Robinson v. City of Ark. City

• Decision Date: 14 December 2012
• Docket Number: Case No. 10–1431–JAR.
• Citation: 912 F.Supp.2d 1045
• Parties: Trence ROBINSON, Plaintiff, v. CITY OF ARKANSAS CITY, KANSAS, Defendant.
• Court: U.S. District Court — District of Kansas

912 F.Supp.2d 1045

Trence ROBINSON, Plaintiff,

v.CITY OF ARKANSAS CITY, KANSAS, Defendant.

Case No. 10–1431–JAR.

United States District Court, D. Kansas.

Dec. 14, 2012.

Charles E. McClellan, Charles E. Watson, II, Mikel L. Stout, Todd N. Tedesco, Foulston Siefkin LLP, Wichita, KS, for Plaintiff.

Alan L. Rupe, Jason D. Stitt, Jessica L. Garner, Kutak Rock LLP, Wichita, KS, for Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

JULIE A. ROBINSON, District Judge.

This is an employment discrimination and due process case brought by a municipal employee. Plaintiff Trence Robinson asserts claims against the City of Arkansas City, Kansas, relating to its failure to properly classify and pay him as a labor foreman. He asserts claims for race discrimination under Title VII of the Civil Rights Act of 1964, and for due process violations under 42 U.S.C. § 1983 associated with the Mediation Committee's decision that he was not promoted and therefore not entitled to the labor foreman classification and pay grade. He also alleges a state law claim under the Kansas Wage Payment Act (“KWPA”). These claims were tried to the Court and this decision represents the Court's findings of fact and conclusions of law as required by Fed.R.Civ.P. 52. As described more fully below, the Court finds in favor of Plaintiff on all claims.

I. Findings of Fact

The City is a municipal corporation operating under the Commission–Manager form of government. Each year, the Commission adopts a Pay Ordinance, also called a Classification Plan, as described in the City's Personnel Policy Handbook (“Handbook”):

The City Manager is responsible for recommending to the City Commission a uniform and equitable pay plan. Such plan shall annually be a part of the recommended budget.... The pay plan shall reflect an equitable relationship among the job classifications and shall be made after review of ... [the] responsibilities of the position, and the policies of the City.

The City Commission shall formally adopt a pay plan ordinance, which ... shall establish minimum and maximum rate [sic] of pay for each class. All employees are to be paid within this range .... ¹

The Pay Ordinance “provides an inventory of all positions in the City service which are sufficiently alike in duties and responsibilities to be called by the same job title, to be accorded the same pay scale and to require substantially the same qualifications on the part of the incumbents.” ²

The Commission delegated “authority for all personnel actions, including hiring, promotion, discipline and dismissal” to the City Manager.³ The City “maintain[s] a job description for each classification” that is “intended to indicate generally the kinds of activities performed by the established classification.” ⁴ In June 1994, the City created Public–Works–wide Maintenance Worker (“MW”) III and Labor Foreman job descriptions that correlate to the classifications on the Pay Ordinance, although not necessarily to specific positions.

Plaintiff Trence Robinson started working for the City of Arkansas City in 1994, primarily in the sanitation division of the Public Service Building and Grounds (“PSBG”) department. He also performed other duties over the years, including code enforcement and nuisance abatement. Robinson eventually was promoted from MWI to MWII, and in 2004, he was promoted to MWIII. After his promotion to MWIII, Robinson also had daily responsibility for supervising twelve to thirteen inmates from the Kansas Department of Corrections, who served as day laborers for the sanitation division.

There was considerable conflicting testimony about the structure of the PSBG department. It is undisputed that until 2001, the sanitation division included not only maintenance worker grade employees, but also a labor foreman, sometimes called “sanitation foreman.” This position was held by Don Cook until 1992, when Cook retired. The duties of the sanitation foreman, like the duties of foremen in other divisions of the department, included supervising, evaluating, and disciplining employees. But after Cook retired, although the Pay Ordinance included a position for labor foreman under the PSBG department through 2008, there was no employee in the sanitation division at the foreman position. Jim Miller, who was the superintendent of the PSBG department at that time, testified that Cook's position was not filled for budgetary reasons. Miller took over most of the foremen duties, but at times had others perform some of the duties. In fact, Dave Nichols, a MWIII, served as “assistant sanitation foreman.” Miller testified that he was unwilling to promote Nichols because he was not sure he was capable of being a supervisor. Miller considered three other men as potential supervisors: Tony Tapia, who is now the Building and Grounds superintendent, Marcus Lynn, who became sexton of the cemetery, and Robinson. Miller retired in 2001, and Gary Baugher was eventually hired to replace him as superintendent of the PSBG department. It was Baugher who promoted Robinson to Maintenance Worker III in 2004.

By 2007, Baugher felt the need for more supervision of the sanitation employees, for they were incurring excessive overtime. In July 2007, with then-City Manager Doug Russell's support, Baugher assigned Nichols' supervisory duties to Robinson and instructed him to reduce overtime. Russell and Baugher also discussed a permanent “reorganization” of the sanitation division, and by August 15, 2007, a plan for reorganizing the division—with a foreman overseeing the maintenance workers—was presented to Russell. Russell supported the plan.

The heart of this dispute is whether Baugher promoted Robinson to this supervisory labor foreman position, or whether he was merely “test-driving” Robinson to see if he was capable of the position. In September 2007, Baugher offered Robinson the sanitation foreman position and told him he would need to take several computer and leadership courses. Robinson certainly believed that Baugher had promoted him. Baugher gave Robinson a job description for “Sanitation Foreman,” and had him sign it in acknowledgment of his new duties. ⁵ Robinson testified that Baugher asked Robinson if he wanted the job. It is undisputed that Baugher had first talked to Nichols about assuming additional supervisory responsibilities in light of the division's problems with overtime. And it is undisputed that Nichols declined. Although Nichols was performing some supervisory duties, he was not interested in taking on more and in being responsible for generating reports by computer. Robinson, on the other hand, was excited at the opportunity to become a supervisor and to take on all supervisory duties listed in the job description, including undertaking computer training. In any case, Robinson was expected to perform all of the duties on the job description of sanitation foreman, including supervising and evaluating employees. And he took on other duties, including taking bids for new mowers. Other supervisors and long term employees all testified that, other than Robinson, they had never experienced a MWIII or other non-supervisory employee directly evaluate or discipline other maintenance workers, including a MWIII. Before the promotion, Baugher, and not Nichols, evaluated Robinson.

Robinson produced the copy of the job description given to him by Baugher to show that he was in fact promoted. Robinson's job description included the job code 435 and pay grade 35—the labor foreman job code and pay grade; there is no red ink on this version. The City produced a copy with red ink in several places, claiming that Baugher gave Robinson a draft and that he was not then promoted. The City also insisted that Baugher did not give Robinson a job description that included the code and grade. The Court believes Robinson's testimony and evidence, not the City's.

According to Miller, the job description that Baugher had Robinson sign recited the same responsibilities that Cook had when he had been sanitation foreman. Baugher at least considered Robinson a potential supervisor, based on his exemplary skills, ability, and devotion to the City. Robinson never had taken a sick day in all those years and always accepted additional assignments as needed.

Several City employees testified that it was not possible that Baugher promoted Robinson. The City insisted that a promotion was not valid unless three steps were satisfied: city manager approval as evidenced by Personnel Action Form (“PAF”), City Commission approval of the classification as evidenced by the Pay Ordinance; and budgetary approval. But the City's argument that these were prerequisites to Robinson's promotion fails for several reasons.

City Manager Approval; PAFs

The City contends that the first prerequisite to a promotion is approval by the City Manager, as documented on a PAF. Many such PAFs were admitted in evidence, illustrating that the City documented personnel action on Robinson and other employees who were promoted, evaluated, or disciplined. Although there were PAFs in Robinson's personnel file, there was no PAF for his promotion to foreman, and the City claimed no such PAF was ever completed. Gary Baugher testified that he did not do a PAF because he had no intent to promote Robinson.

The Court nevertheless finds that the Handbook only requires PAFs for “appointments” (i.e., new hires), not “promotions.” The Handbook would make no sense if “appointments” included “promotions,” because it distinguishes in several sections between the procedures and rules applicable to appointments and promotions.

Still, even if the Handbook does not require a PAF, the City argues that the custom and practice at the City was to require City Managers' approval in the form of PAFs to effectuate promotions. Russell testified that Baugher never gained oral or written approval from him to promote Robinson or to change his job classification and pay grade. But this testimony...