Citations
- 7 F. Supp. 3d 1162
Full opinion text
MEMORANDUM AND ORDER
J. THOMAS MARTEN, District 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 plaintiffs 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. L1iberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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.’ ” Mat-sushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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 Sheriffs 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 (CA-LEA). 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 Sheriffs Office first received a CA-LEA accreditation in 2004. Since that time, Sheriff Barta has appointed Lieutenant Scott Gilchrist, Sergeant Steve Luttjo-hann, 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 Sheriffs 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 Sheriffs 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 Sheriffs 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, Luttjo-hann 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 Luttjo-hann 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 Sheriffs 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 Sheriffs 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 Sheriffs 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.
Olson’s Employment
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 Plaintiffs 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 Os-tenson “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 Sheriffs 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.
Olson testified:
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 Sheriffs 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 Sheriffs 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 Sheriffs 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. Osten-son 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 Manager 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 Shaw-
nee County Sheriffs 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 Sheriffs 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 g, 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.
Q. Okay.
A. It seems to me I received some correspondence that Ms. Olson was the accreditation manager.
Q. Right.
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 Os-tenson 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 Under-sheriff 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 b officers, will be supervised by Sheriff Officers. Non Civil Service Sheriffs 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 Sheriffs 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 Sheriffs 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 Sheriffs 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 Sheriffs 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 Sheriffs 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 conducts a hearing and renders a decision on the employee’s grievance.
In her Grievance Form, Olson wrote:
I have been the acting Accred. Mgr for 1 yr now. My last perf. eval was from 1/1/09-1/1/2010 which states the above. The sheriff did not take proper action at the time, and so the official I received is dated 2/15/2010. I was demoted w/out cause on 4/6/2010. My last perf eval was outstanding, and I have never been disciplined or talked to about my performance.
Olson was asked about the Grievance Form in her deposition.
Q.So you agree that the Sheriff must take proper action for you to be officially placed in the Accreditation Manager position, correct?
A. That was my statement as we read it here. In the section entitled “Contract Provision/ Rule or Regulation Violated,” Olson indicated: “9.0 Disciplinary Action, specifically 9.6 Demotion.” The Grievance Form contains no allegation that the alleged demotion was based on gender.
On April 6, 2010, the same day she filed her grievance, Olson engaged in an e-mail discourse with Diana Brey, the Accreditation Manager of the Topeka Police Department. Olson wrote:
I filed a formal grievance through the County and I have a meeting on Thursday with an attorney. This can drag on as long as they want it, but as everyone already knows they settle all lawsuits. The way I look at it, I win regardless!:)
In another e-mail sent at 15:03, Olson wrote: “I will just work during all the litigation, they can’t fire me without cause during all of this or it’s retaliation.”
Sheriff Barta denied Plaintiffs grievance on April 14, 2010 and stated the basis for his denial as follows:
I have denied the grievance filed by Ms. Olson because it is without merit. Ms. Olson’s grievance is premature. I have not demoted Ms. Olson or reduced her pay in any form. It was my intent to eventually move Ms. Olson to the position of Accreditation Manager....
I made this change without meeting, conferring or consulting with the F.O.P.
The F.O.P. orally agreed that it would not file a formal grievance on this issue if the parties took some time to negotiate the change. We agreed to the F.O.P.’s proposal and tried to negotiate the change. However, we could not come to an agreement and on March 23, 2010 the F.O.P. indicated that they wanted Mr. Luttjohann put back into his formal position as Accreditation Manager.... I met with Sergeant Luttjohann and appropriate senior staff on March 25, 2010 and advised staff that we would move the Sergeant Luttjohann back into his former position.... I directed Michael George and Undersheriff Holladay to continue their efforts to negotiate this change with the F.O.P. It was my hope that we could still resolve this issue with the union. Ms. Olson was advised of this change on April 6, 2010 in a meeting with Michael George.
In closing, although it was my intent to make Ms. Olson the Accreditation Manager, I cannot violate the contract with the union by unilaterally making this change. This grievance should be denied. Ms. Olson has not been demoted.
Olson appealed Sheriff Barta’s denial of her grievance. On April 29, 2010, Jonathan Thummel, Deputy Director of the Shawnee County Department of Human Resources, sent a Memorandum appointing a three-member Grievance Committee to hear Olson’s appeal.
The three Shawnee County employees who were ultimately selected for and served on the Committee were Mark Hix-on, Kathy Ortega, and Janet Morrissey. All three were employees of Shawnee County but were not affiliated with the Sheriffs Office.
The Grievance Committee conducted a hearing on the grievance appeal June 2, 2010. Sheriff Barta told the committee that Olson was never officially made Accreditation Manager because such an appointment requires the filing of a Status Change Form with HR. Only he is authorized make such changes, and he had not done so for the Accreditation Manager position.
The committee denied Plaintiffs grievance based on the following findings:
The record reflects that there were plans and discussions regarding the promotion of Ms. Olson to the position of Accreditation Manager. That fact is not disputed by either party. However, the record also reflects a conspicuous absence of compelling evidence that such a promotion actually occurred. Specifically, this committee believes that the Sheriffs Office is aware of and follows established procedures and files all necessary documentation and forms required to complete the process of promoting or changing the status of employees. This fact is evidenced by the copies of various signed position descriptions and status change forms wherein Ms. Olson was previously promoted and had her pay status changed on several occasions. Therefore, it is reasonable to expect that the Sheriffs Office would have filed the necessary documentation for the proposed promotion if it had been their intention to do so. Therefore, the argument that Ms. Olson was demoted is without merit. She could not have been demoted from a position to which she was never promoted.
While there are references to Ms. Olson as the Accreditation Manager, such references do not outweigh the fact that the requisite documentation was not filed with the Human Resources Department. The chief reason cited for not completing the promotion of Ms. Olson to Accreditation Manager was due to the assurance by the Labor Council through the Fraternal order of Police (FOP) representative, Darrin Marr, that the FOP would not agree to the promotion of a civilian (Ms. Olson) to the position of Accreditation Manager. The record further reflects that the FOP’s involvement in this matter was preemptive, with the intention of preventing the action (promotion of a civilian) that would have resulted in the filing of a grievance by the FOP. But, since the promotion did not occur, there was no need for the FOP to file a grievance and none was filed.
On April 7, 2010, Plaintiff filed a Complaint Report against Marr, alleging that he had engaged in “Workplace Harassment based on gender and employment class.” Her report alleged that Marr
has created a hostile work environment, and he is unreasonably interfering with the work that I have done for over a year now. This has also affected my employment opportunity. I strongly believe that he has abused his FOP position to personally go after my job because I am a civilian, female employee. I believe that if this transition would have involved a male civilian, it would not have been a problem. The same set of circumstances happen [sic] two years ago when Jack Morgan left. The training function (which was a Sgt. position) was given to a male Lt., and the Accreditation position was given to a male Sgt. The FOP did not question nor threaten to grieve this change and allowed this change to happen. Within the last year, the Training function was given back to a Sgt., and the Accreditation position was given to a civilian, female employee. The FOP has since threatened to file a grievance on multiple occasions, which has caused my work performance to be unreasonably interfered with for the past year.
Olson has admitted that Jack Morgan was a certified law enforcement officer.
Olson also alleges that, when she learned the FOP intended to file a grievance about making a civilian Accreditation Manager, she emailed Marr to see if this was true. According to Olson, Marr responded that “we simply don’t want a female in that position.” She has alleged that Marr made this comment verbally and through e-mail. She alleges that Luttjo-hann heard Marr’s verbal comment.
Olson testified in her deposition that she no longer has the alleged e-mail. In addition, while she was employed, Olson maintained a document entitled “Dates and Events” which she used to provide a detailed description of events that happened. When describing the alleged statement from Marr in her Dates and Events document, Olson made no reference to any email.
Marr denies ever making such a statement. Luttjohann cannot remember Marr ever speaking about Olson’s gender.
Michael George does not recall ever being shown or told about this e-mail. Olson never showed Luttjohann or anyone this alleged e-mail from Marr. Luttjohann testified he does not recall Olson ever reporting any statements by Marr relating to her gender.
According to Olson, she believed Marr was speaking individually when he allegedly made these statements. She did not think he was speaking on behalf of the Sheriff or the FOP.
HR Director Richard Davis investigated the complaint, and interviewed Olson. Olson told Davis that Marr had told her, “FOP doesn’t want a female in the position because a female can’t do the job.”
Davis spoke with Marr. Marr said that Olson had approached him, and asked him to write a letter from the FOP regarding its position on the Accreditation Manager Position. He denied making any statements about Olson’s gender. He told Davis this was an FOP issue, not a female issue.
Marr also told Davis that Sergeant Alan Simon was present during Marr’s conversation with Olson, so Davis spoke with Simon by telephone. Simon stated he was present when Olson approached Marr, and that he never heard Marr make any statement that he did not want a female in the Accreditation Manager position.
Davis interviewed Lt. Ostenson regarding the complaint. Ostenson stated Olson had never told him about any such statement by Marr.
Davis met with Deputy Rice, who worked near Olson. Rice said he never heard Marr make any negative comments regarding Olson or females. He also stated that gender was not at issue from the FOP’s perspective.
Davis next interviewed Sergeant Brad Metz. Metz stated that he never heard any comments concerning Olson’s gender and the Accreditation Manager position.
Davis interviewed Detective Erin Thompson, who told him that she had never heard any such comment from Marr. Thompson also told Davis that the FOP’s objection had nothing to do with gender.
Davis interviewed Sergeant Steve Evans by telephone. Evans denied ever hearing any such comment from Marr. He also told Davis that he had worked with Olson several times, and she had never expressed any complaints about such a comment.
On April 30, 2010, Davis interviewed Sgt. Luttjohann. Luttjohann said he was unaware of any comment by Marr relating to Olson’s gender, and he did not recall ever receiving a complaint about such a comment from Olson. Luttjohann said that he had had several conversations with Marr about Olson being placed in the Accreditation manager position.
Davis interviewed Capt. Hoobler, who said he had never heard of any comments by Marr relating to Olson’s gender. Hoo-bler admitted he had conversations around late February or early March regarding the FOP’s resistance to the change, but gender was never mentioned.
Olson did not provide Davis with any document, correspondence, e-mail or memorandum authored by Marr which contained a comment to the effect that the FOP did not want a female in the position.
On May 18, 2010, Davis sent Olson a letter informing her that he had conducted an investigation, interviewed multiple witnesses, and was unable to substantiate that Marr had made statements regarding Olson’s gender and the Accreditation Manager position.
The same day, Davis wrote to Marr, stating that he had been unable to substantiate Olson’s claims. He also advised Marr that Shawnee County policies expressly prohibited both harassment and discrimination. Davis also instructed Marr not to “do anything that might be viewed as retaliating against” Olson.
Alleged Desk Vandalism
On May 19, 2010, the day after she received Davis’s report, Olson told Lt. Os-tenson that someone had pulled proofs from the CALEA cabinet, tore them up along with some accreditation pamphlets, and placed them around her workstation.
She reported the incident to Ostenson. According to both Ostenson and Luttjo-hann, when she was questioned about the damage, Olson suggested that the damage might have been done by an employee’s child wandering around after hours. Olson denies ever making this statement.
Lt. Ostenson testified:
Q. In that first paragraph there’s a reference there that: While in the ATU unit, Erin tells me someone has pulled proofs from her CALEA cabinet, torn them in half, and placed them in areas around her work station, (desk area, trash can, shred drawer). The community service pamphlets — and that’s what she told you; correct?
A. Yes.
Q. Did she show you any of this?
A. No.
Q. Did she, did she point out to you while you were in the ATU unit any torn pamphlets?
A. No.
Q. Did she point out to you any, any amphlets or community service information being thrown in her office or shredded in her drawer or anything of that nature?
A. No.
Q. This is what she verbally told you; correct?
A. Yes.
Q. In regards to providing any physical evidence in regards to torn documents she didn’t show you any of that did she?
A. No.
Q. And this was the point in time where you later learned from Lieutenant Mergen that she then claimed on one of these pamphlets someone had written some derogatory comments; correct?
A. Yes.
As some point after the initial report about the torn-up pamphlets, Olson added an additional charge: that at the same time as the torn-up pamphlet incident, someone had written “Fucking Cunt” on one of the pamphlets or brochures left on her desk. It is undisputed that this note is not referenced in Olson’s initial complaint to Ostenson. There is a factual dispute whether Olson showed the insulting note to Luttjohann. Olson claims she did, Luttjohann denies it. Luttjohann testified that he has never seen the note with the derogatory comment which Olson said had been left on her desk. He has no recollection that Olson ever told him about the note. Olson admits that she never showed the note to Ostenson.
The fate of the alleged note is also a mystery. On May 26, 2010, approximately a week later, Lieutenant Richard Mergen approached Lt. Ostenson and informed Lt. Ostenson that he had heard a rumor that someone had written a derogatory term on a piece of paper left on Olson’s desk. Lt. Ostenson was “shocked” that he had not heard about this comment, and that Olson had not told him about the derogatory comment when she reported the allegedly torn pamphlets. The next day, Ostenson approached Olson. She asserted she had not mentioned the note because she had sent the note, marked confidential, to Rich Davis. Davis has stated that he never received any such communication.
Olson was asked in her deposition about why she did not mention the note at the same time she reported the desk vandalism.
Q. Ostenson has notes that indicate that you talked to him the day that your desk was trashed and the pamphlets were torn and that on that occasion you said nothing to him about any note.
A. I don’t believe I had mentioned the fucking cunt comment that was made. I wanted that to remain a detail that only Rich Davis had.
Davis has stated that Olson did not tell him of the insulting note. He first learned of Olson’s claim of vandalism to her desk when he attended her June 2, 2010 hearing before the Grievance Committee.
After the hearing, Davis met with Olson and asked her why she had not informed him of this incident. Olson told him that she had placed the evidence in an envelope marked “Confidential” and placed it in normal mail distribution. Olson told Davis that she had shown some of the torn pamphlets to her supervisors, and that she might still have some physical evidence. As Davis later wrote in an email, “I asked her why she didn’t inform me sooner [about the insulting note], and she didn’t have a good answer.”
On June 7, 2010, Sheriff Barta received a letter from Olson with her allegations. She acknowledged that she knew Barta was not aware of the allegations at that time:
Secondly, and of even greater concern were actions taken against me on May 20th where a CD which I received from TPD was intentionally destroyed on my desk. I also found several brochure templates that I had been working on, torn up. One brochure in particular had the words written on it, “fucking cunt.” From your response, it appears you are not aware of these situations.
Sheriff Barta testified that his initial reaction upon receiving this correspondence from was to make sure that the evidence was secured.
Davis was unable to confirm that Olson had ever shown any of the torn brochures to her chain of command. Olson claimed that she had shown them to Luttjohann, but Luttjohann indicated that she had not done so.
On June 17, 2010, Davis sent Plaintiff a letter relating to this incident. He reiterated the need for physical evidence. He related their earlier conversation in which she had “told me that you still had some of the evidence, and I asked you to send it to me so I could have it checked for fingerprints.” Davis asked her to send him the remaining physical evidence she had from the incident. He also stated that if she did not provide him with any physical evidence by June 25, 2010, he would close the claim as unverifiable.
It is uncontroverted that Olson has never provided Davis with any physical evidence or other documentation relating to this incident.
Olson did not take a photograph of the notation with the derogatory comment or of the torn pamphlets on her desk despite having that capability.
Davis closed the investigation due to a lack of evidence.
Taunting by Metz
Plaintiff described an incident with Sgt. Metz as follows:
Q. Now, I’ve seen a note but I don’t have an actual complaint, but there’s a reference that on June 11, 2010, you complained about Brad Metz making a statement to Steve Luttjohann, something to the effect how is accreditation going?
A. Yes, I recall that.
Q. Tell me about that.
A. Shortly after my grievance hearing, Brad Metz had come and walked by my cubicle area taunting me with that comment of how’s accreditation going today, buddy, and he looked at me and smiled at me as he said it, and it was in a very sarcastic tone.
Q. Now, Steve and you shared a cubicle?
A. Yes, Steve Luttjohann and myself shared a cubicle.
A. He looked at Steve and said, “How’s accreditation going today, buddy?” And looked back at me and sarcastically smiled.
Olson contends that Metz’s actions were “retaliation.” She believed that Metz was “retaliating against the grievance” she had filed with the county regarding the promotion. She reported the comment to Capt. Hoobler and Michael George.
Metz acknowledges he made such a comment to Luttjohann, but has testified that he was not directing the comment toward Olson, and that he was unaware she was even in the area at the time.
Complaint Regarding June 29, 2010, Meeting
On June 17, 2010, Plaintiff sent an email to Lt. Ostenson stating:
I would just like to comment that this is the 4th day in a row (this week) that my sgt. has taken a 2 hour lunch. I feel the same standards need to apply to all employees, and not just the chosen few. I know we have discussed this before. Since nothing has changed since our conversation on this, I am left to believe that he has not been talked to or has simply chosen not to listen. I would at least like to see an improvement in this issue (maybe only an hour and a half next week). I feel that by not holding him to the same standards as the rest of people in this division, it creates a system of unfair practices and possible employee classification discrimination.
Olson testified that she wrote this email because she had difficulty getting reaching Luttjohann when he was away from the office. She acknowledged that the e-mail made no reference to having difficulty getting in touch with Luttjohann. She also acknowledged that Luttjohann carried a cellphone, and she could have reached him by calling his cell phone.
Ostenson responded to her the next day, stating that he and Capt. Hoobler would like to meet with her. Olson asked that the Sheriff, Undersheriff, or an HR representative sit in. At that point, a meeting was not scheduled.
On June 28, Olson emailed Ostenson, Capt. Hoobler, Undersheriff Holladay, and Sheriff Barta asking about the meeting, and indicating that she wanted a third party present.
Olson met with Capt. Hoobler, Lt. Os-tenson, and Jonathan Thummel of HR on June 29. Olson was told that other agency member’s schedules and work performance were not her concern. Thummel told Olson that he had never been pulled into a meeting like this, and that Olson should comply with supervisor requests as to meeting schedules.
Hoobler told Olson that in the future she was not to avoid a meeting or demand the attendance of certain persons. If she directly refused to attend a meeting, that could be considered insubordination. Capt. Hoobler also declined to discuss Sgt. Luttjohann’s schedule with her. Hoobler told Olson that she should not email responses to questions or otherwise review general CALEA policy without approval by Ostenson or Hoobler.
In the future, Olson was to report directly to Ostenson. She was also reminded to arrive at work on time.
According to Olson, the meeting was intimidating because Hoobler had used a “loud and gruff tone of voice” and because he told -her Luttjohann’s schedule was “none of [her] damn business.” Olson did not report her belief that the meeting had been threatening and intimidating to anyone. Nor did she ever file a complaint over the meeting.
After the conclusion of the meeting, Olson asked Ostenson to document the meeting for her. In an e-mail, she also indicated to Ostenson that she had recorded the meeting with her tape recorder, but she had already given the tapes to her attorney. Olson now concedes that she has no recording of the meeting.
In contrast to her statement to Ostenson that she had a recording but had send it to her attorney, Olson subsequently stated that she had no recording showing Hoo-bler’s gruff tone at the June 29 meeting because the recorder did not work. It is uncontroverted that Olson presently has no such recording.
Alleged Theft of Recorder
Olson emailed Ostenson on July 8, 2010 stating that her tape recorder was missing from her desk. She also reported that she had found another Accreditation file with missing CALEA “proofs.” She wrote that she believed she had found approximately 25 to 30 proofs missing over time.
Lt. Ostenson testified to his response to these e-mails:
Q. And what, if anything, did you do about that when she reported that to you?
A. Well, my response was to go — well, first of all it was addressing two issues; the first one was the missing proofs and to just document those. And that looks like where I’m giving her clear instructions, just keep a running date and log them and so forth. And then I mention the theft of the recorder, I see that as theft.
Q. Uh-huh.
A. If it’s missing, you know, it could.be misplaced but I didn’t take it as being misplaced, I saw it as this is probably a theft and needs to be investigated so I asked her to report that to HR.
Ostenson asked Olson to document the dates and files which had been affected by missing proofs. Ostenson cannot recall ever receiving any such documentation.
Olson filed an offense report relating to the missing tape recorder, and Detective William Vaughn was assigned to investigate. Vaughn considered the investigation to be a criminal investigation. He first interviewed Olson, asking her who she suspected. Olson identified Capt. Hoobler, Sgt. Metz, and Deputy Marr. In her deposition, Olson testified that this suspicion was not grounded on “any evidence either by way of documentation, physical evidence or witnesses.”
Hoobler told Vaughn he knew of the reported theft, but he did not have any further information. Deputy Marr and Det. Metz denied any knowledge of or involvement in the theft of the recorder. Vaughn later testified that, without surveillance, it would be difficult to prevent a theft from that area because people were free to walk in and out of the area.
Vaughn again met with Olson on July 28, and told her there was not enough evidence to substantiate who was responsible for the theft of the recorder. Therefore, the case would be placed on inactive status.
As with the tape recorder, Olson does not have any direct evidence to support her belief that Metz or Marr was responsible for the missing proofs:
Q. What’s the good number of incidents that you are talking about in regards to the retaliation of Brad Metz and Darrin Marr?
Q. How do you prove that they did it?
A. I believe they are responsible for it.
Q. How do you prove that they did it?
A. I don’t have direct prove [sic].
Q. You don’t have any evidence, correct?
A. We are still in discovery right now. I don’t have anything right now.
Q. You don’t have any evidence, correct?
A. Right now, I do not have any evidence.
(Olson dep. 201).
Robert Lewis Complaint
On July 28, 2010, a citizen by the name of Robert Lewis came into the Sheriffs Office to register within the computer system as an criminal offender. While he was there, Lewis complained to Shawnee County Sheriffs Office Deputy Emily Adams that Olson had gone door-to-door in their neighborhood, identifying herself as an employee of the Shawnee County Sheriffs Office and accusing a Robert Lewis ■ of committing a burglary and theft at her residence.
Olson had spoken to her neighbors after a shed on her property had been broken into ten days before. She also went to Lewis’s door, and told him about the burglary. Lewis identified himself as Robert L