After more than a year, a federal lawsuit filed by former Sheriff Nancy Hove against Pierce County, the Pierce County Board of Supervisors, former Chair Jeff Holst and then Vice Chair Jon Aubart …
After more than a year, a federal lawsuit filed by former Sheriff Nancy Hove against Pierce County, the Pierce County Board of Supervisors, former Chair Jeff Holst and then Vice Chair Jon Aubart alleging age and disability discrimination has been completely dismissed. The final stipulation of dismissal, executed by both parties, was filed in U.S. District Court, Western District of Wisconsin, on Nov. 3, 2023.
“It took well over a year to get this complaint dismissed; however, the county is pleased to finally put this matter to rest, so that no further time or expense has to be wasted defending these baseless allegations,” said Pierce County Corporation Counsel Brad Lawrence.
Hove’s attorney, Austin Borton of Jeffrey Leavell SC of Racine, filed a complaint on her behalf with the U.S. Equal Employment Opportunity Commission (EEOC) on Jan. 14, 2022. Hove was diagnosed with cancer on Sept. 9, 2020 and had surgery to remove a brain tumor. The complaint stated that Hove “had time away from the office for a few months after the surgery until March 2021,” but fulfilled all her obligations as sheriff, although not “as physically present in the office as she had been prior to the surgery.”
Hove’s complaint alleged that when she returned to work in March 2021, she scheduled a meeting with Holst and Aubart to discuss recent changes made to her department by the county board, specifically the board’s decision to move the oversight of dispatch to the emergency management department. Hove said she wasn’t consulted about the change.
According to the minutes from the April 5, 2021 special Law Enforcement Committee meeting, moving dispatch under the supervision of the emergency management office (which is under the purview of the LEC) would make it clear that dispatch has one supervisor as opposed to three. The Pierce County Board approved Ordinance No. 21-03 at its April 20, 2021 meeting, amending Pierce County Code chapters 4 and 10 to place dispatch supervision under the emergency management department.
The complaint also alleged that during the March 23 meeting with Holst and Aubart, Hove was told she should step down and let Chief Deputy Steve Albarado take care of things, that she was “getting old” and “should retire.” The complaint stated that Hove wrote a letter dated April 9, 2021 requesting the Pierce County Board and County Administrator Jason Matthys “stop contacting her staff and discussing the operations of the Sheriff’s department without her consultation and to cease attempting to run the office without her.” The complaint listed other alleged discriminatory actions, such as denying the sheriff’s office department budget without explanation, threatening to or eliminating positions from the sheriff’s office, reclassifying a jail staff position, and impeding her from doing her job due to age and perceived disability discrimination.
Laws enforced by the EEOC (with the exception of the Equal Pay Act) require a person to file a charge of discrimination before a job discrimination lawsuit can be filed against an employer. On or about June 7, 2022, the EEOC’s district director issued a Notice of Right to Sue letter. The U.S. Department of Justice also issued a Notice of Right to Sue letter on or about June 10, 2022.
Timeline of case
Hove filed a federal complaint in the United States District Court against Pierce County, the Pierce County Board of Supervisors, Holst and Aubart on Aug. 31, 2022, alleging age, employment and disability discrimination. She accused them of creating a hostile work environment.
“The county’s position was that there was no legal or factual or other basis to support Hove’s allegations, and on Oct. 10, 2022, Pierce County filed a motion to dismiss Hove’s complaint, along with supporting documentation, to get the complaint dismissed in its entirety,” Lawrence explained.
On Nov. 1, 2022, Hove filed an amended complaint, again contending that the county board and two of members (Holst and Aubart) discriminated against her because of her age (55 at the time) and disability when the board voted to move certain positions and duties from Hove’s department toa different department, declined to approve her proposed budget and job descriptions (each department had been asked to submit a budget with a 0% increase), and had improper communications with her staff. The county refiled a motion to dismiss.
“It is worth noting that for purposes of a Motion to Dismiss (and despite the denial of the allegations by the county), the court must accept Hove’s plausible factual allegations as true and draw all reasonable inferences in her favor,” Lawrence said. “Even under such circumstances, and over the opposition of Hove, on March 20, 2023, the county was successful in getting the majority of that complaint dismissed by the court, including all of the named defendants with the exception of Pierce County.”
In the Opinion and Order issued by Magistrate Judge Stephen L. Crocker, Crocker responded to Hove’s Americans with Disabilities Act claim, which required that she be an employee of the county.
“I am not persuaded, as Hove contends, that the absence of a specific exemption for public officials automatically means that Hove is an employee... Given Hove's status as an elected official who can only be fired by the governor and whose duties are spelled out by state statute, I am extraordinarily skeptical that Hove is an employee of the County under common law agency principles, assuming such principles even apply,” Crocker wrote.
He agreed with Pierce County that Hove’s claim that she was a county employee couldn’t be logically reconciled with her “strident ‘cease and desist’ letter,” sent April 9, 2021 to County Administrator Jason Matthys, in which she asserted the sovereignty and independence of the sheriff's office and explicitly denied that she worked for the County Board. Crocker wrote that the letter could be viewed as undermining her claim.
“Hove now wants to eat her cake and have it too,” he wrote.
In response to Hove's Americans with Disabilities Act claim, and the requirement that she suffered an adverse employment action, the court stated: "[A] materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities ... and there is precious little in Hove's amended complaint to suggest that the reorganization of the dispatch personnel was anything more than that."
However, Crocker did not dismiss Hove’s claim that she was subject to an adverse job action when dispatch was removed from her purview; he said the county failed to offer any legally sound reasons why dispatch was removed.
In response to Hove's ADA hostile work environment claims based on age and disability discrimination, the court wrote, "Even when viewed under the liberal pleading standards that apply to discrimination claims, Hove fails to allege a hostile work environment claim.
“Hove's allegations ... were neither objectively severe nor pervasive enough to constitute actionable harassment … Hove’s allegations are centered on Aubart and Holst, whom Hove says ‘pressured her to retire’ at the March 23, 2021, meeting by remarking that she was ‘old’ and not able to ‘handle things,’ then went behind her back and had discussions with her staff. Even when viewed in the aggregate, these alleged acts do not rise to the level of an actionable claim of hostile work environment. First, as Hove appears to acknowledge, ‘[o]ffhand comments, isolated incidents, and simple teasing do not rise to the level of conduct that alters the terms and conditions of employment.’ Therefore, Aubart’s allusion to Hove’s age or disability when he suggested that she ‘step down and just let Chief Deputy Steve Albarado handle things,’ and Holst’s statement that Hove was ‘getting old’ and ‘should retire,’ while demeaning, were neither objectively severe nor pervasive enough to constitute actionable harassment.
“[N]either in her amended complaint nor her brief does Hove offer details about when, with whom, about what, or how often the contacts occurred … Hove's flimsy allegations do not support an inference that these contacts occurred repeatedly or that Holst and Aubart met with Hove's staff for the purpose of disability (or age) harassment."
Finally, the court stated "Although Hove is not required to say much at the pleading stage, she must say enough to present a story that holds together. Stripped of its literary embellishments, Hove's story fails, as a matter of law, to tell a tale of a hostile work environment either perpetrated by or tolerated by Pierce County."
Hove's ADA claim, and the requirement that she must allege she is a qualified individual with a disability, prompted the court to agree with the county that her “vague and contradictory allegations” were insufficient to allege an actual disability under [the ADA].
Hove also alleged the county retaliated against her after she wrote an April 9, 2021 cease and desist letter. The court ruled that the complaint didn’t clearly show what adverse action she suffered after writing the letter or why she believed they were retaliating.
"[N]owhere in the letter did Hove say that these individuals or the Board as a whole were taking these actions because of her disability which is what the ADA requires... [A]n employer cannot retaliate when it is unaware of any complaints... Hove's letter didn't mention her brain cancer, her medical leave, or anything else to reasonably suggest that she was complaining about disability discrimination,” the court wrote. “Accordingly, because it is plain from Hove's complaint that she did not engage in protected activity under the ADA, her retaliation claim must be dismissed."
On March 31, 2023, the county filed an answer, denying the allegations of the amended complaint.
“The court's dismissal of the majority of the complaint on the Motion to Dismiss, left only a couple of claims remaining, not because the court was unwilling to consider dismissing them, but rather because it was premature to do so at the Motion to Dismiss stage of the proceedings,” Lawrence said.
On Oct. 16, 2023, Pierce County filed a Motion for Summary Judgment to dismiss the remainder of the complaint against Pierce County, supported by a Brief, 18 sworn declarations from every county board member who was serving at the time of the allegations, plus a sworn Declaration of the Administrative Coordinator. The motion sought dismissal of all remaining claims, plus an award of costs, disbursements and fees as allowed by law, Lawrence said.
“Prior to filing a timely response to the County's Motion for Summary Judgment, Hove, through her attorney, contacted counsel representing the County and expressed a desire to dismiss the federal lawsuit,” Lawrence said.
Aubart said after going through depositions three weeks ago, Hove’s attorney “threw in the towel and said they don’t have a case.” The county stipulated to it being dismissed with prejudice, meaning it can’t go after Hove for attorney costs. The county’s insurance company pays for the county’s attorneys and fees, not the taxpayers, Aubart said.
“Realistically from the start it was a bogus claim and there was no merit,” Aubart said. “For me, it was directly against me and Jeff. Everything she said, it was all a lie. It goes back 100% to where her goal was to burn bridges and that’s what she was doing. She just can’t move on.”
Aubart also said Dunn County’s investigation into the conduct of former Chief Deputy Steve Albarado (while Hove was out of the officer recovering from her cancer surgery), also initiated by Hove, was shameful. Albarado resigned from his position last November after Hove accused him of trying to take over her office and undermine her authority.
“They never talked to anybody,” Aubart said. “That’s not the way you conduct an investigation. I did it for years (as part of the River Falls Police Department.) It was kind of pitiful.”
Holst, who is not one to mince words, said the entire case was ridiculous.
“In my opinion, it was a waste of time for all parties involved,” Holst said. “It cost the county and county insurance company a tremendous amount of money on a frivolous lawsuit.”
Hove retired Dec. 31, 2022, at which time Chad Koranda became sheriff.