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Maclin v. City of Omaha

United States District Court, D. Nebraska

August 18, 2016

MAKAYLA MACLIN, Plaintiff,
v.
CITY OF OMAHA, NEBRASKA, Defendant.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Plaintiff, an African-American female who is employed as an Assistant City Attorney for the City of Omaha, Nebraska (“the City”), filed this action against the City under the Nebraska Fair Employment Practices Act (“NFEPA”), Neb. Rev. Stat. §§ 48-1101 to 48-1125; 42 U.S.C. §§ 1981 and 1983; and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17, as amended. The City has filed a motion to dismiss portions of Plaintiff’s second amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). (Filing 17.)

         I. CLAIMS & FACTUAL ALLEGATIONS

         Plaintiff brings the following claims:

Count I Discrimination-Race NFEPA, Title VII, §§ 1981 & 1983
Count II Hostile Working Environment-Race NFEPA, Title VII, §§ 1981 & 1983
Count III Discrimination-Gender NFEPA, Title VII
Count IV Hostile Working Environment-Gender NFEPA, Title VII
Count V Discrimination-Gender Plus Race or Race Plus Gender NFEPA, Title VII
Count VI Hostile Working Environment-Gender Plus Race or Race Plus Gender NFEPA, Title VII
Count VII Retaliation NFEPA, Title VII, §§ 1981 & 1983
Count VIII Retaliatory Hostile Working Environment NFEPA, Title VII, §§ 1981 & 1983

(Filing 16, Second Amended Complaint.)

         Plaintiff alleges that the following events occurred during her City employment, and that such events form the basis for her claims:

Aug. 2004 Plaintiff began her employment with the City of Omaha.
Feb. 2009 After Plaintiff filed a complaint of discrimination against a white co-worker, the City failed to conduct annual performance evaluations of Plaintiff. The City failed to advise Plaintiff of the status of her complaint or the City’s findings, and the “unlawful conduct has continued throughout Plaintiff’s tenure of employment.”
Oct. 2011 Plaintiff “was prohibited” from applying for a promotion to Senior Attorney, in violation of City policy and despite the fact she was qualified for the position.
Late 2012-Early 2013 Plaintiff took maternity leave and was required to meet substantially more stringent conditions than at least one similarly situated white female employee who also took maternity leave. The City required Plaintiff to take FMLA leave, use 480 hours of sick leave, submit leave slips for all leave taken, and attend a work meeting while on leave.
After Plaintiff took maternity leave, City managerial employees “repeatedly asked Plaintiff if she is pregnant and/or if she is planning on becoming pregnant.” Such questions have “continued through the present.” City managerial employees have stated that “women should not be hired as they may get pregnant” and have referred to women as “uterus factories.”
Plaintiff was assigned to the worst courtroom, and after she returned from FMLA leave, her child-abuse assignment was permanently ...

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