United States District Court, D. Nebraska
PATRICIA A. KNAPP, Plaintiff,
KEVIN RUSER, in his official capacity, and UNIVERSITY OF NEBRASKA BOARD OF REGENTS, Defendants
Patricia A. Knapp, Plaintiff: Brandon B. Hanson, HANSON LAW
OFFICE, Ord, NE.
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.
Smith Camp, Chief United States District Judge.
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.
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"
) 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. (Filing Nos. 20 ¶ 17 & 46; 36
¶ 27; 37-1.) This position was designated a "
Special Appointment"  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. (Filing No.
36 ¶ 27.)
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.
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. ( 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.)
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. ¶
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.
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
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).
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, and the remaining four
claims concern allegations of retaliation. Before
examining the merits of the claims, this Court must consider
the question of sovereign immunity to determine if it has
subject matter jurisdiction.
Knapp seeks relief from the BRUN, an agency of the state of
Nebraska, and from a University faculty member
acting in his official capacity, 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
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).
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" ). 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'
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).
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.
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.
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 ...