United States District Court, D. Nebraska
JENNIFER L. BARRY n/k/a JENNIFER L. HENNING, Plaintiff,
STATE OF NEBRASKA, et al., Defendants.
MEMORANDUM AND ORDER
M. GERRARD UNITED STATES DISTRICT JUDGE
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.
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.
The plaintiff's ability to carry and use medical
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
The plaintiff's version of events
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.
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
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.
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.
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.
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
Alleged inappropriate conversation
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.
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.
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.
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.
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.
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.
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.
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).
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 ...