Carroll v. Village of Shelton, Nebraska
| Decision Date | 19 December 1996 |
| Docket Number | No. 4:CV95-3363.,4:CV95-3363. |
| Citation | 973 F.Supp. 900 |
| Parties | Judy CARROLL, Plaintiff, v. VILLAGE OF SHELTON, NEBRASKA, also known as the City of Shelton, Nebraska, a political subdivision, Lynn McBride, individually and in his off. cap., Jim Spellman, ind. and in his off. cap., Lee Landell, ind. and in his off. cap., Merlyn Cole, ind. and in his off. cap., Terry Moffitt, ind. and in his off. cap., John Lacey, ind. and in his off. cap., and George Svoboda, ind. and in his off. cap., defendants. |
| Court | U.S. District Court — District of Nebraska |
David W. Jorgensen, Nye, Hervert Law Firm, Kearney, NE, for Judy Carroll.
Jerry L. Pigsley, Harding, Shultz Law Firm, Lincoln, NE, William T. Wright, Jacobsen, Orr Law Firm, Kearney, NE, for Village of Shelton, Nebraska, Lynn McBride, Jim Spellman, Lee Landell, Merlyn Cole, Terry Moffett.
Terrance O. Waite, Murphy, Pederson Law Firm, North Patte, NE, William T. Wright, Jacobsen, Orr Law Firm, Kearney, NE, for John Lacey.
Gail S. Perry, Brenda S. Spilker, Baylor, Evnen Law Firm, Lincoln, NE, for George Svoboda.
In this action plaintiff contends that, during her employment as Clerk of the Village of Shelton, Nebraska, she was subjected to racial slurs and unwanted sexual advances by Defendant Svoboda, the Chief of Police of the Village. In addition, she alleges that the other defendants, who are all members of the Board of the Village of Shelton, either participated in or condoned this conduct. She raises the following claims for relief in her complaint: (1) denial of due process of law, in violation of 42 U.S.C. § 1983; (2) discrimination based upon her sex and nation origin, in violation of 42 U.S.C. § 2000e-2 (Title VII); (3) denial of equal protection, in violation of 42 U.S.C. § 1983; and (4) violations of the Nebraska Fair Employment Practice Act, Neb.Rev.Stat. § 48-1101. The defendants have moved, in three separate motions, for summary judgment on a number of grounds. (Filings 42, 53, and 57.) For the reasons stated more fully below, I shall grant the motions with respect to plaintiff's Title VII claims, due process claims, and equal protection claim against Defendant Svoboda in his official capacity, and I shall deny the motions with respect to each of her remaining claims.1
From August of 1991 until her resignation in August of 1994, plaintiff, who is part Native American, was employed as the "Village Administrative Clerk/Treasurer" for the Village of Shelton, Nebraska. (Filing 1 at ¶ 12; filing 16 at 6; filing 17 at 13; filing 18 at 13.) Plaintiff contends that throughout her term of employment the Chief of Police of the Village, George Svoboda, subjected her to unwanted sexual contact and a persistent barrage of racial epithets. (Filing 1 at 15-20.)
Specifically, according to plaintiff, during her first year of employment, Defendant Svoboda, a twenty-three year veteran of the force, began referring to her privately as "dumb Indian," "Chief," and "Pocahontas" (Filing 58 at 70:7-12.) Gradually this abusive conduct became more pervasive and more public. In November 1992 Defendant Svoboda used racial slurs to describe the plaintiff in front of several federal law enforcement officers. (Id. at 68:18-70:3 and 81:17-25.) When plaintiff complained to Svoboda about his statements, the harassment only grew worse. (Id. at 87:19-88:3.) He continued to denigrate plaintiff in front of coworkers and members of the public, until November of 1993. (Id. at 82:1-84:25.) In addition, between June of 1993 and November of 1993, according to plaintiff, Defendant Svoboda either felt or attempted to feel plaintiff's buttocks on three or four different occasions. During one such incident he patted her posterior and commented, "nice ass [f]or a dumb Indian" (Id. at 85:11-88:22.)
Beginning in 1992 plaintiff complained to the village attorney, Ron Tvrdik, and several members of the Village Board about the alleged harassment. (Id. at 57:4-25 and 142:3-154:13-19). They told plaintiff that "something" would be done about her complaints. (Id. at 127:17-128:7). In June of 1994, however, Tvrdik told plaintiff not to discuss her grievances with the Board because the members were tired of hearing them.2 (Id. at 163:20-164:1.) The Board did not discipline Svoboda, (filing 45 at 186:5-188:8), and in fact, the only action the Board took was to enact an official policy about harassment and appoint Defendant Svoboda, the alleged perpetrator, as the person to whom complaints of harassment should be made. (Filing 58, exh. 4.) After plaintiff made her complaints to board members, a Shelton police car often drove past her house at night and shined a spotlight toward her windows.3 (Filing 51, Plaintiff's Answer to Interrogatory No. 1.)
Plaintiff further alleges that prior to her complaints the Board considered changing her job description from Village Clerk to Village Administrator, a title which apparently carries more prestige among municipal officials. However, after a meeting in December of 1993, plaintiff received a phone call in which she heard Defendant Svoboda screaming in the background, "[I'm not] about to take orders from a fucking woman." (Id. at 179:7-183:22.) The Board did not change plaintiff's job title. (Id.)
Federal Rule of Civil Procedure 56(c) mandates entry of summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The purpose of a motion for summary judgment is to determine whether a "genuine issue of material fact" exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). A "material fact" is a fact "that might affect the outcome of the suit under the governing law." Id. at 248, 106 S.Ct. at 2510. A "genuine issue" regarding a material fact exists "if the evidence is such that a reasonable jury could return a verdict for a nonmoving party." Id.
Summary judgment is properly granted when, viewing the facts and reasonable inferences in the light most favorable to the nonmoving party, it is clear no genuine issue of material fact remains and the case may be decided as a matter of law. Greeno v. Little Blue Valley Sewer Dist., 995 F.2d 861, 863 (8th Cir.1993). If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, the burden then shifts to the nonmoving party to produce evidence of the existence of a genuine issue for trial:
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. The moving party is "entitled to judgment as a matter of law" because the non-moving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).
Defendants' motions for summary judgment raise seven major issues: (1) whether plaintiff has a property interest in her employment that would entitle her to due process protections; (2) whether the Village of Shelton and the defendants in their official capacity are amenable to suit under Title VII; (3) whether the individual defendants may be liable under Title VII; (4) the propriety of plaintiff's claims against Defendant John Lacey; (5) whether the Village of Shelton or the defendants in their official capacities are amenable to suit under § 1983; (6) whether the individual defendants were acting under color of law for purposes of § 1983; (7) whether the individual defendants are entitled to qualified immunity under § 1983; and (8) jurisdiction over pendent state law claims. Each issue is addressed separately below.
In her complaint plaintiff claims that the defendants denied her due process of law, by forcing her to resign from her position as village clerk, thereby depriving her of her interest in continued employment in that capacity. (Filing at ¶ 26-29.) However, "The Fourteenth Amendment's Due Process Clause does not convert the federal courts into arbitral forums for review of commonplace personnel decisions that public agencies routinely make." Miller v. Lovell, 14 F.3d 20 (8th Cir.1994). "[A] government employee is entitled to procedural due process only when [she] has been deprived of a constitutionally protected property or liberty interest." Winegar v. Des Moines Indep. Com. School Dist., 20 F.3d 895, 899 (8th Cir.1994).
A person must have a legitimate claim of entitlement to his or her employment to have a property interest in it. The existence of a property interest must be determined with reference to state law. Typically, this interest arises from contractual or statutory limitations on the employer's ability to terminate an employee....
Id. at 899 (citations omitted). See also Blankenbaker v. McCook Public Power Dist., 940 F.2d 384 (8th Cir.1991) ().
Plaintiff has identified no statutory or contractual provision to support her asserted interest in her employment as Village Clerk, and the court is aware of none. (See, e.g., filing 1) (failing to specify source of plaintiff's alleged right to continued employment). Thus...
To continue reading
Request your trial
-
Hoar v. Prescott Park Arts Festival, Inc.
... ... Travelers Limousine, Inc., 88 F.3d 435, 439 (7th Cir.1996); Carroll v. Village of Shelton, Nebraska, 973 F.Supp. 900 (D.Neb.1996) ... 4 ... ...