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Winchester v. City of Hopkinsville

United States District Court, W.D. Kentucky, Paducah Division

March 11, 2015


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William Winchester, Plaintiff, Pro se, Paducah, KY.

For City of Hopkinsville, Defendant: C. Thomas Miller, James A. Sigler, LEAD ATTORNEYS, Whitlow, Roberts, Houston & Straub, PLLC, Paducah, KY; H. Douglas Willen, LEAD ATTORNEY, Cotthoff & Willen, Hopkinsville, KY.

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Thomas B. Russell, Senior United States District Judge.

This matter comes before the Court upon competing motions for summary judgment. Plaintiff William Winchester, proceeding pro se, first filed his motion for partial summary judgment. (Docket No. 8.) The City of Hopkinsville (" the City" ) responded, (Docket No. 25), and Winchester replied, (Docket No. 20). The City also filed a motion for summary judgment, (Docket No. 26), to which Winchester has responded, (Docket No. 35), and the City has replied, (Docket No. 39). Fully briefed, these matters stand ripe for adjudication.

Winchester claims that the City rejected his application for a crime scene technician position with the Hopkinsville Police Department (" the Department" ) in violation of the Age Discrimination and Employment Act (" ADEA" ), the Kentucky Civil Rights Act (" KCRA" ), and the Fair Credit Reporting Act (" FCRA" ). For the reasons set forth below, the Court will DENY Winchester's motion, (Docket No. 8), and

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will GRANT the City's motion, (Docket No. 26).

Factual Background

Winchester, who was fifty years old at the time of his application, contends that he discovered the crime scene technician listing on the Kentucky Office of Employment and Training's job board and on the City of Hopkinsville's website. According to the posted job description, scene technicians are charged with " collecting, preserving, and processing evidence from a crime scene or suspected crime scene" and are " [r]esponsible for control of all evidence and found items submitted to the Property System through use of computer identification numbers, controlled access, and security system." (Docket No. 25-2, Job Description, at 2-3.) The essential functions of the job emphasize the importance of preserving a " [s]trict chain of custody," " dispos[ing] of excess or unneeded evidence in accordance with evidence destruction protocol," preserving confidentiality," and maintaining a " diplomatic and courteous" demeanor in professional interactions. (Docket No. 25-2, Job Description, at 3.) The posting indicated a preference for applicants with an associate's degree in a science field.

Significantly, the minimum qualifications included " good moral character." (Docket No. 25-2, Job Description, at 3.) Furthermore, Kentucky law requires members of the police department to be persons of " integrity." See KRS 95.440(2) (" No person shall be appointed a member of the police or fire department unless he is a person of sobriety and integrity and has been an orderly, law-abiding citizen." ).

The parties primarily dispute whether Winchester's moral character and integrity rendered him a qualified candidate. From 2000 to 2009, Winchester practiced law in Tennessee. At the time he applied for the Hopkinsville job, the Tennessee Board of Professional Responsibility had publicly censured him and suspended his law license. He was ultimately disbarred for " engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation." (Docket No. 25-1, TBA Disciplinary Records, at 35.) This publicly adjudicated misconduct, the City argues, leaves no doubt that Winchester does not fulfill the job's statutory requirement of integrity. Furthermore, the City contends that Winchester willfully concealed his previous career as an attorney by omitting it from both his application materials and his subsequent interview. This purported evasiveness, the City says, is sufficient to disqualify Winchester and terminate his candidacy.

Winchester denies any deceit, arguing that he informed the City of his law practice via a " current resume" that he submitted to indicate his initial interest in the position. (Docket No. 1, Complaint, at 2.) Winchester states that after he " was informed that resume was not acceptable as a job application," he then submitted the required paper application form. (Docket No. 1, Complaint, at 2.) This document, entitled " Curriculum Vitae," acknowledges Winchester's juris doctor degree from the University of Memphis in 2000, as well as his nine years of practice as a solo practitioner in Memphis, Tennessee. It also lists eight " notable cases." (Docket No. 8-6, Winchester Affidavit, at 3-6.) The City insists that hiring officials did not receive Winchester's Curriculum Vitae during the hiring process, that it was not included among the other application materials in his personnel file, and that he provided it for the first time on May 23, 2014, during the course of discovery for this lawsuit.

The parties do not otherwise dispute the contents of Winchester's application materials. On his City of Hopkinsville job application form, dated November 12, 2012, indicates that he graduated from high school in Memphis, Tennessee, before

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studying physics at the University of Memphis. No other course of study is indicated. ( See Docket No. 25-3, Winchester Application, at 2.) Winchester indicated in the appropriate space that he served in the United States Air Force from September 1985 to November 1992. (Docket No. 25-3, Job Application, at 2.) The second page of the application requires applicants to list their three most recent employers. Winchester indicated that he was currently employed at Sam's Club in Paducah, Kentucky; that he was unemployed from July 2010 to July 2012; and that he chaired the general studies department at Brown Mackie College in Hopkinsville, Kentucky, from May 2008 to July 2010. ( See Docket No. 25-3, Winchester Application, at 3.) Winchester also submitted a letter, dated November 12, 2012, summarizing his employment history and educational background. The letter acknowledges the same employment history discussed above; the only reference to his pre-2008 experience is to his Air Force service. (Docket No. 25-5, Winchester Letter.)

In early December, Winchester received a series of emails from Kenneth Grabara, the City's human resources officer, informing him that in-person assessments would be administered on December 19, 2012. On that date, Winchester and ten other applicants participated in the assessment process. The group was told that they would be contacted in January 2013 regarding the position. On January 21, 2013, Winchester requested an update from Grabara, who informed him that background checks were pending.

On February 5, 2013, Detective Inman interviewed Winchester at the Department using a list of scripted questions pertinent to the background investigation. ( See Docket No. 25-4, Winchester Deposition, at 63, Exhibit 4.) Winchester alleges that during this interview, he learned that he was one of five remaining candidates. He claims that during the interview, another detective informed Inman that one of the candidates had been eliminated as a result of the background check; Winchester assumed that he was then one of four remaining candidates.

Winchester's affidavit indicates that during the interview, he stated that he could not recall if he had filed bankruptcy in 2000, but emailed Inman the next day to confirm this second bankruptcy. The email reads, in relevant part: " I checked and there was a Chapter 13 filed in 2000. It was after a second round of proceedings from my divorce from my first wife. There was an issue of whether or not I would file it since I just started practicing law, but it was filed." ( See Docket No. 8-6 at 8.)

After the interview, Inman drafted a document entitled Police Background Investigation Summary.[1] In the Summary,

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Detective Inman notes that Winchester indicated no full time work from 1992 until 2008, but explained that he instead worked various part-time jobs and pursued educational opportunities. The Summary continues, " Winchester obtained his TN attorney license in 2000 and practiced law in Memphis from 2000 until his heart attack in 2007 as a criminal defense attorney. He also owned and operated his own private investigator business in which he was a licensed PI." (Docket No. 8-5 at 6.) Inman also noted a number of financial concerns stemming from Winchester's Trans Union credit report,[2] including six accounts in collections, all for medical bills totaling $56,617.00, and nine current negative accounts, totaling $100,000.00.[3] The report also showed that Winchester filed for Chapter 7 bankruptcy in 2007. Inman concluded that Winchester's candidacy for the position should be terminated. (Docket No. 8-5 at 6.)

Sergeant Tracey Mayberry agreed with Inman's recommendation. In a memorandum to hiring officials, Mayberry confirms that she reviewed Winchester's file and discussed the background investigation with Inman. According to Mayberry, Winchester admitted to his second bankruptcy only via email the day after his interview. In her affidavit, Mayberry recalls that Inman told her that Winchester had not mentioned his law practice before his interview; she notes that if she had seen a document from Winchester referencing his law practice, she would not have confirmed Inman's statement in her memorandum. (Docket No. 25-12, Mayberry Deposition, at 2-3.)

On February 11, 2013, Grabara informed Winchester via email that he was no longer being considered for the position. The next day, Winchester replied to Grabara, asking why he had been excluded from the process. Grabara summarily replied, " We are considering candidates whose skills, experience and background are more suited for the City of Hopkinsville's Police Department." ( See Docket No. 1 at 5.) The same day, Winchester pressed Grabara for a more specific response; receiving none, he forwarded the email to additional Department personnel on February 12, 2013. Approximately two weeks later, he forwarded the email thread to Dan Kemp, Hopkinsville's mayor. Kemp's brief response noted simply that " other candidates were deemed more qualified for the position." ( See Docket No. 1 at 6.) The position was ultimately awarded to Samantha Moore, a twenty-two year-old individual

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whom Winchester alleges had neither a science degree nor relevant work experience.

On May 18, 2013, Winchester submitted a Charge of Discrimination to the Equal Employment Opportunity Commission (" EEOC" ). Winchester emailed Grabara, Kemp, and Police Chief Guy Howie a demand letter on June 12, 2013, detailing his EEOC complaint and ADEA claim. On June 26, 2013, a claim examiner from the City's insurance carrier informed Winchester that his claim had been denied and that neither the carrier nor the City wished to pursue settlement negotiations. The EEOC issued a Right to Sue letter on October 29, 2013.

Winchester received the EEOC's charge file on December 18, 2013, as a result of a Freedom of Information Act request. The City informed the EEOC during its investigation that Winchester had been eliminated from further consideration for the position " due to inconsistencies, inaccuracies, and misstatements contained in his application and that were made during the telephone interview." (Docket No. 8-5 at 2-3.)[4] The City maintained that Winchester's age did not bear upon the hiring process, as evinced by the fact that an applicant older than Winchester proceeded to the final interview. (Docket No. 8-5 at 3.) This candidate was removed from consideration only when she expressed concerns about her safety at crime scenes. ( See Docket No. 25 at 18.) Winchester denies having made any false statements, contending instead that the City's investigation was flawed. (Docket No. 1 at 7.) Specifically, he alleges that the City obtained false information from his credit report. He protests that he had no opportunity to review or correct such information.

Legal Standard

Summary judgment is appropriate where the pleadings, the discovery and disclosure materials on file, and any affidavits indicate " no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Federal Rule of Civil Procedure 56(a). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

" [N]ot every issue of fact or conflicting inference presents a genuine issue of material fact." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989).

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The test is whether the party bearing the burden of proof has presented a jury question as to each element in the case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). A mere scintilla of evidence in support of the plaintiff's position will not do; instead, he must present evidence on which the trier of fact could reasonably find for him. See id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Mere speculation will not suffice to defeat a motion for summary judgment: " [T]he mere existence of a colorable factual dispute will not defeat a properly supported motion for summary judgment. A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate." Monette, 90 F.3d at 1177; see also Anderson, 477 U.S. at 249-50 (" If the evidence is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." ) (internal citations omitted)).


I. Arguments concerning the City's alleged ...

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