Opinion
4:00CV3151.
July 26, 2001.
MEMORANDUM ON DEFENDANTS' MOTIONS TO DISMISS AND MOTIONS FOR SUMMARY JUDGMENT
Following my ruling from the bench at the conclusion of argument on July 20 on the defendants' dispositive motions, I now send this memorandum of more detail of the basis for the decision, supplementing the statements I made orally.
The plaintiff, Deborah Stoner-Bryan, was formerly employed by the defendant Community Medical Center, Inc. as a physician. The plaintiff filed a five-count complaint against the defendants alleging gender-based discrimination in violation of 42 U.S.C. § 2000e et seq. of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 (Title VII) (Count I); retaliation in violation of Title VII (Count II); a hostile work environment that involved gender-based discrimination and retaliation in violation of Title VII (Count III); constructive discharge in violation of Title VII (Count IV); and gender-based discrimination, hostile work environment, constructive discharge, retaliation, and a violation of the "Nebraska Whistleblower Act" [Neb. Rev. Stat. § 48-1114 ] in violation of Neb. Rev. Stat. § 20-148 (Count V) (filing 1). The defendants have moved to dismiss portions of the plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6) and have moved for summary judgment on portions of the complaint pursuant to Fed.R.Civ.P. 56, arguing that: 1) there is no private right of action under Neb. Rev. Stat. § 48-1114; 2) the plaintiff's claims brought pursuant to Neb. Rev. Stat. § 20-148 are barred by the applicable statute of limitations; 3) there is no genuine issue of material fact and the defendants are entitled to judgment as a matter of law on the plaintiff's retaliation claim under § 48-1114; 4) as a matter of law, the plaintiff is not entitled to compensatory or punitive damages under § 48-1114; 5) the plaintiff is not entitled to a trial before a jury under § 48-1114 or § 20-148; 6) certain of the plaintiff's Title VII claims are untimely and must therefore be dismissed; 7) the complaint fails to state a retaliation claim under Title VII, and the plaintiff has failed to exhaust her administrative remedies with respect to her Title VII retaliation claim; 8) there is no genuine issue of material fact and the defendants are entitled to judgment as a matter of law on the plaintiff's Title VII claims based upon gender discrimination and a hostile work environment; 9) there is no genuine issue of material fact and the defendants are entitled to judgment as a matter of law on the plaintiff's constructive discharge claim; and 10) the plaintiff's claim for back pay damages must be dismissed as a matter of law. After carefully considering the defendants' motions and the relevant briefs, I find that the defendants' motions should be granted.
The complaint incorrectly cites to Neb. Rev. Stat. § 48- 1115 as the source for the "Whistleblower Act."
The text of the defendants' two motions is nearly identical, and Great Plains Health Alliance, Inc. joins in the brief filed by Community Medical Center, Inc. in support of its motion to dismiss and for summary judgment. (Df. Great Plains Health Alliance, Inc.'s Br. In Supp. of Mot. To Dismiss or in the Alternative for Summ. J. at 1.) I shall therefore consider the motions jointly.
I. BACKGROUND
From August 1, 1996, through July 31, 1999, the plaintiff was employed by Community Medical Center, Inc. as a medical doctor. Soon after she began her employment in August 1996, the plaintiff confronted a Dr. Symonds and requested that he provide her with information about patients of his that she was "covering." (Def.'s Ex. 1 at 60:5-12.) Dr. Symonds refused, raising his voice at the plaintiff and telling her that he would not ask for her help if she could not handle the work. (Id. at 60:12-19.) Dr. Symonds then refused to speak to the plaintiff for two weeks. Other than this incident, the plaintiff does not allege that she was subjected to any discriminatory conduct based upon her gender before August 1998.
The background information presented in this portion of the memorandum has been taken from the statements of facts provided by the parties pursuant to Local Rule 56.1, except where otherwise indicated. The evidence is to be considered in the light favorable to the plaintiff.Adickes v. S. H. Kress Co., 398 U.S. 144, 157 (1970).
On approximately August 13, 1998, the plaintiff and her nurse discovered that a large number of vials of a drug called Nubain were missing. The plaintiff investigated the disappearance of the Nubain on her own on August 18-19, 1998, and concluded that a colleague, Dr. Borg, was responsible. The plaintiff reported her suspicions to Victor Lee, who was the Hospital Administrator, on August 19. After listening to the plaintiff's report, Lee raised the Nubain issue at a staff meeting on August 19. (Def.'s Ex. 1 at 89:4-90:11.) However, Lee did not directly or specifically confront Dr. Borg at that meeting, and Dr. Borg volunteered comments suggesting that he was not responsible for the missing drugs. (Id.) The plaintiff continued her investigation and found additional evidence implicating Dr. Borg. (Id. at 91:13-94:9.) On August 20, the plaintiff discussed her findings with Dr. Symonds, the State Licensure Division, and the hospital's attorney. (Id. at 96:19-111:10.) Also on August 20, Lee met individually with Dr. Borg, who denied taking the Nubain. (Def.'s Ex. 1 at 104:3-19.) Lee then called a meeting of the entire office staff and told them that the plaintiff accused Dr. Borg of taking the Nubain, that Dr. Borg denied taking the Nubain, and that Lee believed Dr. Borg. (Id.) Upon hearing this, Angie Hilliard, the desk receptionist, stated in reference to the plaintiff, "the fucking bitch should be fired." (Id. at 104:21-105:5.)
The next day, August 21, 1998, the plaintiff was called in to a meeting with Office Manager Lisa Ackerman, Board President Kevin Malone, and Lee. The meeting was heated, and Malone was upset with the manner in which the plaintiff was handling the Nubain controversy. (Id. at 112:21-23, 120:20-23.) Eventually, Dr. Borg was invited into the meeting, and he admitted taking and self-administering the Nubain. He also apologized to the plaintiff. A staff meeting was called, and at that meeting Dr. Borg announced to the staff that he had taken the Nubain and that no one should blame the plaintiff. Soon thereafter, Hilliard apologized to the plaintiff for enthusiastically advocating her termination.
Dr. Borg began treatment for his drug use, but he remained on duty in the hospital emergency room during the weekend immediately following the August 21 meetings. (Id. at 130:5-19.)
When Dr. Borg learned of the plaintiff's report to the Licensure Division and the imminent state investigation, he became upset. He refused to speak to the plaintiff. (Id. at 142:5-6.) Dr. Borg's wife made a harassing phone call to the plaintiff's home and began showing up at the hospital to "glare" at the plaintiff. (Id. at 136:4-142:14.) The defendants took no action to curb Ms. Borg's behavior. Additionally, Dr. Borg's nurses refused to assist the plaintiff's nurse, and the plaintiff's nurse ultimately quit her job. The plaintiff herself sought treatment from a psychiatrist in order to help her cope with stress at the hospital. Although the psychiatrist recommended that the plaintiff take time off from work, Lee did not grant the plaintiff leave. Although the plaintiff has claimed that Lee called the plaintiff a liar, there is no admissible evidence to support that claim.
Although Lee apparently believed that Dr. Borg's conduct in connection with the Nubain was illegal, Dr. Borg's activities were never reported to law enforcement officials. The plaintiff was never thanked for her actions in connection with the Borg controversy.
The plaintiff has alleged that in September of 1998, Lee told a member of the local community that the plaintiff would not be renewing her contract with the Medical Center. (Pl.'s Ex. 104 at 2 ¶ 5.) Lee asked the plaintiff to inform him whether she intended to renew her contract by October 15, 1998. The plaintiff did not respond to this request. In February of 1999, Dan Wittwer, the Hospital Board Chairman, invited the plaintiff to sign a new contract. The plaintiff mailed a letter to the Board on February 10, informing the Board that she had taken another position and would not be renewing her contract. There is evidence that the plaintiff looked for other job opportunities well before the events that form the basis of her complaint occurred.
II. STANDARD OF REVIEW
A complaint may be dismissed for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6):
When ruling on a motion to dismiss, the district court must accept the allegations contained in the complaint as true and all reasonable inferences from the complaint must be drawn in favor of the nonmoving party. A complaint shall not be dismissed for its failure to state a claim upon which relief can be granted unless it appears beyond a reasonable doubt that plaintiff can prove no set of facts in support of a claim entitling him to relief.
Nevertheless, dismissal under Rule 12(b)(6) serves to eliminate actions which are fatally flawed in their legal premises and deigned to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity. To avoid dismissal, a complaint must allege facts sufficient to state a claim as a matter of law and not merely legal conclusions.Young v. City of St. Charles, Missouri, 244 F.3d 623, 627 (8th Cir. 2001) (citations omitted).
A motion for summary judgment shall be granted by the court when, viewing the facts and reasonable inferences in the light most favorable to the nonmoving party, "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists when there is sufficient evidence favoring the party opposing the motion for a jury to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. Adickes v. S. H. Kress Co., 398 U.S. 144, 157 (1970). If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, then the burden shifts to the opposing party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The opposing party "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial" and "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 256-57 (citations omitted).
III. ANALYSIS
A. Whether There Is a Private Right of Action under Neb. Rev. Stat. § 48-1114
The defendants argue that there is no private right of action under the "whistleblower" provisions of the Nebraska Fair Employment Practice Act (NFEPA), Neb. Rev. Stat. §§ 48-1101 to 48-1125. Under the "whistleblower" statute, it is "an unlawful employment practice for an employer to discriminate against any of his or her employees . . . because he or she . . . (3) has opposed any practice . . . unlawful under federal law or the laws of this state." Neb. Rev. Stat. § 48-1114(3). The defendants argue that the only private right of action allowable under the NFEPA is one brought pursuant to §§ 48-1119(4) and 48-1104, and therefore the plaintiff cannot maintain her cause of action under § 48-1114(3) in this court. However, in this case the plaintiff has not brought her "whistleblower" claim solely pursuant to § 48-1114, but also pursuant to § 20-148. This court has long recognized that a plaintiff might claim a private right of action under the NFEPA when the alleged violation of NFEPA is asserted not as a sole cause of action, but as a basis for a claim under Neb. Rev. Stat. § 20-148. Bruhn v. Foley, 824 F. Supp. 1345, 1348 n. 1 (D.Neb. 1993). The Supreme Court of Nebraska has verified that such a private right of action exists, expressly finding that when a plaintiff invokes § 20-148, "[she] is not precluded from bringing a private cause of action for alleged violations under the Nebraska Fair Employment Practice Act."Goolsby v. Anderson, 250 Neb. 306, 312-13 (1996). In fact, Goolsby specifically holds that claims under § 48-1114 may be pursued in state district court notwithstanding the administrative review procedures set forth in the NFEPA. Id. at 313.
The defendants correctly point out that § 20-148 is merely a procedural statute that creates no substantive rights. Goolsby v. Anderson, 250 Neb. at 313. However, this does not mean that under § 20-148, a plaintiff can only bring NFEPA claims that are authorized by the NFEPA itself. Such an interpretation not only directly contradicts the Nebraska Supreme Court's holding in Goolsby, but also renders § 20-148 wholly superfluous and completely ineffective to carry out its express purpose: "to allow plaintiffs to enforce their constitutional and statutory rights in district court without first having exhausted statutory administrative remedies." Goolsby v. Anderson, 250 Neb. at 312. The defendants interpret § 20-148 in a manner that would defeat the statute's purpose by effectively confining a plaintiff to the limits of the NFEPA's administrative review process. I therefore reject the defendant's argument that the plaintiff's cause of action under § 48-1114(3) brought pursuant to § 20-148 must be dismissed.
B. Whether the Plaintiff Filed Timely Her Cause of Action Under Neb. Rev. Stat. § 20-148
The defendants argue that the plaintiff's cause of action under §§ 48-1114 and 20-148 is untimely because the plaintiff filed her lawsuit more than 300 days after the events she complains of. The defendants refer me to Adkins v. Burlington Northern Santa Fe Railroad Co., 260 Neb. 156 (2000) in support of the proposition that any suit brought under the NFEPA pursuant to § 20-148 must be filed within a 300-day limitations period. In Adkins, the Nebraska Supreme Court determined that the statute of limitations found at Neb. Rev. Stat. § 48-1118(2) applies to NFEPA claims brought pursuant to § 20-148. It is arguable that Adkins stands for the proposition that an NFEPA claim brought pursuant to § 20-148 must be filed within 300 days of the alleged discriminatory acts. Such an interpretation would ensure that cases brought pursuant to § 20-148 are filed without undue delay after Nebraska's administrative machinery under the NFEPA is set in motion. It is also arguable that the present case is distinguishable from Adkins because Plaintiff Stoner-Bryan filed timely a charge of discrimination in this case, whereas the plaintiff in Adkins filed no administrative charge or petition for over two years after the defendant's allegedly discriminatory conduct. Thus, it may be argued that since Plaintiff Stoner-Bryan complied with the terms of § 48-1118(2) by filing a charge, the defendants cannot invoke that statute to bar her claim brought pursuant to § 20-148. The argument raised by the defendants presents a difficult question that requires a careful interpretation of state law. Since I find that the defendants motions should be granted on the basis of a different argument, resolution of the defendants' Adkins argument is unnecessary to the disposition of the defendants' motions. I shall therefore decline to express an opinion on the merits of this argument.
C. Whether the Plaintiff May Seek Compensatory Damages, Punitive Damages, or a Jury Trial on Her NFEPA Claim
The defendants argue that the plaintiff cannot seek compensatory damages on her NFEPA claim because § 48-1119(4) provides the only basis for a private right of action. Section 48-1119(4) allows a plaintiff to seek damages in a private action only under § 48-1104:
(4) A complainant who has suffered physical, emotional, or financial harm as a result of a violation of section 48-1104 may, at any stage of the proceedings prior to dismissal, file an action directly in the district court of the county where such alleged violation occurred. Written notice of such filing shall be given to the commission and shall immediately terminate all proceedings before the commission. The district court shall docket and try such case as any other civil action, and any successful complainant shall be entitled to appropriate relief, including temporary or permanent injunctive relief, general and special damages, reasonable attorney's fees, and costs.
Neb. Rev. Stat. § 48-1119(4). Therefore, it is argued that the plaintiff cannot recover compensatory damages under her NFEPA cause of action, which is grounded in § 48-1114(3), because her claim is not brought under §§ 48-1119(4) and 48-1104. However, as I have already determined that the plaintiff's private NFEPA action is authorized under § 20-148, the defendants' argument must be rejected for the simple reason that the plaintiff's suit is not, and need not be, grounded in § 48-1119(4).
The defendants also argue that since § 48-1119(4) is the only vehicle for obtaining an award of compensatory damages under the NFEPA, the plaintiff is not entitled to a jury trial on her NFEPA claim based upon § 48-1114(3). Once again, the defendants' assumption that § 48-1119(4) provides the only basis for a private action seeking damages is inaccurate, because in this case the plaintiff's NFEPA cause of action is brought pursuant to § 20-148. I have already determined that the plaintiff may seek damages in a private action based upon § 48-1114(3) and brought via § 20-148. Therefore, the defendants' argument that the plaintiff is not entitled to a jury trial must be rejected.
Finally, the defendants assert without citation that the plaintiff is not entitled to punitive damages "under Nebraska law." (Df. Community Medical Center's Br. in Supp. of Mot. to Dismiss and Alternative Mot. for Summ. J. at 11.) Although this assertion is unsupported, it is also undisputed by the plaintiff. Since it is "a fundamental rule of law" that punitive damages are not allowed in Nebraska, Abel v. Conover, 170 Neb. 926, 929 (1960), I agree with the defendants that punitive damages are unavailable in this case on the plaintiff's NFEPA cause of action. However, the defendants should take care to properly support their legal arguments in the future.
D. Whether the Defendants Are Entitled to Summary Judgment on the Plaintiff's NFEPA Retaliation Claim
To establish a prima facie case of retaliation, a plaintiff must show: (1) she engaged in statutorily protected activity; (2) an adverse employment action was taken against her; and (3) a causal connection between the two events. LaCroix v. Sears, Roebuck, and Co., 240 F.3d 688, 691 (8th Cir. 2001). The defendants argue that the plaintiff cannot show that an adverse employment action was taken against her, and therefore the defendants are entitled to judgment as a matter of law on the plaintiff's NFEPA retaliation claim. The plaintiff responds that she was constructively discharged, and that constructive discharge constitutes an adverse employment action. Cherry v. Menard, Inc., 101 F. Supp.2d 1160, 1176 (N.D.Iowa 2000). The plaintiff also argues that the following retaliatory incidents which occurred following her exposure of Dr. Borg's drug use constitute adverse employment actions:
The Nebraska Employment Practices Act is patterned after Title VII, and therefore the Nebraska courts consider federal decisions when construing the NFEPA. Malone v. Eaton Corp., 187 F.3d 960, 962 n. 3 (8th Cir. 1999); Airport Inn v. Nebraska Equal Employment Opportunity Commission, 217 Neb. 852, 856 (1984). It appears, however, that the retaliation provision contained within the NFEPA is broader than its corresponding provision in Title VII. Compare Neb. Rev. Stat. § 48-1114(3) with 42 U.S.C. § 2000e-3(a). Thus, it is possible that acts which can be considered retaliatory under the NFEPA cannot be considered retaliatory in violation of Title VII. Therefore, although I shall make use of the federal decisions involving Title VII that have been cited and argued by the parties in this case to construe the plaintiff's NFEPA claims, I shall not consolidate my analyses of the defendants' arguments in support of summary judgment on the plaintiff's Title VII and NFEPA retaliation claims. In other words, although similar law may be invoked to analyze the plaintiff's federal and state claims, the factual support for the claims differs.
1) Dr. Borg commented to a hospital employee that he hoped he would never have to work with another female physician again (Defs.' Ex. 1 at 176:4-8);
2) A female employee of the hospital stated that "the fucking bitch should be fired," referring to the plaintiff's accusations of drug theft against Dr. Borg (Pl.'s Ex. 101 at 104:21-105:5);
3) Lee announced at a staff meeting that the plaintiff was a liar (Pl.'s Ex. 101 at 122:6-17);
4) Hospital bylaws were applied flexibly to Dr. Borg but rigidly to the plaintiff (Pl.'s Ex. 101 at 178:11-179:18);
5) Dr. Borg's nurses refused to help the plaintiff's nurse, and Dr. Borg would not speak to the plaintiff (Pl.'s Ex. 101 at 146:17-147:10); and
6) Although Dr. Borg received time off, the plaintiff's request for leave as per her psychiatrist's recommendation was denied by Lee (Pl.'s Ex. 101 at 161:11-14, 162:1-15).
The defendants first argue that the plaintiff cannot show that she was constructively discharged. "Constructive discharge occurs when an employer deliberately makes an employee's work environment so intolerable that resignation is the employee's only plausible alternative." Williams v. City of Kansas City, Missouri, 223 F.3d 749, 753 (8th Cir. 2000). "The employer's actions must have been intended to force the employee to quit. The plaintiff can satisfy the intent requirement by showing that his resignation was a reasonably foreseeable consequence of his employer's discriminatory actions." Tatom v. Georgia-Pacific Corp., 228 F.3d 926, 932 (8th Cir. 2000) (citations omitted). The intolerability of a plaintiff's working conditions is judged by an objective standard rather than the plaintiff's subjective feelings. Williams v. City of Kansas City, Missouri, 223 F.3d at 753-54. "A feeling of being unfairly criticized, dissatisfaction with work assignments, and a loss of pay are insufficient to constitute a constructive discharge." Tatom v. Georgia-Pacific Corp., 228 F.3d at 932.
I find that the plaintiff has not come forward with sufficient evidence to raise a genuine issue of material fact that she was constructively discharged. There is evidence that the plaintiff was unfairly criticized and that she was dissatisfied with certain work assignments. There is also evidence that the plaintiff complained about her work environment in writing to Defendant Great Plains Health Alliance and orally to "compliance officers" Slaven and John. Def.'s Ex. 1 at 195-205). The evidence also shows that while the plaintiff decided not to renew her employment with the defendants, she completed her term of employment as set forth in her original contract, leaving the Community Medical Center in July, 1999. Viewed objectively, the evidence before me does not create a genuine issue whether the plaintiff's work environment was so intolerable that resignation was the only plausible alternative.
The defendants have moved specifically for summary judgment on the plaintiff's Title VII constructive discharge cause of action. Since the plaintiff has not set forth sufficient evidence to raise a genuine issue of material fact that she was constructively discharged, the defendants' motions for summary judgment on the plaintiff's constructive discharge claim are granted.
It remains to be determined whether the other incidents set forth by the plaintiff constitute adverse employment actions. "Not everything that makes an employee unhappy is an actionable adverse employment action. Rather, an adverse employment action is exhibited by a material employment disadvantage, such as a change in salary, benefits, or responsibilities." LaCroix v. Sears, Roebuck, and Co., 240 F.3d 688, 691 (8th Cir. 2001). First, it is obvious that the statement by Dr. Borg that he hoped he would never have to work with another female physician again and the statement by the hospital receptionist that "the fucking bitch should be fired" do not amount to material employment disadvantages, and thus do not constitute adverse employment actions for the purposes of the plaintiff's retaliation claim. No evidence shows that Lee called the plaintiff a liar, but even if he did, there is no evidence that Lee's statement amounted to or caused a change in salary, benefits, responsibilities, or the like. The defendants' refusal to apply the hospital bylaws flexibly to the plaintiff does not constitute a change in an employment benefit or any other adverse employment action. On the contrary, the undisputed evidence shows that the defendants' inflexibility merely required the plaintiff to adhere to terms of her employment contract that she would have preferred to avoid. (See Def.'s Ex. 2 at FS00030; Def.'s Ex. 1 at 44:4-18, 46:12-17.) There is no evidence that the refusal of Dr. Borg's nurses to help the plaintiff's nurse caused a material employment disadvantage to the plaintiff, and Dr. Borg's episodic refusal to speak to the plaintiff clearly does not constitute an adverse employment action. See, e.g., LaCroix v. Sears, Roebuck, and Co., 240 F.3d at 692. See also Scusa v. Nestle U.S.A. Company, Inc., 181 F.3d 958, 969 (8th Cir. 1999) (holding that ostracism by co-workers is not an adverse employment action). Finally, the plaintiff has neither alleged nor provided evidence suggesting that Lee's refusal to grant the plaintiff time off constituted a denial of a benefit to which the plaintiff was entitled, or otherwise amounted to an adverse employment action.
The plaintiff has failed to respond with evidence demonstrating that there is a material issue regarding whether she suffered an adverse employment action, and therefore the defendants are entitled to summary judgment on the plaintiff's NFEPA retaliation claim.
E. Whether Certain of the Plaintiff's Claims of Gender Discrimination Are Barred by the Applicable Statute of Limitations under Title VII
The defendants argue that Dr. Symonds' disagreement with the plaintiff in 1996, along with other claims, occurred beyond the limitations period set forth in Title VII. The argument is presented without legal authority or references directing me to the location of relevant facts in the record. The defendants have not even provided a citation to the applicable statute of limitations. When moving for summary judgment, a defendant has the initial burden of establishing the nonexistence of a genuine issue for trial. In this instance, the defendants have not carried their burden. As I am not inclined to research the defendants' arguments for them, the argument is rejected.
F. Whether the Defendants Are Entitled to Summary Judgment on the Plaintiff's Gender Discrimination Claims
The defendants argue that summary judgment should be granted in their favor on the plaintiff"s Title VII gender discrimination and hostile work environment claims.
McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) established a three-part analysis for disparate treatment cases. . . . Under McDonnell Douglas, a Title VII plaintiff must first establish a prima facie case of intentional discrimination by a preponderance of the evidence. If the plaintiff successfully establishes a prima facie case of intentional discrimination, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the challenged employment action. If the defendant employer meets this burden of production, the plaintiff employee must show by a preponderance of evidence that the articulated reason(s) for the challenged employment action are pretextual and that the illegitimate criterion was the motivating reason. At all times the plaintiff employee possesses the ultimate burden of proving to the Court that s/he was the victim of intentional discrimination.
In establishing a prima facie case of intentional discrimination, [the plaintiff] must produce sufficient evidence to support an inference that she was subjected to an adverse employment action for discriminatory reasons. The threshold of proof required in establishing a prima facie case is "minimal." "The elements necessary to establish a prima facie case vary according to the circumstances of the alleged discrimination."Hill v. St. Louis University, 923 F. Supp. 1199, 1208 (E.D.Mo. 1996) (quoting Favors v. Fisher, 13 F.3d 1235, 1237 (8th Cir. 1994)) (citations omitted).
There is no evidence that the plaintiff has suffered from an adverse employment action that may be attributed to gender discrimination. "[A]n adverse employment action is exhibited by a material employment disadvantage, such as a change in salary, benefits, or responsibilities."LaCroix v. Sears, Roebuck, and Co., 240 F.3d at 691. Therefore, summary judgment shall be granted in the defendants' favor on the plaintiff's Title VII gender discrimination claim.
The defendants argue too that summary judgment is appropriate on the plaintiff's hostile work environment claim.
The elements of a claim of sexual harassment resulting from a hostile work environment are well-established in this Circuit. In order to prevail, a plaintiff must prove:
(1) she belongs to a protected group; (2) she was subject to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) [the employer] knew or should have known of the harassment and failed to take proper remedial action.Caviness v. Nucor-Yamator Steel Co., 105 F.3d 1216,1222 (8th Cir. 1997) (quoting Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 269 (8th Cir. 1993).
The plaintiff refers me to four instances of allegedly "unwelcome sexual harassment." First, the plaintiff claims that she was referred to as a "fucking bitch." Second, the plaintiff alleges that in 1996, Dr. Symonds treated the plaintiff disrespectfully because of her gender. However, viewing the evidence in a light most favorable to the plaintiff, it seems to me that there is no indication whatsoever that Dr. Symonds' raising his voice at the plaintiff and telling her that he would not ask for her help if she could not handle the work and refusal to speak to the plaintiff for two weeks is in any way based upon the plaintiff's sex. Scusa v. Nestle U.S.A. Company, Inc., 181 F.3d at 965.
Third, the plaintiff points out that Dr. Borg commented that he hoped he would never again have to work with a female physician again. Finally, it is alleged that the plaintiff was confronted about using foul language in the emergency room while male employees were not. This latter allegation is simply not sexual harassment. Its color more closely resembles an allegation of disparate treatment, although, as I have noted above, there is no evidence that the plaintiff suffered from an adverse employment action.
It seems that the only evidence the plaintiff has set forth in support of her hostile work environment claim consists of the allegations that she was called a "fucking bitch" and that Dr. Borg expressed a strong aversion to working with female physicians. I find that these two isolated incidents are inadequate to establish a hostile work environment claim as a matter of law. More than that, evidence of her having been called a "bitch" is inadmissible hearsay. A plaintiff must show that the workplace is permeated with discriminatory intimidation, ridicule and insult in order to prevail on a sexual harassment claim. Scusa v. Nestle U.S.A. Company, Inc., 181 F.3d at 966. Here, the plaintiff has failed to raise a genuine issue that this showing can be made in this case. As a result, it is proper to grant the defendants' motion for summary judgment on the plaintiff's Title VII hostile work environment claim.
G. Whether the Defendants Are Entitled to Summary Judgment on the Plaintiff's Title VII Retaliation Claim
I have already determined that the defendants are entitled to summary judgment on the plaintiff's retaliation claim under the NFEPA because the plaintiff has failed to set forth evidence demonstrating that there is a material issue regarding whether she suffered an adverse employment action. In addition to the incidents previously alleged, which I have already determined do not constitute adverse employment actions for the purposes of a Title VII retaliation claim, the plaintiff alleges that Lee falsely told an unspecified person in September, 1998 that the plaintiff would not be renewing her employment contract with the hospital. As it was with the other incidents alleged by the plaintiff to constitute adverse employment actions, there is no evidence that Lee's comment subjected the plaintiff to a material employment disadvantage, such as a change in salary, benefits, or responsibilities. LaCroix v. Sears, Roebuck, and Co., 240 F.3d 688, 691. Absent any evidence of an adverse employment action, the plaintiff cannot prevail on her Title VII retaliation claim.
See generally Part III. D. and note 5, supra.
Moreover, to establish a claim of retaliation, a plaintiff must show that she filed a charge of harassment or engaged in other protected activity in addition to showing that her employer subsequently took an adverse employment action against her and that the adverse action was causally linked to her protected activity. Scusa v. Nestle U.S.A. Company, Inc., 181 F.3d at 968. Since the only evidence of any protected activity under Title VII consists of the filing of the plaintiff's charge of discrimination in the summer of 1999, I cannot find that act of Lee's in 1998 was in retaliation for the plaintiff's filing of her charge or other protected activity.
The defendants' motion for summary judgment shall therefore be granted on the plaintiff's Title VII retaliation claim.
H. Residual State Claims
Count V of the plaintiff's complaint alleges that the defendants' conduct constituted gender-based discrimination, a hostile work environment, constructive discharge, retaliation, and a violation of the "Nebraska Whistleblower Act" [Neb. Rev. Stat. § 48-1114] in violation of the NFEPA and Neb. Rev. Stat. § 20-148. Although several state law claims are alleged in the complaint, the defendants moved for summary judgment only with respect to the plaintiff's retaliation claim. It may be argued that the plaintiff's retaliation claim and "whistleblower" claims are indistinguishable. However, this leaves state law claims based upon gender-based discrimination, a hostile work environment, and constructive discharge which are not directly addressed by the defendants' motions for summary judgment. As a practical matter, since the NFEPA is patterned after Title VII, and therefore the Nebraska courts consider federal decisions when construing the NFEPA, the plaintiff's NFEPA claims should suffer the same fate as the Title VII versions of those claims. Malone v. Eaton Corp., 187 F.3d 960, 962 n. 3 (8th Cir. 1999);
Airport Inn v. Nebraska Equal Employment Opportunity Commission, 217 Neb. 852, 856 (1984). Since I have found that it is appropriate to grant summary judgment on the plaintiff's federal claims, so too is it appropriate to grant summary judgment on the plaintiff's state claims.