United States District Court, D. Kansas
MEMORANDUM & ORDER
W. Lungstrum United States District Judge
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.
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.
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
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.
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
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. 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.
facts will be provided as they relate to the specific
arguments raised by the parties in their submissions.
Summary Judgment Standard
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.
Age Discrimination Claim
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. 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 ...