgment is denied on this issue.
D. Racial Discrimination
Plaintiffs allege that defendant discriminated against them on the basis of their race. Specifically, plaintiffs claim that they were subject to disparate treatment in the areas of promotions, assignments, training, overtime, and discipline. The court applies the burden shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Under the McDonnell Douglas framework, in order to survive summary judgment, the plaintiff must first establish a prima facie case of discrimination. If the plaintiff carries that burden, the defendant must then articulate a facially nondiscriminatory reason for the challenged employment action. If the defendant makes such a showing, the burden reverts to the plaintiff to prove the proffered nondiscriminatory reason is pretextual.
The elements of a plaintiff's case for disparate treatment are the same whether the case is brought under Title VII, § 1981, or § 1983. Drake v. City of Fort Collins, 927 F.2d 1156, 1162 (10th Cir. 1991). Thus, to establish a prima facie case of racial discrimination, a plaintiff must show (1) that he is a member of a racial minority, (2) that he suffered an adverse employment action, and (3) that similarly situated employees were treated differently. Martin v. Nannie The Newborns, Inc., 3 F.3d 1410, 1417 (10th Cir. 1993).
1. Failure to Promote
Plaintiffs allege that defendant failed to promote all plaintiffs within a reasonable time of joining the department. Defendant points out, however, that not all plaintiffs can claim they were denied promotions. Plaintiffs Holloway, Nesbit, and Eckels specifically testified that they were not claiming they were denied promotions because of their race. Further, plaintiffs Caban, Roberts, Dobbins, Eckels, and Holloway never tested for a promotion. Plaintiff McClinton did not test for a promotion until 2000, and she is currently ranked first on the 2001 eligibility lists.
Although the law does not require a plaintiff to formally apply for a position, it does require that defendant "be on specific notice that the plaintiff seeks employment or, where informal hiring procedures are used, that the plaintiff be in the group of people who might reasonably be interested in the particular job." Whalen v. Unit Rig, Inc., 974 F.2d 1248, 1251 (10th Cir. 1992). In this case, the defendant's promotion system was not informal. Thus, unless plaintiffs set forth any evidence that defendant had specific notice that they were interested in a particular position, they cannot establish a prima facie case of discriminatory failure-to-promote. Daneshvar v. Graphic Tech., Inc., 18 F. Supp.2d 1277, 1287 (D.Kan. 1998). Plaintiffs Caban, Roberts, Nesbit, Dobbins, Eckels, and Holloway have failed to meet this burden. Moreover, at this point, plaintiff McClinton cannot show that she was denied any promotion. Thus, plaintiffs McClinton, Caban, Roberts, Nesbit, Dobbins, Eckels, and Holloway cannot establish a prima facie case of discrimination.
Defendants claim that the remaining plaintiffs also fail to establish a prima facie case because they fail to identify similarly situated non-African American employees who received promotions. To survive summary judgment, a plaintiff must show that other employees, who were similarly situated, received promotions. Lowe v. Angelo's Italian Foods, Inc., 87 F.3d 1170, 1172 (10th Cir. 1996).
Plaintiffs Hunt and Roberson have presented evidence that they each tested for promotions in 1993, 1996, 1997, and 1998, and were passed over every time in favor of caucasian deputies Bragg, Ronald Cook, Russell Cook, Hoffman, Ratliff, White, and Willits. Maxwell has presented evidence that, when she first took the sergeant's exam, she was the only person out of a group of seven, six of whom were caucasian, who was not promoted. Maxwell named these individuals. Moore was tested for promotion to sergeant in 1996 and was passed over in favor of Cook, Hoffman, Ratliff, and Willits. Wright tested for a promotion in 1992, 1993, 1995, 1998, and 2000. He was passed over for sergeant until 1999 in favor of caucasian deputies, including Hand and Kurtz.
Roberson was passed over until 1999, when he was promoted to detention sergeant.
Drawing all reasonable inferences in favor of the non-moving party, the court will infer that the caucasian individuals which these plaintiffs name were similarly situated because they held the same job position (deputies) as plaintiffs. See Johnson v. Beneficial Kan., Inc., 28 F. Supp.2d 1288, 1294 (D.Kan. 1998) (holding that, because plaintiff and a caucasian employee both held same job position, the evidence suggests that they possessed similar qualifications). Thus, the court finds that Hunt, Roberson, Maxwell, Moore, and Wright have established a prima facie case of discriminatory failure-to-promote. Moreover, because defendant has failed to articulate a legitimate, nondiscriminatory reason for not promoting these plaintiffs, summary judgment is denied with respect to plaintiffs Hunt, Roberson, Maxwell, Moore, and Wright on their claim of discrimination with respect to promotions that occurred after June 10, 1996. Any alleged discriminatory conduct that occurred prior to June 10, 1996 is time-barred. Summary judgment is granted to defendant, however, with regard to the remaining plaintiffs on this claim.
2. Failure to Train
Plaintiffs argue that defendant failed to train plaintiffs in key areas of the detention facility. Defendant contends that plaintiffs only generally allege that plaintiffs were denied training and that plaintiffs have failed to identify similarly situation, non-minority individuals who were given training opportunities.
Holloway testified that she requested training in booking, property, and master control as far back as 1996 and the training was refused. Holloway named Deputies Taylor, Reed, and Lang as caucasian deputies who received this training before she did. Linzy testified that, after about 1995, one caucasian deputy, Shea Carpenter, was chosen to be trained in booking, property, and master control. McClinton specifically named caucasian deputies who were trained before her in booking, property, and master control. Roberson testified that Linda Norgard, a white deputy, was trained in booking between 1990 and 1994 before he was.
The court will assume, for purposes of this opinion, that these plaintiffs were in the group of people who might reasonably be interested in that particular training. The court finds that Holloway, Linzy, and McClinton have established a prima facie case that they were denied training that similarly situated non-minority deputies received. Moreover, defendant has failed to set forth a legitimate, nondiscriminatory reason for not training these plaintiffs in these areas. Defendant's motion for summary judgment is denied with regard to these plaintiffs on this claim.
Roberson's claim is time-barred.
3. Failure to Assign
Plaintiffs allege that defendant failed to assign them to key areas of the detention facility. As with plaintiffs' failure to train claim, defendant contends that plaintiffs only generally allege that plaintiffs were denied assignments and that plaintiffs have failed to identify similarly situation, non-minority individuals who were assigned to these key areas.
Only Roberts has testified that he requested assignments to booking, property, and master control, that he was denied these assignments, and that caucasian deputies were given these assignments. Roberts also specifically named those caucasian deputies. Roberts has therefore met his burden of establishing a prima facie case. And since defendant has failed to set forth a legitimate, nondiscriminatory reason for not assigning Roberts to these areas, defendants' motion is denied with respect to Roberts's allegations that he was denied assignments after June 10, 1996.
4. Overtime
Plaintiffs allege that defendant failed to allow plaintiffs overtime work to the same extent that non-minority deputies were allowed overtime. Defendant argues that plaintiff has failed to provide information regarding comparable non-minority employees.
Dobbins testified that deputies Yates, Norgard, and Reed always received more overtime that he did. Hunt testified that Norgard consistently received overtime every Monday and Tuesday. Fatal to Hunt's claim, however, is a lack of evidence that he wanted to work overtime or was in a group of people who might reasonably want to work overtime. Linzy testified that deputies Reed and Yates got more overtime than she did. Wright testified that he was denied overtime in 1993, 1994, and maybe again in 1996 and 1997. However, the record provided to the court contains no allegations by Wright of specific non-minority deputies who received overtime. Thus, Wright cannot state a prima facie case.
Making all reasonable inferences in favor of the non-moving party, the court determines that plaintiffs Dobbins and Linzy have stated a prima facie case. And since defendant has not set forth a legitimate, nondiscriminatory reason for assigning overtime to non-minority deputies while denying overtime to these plaintiffs, defendants' motion is denied with respect to Dobbins and Linzy's allegations that they were denied overtime after June 10, 1996.
5. Discipline
Plaintiffs contend that they were subject to unwarranted discipline. Specifically, plaintiffs complain of: 1) verbal counseling Caban received for the money ticket error and wearing non regulation footwear; 2) verbal counseling Hunt received for the cash bond envelope shortage and failure to maintain security in the facility; 3) Roberts's suspension for refusing to wear regulation footwear; 4) verbal counseling McClinton received for a uniform violation; 5) verbal counseling Moore received for failing to cooperate with investigators; and 6) investigation of Holloway in connection with the burglary of Linzy's home. Plaintiffs allege that caucasian deputies would not have been disciplined for these infractions.
A prima facie case of disparate discipline may be established if the plaintiff proves by a preponderance of the evidence that (1) the plaintiff is a member of a protected class, (2) the plaintiff was disciplined by the employer, and (3) the employer imposed the discipline under circumstances giving rise to an inference of discrimination. Jones v. Denver Post Corp., 203 F.3d 748, 753 (10th Cir. 2000). An inference of discrimination may be raised by evidence that a plaintiff was treated less favorably than similarly situated non-minority employees who are not in the plaintiff's protected class. Hardy v. S.F. Phosphates Ltd., 185 F.3d 1076, 1082 (10th Cir. 1999).
In this case, plaintiffs have failed to set forth evidence that non-minority employees would have been treated in a preferential manner under similar circumstances or under circumstances to create an inference of discrimination. There is simply no evidence in the record that the discipline received by these plaintiffs was disparate from the treatment received by similarly situated employees under similar circumstances. Plaintiffs have failed to establish a genuine issue of fact regarding this claim. As such, plaintiff's claim of unwarranted discipline cannot survive summary judgment.
E. Retaliation
Plaintiffs contend that they were retaliated against for filing the instant lawsuit. Defendant concedes that plaintiffs have engaged in a protected activity by complaining about alleged discrimination, filing a charge of discrimination with the KHRC, and ultimately filing this lawsuit. Defendant, however, contends that plaintiffs cannot establish a prima facie case of retaliation. To establish a prima facie case of retaliation a plaintiff must show that (1) he or she engaged in protected opposition to unlawful employment practices, (discrimination), (2) the employer took employment action adverse to the employee, and (3) there was a causal connection between the protected activity and the adverse action. Jeffries v. States, 147 F.3d 1220, 1231 (10th Cir. 1998). The elements of a prima facie case are the same under § 1981 and Title VII. Roberts v. Roadway Express, Inc. 149 F.3d 1098, 1103 n. 1 (10th Cir. 1998).
1. Disciplinary Action
Plaintiffs contend that they were subject to unwarranted discipline in retaliation for complaining of discrimination. As set forth above, Caban, Hunt, McClinton, and Moore all received verbal counseling for various reasons, and Roberts was suspended for refusing to wear regulation footwear. With respect to Caban, Hunt, McClinton, and Moore, the court finds that these plaintiffs cannot establish a prima facie case. Although actions resulting in monetary losses, termination, and demotion clearly constitute adverse employment actions, "'a mere inconvenience or an alteration of job responsibilities'" does not. Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir. 1998) (quoting Crady v. Liberty Nat'l Bank Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). Rather, "conduct is an adverse employment action if it 'constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'" Id. (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 760 (1998)). Thus, verbal counseling does not, by itself, constitute adverse employment action. Fortner v. Kan., 934 F. Supp. 1252, 1267 (D.Kan. 1996). Rather, there must be evidence that the verbal counselings affected the terms or conditions of plaintiffs' employment or plaintiffs' authority, standing, rate of pay, performance evaluations, ability to perform, or chances for promotion. Id.
In this case, the only evidence is that Caban, Hunt, McClinton, and Moore received verbal counseling. There is no evidence this verbal counseling altered the terms and conditions of their employment in any way. Accordingly, the court finds that Caban, Hunt, McClinton, and Moore have failed to establish that they were subject to adverse employment action.
Plaintiff Roberts was ultimately suspended for his refusal to wear regulation footwear. The court finds that Roberts's suspension constituted adverse employment action. Roberts, however, cannot establish a causal connection between the filing of this lawsuit and his suspension. The record is void of any evidence suggesting a retaliatory motive. Moreover, the passage of one year between the filing of the instant lawsuit and Roberts's suspension is insufficient by itself to establish a causal connection. Harris v. Bd. of Pub. Utilities, 1991 WL 126525, at *5 (D. Kan 1991) (one year period between alleged discharge insufficient); Garcia-Paz v. Swift Textiles, Inc., 873 F. Supp. 547, 560-61 (D.Kan. 1995) (holding that adverse action occurring eight to nine months after protected activity insufficient to support inference of causal connection). Thus, Roberts cannot establish a prima facie case.
However, even assuming Roberts could establish a prima facie case, the court finds that defendant has set forth a legitimate, non-discriminatory reason for the suspension. Roberts's personnel file contained only one document from a physician, which stated that Roberts needed to wear comfortable shoes. There was no documentation in Roberts's file exempting him from wearing regulation footwear. Notwithstanding, Roberts continued to wear non-regulation footwear and in fact disobeyed the direct orders of two commanding officers, Houston and Bardezbain. Roberts's actions were in violation of department regulations and, accordingly, defendant had a legitimate reason to suspend Roberts for insubordination.
2. Comments and Threats of Termination
Plaintiffs generally allege that, as a result of filing this lawsuit, they were exposed to a barrage of snide, disparaging, and threatening remarks, "not all of which can be identified by Plaintiffs." Such a general allegation is insufficient to survive summary judgment. Thus, the court will turn to plaintiffs' specific allegations of comments and threats of termination.
a. Steed Comment
Plaintiffs contend that the Steed Comment, which was Captain (now Sheriff) Steed's comment, "The fourteen deputies that filed the lawsuit must have felt it was worth it because they put they're putting their jobs on the line," and that if these plaintiffs could file a lawsuit, other deputies could countersue, was retaliatory. Plaintiffs must establish that the alleged retaliatory comments "were made by a decision-maker and that there was a nexus between the discriminatory statements and adverse action by the employer." Shinwari v. Raytheon Aircraft Co., 16 F. Supp.2d 1308, 1321 (D.Kan. 1998). Defendant argues that Steed was not a decision-maker at the time he made this comment and that, even if he were, plaintiffs have failed to show that this comment resulted in adverse employment action.
In support of its argument that Steed was not a decision-maker, defendant claims that captains are merely "supervisory personnel" who have no power to demote or terminate employees. Defendant asserts that captains have only the authority to receive and initiate reports of violations, verbally counsel employees, and initiate letters of reprimand. The court will assume, without deciding, that then Captain Steed had enough supervisory authority to constitute a decision-maker for these purposes. Violation reports, verbal counseling, and letters of reprimand may impact whether an employee is demoted or terminated, and Captain Steed had the authority to initiate each of these disciplinary actions at the time he made the comment.
Assuming Steed had decision-making authority, defendant contends that plaintiffs suffered no adverse employment action as a result of the Steed Comment. This court is mindful of the cautionary message the Tenth Circuit sent in Jeffries to district courts considering dismissal of retaliation claims. Jeffries, 147 F.3d at 1232. In Jeffries, the Tenth Circuit reversed the district court's determination that the plaintiff did not suffer an adverse employment action when her supervisor angrily reprimanded her, refused to continue to supervise her student internship, and repeatedly informed her that the term of her internship would not be renewed. The Jeffries court found significant the fact that the threat of non-renewal came from a person who had considerable influence over employment and work assignment decisions in the program. However, the Jeffries court specifically stated that it was not deciding whether threats can constitute adverse employment action in and of themselves. Id. Rather, in Jeffries, the court pointed out that there was evidence that plaintiff's supervisor did indeed stop supervising her as a student and that, as a result, plaintiff contended she was deprived of educational supervision and effectively forced out of the student program in retaliation for her complaint.
In this case, the Steed Comment, in and of itself, does not constitute adverse employment action. The court questions whether the Steed comment was actually a threat to the plaintiffs' continued employment. Even if the court considered the comment a threat, there is no evidence in the record that plaintiffs' jobs were ever in jeopardy or that Steed took action against these plaintiffs which would have threatened their jobs. Thus, plaintiffs have failed to show that they suffered any adverse employment action as a consequence of the Steed Comment. Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1381 (10th Cir. 1994) (no showing of adverse employment action where no evidence that threat to evaluate teacher more often than peers was carried out). Moreover, plaintiffs' allegation that the Steed Comment raised the level of racial hostility at the jail is unsupported by the evidence in the record. Plaintiffs have failed to establish a prima facie case of retaliation with regard to the Steed Comment.
b. Comments By Other Deputies
Plaintiffs allege the following comments from other deputies were retaliatory: 1) Deputy Armstrong "made a disparaging remark about the amount of Plaintiff's damages to Caban in a disrespectful, sarcastic manner"; 2) Deputy Bahm made jokes to the effect that suing the sheriff's department had no purpose or validity; 3) Deputy Russell "said words to the effect that Plaintiff Linzy was crazy and had nothing to complain about"; and 4) Deputy Tracey at the back of the squad room in a group said, "Yeah, and I'm going to countersue them for slander, too."
Foremost, the court notes that none of these comments was made any individual with supervisory authority, nor were these individuals decision-makers. Rather, all of these comments were made by fellow deputies. The court is aware, however, that under the law of this circuit, co-worker hostility or retaliatory harassment, if sufficiently severe, may constitute adverse employment action for purposes of a retaliation claim. Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1264 (10th Cir. 1998).
The court finds that the comments made by fellow deputies were not severe enough to constitute adverse employment action. The number of comments were few, and the content can be considered, at most, merely offensive. Plaintiffs have failed to put forth evidence of a prima facie case that comments by fellow deputies constituted actionable retaliation.
c. E-Mail Forwarded by Lt. Burns
Plaintiffs argue that Burns's forwarding of Caban's e-mail about training, with the inclusion of the statement, "Enough said," was retaliatory. The court finds that there is nothing remotely discriminatory about the e-mail message itself, the manner in which it was transmitted, or the recipients. Caban voiced his concerns about the training of recruits, and the evidence suggests that Burns then forwarded the message to individuals who could rectify the situation. There is no evidence in the record that there exists a causal connection between the forwarding of Caban's e-mail, along with the included statement, and the filing of this lawsuit. Moreover, plaintiffs have presented no evidence that Caban suffered any adverse employment action as a result.
3. The Productive Workplace Environment Advisory Form
Plaintiffs contend that defendant's sudden use of the PWEA was retaliatory because it was handled in an intimidating manner. Specifically, Moore testified that the use of the PWEA was retaliatory because the form has to be read and signed in the presence of a supervisor during the evaluation. Moore further testified that, as a result, there is a lot of pressure to fill out the form to say there is no discrimination and that he thinks the fact that the form is filled out during the evaluation implies that what the employee says in the form will be considered as part of the employee's rating the next time. Nesbit also testified regarding similar allegations about the use of the PWEA form, and further stated that, not long after she filled out a PWEA, Sgt. Milam started moving her out of favorable assignments such as booking.
The court finds that there is no evidence of retaliatory intent on the part of defendant in implementing the use of the PWEA or in the manner in which the PWEA was administered. The PWEA is administered to all department employees, regardless of assignment, rank, or race. There is simply no evidence that defendant began implementing the PWEA to all department employees in retaliation for the filing of this lawsuit by fourteen of its employees.
Some plaintiffs believed that anyone who complained of discrimination on the PWEA would receive a poor evaluation the next time. There is simply no evidence in the record that any plaintiff who complained of discrimination received a poor evaluation twelve months later. Nesbit testified that, not long after she filled out a PWEA, she was moved from favorable assignments. However, plaintiffs fail to present evidence as to when Milam began moving Nesbit from these "favorable" assignments, nor is there evidence that Nesbit's removal from these assignments was causally connected to her responses on the PWEA. Plaintiff's subjective belief, without more, is insufficient to infer a causal connection. Candelaria v. E.G. G. Energy Measurements, Inc., 33 F.3d 1259, 1261 (10th Cir. 1994). Plaintiffs' have failed to show a prima facie case that the implementation of the PWEA was retaliatory.
F. § 1983 Claims
Plaintiffs have alleged that defendant is liable under § 1983 for hostile work environment, discrimination, and retaliation. Defendant contends that it is not liable under § 1983 because plaintiffs have failed to identify a policy or custom that resulted in a constitutional injury. The court notes that plaintiffs failed to respond to this argument in their brief. The court will, however, examine the issue and determine whether plaintiffs' § 1983 claims may go forward.
A governmental entity does not incur liability under § 1983 "unless action pursuant to official municipal policy of some nature caused a constitutional tort." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). Local government cannot be held liable for injury inflicted solely by its employees on the theory of respondeat superior; rather, a plaintiff is required to identify either official policy or widespread custom or practice that caused plaintiff's injuries. Seamans v. Snow, 206 F.3d 1021, 1029 (10th Cir. 2000). Thus, to subject a governmental entity to § 1983 liability, a plaintiff must show 1) the existence of a policy or custom and 2) a direct causal link between the policy or custom and the violation alleged. Anaya v. Crossroads Managed Care Sys., Inc., 195 F.3d 584, 592 (10th Cir. 1999).
With respect to plaintiff's hostile work environment claim, plaintiffs have failed to allege a policy statement, ordinance, regulation, or decision officially adopted and promulgated, nor have plaintiffs alleged a custom or usage so permanent and well-settled as to constitute the force of law. Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1249 (10th Cir. 1999). Moreover, regarding plaintiff's retaliation claims, the court has found that there was no underlying retaliation on the part of defendant's employees. A municipality may not be held liable where there was no underlying constitutional violation by any of its employees. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986). Thus, defendant in this case is not liable under § 1983 for plaintiffs' claims of hostile work environment and retaliation.
Plaintiffs allege that defendant's policy or custom regarding the promotion of black employees is discriminatory. Plaintiffs point out that African Americans have been employed by the sheriff's department since the mid 1920's and that, by 1985, there were no African American supervisors. Plaintiffs also allege that the system of promotions is subjective. To test for a promotion, a candidate must take a written exam, which is followed by an oral interview that includes open-ended questions. The process culminates with a discussion of the top candidates by the command staff, a group primarily composed of officers holding the rank of captain and above.
The court has found that plaintiffs Hunt, Roberson, Maxwell. Moore, and Wright have established a prima facie case of discrimination with respect to promotions. In other cases, courts that have found a small number of discriminatory acts to be sufficient to support a finding of a pattern or practice of discrimination have done so only in light of other substantial evidence, such as statistical proof or direct evidence that a company has adopted a policy of discrimination. Compare Holsey v. Armour Co., 743 F.2d 199, 214 (4th Cir. 1984) (pattern of intentional discrimination in denying qualified black candidates sales and supervisory positions established by statistical evidence, specific instances of intentional discrimination, and direct evidence of intentional discrimination, e.g., manager's statement to employee that blacks were not hired in sales because customers would not buy from them); with Ste. Marie v. E. Ry. Ass'n, 650 F.2d 395, 405-406 (2d Cir. 1981) ("when . . . relevant statistics are lacking and the probative evidence of discrimination is confined . . . to seven individual incidents, subjective decision-making methods are not sufficient to establish a pattern or practice of discrimination").
In this case, there is simply a lack of evidence establishing a practice or custom of discrimination in promoting minorities. While the court has found that five plaintiffs have stated a prima facie case, plaintiffs have failed to present statistical proof or even substantial probative evidence that defendant has a policy or engages in a custom of discrimination. Moreover, the mere fact that defendant's system for promotion is allegedly subjective is insufficient absent other probative evidence. Accordingly, plaintiff's § 1983 claims fail as a matter of law.
G. Plaintiff Rhonda Lewis
Defendant has moved for summary judgment on plaintiff Rhonda Lewis's claims. The court is unclear as to the basis for defendant's motion, which essentially asserts that it is entitled to summary judgment because Lewis's counsel have moved to withdraw from their representation of her. This is not an appropriate basis upon which to grant summary judgment. Accordingly, defendant's summary judgment motion is denied on this basis.
Defendant also has filed a motion to dismiss the claims of plaintiff Rhonda Lewis (Doc. 245). In that motion, defendant explained that counsel for the thirteen other defendants filed their response to defendant's motion for summary judgment on March 6, 2001. At that time, these attorneys no longer represented plaintiff Lewis because the court had granted counsel's motion to withdraw.
Defendant correctly points out that plaintiff Lewis has failed to respond to its summary judgment motion. There is no pleading, response, or request for an extension of time on behalf of plaintiff Lewis. In addition, plaintiff Lewis has failed to respond to defendant's motion to dismiss.
Federal Rule of Civil Procedure specifically states that, where an adverse party does not appropriately respond to a summary judgment motion, summary judgment, if appropriate, "shall be entered against the adverse party." Moreover, D. Kan. Rule 7.4 provides, "If a respondent fails to file a response within the time required by Rule 7.1(b), the motion will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice." Thus, the court finds that plaintiff Lewis has failed to respond to defendant's summary judgment motion and defendant's motion to dismiss and, accordingly, grants defendant's motion to dismiss plaintiff Lewis's claims.
IV. Conclusion
The court grants in part and denies in part defendant's motion for summary judgment (Doc. 232). In accordance with this order, plaintiffs may submit the following claims at trial:
1) plaintiffs' § 1981 hostile work environment claim;
2) plaintiffs Hunt, Roberson, Maxwell, Moore, and Wright's § 1981 claim of discrimination based failure to promote;
3) plaintiffs Holloway, Linzy, and McClinton's § 1981 claim of discrimination based on failure to train;
4) plaintiff Roberts's § 1981 claim of discrimination based on failure to assign; and
5) plaintiffs Dobbins and Linzy's § 1981 claim of discrimination based on failure to allow overtime.
In addition, the court has ruled that defendant's motion for leave to supplement its statement of uncontroverted facts (Doc. 257) and second motion for leave to supplement its statement of uncontroverted facts (Doc. 264) are granted, plaintiffs' motion for leave to file a surreply brief in response to defendant's reply brief (Doc. 268) is denied, and defendant's motion to dismiss (Doc. 245) is granted.
IT IS SO ORDERED.