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Knapp v. Ruser

United States District Court, D. Nebraska

November 10, 2015

KEVIN RUSER, in his official capacity, and UNIVERSITY OF NEBRASKA BOARD OF REGENTS, Defendants

          For Patricia A. Knapp, Plaintiff: Brandon B. Hanson, HANSON LAW OFFICE, Ord, NE.

         For Kevin Ruser, in his official capacity, University of Nebraska Board of Regents, Defendants: David R. Buntain, CLINE, WILLIAMS LAW FIRM - LINCOLN, Lincoln, NE; John C. Wiltse, UNIVERSITY OF NEBRASKA, Lincoln, NE.


         Laurie Smith Camp, Chief United States District Judge.

         This matter is before the Court on Defendants' Motion for Summary Judgment (Filing No. 34) filed by Defendants Board of Regents of the University of Nebraska (" BRUN" ) and Kevin Ruser (" Ruser" ), in his official capacity (collectively " Defendants" ). For the reasons discussed below, the Motion will be granted in part; Knapp's federal claims will be dismissed; and her state law claims will be remanded to state court.


         Plaintiff Patricia A. Knapp (" Knapp" ) is a licensed attorney who has been a member of the Nebraska Bar since 1985. (Filing No. 20 ¶ 3.) She worked for the University of Nebraska College of Law (" Law College" ) in its Civil Clinical Law Program (" Civil Clinic" )[1] in a half-time position from 1999-2003 and 2006-2011. (Filing Nos. 20 ¶ ¶ 10-16; 41-1 ¶ ¶ 9-14.) In 2011, Knapp was hired to work full time as a " Temporary Lecturer" in the Civil Clinic and the University of Nebraska's Weibling Project for the Psychological Treatment and Study of Discrimination.[2] (Filing Nos. 20 ¶ 17 & 46; 36 ¶ 27; 37-1.) This position was designated a " Special Appointment" [3] per the BRUN's Bylaws (" Bylaws" ) and the Law College's Guidelines for the Evaluation of Faculty for Promotion and Continuous Appointment in the University of Nebraska College of Law (" Guidelines" ). As such, Knapp was neither a member of the faculty nor eligible for tenure.[4] (Filing No. 36 ¶ 27.)

         When Knapp met with the Dean of the Law College to discuss the position, she was told the salary would be $80,000. (Filing No. 20 ¶ 18.) Knapp told the Dean she believed such a salary was " low," and the Dean said she would attempt to augment the salary for the next academic year, possibly by designating Knapp's position a " professor of practice." ( Id. ) Knapp agreed to the offered salary with the understanding that the Dean would attempt to increase the salary in the future. ( Id. )

         In early August 2012, Knapp received a letter with terms and conditions for the following year's employment contract, specifying a salary that was unsatisfactory to Knapp.[5] ( Id. ¶ 21.) Prior to that time, Knapp had not had any other conversations with the Law College's administration regarding her salary for the upcoming year. ( Id. ) After receiving her contract offer, she learned via the University of Nebraska's website that a recently-hired male faculty member in a tenure-track clinic position was earning a $106,000 salary. (Filing Nos. 20 ¶ 23; 36 ¶ 23; 35-5 at ECF 1.) On August 22, 2012, Knapp informed the Civil Clinic's Director, Kevin Ruser, that she believed the clinical programs at the Law College had a " gender equity problem" in regards to the payment of faculty and lecturers. (Filing No. 20 ¶ 24.) Although Knapp agreed to employment and salary terms for the next year, she alleges that the conversation ultimately became " heated." ( Id. ¶ 29.)

         After this conversation, Knapp alleges Ruser ceased communicating with her adequately and began neglecting his duties in the Civil Clinic. ( Id. ¶ ¶ 30-33.) According to Knapp, the end result was that the Civil Clinic " was not fulfilling its ethical obligations to its clients or to its students." ( Id. ¶ 39.) In the spring of 2013, Knapp learned that Ruser would be receiving a lifetime achievement award from the Law College. ( Id. ¶ 40.) Ruser's alleged failure to inform Knapp that he would be receiving this award led Knapp to conclude that her relationship with Ruser was so fractured that they could not " work together as law partners in a way that would meet their ethical obligations to their clients and to their students." ( Id. ¶ 45.)

         When the Dean of the Law College contacted Knapp to arrange a meeting to discuss plans for the upcoming 2013-14 academic year, Knapp initially refused to meet with the Dean, telling her " I will not meet with you . . . because there is nothing you could say that could convince me to be associated with Kevin Ruser." (Filing Nos. 35-6 at 2; 36 ¶ 39.) Despite her initial refusal, Knapp eventually did meet with the Dean. (Filing Nos. 20 ¶ 47; 36 ¶ 40.) At the meeting, Knapp informed the Dean of several perceived problems in the Civil Clinic. Many of the problems, according to Knapp, existed in the clinic beginning in the 1980s. (Filing Nos. 20 ¶ 47; 36 ¶ 40.)


         " 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, 181 L.Ed.2d 349 (2011)) (internal quotations 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(e) 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

         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, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009)) (internal quotations omitted).


         In her Amended Complaint (Filing No. 20) (" Amended Complaint" ), Knapp presents ten claims against the Defendants. Six of her claims concern allegations of sex-based wage discrimination,[6] and the remaining four claims concern allegations of retaliation.[7] Before examining the merits of the claims, this Court must consider the question of sovereign immunity to determine if it has subject matter jurisdiction.

         I. Sovereign Immunity

         Because Knapp seeks relief from the BRUN, an agency of the state of Nebraska,[8] and from a University faculty member acting in his official capacity,[9] this Court must first determine if any claims are barred by sovereign immunity. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (" A federal court must examine each claim in a case to see if the court's jurisdiction over that claim is barred by the Eleventh Amendment." ); Id. (" [N]either pendent jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment." ). See also Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (citing Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 669-70, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)) (" [T]he Constitution does not provide for federal jurisdiction over suits against nonconsenting States." ); Lors v. Dean, 746 F.3d 857, 861 (8th Cir. 2014) (quoting Harmon Indus., Inc. v. Browner, 191 F.3d 894, 903 (8th Cir. 1999) (" Sovereign immunity . . . is a jurisdictional threshold matter." ).

         Sovereign immunity bars any suit brought in federal court against a state or state agency, regardless of the nature of the relief sought, unless Congress has abrogated the states' immunity or a state has consented to suit or waived its immunity. See Seminole Tribe, 517 U.S. at 74; Pennhurst State Sch., 465 U.S. at 100; Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). A waiver of sovereign immunity by a state requires a " clear, unequivocal statement that it wishes to do so." Faibisch v. Univ. of Minn., 304 F.3d 797, 800 (8th Cir. 2002) (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238-40, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)). The state's waiver controls not just whether it may be sued, but in which court a suit may be brought. Id. (citing Atascadero State Hosp., 473 U.S. at 241). Thus, a state may consent to suit in state court without waiving its immunity in federal court. Id. (citing Coll. Sav. Bank, 527 U.S. at 676) (holding that a state statute waiving sovereign immunity in " any court of competent jurisdiction" was not sufficiently specific to waive the state's sovereign immunity to suit in federal court).

         a. State-law Claims

         Knapp's fourth claim asserts a discriminatory wage practice under Neb. Rev. Stat. § 48-1219. Her fifth and seventh claims assert violations of the Nebraska Fair Employment Practice Act, Neb. Rev. Stat. § § 48-1101 to 48-1126 (" NFEPA" ).[10] Her ninth claim asserts a public-policy violation under Nebraska Law. For reasons discussed below, the Court finds that it lacks jurisdiction to hear these state law claims due to the Defendants' sovereign immunity.

         Nebraska law allows a plaintiff to sue the state for violations of both the NFEPA and Neb. Rev. Stat. § 48-1221 " in the same manner as provided by [Nebraska law] for suits against other employers." Neb. Rev. Stat. § § 48-1126 and 48-1227.01. For violations of the NFEPA, " [a] complainant who has suffered . . . a violation of [the NFEPA] may . . . file an action directly in the district court of the county where such alleged violation occurred." Neb. Rev. Stat. § 48-1119(4). For violations of Neb. Rev. Stat. § 48-1221, an " [a]ction may be maintained in any court of competent jurisdiction." Neb. Rev. Stat. § 48-1223(2).

         Neither of these remedial statutory schemes is sufficiently explicit to effect a waiver of sovereign immunity to suit in federal court. This Court has previously held that Nebraska has not waived immunity to suit in federal court under the NFEPA. See Schreiber v. Nebraska, 8:05-cv-537, 2006 WL 488719 (D. Neb. Feb. 28, 2006); Wright v. Nebraska Health and Human Services System, 8:04-cv-265, 2005 WL 1331158 (D. Neb. Feb. 14, 2005). Similarly, the language of Neb. Rev. Stat. § § 48-1223(2) and 48-1227.01, when read in combination, is the precise type of statutory language the Eighth Circuit Court of Appeals has found insufficient to waive a state's sovereign immunity in federal court. See Faibisch, 304 F.3d at 800. Therefore, Knapp's fourth, fifth, and seventh claims are barred by sovereign immunity.

         Knapp also asserts a claim for " Public Policy Based Retaliation" as her ninth claim for relief. (Filing No. 20 at 16.) She argues that Nebraska case law recognizes a " tort-based claim for retaliation when it violates public policy." (Filing No. 42 ¶ 73 (citing Trosper v. Bag 'N Save, 273 Neb. 855, 734 N.W.2d 704, 706-07 (Neb. 2007)). Although Knapp asserts that her state law claims are authorized pursuant to Neb. Rev. Stat. § § 48-1120.01 and 48-1223, these statutory waivers of sovereign immunity lack a clear, unequivocal waiver as applied to her claim of a violation of public policy.

         Thus, Knapp's state law claims against the BRUN and Ruser are barred by sovereign immunity and this Court lacks subject matter jurisdiction to adjudicate them. Accordingly, Claims Four, Five, Seven, and ...

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