United States District Court, D. Kansas
MEMORANDUM AND ORDER
J. THOMAS MARTEN, Judge.
Plaintiff Erin Olson brings the present claim against the defendant Shawnee of County Board of Commissioners, alleging that the defendant violated Title VII of the Civil Rights Act by various actions of the Shawnee County Sheriff during her employment as a civilian with that office. The defendant has moved for summary judgment, and following a review of the evidence, the court finds that the motion should be granted.
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita ). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The court does not include as findings of fact arguments by counsel, factual assertions which are unaccompanied by direct citation to evidence in the record, or events which have no material relevance to the issues at hand.
Findings of Fact
The Sheriff's Office
Richard Barta became Sheriff of Shawnee County, Kansas in March 2000. He retired in April, 2012. As the Sheriff, Barta was the appointing authority for his office, making all personnel decisions. Any promotion or status change required his approval. He also had the power to institute and veto general orders.
The Shawnee County Human Resources Policy Manual applies to the Sheriff's Office. Policy 9.0 of that manual sets forth a policy of progressive discipline, which applies to classified employees, and to union members, to the extent that their Memorandum of Understanding (MOU) is otherwise silent. This policy "involves four (4) steps of progressive discipline for infractions of a similar nature and which are of a nature not serious enough to constitute just cause for immediate suspension or discharge." The four steps of progressive discipline are:
A. First Offense - Documented Verbal Reprimand
B. Second Offense - Written Reprimand
C. Third Offense - Suspension
D. Fourth Offenses - Termination
The steps are "intended to serve as a warning to the employee that their behavior needs to improve in the specified area and that repeated incidents may result in additional discipline up to and including termination."
In some cases, the progressive discipline policy may not be used. Section 9.3 provides: "The level of discipline to be applied is at the sole discretion of the appointing authority and need not be progressive in nature if the situation warrants." Thus, the decision maker may skip a step or all of the steps according to the severity of the violation.
The manual provides that all disciplinary actions are subject to a grievance procedure.
The Shawnee County Human Resources Department (HRD) keeps the records for all county employees. This includes the employee's Personnel Status Change Form, which tracks position, pay, and status. Supervisors and the HRD fill out a Change Form whenever an employee receives a new position, promotion, raise, or other change in his employment.
The Accreditation and Training Unit
Sheriff Barta decided to obtain accreditation from the Commission on Accreditation for Law Enforcement Agencies (CALEA). This accreditation requires passing an on-site CALEA assessment. An applicant agency must prove that its standards are in compliance with those of CALEA. The Sheriff's Office first received a CALEA accreditation in 2004. Since that time, Sheriff Barta has appointed Lieutenant Scott Gilchrist, Sergeant Steve Luttjohann, and Sergeant Justin Vest to serve as Accreditation and Training Unit (ATU) Accreditation Managers. Luttjohann and Vest were Accreditation Managers during Olson's employment.
Luttjohann was hired to work for the Sheriff's Office in August 1993. Before that, he had served four years in the United States Marine Corps, and attained an Associate of Arts Degree in Criminal Justice from Washburn University. In addition to the ATU, Luttjohann worked in the Patrol Division, Fugitive Warrants division, and the Civil Process Division.
Vest has been employed at the Sheriff's Office since May 2002. He had a Bachelor's of Science degree in Criminal Justice from Washburn University, and later obtained a Masters of Criminal Justice. Vest has worked in the Patrol Division, the Operations Division, and the ATU.
When Luttjohann and Vest were hired, each had to attend Kansas Law Enforcement Training Center (KLETC) training and comply with its training requirements. They were also Fraternal Order of Police (FOP) members.
Shawnee County and the FOP have entered into a MOU which governs the terms and conditions of union members' employment. MOU Section 12.0 governs the salary for union members, and ties their pay to the FOP Wage scale. Thus, the pay of both Luttjohann and Vest was determined under that scale, which is based wholly on rank and years of service. When he began working in the ATU, Vest was paid $25.08 per hour. In 2009, Luttjohann was paid $27.15. In December of 2010, this increased to $27.80 per hour.
Luttjohann and Vest had training duties in addition to their work as Accreditation Managers. They developed and ran the Agency's in-service program, maintained training records, and monitored each deputy's continuing education record for compliance.
Luttjohann and Vest were also assigned Sheriff's Office vehicles, which each drove to and from work and in performing various job related responsibilities. Both were expected to insure that the vehicle was always well-maintained and in working order. Under MOU Section 13.9, an Officer with an assigned vehicle is required to respond to an emergency calls. In addition, as drivers of marked vehicles, Luttjohann and Vest were obligated to stop any time they saw an emergency requiring immediate attention.
While working in the ATU, Luttjohann and Vest responded to various emergency calls. From December 1, 2009 through July 29, 2010, Luttjohann was responded to a non-injury auto-accident; five traffic hazards; a report of a stolen vehicle; a report of an injured animal; a report of a theft; and received information during that time. From August 2010 through May 2011, Vest responded to a service request; five reports of suspicious vehicles; a report of a prowler; a non-injury auto accident; an injury automobile accident; picked up a prisoner; received information; and performed a traffic stop.
Olson has acknowledged that Luttjohann was a Law Enforcement Officer, and he had legal duties associated with that position:
Q. You agree that Luttjohann was a certified law enforcement officer?
A. He was a certified law enforcement officer.
Q. That as a certified law enforcement officer, Luttjohann may have other duties that he would need to legally perform in that capacity beyond that of an Accreditation Manager, true?
A. I would say that he under the scope of the law had the responsibility to perform those when necessary.
A. I am comparing myself to him in the fact that we did equal job duties when he was at - when he was in that position. We did equal work.
Q. But he had additional responsibilities, true?
A. I would say that under the scope of the law he could perform those other duties.
Q. So are you saying then - are you agreeing that under the scope of the law, he had those additional duties, he was legally required to do them?
A. If he was legally required to do them, then, yes, he was supposed to do them.
Luttjohann and Sgt. Vest were each issued a firearm. They were expected to be fully trained on the use of their issued firearms and to properly maintain the firearms in operating condition.
Olson testified that she did not use the equipment associated with the duties of an Officer:
Q. Use of firearms, weapons, patrol car, two-way radio, miscellaneous law enforcement equipment, miscellaneous vehicle equipment, those are all items that aren't listed on your job description that you proposed to Sheriff Barta in January 2010, correct?
A. I wasn't required to use that equipment.
Both Luttjohann and Vest were expected to wear a full Sheriff's Office uniform to work daily. The job description Luttjohann signed for the position of Accreditation Manager contained a "minimum qualifications" requirement of five years' experience as a deputy with the Sheriff's Office. Olson admits she did not meet this requirement:
Q. Under the minimum qualifications in Sergeant Luttjohann's job description, it indicates he has to have five years' experience as deputy with the Shawnee County Sheriff's Office?
A. I see that minimum requirement.
Q. There was no such minimum requirement in the job description that you proposed to Sheriff Barta, correct?
A. That's correct.
Q. If there was such a job description, you would not qualify for it, would you?
A. If there was that requirement in the one that I drafted, then, no, I would not have qualified based on that, that minimum qualification.
On November 30, 2007, Olson received a letter from Sheriff Barta offering her employment as an Office Assistant II in the Training Division. She began working in that position on January 2, 2008, earning $9.71 per hour, and was assigned to the ATU.
Prior to her employment, Olson had never been trained or certified as a law enforcement officer. She understood the training necessary to become a Certified Sworn Law Enforcement Officer required weeks of training at KLETC, and as least 40 hours of in-service training each year. Law Enforcement Officers must take an Oath to uphold the Constitution and Laws of the United States and the Constitution and Laws of the State of Kansas.
Olson was never a Law Enforcement Officer at any time. She was never required to attend the necessary training, and never signed any oath as a Law Enforcement Officer. She testified that, in her employment, "I did not do law enforcement work."
As an Office Assistant II, Olson was employed under the Teamsters contract, and her wages were based on that contract. She understood that wage increases under the union contract were governed by time of service.
Shawnee County permanent employees generally receive Performance Evaluations annually, and more frequently during initial probationary periods. Olson received five Performance Evaluations. These were consistently favorable, and each of Plaintiff's evaluations had an overall rating of "Acceptable."
When Olson began her employment, her chain of command was Sgt. Luttjohann, Lieutenant John Ostenson, Captain Lance Royer, Undersheriff Scott Holladay, and Sheriff Barta. Luttjohann and Ostenson were the individuals Olson directly worked for and answered to from the time she began her employment in January 2008 through the end of her probationary period on April 30, 2008.
On April 24, 2008, Olson received a letter from Sheriff Barta stating that she had completed her probationary period of employment and would be permanently assigned to the ATU effective April 30, 2008. A Personnel Status Change Form with an effective date of May 1, 2008, indicates that Olson's probation was complete.
Plaintiff described her job duties upon completing her probationary period as follows:
A. I primarily helped with accreditation.
Q. And when you say that, what's that mean to somebody walking on the street? How would you describe in greater detail than primarily helped with accreditation?
A. I helped with proof collecting or generate different reports, a lot of clerical work, a lot of highlighting, a lot of copying. I helped with the distribution of proof needed at the time. That was - that would have been it.
At some point after her probationary period, Lt. Ostenson and Sgt. Luttjohann discussed with Olson a way to get her out of the clerical workers' union scale agreement and about the possibility of moving her to more of an Assistant Accreditation role. They told Olson they were interested in creating an Assistant Accreditation Manager Position and wanted her to fill it. They asked Olson if she was interested. The position would give her a little bit more responsibility and would make it easier to collect her documentation.
Olson testified that Luttjohann and Ostenson "were going to have to work with the command staff on that." This would include the creation of a job description, which is required by County policy. Olson reviewed drafts of the proposed job description given to her by Luttjohann, and she had an opportunity to review the proposed description before it was submitted up the chain of command. Olson understood "the command staff" to be the Captains, Undersheriff, and Sheriff. She also believed Michael George, the Sheriff's legal counsel, would have been included in the command staff.
On September 26, 2008, Sheriff Barta issued a memo to Rich Davis at HR, regarding the Assistant Accreditation Manager position. Shortly thereafter, Michael George sent an e-mail to Pat Kirkman with the Teamsters about the position. On October 14, 2008, a Shawnee County personnel requisition was issued for the Assistant Accreditation Manager. The position was created as a classified position, meaning the Assistant Accreditation Manager had due process rights afforded her through the Policy Manual.
Q. But at some point in time, did you learn or were told that the position of Assistant Accreditation Manager had been approved and that there was now an official position with the HR department of Shawnee County Sheriff's Department?
A. I was told that the HR had essentially opened the position and I had to reapply for the position.
Q. So you knew HR had to get involved?
A. Yeah, I knew HR had to get involved.
Olson applied for the opening, and was appointed to the position on October 29, 2008. A November 1, 2008 Change Form reflects the change in Olson's employment with the Sheriff's Office. Olson admits the Change Form is an HR record which evidences her title, job position, and employment with Shawnee County.
When she was promoted, Olson's hourly pay increased from $9.71 to $12.57. A December 20, 2008 Change Form lists Olson as Assistant Accreditation Manager, documents a pay increase to $12.83. The reason for the change in pay was a scale increase.
Olson received favorable evaluations from Luttjohann during her employment. Lt. Ostenson considered her "very bright."
On December 22, 2008, Olson executed a position description for the Assistant Accreditation Manager position. The position description was also signed by Lt. Ostenson and Sheriff Barta.
On the potential for pay increases, Olson testified:
Q. What was your understanding as to what potential you had for pay increases as you continued your employment as Assistant Accreditation Manager for the Shawnee County Sheriff's Department?
A. My understanding was it worked kind of like the union contracts and the longer that you were there, you got - you kind of moved up the steps.
Q. So it would be step increases or pay based upon years of service?
A. That was my understanding.
On November 1, 2010, Olson's pay increased to $13.48 per hour.
While attending a CALEA conference in March 2009, Sheriff Barta told Lt. Ostenson he was interested in making a civilian the Accreditation Manager. Barta hoped that this would "free up" uniformed officers for other areas. Barta did not take any formal action to place Olson or any other civilian in the Accreditation Manager position in 2009.
Alleged Promotion to Manager
Olson has testified that in April 2009 she spoke with Ostenson and Luttjohann about her becoming the Accreditation Manager. In 2009, Luttjohann listed Accreditation Manager as Olson's title in his Performance Evaluation. He testified that the title was not official, and he had essentially given her that title.
Olson contends that she was told, by Luttjohann, that she was Accreditation Manger in 2009. She was also performing "the vast majority" of the tasks in the Accreditation Unit.
At the same time, Olson has acknowledged that she knew that a civilian had never been Accreditation Manager. She has also acknowledged that she has no documentation supporting any 2009 promotion:
Q. Is there any kind of document that you have from Lieutenant Ostenson regarding a proposed promotion to the Accreditation Manager position in April of 2009?
A. They were verbal conversations.
Q. So the question - my question is: Is there any document that reflects in April of 2009 you were promoted to the position of Accreditation Manager?
A. I don't believe there's a document dated in April of '09.
Q. Is there a document that was filed with your personnel file with the Human Resources Department of Shawnee County reflecting that in April of 2009 you were promoted to the position of Accreditation Manager?
A. There's no document dated in April of '09.
Q. In the personnel file that you are aware of that Human Resources has for Shawnee County?
A. That's correct.
Q. Did you in April of 2009 receive correspondence from Sheriff Barta similar to the correspondence you received when you were appointed as the Assistant Accreditation Manager appointing you as the Accreditation Manager?
A. There was never a formal letter sent.
A November 1, 2009 HR Change Form, which reflects a pay increase to $13.15, states that Olson's job title was Assistant Accreditation Manager.
Olson acknowledged that as of August 2009, there was no official Shawnee County position description for a Civilian Accreditation Manager position:
Q. So at least based upon the time frame that you have set out in your Complaint as of August 2009, we can agree that there was no official job description for a Civilian Accreditation Manager with the Shawnee County Sheriff's Department, correct?
A. At that time, I do not recall an actual position description for a Civilian Accreditation Manager.
Q. So we can agree at that there was no official job description for a Civilian Accreditation Manager with the Shawnee County Sheriff's Department as of August 2009, correct?
A. I would - I would generally agree with you on that.
Q. You would generally agree with me on that?
A. I would agree. I'm sorry.
In late summer or early fall of 2009, Olson realized that her position had never been formalized. She then began drafting a job description for a Civilian Accreditation Manager position. In her deposition, Olson testified that this job description was "very similar" to the job description for her existing Assistant Accreditation Manager position.
Q. You'd have to look at it fairly closely to [see] that you added delegate and monitor accreditation activities to the proposed job description. You added make oral and written presentations to the proposed job description and you added collect accurately, report correctly and correctly disseminate information?
A. Those are a couple of the changes that I noticed between the two.
Q. And then you add under skill, you added providing leadership and direction to employees.
A. Yes, that's changes I see.
Q If you compare the proposed job description that you submitted to Sheriff Barta in January of 2010 to your original job description as an Assistant Accreditation Manager, on Page 3, everything on Page 3 is essentially identical, isn't it?
A. I remember seeking some input on this and I was told to pretty much keep it the same, that nothing had really changed. I was doing significantly more scanning, so like the equipment used I added my scanner. It was used at least on a weekly basis. I can't say daily basis, but at least on a weekly basis I would have used it.
Q. That's the only change in Page 3, a difference between those two job descriptions, correct?
A. As I glance at them, yes, that looks like - that looks like probably the only change.
On January 20, 2010, Olson drafted a Memorandum to Sheriff Barta, asking approval for her proposed Civilian Accreditation Manager Job Description, as well as a pay increase. She sent the Memorandum to her chain of command before it was submitted to Sheriff Barta.
On January 21, 2010, Captain Shane Hoobler and Lt. Ostenson met with Olson to provide feedback on the Memorandum before giving it to the Sheriff. They also stated that Olson should not have referred in her memo to alleged deficiencies in training hours, as this was a "housekeeping issue" and appeared disrespectful to Luttjohann, whose job it was to enter the training hours. Hoobler and Ostenson also felt that the statement in Olson's memo that she had developed a "proof matrix" used at the Unit was misleading. Olson had adapted a Riley County process for use by Shawnee County; she had not created or developed it solely by herself.
Olson contends that Hoobler told her she should submit her memo through the chain of command to avoid negative ramifications. Hoobler denies that he said this, only that he felt the memo was wrong in its tone and intent. Hoobler has testified that he wanted to give Olson feedback to "make sure that the presentation was done in a favorable manner to her."
After the meeting, Olson gave the Memorandum to Sheriff Barta. In her Memorandum, Olson acknowledged, "Our agency has never had a Civilian Accreditation Manager before, and therefore we needed to create a job description for such a position." Sheriff Barta testified about his response:
Q. Okay. Now, you said that you had some second thoughts. So you said, well, Erin Olson is not the accreditation manager?
A. No. If I did, I need to clarify that.
A. It seems to me I received some correspondence that Ms. Olson was the accreditation manager.
A. That's when I said, no, Ms. Olson is not the accreditation manager; Sergeant Luttjohann is and Lieutenant Ostenson oversees that. I know we have had conversations in the past that I would like to see a civilian accreditation manager but up to this point I have not in any way assigned a civilian accreditation manager to our accreditation unit.
A. I made it very clear to my senior staff that when I got that letter, Ms. Olson was not the accreditation manager and that needs to be made very clear to rank and file now that I became aware of it. That being said -
Q. I'm sorry. I don't want to interrupt you. But when did you say that?
A. It would have been some time after I received her letter saying that she was the accreditation manager.
On January 26, 2010, Hoobler sent a memo to Sheriff Barta stating that he did not believe Olson should be promoted, as her duties had not changed since she had been made Acting Accreditation Manager.
On January 28, 2010, Olson met with Ostenson and Luttjohann. There is no evidence who actually called the meeting, but Ostenson and Luttjohann told Olson she was not the Accreditation Manager and her title was still the Assistant Accreditation Manager. Olson disagreed that she was not the Accreditation Manager.
Olson claims that she was thus demoted, but there is no evidence that she was ever formally or officially promoted to Accreditation Manager as opposed to an acting Accreditation Manager. Rather, the evidence indicates that Olson was informally designated as Accreditation Manager by her immediate superior Luttjohann, and the evidence does not show that he had the authority to make such appoints. Rather, the evidence is that only the Sheriff has such authority. Here, Sheriff Barta determined that Olson, to the extent she was acting as Accreditation Manager, should no longer do so.
Olson admits that Luttjohann and Ostenson told her that, while they had been flexible about her late arrivals in the past, she needed to arrive at work on time. She also admitted that gender was not a factor in the January 28, 2010 meeting.
Barta believed that the job of the Accreditation Manager could be performed by a civilian, and did not need to be a law enforcement officer. He met with Undersheriff Holladay, Michael George, Bob Moser, Capt. Hoobler, Lt. Ostenson, Sgt. Luttjohann, and Olson about Olson being elevated to Accreditation Manager.
On February 15, 2010, Barta sent Olson a Memorandum declaring his intention to make "organizational adjustments" and place her in the position of Accreditation Manager. This Memorandum further indicated Olson would receive a pay raise once the Sheriff had the opportunity to evaluate the change.
The Union Objects
The MOU provides the FOP with a grievance procedure under Section 34. A grievance, pursuant to the MOU, is a complaint "involving the interpretation or application of any provision contained within this Agreement."
The FOP acts to protect the interests of its members by bargaining collectively with the County and, when necessary, filing grievances under the MOU. The union views securing and preserving opportunities for promotion as a component of protecting its membership. Section 42.18 of the MOU provides:
Civilian Employees. The Sheriff may, without meeting and conferring with the F.O.P., hire no more than two (2) civilians as specified below to perform the duties set out below which are currently being performed by officer. No officers will be displaced from their current positions to accomplish this. Civilian personnel, assigned to perform those tasks normally performed by officers, will be supervised by Sheriff Officers. Non Civil Service Sheriff's Office employees shall not be allowed to volunteer time to perform any duties normally performed by officers, except as specified below.
Two (2) civilian employees may be added to the property room staff. Their duties will be limited to the receiving, cataloging or indexing, and checking out of evidence and other property received by the property room.
As noted earlier, since its creation, the position of Accreditation Manager has never been filled by a civilian employee. Deputy Darrin Marr, the Chief Steward for the FOP, testified that in his view
Section 42 speaks specifically to replacing sworn law enforcement personnel with civilians. It gives him the authority to do it in two different positions in the agency and they're both in the property room, that's what that specific section speaks to. That's the only time he can do it unless he meets and confers or goes through the negotiation process and changes the language in the contract.
The FOP's position has historically been that if the Sheriff places a civilian in a position traditionally held by a sworn law enforcement officer, that is taking away job opportunities for FOP members. The FOP had previously grieved an attempt by Sheriff Barta to transform a law enforcement position into a civilian position:
Q. So walk me through what happened, how it came to your attention of how the union decided that they may be filing a grievance, how did all that happen?
A. We were just coming off the heals [sic] of a grievance that we had filed regarding another civilian position that they were - it had been a law enforcement position and they were wanting to make it a civilian position so we filed a grievance similar to the Olson case. We just settled that in early 2010, I believe, then this was brought to our attention. Same exact situation where they were wanting to make a sworn position a civilian position. I approached Michael George, who is the legal counsel for the Sheriff, and explained to him that we had just came off of this case where we had settled it and that the facts were pretty much the same and that the potential for us to grieve it was there.
The earlier grievance involved the Sheriff's attempt to make a Civilian Fire Range Manager. The FOP took the position that the civilian fire range manager would perform duties that had traditionally been performed by a sworn law enforcement officer, in violation of MOU Section 42.18. The range master grievance was settled on March 2, 2010, with the result that no civilian would perform the range, training, and armory duties.
In February 2010, Marr learned that Barta intended to take formal action to place Olson in the Accreditation Manager position. He informed Michael George, legal counsel for the Sheriff's Office, that the FOP intended to grieve Sheriff Barta placing Plaintiff in the Accreditation Manager position. Marr and Sergeant Brad Metz also contacted Michael George to say that the FOP was going to object.
Under the MOU, the union has 15 business days from the "disciplinary action or event triggering the grievance" to file a grievance. On February 22, 2010, Marr sent George an e-mail asking for an extension of time to file its grievance to March 12, 2010. Marr requested, on March 3, 2010, another extension, thereby giving the parties time to negotiate.
In March 2010, the FOP Labor Council voted to grieve Sheriff Barta placing Olson, a civilian, in a position that had traditionally been held by a sworn law enforcement officer. Gender was not an issue; the Labor Council's decision was based on the belief that the Sheriff placing a civilian in a position traditionally held by a sworn law enforcement officer was a violation of the MOU.
Det. Erin Thompson, a female member of the FOP Labor Council, would have objected if Olson's gender played a role in the union's concerns. If gender had ever been discussed as a reason for grieving Olson's placement, Thompson would have brought such discussion to the attention of the proper authorities within both the FOP and the Sheriff's Office.
The vote by the labor council to grieve the proposed change was unanimous, and Deputy Marr did not vote. On March 19, 2010, Marr spoke by phone with George about the decision. Marr told George that the Labor Council had met and wanted Luttjohann to be in the position of Accreditation Manager. Marr later memorialized the conversation in an e-mail to George, and stating that all future considerations for civilian positions proceed through the MOU's meet and confer process.
Michael George described a March 25, 2010 meeting in which Sheriff Barta made the ultimate decision to keep Luttjohann as the Accreditation Manager:
Q. Okay. And what did happen in that meeting of March 25th with the Sheriff?
A. My recollection was that we discussed the Union's position in terms of filing a grievance against the Sheriff's Office if the Sheriff went forward with his intention to make Ms. Olson the accreditation manager. And I can't recall everything, but we discussed pros and cons and discussed issues about the MOU contract and what it said. And I think at the - and I'm sure the Sheriff would have talked about efficiency and some other things too about how he was wanting to try to change the agency. But at the conclusion of that meeting I wrote what I did, which was keep Luttjohann as the accreditation manager for now and then try and still negotiate, advise Erin Monday.
Sheriff Barta decided not to create the position of Civilian Accreditation Manager at that time, but the Sheriff's Office would continue to negotiate with the FOP with the intent to create a Civilian Accreditation Manager position in the future.
Michael George informed Olson on April 6, 2010, that Luttjohann would remain the Accreditation Manager for the time being.
Olson told George she believed this action was being taken because she was a woman. George told her it was because of the FOP grievance, and had nothing to do with her gender.
Olson contends that the FOP could not grieve the Civilian Accreditation Manager position, in light of the MOU's time limit on grievances. But that provision simply provides that a grievance must be presented within "fifteen (15) business days of the disciplinary action or event triggering the grievance." Olson has otherwise admitted that Barta had not taken any "proper action" on the new position until February 15, 2010. Further, the FOP had promptly and explicitly sought, and obtained, an extension of time for the presentation of a potential grievance. The Labor Council's ultimate vote in favor of submitting a grievance was timely under the MOU.
During the next course of negotiations with the FOP, over 2010 and 2011, the County attempted to change Section 42.18 to give the Sheriff more power to appoint civilians to positions.
Olson's First Grievance
On April 6, 2010, Olson filed a grievance pursuant to Shawnee County Personnel Rule 11.1. Under the county's grievance procedure, an employee presents a Grievance Form detailing the allegations of the grievance. The employee's supervisor must then investigate the complaint and respond within 10 days. If the grievance is denied or not otherwise resolved, the employee may then appeal the grievance within 5 working days of the appointing authority's response.
Once an employee files an appeal pursuant to the Grievance Procedure, the HR Director selects a grievance committee consisting of three Shawnee County employees not employed by the aggrieved employee's department, and the Grievance Committee ...