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Barry v. State

United States District Court, D. Nebraska

June 16, 2016

JENNIFER L. BARRY n/k/a JENNIFER L. HENNING, Plaintiff,
v.
STATE OF NEBRASKA, et al., Defendants.

          MEMORANDUM AND ORDER

          JOHN M. GERRARD UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the defendants' motion for summary judgment (filing 84). For the reasons discussed below, this motion will be granted in part and denied in part.

         BACKGROUND

         The plaintiff Jennifer L. Henning, who has diabetes, was employed as a pre-service trainee by the Nebraska Department of Correctional Services (NDCS) beginning on April 2, 2012. Filing 85 at 8. She was terminated from her position on April 24. See filing 85 at 8. She has sued the State of Nebraska, the NDCS, William Boucher, Ken Sturdy, and Michael Kenney, alleging sex discrimination, disability discrimination, retaliation, and civil conspiracy. Filing 45 at 1, 10-11. Boucher was a Training Specialist with the NDCS, and was the plaintiff's training instructor. Filing 85 at 7. Sturdy was the Training and Development Manager with the NDCS. Filing 85 at 7. Kenney was the Warden at the Omaha Correctional Center with the NDCS. Filing 85 at 8. The defendants contend that they are entitled to summary judgment on the plaintiff's claims, based on the facts set forth below. Filing 85 at 5.

         A. The plaintiff's ability to carry and use medical supplies

         First, the plaintiff alleges that she was not permitted to use or carry the medical supplies necessary to treat her diabetes while she was in training at the NDCS Staff Training Academy (Academy). Filing 45 at 10-11. The parties present significantly different accounts of the events relating to this allegation. These accounts are briefly summarized in turn.

         1. The plaintiff's version of events

         According to the plaintiff, on or about April 4, 2012, she presented a doctor's note to an NDCS human resources representative. Filing 89 at 4, 20. The note stated that the plaintiff had diabetes and needed "to check blood sugars at work at least daily and as needed." Filing 89 at 4. Then, on the first day of the plaintiff's training at the Academy, she gave a copy of the doctor's note to Boucher. Filing 89 at 4. Boucher threw the note in the trash can, and said "Okay, you're diabetic. That's fine. It doesn't affect you here." Filing 89 at 4-5. Boucher also told the plaintiff that she could not carry her glucometer (a device used for measuring blood sugar) or her glucagon (a medication for treating hypoglycemic episodes) on her person during training because they were "contraband." Filing 89 at 5.

         The plaintiff alleges that on April 5, 2012, she contacted her physician to ask for "additional doctor's notes" to give to the defendants. Filing 89 at 20. Her physician then contacted Sturdy to make further requests for accommodations for the plaintiff's diabetes. Filing 89 at 20. The plaintiff also alleges that the defendants were provided with a copy of her emergency care plan. Filing 89 at 20.

         Next, the plaintiff alleges that during her training, Boucher frequently reprimanded her in relation to her efforts to manage her diabetes. First, she alleges that one day during training, she used her glucometer to test her blood sugar in the bathroom before lunch. See, filing 89 at 6; filing 89-9 at 10, 12. She looked for, but could not locate, a biohazard disposal container in which to dispose of her used lancets. Filing 89 at 6. She alleges that, in fact, there was no functioning biohazard disposal container at the Academy. Filing 89 at 5. The plaintiff instead put the lancets in a pop bottle filled halfway with water-a technique she learned in her paramedic training. Filing 89 at 6. Boucher saw the plaintiff throw the bottle in the trash in the Academy break room, and reprimanded her in front of the other trainees, saying that "it wasn't safe, it's against the rules, [the plaintiff] shouldn't have it in the first place." Filing 89 at 6; filing 89-9 at 10-11. The plaintiff describes this reprimand as "loud" and "intimidating." Filing 89-9 at 11. According to the plaintiff, she did not ask Boucher, or anyone else, where to find a biohazard container before being reprimanded by Boucher. Filing 89 at 6.

         Additionally, the plaintiff alleges that on April 11, 2012, a search of the training classroom was conducted. Filing 89 at 7, 20. The plaintiff's glucometer was discovered in her bag. See, filing 89 at 7; filing 89-9 at 9. Boucher stated that the glucometer was contraband, because it was an electronic device. Filing 89 at 7. Also on April 11, the plaintiff alleges that she submitted an incident report "outlining her diabetic condition" at Boucher's request. Filing 89 at 21. According to the plaintiff, her incident report was not forwarded to an ADA coordinator, and no one ever instructed her to contact the ADA coordinator about accommodations for her diabetes. Filing 89 at 8, 22.

         2. The defendants' version of events

          According to the defendants, the plaintiff verbally informed Boucher of her diabetes on the first day of her training at the Academy. Filing 85 at 8-9. She approached him and asked if there was a biohazard disposal container at the Academy. Filing 85 at 9. The following day, he showed her the location of the disposal container, but realized there was no bag inside. Filing 85 at 9. Because the disposal container was inadequate, he advised her to dispose of her medical supplies off-site. Filing 85 at 9. He told Sturdy about the missing bag, and Sturdy informed maintenance. Filing 85 at 31.

         Further, according to the defendants, Boucher never told the plaintiff that her medical supplies were contraband, or that she could not carry them with her at the Academy. Filing 85 at 15. According to the defendants, there were no medical restrictions at the Academy. Filing 85 at 15. Additionally, the defendants contend that Boucher never reprimanded the plaintiff in relation to the disposal of her lancets or her need to leave class to check her blood sugar levels. Filing 85 at 16. Finally, the defendants contend that Boucher "never addressed anything regarding Barry's medical condition in front of the training class." Filing 85 at 15.

         B. Alleged inappropriate conversation

         On April 17, 2012, Boucher overheard part of a conversation between the plaintiff and a male trainee. Filing 85 at 10. According to Boucher, he believed the conversation might be inappropriate for the workplace. Filing 85 at 10. According to the plaintiff, he accused her of saying something about a "happy ending, " a phrase that Boucher interpreted to be of a sexual nature. See, filing 89 at 10; filing 89-9 at 22. The plaintiff contends that she said nothing with a sexual connotation in her conversation with the other trainee. Filing 89 at 10. The parties agree that Boucher spoke to the plaintiff and the other trainee separately, and reminded each "to be mindful of their language, conversations, and behavior in the work environment to ensure that their comments are not misinterpreted or taken out of context." Filing 85 at 10. According to the plaintiff, Boucher also threatened to terminate her. Filing 89 at 10.

         Following her conversation with Boucher, the plaintiff submitted an incident report to Sturdy, requesting an investigation into what she characterized as Boucher's defamatory and offensive accusations. Filing 85 at 10; filing 86-17. Sturdy spoke to Boucher about the situation, but took no further action. Filing 85 at 10-11.

         C. Hypoglycemic episode

         The following facts are not meaningfully disputed. On April 18, 2012, the plaintiff and her training class attended a firearms course at the firing range. Filing 85 at 11. Near the end of the day, the plaintiff asked to return to the shelter to check her blood sugar, and was permitted to do so. Filing 85 at 11. The plaintiff experienced symptoms related to low blood sugar. Filing 85 at 11. She took a glucose tab, and her blood sugar returned to normal. Filing 85 at 11. Boucher offered to contact emergency medical services or take the plaintiff to the hospital, but she said she did not need medical assistance. Filing 85 at 11. She attempted to complete the shooting exercises, but was unable to do so. Filing 85 at 11-12. Boucher again offered to obtain medical assistance, but the plaintiff refused. Filing 85 at 12. After the firearms course, the staff exited the shooting range in vans. Filing 85 at 12. The plaintiff began to feel nauseous, and the driver of the van she was riding in stopped the van. Filing 85 at 12. Although the plaintiff said she did not need medical assistance, Boucher decided to take her to the hospital. Filing 85 at 12. The plaintiff was treated and released the same day. Filing 85 at 12. The plaintiff alleges that after the episode, on April 20, 2012, she provided the defendants with a note from her doctor indicating that she should be permitted to carry glucagon with her during training. Filing 89 at 21.

         D. Termination

         On April 17, Boucher sent an email to Sturdy about what Boucher considered to be the plaintiff's behavioral issues. Filing 85 at 14. Boucher wrote that the plaintiff did not take instruction well, frequently challenged the instructor and NDCS policies, talked during class, asked other trainees inappropriate personal questions, and shared personal information about other trainees with the class. Filing 85 at 14; filing 86-7; see filing 85 at 13. He also reported the conversation he overheard the plaintiff having that he believed to be inappropriate. Filing 86-7. He concluded, "It is of my opinion that Ofc. Barry's attitude / demeanor in the affective domain is not acceptable for para-military work environment of NDCS." Filing 86-7. He also indicated that at least one trainee was likely to submit an incident report complaining about the plaintiff's behavior. Filing 86-7. The plaintiff disputes that Boucher's email was accurate, and presents evidence that other students did not consider her disruptive, that she did not challenge the instructor or talk during class, and that she did not share personal information about other trainees. See filing 89 at 12-16.

         But two other trainees, Michelle Matlock and Emma Grasmick, filed incident reports with Sturdy complaining about the plaintiff's behavior. See, filing 85 at 14; filing 86-5; filing 86-6. Specifically, they complained that the plaintiff let other trainees know that Grasmick was pregnant, that she made inappropriate comments, and that she disrupted class. See, filing 85 at 13; filing 86-5; filing 86-6. Grasmick also shared her opinion that the plaintiff had endangered the safety of others by attempting to complete the shooting exercise at the firing range despite her illness. Filing 86-5. The plaintiff contends that these reports are not accurate. See filing 89 at 12-16. She contends that Grasmick and Matlock frequently harassed her because she sometimes left class to test her blood sugar. Filing 89 at 14-15. The plaintiff stated in her deposition that she complained to Boucher about their behavior, and that other students also complained to Boucher on her behalf. See, filing 89 at 15; filing 89-9 at 14, 17. However, the plaintiff alleges, Boucher took no action, and told the plaintiff that she was being too sensitive. Filing 89 at 15. The defendants, conversely, contend that the plaintiff never reported to Boucher that she was being harassed. Filing 85 at 13.

         On April 23, 2012, Sturdy emailed Kenney recommending that the plaintiff's employment be terminated. Filing 85 at 14. The parties agree that Sturdy made this recommendation on the basis of Boucher's email and the two incident reports filed by other trainees. Filing 85 at 14. Kenney made the final decision to terminate the plaintiff's employment. See filing 85 at 15. He stated in his answers to the plaintiff's interrogatories that he believes he reviewed Boucher's email, the incident reports filed by the other trainees, the incident report the plaintiff filed regarding the alleged inappropriate conversation, and other documents in coming to his decision. Filing 89-7 at 2- 3. He further stated in his affidavit that he did not terminate the plaintiff's employment based on her medical condition or her sex-an assertion the plaintiff disputes. See, filing 86-1 at 3; filing 89 at 18.

         On April 24, 2012, the plaintiff was summoned to Kenney's office and informed that her employment was terminated. Filing 85 at 14. Kenney told the plaintiff that she was terminated because of her disruptive behavior and gossiping, not because of her diabetes or her hypoglycemic episode at the firing range. Filing 85 at 14.

         STANDARD OF REVIEW

         Summary judgment is proper if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the initial responsibility of informing the Court of the basis for the motion, and must identify those portions of the record which the movant 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). 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. Rule 56 also allows the Court to grant summary judgment as to some issues but not as to others. See Fed. R. Civ. P. 56(a).

         On 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. Torgerson, 643 F.3d at 1042. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the evidence are jury functions, not those of a judge. Id. But the nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts. Id. In order to show that disputed facts are material, the party opposing summary judgment must cite to the relevant substantive law in identifying facts that might affect the outcome of the suit. Quinn v. St. Louis County,653 F.3d 745, 751 (8th Cir. 2011). The existence of a mere scintilla of evidence in support of the nonmovant's position will be insufficient; there must be evidence on which the jury could conceivably find for the nonmovant. Barber ...


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