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Perry v. Lancaster County

United States District Court, D. Nebraska

June 9, 2014



RICHARD G. KOPF, Senior District Judge.

Plaintiff Precious Perry, a former juvenile detention officer at the Lancaster County Youth Services Center, claims she was discriminated and retaliated against, harassed, and ultimately terminated from her employment on the basis of her use of leave pursuant to the Family and Medical Leave Act, her race, and her husband's disability. In addition, Perry claims that she was denied employment because of her membership in a labor organization, contrary to the provisions of Neb. Rev. Stat. § 48-217 and Neb. Const. art. XV, §13. (Filing 1-1, Complaint Removed from District Court of Lancaster County, Nebraska).[1] Defendant Lancaster County has filed a motion for summary judgment as to all of Perry's claims. (Filing 17.)


"Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Jackson v. United Parcel Serv., Inc., 643 F.3d 1081, 1085 (8th Cir. 2011) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc)). After the movant has demonstrated the absence of a genuine issue of material fact, the nonmovant must respond by submitting evidence that sets out specific facts showing that there is a genuine issue for trial. Id. In doing so, the nonmovant must substantiate her allegations with "sufficient probative evidence [that] would permit a finding in [her] favor on more than mere speculation, conjecture, or fantasy." Moody v. St. Charles Cnty., 23 F.3d 1410, 1412 (8th Cir. 1994) (quoting Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992)). "A mere scintilla of evidence is insufficient to avoid summary judgment." Id. "The basic inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir. 2005) (internal quotation marks and citations omitted). "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." Jackson, 643 F.3d at 1085 (quoting Torgerson, 643 F.3d at 1042).


1. Plaintiff Precious Perry ("Perry") is an African-American resident and citizen of Lincoln, Lancaster County, Nebraska. (Filing 1-1, Complaint Removed from District Court of Lancaster County ¶ 2.)

2. Defendant County of Lancaster, Nebraska, ("the County") is a political subdivision duly formed and existing under the laws of the State of Nebraska. (Filing 1-1, Complaint ¶ 3.)

3. At all relevant times, the County operated a juvenile detention facility located in Lincoln, Nebraska. At the time of the events alleged in Perry's complaint, that facility was known as the Youth Services Center ("YSC"). (Filing 18-1, Dep. Precious Perry 5:20-6:9.)

4. Perry was originally hired to work at the County's juvenile detention facility in 1998, and she continued working in that capacity until her employment was terminated on February 22, 2012. (Filing 1-1, Complaint ¶¶ 4, 17.)

5. At the time of the events alleged in the complaint, Perry held the position of juvenile detention officer. (Filing 1-1, Complaint ¶ 5.) In that capacity, she was responsible for performing a variety of duties, with the primary responsibility being security. (Filing 18-1, Perry Dep. 12:5-13:6.) Juvenile detention officers were directly supervised by duty supervisors; duty supervisors were supervised by team leaders; and above team leaders in the chain of command were a deputy director, and, ultimately, the department director. (Filing 18-1, Perry Dep. 17:18-20:5.) At the relevant time, Ryan Timmerman was a duty supervisor with whom Perry worked on occasion. (Filing 18-2, Perry Dep. 137:7-138:20.) Eric Rezabek was a team leader and Perry's direct supervisor. Annette Thompson was the deputy director. Michelle Schindler was the director. (Filing 18-1, Perry Dep. 16:4-12, 22:5-7, 85:3-87:3.) Only Schindler had the technical authority to impose discipline on YSC employees. (Filing 18-60, Tr. Lancaster County Personnel Board Hearing at 265:12-15; Filing 18-38, Aff. Michelle Schindler ¶ 3.)

6. On Thursday, April 7, 2011, Perry sent an e-mail to YSC Director Schindler requesting leave without pay from Sunday, April 10, through Tuesday, April 19, 2011, with possible intermittent leave for up to six weeks thereafter, all in connection with surgery that was scheduled for her husband, Mike Perry, for a serious medical need. Perry stated that her husband's surgery was scheduled for April 12, but "pre-op" tests were required on April 11. She promised to "submit my leave forms for the time specified above today." (Filing 18-4.) Perry had already submitted the necessary medical certification forms to the medical providers prior to sending her e-mail to Schindler. (Filing 18-1, Perry Dep. 34:21-36:13.)

7. In response to that e-mail, Schindler contacted her administrative aide, who, in turn, requested that a clerk, Dena Hupp, "do an fmla letter." (Filing 18-4; Filing 18-1, Perry Dep. 31:2-33:1.) That letter, which included a copy of the County's Family and Medical Leave Act policy, was signed by Schindler and sent to Perry on April 7, 2011. (Filing 18-6.) The letter acknowledged the office's notification of Perry's "need to be off work"; acknowledged that Perry's husband's condition may be considered a serious health condition under the FMLA; requested that a physician complete an FMLA medical certification form and Perry fill out an FMLA application; and directed Perry to return the form and application as soon as possible. The letter stated: "Beginning April 10, 2011, your leave from work will be counted against your twelve weeks of FMLA leave entitlement." (Filing 18-6.) Perry acknowledged that she received the letter. (Filing 18-1, Perry Dep. 32:17-34:19.) On April 7, 2001, Perry also filled out a leave request form and placed it in the office mailbox of YSC Director Schindler. (Filing 18-5; Filing 18-1, Perry Dep. 26:17-28:2.)

8. On Friday, April 8, Perry learned that her husband's surgery had been cancelled, at which time she received an itinerary of medical testing that would be done in lieu of immediate surgery. On April 10, 2011, Perry reported to work and completed her shift despite having previously requested the day off as FMLA leave. (Filing 18-1, Perry Dep. 45:8-46:24.)

9. Although the new medical itinerary did not require Perry and her husband to be at the hospital on Monday, April 11, Perry did not report to work her regularly scheduled shift on that day, but her husband-also a county employee-did. A supervisor attempted to contact Perry about her absence, but was unsuccessful. After receiving several phone calls from co-workers warning her that she had failed to show up for work without calling, Perry called the facility at approximately 2:30 p.m. During that telephone conversation with Records Manager Tina Dingman, Perry acknowledged that she had not received confirmation that her FMLA leave request had been approved. (Filing 18-1, Perry Dep. 41:3-43:11; 62:24-63:7.)

10. Perry failed to advise anyone at YSC of the changes in plans, either on Sunday, April 10, when she went into work, or on Monday, April 11, when she spoke with Ms. Dingman on the telephone. (Filing 18-1, Perry Dep. 44:11-53:17.) Perry testified that instead of immediate surgery, her husband would undergo a "transplant evaluation, " so she had "spent [Monday, April 11] on the phone with the nurse off and on to pin down exactly what we need to do... who we were supposed to contact as far as hotel, as far as what he needed to do for procedures and preparation, " and she knew "that it wasn't something I could... have dealt with at work." (Filing 18-1, Perry Dep. 46:24; 54:3-19, 57:2-4.)

11. Perry's original FMLA leave request indicated that leave was being sought for the period from April 10 through April 19, 2011. However, because Perry reported to work and completed her April 10, 2011, shift despite having previously requested the day off as FMLA leave, Perry's leave request form was later amended by administrative aide Melissa Hood to indicate that leave was being sought for the period from April 11 through April 19, 2011. (Filing 18-5; Filing 18-57, Aff. Melissa M. Hood ¶ 5.)

12. Despite her previous request for FMLA leave through April 19, 2011, Perry returned to work on Monday, April 18, 2011, and worked her regular shift. On that date, Perry told her duty supervisor and payroll clerk Dena Hupp that her husband's surgery had been cancelled. (Filing 18-1, Perry Dep. 44:4-45:1, 64:12-65:24.)

13. On April 20, 2011, Perry submitted the required medical certification statement that had been completed and signed by her husband's medical provider. The certification stated that treatment had been provided on April 12, 13, and 14, 2001, and that Perry's husband had "end stage liver disease & tumors in liver." (Filing 18-7.)

14. On April 28, 2011, YSC Director Schindler informed Perry by letter that her request for FMLA leave was approved for April 12, 13, and 14, 2011, and that time would be counted against her 12 weeks of FMLA leave entitlement. The letter also stated that Schindler did not believe Perry qualified for FMLA leave to care for her husband on April 10, 11, 15, 16, 17, 18, and 19, and Perry's entitlement to leave without pay for this non-FMLA leave was "still under review." (Filing 18-8.)

15. On April 29, 2011, YSC Director Schindler sent a letter to Perry proposing to suspend her for one working day for alleged violations of a number of provisions contained in the Lancaster County Personnel Rules, the YSC Employee Handbook, and the existing labor agreement between the County and the bargaining unit that represented employees of YSC. (Filing 18-3[3].) In general, those provisions related to procedural requirements for requesting and obtaining leave and the standards of conduct applicable to YSC employees. The letter stated that several rules and policies appeared to have been violated, including abuse and inappropriate use of FMLA leave, failure to submit FMLA leave requests in writing and obtain written approval for such leave in advance, failure to submit FMLA forms 30 days in advance for planned medical treatment, and failure to make management aware of relevant or new facts regarding leave requests. The letter cited several alleged instances of past disciplinary actions against Perry relating to attendance issues and also informed Perry that prior to making a final decision regarding the proposed disciplinary action, YSC Director Schindler would be willing to meet with Perry and consider any evidence or arguments she wished to present as mitigating factors in connection with the proposed discipline. (Filing 18-3.)

16. The County has filed evidence establishing Perry's history of attendance-and leave-related problems, including Perry's reprimand in August 2006 for requesting leave Perry did not have. (Filing 18-38, Schindler Aff. ¶ 8 & Ex. 1 (Filing 18-39).) The reprimand stated, "Leave without pay requires the pre-approval of the Director" and "YOU ARE ADVISED THAT A SIMILAR VIOLATION WILL RESULT IN MORE SEVERE DISCIPLINARY ACTION AS OUTLINED IN THE JUVENILE DETENTION CENTER HANDBOOK AND COUNTY PERSONNEL RULES." (Filing 18-39.) Perry's performance evaluations from 2007 to 2011 (Filings 18-38 to 18-44) indicate less-thansatisfactory ratings for attendance and comments from supervisors relating to attendance and leave problems, such as, "This year I need Precious to focus on her attendance, including her punctuality and her use of leave as it pertains to filling out proper leave requests to cover her time off. There have been several instances where she has not shown up for shifts and leave was not necessarily [a]pproved[] or communicated." (Filing 18-41 at CM/ECF p. 2 (Lancaster County Employee Performance Evaluation dated June 17, 2009, noting that Perry refused to sign the evaluation because she believed "she should not be held accountable for leave requests as she was not trained how to fill them out. Does not agree with her attendance issues."); Filing 18-44, Discipline History of Precious Lomack-Perry (1/25/2007 written warning for taking leave without prior approval; 12/9/2010 reprimand for failure to report to work as scheduled).)

17. The predisciplinary meeting occurred on May 20, 2011, and was attended by Schindler, Perry, Perry's attorney, and a union representative. Based upon the information provided at that meeting, Schindler reduced the proposed disciplinary action to a written warning and required Perry to adhere to the YSC attendance policy and review and sign off on the County's FMLA policy. As a result of the written warning, Perry did not lose any pay or benefits. (Filing 18-9; Filing 18-1, Perry Dep. 73:21-23; Filing 18-38, Schindler Aff. ¶ 9.)

18. Following the written warning on May 25, 2011, Perry requested and received a total of 97.75 additional hours of FMLA leave in connection with her husband's serious medical condition prior to termination of her employment in February of 2012. (Filing 18-16 at CM/ECF pp. 3 & 5.) Further, County records show that prior to April 2011, Perry received approval for 15 FMLA requests in seven different FMLA years, for a total of 1, 172.51 hours. (Filing 18-2, Perry Dep. 130:6-133:4; Filing 18-16.)

19. Following her receipt of the written warning in May 2011, Perry was involved in a number of situations that she characterized as harassment. First, approximately a week after Perry received the warning, team leader Eric Rezabek "screamed" at Perry for walking in on a shift briefing. Eventually that situation was resolved when Rezabek apologized to Perry. Perry had previously not had problems with Rezabek, nor did she have any further problems with him following this incident. (Filing 18-1, Perry Dep. 74:1-80:3.) The second situation involved a supervisor, Tina Dingman, who allegedly discarded some of Perry's personal items while cleaning out the break room at YSC. (Filing 18-36, Dep. Teresa Wymore 37:1-38:19; Filing 18-1, Perry Dep. 107:5-108:24.) Third, Perry had a number of confrontations with her supervisor, Ryan Timmerman.

20. For example, on December 7, 2011, Perry was escorting a group of detainees to a classroom at YSC. One of the detainees had materials with her that she did not need at that time. Perry directed her to place the materials on the hallway floor and retrieve them when they returned to the hallway on their way back from the classroom. When they returned, however, the materials were gone and the detainee became upset. Perry inquired of supervisor Timmerman if he had seen the materials. He responded by stating, "you mean the stuff that's not supposed to be sitting in the hallway?" Perry repeated her inquiry a number of times thereafter, and on each occasion received essentially the same response from Timmerman, causing the youth to become agitated and to cry. The following day, the youth found her materials at a table in the dining room. Perry raised the issue with Rezabek on January 3, 2012, and he told her that the items should not have been left in the hallway because "it could result in a youth throwing the items." (Filing 18-15, Perry's [1]2/8/12 Employee Incident Report Regarding JDS Timmerman at CM/ECF pp. 3-5.)

21. On December 29, 2011, Timmerman, in the presence of a detainee, confronted Perry about being on break too long. Perry claims she began her break 15 minutes later than Timmerman believed. Perry reported the incident to team leader Rezabek on January 3, 2012, who told Perry he would speak to Timmerman. (Filing 18-15, Perry's 1/3/12 Employee Incident Report Regarding JDS Timmerman at CM/ECF pp. 6-7; Filing 18-58, Tr. Lancaster County Personnel Board Hearing at 71:3-10.) Perry testified that after "an incident with family medical, " she felt as though Timmerman "turned up the pressure, cause he would attack me and verbalize negative comments in front of kids... it was more like he was trying to get me to be upset." (Filing 18-1, Perry Dep. 93:23-95:1.)

22. Perry has filed evidence that a fellow juvenile detention officer believed Perry was "targeted" and "called out on things" because of "other coworkers complaining about her missing work, taking too much sick time." (Filing 18-35, Dep. Darwin Anderson 31:1-9, 43:15-44:12; Filing 18-37, Dep. Kelly Ems Wood 21:23-22:8 (Perry's "time off due to her husband, her mother and her father... could possibly be one of the reasons" for Perry's treatment).) Another officer testified that Perry was "harrassed by a supervisor... between 2011 and 2012" because Perry's supervisor, Mr. Timmerman, spoke to her in a "harsh tone... in terms of directives on the phone or inquiries." (Filing 18-36, Dep. Teresa F. Wymore 34:23-36:21, 40:14-41:9.) A third juvenile detention office stated that "it seemed that they paid more attention to what [Perry] was doing than some of the other staff [like c]hecking up on her movement screens, her logging, stopping by the pod, calling her on the radio asking what she was doing... [g]oing into the control booth and aiming cameras at areas that she was working, like supervisors going in there, " and that such targeting occurred "more often around the time that she was terminated." (Filing 18-37, Wood Dep. 10:1-21, 19:1-17.)

23. The instances of alleged harassment against Perry were not made known to YSC Director Schindler, YSC Deputy Director Thompson, or the Lancaster County personnel department until a February 16, 2012, pre-disciplinary meeting. (Filing 18-38, Schindler Aff. ¶ 17 (Schindler never received complaint from Perry regarding violation of Lancaster County policy that prohibits harassment in employment); Filing 18-55, Aff. Annette Thompson ¶ 8 (same); Filing 18-56, Aff. Patricia Kant ¶ 6 (same).)

24. At all relevant times, juvenile detention officers at the YSC were responsible for performing personal observation checks on detainees to ensure their safety and security. The manner in which those checks were to be completed was set out in a written policy and accompanying "post order, " which Perry testified "could have been in effect. I'm not sure. The way that we conducted counts is different...." (Filing 18-24; Filing 18-25; Filing 18-2, Perry Dep. 159:21-160:25 ("I can't tell you if [the policy] was in effect.... I don't know if this particular post order was in effect.").)

25. The policy directed that personal observation checks be completed every 30 minutes for youth in "general population, " every 15 minutes for those on "orientation or special management status, " and every 4 minutes for youth having special problems. The checks were to be conducted using the data recorder, also referred to as the "probe" or "Morse Watchman." (Filing 18-24 at CM/ECF p. 3; Filing 18-2, Perry Dep. 165:7-12.) The policy required that, at specified intervals, staff was to visually observe detainees in their rooms and then record that observation by touching the data recorder to a pad containing a computer chip which was located on the wall adjoining the room. An electronic record of the check was then stored in the recorder. (Filing 18-25 at CM/ECF p. 3 ¶ F; Filing 18-2, Perry Dep. 166:8-168:24.) The supervisor on the third shift was then responsible for taking each probe to the control center and downloading the data onto the system, after which the system could print a report showing when the checks were made. (Filing 18-25 at CM/ECF p. 8 ¶ A; Filing 18-2, Perry Dep. 170:13-17.) That report was known as the Tour Pro. (Filing 18-26.) The policy and post order also directed that if a probe was inoperable, checks should be recorded manually on prescribed forms and staff should notify the duty supervisor of the situation. (Filing 18-24 at CM/ECF p. 3 ¶ 10; Filing 18-25 at CM/ECF pp. 3-4 ¶ I.) At the YSC, detention officers performed 15-minute checks on paper in writing when the probes were not working. (Filing 18-35, Anderson Dep. 8:22-24.)

26. The policy stated that in the event of missed checks, the duty supervisor was to investigate, discuss the matter with the officer who missed the checks, and determine if discipline should follow. (Filing 18-25 at CM/ECF p. 1.) The policy also provided that one to two missed checks in a quarter would result in a written warning, three to four would result in a written reprimand, and additional missed checks would "result in suspension(s) and/or termination." (Filing 18-25 at CM/ECF p. 2.)

27. On January 5, 2012, authorities from another county brought a detainee to be held at YSC. Because the detainee had been up all night with police and had not finished the book-in process until approximately 5:00 a.m., staff was advised that she should be allowed to remain in her cell and sleep during the day. That youth was placed in Room E5 in the housing area known as E-pod, where Perry was ...

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