Benson v. City of Lincoln
| Docket Number | 4:18CV3127 |
| Decision Date | 31 July 2023 |
| Parties | AMANDA BENSON, Plaintiff, v. CITY OF LINCOLN, a political subdivision; CHRIS BEUTLER, TOM CASADY, DOUG MCDANIEL, TIM LINKE, LEO BENES, ERIC JONES, DARREN MERRYMAN, and SHAWN MAHLER, Defendants. |
| Court | U.S. District Court — District of Nebraska |
MEMORANDUM AND ORDER REGARDING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Plaintiff Amanda Benson, a female firefighter/EMT with Lincoln Fire and Rescue (LFR), brought this action alleging violations of her civil rights against the City of Lincoln, Nebraska, the Mayor, and several LFR employees. Filing 188 (Fourth Amended Complaint). This case is now before the Court on Plaintiff's Motion for Partial Summary Judgment on Defendants' affirmative defenses of failure to mitigate damages and after-acquired evidence. Filing 373. This case is also before the Court on Defendants' Motion for Summary Judgment on all claims in Plaintiff's Fourth Amended Complaint. Filing 377. In addition to the summary judgment motions, there are two Motions to Strike now before the Court. The first is Plaintiff's Motion to Strike Filing No. 391-17 and Portions of Filings Nos. 392, 393, and 394 which are filings in support of Defendants' opposition to Plaintiff's Motion for Partial Summary Judgment. Filing 405. The second is Defendants' Motion to Strike Portions of Plaintiff's Summary Judgment Opposition pursuant to Federal Rules of Civil Procedure 1 and 56 and Federal Rules of Evidence 403, 801, and 802. Filing 414. For the reasons stated below, the parties' Motions to Strike are denied. Also, for the reasons stated below, the Motions for Summary Judgment are denied.
The Court will state separately the specific factual context and key factual disputes for each Motion for Summary Judgment to the extent necessary to resolve those motions. For purposes of providing more general context for both the Motions for Summary Judgment and the Motions to Strike, however, the Court will briefly summarize the factual background to this litigation and the essential procedural background.
Amanda Benson was hired by Lincoln Fire & Rescue (LFR) on July 1, 2013, as a Firefighter/EMT. Filing 394 at 1 (¶ 1).[1] Defendants are the City of Lincoln, Nebraska, various city officials, and various officers in the LFR. Filing 378 at 1-3 (¶¶ 2-10).
After serving as a floating firefighter, Benson was assigned permanently to Station 8 on the Engine 8 crew for C shift on October 15, 2014. Filing 378 at 6 (¶ 24). Captain Shawn Mahler was the Captain of the Truck crew at Station 8. Filing 397 at 3 (¶ 25) (). Benson does not properly dispute Defendants' allegation that Mahler had no authority over promoting, disciplining, firing, or reassigning Benson to significantly different duties, but she does allege that he “manipulated” the schedule at Station 8 to prevent her from working on Truck 8, and that he had supervisory control over her and could significantly influence her “career trajectory.” Filing 397 at 3 (¶ 25). In November of 2020, Benson became the Acting Captain on Engine 1 at Station 1, then later became the Acting Captain of Truck 1 at that Station. Filing 378 at 39 (¶ 203).
Benson alleges that she was subjected to sexual discrimination and harassment for almost the entirety of her employment with LFR. She filed charges of discrimination with the Nebraska Equal Opportunity Commission (NEOC) on August 15, 2016, see Filing 394 at 2 (¶ 3), and four years later with the federal Equal Employment Opportunity Commission (EEOC), on October 14, 2020, see Filing 394 at 2 (¶ 6). It is safe to say that many-but not all-of Benson's allegations of discrimination, harassment, and retaliation were based on conduct by Mahler.
On April 26, 2021, LFR was called to a cardboard fire within a warehouse. Filing 378 at 43 (¶ 224). Benson and T1 arrived at the scene before Mahler and T8. Filing 378 at 44 (¶ 233). Mahler and his crew were called to the warehouse fire mid-morning. Filing 378 at 44 (¶ 230). The parties dispute several circumstances about that fire and the interaction between Benson and Mahler during that fire. On May 5, 2021, Benson alleged Mahler had abandoned her during the fire, and that she and her crew could have been killed or injured, when she spoke to and submitted a complaint to her superiors at LFR. Filing 397 at 59 (¶ 290) (admitting this much of ¶ 290). The LFR conducted an investigation, although Benson disputes its adequacy. Filing 397 at 60 (¶ 292). Benson was unhappy with the outcome of that investigation, so Benson and her Union filed a grievance on June 9, 2021, seeking a “thorough and honest investigation” and punishment of employees who breached rules of conduct. Filing 378 at 55 (¶ 294). On June 11, 2021, Benson filed a motion for a preliminary injunction asking this Court to (1) order that the City of Lincoln immediately initiate disciplinary proceedings against Mahler; (2) enjoin Mahler from assignment/dispatch to any fire scene during the pendency of disciplinary proceedings; and (3) appoint an independent third-party investigator to investigate Plaintiff's complaint about Mahler's actions at the warehouse fire. Filing 112 at 2 (¶ 8); see also Filing 397 at 63 (¶ 295) (agreeing that Benson filed a motion for a preliminary injunction). On August 16, 2021, another judge of this Court denied Benson's Motion for Preliminary Injunction. Filing 397 at 69 (¶ 309) (objecting to the admissibility of the ruling, but not objecting to the fact of the ruling or that it denied her motion).
After pre-disciplinary investigations and proceedings, Benson was terminated effective November 2, 2021. Filing 394 at 1 (¶ 1); see also Filing 380-83 at 4 (dismissal letter). Fire Chief David Engler, who is not a party to this litigation, determined that Benson had made false allegations against Mahler and that her actions were “a direct hindrance to the effective performance of LFR's functions and reflect undue discredit upon the department,” establishing “good cause” for dismissal. Filing 380 at 3 (dismissal letter).
On July 6, 2018, well before her termination, Benson filed her original Complaint in this matter in the District Court of Lancaster County, Nebraska. Filing 1 at 4-95. Defendants removed the action to this federal court. Filing 1. However, at this point in the litigation, Benson's operative pleading is her Fourth Amended Complaint. Filing 188.
In her Fourth Amended Complaint, Benson asserts eight causes of action. Her first cause of action is a claim for a sexually hostile work environment and retaliatory harassment in violation of the Nebraska Fair Employment Practice Act (NFEPA), Neb. Rev. Stat. §48-1101, et seq. Filing 188 at 59-60 (¶¶ 225-230). Her second cause of action is a NFEPA claim of sexual discrimination. Filing 188 at 60-61 (¶¶ 231-235). Her third cause of action is a NFEPA claim of retaliation. Filing 188 at 61-62 (¶¶ 236-240). Her fourth cause of action is a claim for a sexually hostile work environment and retaliatory harassment in violation of Title VII. Filing 188 at 62-63 (¶¶ 241245). Her fifth cause of action is a Title VII claim of sexual discrimination. Filing 188 at 63-64 (¶¶ 246-250). Her sixth cause of action is a Title VII claim of retaliation. Filing 188 at 64-65 (¶¶ 251-255). Benson's seventh cause of action alleges sexual discrimination and a hostile work environment in violation of the Equal Protection Clause of the United States Constitution against the City of Lincoln. Filing 188 at 65-67 (¶¶ 252-263). Her last cause of action alleges sexual discrimination and a hostile work environment in violation of the Equal Protection Clause of the United States Constitution against the individual Defendants. Filing 188 at 67-68 (¶¶ 264-270).
Defendants filed a joint Answer on December 6, 2021, denying Benson's claims. Filing 196. Of interest here are two of Defendants' affirmative defenses. The first affirmative defense at issue alleges “that Plaintiff has failed to mitigate her damages.” Filing 196 at 14 (¶ 115). The second affirmative defense at issue alleges that “Plaintiff's claims may be barred by the doctrine of after acquired evidence.” Filing 196 at 15 (¶ 117).
The Court will begin this decision with rulings on the parties' Motions to Strike because these Motions may be determinative of what evidence the Court can consider on summary judgment. The Court will analyze these motions in turn.
In her Motion to Strike, plaintiff Amanda Benson moves to strike Doc. 391-17, and portions of Filing 392 (Section III(A) on p. 2), Filing 393 (Paragraph (A)(1) on p. 1), and Filing 394 (p. 13 first full paragraph in response to Plaintiff's Statement of Fact 24) pursuant to Federal Rule of Civil Procedure 12(f). Filing 405 at 1.[2] The evidence in question purportedly relates to the Defendants' “after-acquired evidence” affirmative defense. Filing 405 at 2.
Benson contends that the challenged evidence in Defendants' materials in opposition to her Motion for Partial Summary Judgment is immaterial, impertinent, and scandalous. Filing 405 at 1. She contends further that the evidence and corresponding argument are based on hearsay, are unauthenticated, and are both irrelevant and unfairly prejudicial. Filing 405 at 1. Benson also argues that there was no reason for Defendants to offer this evidence, because Defendants have already withdrawn their after-acquired evidence defense. Filing 405 at 2. Defendants respond that the reason for including such evidence in support of their opposition to Benson's Motion for Partial...
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