Miller v. Jefferson County Board of County Commissioners
Filing
23
MEMORANDUM AND ORDER granting 13 Defendant's Motion for Summary Judgment. Signed by District Judge John W. Lungstrum on 03/01/2018. (ses)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
Debra Miller
Plaintiff,
v.
Case No. 16-cv-2445-JWL
Jefferson County Board of
County Commissioners,
Defendant.
MEMORANDUM & ORDER
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.
Mr. Hubbard’s employment was later terminated by Mr. Noll with the approval of the County
Commissioners. Mr. Hubbard filed a lawsuit alleging age discrimination and his claim recently
survived summary judgment.
1
2
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,
3
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 contends that the County’s evidence on this point constitutes inadmissible hearsay. It
is clear, however, that the County is offering that evidence not for the truth of any statements, but
to show the basis for Mr. Noll’s conclusion that plaintiff’s employment should be terminated. The
objection, then, is overruled.
3
Plaintiff contends that the court cannot consider the contends of Mr. Noll’s memorandum
because it constitutes hearsay. That objection is overruled. Denison v. Swaco Geolograph Co.,
941 F.2d 1416, 1423 (10th Cir. 1991) (exhibit not hearsay because it was not offered to prove the
truth of its contents, but to show defendant's motivation during a reduction in force).
2
4
•
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.
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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. § 441111 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 action. Id.
If the County meets this burden, summary judgment against plaintiff is warranted unless she
introduces evidence “that the stated nondiscriminatory reason is merely a pretext for
discriminatory intent.” Id. (citing Simmons v. Sykes Enters., 647 F.3d 943, 947 (10th Cir. 2011)).
In its motion for summary judgment, the County assumes that plaintiff has sufficient
evidence to establish a prima facie case. The court turns, then, to whether the County has met its
The court considers plaintiff’s claims under the ADEA and the KADEA in tandem because the
same standards and burdens govern both claims. See Nyanjom v. Hawker Beechcraft Corp., 641
Fed. Appx. 795, 799 (10th Cir. Jan. 28, 2016). Moreover, neither party suggests that the
applicable provisions differ in any respect.
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burden to articulate a legitimate, nondiscriminatory reason for the employment decision. “This
burden is one of production, not persuasion; it can involve no credibility assessment.” Carter v.
Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1149 (10th Cir. 2011) (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)). The Tenth Circuit has characterized
this burden as “exceedingly light,” and the court finds that the County has carried it here. See id.
According to defendant, the County terminated plaintiff’s employment for the eight reasons set
forth in the memorandum drafted by Mr. Noll and presented to the County Commissioners prior
to the termination decision: plaintiff’s reaction to Mr. Noll’s decision to use the break room as
his office; plaintiff’s failure to provide accurate FCC account passwords to Mr. Noll; plaintiff’s
failure to relay phone messages to Mr. Noll; plaintiff’s rudeness to members of the public and
other employees; plaintiff’s failure to timely send out requests for bids for oil products that the
County needed for summer construction season; plaintiff’s almost daily use of unauthorized
overtime; plaintiff’s failure to verify available funds through the Kansas Exchange Fund Program;
and plaintiff’s comments in the workplace suggesting that she hoped that Mr. Noll failed at his
job. The burden of proof, then, shifts back to plaintiff to show that the County’s proffered reasons
are pretextual.
Evidence of pretext “may take a variety of forms,” including evidence tending to show
“that the defendant’s stated reason for the adverse employment action was false” and evidence
tending to show “that the defendant acted contrary to a written company policy prescribing the
action to be taken by the defendant under the circumstances.” Carter, 662 F.3d at 1150 (quoting
Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000)). A plaintiff may
also show pretext with evidence that the defendant had “shifted rationales” or that it had treated
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similarly situated employees differently. Crowe v. ADT Servs., Inc., 649 F.3d 1189, 1197 (10th
Cir. 2011). Simply put, a plaintiff shows pretext by presenting evidence of “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy
of credence and hence infer that the employer did not act for the asserted non-discriminatory
reasons.” McDonald-Cuba v. Santa Fe Protective Servs., Inc., 644 F.3d 1096, 1102 (10th Cir.
2011).
Where, as here, an employer advances several reasons for an adverse employment action,
the Tenth Circuit has adopted a “general rule” that “an employee must proffer evidence that shows
each of the employer’s justifications is pretextual.” Lobato v. New Mexico Environment Dep’t,
733 F.3d 1283, 1289 (10th Cir. 2013) (quoting Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1126
(10th Cir. 2005)). The Circuit, however, recognizes several exceptions to that rule. See id. For
example, if a plaintiff casts “substantial doubt on many of the employer’s multiple reasons,” such
doubt may be sufficient reason to doubt all of the reasons proffered by the employer. Id.
Moreover, if one of the stated reasons for termination predominates over the other reasons, a
showing that the dominant reason was pretextual may be sufficient. Id. Another alternative is
showing that “the pretextual character of one explanation is so fishy and suspicious that a jury
could find that the employer (or its decisionmaker) lacks all credibility.” Id. (quoting Jaramillo v.
Colo. Judicial Dep’t, 427 F.3d 1303, 1310 (10th Cir. 2005)). “All of which is to say, our inquiry
is not mechanistic; it is designed to tease out factual questions that are legitimately in dispute.
And summary judgment is appropriate where the plaintiff cannot demonstrate any genuine dispute
of material fact for the jury to resolve.” Id.
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With this framework guiding us, the court examines plaintiff’s evidence of pretext.
Plaintiff directs the court to four categories of evidence that she suggests demonstrates pretext
either individually or in the aggregate. As will be explained, plaintiff has not established a genuine
dispute about pretext.5
A.
The Termination Memorandum
To establish pretext, plaintiff first challenges the timing and content of the memorandum
authored by Mr. Noll three days prior to plaintiff’s termination in which he sets forth eight separate
reasons for the termination of plaintiff’s employment. She contends that the reasons set forth in
the memorandum are largely subjective; that the timing of the memorandum is suspicious because
it was created only 3 days prior to her termination and without any prior disciplinary write-ups;
that the reasons set forth in the memorandum are implausible; and that the memorandum is
suspicious because portions of it mirror a memorandum written by Mr. Noll with respect to Mr.
Hubbard. As will be explained, none of these arguments individually or collectively casts any
doubt on the County’s stated reasons for terminating plaintiff’s employment.
5
The County contends that plaintiff, to survive summary judgment, must come forward with
evidence of pretext and evidence sufficient to support an inference of age discrimination. The
court rejects this argument, as the Circuit repeatedly rejected the “pretext plus” standard in favor
of a rule that permits a plaintiff to survive summary judgment with evidence supporting a prima
facie case and discrediting the employer’s proffered reason. See Jones v. Oklahoma City Pub.
Schs., 617 F.3d 1273, 1280 (10th Cir. 2010) (reversing grant of summary judgment where district
court utilized “pretext plus” standard that the Circuit had “definitively rejected”) (quoting Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000) (“a plaintiff’s prima facie case
[of discrimination], combined with sufficient evidence to find that the employer’s asserted
justification is false, may permit the trier of fact to conclude that the employer unlawfully
discriminated”)).
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Subjective Reasons
Plaintiff first contends that the reasons given by Mr. Noll in the termination memorandum
are subjective and she directs the court to cases in which pretext was shown in part because an
employer relied on subjective criteria in making the termination decisions. Plaintiff does not
explain to the court how the reasons identified by Mr. Noll are subjective. Subjective criteria
include vague concepts such as “potential for success” and “leadership and communication skills.”
See Sotunde v. Safeway, Inc., ___ Fed. Appx. ___, 2017 WL 5643116, at *4 (10th Cir. Nov. 24,
2017). Other than Mr. Noll’s concerns about plaintiff’s interpersonal skills, none of the reasons
set forth in the memorandum can be reasonably construed as “subjective” given the context
provided by Mr. Noll in the document. Moreover, the Circuit has recognized that “nothing bars
an employer from utilizing subjective criteria in decision-making,” see Debord v. Mercy Health
Sys. of Kan., Inc., 737 F.3d 642, 657 (10th Cir.2013), and will infer pretext only when the
evaluation criteria are entirely subjective and the process in question is opaque rather than
transparent. Conroy v. Vilsack, 707 F.3d 1163, 1178 (10th Cir. 2013). Plaintiff has not shown that
those circumstances are present here. See Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1120
(10th Cir. 2008) (supervisor’s subjectivity or latitude in determining what information would be
considered in making a termination decision was not sufficient to establish pretext where there
was no evidence that supervisor used that latitude to act on alleged age bias).
Timing of Memorandum
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Plaintiff also complains that the termination memorandum is suspect because it was
authored just three days prior to plaintiff’s termination and there is no other documentation
supporting plaintiff’s termination such as prior disciplinary write-ups. It is undisputed, however,
that no County policy exists requiring progressive discipline or a written warning prior to
termination. Any written warnings were entirely at the discretion of the supervisor. There is no
evidence that Mr. Noll ever utilized the practice of written counselings as to any employee such
that plaintiff might be able to show that she was treated differently than other employees. See
Lobato v. New Mexico Environment Dep’t, 733 F.3d 1283, 1290-91 (10th Cir. 2013). Moreover,
Mr. Noll had only recently started supervising plaintiff and he was entitled to institute new
performance standards for his employees. Thus, the fact that no prior supervisor had ever
disciplined plaintiff for the performance issues highlighted by Mr. Noll does not show a genuine
dispute about pretext. See Metzler v. Federal Home Loan Bank, 464 F.3d 1164, 1175-76 (10th
Cir. 2006) (no pretext where plaintiff failed to show that employer’s change in treatment of her
was based on invocation of FMLA rights rather than higher expectations of new manager).
Finally, to the extent that plaintiff suggests that Mr. Noll “suddenly created” the reasons for her
termination just three days prior to plaintiff’s termination, the uncontroverted evidence
demonstrates that Mr. Noll had been discussing his concerns about plaintiff’s performance with
the County Commissioners since early February 2014.
Substance of Proffered Reasons
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In painstaking detail, plaintiff challenges each of the reasons offered by the County for her
termination.6 But plaintiff’s evidence, even considered in totality and in the light most favorable
to her, suggests only that Mr. Noll made a mistake in his assessment of her performance or that
his perception of her performance differed from her own. Nothing in the record demonstrates that
Mr. Noll did not honestly believe the reasons he set forth in the termination memorandum or that
he failed to act in good faith on those beliefs. Hiatt v. Colorado Seminary, 858 F.3d 1307, 1316
(10th Cir. 2017) (“The relevant inquiry is not whether the employer’s proffered reasons were wise,
fair or correct, but whether it honestly believed those reasons and acted in good faith upon those
beliefs.”).
With respect to Mr. Noll’s decision to convert the break room to his office, plaintiff readily
admits that she “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. She further admits that she was disappointed in his
decision because she was losing a room that she and other employees regularly used for lunch.
While she denies that she threatened to call the County clerk to have Mr. Noll disciplined (as Mr.
Noll testified in his deposition), she admits that she told Mr. Noll that she was going to call the
Plaintiff also challenges in great detail Mr. Noll’s testimony about plaintiff’s failure to embrace
mapping software. Because there is no evidence that the County relied on this purported failure
when it terminated plaintiff’s employment, that evidence is not pertinent to the pretext analysis.
Plaintiff also contends that the some of the reasons identified by Mr. Noll are tied to plaintiff’s
“past performance” despite the fact that Mr. Noll testified that he did not consider plaintiff’s past
performance in the decision to terminate her employment. That argument places undue emphasis
on one line from Mr. Noll’s deposition in which he simply confirmed that he did not recall looking
at plaintiff’s personnel file and he did not consider whether she had received prior disciplinary
write-ups when he made the decision to terminate her employment.
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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. Plaintiff’s evidence hardly calls into question
Mr. Noll’s stated reason—in fact, her admissions tend to establish that plaintiff was unduly upset
about Mr. Noll’s decision to use the break room as his office. Plaintiff has no evidence tending
to show that Mr. Noll did not honestly believe that plaintiff “decided to sabotage” Mr. Noll over
the dispute about the break room. Plaintiff, then, has not shown that this specific reason is
pretextual.7
The second paragraph of the termination memorandum describes Mr. Noll’s unsuccessful
efforts to obtain an accurate FCC account password from plaintiff to communicate with the FCC
about the narrow-banding of Road Department radios. Plaintiff attempts to show pretext by
arguing that Mr. Noll was “confused” because the radios had already been narrow-banded.
According to plaintiff, and as Mr. Noll conceded in his deposition, the issue concerning the radios
was that the licenses had not been modified to reflect that the radios complied with the narrowbanding requirement. But even if Mr. Noll was confused on this issue, there is no dispute that the
Road Department needed to access the FCC account to update the license or otherwise
communicate with the FCC about the status of the department’s radios. And plaintiff does not
dispute that Mr. Noll was attempting to obtain an accurate password from plaintiff to access the
FCC account for the purpose of communicating about the radios. While plaintiff contends that
she made a good faith effort to provide an accurate password and suggests that perhaps Mr. Noll
Plaintiff contends that this paragraph in the memorandum is inaccurate because Mr. Noll wrote
in it that the break room was “being used as Debbie Miller’s personal break room” but later
testified that the room was not, in fact, her “personal” break room. Mr. Noll’s obvious use of
hyperbole in the termination memorandum does not cast doubt on “break room” issue.
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was failing to properly input the passwords that she provided to him, she has no evidence that Mr.
Noll did not honestly believe that plaintiff was unable to provide him with a working password,
either because she did not know the correct password or because she was unable to properly reset
the password when prompted to do so.8
The third paragraph of the termination memorandum describes plaintiff’s failure to convey
phone messages to Mr. Noll. In the memorandum, Mr. Noll identifies a specific person who told
him that she had called his office six times trying to reach him and, according to Mr. Noll, he
received only two messages to that effect. Plaintiff, then, highlights that Mr. Noll admits that he
was receiving some messages. But because Mr. Noll did not suggest that he never received any
phone messages, but only that he was not receiving all of his messages, this point is not pertinent.
Moreover, in his deposition, Mr. Noll identified additional numerous other individuals who would
ask him why he had not returned their phone calls and Mr. Noll had not received any messages
from those individuals. Plaintiff does not challenge this evidence other than by simply denying
that she failed to convey messages to Mr. Noll. According to plaintiff, it is possible that Mr. Noll
did not receive certain messages because she left messages for him in a folder on top of her desk
that he rarely checked. But the evidence does not demonstrate that Mr. Noll understood that
plaintiff, on a consistent basis, was leaving phone messages in the folder.
Plaintiff also highlights minor discrepancies in Mr. Noll’s memory concerning the specific
timeline of his efforts to obtain the correct password. But because both plaintiff’s and the
County’s evidence is consistent in terms of the substance of the dispute—whether plaintiff
repeatedly provided an inaccurate password to Mr. Noll for the FCC account—these minor
discrepancies do not demonstrate pretext. Conroy v. Vilsack, 707 F.3d 1163, 1175 (10th Cir.
2013).
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According to the County, Mr. Noll also based the termination decision on his assessment
that plaintiff was rude to members of the public on the phone and to other employees in the office.
Plaintiff denies being rude to the public on the phone. But she offers no evidence suggesting that
Mr. Noll did not honestly believe that plaintiff, at least on occasion, was rude to the public.
DePaula v. Easter Seals El Mirador, 859 F.3d 957, 971 (10th Cir. 2017) (“In determining whether
the proffered reason for a decision was pretextual, we examine the facts as they appear to the
person making the decision,” and “do not look to the plaintiff’s subjective evaluation of the
situation.”).
She also attempts to explain the conduct that Mr. Noll highlighted in his
memorandum with respect to her treatment of other employees. According to Mr. Noll, plaintiff
consistently refused to provide employees (who did not have access to a computer printer) with a
copy of their timesheets. Rather than simply print a copy for an employee, plaintiff would log off
her computer, walk away, and tell the employee to get it for himself or herself. Plaintiff does not
dispute Mr. Noll’s account of her conduct, but explains that she did not feel comfortable printing
that information out for other employees because it contained private payroll information and she
walked away to permit those employees to access their information privately. But assuming the
truth of that evidence, there is no evidence that Mr. Noll understood why plaintiff was “refusing”
to help other employees. At best, plaintiff’s evidence shows that Mr. Noll “got it wrong” in his
assessment of her behavior. Under established Circuit precedent, such evidence is insufficient to
show pretext. Johnson v. Weld County, Colorado, 594 F.3d 1202, 1211 (10th Cir. 2010) (“That
individuals and companies sometimes make employment decisions that prove to be bad ones in
hindsight usually suggests no more than that—that they got it wrong. To support an inference of
pretext, to suggest that something more nefarious might be at play, a plaintiff must produce
15
evidence that the employer did more than get it wrong. He or she must come forward with
evidence that the employer didn’t really believe its proffered reasons for action and thus may have
been pursuing a hidden discriminatory agenda.”).
Plaintiff’s pretext arguments concerning the substance of Mr. Noll’s final four reasons can
be addressed in short order. Plaintiff contends that Mr. Noll’s criticism about the oil bidding
process was based on a “misunderstanding” on plaintiff’s part that she corrected as soon as
possible. Plaintiff concedes that she worked at least 30 minutes of daily overtime and that Mr.
Noll never authorized it.9 She does not dispute the County’s evidence that Mr. Noll discussed
with her the need to “eliminate all overtime” through more efficient work techniques. With
respect to the Kansas Exchange Fund Program, plaintiff essentially contends that it was “not her
job” to verify whether funds were available to the department through the program. Finally, she
does not specifically dispute telling another employee that she hoped Mr. Noll failed at 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.” None of this
evidence remotely casts doubt on Mr. Noll’s asserted reasons or shows that he did not honestly
believe that plaintiff did not timely solicit oil bids; that plaintiff was inappropriately working
overtime that was not necessary or authorized; that plaintiff did not verify the funds available
through the Kansas Exchange Fund Program despite his direct request that she do so; or that
While she contends that her overtime use was authorized by her prior supervisor, Mr. Hubbard,
Mr. Noll was entitled to enforce different rules. See Brown v. ScriptPro, LLC, 700 F.3d 1222,
1228 (10th Cir. 2012) (new supervisor is entitled to enforce different standards of behavior and
negative evaluation under new standards does not establish pretext).
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plaintiff was telling other employees that she hoped that Mr. Noll failed at his job. Hiatt v.
Colorado Seminary, 858 F.3d 1307, 1316 (10th Cir. 2017) (“The relevant inquiry is not whether
the employer’s proffered reasons were wise, fair or correct, but whether it honestly believed those
reasons and acted in good faith upon those beliefs.”).
Similarities between Plaintiff’s Termination Memorandum and Mr. Hubbard’s Termination
Memorandum
Plaintiff also emphasizes that certain portions of Mr. Hubbard’s termination memorandum
mirror portions of her termination memorandum and that the overlap somehow suggests that the
reasons for plaintiff’s termination were “created last minute.” No such inference can be drawn
from the limited overlap between these two documents. Five of the eight reasons set forth in Mr.
Noll’s memorandum concerning plaintiff are not mentioned at all in Mr. Hubbard’s termination
memorandum. The three reasons that are mentioned in both memoranda (narrow-banding of
radios; not relaying messages; and the Kansas Exchange Fund program) nonetheless set forth
different details based on the role played (or mistakes made) by plaintiff and Mr. Hubbard.
Plaintiff’s termination memorandum, for example, identifies the narrow-banding issue only as it
related to the one task that Mr. Noll asked plaintiff to complete—providing him access to the
County’s FCC account. Those details are not found in Mr. Hubbard’s memorandum. Plaintiff’s
memorandum contains specific details concerning plaintiff’s failure to relay messages that are not
contained in Mr. Hubbard’s memorandum.
Thus, there is nothing about the overlap between
these two documents that calls into question the veracity of the reasons stated in plaintiff’s
memorandum.
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B.
Noll’s Statements about Technology
In his deposition, Mr. Noll stated that one of his primary goals for the entire Road and
Bridge Department was to get that department to “embrace technology,” including making road
records available to the public in a digital format and using mapping software. Mr. Noll testified
that he instructed plaintiff to familiarize herself with the mapping software and to begin digitizing
old records and that he believed that those tasks were part of her regular duties and within the
scope of her position as an administrator in the road department. He further testified that plaintiff
showed an “unwillingness” to participate in the conversation about the implementation of
technological advances in mapping.
Plaintiff contends that Mr. Noll’s testimony reflects an age bias against plaintiff and is
sufficient to permit a jury to conclude that his assessment of plaintiff’s performance was tainted
by age stereotypes. The court disagrees. Nothing in Mr. Noll’s testimony reflects a belief or an
assumption that plaintiff was unable to learn new technology such that a jury might infer that Mr.
Noll’s termination decision was based on a generalization about the competency of older workers.
Rather, his testimony indicates only a perception that plaintiff was unwilling to undertake specific
tasks associated with the department’s transition to technology. There is no evidence that plaintiff
made any effort whatsoever to convert the department’s road records to a digital format (a process
that, according to Mr. Noll’s undisputed testimony, involved only scanning documents) or to learn
the basics of mapping software. Rather, plaintiff asserts that Mr. Noll’s expectations of her were
unrealistic based on the number of hours each week that she was already working.
Most significant, however, is the fact that Mr. Noll did not identify plaintiff’s failure to
embrace technology as a reason for her termination in his written memorandum and plaintiff
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directs the court to no evidence that plaintiff’s refusal to digitize road records or her refusal to
learn mapping software had any bearing on the decision to terminate plaintiff’s employment.
There is no evidence that Mr. Noll ever raised this issue with the County Commissioners in any
of the numerous discussions they had concerning plaintiff’s employment. Moreover, there is
nothing about Mr. Noll’s perception that plaintiff was unwilling to embrace technology that calls
into doubt any of the myriad reasons he offered for terminating her employment—none of which
concern the department’s transition to technology. Compare Peterson v. Mid-State Group, Inc.,
54 F. Supp. 3d 1039, 1041-42 (E.D. Wis. 2014) (factual issues existed with respect to whether
termination was based on age stereotypes where reason for termination was employee’s inability
to learn new computer system and difficulties in adapting to new system despite evidence that
plaintiff was attempting to learn the system) with Haglund v. St. Francis Episcopal Day Sch., 8 F.
Supp. 3d 860, 875 (S.D. Tex. 2014) (principal’s statement to faculty, including plaintiff, that they
needed to embrace technology or retire was not evidence of age discrimination where school set
forth six specific reasons for plaintiff’s discharge—including her infrequent use of technology—
and plaintiff failed to show that the reasons were false). Mr. Noll’s testimony about plaintiff’s
unwillingness to embrace technology, then, does not establish pretext.
C.
Failure to Utilize Progressive Discipline
Plaintiff asserts that the County’s failure to follow its progressive discipline policy with
respect to her termination demonstrates pretext. But plaintiff has no evidence that progressive
discipline was required prior to termination and, in fact, the County’s policy expressly indicates
that progressive discipline was “at the discretion” of the supervisor. In such circumstances, the
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County’s failure to utilize progressive discipline prior to terminating plaintiff’s employment is not
evidence of pretext. where “progressive discipline [is] entirely discretionary,” and the employer
“did not ignore any established company policy in its choice of sanction, the failure to implement
progressive discipline is not evidence of pretext.” Lobato, 733 F.3d at 1291 (quoting Timmerman
v. U.S. Bank, N.A., 483 F.3d 1106, 1120 (10th Cir. 2007).
D.
Pattern of Age Discrimination
Finally, plaintiff suggests that the evidence in the record reflects the County’s “pattern” of
targeting older employees for termination. In her submissions, she identifies only two employees
whom she believes were targeted for termination based on age.10 The first is Allen Lowrance, a
mechanic in the auxiliary services department who is “older” than plaintiff.11 Mr. Noll testified
that Mr. Lowrance was terminated because he had represented to his supervisor that he had made
certain repairs to an ambulance when, in fact, he had not made those repairs. The ambulance then
broke down while transporting a County citizen. Plaintiff offers no evidence to cast doubt on the
veracity of this reason other than to highlight that the incident was never documented in Mr.
Lowrance’s file. Because it is undisputed that progressive discipline is entirely discretionary, the
absence of documentation about the incident is not relevant to the pretext analysis and does not
create an inference that Mr. Lowrance’s termination was based on age. The second is Francis
She identified two more individuals in her deposition, but does not point to those individuals in
her submissions, likely because it is undisputed that one of those individuals died while still
employed by the County and the other retired voluntarily and plaintiff admitted she had no
evidence that the County “forced” or even asked the individual to retire.
11
The record does not reflect Mr. Lowrance’s age.
10
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Hubbard, who has filed his own lawsuit in this court and has recently survived summary judgment
on his age claim based on facts unique to his situation. Plaintiff’s evidence concerning Mr.
Hubbard falls far short of establishing a pattern of age discrimination, particularly as Mr. Noll
supervised at least 15 employees who were nearing retirement age and there is no evidence that
any of these individuals except Mr. Hubbard was terminated by Mr. Noll. Moreover, plaintiff has
not established any connection between the circumstances underlying her termination as the office
manager (which include reasons ranging from her admitted frustration over Mr. Noll’s use of the
break room as his office, the use of unauthorized overtime, and Mr. Noll’s belief that she was
attempting to “sabotage” him) and the circumstances underlying Mr. Hubbard’s termination as a
road foreman. See Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 856 (10th Cir. 2000)
“[A]necdotal evidence of discrimination should only be admitted if the prior incidences of alleged
discrimination can somehow be tied to the employment actions disputed in the case at hand.”).
In addition to her evidence concerning Mssrs. Lowrance and Hubbard, plaintiff points to
evidence that Mr. Noll asked 15 employees about their retirement plans. It is undisputed that 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.12 There is no evidence that Mr. Noll asked any employee on more than
one occasion; that the question was accompanied by any other comments reflecting a potential
age-based animus; or that the County forced any employees who were asked about their retirement
Plaintiff objects to Mr. Noll’s testimony on hearsay grounds. Because the County is offering
the testimony to show why Mr. Noll asked employees about their retirement plans and not as
evidence that employees were planning to retire, the testimony is not hearsay and the objection is
overruled.
12
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plans to retire or even asked those employees to consider retirement. In such circumstances, Mr.
Noll’s inquiries cannot support an inference of age discrimination. See, e.g., Wagoner v. Pfizer,
Inc., 391 Fed. Appx. 701, 708 (10th Cir. 2010) (supervisor’s inquiry into plaintiff’s retirement
plans did not raise inference of age discrimination under particular facts) (citing Colosi v. Electri–
Flex Co., 965 F.2d 500, 502 (7th Cir. 1992) (“[A] company has a legitimate interest in learning
its employees' plans for the future, and it would be absurd to deter such inquiries by treating them
as evidence of unlawful conduct.”)); Wallace v. O.C. Tanner Recognition Co., 299 F.3d 96, 10102 (1st Cir. 2002) (“company officials are permitted to gather information relevant to personnel
planning without raising the specter of age discrimination”); Moore v. Eli Lilly & Co., 990 F.2d
812, 818 (5th Cir. 1993) (questions about retirement plans, without more, “merely demonstrate a
new supervisor's reasonable inquiries about the ages of the members of his work force and their
known plans for the future—facts on which to gauge the anticipated longevity of his crew”).
While plaintiff concedes that Mr. Noll never asked her about her plans to retire, he did ask
plaintiff if she was “tired” of her job and whether she would prefer a “different job.” Plaintiff
contends that this inquiry, coupled with the fact that Mr. Noll began raising concerns about
plaintiff’s performance shortly after she advised him that she intended to keep working for another
10 years, is sufficient evidence of pretext to survive summary judgment. In support of her
argument, plaintiff relies heavily on the Tenth Circuit’s unpublished opinion in Maughan v.
Alaska Airlines, Inc., 281 Fed. Appx. 803 (10th Cir. 2008). In that case, the Circuit reversed the
district court’s decision granting summary judgment to an employer on the employee’s age
discrimination claim. But the facts before the Circuit in Maughan are distinguishable from those
presented here, and in meaningful ways. The plaintiff in Maughan had been supervised by the
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same supervisor for nearly two years without any indication that his performance was not meeting
his supervisor’s expectations. Id. at 804. After hearing from someone else that the plaintiff
intended to retire within a year, the plaintiff’s supervisor asked the plaintiff whether he intended
to retire within a year and the plaintiff confirmed that plan. Id. The plaintiff testified that his
relationship with his supervisor “changed drastically” at that point and, suddenly, the supervisor
began noting issues with the plaintiff’s performance. Id. at 804-05. The plaintiff’s employment
was terminated for deficient performance within one month of the plaintiff notifying his
supervisor of his retirement plans. Id. at 805.
In finding sufficient evidence of pretext, the Circuit relied on, among other things, evidence
of the supervisor’s “change in attitude” after learning of the plaintiff’s retirement plans, evidence
that the employer added a final page to the plaintiff’s final performance review after the plaintiff’s
termination and then forged the plaintiff’s signature on it, and that the employer failed to
investigate the plaintiff’s claim of age discrimination despite a policy that apparently required it.
Id. at 807-08.13 None of those circumstances are present here. There is certainly no evidence here
of any falsified or manipulated documentation or a policy requiring a specific process that never
occurred. But more importantly, of course, there is no evidence that Mr. Noll asked plaintiff about
her retirement plans. He asked only whether she was “tired” of her job and whether she might be
interested in a different job. While plaintiff responded that she “had ten more years,” Mr. Noll’s
inquiry lacks any relation to plaintiff’s age or her retirement plans. Moreover, the fact that Mr.
Noll began criticizing specific aspects of plaintiff’s performance after this conversation cannot
Even on that record, the Circuit stated that it was a “close case” and that the plaintiff’s pretext
evidence was not “greatly persuasive.” Id. at 808.
13
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reasonably be attributed to plaintiff’s age (or her stated intent to continue working) when it is
undisputed that Mr. Noll had just started supervising plaintiff and was new to the Director role.
The Circuit has held that a new supervisor is entitled to enforce different standards of behavior
and performance that a prior supervisor did not consider important and that, as a result, differences
in the evaluation of an employee’s performance do not establish pretext. See Brown v. ScriptPro,
LLC, 700 F.3d 1222, 1228 (10th Cir. 2012). This is unlike the situation in Maughan, then, when
the supervisor suddenly began highlighting performance deficiencies that he had not mentioned
for nearly 2 years such that the discussion about retirement could reasonably be perceived as the
causal link. Here, plaintiff has not shown that link. She has not come forward with evidence that
Mr. Noll’s criticism about her performance was tied to her intent to keep working, her retirement
plans, or her age. The evidence demonstrates only that Mr. Noll’s criticism coincided with the
start of his supervision over her performance and stemmed from Mr. Noll’s more demanding
standards.
E.
Totality of Plaintiff’s Pretext Evidence
While the court has addressed (and rejected) separately the pieces of circumstantial
evidence that plaintiff claims demonstrate a pretextual explanation for her termination, the court's
inquiry is not at an end. The ultimate question on summary judgment for purposes of this case is
whether plaintiff has presented sufficient evidence such that there is a genuine issue of material
fact concerning whether plaintiff’s age motivated the County’s decision to terminate her
employment. This question “cannot be answered by looking at the plaintiff’s evidence in a
piecemeal manner.” Voltz v. Coca–Cola Enterprises Inc., 2004 WL 100507, at *9 (10th Cir.
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2004). Rather, the court must consider whether plaintiff's evidence, taken as a whole, is sufficient
to show pretext. Sotunde v. Safeway, Inc., ___ Fed. Appx. ___, 2017 WL 5643116, at *4 (10th
Cir. Nov. 24, 2017) (“[W]e do not look at each piece of evidence in isolation; rather, in assessing
whether plaintiffs have shown pretext, we are obliged to consider their evidence in its totality.”).
Ultimately, the court concludes that the facts of this case, even viewed in the aggregate and
in the light most favorable to plaintiff, do not give rise to an inference of pretext. As noted earlier,
when an employer advances several reasons for an adverse employment action, the Circuit has
adopted a “general rule” that “an employee must proffer evidence that shows each of the
employer’s justifications is pretextual.” Lobato v. New Mexico Environment Dep’t, 733 F.3d
1283, 1289 (10th Cir. 2013) (quoting Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1126 (10th
Cir. 2005)). While the Circuit recognizes several exceptions to that rule, plaintiff has not come
forward with evidence that any of those exceptions—all of which require a showing that at least
one of the proffered reasons is pretextual—applies in this case. Plaintiff has not established that
any of the reasons offered by the County are pretextual, let alone that all of those reasons are
pretextual. For even considering the totality of plaintiff’s evidence, that evidence does not
demonstrate that the County’s asserted reasons for plaintiff’s termination are “so weak,
implausible, inconsistent, incoherent, or contradictory as to support a reasonable inference that
[defendant] did not act for those reasons.” Metzler v. Federal Home Loan Bank of Topeka, 464
F.3d 1164, 1179 (10th Cir. 2006). Stated another way, plaintiff’s evidence is insufficient for a
reasonable jury to find that the County’s proffered justifications were not the real reasons for
plaintiff’s termination. Plaintiff, then, has failed to meet her burden of demonstrating pretext and
summary judgment in favor of defendant is warranted on plaintiff’s age discrimination claim.
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IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s motion for
summary judgment (doc. 13) is granted.
IT IS SO ORDERED.
Dated this 1st day of March, 2018, at Kansas City, Kansas.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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