Hudson v. Leavenworth Cnty. Sheriff's Office

MICHAEL HUDSON, Plaintiff, v. LEAVENWORTH COUNTY SHERIFF'S OFFICE, Defendant.

Case No. 14-CV-02065-JAR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

November 4, 2015

MEMORANDUM AND ORDER

Plaintiff Michael Hudson brings this lawsuit against the Leavenworth County Sheriff's Office (LCSO), asserting claims of discriminatory termination under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981; hostile work environment under Section 1981; and retaliation pursuant to Title VII and Section 1981. This matter is before the Court on Defendant's Motion for Summary Judgment (Doc. 48). The motion is fully briefed and the Court is prepared to rule. For the reasons stated in detail below, the Court grants in part and denies in part Defendant's motion for summary judgment.

I. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates "that there is no genuine dispute as to any material fact" and that it is "entitled to judgment as a matter of law."¹ In applying this standard, the Court views the evidence and all reasonable inferences therefromin the light most favorable to the nonmoving party.² "There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party."³ A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim."⁴ A dispute of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way."⁵

The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.⁶ In attempting to meet this standard, a movant who does not bear the ultimate burden of persuasion at trial need not negate the nonmovant's claim; rather, the movant need simply point out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.⁷

Once the movant has met the initial burden of showing the absence of a genuine issue of material fact, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."⁸ The nonmoving party may not simply rest upon its pleadingsto satisfy its burden.⁹ Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant."¹⁰ In setting forward these specific facts, the nonmovant must identify the facts "by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein."¹¹

Finally, summary judgment is not a "disfavored procedural shortcut"; on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."¹²

II. Evidentiary Objections

The parties have objected to the admissibility of certain evidence submitted in support of and in opposition to summary judgment. The Court first addresses these objections. Plaintiff objects to the affidavit of Major Jeff Dedeke, which states that Major Dedeke used metadata from photographs taken on February 27, 2013 in the investigation of Plaintiff.¹³ Plaintiff argues that the affidavit and the photographs with metadata violate the best evidence rule, but does not provide a basis for application of the rule. Major Dedeke describes the metadata in his affidavit and how he used the metadata in his investigation. Defendant does not offer the affidavit to prove the contents of the original photographs, but to explain the use of the photographs in the investigation.¹⁴ Thus, the Court finds that the affidavit does not violate the best evidence rule.

Defendant objects to Plaintiff's Exhibit M,¹⁵ an email from Wyandotte County Public Works Director Robert Roddy explaining that most streets in the county were not cleared until later in the day on February 27, 2013. Defendant argues that the email is unauthenticated and constitutes inadmissible hearsay. In considering whether a document is properly authenticated for purposes of consideration at the summary judgment stage, courts consider the "appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances."¹⁶ Hearsay is any statement made by the declarant while not testifying at trial or under oath that is offered for the truth of the matter asserted.¹⁷ Although the document may be authenticated based on the surrounding circumstances, it is inadmissible as hearsay. The statement within the email is an out-of-court statement by the declarant and Plaintiff is offering the statement to prove the truth of the matter asserted, i.e. that most roads in the county were not cleared until later in the day on February 27, 2013. Plaintiff does not provide a basis for consideration of the email as an exception to the hearsay rule. Thus, the Court will not consider this evidence at the summary judgment stage.

Additionally, Defendant objects to Plaintiff's Exhibit N,¹⁸ which Plaintiff purports to be a letter from Sheriff Andrew Dedeke addressing an incident involving the placement of a cartoon depicting a monkey on the window of a county jail cell. Defendant contends that this letter is not authenticated. Although this letter is not printed on the Sheriff's letterhead, thecontents, substance, and other characteristics are such that the document is authenticated.¹⁹ The letter indicates the cell number of the inmate to whom the letter is being sent, indicates that it is coming from Sheriff Dedeke, and Sheriff Dedeke's deposition testimony indicates that he was aware of the incident. Therefore, the Court will consider this letter for purposes of its ruling.

III. Uncontroverted Facts

Plaintiff is an African-American man who resides in Wyandotte County, Kansas. Plaintiff began his employment with the Leavenworth County Sheriff's Office as a detention officer in February 2006, and was promoted to patrol deputy in October 2008. David Zoellner was Sheriff of Leavenworth County from the time Plaintiff began his employment until 2013. In 2013, Andrew Dedeke took office as Sheriff of Leavenworth County. From the time he was promoted to deputy until his termination, Plaintiff's supervisors included Sergeant Ed Cummings and Lieutenant Mark Metcalf.

Workplace Comments

In 2009, Plaintiff spoke with Sergeant Cummings about Plaintiff potentially moving to a house in Leavenworth County. Sergeant Cummings repeatedly commented to Plaintiff, "why don't you move in that house up the street from me so when them boys start burning crosses in your yard I can come and help."²⁰ Lieutenant Metcalf learned of the statement from a deputy not involved in the incident and investigated the statement by conducting interviews with Plaintiff, Sergeant Cummings, and two other officers. As a result of the investigation, SergeantCummings was suspended without pay for three days, given a written reprimand, and ordered to attend sensitivity training. After completing his suspension, Sergeant Cummings continued to serve as patrol supervisor on any given shift to which he was assigned, including shifts that Plaintiff served on.

In August 2012, Sergeant Cummings conducted a performance review of Plaintiff for the previous year. Sergeant Cummings rated Plaintiff as "meets expectations," and stated that Plaintiff completed "most" of his reports on time. Sergeant Cummings explained to Plaintiff that he did not give out "exceeds expectations" ratings. Plaintiff had previously received "exceeds expectations" ratings and always completed his reports on time. Thus, Plaintiff believed Sergeant Cummings had given him a bad evaluation. Sergeant Cummings also stood behind Plaintiff at the gun range, and Plaintiff believed these actions were in retaliation for reporting Sergeant Cummings' 2009 comments.

In 2011, Plaintiff complained to another African-American employee, Officer William Francis, about the display of a confederate flag license plate on an employee's car in the LCSO parking lot. Plaintiff and Officer Francis found the display of the license plate offensive. Officer Francis in turn spoke with his supervisor about the incident, who then spoke to the employee who displayed the license plate. The employee stated that she was proud to display the license plate, but agreed to remove the plate. After learning of the incident, Sheriff Zoellner requested that Lieutenant Metcalf issue a written reprimand to Plaintiff for going outside of his chain of command and causing a potential violation of the employee's First Amendment rights. Plaintiff signed the reprimand and it was placed in his personnel file.

Deputy Bob Smith frequently quoted a sequence of movie lines from the movie Full Metal Jacket to Plaintiff when the two engaged in conversation. The sequence contained the term "Alabama blacksnake," a derogatory term used to refer to African-American male genitalia.²¹ Deputy Smith would use this term when talking to Plaintiff, sometimes on a weekly basis.²² The sequence also contained the phrase "all niggers must hang," which Deputy Smith stated on at least one occasion. Plaintiff felt offended at Deputy Smith's use of the terms "Alabama blacksnake" and "nigger," but stated that he had "no grief [with Smith] other than him, you know, showing up on time."²³ Plaintiff also heard employees refer to Deputy Silva, a Hispanic employee, as "beaner" on multiple occasions.²⁴

Off-Duty Car Policy

Defendant has a written policy concerning the off-duty use of patrol vehicles. This written policy provides guidelines concerning the storage of patrol vehicles when officers are off-duty, but does not state that out-of-county deputies cannot take their patrol vehicles home with them.²⁵ The Department does, however, have a longstanding unwritten policy that employees may not take their...