Dunbar v. Bd. of Dir. of Leavenworth Public Library

• Decision Date: 25 February 1998
• Docket Number: No. Civ.A. 97-2210-KHV.,Civ.A. 97-2210-KHV.
• Citation: 996 F.Supp. 1086
• Parties: Maxine I. DUNBAR, Plaintiff, v. THE BOARD OF DIRECTORS OF THE LEAVENWORTH PUBLIC LIBRARY, Defendant.
• Court: U.S. District Court — District of Kansas

996 F.Supp. 1086

Maxine I. DUNBAR, Plaintiff, v. THE BOARD OF DIRECTORS OF THE LEAVENWORTH PUBLIC LIBRARY, Defendant.

No. Civ.A. 97-2210-KHV.

United States District Court, D. Kansas.

February 25, 1998.

Michael J. Joshi, Borel & Associates, Kansas City, MO, for Maxine I Dunbar, plaintiff.

Jeffrey L. Baxter, Dean J. Gengler, Chapman, Waters & Baxter, Leavenworth, KS, for Defendants.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Maxine Dunbar filed suit under the Age Discrimination in Employment Act [ADEA], 29 U.S.C. § 621 et seq., claiming that the Board of Directors of the Public Library of Leavenworth, Kansas, refused to hire her and retaliated against her for filing an administrative complaint with the Equal Employment Opportunity Commission [EEOC]. This matter comes before the Court on Defendant's Motion For Summary Judgment (Doc. # 41) filed December 15, 1997. Defendant claims that plaintiff's failure to exhaust administrative remedies under a private internal grievance procedure deprives the Court of subject matter jurisdiction. Alternatively defendant claims that plaintiff cannot establish a prima facie case of age discrimination and that it had legitimate nondiscriminatory reasons for its decisions regarding plaintiff. For reasons stated more fully below, the Court finds that defendant's motion should be sustained in part and overruled in part.

Summary Judgment Standards

Rule 56(c) of the Federal Rules of Civil Procedure directs the entry of summary judgment in favor of the party who "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Summary judgment is inappropriate, however, if there is sufficient evidence on which a trier of fact could reasonably find for the nonmoving party. Prenalta Corp. v. Colorado Interstate Gas Co., 944 F.2d 677, 684 (10th Cir.1991).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact by informing the court of the basis for its motion. Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993). Once the moving party properly supports its motion, the nonmoving party may not rest upon mere allegation or denials of his or her pleadings, "but must set forth specific facts showing that there is a genuine issue for trial." Muck v. United States, 3 F.3d 1378, 1380 (10th Cir.1993).

Factual Background

The following facts are either uncontroverted or, where controverted, viewed in the light most favorable to plaintiff. Immaterial facts and facts not properly supported in the record are omitted.¹

In August 1988, plaintiff — who was then 62 years old — applied for employment with the Leavenworth Public Library. The library did not hire her but four months later, in December 1988, plaintiff began working there through the Kansas Green Thumb program. Green Thumb is a federally subsidized program which provides training, work experience and job placement for economically disadvantaged persons who are 55 years of age and older, and who have poor employment prospects. The library qualified as a host agency under Green Thumb. As such, it agreed to help plaintiff obtain employment by providing job skills, training and job referrals, and by considering her for employment in appropriate positions. In return, Green Thumb paid plaintiff's salary.

Plaintiff worked under Green Thumb for seven years, from December 1988 until January 28, 1995. Throughout this period, at roughly six-month intervals, plaintiff's Green Thumb supervisor (Lorzene Aarstad) approached the library director (Winnie Lichtenwalter) about the possibility of hiring plaintiff as a salaried library employee.

Plaintiff initially shelved books in the circulation department. She remained in this position until January 7, 1992, when she moved to the technical services department. Shari Showalter supervised this department, and Doris Woodward, Elaine Knapp and Bonnie McKeon worked with plaintiff there. Shortly before plaintiff changed departments, she signed a placement agreement with Green Thumb and the library. The agreement provided that plaintiff would train with the library from December 16, 1991 to March 6, 1992; that the library would hire plaintiff at the end of this period if her performance had been satisfactory; and that if plaintiff's performance had been satisfactory but the library did not hire her, Green Thumb would remove her from the library.

The library did not did not hire plaintiff at the end of the training period, but she nonetheless continued to work there under Green Thumb. Showalter prepared yearly Green Thumb progress reports which she gave to plaintiff. On plaintiff's progress report for 1993, Showalter stated that "Maxine is a real asset to our Technical Services department" and that "[w]e have budgeted to add her to our library paid staff in June, 1994."

In June 1993, Carol Rush (age 29) began working in the technical services department. Rush had no prior training in the field and her job responsibilities were similar to those of plaintiff. Rush began work under the "Kan Work program," a job placement program for individuals who received state support. Kan Work paid Rush's initial salary, but the library began to pay half of it in December 1993 or January 1994.

Plaintiff discussed a paid position with Lichtenwalter in May of 1994, but plaintiff did not believe that Lichtenwalter made her a formal offer. Effective June 1, 1994, Terry McLaughlin replaced Lichtenwalter as library director. McLaughlin and plaintiff also discussed the possibility of a paid position. Although defendant has produced no evidence of a written offer of employment, it asserts that it offered plaintiff a half-time salaried position in July 1994. Plaintiff denies this claim, stating that McLaughlin told her that the library budget had no money to pay her in 1994 or 1995. Because we examine the factual record and reasonable inferences therefrom in the light most favorable to plaintiff, we assume for purposes of this motion that plaintiff's version of the discussions is correct.²

On August 26, 1994, plaintiff filed an EEOC charge which alleged that the library had refused to hire her because of her age.³ McLaughlin told plaintiff's department about the charge and employees discussed the financial impact it might have on the library. In August 1994, McLaughlin wrote a memo to the library board, seeking permission to advise Green Thumb that the library wished to remove plaintiff, and that the library would terminate its participation in Green Thumb if Green Thumb did not agree to plaintiffs removal. McLaughlin explained that removal was necessary because he had been receiving complaints about plaintiff from members of her department. This statement was untrue, because according to Woodward, Knapp and McKeon, they did not complain to McLaughlin until December 1994 or January 1995. McLaughlin's memo also stated that "unless Maxine files a complaint using the Green Thumb proper procedures, we have no liability." "However," he told the library board, "this still means Maxine is holding the library `captive' and we are awaiting her action."

Meanwhile, in September 1994, McLaughlin instructed staff to make notes of any incidents that involved "Maxine and her general attitude," or keep a "paper trail" about plaintiff. He also told staff to tell him of any problems, concerns or incidents in writing.

After plaintiff filed her charge of discrimination, McLaughlin began ignoring her and other employees gave her the cold shoulder. In November 1994, someone placed in plaintiff's desk drawer a book entitled "Don't worry, be crabby, Maxine's Guide to Life Book." The book, which is published by Hallmark, features a crabby old woman with a cynical perspective on life.

Analysis

I. Failure to exhaust administrative remedies

In its reply brief, defendant for the first time argues that the Court lacks subject matter jurisdiction because plaintiff failed to exhaust administrative remedies before filing suit. Defendant relies on a grievance procedure set forth in The 1994 Senior Community Service Employment Program Calendar/Handbook, and in doing so, reveals a fundamental misunderstanding of the role of administrative proceedings in an employment discrimination context.

Filing a charge with the EEOC is a prerequisite to suit under the ADEA. See 29 U.S.C. § 626(d) (civil action may not be commenced until 60 days after charge filed with EEOC). Moreover, not only must plaintiff file an administrative charge with the EEOC, she must have done so in compliance with ADEA's explicit time limits. In this case, plaintiff was required to file an EEOC charge within 300 days of defendant's allegedly unlawful action. 29 U.S.C. § 626(d)(2).⁴ Defendant cites no legal authority for the proposition that plaintiff had a legal obligation to follow the permissive steps set forth in the 1994 Senior Community Service Employment Program Calendar/Handbook.⁵ Defendant also cites no authority for its argument that the 1994 Senior Community Service Employment Program Calendar/Handbook has supplanted the statutory procedures set forth above. Accordingly defendant's motion to dismiss plaintiff's claims for lack of subject matter jurisdiction on this basis is overruled.⁶

II. Discrimination Claims

Defendant argues that plaintiff cannot establish a prima facie case of refusal to hire or retaliation and that legitimate nondiscriminatory reasons dictated its business decisions regarding plaintiff. Where, as here, plaintiff offers no direct evidence of defendant's intent, the Tenth Circuit adopts the burden shifting scheme originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to insure an efficient presentation of circumstantial evidence.⁷ Under McDonnell Douglas, plaintiff first must establish a prima facie case of discrimination. If plaintiff succeeds, the burden...