Cink v. Grant County of et al
Filing
163
ORDER granting 107 Defendant Scott Sterling's Motion for Summary Judgment; granting 109 Motion for Summary Judgment of Defendant Board of County Commissioners of Grant County. Signed by Honorable Robin J. Cauthron on 2/2/15. (lg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
TWILLADEAN CINK,
Plaintiff,
vs.
GRANT COUNTY, OKLAHOMA,
a political subdivision which is sued in
the name of the Board of County
Commissioners for Grant County,
Oklahoma, and SCOTT STERLING,
individually,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. CIV-13-1069-C
MEMORANDUM OPINION & ORDER
Before the Court are the Defendants’ Motions for Summary Judgment (Dkt. Nos. 107
& 109). Plaintiff has responded to both motions. (Dkt. Nos. 126 & 127.) Defendants have
replied. (Dkt. Nos. 129 & 137.) The Motions are now at issue.
I. BACKGROUND
Plaintiff Twilladean Cink was an employee of the Grant County Sheriff’s Department
from December 1977 to June 2013. In June 2013, Cink was 80 years old. Cink was
originally employed as a dispatcher and later became a dispatcher/jailer. Although there is
some dispute about whether Cink was employed as a jailer in 2013, all parties agree that Cink
was a dispatcher and that the essential functions of her job included relaying instructions and
questions to field units, operating communication systems and equipment, using paging
systems, and using a two-way radio. On November 30, 2012, Cink broke her hip after a fall
at a fitness center and was unable to return to work until February 19, 2013. During that
time, Defendant Scott Sterling took office as the newly elected Sheriff of Grant County. As
Sheriff, Sterling took over supervision and control of the jail and was Plaintiff’s supervisor.
Plaintiff claims that after she returned to work, Sterling would make the comments, “Don’t
you want to retire because of your age?” or “I’m watching you,” at least two or three times
a week. Cink asserts that Sterling was trying to bully her into retiring and was looking for
an excuse to fire her. In April 2013, Sterling asked Cink to move to the 4:00 p.m. to
midnight shift. Plaintiff requested to stay on a day shift because of night vision problems,
and Sterling instead moved Plaintiff to three 12-hour shifts with the option of four to eight
hours on Sundays. Sterling sent all office employees a memorandum, dated April 30, 2013,
which stated that negative behavior at the workplace would no longer be tolerated and would
lead to termination. Plaintiff signed this memorandum. (Def.’s Br., Dkt. No. 109, Ex. 8.)
On May 3, 2013, Sterling reprimanded Plaintiff for complaining about her new three-day
work schedule. In May 2013, several of the jailer/dispatchers had conflicts that made
scheduling difficult, and Sterling moved Plaintiff to the 4:00 p.m. to midnight shift. Plaintiff
asserts that Sterling changed her shift to try to force her to retire. On May 29, 2013, Plaintiff
reported that a man named Keith McLure wanted to speak to Sterling. When Sterling asked
for the call back number, Plaintiff—at least twice—mistakenly gave Sterling the number to
the Sheriff’s office. Plaintiff asserts that Sterling knew McLure had not left a call back
number. On May 31, 2013, a semi rollover occurred two miles east of Medford. Plaintiff
paged the Medford ambulance to a location two miles west of Medford. Plaintiff asserts that
she paged the ambulance to the location provided to her. On June 4, 2013, Sterling met with
2
Plaintiff to discuss his concerns about her job performance regarding these incidents. On
June 16, 2013, Plaintiff received a call from a resident of Grant County who said he shot a
man on his property. Plaintiff transferred the call to a deputy in violation of Sterling’s
policy. Plaintiff asserts that the man threatened to shoot again if not allowed to speak to a
deputy. Plaintiff then attempted to page an ambulance to the location of the shooting, but the
Medford Fire Department received a page with no instruction as to the type of incident or
who was to respond. Plaintiff asserts that a machine malfunction caused the error. When
Plaintiff resent the page, she set off the Medford tornado sirens. A severe thunderstorm
watch was in effect that night. Plaintiff asserts that co-worker Joe McLemore told her the
system was set to page the ambulance. Sterling heard the sirens and called Plaintiff. During
the phone conversation, a deputy called dispatch to get a description of the vehicle involved
in the shooting. Rather than provide the requested information, Plaintiff told the deputy she
was on the phone with the Sheriff. Around June 20, 2013, Sterling terminated Plaintiff’s
employment.
Plaintiff then filed the present lawsuit on October 7, 2013. Plaintiff’s claims against
Defendant Grant County of Oklahoma1 include age discrimination, including creating a
hostile working environment and retaliation, in violation of the Age Discrimination in
Employment Act (“ADEA”) and Oklahoma’s Anti-Discrimination Act (“OADA”); disability
discrimination, including creating a hostile working environment, failure to accommodate,
1
Defendant has sued Grant County in the name of the Board of County Commissioners for
Grant County.
3
and retaliation, in violation of the Americans with Disabilities Act (“ADA”) and the OADA;
and wrongful termination in violation of Oklahoma public policy.2 Plaintiff is suing
Defendant Sterling, in his individual capacity, for tortiously interfering with Plaintiff’s
employment with Grant County.
II. STANDARD OF REVIEW
Summary judgment is properly granted if the movant shows that no genuine dispute
as to any material fact exists and that the movant “is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A fact is material if it affects the disposition of the substantive claim.
Anderson v. Liberty Lobby, Inc., 477 U.S. 247, 248 (1986). The party seeking summary
judgment bears the initial burden of demonstrating the basis for its motion and of identifying
those portions of “the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any,” that demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotations
omitted). If the movant satisfactorily demonstrates an absence of genuine issue of material
fact with respect to a dispositive issue for which the non-moving party will bear the burden
of proof at trial, the non-movant must then “go beyond the pleadings and . . . designate
‘specific facts showing that there is a genuine issue for trial.’” Id. at 324. These specific
facts may be shown “by any of the kinds of evidentiary materials listed in Rule 56(c), except
the mere pleadings themselves.”
Id.
Such evidentiary materials include affidavits,
2
Because Plaintiff has withdrawn the wrongful termination claim, the Court will grant
summary judgment in Grant County’s favor on this claim.
4
deposition transcripts, or specific exhibits. Thomas v. Wichita Coca-Cola Bottling Co., 968
F.2d 1022, 1024 (10th Cir. 1992). When considering a motion for summary judgment, a
court must “‘view the evidence and draw reasonable inferences therefrom in the light most
favorable to the nonmoving party.’” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220,
1225 (10th Cir. 2000) (quoting Simms v. Oklahoma ex rel. Dep’t of Mental Health &
Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999), abrogated on other grounds
by Eisenhour v. Weber Cnty., 739 F.3d 496 (10th Cir. 2013)).
III. ANALYSIS
A. Discrimination Claims Under the ADEA. the ADA, and the OADA
The ADEA and the ADA make it unlawful for an employer to discharge an employee
on the basis of age or disability. 29 U.S.C. § 623; 42 U.S.C. § 12112. Defendant Grant
County argues that it is not Plaintiff’s employer and therefore cannot be held liable under
ADEA, the ADA, or the OADA. Plaintiff argues that she is an employee of Grant County
because the position of Sheriff is an office of the County pursuant to the Okla. Const. art. 17,
§ 2 and because Grant County pays for Plaintiff’s salary, insurance programs, and retirement
programs.
The Tenth Circuit addressed a similar argument in Bristol v. Bd. of Cnty. Comm’rs
of Cnty. of Clear Creek, 312 F.3d 1213 (10th Cir. 2002). In that Colorado case, a terminated
confinement officer sued the Board of County Commissioners of Clear Creek and the County
Sheriff, in his official capacity, under the ADA. The Court applied both the joint-employer
test and the single-employer test to determine whether the Board and/or the County Sheriff
5
were employers under the ADA. Id. at 1218-20. Both of these tests look at the amount of
control the entity exercises over the employee. Id. Under Colorado law, “the County Sheriff
is a distinct position, separate from the Board of County Commissioners,” and “Sheriffs have
exclusive control over the hiring and firing of their employees.” Id. at 1219. The Tenth
Circuit determined that because the Board had no control over labor relations in the Sheriff’s
office, it was not an employer under either test. Id. at 1120. Because the absence of an
employment relationship between the plaintiff and the Board meant there was “no ‘legally
sufficient evidentiary basis for a reasonable jury to find’” that the Board was the employer
under the ADA, the Court granted judgment in the Board’s favor. Id. at 1121 (quoting
Fed. R. Civ. P. 50).
This Court also offers analogous precedent. See Lacher v. Bd. of Cnty. Comm’rs for
Okla. Cnty. ex rel. Okla. Cnty. Clerk’s Office, No. CIV-11-1038-M, 2013 WL 268983 (W.D.
Okla. Jan. 24, 2013). In Lacher, a terminated employee of the County Clerk’s office sued
the Board of County Commissioners for Oklahoma County for discrimination under the
ADA, the ADEA, and the OADA.
The Court held that “because [the Board] is a
constitutionally created body without any supervisory control over plaintiff or the County
Clerk’s office, [the Board] is not plaintiff’s employer and therefore can not [sic] be held
liable under ADEA.” Id. at *4. The same constitutional provision that creates the Board of
County Commissioners and the County Clerk’s office creates the Sheriff’s office. See Okla.
Const. art. 17, § 2.
6
Under Oklahoma law, “a Board of County Commissioners ‘is statutorily separate and
distinct from the independently elected sheriff.’” Goss v. Bd. of Cnty. Comm’rs of Creek
Cnty., No. 13-CV-0374-CVE-TLW, 2014 WL 4983856, at *6 (N.D. Okla. Oct. 6, 2014)
(citation omitted). The sheriff is responsible for management of the jail, including the hiring
and training of jail personnel. See 19 Okla. Stat. §§ 513, 513.1 & 547(A). A Board of
County Commissioners “has no statutory duty to hire, train, supervise, or discipline county
sheriffs or deputies.” Estate of Crowell v. Bd. of Cnty. Comm’rs of Cnty. of Cleveland, 2010
OK 5, ¶ 23, 237 P.3d 134, 142 (citing Meade v. Grubbs, 841 F.2d 1512, 1528 (10th Cir.
1988), abrogated on other grounds by Ashcroft v. Iqbal, 556 U.S. 662 (2009)). Plaintiff has
failed to provide any legal authority showing that Grant County had any control over labor
relations of the Sheriff’s office. Furthermore, Plaintiff admits that Sterling made the
determination to terminate her employment and that no one else was involved in that
decision. (Pl.’s Resp., Dkt. No. 126, at 7.) Although the salaries of all county officers are
paid “out of the country treasury by order of the board of county commissioners,”3 budgetary
authority over the Sheriff’s office is not sufficient to make Grant County an employer. See
Bristol, 312 F.3d at 1119-20. Because Grant County has no supervisory control over
Plaintiff and has no control over the labor relations of Grant County’s Sheriff’s office, Grant
County is not an employer and cannot be held liable under ADEA and the ADA.
3
19 Okla. Stat. § 153.
7
The Court declines to exercise supplemental jurisdiction over Plaintiff’s remaining
state law claims, including the tortious interference claim against Defendant Sterling. 28
U.S.C. § 1367(c).
Accordingly, the Court hereby GRANTS Defendant Scott Sterling’s Motion for
Summary Judgment (Dkt. No. 107) and GRANTS the Motion for Summary Judgment of
Defendant Board of County Commissioners of Grant County (Dkt. No. 109). The Court shall
issue a separate judgment. All remaining pending motions are moot.
IT IS SO ORDERED this 2nd day of February, 2015.
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?