Nealey v. Water Dist. No. 1 of Johnson County, 06-2237-CM.

554 F.Supp.2d 1226

Donna J. NEALEY, Plaintiff, v. WATER DISTRICT NO. 1 OF JOHNSON COUNTY, KANSAS, Defendant.

No. 06-2237-CM.

United States District Court, D. Kansas.

April 29, 2008.

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Bert S. Braud, The Popham Law Firm, P.C., Stephen J. Dennis, Kansas City, MO, for Plaintiff.

Daniel C. Estes, Michael K. Seek, Michelle R. Stewart, Fisher, Patterson, Sayler & Smith, LLP, Overland Park, KS, for Defendant.

MEMORANDUM AND ORDER

CARLOS MURGUIA, District Judge.

Plaintiff Donna J. Nealey brings this action against defendant Water District No. 1 of Johnson County, Kansas. Plaintiff, a former employee of defendant, alleges defendant: (1) discriminated against her in violation of the Age Discrimination in Employment Act ("ADEA"); (2) discriminated against her in violation of the Americans with Disabilities Act ("ADA"); (3) interfered with her rights under the Family Medical Leave Act ("FMLA"); (4) retaliated against her for exercising her FMLA rights; (5) retaliated against her for protected activity under the ADEA; and (6) retaliated against her for protected activity under the ADA. The case is before the court on defendant's motion for summary judgment (Doc. 46). The court grants the motion.

I. Background

At all relevant times, plaintiff was over forty years old. Plaintiff began working for defendant in 1988. By March of 1994, plaintiff worked as an administrative secretary for director Dan Smith. From 1994 to 2004, defendant gave plaintiff positive reviews, including "satisfactory," "competent," and "commendable." On April 27, 2004, after an incident involving a co-worker giving plaintiff an injection at work, defendant placed plaintiff on administrative leave. The leave spanned an investigation into whether plaintiff violated defendant's alcohol and drug policy. Defendant determined that plaintiff did not violate the policy, but the investigation also examined the growing difficulties in the relationship between plaintiff and Dan Smith. Five days before plaintiffs administrative leave began, Dan Smith created a "memorandum of discipline," but never provided a copy to plaintiff.

Despite plaintiffs insistence on returning to her former position, defendant instead negotiated other alternatives with plaintiff. These alternatives included disability retirement and two alternative positions. Plaintiff agreed to accept one of the suggested alternatives, returning to Work in September 2004. Defendant assigned plaintiff to report to Greg Johnson. Johnson kept a log of incidents related to plaintiff. Johnson did not keep a similar log for any other employee.

From May 2005 to March 2006, plaintiff requested various periods of leave under the FMLA. These requests were approved. Also during this period—beginning in June 2005—defendant identifies several instances of plaintiff sleeping at work. At times, plaintiff would fall asleep with her head on the keyboard, causing her computer to beep. Defendant told plaintiff that she was not allowed to sleep at work and discussed leave options with her. On December 28, 2005, plaintiff reportedly fell asleep during a meeting regarding her FMLA leave.

On January 30, 2006, Dan Smith wrote a memo to other managers stating that plaintiff "had done a masterful job ... to manipulate all of us into an impossible situation" and asking, "[i]s there nothing you guys can or are willing to do." In February 2006, members of defendant's management attended two audio conferences. The first was entitled, "Terminating Employees Without Getting Sued." The second featured the title, "FMLA Abuse: Fight Back and Win."

On March 7, plaintiff received her first written warning about sleeping at work. On March 13, plaintiff was seen sleeping at her desk. The following day, defendant placed plaintiff on leave. On March 17, plaintiff received a letter terminating her employment effective March 31, 2006.

II. Judgment Standard

Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

III. Analysis

A. ADEA claim

Plaintiff does not argue that she has direct evidence of age discrimination. In the absence of such evidence, the court analyzes plaintiffs claim under the burdenshifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, plaintiff bears the initial burden of establishing a prima facie case of discrimination. Id. at 802, 93 S.Ct. 1817. If plaintiff presents a prima facie case, the burden shifts to defendant to produce a legitimate, nondiscriminatory reason for the employment action. Id. If defendant meets its burden, plaintiff must demonstrate that an issue of material fact exists as to whether defendant's proffered reason is merely pretextual. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Pretext can be established if plaintiff shows either "that a discriminatory reason more likely motivated the employer or ... that the employer's proffered explanation is unworthy of credence." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). "[A] plaintiffs prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); see also McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir.1998) ("In evaluating ADEA claims, the Tenth Circuit uses the three-stage analysis outlined in McDonnell Douglas.").

To establish a prima facie case under the ADEA, plaintiff must show that: (1) she was within the protected age group; (2) she was doing satisfactory work; (3) she was subjected to an adverse employment action; and (4) her position was filled by a substantially younger person. Rivera v. City and County of Denver, 365 F.3d 912, 919 (10th Cir.2004) (quoting McKnight, 149 F.3d at 1128); O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312-13, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996).

Here, defendant argues that plaintiff cannot prove that she was doing satisfactory work. When evaluating this element, "[i]t is the manager's perception of the employee's performance that is relevant, not plaintiffs subjective evaluation of his own relative performance." Wiemer v. Learjet Inc., 113 Fed.Appx. 887, 889 (10th Cir.2004) (quoting Furr v. Seagate Tech., Inc., 82 F.3d 980, 988 (10th Cir.1996)). The court will not substitute its business judgment for that of the employer. Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1330 (10th Cir.1999); Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir.1988). Moreover, the court recognizes that it must evaluate employers' decisions based upon the information available to them at the time the decision was made. Watts v. City of Norman, 270 F.3d 1288, 1295 (10th Cir.2001). Relevant evidence to establish that plaintiff performed satisfactory work may include: (1) "evidence that she continued to possess the objective qualifications she held when defendant hired her; (2) ... her own testimony that her work was satisfactory; or (3) ... evidence that she held her position for a significant period of time." Grosdidier v. Leisure Hotels, LLC, 05-2090-KHV, 2006 WL 750830, at *7 (D.Kan. Mar.23, 2006) (citing MacDonald v. E. Wyo. Mental Health Ctr., 941 F.2d 1115, 1121 (10th Cir.1991); Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1421 (10th Cir.1991)). It remains that unsupported, conelusory testimony may be insufficient to meet plaintiffs burden to establish a prima facie case. Id.

Although in the argument portion of her brief plaintiff only addresses this issue with the succinct assurance that, "[p]laintiff has come forward with her long history of satisfactory written performance appraisals, verifying that her work was satisfactory right up through the point where she was wrongfully placed on administrative leave[,]" plaintiffs statement of facts provides slightly more detail. Plaintiff began working for defendant in 1988 and by 1994 was in the position at issue. From 1988 to 2001, her work was rated "satisfactory" or "competent." On the last written appraisal before she was placed on administrative leave, she received an overall performance rating of "competent" or "commendable." Because this evidence must be viewed in the light most favorable to plaintiff, the court finds that plaintiff has provided sufficient evidence to avoid summary judgment on this issue.

Defendant also argues that plaintiff cannot prove that she was subjected to an adverse employment action. To satisfy this element, plaintiff must show a "`significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'" Velazquez v. Tyson Fresh Meats, Inc., No. 06-2300-JWL, 2007 WL 2994068, at *6 (D.Kan. Oct.12, 2007) (quoting Hillig v. Rumsfeld, 381 F.3d 1028, 1032-33 (10th Cir.2004)).

Plaintiff responds that defendant placing her on administrative leave pending an investigation and ultimate removal from the position of administrative secretary is an adverse employment action. Plaintiff was reassigned to a new position. The new position was in a different part of the building and no longer involved maintaining the...