Drescher v. Clinton City et al

Filing 49

MEMORANDUM DECISION AND ORDER granting 37 Defendants' Motion for Summary Judgment. The Clerk of Court is directed to close the case and enter judgment in favor of Defendants. Signed by Judge Dale A. Kimball on 3/10/17. (dla)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION

SHELLEY DRESCHER,
Plaintiff,

MEMORANDUM DECISION
AND ORDER

vs.
CLINTON CITY, a municipality;
CLINTON FIRE DEPARTMENT; DAVID
OLSEN; JASON POULSON; FLOYD
PETERSEN; and JUSTIN BENAVIDES,

Case No. 1:15-CV-32-DAK
Judge Dale A. Kimball

Defendants.
This matter is before the court on Defendants Clinton City, Clinton Fire Department,
David Olsen, Jason Poulson, Floyd Petersen, and Justin Benavides’s Motion for Summary
Judgment. A hearing on the matter was held on March 1, 2017. At the hearing, Plaintiff was
represented by Michael Studebaker. Defendants were represented by Maralyn English. Before
the hearing, the court carefully considered the memoranda and other materials submitted by the
parties. Since taking the matter under advisement, the court has further considered the law and
facts relating to the matter. Now being fully advised, the court renders the following
Memorandum Decision and Order.
BACKGROUND
Plaintiff Shelley Drescher was hired as a part-time, on-call firefighter by the Defendard
Clinton City in 2008. Defendant Clinton Fire Department is a department of Clinton City.
Defendants David Olsen, Jason Poulson, Floyd Petersen, and Justin Benavides are employees of
Clinton City.

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In January 2011, Clinton City had testing for a full-time firefighter position. Ms.
Drescher and four other people tested for the position. Ms. Drescher placed fifth out of five
applicants, and two of the higher-scoring applicants were hired as full-time firefighters. In
September 2012, Clinton City tested for a full-time firefighter position again. Ms. Drescher
applied but her scores were lower than Brad Jensen, who was promoted into the position on
October 1, 2012.
On February 19, 2013, Ms. Drescher’s employment was terminated for actions which
hinder the effective performance of Clinton City functions or reflect discredit upon Clinton City,
for bringing personal problems into the workplace that impact the Fire Department, for conduct
unbecoming a firefighter, and for being dishonest. The termination decision was based on several
events. First, between 2010 and 2013, the Clinton Police Department was called to the
Drescher’s home on several occasions due to domestic problems between Ms. Drescher and her
husband, who is a full-time firefighter with Clinton City. On December 7, 2012, the Deputy
Chief of the Clinton Fire Department directed Ms. Drescher to keep her personal problems
outside of work because Mr. Drescher had asked that she be told to stop calling him at work after
she called the station repeatedly asking for her husband during the previous week. One week
later, Ms. Drescher’s husband came to the fire station while he was off work to discuss an issue
with the Deputy Chief, and, during the discussion, Ms. Drescher had her mother drive her to the
station and drove away in the car Mr. Drescher had driven to the station. On February 13, 2013,
Clinton Police and Clinton Fire responded to a report from one of Ms. Drescher’s co-workers at
Davis Hospital that Ms. Davis had threatened suicide. Ms. Drescher’s husband was one of the
firefighters who responded, and, because she was so intoxicated, Ms. Drescher’s husband had to
stay with her and had to have the Fire Chief cover his shift for the night.

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In October 2012, Clinton City received an email from Ms. Drescher’s other part-time
employer, Davis Hospital, stating that Ms. Drescher had told them that she could not work at the
hospital on Thanksgiving, Christmas, and New Year’s because she was scheduled to work all
three of those holidays at the fire station, but Ms. Drescher was not scheduled to work at the fire
station on any of those holidays.
In February 2013, the Fire Chief heard rumors that a Davis County Sheriff Deputy had
attempted suicide because he had fathered a child with Ms. Drescher. According to the rumors,
the Deputy had been paying Ms. Drescher child support under the table, Ms. Drescher pressured
him to pay more, and, when the Deputy said that he couldn’t, Ms. Drescher went to the Deputy’s
wife and told her about the affair and the child. The Fire Chief contacted the Sheriff on February
15, 2013, to check the accuracy of the rumors, and the Sheriff told the Fire Chief that the Deputy
had written a suicide note confirming the statements the Fire Chief had heard. Mr. Drescher was
apparently unaware of the affair and the potential that the child might not be his, and Ms.
Drescher denied everything when she was confronted about what had occurred.
On November 7, 2016, Defendants filed a Motion for Summary Judgment asking the
court to grant summary judgment in their favor on all claims asserted by Ms. Drescher. Ms.
Drescher responded, and Defendants filed a reply.
DISCUSSION
Defendants move for summary judgment on all of Ms. Drescher’s claims because
Defendants argue that Ms. Drescher has failed to meet her burden of establishing a prima facie
case on each of her claims and, to the extent she succeeded in establishing a prima facie case, she
failed to show that Clinton City’s proffered reasons for its employment decisions were
pretextual. Ms. Drescher argues that summary judgment in favor of Defendants is not

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appropriate because too many issues are in dispute regarding whether Ms. Drescher’s rights
under Title VII have been violated. The court will address these arguments below.
STANDARD OF REVIEW
“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.” Sally Beauty Co., Inc. v. Beautyco, Inc.,
304 F.3d 964, 971 (10th Cir. 2002) (citing Fed. R. Civ. P. 56(c)). “An issue of material fact is
genuine if a reasonable jury could return a verdict for the non-movant.” Jenkins v. Wood, 81 F.3d
988, 990 (10th Cir. 1996) (citation omitted). A fact is material if it “might affect the outcome of
the suit under the governing law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“The moving party has ‘both the initial burden of production on a motion for summary
judgment and the burden of establishing that summary judgment is appropriate as a matter of
law.’” Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (quoting Trainor v.
Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2003)). The moving party can meet
its burden by “point[ing] to an absence of evidence to support the non-movant’s claim.” Id.
(quoting Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121, 1125 (10th Cir. 2000)). After the
moving party has met its burden, the non-moving party must “bring forward specific facts
showing a genuine issue for trial as to those dispositive matters for which it carries the burden of
proof.” Id. (quoting Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996). The Court must
“construe the evidence and the reasonable inferences drawn therefrom in the light most favorable
to the nonmovant,” Sally Beauty Co., 304 F.3d at 972 (citing King of the Mountain Sports, Inc. v.
Chrysler Corp., 185 F.3d 1084, 1089 (10th Cir. 1999)), but conclusory statements and attorney

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arguments submitted by the nonmoving party do not create a genuine issue of material fact, see
Adler v. Wal-mart Stores, Inc., 144 F.3d 664, 671-72 (10th Cir. 1998).
“[I]n determining whether a material issue of facts exists, a court may not disregard an
affidavit simply “because it conflicts with the affiant’s prior sworn statements,” a court may
“disregard a contrary affidavit when [it] conclude[s] that it constitutes an attempt to create a
sham fact issue.” Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986). To determine whether
an affidavit is an attempt to create a sham fact issue, courts should consider the following
relevant factors: “whether the affiant was cross-examined during his earlier testimony, whether
the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the
affidavit was based on newly discovered evidence, and whether the earlier testimony reflects
confusion which the affidavit attempts to explain.” Id.; see also Jackson v. Dillard’s Dep’t
Stores, Inc., 92 Fed. Appx. 583, 586-87 (10th Cir. 2003) (applying the Franks test and
concluding that the district court did not abuse its discretion in finding that plaintiff’s “affidavit
was an attempt to create a sham issue of fact in order to survive summary judgment”).
TIMELINESS OF CLAIMS
Defendants first argue that they are entitled to summary judgment because Ms.
Drescher’s claims are time barred. A plaintiff asserting a Title VII claim under the circumstances
applicable in this case must file a charge “within three hundred days after the alleged unlawful
employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1); Duncan v. Manager Dept. of Safety,
City and County of Denver, 397 F.3d 1300, 1308 (10th Cir. 2005) (“Title VII requires a litigant
to file a claims within 300 days of the alleged discriminatory conduct.”).
Defendants initially argued that several of Ms. Drescher’s claims were time barred
because they occurred more than 300 days before Ms. Drescher filed a Charge of Discrimination

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with the Equal Employment Opportunity Commission (“EEOC”). However, in a previous order
in this case, the court concluded that Ms. Drescher’s “March 2013 Intake Questionnaire and
supplemental addendum could themselves be reasonably construed as a Charge.” Mem. Decision
and Order, at 9, Nov. 2, 2015, ECF No. 30. Therefore, the proper point of reference for
determining whether Ms. Drescher filed a charge within 300 days of Defendants’ alleged
conduct is the Intake Questionnaire that Ms. Drescher filed with the EEOC on March 25, 2013,
and not the Charge of Discrimination that Ms. Drescher filed with the EEOC on October 7, 2013.
Even using the Intake Questionnaire as the point of reference, Defendants still argue that
some of Ms. Drescher’s claims are time barred, such as her failure-to-promote claim based on
her January 2011 application. Defendants also argue that Ms. Drescher has the burden of
establishing that her claims are timely and that she has not established that some of her
allegations in support of her hostile work environment claim occurred within 300 days of her
Intake Questionnaire. In her deposition, Ms. Drescher specifically testified that she did not know
when the last time the conduct supporting her allegations occurred.
Although the court agrees with Defendants that at least some of Ms. Drescher’s
allegations are time barred, the court does not deem it necessary to consider the timeliness of
each allegation because the court concludes that Defendants are otherwise entitled to summary
judgment on all of Ms. Drescher’s claims as discussed below.
EMPLOYER LIABILITY UNDER TITLE VII
Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for
an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national origin.” 42

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U.S.C. § 2000e-2(a)(1) (2012). By its express terms, “[t]he relief granted under Title VII is
against the employer, not the individual employees whose actions would constitute a violation of
the Act.” Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993) (citation omitted).
Therefore, according to the Tenth Circuit, “the proper method for a plaintiff to recover under
Title VII is by suing the employer, either by naming the supervisory employees as agents of the
employer or by naming the employer directly.” Id. (citation omitted). Applying this principle, the
Tenth Circuit has described the naming of supervisors in their official capacity as “superfluous”
when “the employer is already subject to suit directly in its own name,” Lewis v. Four B Corp.,
211 Fed. Appx. 663, 665 n.2 (10th Cir. 2005), and has established a general “rule that personal
capacity suits against individual supervisors are inappropriate under Title VII,” Haynes v.
Williams, 88 F.3d 898, 901 (10th Cir. 1996).
In this case, Ms. Drescher has alleged Title VII claims for discrimination, harassment,
and retaliation against all Defendants. Because all of her claims arise under Title VII, the claims
can only be maintained against her employer, Clinton City. The other Defendants are not Ms.
Drescher’s employer. For example, Clinton Fire Department is not Ms. Drescher’s employer
because it is a department of Clinton City. The individual defendants are also not Ms. Drescher’s
employer. Ms. Drescher argues that the individual defendants were named in their official
capacity, although that is not expressly stated in the Complaint. But, even if the individual
defendants were named in their official capacity, that would make their presence as defendants
superfluous, at best, and inappropriate, at worst. Therefore, the court concludes that, because
Clinton City, as the employer, is the proper Defendant in this Title VII action, the four individual
defendants and Clinton Fire Department should be dismissed as defendants.

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GENDER DISCRIMINATION – FAILURE TO PROMOTE
Failure to promote claims under Title VII follow the burden-shifting framework
established under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973). See Tran
v. Sonic Industries Services, Inc., 490 Fed. Appx. 115, 118 (10th Cir. 2012) (applying the
McDonnell Douglas burden-shifting framework to a failure to promote claim under Title VII).
Under that framework, the plaintiff “must carry the initial burden under [Title VII] of
establishing a prima facie case” of prohibited discrimination. McDonnell Douglas, 411 U.S. at
802. For a plaintiff to establish a prima facie case for failure to promote, the plaintiff must
demonstrate “(1) she was a member of a protected class; (2) she applied for and was qualified for
the position; (3) despite being qualified she was rejected; and (4) after she was rejected, the
position was filled by someone outside the protected class.” MacKenzie v. City and County of
Denver, 414 F.3d 1266, 1278 (10th Cir. 2005). “The burden then must shift to the employer to
articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” McDonnell
Douglas, 411 U.S. at 802. The plaintiff must then show that the “stated reason for [plaintiff’s]
rejection was in fact pretext.” Id. at 804. Courts “typically infer pretext in these contexts only
when the criteria on which the employers ultimately rely are entirely subjective in nature.”
Carter v. Mineta, 125 Fed. Appx. 231, 237 (10 th Cir. 2005) (citation omitted). “In the final
analysis, it is not Plaintiff’s perception of her qualifications but that of the managers that matter
in determining pretext.” Id.
To present her prima facie case, Ms. Drescher demonstrates that, as a part-time
firefighter, she twice applied and tested for a position as a full-time firefighter with Clinton City,
once in January 2011 and once in September 2012. In both instances, male applicants were given
the positions instead of Ms. Drescher. Therefore, Ms. Drescher argues that she was denied the

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position based on her gender. Defendants argue that Ms. Drescher did not meet her burden of
establishing a prima facie case because she was not qualified for the full-time position, and, even
if she was qualified, Defendants claim that she was not promoted for the legitimate,
nondiscriminatory reason that she had lower scores on her tests than the applicants who were
given the positions. Specifically, in January 2011, Ms. Drescher’s score placed her fifth out of
five applicants, and, in September 2012, Ms. Drescher’s score was lower than the applicant who
was hired. Ms. Drescher argues that the test scores are pretext because they were intentionally
lowered to prevent her from being promoted.
As evidence that Ms. Drescher’s test scores were intentionally lowered, Ms. Drescher
points to the document where her test scores were recorded for her September 2012 testing. In
two places, a score was circled and then crossed out or erased, and a lower score was circled
instead. In another place, Ms. Drescher argues that she should have been given a 5 when she was
actually given a 4. Even if each of the scores that Ms. Drescher identifies were changed to the
higher score, Ms. Drescher’s total score would only have been three points higher. Ms.
Drescher’s score was over 75 points lower than the applicant who was hired.
Given the facts above, the court concludes that Ms. Drescher has not met her burden of
showing that the legitimate, nondiscriminatory reasons offered by Defendants for not promoting
Ms. Drescher to a full-time firefighter were pretext for gender discrimination. Clinton City used
a scoring system to rate applicants, and, even giving Ms. Drescher the benefit of the higher
scores that were allegedly changed, Ms. Drescher scored significantly below the other applicants
on both of her tests. Because the evidence suggests that Ms. Drescher’s managers honestly
perceived her to be the less qualified applicant, and because Ms. Drescher has not provided
sufficient evidence to show that the scores were pretext for discrimination, the court concludes

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that Defendants are entitled to summary judgment on Ms. Drescher’s claim for gender
discrimination for failure to promote.
GENDER DISCRIMINATION – TERMINATION
In the absence of direct evidence, a claim of gender discrimination in a termination, like a
failure to promote claim under Title VII, also follows the burden-shifting framework of
McDonnell Douglas, which requires the plaintiff to prove a prima facie case, the defendant to
produce a legitimate, non-discriminatory reason for the termination, and the plaintiff to show that
the defendant’s reason is pretext for gender discrimination. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-805 (1973); see also Luke v. Hospital Shared Services, Inc., 513 Fed.
Appx. 763, 765 (10th Cir. 2013) (applying the McDonnell Douglas burden-shifting framework to
a termination claim under Title VII). “To set forth a prima facie case of discrimination, a plaintiff
must establish that (1) she is a member of a protected class, (2) she suffered an adverse
employment action, (3) she qualified for the position at issue, and (4) she was treated less
favorably than others not in the protected class.” Khalik v. United Air Lines, 671 F.3d 1188, 1192
(10th Cir. 2012). “The relevant inquiry is not whether the employer’s reasons were wise, fair or
correct, but whether it honestly believed those reasons and acted in good faith upon those
beliefs.” Luke, 513 Fed. Appx. at 766 (quoting Rivera v. City & Cnty. of Denver, 365 F.3d 912,
924-25 (10th Cir. 2004)). The Tenth Circuit has explained that courts “may not act as a super
personnel department that second guesses employers’ business judgments.” Richardson v.
Gallagher, 553 Fed. Appx. 816, 824 (10th Cir. 2014).
To establish her prima facie case, Ms. Drescher shows that she was terminated from her
position as a part-time firefighter with Clinton City while similarly situated males were not
terminated. Defendants argue that Ms. Drescher has not shown that she was treated less

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favorably than others not in the protected class because she has only identified two male
firefighters who were terminated for job performance issues while Ms. Drescher was employed
with Clinton City. Defendants also argue that Ms. Drescher was not qualified and that Clinton
City had legitimate, nondiscriminatory reasons for terminating her employment because of her
conduct. Specifically, Defendants discuss Ms. Drescher’s domestic issues with her husband, a
full-time Clinton City firefighter, that required police involvement and that caused problems at
work; a threatened suicide and intoxication by Ms. Drescher that led to her husband staying
home with her during one of his shifts; dishonest statements by Ms. Drescher to her other
employer, Davis Hospital, regarding her schedule at the fire station; and an alleged affair
between Ms. Drescher and a Davis County Sheriff Deputy that led to the Deputy’s attempted
suicide. In other words, Defendants argue that Ms. Drescher’s employment with Clinton City
was terminated for conduct that violated city policies, was dishonest, was inappropriate, and
reflected poorly on Clinton City.
In her response, Ms. Drescher first argues that she has established a prima facie case of
gender discrimination related to the termination of her employment. She says that she only listed
two male firefighters who had lost their jobs due to performance issues because she was the only
female employee there, other than a female who eventually moved and quit. She also argues that
her domestic issues apply equally to her husband, a full-time firefighter with Clinton City, and
that other male employees would also receive personal phone calls at work.
In her response, Ms. Drescher also spends more than an insignificant amount of time
arguing about whether the various allegations regarding her conduct are correct. For example,
Ms. Drescher argues that her dishonesty about her fire-station work schedule with her other
employer was actually a misunderstanding. Ms. Drescher also argues that she was not, in fact,

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suicidal on the night that her husband stayed with her during her shift and that she was not
actually involved in an affair with a Davis County Sheriff Deputy.
However, the relevant issue is not whether the allegations were accurate or correct but
whether Clinton City honestly believed that Ms. Drescher’s conduct occurred as alleged when it
made the decision to terminate her employment. Although Ms. Drescher has provided some
evidence that she may not have done some of the things that Defendants claim she did, this is not
material. Ms. Drescher has not provided any evidence to dispute the fact that, at the time of the
termination of her employment, Clinton City honestly believed that Ms. Drescher had been
dishonest, brought her personal life into the workplace, violated Clinton City policies, and
engaged in other conduct that reflected poorly on Clinton City. Therefore, even if Ms. Drescher
succeeded in establishing a prima facie case of discrimination, she has failed to show that
Clinton City’s reasons for terminating her employment were a pretext for gender discrimination,
so Defendants are also entitled to summary judgment on Ms. Drescher’s termination claim.
SEXUAL HARASSMENT/HOSTILE WORK ENVIRONMENT
In order to succeed on a claim for sexual harassment that creates a hostile work
environment, a plaintiff must prove that “the totality of the circumstances” suggest that
“discrimination based on sex has created a hostile or abusive work environment.” Semsroth v.
City of Wichita, 304 Fed. Appx. 707, 721-22 (10th Cir. 2008) (citations omitted). A plaintiff
establishes that a sexually hostile work environment existed by proving “(1) she is a member of a
protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on
sex; and (4) due to the harassment’s severity or pervasiveness, the harassment altered a term,
condition, or privilege of the plaintiff’s employment and created an abusive working
environment.” Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007) (internal quotation

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marks, alteration, and citation omitted); see also Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,
67 (1986) (“For sexual harassment to be actionable, it must be sufficiently severe or pervasive
‘to alter the conditions of [the victim’s] employment and create an abusive working
environment.” (citation omitted)).
“Under Title VII, harassment is actionable only when it is ‘sufficiently severe or
pervasive’ such that a reasonable person would find the work environment to be hostile or
abusive and the employee in fact perceived it to be so.” Debord v. Mercy Health System of
Kansas, Inc., 737 F.3d 642, 650 (10th Cir. 2013). To determine whether a reasonable person
would find the work environment to be hostile or abusive, courts look to “the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.” Id. at 651-52 (citation omitted). “Run-of-the-mill boorish, juvenile, or annoying
behavior that is not uncommon in American workplaces is not the stuff of a Title VII hostile
work environment claim.” Gaff v. St. Mary’s Reg’l Med. Ctr., 506 Fed. Appx. 726, 728 (10th
Cir. 2012) (alteration and citation omitted). “[S]imple teasing, offhand comments, and isolated
incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and
conditions of employment.’” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)
(citations omitted). “Properly applied, [these standards for judging hostility] will filter our
complaints attacking ‘the ordinary tribulations of the workplace, such as the sporadic use of
abusive language, gender-related jokes, and occasional teasing.’” Id. (citation omitted). A court
analyzing a sexual harassment claim may also take into account the “work environment.” Gross
v. Burggraf Const. Co., 53 F.3d 1531, 1538 (10 th Cir. 1995) (citation omitted) (“In the real
world of construction work, profanity and vulgarity are not perceived as hostile or abusive.”).

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If a plaintiff does succeed in establishing a hostile work environment claim based on
vicarious liability, “an employer can take advantage of an affirmative defense—the Faragher
defense—by showing both that the employer ‘exercised reasonable care to avoid harassment and
to eliminate it when it might occur’ and that the complaining employee ‘failed to act with like
reasonable care to take advantage of the employer’s safeguards.’” Debord v. Mercy Health
System of Kansas, Inc., 737 F.3d 642, 650 (10th Cir. 2013) (quoting Faragher v. City of Boca
Raton, 524 U.S. 775, 805 (1998)).
Ms. Drescher claims that she was subject to the following conduct at work, which she
argues constitutes sexual harassment and a hostile work environment: belittling comments;
sexual references; crude jokes; sexually oriented jokes; questions about her sex life; derogatory
remarks about females; discussions about looking down female patients’ shirts; male employees
walking in on her while she was showering, even after telling employees not to; sexually
oriented pictures; male employees walking around wearing only a towel; and a lower standard
locker room, bathroom, and changing area than the males. Ms. Drescher argues that the conduct
she was subjected to became so severe that it led to her cutting her work schedule and eventually
to her being fired.
Defendants first argue that Ms. Drescher is relying on sham facts in her declaration that
inexcusably contradict the admissions she made under oath during her deposition. Specifically,
in Ms. Drescher’s deposition, she complained of isolated incidents, and she typically could not
recall when the specific incidents took place. In her declaration accompanying her response to
Defendants’ summary judgment motion, Ms. Drescher takes the position that the conduct was
pervasive and that it occurred regularly, even daily. Defendants argue that these new facts are

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sham facts because they directly contradict Ms. Drescher’s deposition testimony without newly
discovered evidence or a need to clear up confusion in her earlier testimony.
Defendants then argue that Ms. Drescher cannot show that any of the conduct complained
of occurred because of her gender. See Oncale v. Sundower Offshore Services, Inc., 523 U.S. 75,
80 (1998) (Title VII does not prohibit all verbal or physical harassment in the workplace; it is
directed only at ‘discriminat[ion] . . . because of . . . sex.’”). Specifically, Defendants note that
none of the comments were directed at Ms. Drescher, that male firefighters used the same locker
room that Ms. Drescher used even when she was not there, and that Ms. Drescher has not shown
that the firefighters only walked around wearing a towel when she was at work. Defendants also
note that Ms. Drescher has not provided any evidence that the photographs on the wall were
posted to harass Ms. Drescher, especially given the facts that the women were clothed and the
photographs were taken down when Ms. Drescher commented on them.
Defendants further argue that Ms. Drescher failed to meet her burden of establishing that
the purported harassment was sufficiently severe or pervasive. According to the Defendants, the
conduct complained of amounts to nothing more than simple teasing, offhand comments, and
isolated incidents, which are insufficient to constitute sexual harassment or create a hostile work
environment. Defendants argue that this is especially true in the work environment of a fire
station where employees are in close quarters for long hours and where the workplace includes
locker rooms, showers, and a laundry room. Defendants also argue that the Fire Chief only asked
about the paternity of Ms. Drescher’s child on one occasion because it became an issue in the
workplace that impacted a Deputy in the Davis County Sheriff’s Department, which works
closely with the Clinton Fire Department, and her husband, who is a full-time firefighter for
Clinton City.

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Finally, Defendants argue that the Faragher defense applies because Clinton City has a
policy for reporting sexual harassment, which requires employees to report sexual harassment to
their department head or the City Manager, and Ms. Drescher failed to provide evidence that she
took advantage of the corrective opportunities provided by Clinton City.
The court concludes that Defendants are entitled to summary judgment on the sexual
harassment and hostile work environment claim. The court agrees that Ms. Drescher’s
declaration, in addition to including statements that are not material or that are conclusory, also
attempted to create sham facts. Specifically, Ms. Drescher’s statements regarding the daily
occurrence of allegedly harassing conduct directly contradicts her previous statements in her
deposition where she described the harassment as isolated incidents and stated that she could not
identify the dates of the incidents. Because the inconsistencies in Ms. Drescher’s declaration are
not due to a lack of evidence at the time of the deposition or an attempt to clear up confusion in
Ms. Drescher’s earlier testimony, the statements in Ms. Drescher’s declaration can be considered
sham facts.
Disregarding the sham facts in Ms. Drescher’s declaration, the court concludes that Ms.
Drescher has not shown that the purported harassment was sufficiently pervasive or severe to
alter the conditions of Ms. Drescher’s or create an abusive work environment, especially given
the typical work environment that exists in a fire station. Ms. Drescher has also failed to show
that she sufficiently took advantage of Clinton City’s harassment policy. Therefore, the court
concludes that Defendants are entitled to summary judgement on Ms. Drescher’s claim for
sexual harassment and a hostile work environment.

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RETALIATION
Claims for retaliation under Title VII also follow the McDonnel Douglas framework
described in detail above. “To demonstrate a prima facie case of [Title VII] retaliation, a plaintiff
must show ‘(1) [she] engaged in protected opposition to Title VII discrimination; (2) [she]
suffered an adverse employment action; and (3) there is a causal connection between the
protected activity and the adverse employment action.’” McCauley v. Board of Com’rs for
Bernalillo County, 603 Fed. Appx. 730, 734-35 (10th Cir. 2015) (quoting Meiners v. Univ. of
Kan., 359 F.3d 1222, 1229 (10th Cir. 2004)). To show a causal connection, a plaintiff may rely
on the “temporal proximity between an employer’s knowledge of protected activity and an
adverse employment action” as long as “the temporal proximity [is] ‘very close.’” Clark County
School District v. Breeden, 532 U.S. 268, 273-74 (2001) (citations omitted). If the plaintiff
establishes a prima facie case of retaliation, the burden shifts to the defendant to articulate a
legitimate, non-retaliatory reason for the defendant’s employment decision. Daniels v. United
Parcel Service, Inc., 701 F.3d 620, 638 (10th Cir. 2012). After the defendant articulates a
legitimate, non-retaliatory motive for its actions, the burden shifts back to the plaintiff to show
such reason is merely a pretext for retaliation. Id. at 639. To show pretext, the plaintiff must
“produce evidence of such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the [defendant’s] proffered stated reasons, that a reasonable jury could find
them unconvincing.” Id. Despite the burden-shifting framework, “[t]he burden of proof to
establish . . . retaliation ‘remains at all times with the plaintiff.’” See Kenfield v. Colorado Dept.
of Public Health & Environment, 557 Fed. Appx. 728, 731 (10th Cir. 2014) (quoting Watson v.
Fort Worth Bank & Trust, 487 U.S. 977, 986 (1988)).

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The Tenth Circuit has explained that courts “may not act as a super personnel department
that second guesses employers’ business judgments.” Richardson v. Gallagher, 553 Fed. Appx.
816, 824 (10th Cir. 2014). The United States Supreme Court recently held that for a Title VII
retaliation claim, a plaintiff must establish that the defendant would not have taken the adverse
employment action “but for” the impermissible motive. University of Texas Southwestern
Medical Center v. Nassar, 133 S. Ct. 2517, 2533 (2013).
Although Ms. Drescher claims that she told one supervisor about co-workers making
crude jokes and another supervisor that she was no longer showering at work because she was
tired of being walked in on, Defendants argue that Ms. Drescher has not provided any evidence
to link her verbal statements to her eventual termination in 2013. Therefore, Defendants argue
that Ms. Drescher failed to even establish her prima facie case. However, even if Ms. Drescher
were able to establish her prima facie case, Defendants argue that Clinton City has articulated
legitimate, non-retaliatory reasons for its termination decision, and Ms. Drescher cannot establish
that those reasons are pretext for retaliation and that, but for her statements, her employment
would not have ended.
The court agrees that Ms. Drescher failed to meet her burden to establish a prima facie
case or that Clinton City’s reasons for terminating her employment were pretext for retaliation.
Ms. Drescher did not establish temporal proximity between her statements and the eventual
termination of her employment, and she has not pointed to any other admissible evidence that
links her statements to her eventual termination. Ms. Drescher has also failed to show that
Clinton City’s non-retaliatory reasons for terminating her employment are pretext for retaliation
or that, but for her statements, her employment would not have ended. Therefore, Defendants are
entitled to summary judgment on Ms. Drescher’s retaliation claim.

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PUNITIVE DAMAGES
Although Title VII allows for punitive damages in some circumstances, Title VII
specifically excludes punitive damages when the respondent is “a government, government
agency, or political subdivision.” 42 U.S.C. § 1981a(b)(1). Defendants argue that Clinton City
falls into the category of entities excluded from punitive damages under Title VII. In her
response, Ms. Drescher conceded that Defendants are entitled to summary judgment on Ms.
Drescher’s punitive damages claim, and the court agrees.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Defendants’ Motion for
Summary Judgment is GRANTED. The Clerk of Court is directed to close the case and enter
judgment in favor of Defendants.

DATED this 10th day of March, 2017.

BY THE COURT:

_________________________________________
DALE A. KIMBALL
United States District Judge

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