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Miller v. Jefferson County Board of County Commissioners

United States District Court, D. Kansas

March 1, 2018

Debra Miller Plaintiff,
Jefferson County Board of County Commissioners, Defendant.


          John W. Lungstrum United States District Judge

         Plaintiff Debra Miller filed this lawsuit against the Board of County Commissioners of Jefferson County, Kansas alleging violations of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the Kansas Age Discrimination in Employment Act, K.S.A. § 44-1111 et seq. Specifically, plaintiff alleges that the County terminated her employment on the basis of her age. This matter is presently before the court on defendant's motion for summary judgment (doc. 13). As will be explained, the motion is granted.

         I. Facts

         The following facts are uncontroverted, stipulated in the pretrial order, or related in the light most favorable to plaintiff as the nonmoving party. Plaintiff Debra Miller began her employment with Jefferson County in 1986 when she was hired as a part-time bookkeeper in the Road and Bridge department. Ten years later, in December 1996, plaintiff was promoted to the position of Office Manager in that department. Plaintiff remained in that position without incident for more than 17 years. In January 2014, the County hired Bill Noll as Public Works Director after he served two years as the County's zoning administrator. Mr. Noll's promotion to Public Works Director was effective on January 26, 2014 and he became plaintiff's supervisor at that time. The Public Works Director position was a new position that the County created to provide oversight of the County's Road and Bridge department and the County's Auxiliary Services department. Before Mr. Noll's promotion to that new position, plaintiff reported to Francis Hubbard, who supervised the Road and Bridge department 2008 until January 2014, when he asked the County Commissioners if he could step down from his position and accepted a voluntary demotion to road foreman.[1]

         On his first day as Public Works Director, Mr. Noll advised plaintiff that he intended to convert the employee break room into his office. Plaintiff “tried to talk Mr. Noll out of it” because she believed that there were other available spaces that would have been equally suitable. She suggested to Mr. Noll that he use available office space in another building. It is undisputed that she was disappointed in Mr. Noll's decision because she was losing a room that she and other employees regularly used for breaks and for lunch. She told Mr. Noll that she was going to call the County clerk and the County Commissioners to find out whether there was a policy requiring the County to provide its employees with a lunch room. The County asserts that plaintiff was so upset by Mr. Noll's office location that plaintiff tried to sabotage Mr. Noll's employment with the County.

         During this same time, Mr. Noll began asking a number of employees in the department whether they had set retirement dates. According to the County, Mr. Noll had been advised that he would likely experience significant employee turnover in the next two years and that he should “check” with certain employees for purposes of succession planning within the department. It is undisputed that Mr. Noll did not ask plaintiff whether or when she intended to retire. He did ask plaintiff if she was “tired” of her job and whether she would prefer a “different job.” In response, plaintiff advised Mr. Noll that she intended to keep working for another 10 years.

         During an execution session with the County Commissioners on February 3, 2014, Mr. Noll began discussing with the County Commissioners concerns he had about plaintiff-including what he perceived as plaintiff's unreasonable reaction to Mr. Noll's decision to locate his office in what had been the break room. Plaintiff does not dispute that Mr. Noll continued to discuss plaintiff's performance with the County Commissioners during multiple executive sessions over the next several weeks. Ultimately, Mr. Noll documented his concerns in a detailed memorandum that he presented to the County Commissioners during an executive session on March 24, 2014 for the purpose of obtaining the Commissioners' approval of Mr. Noll's decision to terminate plaintiff's employment. Three days prior to that executive session, Mr. Noll was advised by a crew leader that he had heard plaintiff say that she hoped that Mr. Noll failed at his job and that he would be fired by the County Commissioners. At that point, Mr. Noll determined that he could not have plaintiff continue in the Office Manager role. Plaintiff does not specifically dispute telling another employee that she hoped Mr. Noll lost his job. She avers that she remembers that Mr. Noll's name came up in a conversation with another employee about employment longevity, that she “cannot remember exactly what was said, ” but that she “made it clear at the end of the conversation that she was only joking.”[2]

         Mr. Noll authored the termination memorandum on March 24, 2014, the same day that he presented the document to the County Commissioners. It is undisputed that Mr. Noll had not issued any written warnings to plaintiff prior to March 24, 2014 and there is nothing in plaintiff's personnel file indicating any performance-related issues at any time during her employment with the County. In the termination memorandum, Mr. Noll set forth eight separate reasons for his decision to terminate plaintiff's employment.[3] Those reasons, as described in the memorandum, are as follows:

• Plaintiff's reaction to Mr. Noll's decision to use the break room as his office and Mr. Noll's perception that plaintiff decided to “sabotage” his employment with the County at that point.
• Plaintiff failed to provide Mr. Noll with an accurate password for the department's online account with the FCC so that Mr. Noll, by the deadline established by the FCC, could communicate with the FCC about the status of the “narrow banding” of the department's radios.
• Plaintiff failed to convey phone messages to Mr. Noll.
• Plaintiff was “rude” to members of the public and other employees.
• Plaintiff failed to send out timely requests for fuel and road oil bid for the summer construction season, which caused the County to pay a higher price for oil.
• Plaintiff, on almost a daily basis, worked unauthorized overtime hours.
• Plaintiff refused to verify whether funds were available for the department's use through the Kansas Exchange Fund Program.
• Plaintiff commented to other employees that she hoped that Mr. Noll failed at his job. The County Commissioners approved Mr. Noll's decision to terminate plaintiff's employment and Mr. Noll advised her about that decision on March 25, 2014. Plaintiff was 53 years old at that time. The Office Manager position was filled by a woman who had worked for the County for nearly 20 years.

         Additional facts will be provided as they relate to the specific arguments raised by the parties in their submissions.

         II. Summary Judgment Standard

         “Summary judgment is appropriate if the pleadings, depositions, other discovery materials, and affidavits demonstrate the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1136, 1143 (10th Cir. 2013) (quotation omitted); see Fed. R. Civ. P. 56(a). A factual issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Water Pik, Inc., 726 F.3d at 1143 (quotation omitted). “The nonmoving party is entitled to all reasonable inferences from the record; but if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the movant points out a lack of evidence to support an essential element of that claim and the nonmovant cannot identify specific facts that would create a genuine issue.” Id. at 1143-44.

         III. Age Discrimination Claim

         In the pretrial order, plaintiff asserts that the County terminated her employment on the basis of her age in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the Kansas Age Discrimination in Employment Act (“KADEA”), K.S.A. § 44-1111 et seq.[4] As plaintiff has no direct evidence of discrimination, her claim is analyzed using the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 627 (10th Cir. 2012). Under McDonnell Douglas, plaintiff has the initial burden of establishing a prima facie case of discrimination. Id. To set forth a prima facie case of discrimination, plaintiff must establish “(1) membership in a protected class and (2) an adverse employment action (3) that took place under circumstances giving rise to an inference of discrimination.” Id. (citing EEOC v. PVNF, LLC, 487 F.3d 790, 800 (10th Cir. 2007)). If she establishes a prima facie case, the burden shifts to the County to assert a legitimate, nondiscriminatory reason for the adverse employment ...

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