Tanner v. Nebraska Health System, No. A-05-930 (Neb. App. 7/3/2007)

• Court: Nebraska Court of Appeals
• Writing for the Court: Irwin
• Decision Date: 03 July 2007
• Docket Number: No. A-05-930.,A-05-930.
• Citation: Tanner v. Nebraska Health System, No. A-05-930 (Neb. App. 7/3/2007), No. A-05-930. (Neb. App. Jul 03, 2007)
• Parties: COLLEEN M. TANNER, APPELLANT, v. NEBRASKA HEALTH SYSTEM, A NEBRASKA NONPROFIT CORPORATION, APPELLEE.

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COLLEEN M. TANNER, APPELLANT, v. NEBRASKA HEALTH SYSTEM, A NEBRASKA NONPROFIT CORPORATION, APPELLEE.

No. A-05-930.

Court of Appeals of Nebraska.

Filed July 3, 2007.

Appeal from the District Court for Douglas County: JOHN D. HARTIGAN, JR., Judge. Affirmed.

Marvin O. Kieckhafer, of Smith Peterson Law Firm, L.L.P., for appellant.

Eric W. Tiritilli and Patrick J. Barrett, of McGrath, North, Mullin & Kratz, P.C., L.L.O., for appellee.

IRWIN, CARLSON, and MOORE, Judges.

IRWIN, Judge.

I. INTRODUCTION

Colleen M. Tanner appeals from an order of the district court granting summary judgment to Nebraska Health System on Tanner's amended petition alleging retaliatory discharge for filing a workers' compensation claim. Tanner challenges the district court's grant of summary judgment and asserts that there is a genuine issue of material fact regarding whether Nebraska Health System discriminated against Tanner. Because Tanner fails to present a genuine issue of material fact as to whether her termination was pretextual, we find that Nebraska Health System is entitled to judgment as a matter of law. Accordingly, we affirm.

II. BACKGROUND

In 1991, Tanner was hired as a risk management clerk in the department of strategic services for what is now known as Nebraska Health System (hereinafter NHS). In the course of her employment, she developed carpal tunnel syndrome in both hands. In February 2000, she took a medical leave of absence after undergoing corrective surgery on her right hand. She returned to work in April and was placed on a "light-duty" work restriction. On June 12, she was informed by Dave Poppert, her supervisor, that her job had been eliminated due to departmental "restructuring."

In March 2003, Tanner filed an amended petition, claiming that her termination was in retaliation for filing a workers' compensation claim and that she had been discriminated against on account of a disability. NHS moved for summary judgment. The following evidence was admitted at the summary judgment hearing in March 2005.

1. POPPERT'S DEPOSITION

Poppert stated that he is employed by NHS as a "risk and property manager." He was promoted to his current position in May or June 2000. Prior to this promotion, he served as a "corporate services coordinator." As a coordinator, he managed the property and casualty insurance program, which included workers' compensation claims. Poppert worked in the strategic services department with both Tanner and Linda Dabelstein.

Poppert and Dabelstein shared Tanner's normal work responsibilities during her absence from February to April 2000, and a temporary worker was hired shortly before her return to enter "incident reports." After Tanner returned, Poppert told her to only "work within your restriction." He explained that if she could not complete her assigned work, human resources would bring in temporary help. Although he was aware that Tanner needed additional surgery on her left hand, he was not concerned about additional medical leave, because he and Dabelstein "had gotten through [Tanner's first medical leave of absence] fine."

Poppert stated that as part of a June 2000 departmental restructuring process, his new duties included supervising Tanner and Dabelstein. Prior to his promotion on June 8, he and his immediate supervisors discussed eliminating unnecessary "administrative-type" support in order to improve department efficiency. As a result, it was determined to eliminate Tanner's position because her responsibilities, which consisted of data entry, scheduling meetings, filing paperwork, and putting together requests for production, were primarily clerical. Poppert, Dabelstein, and an administrative assistant would divide Tanner's responsibilities.

According to Poppert, when determining to eliminate Tanner's position, neither he nor his directors consulted Tanner's workers' compensation file. He indicated that when he terminated her employment on June 12, 2000, it was made clear that "there were other options out there that she would have been welcome to apply for, other positions within the organization." Poppert stated that after Tanner's termination, the department did not experience difficulty in completing her work, nor did it hire any new employees.

2. TANNER'S DEPOSITION

Tanner stated in her deposition that during her medical leave, she felt as though she were "harassed" when an employee health representative from NHS frequently telephoned her to inquire about her prognosis. She acknowledged that it was the health representative's responsibility to contact her in order to learn about her condition. Tanner was asked, "Did anybody at [NHS] ever say anything that made you think that they were unhappy with the fact that you had filed a workers' compensation claim?" She answered, "Not towards me personally." She explained that prior to her surgery in February 2000, Poppert told her that people who received workers' compensation benefits cost the company money. She acknowledged that when Poppert made the comment, his responsibilities included workers' compensation claims, and that it would not be unusual for him to comment on expensive claims. Tanner stated that other than Poppert's one general statement, she never heard any other comments indicating that NHS was "unhappy with the fact that [she] had filed a workers' compensation claim."

3. DABELSTEIN'S DEPOSITION

As a coordinator in risk management, Dabelstein initially supervised Tanner. Although Tanner reported directly to Dabelstein's supervisor after 1997, Tanner's primary responsibilities were to provide work support for Dabelstein. Regarding their workload, Dabelstein stated, "[S]ome days we were very, very busy and other days we weren't."

While Tanner was on medical leave, Dabelstein felt that Tanner's work was satisfactorily completed, with the exception of certain incident reports that needed to be entered by temporary help. Although Dabelstein knew Tanner required additional surgery, Dabelstein was not concerned about Tanner's impending absence, because "[she] had [handled Tanner's absence] before; [she] would do it again."

Dabelstein stated that she was in "total shock" when she learned that Tanner's employment would be terminated. However, she also acknowledged that for the previous 5 years, she and Tanner had been "worried" about losing their jobs due to budget concerns. She thought "[eliminating Tanner's job] was a good idea" because there was "downtime" and "[not] a lot of extra work to do." After Tanner's termination, Dabelstein assumed all of Tanner's responsibilities, except data entry, which went to an administrative assistant. She did not have problems completing the work in Tanner's absence, nor did she need to work overtime.

4. TRIAL COURT FINDINGS

In May 2005, the trial court sustained NHS' motion for summary judgment. The court found that Tanner failed to prove discrimination, because her carpal tunnel syndrome did not constitute a disability limiting the performance of "tasks of central importance." The court also found that Tanner failed to prove NHS retaliated against her for filing a workers' compensation claim, because "there is no factual question that the restructuring was the true reason Tanner's job was eliminated." Tanner filed a motion to alter or amend the judgment, which motion was denied. This appeal followed.

III. ASSIGNMENT OF ERROR

Tanner's sole assignment of error on appeal is that the trial court erred in denying her motion for summary judgment and in denying her motion to alter or amend the judgment.

IV. STANDARD OF REVIEW

Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Riesen v. Irwin Indus. Tool Co., 272 Neb. 41, 717 N.W.2d 907 (2006); Johnson v. United States Fidelity & Guar. Co., 269 Neb. 731, 696 N.W.2d 431 (2005). In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Riesen v. Irwin Indus. Tool Co., supra; Johnson v. United States Fidelity & Guar. Co., supra.

V. ANALYSIS

Tanner challenges the trial court's finding that there is no genuine issue of material fact as to the reason for her termination. We find no merit to this argument. We also note that Tanner asserts that her employment was wrongfully terminated due to disability discrimination. Because she fails to argue this issue in her brief, we find this issue to be waived. See Home Builders Assn. v. City of Lincoln, 271 Neb. 353, 711 N.W.2d 871 (2006).

The court has found that an action for retaliatory discharge is allowed when an employee has been discharged for filing a workers' compensation claim. Jackson v. Morris Communications Corp., 265 Neb. 423, 657 N.W.2d 634 (2003). In such actions, the Nebraska Supreme Court has applied the burden-shifting analysis that originated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). The employee alleging disparate treatment first has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. If the employee succeeds, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the treatment of the employee. If the employer carries this burden, the employee must then prove by a preponderance of the evidence that the legitimate reasons offered by the employer were not its true reasons, but were a pretext for discrimination. Lincoln County Sheriff's Office v. Horne, 228 Neb. 473, 423 N.W.2d 412 (1988). At all times, the plaintiff retains the ultimate burden of persuading the fact finder that he or she has been the victim of intentional...