United States District Court, D. South Dakota, Central Division
OPINION AND ORDER DENYING MOTION FOR SUMMARY
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
Vern Olson (Olson) sued his former employer Defendant City of
Winner (the City) alleging a violation of the Age
Discrimination in Employment Act (ADEA), 29 US.C. § 621
et seq. Doc. 1. The City moved for summary judgment,
Doc. 22, which Olson opposed, Doc. 37. For the reasons
explained herein, this Court denies the City's Motion for
Facts in Light Most Favorable to Olson
ruling on the City's Motion for Summary Judgment, this
Court must view the facts in the light most favorable to
Olson as the non-moving party and resolve any genuine dispute
of material fact in favor of Olson. Fed.R.Civ.P. 56; EEOC
v. CRST Van Expedited. Inc., 679 F.3d 657, 686 (8th Cir.
2012). This Court of course is making no findings of fact in
this Opinion and Order.
The City's Governance Structure and Policies
case concerns Olson's employment with the City and the
cessation of that employment. The City is a rural
municipality in South Dakota that is governed by an elected
mayor and six elected council members. Doc. 34-2 at
The City employs approximately sixty-five people in ten
departments, including a Street Department and a
Parks/Cemetery Department. Doc. 35-18. Olson worked primarily
for the Parks/Cemetery Department from May of 2010 to October
6, 2015. Doc. 34-2 at 42; Doc. 35-19 at 2.
City departments are each supervised by a department head.
Doc. 34-2 at 8-12. The department head of the Parks/Cemetery
Department during Olson's employment was Calvin Cerv
(Cerv). Doc. 25 at ¶¶ 1-2. The City's
department heads report to the City Finance Officer, who
serves as the City's human relations director. Doc. 34-2
at 8; Doc. 34-3 at 4. The City Finance Officer during
Olson's employment was Rhonda Augspurger (Augspurger).
Doc. 34-2 at 4. The City Finance Officer meets with
department heads to go over the City Council meeting agenda
and coordinate work duties. Doc. 34-2 at 9, 38.
City Finance Officer typically contacts the Department of
Labor to post the required advertisement for open positions
when the City plans to hire a new employee. Doc. 34 at 12-13.
The City Finance Officer collects applications, takes them to
the department committee, and then the committee decides whom
they want to interview. Doc. 34-2 at 10. The City Finance
Officer also typically takes notes at the interviews and at
council meetings. Doc. 34-2 at 10.
City is governed by written personnel policies. Doc. 35-3.
Because Olson argues that the City disregarded its policies
in handling his employment and termination, and that it is
evidence of pretense for age discrimination, pertinent parts
of the policies are described herein. The first page of the
City's Personnel Policy handbook states:
The City Finance Officer is responsible for the
administration of this policy and the practices and
procedures stated herein shall be the established personnel
policy for all full-time employees of the City of Winner,
with the exception of the Police Department, which has a
personnel policy governing such employees.
All Department heads shall follow and enforce all the
personnel rules and procedures as prescribed in the personnel
Doc. 35-3 at 3.
City has two equal employment opportunity policies. The first
one states, in relevant part:
The City of Winner does hereby declare it is a fundamental
policy of the City of Winner to provide equal opportunity to
all of its employees and applicants for employment (skilled,
unskilled and professional) and to assure that mere shall be
no discrimination against any person on the basis of... age .
.. unless related to a bonified [sic] occupational
requirement. To this end, the City of Winner will take steps
to equalize opportunity for employment at all levels of
denied equal opportunity; minority group members, women and
the handicapped ....
All employees shall be afforded equal employment opportunity
during their term of employment All administrators and
supervisors are responsible for and shall be committed to
achieving and promoting an equal opportunity program.
Adoption of this document reaffirms the City of Winner's
policy of nondiscrimination in employment, including but not
limited to the following: recruitment, selection, placement,
testing, promotion, transfer, discipline, demotion, layoff
Doc. 35-3 at 5. The second "Non-Discrimination
Policy" states, in relevant part, that "[n]o
applicant for employment with the City of Winner shall be
favored or discriminated against because of their... age
...." Doc. 35-3 at 6.
City's hiring policy states:
Selection of the employee will be made by the governing body
and the head of the department concerned prior to
notification of that applicant. This shall pertain to all
applicants, either for full time or seasonal employees.
The department committee and the department supervisor will
review applications for employment.
The committee and supervisor will conduct interviews with
selected applicants in order that recommendations may be made
to the governing body for final approval at their next
regular meeting prior to notification of selected individual.
This shall pertain to all applicants, either full-time or
Doc. 35-3 at 5-6.
City also has a seniority policy. Doc. 35-3 at 4. It states:
Seniority is defined as priority of employment to which a
permanent full-time employee is entitled, by reason of length
of service with the City. Seniority of any employee shall be
established; including vacation, sick leave and other
authorized leaves of absence taken since the date of
Any and all seniority privileges shall be forfeited by the
resignation or dismissal of an employee. Seniority shall be
considered for promotional purposes, in computing years of
service for the purposes of allowed annual leave, in
determining prior selection of time for annual vacations and
in other such situations as deemed advisable by the City.
Doc. 35-3 at 4.
City's resignation policy requires that "[a]n
employee is requested to give two weeks notice. Upon failure
to give two weeks notice, accrued vacation leave shall not be
paid." Doc. 35-3 at 11. Sick leave is also calculated
with a two-week notice. Doc. 35-3 at 8.
City's disciplinary policy provides that the City
"shall exercise its right to discipline any employee
only for good and just cause." Doc. 35-3 at 9. One of
several forms of discipline is authorized, including an oral
reprimand, which is described as follows: "A Department
Head may discipline the employee by oral reprimand at any
time. No. written notice will be required and no record need
be filed in the employee's file." Doc. 35-3 at 9. An
oral reprimand is the most minor discipline a person can
receive. Doc. 34-2 at 30. An oral reprimand does not have to
be documented. Doc. 34-2 at 30. The City's policy for a
written reprimand requires:
The Department Head will notify the employee in writing the
reasons for the disciplinary action and a copy of the written
notice, initialed by the employee, will be dated and placed
in the employee's file. If the employee refuses to
initial the notice, the Department Head to that effect shall
make a notation.
Doc. 35-3 at 10.
City's dismissal policy states:
The decision to dismiss an employee is to be determined by
the Department Head and the City Council. Dismissal
proceedings will be taken when an employee's work,
conduct or character are considered unsatisfactory. The
employee is to be notified in writing of this dismissal and
the reasons therefore, by the Department Head. The statement
shall be initialed by the employee and dated and placed in
the employee's personnel file. If the employee refused to
initial the statement, the Department Head to that effect
shall make a notation.
Doc. 35-3 at 10. It is the policy of the City "to ensure
that all full time employees who voluntarily end employment
with the City receive an opportunity for an exit interview...
and an exit interview' questionnaire." Doc. 35-3 at
12-13. The City provides a grievance procedure "to
provide a just and equitable method for the resolution of
grievances with discrimination, coercion, restraint or
reprisal against any employee who may submit to be involved
in a grievance." Doc. 35-3 at 10. However, employees
"who voluntarily terminate their employment will have
their grievances ...