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Drescher v. Clinton City

United States District Court, D. Utah, Northern Division

March 10, 2017




         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.


         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.

         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.

         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.


         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 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.


         “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 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 ...

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