Arzate v. City of Topeka, 93-4128-SAC.

884 F. Supp. 1494

Rodolfo G. ARZATE, Plaintiff, v. CITY OF TOPEKA, Topeka Police Department, Undersheriff William Dickerson, Capt. William Beightel,¹ Lt. Kenneth Gorman, and Linda Gainer, Animal Control Manager, Defendants.

No. 93-4128-SAC.

United States District Court, D. Kansas.

March 1, 1995.

COPYRIGHT MATERIAL OMITTED

Amy C. Bixler, Alan G. Warner, Patricia Kelly, Topeka, KS, for plaintiff.

David D. Plinsky, Office of City Atty., City of Topeka, H. Neil Roach, Municipal Court, City of Topeka, Topeka, KS, for defendants.

MEMORANDUM AND ORDER

CROW, District Judge.

Trial of this case commenced on February 6, 1995. Based upon the agreement of the parties, several joint exhibits were admitted into evidence at the outset of trial. The plaintiff called each of the human defendants in his case-in-chief. The only other witness called by the plaintiff was the plaintiff himself. At the close of the plaintiff's case-in-chief, the court granted the defendants' motion judgment as a matter of law pursuant to Fed.R.Civ.P. 50 on all of the plaintiff's claims. Specifically, the court found that the evidence, viewed in the light most favorable to the plaintiff, was insufficient for any rational factfinder to find for the plaintiff on any of his claims.

Standard for Judgment as a Matter of Law² under Fed.R.Civ.P. 50

Fed.R.Civ.P. 50 provides in pertinent part:

(a) Judgment as a Matter of Law.

(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.

(2) Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment.

Judgment as a matter of law is appropriate under Rule 50 "only if the evidence, viewed in the light most favorable to the nonmoving party, points `but one way and is susceptible to no reasonable inferences supporting' the nonmoving party." Riggs v. Scrivner, Inc., 927 F.2d 1146, 1149 (10th Cir.1991) (quoting Zimmerman v. First Fed. Sav. & Loan Ass'n, 848 F.2d 1047, 1051 (10th Cir.1988)), cert. denied, 502 U.S. 867, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991). Judgment as a matter of law is only proper "when the evidence so strongly supports an issue that reasonable minds could not differ." Zuchel v. City and County of Denver, Colorado, 997 F.2d 730, 734 (10th Cir.1993) (quoting Ryder v. City of Topeka, 814 F.2d 1412, 1418 (10th Cir.1987) (quoting Delano v. Kitch, 663 F.2d 990, 1002 (10th Cir.1981) cert. denied, 456 U.S. 946, 102 S.Ct. 2012, 72 L.Ed.2d 468 (1982) (citations omitted))); see Goodwin v. Enserch Corp., 949 F.2d 1098, 1101 (10th Cir.1991) ("`In reviewing the evidence, we must `view the evidence and all inferences in a light most favorable to the nonmoving party,' although the nonmovant's position `must be supported by more than a mere scintilla of evidence.'") (quoting Meyers v. Ideal Basic Indus., Inc., 940 F.2d 1379, 1383 (10th Cir. 1991) cert. denied, 502 U.S. 1058, 112 S.Ct. 935, 117 L.Ed.2d 106 (1992)). "A reviewing court `is not permitted to consider the credibility of witnesses in reaching its decision ... nor may a court weigh the evidence or determine where the preponderance of the evidence lies.'" Zuchel, 997 F.2d at 734 (quoting Ryder, 814 F.2d at 1418) (quoting Martin v. Unit Rig & Equip. Co., 715 F.2d 1434, 1438 (10th Cir.1983) (citations omitted)); see Hurd v. American Hoist & Derrick Co., 734 F.2d 495, 498 (10th Cir.1984) ("In deciding whether to enter judgment as a matter of law, the trial court must view the evidence most favorably to the party against whom the motion is made, and give that party the benefit of all reasonable inferences. The court may not weigh the evidence or pass upon the witnesses' credibility, or substitute its judgment for that of the jury.") (citation omitted).

Summary of the Parties' Respective Claims and Defenses as alleged in the Pretrial Order and Trial Briefs

Rodolfo G. Arzate is employed by the City of Topeka as an Animal Control Officer. Arzate has been employed by the City of Topeka for approximately nineteen years. Arzate, a naturalized citizen born in Mexico, is suing the defendants for disparate treatment in violation of federal employment law. Specifically, Arzate contends that he was removed from the position of Senior Animal Control Officer and denied the opportunity to apply for the new position of Animal Control Manager, which encompassed some of Arzate's former duties, on the basis of his race and/or national origin. Arzate contends that the Animal Control Manager was given to an unqualified white female, Linda Gainer.

Arzate also alleges that he was subjected to repeated racial discrimination as a result of a hostile work environment. Arzate contends that he was repeatedly subjected to jokes of a racial nature, criticism of his Hispanic accent and mimicking of his speech. Arzate was required by his employer to take English courses to improve his writing and speech skills. Arzate contends that his work is subjected to heightened scrutiny, requiring him to rewrite memos he has prepared for misspellings and poor English, while Caucasian workers are not similarly admonished. Arzate also claims that he is given larger tasks that non-Hispanic employees.

Arzate also claims that the defendants have retaliated against him for bringing this action. Arzate claims that after filing this suit, coworkers were encouraged to write memos and, if possible, complaints about Arzate's work. Fellow employees also encouraged members of the public to file complaints against Arzate. One junior coworker, Tim Johnson, encouraged the animal shelter to write a memo/complaint against Arzate. That complaint was ultimately found to be meritless as Arzate had not committed a breach of policy or procedure. Nevertheless, Arzate claims that he was suspended for five days without pay for insubordination when he was informed of the complaint by Lt. Kenneth Gorman. Arzate is still employed as an Animal Control Officer.

The defendants deny the plaintiff's allegations, arguing that no decision adversely affecting Arzate has been based upon either his race or national origin. Instead, every decision affecting Arzate has been made based upon bona fide, legitimate reasons.

The defendants contend that despite the fact that there was a more qualified applicant, Arzate was originally given the position of Senior Animal Control officer solely based upon his seniority. The defendants contend that Arzate was unable to understand written instructions from his superiors which Arzate was supposed to explain to his workers, so those tasks fell to Linda Gainer or Sergeant Dickerson. Citizens, coworkers and employees in other departments had great difficulty in understanding Arzate's oral and written communications.

In response to public criticism over certain aspects of animal control, Sergeant Dickerson was assigned to Animal Control department to improve the effectiveness in the enforcement of animal control laws. Arzate resisted these changes. In addition, Lt. Gorman believed that Arzate's written reports were inadequate and unprofessional for such a highly paid supervisor. As a consequence of both Sgt. Dickerson's and Lt. Gorman's belief that Arzate's poor communication skills, poor word use and sentence structure needed substantial improvement, Arzate was sent to English classes at Washburn University. Another employee named Mike Grey was also sent to those classes. Arzate was not required to pay for those classes. Despite this additional education, neither Dickerson nor Gorman noticed any significant change in Arzate's communication skills.

Throughout the relevant time frame, Arzate was also experiencing several unfortunate events in his personal life. According to the defendants, the plaintiff's attitude changed significantly and for the worse as he was unfriendly and difficult to deal with.

Based upon certain decisions by the City administration and the City council, more duties were given to Animal Control. A ruling by the municipal court also increased the amount of work for Animal Control. Additional laws were passed, increasing the amount of work expected from Animal Control.

As a result of these and other changes, the City of Topeka decided to create the position of "Animal Control Manager." The creation of this position resulted in the cancellation of the "Senior Animal Control Officer" position. The animal control manager position was given to Linda Gainer, a person more qualified and better suited to the job than Arzate, who was deemed incompetent at the supervisory position he already occupied. Arzate's position was down-classed to Animal Control Officer, but Arzate suffered no pay cut as a result.

The defendants contend that the City of Topeka has a policy against discrimination. The defendants contend that Arzate's poor communication skills, inability to work well with other employees and failure to properly perform the duties of his job are the basis of all decisions that have been made and not the plaintiff's race or national origin. The defendants deny that they have retaliated against Arzate for filing this lawsuit. Instead, the defendants contend that they have not taken the proper, more drastic disciplinary measures Arzate's work performance deserves due solely to the pendency of this lawsuit.

The Legal Framework Relevant to Arzate's Title VII Claims³

Disparate Treatment

In the absence of direct evidence of discrimination, a plaintiff in Title VII actions "must abide by the complicated formula...