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Akeredolu v. Eastern Nebraska Veterans Home

United States District Court, D. Nebraska

August 29, 2016

OLUYINKA I. AKEREDOLU, Plaintiff,
v.
EASTERN NEBRASKA VETERANS HOME, NEBRASKA HEALTH AND HUMAN SERVICES, LISA A. BRITT, AND Unit Manager, in her individual and official capacity; and DAWNETTE B. BREDBERG, in her individual and official capacity; Defendants.

          Oluyinka I. Akeredolu, Plaintiff, represented by Vincent M. Ekeh, EKEH LAW FIRM.

          Eastern Nebraska Veterans Home, Defendant, represented by Elizabeth A. Gregory, ATTORNEY GENERAL'S OFFICE & Jessica M. Forch, ATTORNEY GENERAL'S OFFICE.

          Nebraska Health and Human Services, Defendant, represented by Elizabeth A. Gregory, ATTORNEY GENERAL'S OFFICE & Jessica M. Forch, ATTORNEY GENERAL'S OFFICE.

          Lisa A. Britt, Defendant, represented by Jessica M. Forch, ATTORNEY GENERAL'S OFFICE.

          FINDINGS AND RECOMMENDATION

          CHERYL R. ZWART, Magistrate Judge.

         This matter is before the court on Defendants Eastern Nebraska Veterans Home and Nebraska Health and Human Services', and Lisa A. Britt's respective motions to dismiss. (Filing Nos. 21 and 24). For the reasons set forth below, the motions should be granted.

         BACKGROUND

         Plaintiff Oluyinka Akeredolu is an African-American woman of Nigerian descent. She resides in Nebraska and was employed as a Staff Care Technician II by Defendant Eastern Nebraska Veterans Home ("ENVH"). Akeredolu filed a complaint against the ENVH and the Nebraska Department of Health and Human Services ("NDHHS") on April 18, 2015. (Filing No. 1). The initial complaint alleged at least one patient at the ENVH asked if Akeredolu was a citizen of the United States. Akeredolu's supervisors allegedly informed Akeredolu that the patient did not like black people and "did not like people taking care of her." (Filing No. 1, ¶ 12 at CM/ECF p. 3). Plaintiff further alleged she was not allowed to take care of that patient and was "subjected to write ups and counseling based on unsubstantiated, false, and baseless accusations." (Filing No. 1, ¶ 13 at CM/ECF p. 3). She was terminated from her employment. Akeredolu alleges her race was a factor in the decision to fire her. She brought a claim based on the alleged violation of Title VII and sought only monetary damages.

         Upon motion by the ENVH and NDHHS, Plaintiff's complaint was dismissed. Judge John M. Gerrard held that under the Eleventh Amendment an award of monetary relief, including for back pay or damages, is unavailable in suits against the state absent a waiver of immunity by the state or an override of immunity by Congress. The NDHHS is a state agency and the ENVH is a part of the NDHHS. Since neither Nebraska nor Congress have waived or overridden Nebraska's sovereign immunity, the complaint was dismissed. But Plaintiff was allowed to amend her complaint and name any individual employees and managers she believed violated her constitutional rights.

         Plaintiff filed an amended complaint on March 15, 2015, (Filing No. 16). The Amended Complaint again names ENVH and NDHHS as defendants, but adds Lisa A. Britt and Dawnette Bredberg in their individual and official capacities. Lisa Britt is identified as the plaintiff's unit manager and Dawnette Bredberg as the Director of Nursing for ENVH. Lisa Britt was properly served with the Amended Complaint. Dawnette Bredberg has not been served.

         The Amended Complaint essentially repeats the allegations, but specifies that Plaintiff was a Staff Care Technician II from June 2008 to June 2013. (Filing No. 16, ¶ 11 at CM/ECF p. 3). Plaintiff also alleges Britt "was aware of [some] of the[] residents' prejudices towards blacks, " (Filing No. 16, ¶ 13 at CM/ECF p. 3), and that "Plaintiff was subjected to write ups and counselings based on unsubstantiated, false, and baseless accusations made by residents [who] openly expressed their racial prejudices." (Filing No. 16, ¶ 14 at CM/ECF p. 3).

         The Amended Complaint further alleges:

Defendants' termination of her employment was under color of state authority;
As Oluyinka's supervisors, Lisa A. Britt and Dawnee Bredberg discriminated against Oluyinka in the terms and conditions of her employment in violation of 42 USC § 1981;
Defendants received complaints from Oluyinka protesting the discriminating acts of her supervisors but did nothing to intervene or ratify the situation;
By such continuing discriminatory treatment, defendants' agents exposed Oluyinka to embarrassment, humiliation, severe anxiety and great emotional suffering, proximately caused by their violation of her civil rights;
Lisa and Dawnette acting within the scope of their employment with the ENVH intentionally caused the ENVH to infringe on Oluyinka's civil ...

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