Peterson v. City of Wichita, Kan.

• Decision Date: 14 February 1989
• Docket Number: No. 86-1013-C.,86-1013-C.
• Parties: Harold PETERSON, Plaintiff, v. CITY OF WICHITA, KANSAS, Defendant.
• Court: U.S. District Court — District of Kansas

706 F. Supp. 766

Harold PETERSON, Plaintiff, v. CITY OF WICHITA, KANSAS, Defendant.

No. 86-1013-C.

United States District Court, D. Kansas.

February 14, 1989.

COPYRIGHT MATERIAL OMITTED

Jim Lawing, Wichita, Kan., for plaintiff.

John Dekker, Wichita, Kan., for defendant.

MEMORANDUM AND ORDER

CROW, District Judge.

The case comes before the court on defendant's motion for summary judgment. In his suit, plaintiff alleges because of his race he was discharged from his position with defendant as Director of the Human Resources Department. Plaintiff seeks relief only under Title VII, 42 U.S.C. § 2000e, et seq. Besides denying it committed any unlawful discrimination, the defendant City of Wichita (City) contends plaintiff is precluded, as a matter of law, from any relief under Title VII for his failure to file a timely charge with the Equal Employment Opportunity Commission (EEOC).

In ruling on a motion for summary judgment, the trial court conducts a threshold inquiry of the need for a trial and grants summary judgment where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed. 2d 202 (1986). The court is to be concerned with the sufficiency of the evidence, not its weight. Casper v. C.I.R., 805 F.2d 902, 904 (10th Cir.1986.) Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2511-2512. There is no genuine issue for trial unless there is sufficient evidence—significantly probative or more than merely colorable—favoring the non-moving party for a jury to return a verdict for that party. 477 U.S. at 249, 106 S.Ct. at 2510. Where there is but one reasonable conclusion as to the verdict and reasonable minds would not differ as to the import of the evidence, summary judgment is appropriate. 477 U.S. at 250, 106 S.Ct. at 2511.

The movant's burden under Fed.R.Civ.P. 56 is to make an initial showing of the absence of evidence to support the nonmoving party's case. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 345. (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987). To show an absence of material fact, the movant must specify those portions of "the pleadings, deposition, answers to interrogatories and admissions on file, together with affidavits if any." Fed.R.Civ.P. 56(c). "Conclusory assertions to aver the absence of evidence remain insufficient to meet this burden." Windon, 805 F.2d at 345 n. 7. The opposing party may not rest upon mere allegations or denials in the pleadings but must set forth specific facts supported by the kinds of evidentiary materials listed in 56(c), which demonstrate a genuine issue remaining for trial. Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. The evidence of the nonmoving party is deemed true and all reasonable inferences are drawn in his favor. Windon, 805 F.2d at 346. "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." (citation omitted.) Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed. 2d 265 (1986).

For purposes of this motion for summary judgment, the following facts are uncontroverted.

1. Plaintiff, Harold Peterson, is a Black American male.

2. Defendant, City of Wichita, Kansas, is a city of the first class, organized and existing under the laws of the State of Kansas. At all relevant times, E.H. Denton was the City Manager of the defendant City.

3. Plaintiff was employed as the Director of the City's Department of Human Resources from February 28, 1981, until June 8, 1983, when he was terminated. Plaintiff served as the Acting Director of the Department of Human Resources from June 8, 1983, to September 3, 1983. Plaintiff's successor as the Director of Human Resources was a black female, Lorraine Griffin Johnson.

4. Plaintiff was informed of his termination on June 8, 1983, by a letter from City Manager Denton. Plaintiff, with the assistance of an attorney, filed a grievance the next day using the procedure provided in the City's personnel manual. On September 14, 1983, plaintiff's local administrative remedies were exhausted upon receipt of a letter from City Manager Denton stating that the Personnel Advisory Board had found just cause for plaintiff's termination and that he was reaffirming the termination. The letter ended with the following paragraph:

Should you disagree with this decision you have the right to file a complaint with the United States Department of Labor Employment and Training Administration Grant Officer pursuant to Section 676.86 of Title 20 of the Code of Federal Regulations, if your employment was covered by those procedures.

The letter further indicates that a copy was sent to plaintiff's attorney.

5. On September 23, 1983, plaintiff filed a charge of race discrimination against the defendant City with the Regional Director of the Department of Labor's Office of Civil Rights. On October 14, 1983, the Regional Director responded by letter seriously questioning whether plaintiff's complaint was within the Department of Labor's jurisdiction and asking for additional information to make that final determination. Plaintiff has not averred when or if he provided the additional information. On February 27, 1984, the Regional Director again wrote plaintiff explaining that his office lacked jurisdiction over plaintiff's complaint. This letter began: "This is in response to a letter dated February 15, 1984, from Mr. Edmond Hayes, your Attorney-at-Law, requesting the Office of Civil Rights (OCR) to invoke jurisdiction over your complaint against the City of Wichita...."

6. On February 27, 1984, plaintiff completed and sent a "Discrimination Complaint Form" to the Department of Health and Human Services (HHS), Office for Civil Rights, alleging the defendant City had discriminated against him on the basis of race. The complaint was signed and dated by plaintiff but not under oath or affirmation. The Department of HHS received the complaint on February 29, 1984.

7. By letter dated March 15, 1984, the Department of HHS informed plaintiff that his complaint had been received and was being transferred to the EEOC for determination of jurisdiction under Title VII of the Civil Rights Act of 1964. The letter further stated that the date the complaint was received by the Department of HHS would be deemed the date the complaint was received for Title VII purposes, unless an earlier charge was filed with the EEOC.

8. In a letter dated March 23, 1984, plaintiff's present attorney wrote the EEOC inquiring as to the agency's jurisdiction over plaintiff's complaint.

9. On March 29, 1984, the Kansas City Area Office of the EEOC wrote plaintiff that his charge of employment discrimination had been received and assigned a charge number, that a copy of the charge would be provided the City of Wichita within ten days, and that the information provided in his charge was insufficient to continue the investigation. Plaintiff was requested to contact the EEOC within 30 days to arrange for an interview or his charge would be dismissed.

10. On March 29, 1984, the EEOC sent a "Notice of Charge of Employment Discrimination" to the City Manager. The EEOC also sent a charge transmittal to the Kansas Commission on Civil Rights (KCCR), indicating the plaintiff's charge was originally received on March 28, 1984, and, pursuant to the work-sharing agreement, the EEOC would initially process the charge.

11. Plaintiff completed a questionnaire for the EEOC on June 3, 1984. He executed the questionnaire "under penalty of perjury that the foregoing is true and correct."

12. From the questionnaire, the EEOC prepared a potential charge of employment and mailed it to plaintiff on July 24, 1984, with an enclosure letter. Plaintiff was asked to review the charge, sign it, and return it promptly "because a charge must be filed within the time limitations imposed by law...." In the letter, plaintiff's charge number was followed by the word "PERFECTED" in all capital letters.

13. Plaintiff executed the formal or perfected charge on July 30, 1984. On August 3, 1984, the EEOC sent a charge transmittal to the KCCR indicating plaintiff's charge was initially received by the EEOC on August 1, 1984, and, pursuant to the work-sharing agreement, the charge would be initially processed by the EEOC. The charge transmittal form referred to the EEOC charge number as "perfected."

14. On June 14, 1985, plaintiff signed a second charge of discrimination with the EEOC. The EEOC on October 11, 1985, issued its determination of no reasonable cause.

15. Plaintiff filed his Title VII action with this court on January 8, 1986.

Ostensibly, defendant's motion for summary judgment raises the one issue, whether plaintiff filed a timely charge with the EEOC. A number of critical underlying contentions, however, preclude a terse ruling.

Title VII is "`an integrated, multistep enforcement procedure'" beginning with the filing of a charge with the EEOC alleging discriminatory treatment from an employer. EEOC v. Shell Oil Co., 466 U.S. 54, 62, 104 S.Ct. 1621, 1627, 80 L.Ed.2d 41 (1984) quoting Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 359, 97 S.Ct. 2447, 2451, 53 L.Ed.2d 402 (1977). The "filing of a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234...