Walker v. City of Neb.

• Decision Date: 04 February 2021
• Docket Number: 8:19CV356
• Parties: TINA J. WALKER, Plaintiff, v. CITY OF FREMONT, a political subdivision of the State of Nebraska; SCOTT GETZSCHMAN, in his official capacity as mayor and individually; BRIAN NEWTON, in his official capacity as city administrator and individually; and SHANE WIMER, in his official capacity as assistant city administrator and individually, Defendants.
• Court: U.S. District Court — District of Nebraska

TINA J. WALKER, Plaintiff, v. CITY OF FREMONT, a political subdivision of the State of Nebraska;SCOTT GETZSCHMAN, in his official capacity as mayor and individually; BRIAN NEWTON,in his official capacity as city administrator and individually; and SHANE WIMER,in his official capacity as assistant city administrator and individually, Defendants.

8:19CV356

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

February 4, 2021

MEMORANDUM AND ORDER

This matter is before the Court on defendants' motion for partial summary judgment pursuant to Fed. R. Civ. P. 56. Filing No. 41. Also, before the Court is plaintiff's motion to extend time to file amended pleadings. Filing No. 45. Plaintiff filed this action seeking relief for employment related and civil rights claims against these defendants. Plaintiff based this action on allegations that she was discriminated against on the basis of her sex in violation of 42 U.S.C. § 2000e-2 and Neb. Rev. Stat. §48-1004 (Counts I and II) and retaliated against in violation of Title VII and 42 U.S.C. § 2000e-3 and Neb. Rev. Stat. §48-1114(1)(a) and (b) (Counts III and IV). She further alleges violations of the Equal Pay Act (29 U.S.C. § 206(d)(1) et. seq.) (Count V), the First Amendment (42 U.S.C. 1983) (Count VI), Disability Discrimination Alleged Against Defendant Fremont, 42 U.S.C. §§ 12101 et seq. ("ADA") (Count VII), Disability Discrimination Alleged Against Defendant Fremont, Neb. Rev. Stat. §48-1104 ("NFEPA") (Count VIII), Disability Retaliation Alleged Against Defendant Fremont 42 U.S.C. §12203 and Neb. Rev. Stat. §48-1114(1)(a) and (b) (Counts IX and X), Whistleblower Retaliation Alleged Against Defendant Fremont Neb. Rev. Stat. §48-1114(1)(c) (Count XI), Violations of the Family Medical Leave Act Alleged Against All Defendants 29 U.S.C. 2601 et seq. (Count XII Second Amended Complaint, Filing No. 30.

As stated in this Court's previous Memorandum and Order, "[p]laintiff Tina J. Walker (herein "Walker") has been employed by the City of Fremont since July of 2016, most recently as the Library Director. She initially reported to defendant Brian Newton (hereinafter "Newton"), who served the City of Fremont as the City Administrator. She was later supervised by the Assistant City Administrator, defendant Shane Wimer (hereinafter "Wimer"). At all relevant times, defendant Scott Getzschman (hereinafter "Getzschman") was the elected Mayor of the City of Fremont. Walker alleges she was harassed for several months by her supervisor, defendant Newton. In September of 2017, Walker reported to the City Council that Newton had lied to the City Council and violated the City's Union Contract. The next day, Walker alleges she was disparaged, reprimanded, and told by Gertzschman not to speak at City Council meetings unless called upon to do so.

On September 18, 2017, Walker filed a written complaint of gender discrimination and retaliation with the City Attorney against Newton and Getzschman. An outside law firm was brought in to investigate Walker's claims. Walker alleges she began to receive negative written performance evaluations, even though she was verbally told by Wimer that her work was outstanding. On February 20, 2018, Walker's attorney notified the H.R. Director that Walker had retained counsel and would be filing an Equal Employment Opportunity Commission (EEOC) and Nebraska Equal Employment OpportunityCommission (NEOC) complaint, in addition to anticipated litigation. Eight days later, Walker received an updated performance evaluation that was more negative than the original versions. Additionally, she alleges she was only given a cost of living raise while Newton and Wimer received raises substantially higher than what Walker received." Filing No. 16 at 2.

A. Motion to Extend Time

Plaintiff asks this Court to extend her time to file another Amended Complaint. Plaintiff alleges she was constructively discharged after the filing of this lawsuit. She has since filed this claim with the EEOC. She asks the Court to permit her to amend her claim after her 90 day time limit with the EEOC has run. Defendants oppose this motion. Defendants argue that because there is already a timely filing with the EEOC in this case, plaintiff does not have to amend her complaint. Defendants contend there is no good cause to file an amended complaint as the constructive discharge allegation is no greater than the sweep of the second amended complaint.

The Eighth Circuit has stated that a "plaintiff will be deemed to have exhausted administrative remedies if the allegations of the judicial complaint are like or reasonably related to the administrative charges that were timely brought." Wallace v. Interbake Foods, LLC, 973 F. Supp. 2d 1067, 1075 (D.S.D. 2013) (citing Anderson v. Block, 807 F.2d 145, 148 (8th Cir.1986)); Wedow v. City of Kansas City, Mo., 442 F.3d 661, 673 (8th Cir. 2006); Parisi v. Boeing Co., 400 F.3d 583, 585 (8th Cir. 2005). "'We do not require that subsequently-filed lawsuits mirror the administrative charges' as long as 'the sweep of any subsequent judicial complaint' is no broader than 'the scope of the EEOC investigation which could reasonably be expected to grow out of the charge' filed in the EEOC complaint." Wedow, 442 F.3d at 674 (quoting Duncan v. Delta Consol. Indus.,Inc., 371 F.3d 1020, 1025 (8th Cir. 2004)). As the Supreme Court stated: "Nothing in [Title VII] suggests it intended to require a layperson, while making this difficult decision, to follow such a two-step process in order to preserve any remedy if he [or she] is constructively discharged." Green v. Brennan, 136 S. Ct. 1769, 1778 (2016).

The Court agrees that plaintiff is likely covered under her previous filing with the EEOC in terms of the constructive discharge allegation, assuming it is related to the substance of the previous filing. Dittemore v. Transit Auth. of the City of Omaha, No. 8:16-CV-23, 2016 WL 3945154, at *4 (D. Neb. July 19, 2016) (explaining "[t]he scope of a civil suit may be as broad as the scope of the administrative investigation ... but it cannot be broader."). To make the allegations clear to the parties, the Court will allow plaintiff to file a further amend her complaint at this time to include her allegations of constructive discharge. Likewise, if after the EEOC process has expired plaintiff feels as though she needs to further amend, she may so motion the Court.

B. Motion for Partial Summary Judgment (1) Law

Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56. "Summary judgment is appropriate when, construing the evidence most favorably to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Crozier v. Wint, 736 F.3d 1134, 1136 (8th Cir. 2013). "Summary judgment is not disfavored and is designed for 'every action.'" Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc) (quoting Celeotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)). In reviewing a motion for summary judgment, the court will view "all evidence and mak[e] all reasonableinferences in the light most favorable to the nonmoving party." Inechien v. Nichols Aluminum, LLC, 728 F.3d 816, 819 (8th Cir. 2013). Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. Torgerson, 643 F.3d at 1042 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). But the nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts. Torgerson, 643 F.3d at 1042; and see Briscoe v. Cty. of St. Louis, Missouri, 690 F.3d 690 F.3d 1004, 1011 (8th Cir. 2012) (stating that the nonmoving party "must come forward with 'specific facts showing that there is a genuine issue for trial.'").

Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, the moving party need not negate the nonmoving party's claims by showing "the absence of a genuine issue of material fact." Celeotex Corp., 477 U.S. at 325 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 159 (1986)). Instead, "the burden on the moving party may be discharged by 'showing' . . . that there is an absence of evidence to support the nonmoving party's case." Celeotex Corp., 477 U.S. at 325. In response to the movant's showing, the nonmoving party's burden is to produce specific facts demonstrating "'a genuine issue of material fact' such that [its] claim should proceed to trial." Nitro Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 422 (8th Cir. 2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). "The mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant]. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)); see Quinn v. St. Louis Cty., 653 F.3d 745, 751 (8th Cir. 2011) (stating "[T]he mere existence of some alleged factual dispute between the parties'" will not defeat an otherwise properlysupported motion for summary judgment) (quoting Anderson, 477 U.S. at 247-48). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.

"Sovereign immunity ... is a jurisdictional threshold matter." Lors v. Dean, 746 F.3d 857, 861 (8th Cir.2014) (quoting Harmon Indus., Inc. v. Browner, 191 F.3d 894, 903 (8th Cir.1999). A waiver of sovereign immunity by a state requires a "clear, unequivocal statement that it wishes to do so." Faibisch v. Univ. of Minn., 304 F.3d 797, 800 (8th Cir.2002) (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238-40, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)).

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