United States District Court, E.D. Kentucky, Northern Division, Ashland
MEMORANDUM OPINION AND ORDER
HENRY R. WILHOIT, Jr., District Judge.
This matter is before the Court upon the Defendants' Motion for Summary Judgment [Docket No. 16]. The motion has been fully briefed [Docket Nos. 16-1, 28 and 30]. For the reasons set forth herein, the Court finds that summary judgment is not warranted.
In November 2007 Plaintiff David Parker, an African-American, was hired as a full-time custodian, a classified position within the Greenup County Public Schools. His supervisor, Jack McCleese, Director of Grounds, Maintenance, and Custodian, assigned him to work at the Greenup County High School. McCleese acknowledged that he hired Parker despite his criminal record, consisting of convictions for receiving stolen property and multiple DUIs, because it seemed Parker sincerely wanted to change. He found him to be sincere in that desire. [Docket No. 16-2].
Based upon the record, Parker's his work was generally satisfactory during the period for November, 2007 through April of 2008.
Sometime in the Spring of 2008, Parker advised McCleese that he would be absent from work for approximately thirty days to serve a jail sentence for DUI. Parker was concerned about being able to keep his job, but McCleese told Parker that he could use vacation and sick days and gave Parker his word that he wouldn't have to worry about his job. [Docket No. 17, Deposition of David Parker, pp. 47-51]. McCleese recalls that he advised Parker that he had sufficient sick, personal and vacation days to cover a thirty-day incarceration if the time was served prior to the end of the school year on June 30, 2009. [Docket No. 18, Deposition of Jack McCleese, pp. 24-25]. Based upon these discussions, Parker did not formally request time off. McCleese himself acknowledged that Parker had told him, "If I'm not here after June 30, you know where I'll be." [Docket No. 16-3].
For reasons that are not clear based upon the record before this Court, Parker's final hearing and sentencing was delayed until the end of June 2008. Parker served his thirty day sentence in July 2008.
Parker was terminated by memorandum dated July 10, 2008, for "neglect of duty" because he had "not returned to work nor have you notified your supervisor." [Docket No. 16-6]. Parker filed a grievance contesting his termination and alleging that the termination was racially motivated. [Docket No. 16-7]. Plaintiff wrote on page two of his Grievance what lead to his suspicion that his termination was "racially motivated":
All this was set up with Mr. McCleese and myself for June 11th, but [the] Judge was not there, so I had to return on June 30th. So he knew that on the 30th I would be incarcerated. I made a lot of decisions concerning my court case, and financial matters based on Mr. McCleese's word. So that's why I wasn't at work from July 1st to July 8th. Also, he was informed by Ms. Trina Abrams (teacher) and Ms. Sheryl Lyles (GC custodian) knew about the arrangement. "However, Looking back over the situation, I have to ask myself if my termination was more racially motivated than not notifying my supervisor or Neglect of Duty.['] Because that is totally not true. My supervisor had been informed before and after July 1st to July 8th. I was the first black custodian in the history of Greenup County, and felt that I performed my duties proficiently." Id
An investigation into the termination revealed no evidence of any racial motivation for Parker's termination. However, the investigation did reveal that termination notice did not meet the due process procedures set-forth in Board Policy 3.27 and Board Procedures 3.21 Ap.1 and Ap.21 in that the notice did not include a statement of the right to meet with the superintendent to discuss the charges against him, and a form, the signing and filing of which constitutes a demand for the meeting and denial of the charges. Accordingly, it was recommended that termination be reassessed based solely on the procedural shortcomings of his termination notice. [Docket No. 16-7].
Superintendent Randy Hughes did not specifically remember the recommendation in the report that the termination be rescinded, but he did recall McCLeese coming to him and asking him to reconsider the termination. [Deposition of Randy Hughes, pp. 18-19]. Hughes stated that he issued his September 12, 2008 letter reinstating Parker based upon McCleese's request. Id
McCleese remembered events differently, testifying that he knew that a grievance was filed and investigated, but he recalled being asked by Superintendent Hughes if he had any objection to Parker being reinstated and telling him that he had no problem with Parker coming back to work. (McCleese Depo., pp. 39-41).
Parker was reinstated to full time employment.
On April 14, 2009 McCleese completed a written evaluation of Parker's job performance for the school year 2008-2009. [Docket No. 16-9]. That evaluation indicated that Parker needed improvement with respect to punctuality; in completing tasks accurately; completing tasks in a timely manner; in using proper safety measures when working; with regard to his attendance record; and with regard to returning from breaks punctually. It further indicated that his performance was unsatisfactory with respect to reporting to work punctually. Finally, with respect to overall job performance, the evaluation had both the box for "satisfactory" and "needs improvement" marked. Parker was recommended by McCleese for continued employment and was rehired for the 2009-2010 school year. (McCleese Depo., p. 44).
Parker testified that at the beginning of this school year, he was subject to harsh treatment based upon his race, on multiple occasions, the use of the word "nigger" in his presence by a white co-worker. (Parker Depo., pp.94-96). Also Plaintiff's janitorial work cart was overturned and vandalized and left in the girls' locker room shower area. Plaintiff had been complaining about things being missing from his work cart. So he had begun storing it in a locked closet in the girls' locker room. (Parker Depo., pp. 120-122). Around this time, Parker found "key scratches" on both of the cars he drove to work, and his Ford Escort "had N-I-G-G-E-R on my hood, somebody had scratched that on there." (Parker Depo., pp. 125-126, 126:20-21).
He spoke to school principal, then Mr. Dunaway, about the scratches on his car. (Parker Depo., pp. 126:11-12). Assistant Principal Amanda Powell recalled Plaintiffs complaints about fellow custodians bothering his things: "someone had taken his cart, ... and it seems like maybe something happened to his car, maybe somebody wrote something on it." [Docket No. 25, Deposition of Amanda Powell, pp. 12-14]. She recalled discussion among the school administrators that it "needed to be reported to Mr. McCleese and Mr. McCleese would then need to meet with the custodians and see what was going on. They were playing pranks on one another." Id. at 13-14. However, no such meeting was convened by McCleese.
Around this time, McCleese first claimed to be having problems with Parker's job performance. He testified regarding "an occasion [had] arisen over watching television." (McCleese Depo., p. 54). There is a dispute amongst the parties as to whether there were actual complaints or charges in this regard.
Sometime in the fall of 2009 McCleese instituted a new "team cleaning" program whereby custodians were assigned to work in two person teams and were assigned to begin work in certain specific areas and to proceed to clean in a ...