United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. ROSSITER, JR. United States District Judge.
matter is before the Court on the Motion for Summary Judgment
(Filing No. 32) submitted by the Defendant The Nebraska
Methodist Hospital (“Nebraska Methodist”). For
the reasons stated below, the motion will be granted.
The Complaint sets forth the following claims:
1. Nebraska Methodist discriminated against Plaintiff Curtis
Johnson (“Johnson”) on the basis of race and
color in violation of Title VII of the Civil Rights Act of
1964, as amended (“Title VII”), 42 U.S.C. §
2. Nebraska Methodist discriminated against Johnson on the
basis of race and color in violation of the Nebraska Fair
Employment Practice Act (“NFEPA”), Neb. Rev.
Stat. § 48-1104;
3. Nebraska Methodist retaliated against Johnson in violation
of the anti-retaliation provisions of Title VII, 42 U.S.C.
§ 2000e(3)(a); and
4. Nebraska Methodist retaliated against Johnson in violation
of the NFEPA, Neb. Rev. Stat. § 48-1114.
claims can be boiled down to the following:
1. Race and color discrimination based upon unfair discipline
2. Race and color discrimination based upon three failed
requests by Johnson to transfer to day-shift positions; and
3. Retaliation for having filed an internal grievance
regarding failed requests for transfer.
Methodist seeks summary judgment on each of these claims.
otherwise noted, the following facts were presented in the
parties’ briefs and supported by pinpoint citations to
admissible evidence in the record. The parties have admitted
these facts, or have not properly controverted
as required by NECivR 56.1 and Fed.R.Civ.P. 56.
Methodist is a non-profit corporation with its principal
place of business in Omaha, Nebraska. Nebraska Methodist
hired Johnson, a black male, on or about December 13, 2010,
to work as a Security Officer primarily at Methodist
Hospital, but also at Nebraska Methodist’s
Women’s Hospital, and sometimes at Nebraska
Methodist’s College of Nursing. Johnson began working
full time on the night shift on March 24, 2011, and continued
in that capacity until November 8, 2013. On November 8, 2013,
Johnson was transferred, at his request, to a shift working
6:00 a.m. to 2:30 p.m. three days a week and 2:00 p.m. to
10:30 p.m. two days a week.
written job description for the position of Security Officer
at Nebraska Methodist required that Security Officers obtain
clearance from the Nuclear Regulatory Commission
(“NRC”) to be able to work in Methodist
Hospital-Johnson’s main duty station. In order to
obtain such clearance, an employee must be continually found
to be “trustworthy and reliable.” Security
Officers are required by Nebraska Methodist to have this
designation for a number of reasons, including the fact that
they have access to secured data, systems, and equipment
governed by or related to the NRC and the Nebraska Department
of Health and Human Services. Maintenance of this
“trustworthy and reliable” designation is,
according to the Job Description, a stated function of the
job as a Security Officer. Johnson admits knowing this
clearance was necessary for his job.
Whiteing (“Whiteing”), a white male, directly
supervised Johnson as the Team Leader until April 29,
2013. On or about April 29, 2013, another Team
Leader, Jeffery Farmer (“Farmer”), a black male,
became Johnson’s direct supervisor. Johnson’s
position included following the direction of the Lead
Security Officer, Ron Ware (“Ware”), a black
performance evaluation Whiteing completed for Johnson dated
March 21, 2013 (Employee Engagement Rating), Johnson received
ratings of either “fair” or “good” on
a scale of 1-4 (1 - “poor”, 2 -
“fair”, 3 - “good”, 4 - “very
good”). Johnson does not dispute the fairness or
accuracy of the March 21, 2013, evaluation. On the same date
of his evaluation, Johnson received a “Moving
Organizational Performance Employee Conversation” which
specifically addressed performance concerns, including
Johnson being “slow to respond to calls to back up
fellow officers, ” as well as failing to follow the
uniform policy, failing to complete required reports, and
other issues. That document also informed Johnson of the need
to respond to security calls in a more expeditious manner. In
addition, the document stated Johnson needed to improve his
attitude and any further issues with patients or co-workers
after March 21, 2013, would result in disciplinary action.
midst of these performance issues and counseling, Farmer
offered Johnson additional training to attempt to improve his
performance and to allow him to obtain a certification by the
International Association of Healthcare Safety and Security.
Farmer provided some books to Johnson relating to the course,
but Johnson eventually declined that offer of training.
about October 2013, Johnson asked to be moved to the day
shift. Linda Moore (“Moore”), a black female Team
Lead Security Officer who had worked with Johnson, told the
decision makers Johnson would not be a good fit for that
position. Tom Pacura (“Pacura”), a white male,
was moved to an open day shift rather than Johnson due to
Moore having reported that Johnson lacked communication
skills and seemed to lack motivation.
December 27, 2013, Farmer issued a “Misconduct
Documentation Form” which documented a discussion with
Johnson in which he was counseled about telephoning a female
employee in the Methodist Health System at her residence. The
employee complained she never gave Johnson her name or phone
number and she was concerned and frightened about the call.
The Documentation Form warned Johnson he would face
additional disciplinary action if another incident of that
February of 2014, Johnson applied for another open day-shift
position. In this instance, Christine King
(“King”), a white female, was awarded the
filed an internal grievance with Nebraska Methodist on or
about February 25, 2014, challenging the decisions to award
the day-shift positions to Pacura and King. Even though the
grievance appeared to complain about the selection of Pacura,
in the body of the written grievance, Johnson indicated that
he was “fine with” the decision to hire Pacura
because Pacura had more seniority than Johnson.
Maheux (“Maheux”), Director of Employee Relations
at Methodist Health Systems, investigated the grievance.
Following the completion of the investigation, Maheux met
with Johnson on March 7, 2014, and told him her investigation
had found the decision to hire King was appropriate because
Methodist would benefit from having a female Security Officer
on the day shift. For example, if a sexual assault victim
was brought to the hospital during the day, a female Security
Officer could be present. In addition, Maheux informed
Johnson one of the reasons he was not chosen for the
day-shift position was due to his ongoing performance issues.
then told Johnson that protocol was to send her findings to
the Vice Presidents of Integrated Services and Human
Resources at Nebraska Methodist as well as the President and
Chief Executive Officer (“CEO”) of Methodist
Health System for review and that the CEO would then make a
final decision. On March 11, 2014, Johnson informed Maheux
that he did not want to continue the grievance. Significantly,
nowhere in the grievance (or any other communication) did
Johnson raise any issues with regard to his race or color
being a reason or, even a suspected reason for his
March 28, 2014, the Emergency Department informed security
that a patient was missing-a “Code Adam”
(possible child abduction). Ware instructed Johnson to
respond immediately and attempt to find the patient. Ware
concluded Johnson did not promptly respond to this Code Adam
because Ware left the security office after Johnson but Ware
actually arrived at the Emergency ...