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Murph v. Silver Memories, Inc.

United States District Court, D. Nebraska

April 1, 2014

TANYA MURPH, Plaintiff,
SILVER MEMORIES, Inc.; Defendant.


JOSEPH F. BATAILLON, District Judge.

This matter is before the court on defendant's motion for summary judgment, Filing No. 33, and plaintiff's motion for summary judgment, Filing No. 36, both pursuant to Fed.R.Civ.P. 56. Plaintiff, who is appearing pro se, brought this action alleging retaliation in violation of Title VII, 42 U.S.C. ยง 2000e, against her former employer, the defendant, Silver Memories, Inc. Plaintiff filed a dual claim of discrimination with the Nebraska Equal Opportunity Commission (NEOC) and the Equal Opportunity Commission (EEOC) regarding her claim for retaliation. The NEOC/EEOC separately dismissed plaintiff's charges finding no just cause for the claims. Defendant contends that plaintiff has (1) failed to establish a prima facie claim for retaliation, and (2) failed to file with the NEOC or EEOC within 300 days of her charges of retaliatory discrimination.


Defendant hired plaintiff as a caregiver in 2007 and terminated her sometime in 2009. Plaintiff alleges that sometime around March of 2010, after her discharge, defendant and its employees began retaliating against her.

After her termination, plaintiff interviewed for and received a conditional offer of employment on July 22, 2010, with Comfort Keepers. Comfort Keepers made this offer conditional to pre-employment screening and assessment. Plaintiff worked with Comfort Keepers from July 28 through September 9, 2010. Prior to that date Mary Warman, a former employee of Comfort Keepers, and then an employee of defendant Silver Memories, had a business meeting with Rick Magill, owner of Comfort Keepers. During that meeting Warman told Magill that plaintiff was involved in legal issues with Silver Memories. Magill also talked with Comfort Keeper's Human Resource Director, Teresa White, and confirmed that plaintiff received an offer of conditional employment. Plaintiff continued to work for Comfort Keepers until she was a no call/no show on September 9, 2010. Magill considers that plaintiff abandoned her position with Comfort Keepers, as no other reason for her separation exists.

Previously, plaintiff filed a discrimination charge with both the NEOC and the EEOC on March 9, 2009, alleging that her discharge by the defendant constituted discrimination. Plaintiff bases her retaliation claim in the current case on the filing of this older discrimination charge. Plaintiff alleges that the events she bases the current lawsuit on occurred in March of 2010.

On July 20, 2012, the NEOC dismissed plaintiff's charge and informed her she had 90 days to file an action under state law. On October 11, 2012, the EEOC issued its dismissal determination and informed plaintiff she had 90 days to file her federal law claim. Plaintiff filed her complaint in federal court on January 8, 2013, and amended her complaint on June 13, 2014.

Plaintiff contends that the owner of Silver Memories, Jane Prochaska, allegedly drove by plaintiff's home once in July 2010 and on September 9, 2010. Plaintiff also contends she received at least one telephone call that she believes Prochaska made sometime after July 28, 2010. Additionally, Prochaska obtained a public record copy from the Douglas County Sheriff about the plaintiff in March of 2010. Plaintiff further argues that an article appeared in the Omaha World-Herald that she believes was retaliatory, although the article does not in any way reference Silver Memories or Prochaska.


On a motion for summary judgment, the question before the court is whether the record, when viewed in the light most favorable to the nonmoving party, shows 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. Fed.R.Civ.P. 56(c); Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005). The 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. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Where unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate." Koehn v. Indian Hills Cmty. Coll., 371 F.3d 394, 396 (8th Cir. 2004). The burden of establishing the nonexistence of any genuine issue of material fact is on the moving party. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

"The movant bears the initial responsibility of informing the district court of the basis for its motion, and must identify those portions of [the record]... which it believes demonstrate the absence of a genuine issue of material fact.'" Torgerson v. City of Rochester, 643 F.3d 1031, 1042, (8th Cir. 2011) (en banc) (quoting Celotex, 477 U.S. at 323). If the movant does so, "the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial.'" Id. (quoting Celotex, 477 U.S. at 324). On a motion for summary judgment, the "facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.'" Id. (quoting Ricci v. DeStefano, 129 S.Ct. 2658, 2677 (2009)).

Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. Id. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts, ' and must come forward with specific facts showing that there is a genuine issue for trial.'" Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). 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. Id.

There is no "discrimination case exception" to the application of summary judgment, which is a useful pretrial tool to determine whether any case, including one alleging discrimination, merits a trial. Torgerson, 643 F.3d at 1043 (quoting Fercello v. County of Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010)). Nevertheless, "[a]t the summary judgment stage, the court should not weigh the evidence, make credibility determinations, or attempt to determine the truth of the matter." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249 (1986). The court's function is to determine whether a dispute about a material fact is genuine, that is, whether a reasonable jury could return a verdict for the nonmoving party based on the evidence. Id. at 248. To be material, a fact "must affect the outcome of the lawsuit under governing law." Id. "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [the nonmoving party's favor]." Id. at 255. "If reasonable minds could differ as to the import of the evidence, " summary judgment is inappropriate. Id. at 250. In a discrimination case, when the record on summary judgment is fully developed, the "court need only decide whether, on the record as a whole, there is a genuine issue for trial on the ultimate question of discrimination vel non. " Torgerson, 643 F.3d at 1054 (Colloton, J., concurring).

Pro se complaints are to be liberally construed, but must still allege sufficient facts to support claims advanced. Stone v. Harry, ...

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