Hysten v. Jefferson County Bd. of County Com'Rs
| Decision Date | 02 February 1998 |
| Docket Number | Civil Action No. 97-2100-KHV. |
| Parties | Clinton HYSTEN, Plaintiff, v. JEFFERSON COUNTY BOARD OF COUNTY COMMISSIONERS, Defendant. |
| Court | U.S. District Court — District of Kansas |
Pantaleon Florez, Jr., Florez & Frost, P.A., Topeka, KS, for Plaintiff.
Michael T. Jilka, Wendell F. Cowan, Jr., Celia K. Garrett, Shook, Hardy & Bacon L.L.P., Overland Park, KS, for Defendant.
Plaintiff Clinton Hysten, a former employee of the highway department of Jefferson County, Kansas, seeks relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Kansas Act Against Discrimination, K.S.A. § 44-1001 et seq. Specifically, he claims that defendant discriminated against him on the basis of race and retaliated against him for filing a charge of discrimination in March of 1994. Defendant seeks summary judgment on all claims. See Motion For Summary Judgment (Doc. # 29) filed November 25, 1997.
Summary judgment must be granted when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Applying this standard, for reasons discussed more fully below, the Court finds that defendant's motion should be and sustained in part and denied in part.
The following facts are undisputed or, where disputed, construed in the light most favorable to plaintiff.1
On May 8, 1992, Clinton Hysten applied for a position as a highway maintenance employee with the Jefferson County Highway Department [the County]. Plaintiff applied for full-time employment but the County hired him as a temporary summer employee beginning that month. In 1993, the County offered plaintiff a full-time position as a "tire man." Plaintiff declined the job because he did not want it. At some point, plaintiff talked to Richard Teaford, Jefferson County Engineer, about full-time employment. Plaintiff was told that he would need a commercial driver's license, which he did not have.
Although the County originally hired plaintiff as a temporary summer employee, he apparently continued to work on a more or less regular basis from May, 1992 through December, 1994. He reported for work every day at 8:00 or 9:00 a.m., and worked "when there was work to be done." Sometimes the man in charge would send plaintiff home because there was nothing to do, but similarly situated white employees were allowed to work. Plaintiff was sent home more frequently after George Pentlin became his supervisor. At some point plaintiff complained to Teaford that he was being sent home when white employees were being allowed to work. Within a reasonable time after plaintiff complained, the County remedied this situation.
The County Highway Department workplace was racially charged, it was common for permanent full-time white employees to use the term "nigger" and tell off color jokes. This activity generally occurred behind plaintiff's back but it was a frequent occurrence and was "commonly known to occur." Notwithstanding this situation, plaintiff received regular salary increases during his tenure with the County and, because he liked the work, he considered his job with the County the best job he ever had. Eric Eck, a similarly situated white employee who worked for the County during part of plaintiff's tenure, observed that the County had no highway department employee who completed and performed job tasks better than plaintiff.
On December 29, 1992, the County reprimanded plaintiff for carelessness, i.e., losing a chain saw which had been improperly secured on the back of a county truck. That same day, plaintiff signed a statement which concurred with the County's accusation that he "in company with Carl Walker, on an unauthorized trip from Rock Creek Area to the Meriden Area, did lose a brand new Model 028 Stihl chainsaw which was improperly secured on the back of the County Truck." As a result of that warning, both plaintiff and Walker (a white permanent employee) received one-week suspensions without pay.
On December 31, 1993, plaintiff received a written warning for failing to notify the office that he was not coming to work, as required by Department Policy. Plaintiff signed the written warning and indicated his concurrence with the County's statement of the violation.
At some point, plaintiff filed a charge of discrimination against the County. On March 14, 1994, the County received notice of the charge from the Kansas Human Rights Commission. No one talked to plaintiff about the charge and to his knowledge, no one "punished" him for filing it.
All County employees were in radio contact with the main Department office. From time to time Debra Miller, the office manager who handled time sheets and work documentation, called over the radio and corrected time card mistakes made by white employees. From time to time, Eck made mistakes on his time card and Miller corrected them. Defendant never accused Eck of falsifying time cards or disciplined him because of the time card issue. The record contains conflicting evidence whether defendant treated black and white employees the same, in their dealings with time cards. Eck claims that plaintiff was not treated the same as white employees but Miller claims that he was. Eck states that to his knowledge the County has never disciplined a white employee for turning in a time card that was wrong. This statement stands unrefuted, although Miller claims that plaintiff's mistakes were more frequent and more serious than the mistakes of white employees.
On April 18, 1994, one month after the County received notice of plaintiff's charge of discrimination, plaintiff received a written warning for consistently turning in falsified time sheets which claimed time that he had not worked and, specifically, for making six false claims (40.5 hours) in the preceding two-week period. When the County confronted him about the matter, plaintiff signed the warning and indicated his concurrence with the County's statement of the violation. The warning advised plaintiff that "[f]alsifying time sheets cannot be condoned, and if it doesn't stop, your employment may be terminated."
Less than two weeks later, on May 2, 1994, plaintiff received another written warning for falsifying time sheets. The time card in question looked like every other time card plaintiff had turned in but when confronted, plaintiff signed the warning and indicated his concurrence with the County's statement that he had "again turned in a falsified time sheet." The warning admonished plaintiff that because this was his third violation in less than seven months, his part-time employment would be terminated if he had another violation on or before December 20, 1994. Plaintiff signed the warning, acknowledging that he had read the warning decision and that he understood it.
Miller had called plaintiff and tried to teach him how to fill out his time sheets, and as far back as January of 1993, she had amended plaintiff's time sheets or assisted him in doing so. Miller believed that plaintiff had limited ability to read. Consistent with her belief, plaintiff claims that although he signed the written warnings which indicated that he concurred with the County's statements of the violations, he does not know the meaning of the word "concur." The County used written warning forms (entitled "Employee Warning Report") to document employee discipline. Each form had two boxes where the employee could respond to the "Company Statement" of the alleged infraction. For each warning, plaintiff checked the first box, which stated "I concur with the Company's statement." The other box stated "I disagree with the Company's statement" and left space the employee to state reasons for disagreement. Plaintiff also signed separate statements which indicated that he had read the warnings and understood them.
On December 27, 1994, Teaford advised all part-time employees in the Road Department that part-time employment for 1994 would end, effective December 31, 1994, but that "anyone interested" was invited to reapply when the County advertised for part-time help in 1995. Consistent with this announcement, the County terminated plaintiff's employment and that of three white temporary employees (Eric Eck, Matt Roberts and Zack Brown) effective December 31, 1994. According to Teaford, the decision was made because there was not enough work and the County could not financially justify keeping temporary workers on the payroll when permanent workers were idle. Plaintiff claims that this explanation is a pretext for discrimination, citing evidence that the County's total budget allocation for the road, bridge and highway departments increased "about $500,000" (from $1,642,650.00 to $2,149,734.00) between 1994 and 1995. Also, the County sometimes moved plaintiff and its other employees between payroll funds to pay wages.
Plaintiff argues that the County laid off the three white workers so that it could terminate his employment on account of his race.2 In support of this allegation, plaintiff cites testimony by Eck (one of the white employees whose employment was terminated along with that of plaintiff), to the effect that "[a]fter Mr. Hystens [sic] separation I learned that the County did in fact layoff the other temporary part-time white employees so that they could get rid of Mr. Hysten." Affidavit of Eric Eck, Exhibit 3 to Plaintiff's Response To Defendant's Motion For Summary Judgment (Doc. # 36) filed January 7, 1998 [Eck Affidavit]. Plaintiff also cites the affidavit of Mary Oliver, a private investigator plaintiff hired to investigate his claim of discrimination. Oliver avers that she interviewed past and current employees and residents of ...
To continue reading
Request your trial
-
Booker v. Budget Rent-a-Car Systems
...establishes a nexus between the employment action and discriminatory conduct, see id. at 514-515, Hysten v. Jefferson County Bd. of County Comm'rs, 995 F.Supp. 1191, 1198-99 (D. Kan.1998). In the present case, the person to which these racial epithets are imputed is the one who was in an im......
-
Bennett v. Henderson
...adverse action is one that affects the `terms, privileges, duration, or conditions of employment.'" Hysten v. Jefferson County Bd. of County Comm'rs, 995 F.Supp. 1191, 1202 (D.Kan.1998) (quoting Yerdon v. Henry, 91 F.3d 370, 378 (2d Cir. 1996)). "Adverse employment action has been liberally......