Failed Severance Package Not Basis For Discrimination Lawsuit

Kimberly Andree was a lieutenant with the Eagle County, Colorado Sheriff’s Department. In 2010, the County was facing significant revenue reductions, and the Board of County Commissioners told the Sheriff that he would need to cut his Department’s budget by $2 million. During this same time period, the County offered early retirement packages to its employees.

At the end of June 2010, Andree met with the Sheriff and told him that she was considering retiring, but that she wanted a severance package, including two years of salary, 18 months of insurance benefits, and other benefits, including assistance in maintaining her Peace Officer Standards and Training certification and concealed weapons permit. The Sheriff asked Andree to continue working until after his upcoming election, but “reportedly” agreed to the severance package, saying, “I like it. Let’s do it.” In anticipation of her pending retirement, Andree began training her replacement, Jesse Mosher, who was already employed by the Department, on some of her job duties.

On August 17, 2010, Andree sent the Sheriff an email, with an attached list of items to include in her severance package. A month later, the Sheriff met with Andree and told her that the County would not agree to give her the proposed severance package. In response, Andree sent an email with a proposal for another package, but the County responded by saying it had “no wiggle room” regarding the amount Andree could receive for her severance.

As all this was happening, the County attorney asked Andree to gather information for an investigation pertaining to a charge of gender discrimination filed by another employee of the Sheriff’s Department, Sharon McCole-Pons. After doing an investigation, Andree told the County attorney that he should treat McCole-Pons well in an upcoming mediation because Andree could understand the point McCole-Pons was making in her charge.

The Sheriff was reelected on November 9, 2010. On November 15, 2010, he notified Andree that he was eliminating her position for budgetary reasons, and that her job duties were being redistributed to other employees including, primarily, Mosher. Andree then filed a discrimination lawsuit under Title VII of the Civil Rights Act, claiming she was terminated for expressing her opinion on the McCole-Pons complaint.

To prevail, Andree had to show that the County’s asserted reason for her termination – budgetary problems – was a pretext, and that its true motivation was retaliation. This was a hurdle, a federal court found, that Andree could not meet.

The Court noted that “although Andree does not dispute that the budget for the Sheriff’s Department needed to be cut by $2 million, she contends that there were multiple budgetary options to decrease costs and increase revenues so as to make the requisite cuts without eliminating her position. Specifically, she provides evidence of other proposed budgets that were considered by Defendant, which did not include cutting her position. In other words, Andree questions whether it was truly necessary for the Department to eliminate her position, or whether other positions – or budget line items, for that matter – should have been eliminated instead. In doing so, she is challenging a business decision of the Sheriff’s Department.

“However, the law is well-established that Title VII is not a vehicle for reviewing even unwise business decisions. The reason for this rule is simple: the Court’s role is to prevent intentional discriminatory…practices, not to act as a super personnel department, second guessing employers honestly held (even if erroneous) business judgments.

“Budget cuts can, indeed, be a legitimate, nondiscriminatory reason for terminating an employee. In essence, Andree has failed to offer evidence other than the mere existence of additional budgetary options that would not have involved the elimination of her position. She did not offer, for example, evidence that the Sheriff hired a new employee, after cutting her position, to fill a similar position for a similar salary. If the Court were to comb through the Court’s proposed budgets and weigh conflicting budgetary options, it would be doing precisely that which it cannot do: second-guessing the Sheriff’s business decisions and acting as a super personnel department. Evidence regarding the other budgetary alternatives does not create a genuine dispute of material fact regarding the Sheriff’s motive for eliminating Andree’s position.”

Andree v. Hoy, 2012 WL 5989466 (D. Colo. 2012).