Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—D. Kan.: Derogatory remarks about Native Americans supports municipal employee’s bias claims, (Nov 13, 2026)

By Kathleen Kapusta, J.D.

The employee’s supervisor allegedly frequently used the terms “pow-wow” and “Indian giver” and repeatedly told the employee he was “off the reservation.”

The City of Topeka, Kansas, must defend at trial the state-law disparate treatment and hostile work environment claims of a Native American employee who alleged his supervisor made remarks about Native Americans so often that he could not remember them all, including referring to him as an “Indian giver” and telling him “this isn’t the reservation,” and that he also passed him over for a lead designation in favor of a less experienced Caucasian coworker. His claim that he was denied the lead designation in retaliation for his complaints, however, failed on summary judgment (Martinez v. City of Topeka, Kansas, No. 5:25-CV-04001-AWM-GEB (D. Kan. Nov. 12, 2026)).

The employee, a member of the Prairie Band Potawatomi Nation, worked for the city full-time for more than 30 years in the utilities department. In August 2019, his supervisor offered him and two coworkers a lead designation, which is not a separate position but authorizes an employee to serve as “a liaison between front line and management.” The city offered lead designations to employees as “recognition for their knowledge or experience or specialty in a given area” and the designation paid an extra $1 per hour. The employee declined the offer because he believed it was different from prior lead offers in that it was temporary.

Remarks. According to the employee, his supervisor constantly made remarks about Native Americans, including telling him he was “off the reservation” and “this isn’t the reservation,” calling him an “Indian giver,” and telling a coworker that the employee thought he was the “top of the totem pole.” Although he told his supervisor the remarks were offensive and he also complained to the utility director, no action was taken.

Lead designation. In April 2022, the supervisor awarded the lead designation to the employee’s Caucasian coworker. Later that year or early 2023, the supervisor offered the designation to a different Caucasian coworker who had been in his position for less than six months and whom the employee had been training. When the employee asked his supervisor why he had not been offered the designation, he replied that he did not trust the employee and would not want to “stand shoulder-to-shoulder” with him. The coworker declined the offer and told the supervisor the employee would have been a better fit.

Disciplined. In May 2023, the supervisor denied the employee’s request to work with a specific coworker, stating that he would not allow them to have a “pow-wow” that day. The employee complained to the utility director and HR and, after an investigation, the supervisor was issued a written warning and required to attend training focused on cultural awareness and derogatory language in the workplace. He was not, however, removed from supervising the employee. Instead, the employee alleged, the supervisor scrutinized his work more closely and assigned him undesirable tasks.

Adverse action. In response to the employee’s subsequent claim for disparate treatment in violation of the Kansas Act Against Discrimination, the city argued that the denial of the lead designation was not an adverse action because it was only a “temporary, discretionary add-on pay designation.” Disagreeing, the court noted evidence that the lead served as a liaison with management and the city awarded the designation as a “recognition for [the employee’s] knowledge or experience or specialty in any given area.” The denial of the lead designation, said the court, meant the denial of an extra $1 per hour and the liaison role, which was sufficient to show an adverse employment action under Muldrow.

Finding the employee established a prima facie case of disparate treatment, the court also cited evidence the supervisor offered the lead designation to two Caucasian coworkers in 2022 and early 2023, including one who had been in his position for less than six months. The supervisor further admitted he made the pow-wow comment and the city’s investigation substantiated that he used the terms “pow-wow” and “Indian giver” towards the employee, which was sufficient to raise an inference of discriminatory intent.

Pretext. And while the city claimed it did not offer the employee the lead designation because he had declined the offer in 2019, the employee provided sufficient evidence of pretext including that the supervisor alone decided to whom he would offer the designation, he testified that he made the pow-wow comment, and the city’s investigation substantiated that he used the terms “pow-wow” and “Indian giver” towards the employee. Further, his history of making offensive comments about Native Americans to the employee strongly suggested a discriminatory motive. Accordingly, this claim survived summary judgment.

Hostile work environment. As to the employee’s hostile work environment claim, the city argued that the supervisor’s “few” remarks were neither severe nor pervasive. The employee, however, claimed the supervisor’s remarks were too frequent to remember them all; the supervisor repeatedly told him he was “off the reservation” and “this isn’t the reservation”; he called him an “Indian giver”; a coworker described “pow wow” as part of the supervisor’s “frequent vocab”; the supervisor continued after the employee objected; and the remarks affected the employee physically and emotionally.

While the supervisor’s conduct was not physically threatening, the employee was subjectively offended by the comments and the supervisor’s use of the term “Indian giver” was not just offensive, it was racially charged. Although the employee told the supervisor the terms were offensive, he was undeterred. A rational jury, said the court, could find the workplace was “permeated with discriminatory intimidation, ridicule, and insult.”

Faragher/Ellerth defense. In an attempt to invoke the Faragher/Ellerth defense, the city argued that it responded reasonably once it learned of the harassment. But even if it could show it exercised reasonable care in its investigation and subsequent discipline of the supervisor, it was unable to show the employee unreasonably failed to take advantage of opportunities to avoid harm, said the court. The employee testified that he complained to the utility director about the supervisor’s comments several times between 2020 and 2023, while the supervisor claimed he did not mention race. This dispute, the court explained, was sufficient to preclude a finding that the employee unreasonably failed to use the city’s complaint procedures. Thus, the employee’s hostile work environment claim also survived summary judgment.

Retaliation. Granting summary judgment against his retaliation claim, however, the court found he could not connect his protected activity—his May 26, 2023, complaint to HR regarding the supervisor’s “pow-wow” comment—to the earlier denial of the lead designation. Moreover, there was evidence that the city promptly investigated his complaint, disciplined the supervisor, and required him to attend training. There was no evidence, however, that the city’s failure to remove the supervisor from his supervisory position over the employee was “out of a desire to retaliate” for the employee’s formal complaint. Nor was the employee able to show the supervisor increased his scrutiny and micromanagement of him after his complaint.

The case is No. 5:25-CV-04001-AWM-GEB.

Judge: Mattivi, A.

Attorneys: Bruce Alan Brumley (Brumley Law Office) for Richard Martinez. Kelly J. Trussell (City of Topeka) for City of Topeka, Kansas.

Companies: City of Topeka, Kansas

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