NEEDREPLACE, Case No. 12–2084–JTM.

CourtNew York District Court
Writing for the CourtJ. THOMAS MARTEN
Citation7 F.Supp.3d 1162
Docket NumberCase No. 12–2084–JTM.
Decision Date21 March 2014

7 F.Supp.3d 1162

Erin OLSON, Plaintiff,

Case No. 12–2084–JTM.

United States District Court, D. Kansas.

Filed March 21, 2014

Motion granted.

[7 F.Supp.3d 1165]

Luanne Leeds, Leeds Law, LLC, Topeka, KS, for Plaintiff.

Lisa M. Brown, Ron D. Martinek, Parker & Hay, LLP, Topeka, KS, for Defendant.


J. THOMAS MARTEN, District Judge.

Plaintiff Erin Olson brings the present claim against the defendant Shawnee of County Board of Commissioners, alleging that the defendant violated Title VII of the Civil Rights Act by various actions of the Shawnee County Sheriff during her employment as a civilian with that office. The defendant has moved for summary judgment, and following a review of the evidence, the court finds that the motion should be granted.1

Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir.1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir.1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir.1987).

In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. “In the language of the Rule, the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita ). One of the principal purposes of the summary

[7 F.Supp.3d 1166]

judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court does not include as findings of fact arguments by counsel, factual assertions which are unaccompanied by direct citation to evidence in the record, or events which have no material relevance to the issues at hand.

Findings of Fact The Sheriff's Office

Richard Barta became Sheriff of Shawnee County, Kansas in March 2000. He retired in April, 2012. As the Sheriff, Barta was the appointing authority for his office, making all personnel decisions. Any promotion or status change required his approval. He also had the power to institute and veto general orders.

The Shawnee County Human Resources Policy Manual applies to the Sheriff's Office. Policy 9.0 of that manual sets forth a policy of progressive discipline, which applies to classified employees, and to union members, to the extent that their Memorandum of Understanding (MOU) is otherwise silent. This policy “involves four (4) steps of progressive discipline for infractions of a similar nature and which are of a nature not serious enough to constitute just cause for immediate suspension or discharge.” The four steps of progressive discipline are:

A. First Offense—Documented Verbal Reprimand

B. Second Offense—Written Reprimand

C. Third Offense—Suspension

D. Fourth Offenses—Termination

The steps are “intended to serve as a warning to the employee that their behavior needs to improve in the specified area and that repeated incidents may result in additional discipline up to and including termination.”

In some cases, the progressive discipline policy may not be used. Section 9.3 provides: “The level of discipline to be applied is at the sole discretion of the appointing authority and need not be progressive in nature if the situation warrants.” Thus, the decision maker may skip a step or all of the steps according to the severity of the violation.

The manual provides that all disciplinary actions are subject to a grievance procedure.

The Shawnee County Human Resources Department (HRD) keeps the records for all county employees. This includes the employee's Personnel Status Change Form, which tracks position, pay, and status. Supervisors and the HRD fill out a Change Form whenever an employee receives a new position, promotion, raise, or other change in his employment.

The Accreditation and Training Unit

Sheriff Barta decided to obtain accreditation from the Commission on Accreditation for Law Enforcement Agencies (CALEA). This accreditation requires passing an on-site CALEA assessment. An applicant agency must prove that its standards are in compliance with those of CALEA. The Sheriff's Office first received a CALEA accreditation in 2004. Since that time, Sheriff Barta has appointed Lieutenant Scott Gilchrist, Sergeant Steve Luttjohann, and Sergeant Justin Vest to serve as Accreditation and Training Unit (ATU) Accreditation Managers. Luttjohann and Vest were Accreditation Managers during Olson's employment.

Luttjohann was hired to work for the Sheriff's Office in August 1993. Before that, he had served four years in the United

[7 F.Supp.3d 1167]

States Marine Corps, and attained an Associate of Arts Degree in Criminal Justice from Washburn University. In addition to the ATU, Luttjohann worked in the Patrol Division, Fugitive Warrants division, and the Civil Process Division.

Vest has been employed at the Sheriff's Office since May 2002. He had a Bachelor's of Science degree in Criminal Justice from Washburn University, and later obtained a Masters of Criminal Justice. Vest has worked in the Patrol Division, the Operations Division, and the ATU.

When Luttjohann and Vest were hired, each had to attend Kansas Law Enforcement Training Center (KLETC) training and comply with its training requirements. They were also Fraternal Order of Police (FOP) members.

Shawnee County and the FOP have entered into a MOU which governs the terms and conditions of union members' employment. MOU Section 12.0 governs the salary for union members, and ties their pay to the FOP Wage scale. Thus, the pay of both Luttjohann and Vest was determined under that scale, which is based wholly on rank and years of service. When he began working in the ATU, Vest was paid $25.08 per hour. In 2009, Luttjohann was paid $27.15. In December of 2010, this increased to $27.80 per hour.

Luttjohann and Vest had training duties in addition to their work as Accreditation Managers. They developed and ran the Agency's in-service program, maintained training records, and monitored each deputy's continuing education record for compliance.

Luttjohann and Vest were also assigned Sheriff's Office vehicles, which each drove to and from work and in performing various job related responsibilities. Both were expected to insure that the vehicle was always well-maintained and in working order. Under MOU Section 13.9, an Officer with an assigned vehicle is required to respond to an emergency calls. In addition, as drivers of marked vehicles, Luttjohann and Vest were obligated to stop any time they saw an emergency requiring immediate attention.

While working in the ATU, Luttjohann and Vest responded to various emergency calls. From December 1, 2009 through July 29, 2010, Luttjohann was responded to a non-injury auto-accident; five traffic hazards; a report of a stolen vehicle; a report of an injured animal; a report of a theft; and received information during that time. From August 2010 through May 2011, Vest responded to a service request; five reports of suspicious vehicles; a report of a prowler; a non-injury auto accident; an injury automobile accident; picked up a prisoner; received information; and performed a traffic stop.

Olson has acknowledged that Luttjohann was a Law Enforcement Officer, and he had legal duties associated with that position:

Q. You agree that Luttjohann was a certified law enforcement officer?

A. He was a certified law enforcement officer.

Q. That as a certified law enforcement officer, Luttjohann may have other duties that he would need to legally perform in that capacity beyond that of an Accreditation Manager, true?

A. I would say that he under the scope of the law had the responsibility to perform those when necessary.


A. I am comparing myself to him in the fact that we did equal job duties when he was at—when he was in that position. We did equal work.

[7 F.Supp.3d 1168]

Q. But he had additional responsibilities, true?

A. I would say that under the scope of the law he could perform those other duties.

Q. So are you saying then—are you agreeing that under the scope of the law, he had those additional duties, he was legally required to do them?

A. If he was legally required to do them, then, yes, he was supposed to do them.

Luttjohann and Sgt. Vest were each issued a firearm. They were expected to be fully trained on the use of their issued firearms and to properly maintain the firearms in operating condition.

Olson testified that she did not use the equipment associated with the duties of an Officer:

Q. Use of firearms, weapons, patrol car, two-way radio,...

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