Fisher v. Univ. of Kansas Facilities Operations

JIMMY R. FISHER, Plaintiff,

v.THE UNIVERSITY OF KANSAS FACILITIES OPERATIONS, Defendant.

Case No. 10-4102-DJW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Dated: November 22, 2011

MEMORANDUM AND ORDER

Plaintiff Jimmy R. Fisher, proceeding pro se, brings this lawsuit against his former employer, the University of Kansas Facilities Operations, alleging race discrimination, racial harassment, and retaliation in violation of the Title VII of the Civil Rights Act of 1964.¹ This matter is before the Court on Defendant's Motion for Summary Judgment (ECF No. 16). As explained in more detail below, the Court finds that Plaintiff's racial harassment claim does not fall within the scope of his administrative complaint filed with the Kansas Human Rights Commission ("KHRC") and was therefore not administratively exhausted. The Court further finds that Plaintiff's two written reprimands and negative progress report do not constitute an adverse employment action sufficient to state a claim for race discrimination. Finally, Plaintiff has failed to show that he engaged in protected opposition to discrimination preceding the claimed retaliatory actions by his employer on his retaliation claim. Accordingly, the Court grants summary judgment on all claims in favor of Defendant.

I. Material Facts

As a preliminary matter, the Court notes that Plaintiff's response brief fails to adequately respond to, much less controvert, many of Defendant's statements of undisputed material facts.² Plaintiff simply sets forth his own statement of undisputed material facts, most of which contain no citation to the record. D. Kan. Rule 56.1 requires that "[e]ach fact in dispute shall be numbered by paragraph, shall refer with particularity to those portions of the record upon which the opposing party relies and, if applicable, shall state the number of the movant's fact that is disputed." Plaintiff fails to comply with these requirements. Thus, where allegedly disputed facts are not directly controverted by evidence contained in the record, the Court considers those facts uncontroverted under Federal Rule of Civil Procedure 56. As Plaintiff is proceeding pro se, the Court must construe his pleadings more liberally and hold it to a less stringent standard than formal pleadings or papers drafted by lawyers.³ The Court will therefore deem Defendant's facts controverted to the extent that Plaintiff's own statements of undisputed facts fairly meet the substance of Defendant's statement of facts and are supported by competent evidence.

Plaintiff is African-American and was employed by the University of Kansas beginning on July 15, 2007, as a Maintenance/Service Worker-Custodial working in the University's Facilities Operations Custodial Services Department.

In March 2008, Plaintiff was working in the Malott building. His supervisor at that time was Robert Osburn. In a Quality Assurance Program report dated "5/08," Plaintiff's supervisor checked satisfactory in all the areas to be cleaned by Plaintiff and wrote "good job!" on the report.

Around October 2008, Plaintiff was assigned to work in the Wescoe building. In his Quality Assurance Report dated October 12, 2008, his supervisor, Linda Otlinger, checked his cleaning of four areas as unsatisfactory. She wrote "[a]fter inspecting your areas, I would like to help by retraining you on Wescoe's RRs, and classrooms to help, with time management and efficiency, will improve." On his October 22, 2008 report, she only checked one area as unsatisfactory and commented, "[y]our area is improving. Thank you for your efforts. Keep up the good work." In his October 28, 2008 report, his supervisor checked three areas as unsatisfactory.

In December 2008, Plaintiff was assigned to work at Robinson Gymnasium. Plaintiff's immediate supervisor was Vicki Topolewski Osburn. She is a custodial supervisor in the University's Facilities Operations Custodial Services Department.

On December 12, 2008, Ms. Osburn issued a written reprimand to Plaintiff concerning an incident that occurred on December 9, 2008, in which Plaintiff failed to perform his assigned duties of assisting another employee on "project night." In the December 12 "Note for File," Ms. Osburn informed Plaintiff that he was not being a team player and needed to follow instructions. The Note further stated "[i]f this continues to be a problem you will face further discipline."

On December 23, 2008, Ms. Osburn provided Plaintiff with his annual evaluation for the period January 15, 2008 through December 31, 2008. In that evaluation, Plaintiff was rated overall as "Meets Expectations" and was rated "Meets Expectations" in four of the five categories evaluated. Under "Quantity of Work," Ms. Osburn stated that: "[Plaintiff] does what needs to bedone. He works at a slow steady pace. I would like to see [him] speed up the pace so he can do extra projects or help in other areas if needed." Under Quality of Work, Ms. Osburn rated Plaintiff's work as "Meets Expectations" and commented that "[o]verall [Plaintiff] does a good job. He needs to pay more attention to the small details in his area." In the Working Relationships with Co-Workers, Ms. Osburn gave Plaintiff an "Unsatisfactory" rating and commented:

[Plaintiff] gets along well with fellow custodians. He needs to work at getting along with his supervisors. He needs to be less argumentative and ask questions without talking down to his supervisors. When corrected if he misses something in his area he needs to discuss it without being defensive. [Plaintiff] needs to become more of a team player. When there are group projects that need to be done he needs to pitch in and do his fair share of the work. When emergencies arise he needs to stay until the job is finished.

In December 2008, April Blasingame, one of Plaintiff's coworkers, reported that Plaintiff had approached her and given her a note asking for her phone number so that they could meet outside work. After she ignored his request, he again approached her and asked her what she was paranoid about and if the note scared her. She reported the incident as possible sexual harassment. On December 24, 2008, Steve Ramirez, Defendant's Equal Opportunity Specialist/ADA and Title IX Coordinator, conducted an investigation. When he interviewed Plaintiff on December 29, 2008, Plaintiff told Mr. Ramirez that he felt he was being discriminated against based on his race. In response to this statement, Mr. Ramirez asked Plaintiff to provide him with specific examples of how he had been discriminated against. Plaintiff told Mr. Ramirez that he had his allegations documented, but that he wanted to provide Mr. Ramirez with a typed complaint. Mr. Ramirez responded that he would accept the complaint when Plaintiff was ready to provide specific examples. On February 6, 2009, Mr. Ramirez issued a written report of his investigation into the allegations of sexual harassment against Plaintiff. In that report, Mr. Ramirez concluded thatPlaintiff had engaged in inappropriate and unwelcome behavior toward a female co-worker, and he recommended that Plaintiff be disciplined. On February 9, 2009, Mr. Ramirez informed Plaintiff that he found Plaintiff had engaged in inappropriate and unwelcome behavior toward a female co-worker and that he recommended Plaintiff be disciplined for such conduct.

On March 19, 2009, Plaintiff was given a second written reprimand for not following directions. Plaintiff's supervisor, Ms. Osburn, described in the "Note for File" three instances where Plaintiff had not followed her instructions. The Note further stated that Plaintiff's conduct was unacceptable and if it continued to be a problem, "discipline could occur up to and including suspension or dismissal."

On March 25, 2009, Ms. Osburn provided Plaintiff with a progress report in which she reported that Plaintiff's attitude had started to slip back to an unacceptable level, he was not following instructions, he had slowed down getting his work done, and his attendance had become a problem with two separate instances of sick calls in a thirty-day period. Nonetheless, the progress report noted that "overall his area is acceptable," and concluded with the following statement:

Jimmy needs to follow instructions. Jimmy needs to get his scheduled area done in a timely manner. Jimmy needs to improve his attendance. Jimmy needs to do project work that does not include his regular scheduled duties on the 3 nights a week he does not have to pull office trash. Jimmy needs to work on improving his attitude. He was headed in the right direction up until last week and has started to regress.

On April 14, 2009, Plaintiff telephoned Mr. Ramirez to inquire about his complaint regarding racial discrimination. Mr. Ramirez reminded Plaintiff that in the December 29, 2008 meeting Plaintiff had told Mr. Ramirez that he would provide written documentation concerning his complaint but he had not done so. Plaintiff stated he would provide Mr. Ramirez written documentation of his complaint.

On April 21, 2009, Plaintiff left Mr. Ramirez a voicemail message that he wanted to bring his written documentation concerning his complaint of race discrimination to Mr. Ramirez on April 22, 2009. On April 22, 2009, Plaintiff said he would bring his written documentation of his complaint to Mr. Ramirez on April 23, 2009. Plaintiff provided a written statement of his allegations of discrimination to Mr. Ramirez on April 23, 2009.

On May 4, 2009, Plaintiff filed a complaint with the Kansas Human Rights Commission against Defendant alleging race discrimination and retaliation.

Mr. Ramirez conducted an investigation into Plaintiff's complaint alleging racial discrimination, and on June 22, 2009, Mr. Ramirez wrote Plaintiff advising him that his investigation had found insufficient information to substantiate Plaintiff's discrimination complaint.

Defendant terminated Plaintiff's employment effective August 21, 2009. Plaintiff did not appeal...