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Mulkey v. Transit Authority of The City of Omaha

United States District Court, D. Nebraska

July 23, 2015

MARK D. MULKEY, Plaintiff,


LAURIE SMITH CAMP, Chief istrict Judge.

This matter is before the Court on the Motion for Summary Judgment (Filing No. 21) filed by Defendant Transit Authority of the City of Omaha doing business as Metro Area Transit ("Metro"). For the reasons stated below, the Motion will be denied.


The Court's local rules require that the moving party submit a statement of facts consisting of short numbered paragraphs, supported by pinpoint references to evidence in the record. See NECivR 56.1(a). The party resisting summary judgment must respond in numbered paragraphs, with any disputed facts supported by pinpoint references to the record. See NECivR 56.1(a). "Properly referenced material facts in the movant's statement are considered admitted unless controverted in the opposing party's response." NECivR 56.1(b)(1).

Metro submitted a statement of material facts, with numbered paragraphs, supported by pinpoint citations to evidence in the record in compliance with NECivR 56.1(b). Plaintiff Mark Mulkey ("Mulkey") did not properly respond to Metro's statement of facts in accordance with NECivR 56.1(a). Instead, Mulkey responded generally to Metro's factual statements in the Argument section of his brief, in which he also presented more facts. Although Mulkey's response did not comply with NECivR 56.1, the Court has attempted to incorporate herein the facts presented by both parties that are supported by the record.

In December 2012, Metro posted a job opening for a maintenance supervisor position (the "Supervisor Position"). Mulkey applied for the position at a time when he was a second-class mechanic with Metro working the second shift, from 3:30 p.m. to midnight. Sander Scheer ("Scheer") also applied for the Supervisor Position. He was a second-class mechanic with Metro at that time, working the day shift, from 9:00 a.m. to 5:30 p.m. Neither Mulkey nor Sheer had supervisory experience at Metro, although Scheer had prior supervisory experience with a landscape company. Metro promoted Scheer to the Supervisor Position.

Mulkey contends that Glenn Bradley ("Bradley"), Mulkey's supervisor, called Mulkey to his office on the day Scheer was promoted to the Supervisor Position. Bradley said, "You didn't get the job, we went with a younger person." (Mulkey Dep., Filing No.26-2 at 106:7-9.) Mulkey then told Bradley that his comment "sounded like age discrimination." (Filing No. 26-2 at 106:11-12.) Bradley responded saying, "Well, I didn't mean it like that." (Filing No. 26-2 at 106:12-13.) Bradley continued to say that "he didn't mean it to be derogatory as toward [Mulkey's] age and stuff" and that "basically [Metro was] looking at longevity." (Filing No. 26-2 at 106:15-18.) Mulkey replied, "Well, it's the same thing." (Filing No. 26-2 at 106:18-19.)

Metro contends that Mulkey cannot prove age discrimination was the "but-for" reason for Metro's decision to promote Scheer and not Mulkey, because Mulkey made statements suggesting that Metro had other reasons for its decision. For example, during his deposition, Mulkey said he felt Metro promoted Scheer because it could control him. He also thought since Scheer worked on the day shift, he knew David Jameson ("Jameson"), Metro's Safety Director, better, and "based on [Jameson and Scheer] knowing each other" Scheer probably had an "inside track on the position...." (Filing No. 26-2 at 112:8-11.)


"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) (citing Fed.R.Civ.P. 56(c)). "Summary Judgment is not disfavored and is designed for every action." Briscoe v. Cnty. Of St. Louis, 690 F.3d 1004, 1011 n. 2 (8th Cir. 2012) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) cert. denied, 132 S.Ct. 513 (2011)) (internal quotation marks omitted). In reviewing a motion for summary judgment, the court will view "all facts and mak[e] all reasonable inferences favorable to the nonmovant." Gen. Mills Operations, LLC v. Five Star Custom Foods, Ltd., 703 F.3d 1104, 1107 (8th Cir. 2013). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue... Rule 56(c) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The moving party need not negate the nonmoving party's claims by showing "the absence of a genuine issue of material fact." Id. at 325. 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." Id.

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 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." Briscoe, 690 F.3d at 1011 (quoting Torgerson, 643 F.3d at 1042 (internal quotation marks omitted). "[T]he mere existence of some alleged factual dispute between the parties" will not defeat an otherwise properly supported motion for summary judgment. Quinn v. St. Louis Cty., 653 F.3d 745, 751 (8th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)) (internal quotation marks omitted).

In other words, in deciding "a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts." Guimaraes v. SuperValu, Inc., 674 F.3d 962, 972 (8th Cir. 2012) (quoting Torgerson, 643 F.3d at 1042) (internal quotation marks omitted). Otherwise, where the Court finds that "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, " there is no "genuine issue for trial" and summary judgment is appropriate. Torgerson, 643 F.3d at 1042 (quoting Ricci v. DeStefano, 557 U.S. 557, 586 (2009)) (internal quotation marks omitted).


Mulkey alleges that Metro discriminated against him on the basis of his age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634, ("ADEA") and the Nebraska Age Discrimination in Employment Act, Nebraska Revised Statute § 48-1004, ...

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