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Lee v. Olsen

United States District Court, D. Idaho

September 29, 2016

ANDREA M. LEE, Plaintiff,


          Ronald E. Bush Chief U.S. Magistrate Judge.

         Pending before the Court in the above-entitled matter is Defendants' Motion for Summary Judgment (Dkt. 31). Having heard oral argument and being otherwise advised, the Court enters the following memorandum decision and order.


         Plaintiff Andrea Lee ("Lee") was hired by the Jefferson County Sheriffs Department in 1993 as a driver's license clerk. (Declaration of Andrea Lee ("Lee Decl."), Dkt. 33-7, ¶ 3.) In the late 1990's, Lee was promoted to Driver's License Supervisor. (Id. at ¶ 4.) In 2005, Lee was given the additional responsibility of being the bookkeeper of the Department. (Id. at ¶ 5.) Defendant Blair Olsen ("Olsen") was the Sheriff of Jefferson County at all times during Lee's employment and was her supervisor. (Id. at ¶ 6.)

         On August 23, 2007, a dress code standard was implemented in the driver's license/civil department of the Sheriffs Department that required female employees to wear a skirt or dress to work, one day a week. It also required that a uniform was to be worn two days a week and on Fridays, denim pants or skirt could be worn. (Affidavit of Blake Hall ("Hall Aff"), Ex. B, Deposition of Blair Olsen ("Olsen Dep."), Dkt. 31-10, Ex. 4 (dress code policy)). There was not any male employees in the driver's license division from 2007 to 2012, nor was their a dress code for male employees, if there were any. (Lee Decl. ¶ 9; Olsen Dep., 62:19-23.) On the days when Lee wore a dress or skirt to work, she attests that she was subjected to ogling and inappropriate comments by Olsen and other male employees. (Lee Decl., ¶ 11.) This included that Olsen would "smile and watch" her and Olsen would tell Lee, "you look nice today" on days she wore a dress or skirt, but not when she wore pants. (Hall Aff, Ex. A, Deposition of Andrea Lee ("Lee Dep."), Dkt. 31-9, 122:15-19, 125:7-9.) Lee never made a complaint about the dress code between the time the dress code was adopted in 2007 and September 2012.[1] (Id. at 116:7-18.) In her deposition she stated that she was "not comfortable with the policy" and that she expressed to her "employees" that she felt the policy "was harassment." (Id. at 113:24-116:3.)

         On July 1, 2010, the Jefferson County Commissioners issued a "Discriminatory Workplace Harassment Policy and Complaint Procedure" ("the Discrimination Policy.") (Olsen Dep., Ex. 3.) The purpose of the Discrimination Policy was "to clearly establish Jefferson County's commitment to work to provide a work environment free from unlawful harassment, to define discriminatory harassment, and to set forth procedures for investigating and resolving internal complaints of harassment." (Id.) The Discrimination Policy expressly provided for investigation and disciplinary action, including termination, for those who were found to be in violation of the policy. (Id.) For an employee who felt harassed or discriminated against, the Discrimination Policy contains a "Complaint Procedure." (Id.) The Complaint Procedure specifically provides numerous options for reporting the employee's complaint to: "their supervisor, Department Head, Risk Manager (County Clerk), Payroll Deputy Clerk, or County Prosecutor, legal counsel for the County." (Id.)

         In November or December of 2011, Lee began to discover Olsen was misuing public funds, specifically that he had issued a cell phone to his wife in Lee's name. (Lee Dep., ¶ 87:24-88:1.) Lee was never issued a cell phone by the Sheriffs Department or Jefferson County. (Lee Decl., ¶ 12.) A local newspaper, the Jefferson Star, investigated the issue and spoke with Lee who informed the newspaper she had never been issued a cell phone by the county. (Id. at ¶ 15.) Lee reported Olsen's misuse of funds in April 2012 to Maria Hurst in the clerk's office. (Lee Dep., 159:9-160:12.)

         In the spring and fall of 2012, Sheriff Olsen was in a reelection campaign. (Affidavit of Blair Olsen ("Olsen Aff"), Dkt. 31-3, ¶ 11.) Lee openly supported both of Olsen's opponents. (Id.)

         On or about July 30, 2012, Jefferson County Sheriffs Office enacted an amended media policy that all employees had to sign. (Counsel Declaration ("Dinius Decl."), Ex. A, Olsen Dep., Ex. 6, Dkt. 33-2.) The media policy was prepared by Lexipol, a national organization that prepares standards for sheriffs offices around the United States and it was initially adopted by the Jefferson County Sheriffs Office in 1995. (Olsen Aff, ¶ 12.) Initially, Lee refused to sign the policy, but eventually she did sign it. (Lee Decl., ¶¶ 16-17.) Lee became aware that Olsen used a public gasoline credit card for personal use, would use a Sheriffs Department vehicle to travel and then submit requests for mileage reimbursement as if he had used his own vehicle, and also improperly used or approved of his deputies' use of public funds to purchase meals. (Lee Decl., ¶¶ 18-20.) Olsen also used public funds to purchase a personal, lifetime membership to the National Rifle Association. (Id. at¶21.)

         During 2012, Olsen began to "systemically strip" Lee of her duties and responsibilities as Driver's License Supervisor and bookkeeper by prohibiting Lee's assistance with preparing the budget to the County Commissioners and assigning secretarial work that had been performed by Lee for years to other employees. (Lee Decl., ¶¶ 27-29.) Olsen also began directly addressing employees under Lee's supervision, thereby circumventing her authority and also embarrassed Lee in front of other employees by shunning her and creating an atmosphere of stress and hostility. (Id. at 30-31.) Lee testified that the "shunning" she experienced included Olsen excluding her from conversations and she was left out of things "the office experienced as a whole." Olsen was not as friendly and welcoming as he had been previously with her. (Lee Dep. at 80:17-82:18.)

         Lee attempted to communicate with Olsen regarding her bookkeeping duties, but Olsen refused to communicate with her. (Lee Decl., ¶¶ 33.) Olsen told Lee that he was going to install a video camera in her office in the Driver's License Department. (Id. at ¶ 34.)

         On August 31, 2012, Lee notified the Jefferson County Commissioners through her attorney, in writing, that she was being retaliated against by Sheriff Olsen because she raised concerns regarding his misuse of funds. (Lee Decl., Ex. A. (Dkt. 33-8.)) This letter asked that Lee have a new supervisor assigned to her. (Id.) She did not receive a response. (Lee Decl., ¶ 38.) There was no mention of the dress code policy, or any gender discrimination or harassment in the letter. (Lee Decl., Ex. A.)

         On September 14, 2012, Lee requested leave so she could have a surgery performed. (Olsen Aff, ¶ 13.) Plaintiff eventually requested to be out of the office from November 1, 2012, [2] to November 19, 2012. (Id.) Lee did not return to work on November 19, 2012. On December 2, 2012, Lee informed Olsen that she had complications with her surgery and would be using her remaining leave and returning to work on December 29, 2012. (Id.) Olsen attempted to reach Lee by telephone prior to December 29, 2012, but Lee did not answer the phone or return any of Olsen's phone calls. (Id.)

         On December 31, 2012, Lee left a letter in Olsen's mailbox by which she resigned her position with the Jefferson County Sheriffs Office. (Lee Dep., Ex. B (Dkt. 31-9)). In the letter, Lee stated she was subjected to a hostile work environment created by Olsen and that she was resigning because of the disrespect she had for Olsen and his unethical ways. (Id.)


         Summary judgment is appropriate where a party can show that, as to any claim or defense, "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). One of the principal purposes of summary judgment "is to isolate and dispose of factually unsupported claims Celotex Corp. v. Catrett, 477 U.S. 317, 323-34 (1986). It is "not a disfavored procedural shortcut, " but is instead the "principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). There must be a genuine dispute as to any material fact - a fact "that may affect the outcome of the case." Id. at 248.

         The evidence must be viewed in the light most favorable to the non-moving party, and the Court must not make credibility findings. Id. at 255. Direct testimony of the non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence. See McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).

         The moving party bears the initial burden of demonstrating the absence of a genuine dispute as to a material fact. See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party's case. See Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000).

         This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in his favor. See Devereaux, 263 F.3d at 1076. The non-moving party must go beyond the pleadings and show "by her [ ] affidavits, or by the depositions, answers to interrogatories, or admissions on file" that a genuine dispute of material fact exists. Celotex, Ml U.S. at 324.


         A. Count I - ...

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