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Olson v. City of Winner

United States District Court, D. South Dakota, Central Division

August 10, 2019

VERN OLSON, Plaintiff,
CITY OF WINNER, Defendant.



         Plaintiff 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 Summary Judgement.

         I. Facts in Light Most Favorable to Olson

         In 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.

         A. The City's Governance Structure and Policies

         This 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 9.[1] 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.

         The 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.

         The 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.

         The 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 manual.

Doc. 35-3 at 3.

         The 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 and termination.

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.

         The 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 seasonal employees.

Doc. 35-3 at 5-6.

         The 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 employment.
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.

         The 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.

         The 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.

         The 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 ...

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