Weigand v. Spadt, No. 4:03CV3040.
| Decision Date | 12 May 2004 |
| Docket Number | No. 4:03CV3040. |
| Citation | 317 F.Supp.2d 1129 |
| Parties | Carol WEIGAND, Plaintiff, v. Michael L. SPADT, individually and in his official capacity as Fire Chief; Emergency Medical Services, Inc., a Nebraska corporation; and Dr. Terry Rounsborg, M.D., individually and in his official capacity as Medical Director for Emergency Medical Services, Inc., Defendants. |
| Court | U.S. District Court — District of Nebraska |
Anthony C. Coe, Polsky, Shiffermiller Law Firm, Lincoln, NE, for Plaintiff.
Connor L. Reuter, Gail S. Perry, Baylor, Evnen Law Firm, Lincoln, NE, for Defendant.
Plaintiff, Carol Weigand, has been employed by the fire department of the City of Lincoln, Nebraska, for over ten years. Ms. Weigand alleges that she has been discriminated against in her employment because she is female, and that she has been retaliated against for complaining about the discriminatory treatment and also about matters of public concern. Specifically, she alleges that she was subjected to sex discrimination and retaliation by being reclassified from "firefighter/paramedic" to "firefighter" in July 2002, by subsequently not having her paramedic status restored, by being denied training opportunities, and, since January 2003, by being removed from firefighter duty and being placed on administrative duty.
Named as defendants are the fire chief, Michael L. Spadt, who is sued both individually and in his official capacity; Emergency Medical Services, Inc. ("EMS"), an independent contractor that oversees the provision of emergency medical services in the City of Lincoln; and EMS's medical director, Terry Rounsborg, M.D., who is sued both individually and in his official capacity. The defendants claim qualified immunity and have moved for summary judgment on this basis (filings 61, 72).
The plaintiff's third amended complaint (filing 30, filed on July 11, 2003) is divided into seven "causes of action," including: (1) an equal protection claim, which asserts that each of the defendants has treated the plaintiff differently than similarly situated male individuals; (2) a due process claim, which asserts that each of the defendants "deprived [the plaintiff] of her liberty interest in her good name, reputation, and her ability to ply her trade, as well as her standing in the community"; (3) another due process claim, which asserts that each of the defendants deprived the plaintiff of certain property rights in her job; (4) a first amendment "free speech" claim, which asserts that each of the defendants punished the plaintiff for speaking out about sex discrimination and about safety concerns; (5) a claim brought under 42 U.S.C. § 1985, which asserts that the defendants all conspired to deprive the plaintiff of her constitutional rights; (6) a Title VII claim,1 which asserts that "the Defendant, City of Lincoln, and its agents," discriminated against the plaintiff; and (7) another Title VII claim, which asserts that "the Defendant, City of Lincoln, and its agents," retaliated against the plaintiff. The first four causes of action are brought pursuant to 42 U.S.C. § 1983.
Although the City of Lincoln is listed as a defendant in the third amended complaint, and specific allegations are made against it in the sixth and seventh causes of action, the city has been dismissed from the action, pursuant to Fed.R.Civ.P. 12(b)(2) and (5). See memorandum and order entered on August 26, 2003 (filing 41).
Chief Spadt's attorney has filed an affidavit (filing 63, attachment # 1) stating that the plaintiff's counsel has confirmed that no Title VII claim is alleged against Chief Spadt in his individual capacity. Accordingly, his claim of qualified immunity is made only with reference to the first five causes of action.
EMS and Dr. Rounsborg both claim to be "state actors," and, as such, also claim entitlement to qualified immunity. In this regard, the evidence (filings 63, 71) shows that EMS is a private, non-profit corporation that has close ties to the City of Lincoln. Six of EMS's seven board members are appointed by the mayor with the approval of the city council. (The seventh member is appointed by the county board.) The city requires EMS to comply with open meetings laws. Amendment of EMS's articles of incorporation must be approved by the city council. The corporation's registered agent is the city clerk. Upon dissolution, all of EMS's remaining assets will devolve to the city.
Pursuant to a contract that EMS entered into on September 22, 2000, with the City of Lincoln, BryanLGH Medical Center, St. Elizabeth Regional Medical Center, and the Lancaster County Medical Society, oversight responsibility for all out-of-hospital emergency medical care that is provided in the "Lincoln emergency medical care system" is assigned to EMS.2 This system includes "St. Elizabeth, BryanLGH, the Lincoln Fire Department, the Lincoln Lancaster County Communications Center in its capacity as dispatch center for emergency medical calls, and any person or entity holding a Certificate of Public Convenience and Necessity issued by the City." The contract requires EMS to employ a medical director who, among other things, is responsible for establishing and enforcing protocols for out-of-hospital emergency medical care. The medical director is specifically authorized to restrict the privileges of any system employee who fails to follow the protocols.
Dr. Rounsborg revoked Ms. Weigand's paramedic privileges in June, 2002, and his decision was upheld by the appeal committee of the EMS board of directors in November 2002. Ms. Weigand's July, 2002 reduction in rank purportedly was ordered by Chief Spadt in response to her loss of paramedic privileges.
Despite obtaining an enlargement of time to respond to the first-filed motion for summary judgment, see memorandum and order entered on March 8, 2004 (filing 67), the plaintiff's counsel has not filed any opposing evidence, nor has he filed an opposing brief. Consequently, I will accept as true the version of events that has been provided by Chief Spadt and Dr. Rounsborg in separate affidavits.
The following undisputed facts, among others, are established by Chief Spadt's affidavit (filing 63, attachment # 3):
• Michael Spadt has been Lincoln's fire chief since May 1999; he has been with the fire department since 1980. In his capacity as fire chief, he supervises firefighters, firefighter/paramedics, and other employees in the fire department (which is now known as the "Lincoln Fire and Rescue Department").
• Effective January 1, 2001, emergency ambulance services for patients whose point of origin is within the city limits of Lincoln are, pursuant to municipal ordinance, exclusively provided by the city through the Lincoln Fire and Rescue Department. The department provides out-of-hospital emergency medical care as part of its ambulance service, and also in conjunction with its fire suppression functions.
• All firefighters in the Lincoln Fire and Rescue Department must, minimally, hold a Nebraska State certification as an emergency medical technician (EMT), and must also be authorized by the medical director to function in the Lincoln emergency medical care system. A certain number of firefighters, who have been certified by the State as paramedics and authorized by the medical director (i.e., Dr. Rounsborg) to function as paramedics, are classified as "firefighter/paramedics," which is a higher paying position than "firefighter."
• In a letter dated June 18, 2002, Dr. Rounsborg revoked Ms. Weigand's ability to function as a paramedic in the Lincoln emergency medical services system, and forbade her from performing any advanced life support (ALS) skills. After receiving a copy of that letter on July 8, 2002, Chief Spadt immediately wrote Ms. Weigand to inform her that she was being demoted from firefighter/ paramedic to firefighter because of the action taken by Dr. Rounsborg. Her classification has since remained unchanged.
• Chief Spadt's decision to demote Ms. Weigand was made based upon the fact that Dr. Rounsborg had revoked her authority to operate as a paramedic; her gender was not a factor in this decision. Chief Spadt is aware of no male department employee, past or present, who has had is authority to operate as a paramedic revoked by the medical director and who has not subsequently been demoted from firefighter/paramedic to firefighter.
• Chief Spadt was aware when he demoted Ms. Weigand that she had complained within the department, both personally and through an attorney, about suffering differential treatment because of her sex. Those complaints were not a factor in his decision to demote Ms. Weigand. Chief Spadt was also aware at the time that Ms. Weigand had complained within the department that a particular supervisor had on certain occasions failed to follow proper safety protocols; this alleged "protected speech" also was not a consideration.
The following additional undisputed facts, among others, are established by Dr. Rounsborg's affidavit (filing 71, attachment # 4):
• Dr. Rounsborg received concerns about Ms. Weigand's performance as a paramedic. In response, he reviewed the charts and incident reports in accordance with the procedure he always follows, and he determined that there had been deviations from protocol. He met with Ms. Weigand to discuss the concerns and then outlined a plan of action for her to follow, which he set forth in a letter dated May 2, 2002. The plan required Ms. Weigand to complete further training and to work under the supervision of an approved preceptor. Ms. Weigand orally agreed to complete this plan.
• Ms. Weigand did not progress with this plan in a manner that was satisfactory to Dr. Rounsborg. It was his observation and determination that she was defensive in receiving constructive feedback; she was unable to provide...
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