United States District Court, D. Nebraska
LINDA L. FAULKNER, an individual, Plaintiff,
DOUGLAS COUNTY, NEBRASKA, a political subdivision of the State of Nebraska, Defendant.
MEMORANDUM AND ORDER
Smith Camp, Chief United States District Judge
matter is before the Court on the Motion for Summary Judgment
(ECF No. 26) submitted by Defendant Douglas County, Nebraska,
a Political Subdivision of the State of Nebraska
(“Douglas County”). For the reasons discussed
below, the Motion will be granted.
following facts are those stated in the parties' briefs,
ECF Nos. 27, 36, and 38, supported by pinpoint citations to
evidence in the record, ECF Nos. 28, 29, 30 and 37, and
admitted or not properly resisted by the opposing party as
required by NECivR 56.1 and Federal Rule of Civil Procedure 56.
relevant times, Douglas County operated the Douglas County
Correctional Center (“DCCC”) through the Douglas
County Department of Corrections (“DCDC”), and
Dr. Mark Foxall (“Foxall”) was DCDC's
Linda L. Faulkner (“Faulkner”) is an
African-American female, who was age 56 at the time of the
filing of her Complaint in 2015. Faulkner worked at the DCCC
from April 22, 2003, to January 31, 2014, and at all relevant
times was a Correctional Officer II (“COII”).
DCDC's job description for a COII included among the
primary job duties and responsibilities the maintenance of
custody and control of inmates, including the restraint of
combative or disruptive inmates through use of necessary
force. The job description further provided that officers are
required to physically engage inmates, and must remain
physically fit and without medical conditions that would
prevent them from subduing or restraining inmates who pose a
threat to officers or other inmates.
DCDC mandated that those holding the position of COII meet
specific job-related physical requirements, including the
ability to stand, walk, sit, climb stairs, run, kneel, stoop,
crouch, and move quickly from kneeling to standing positions.
The DCDC also required that COIIs maintain the ability to
lift, grip, push, and pull certain minimal weights and
forces, including the ability to lift twenty pounds
frequently, lift up to 350 pounds occasionally as part of a
team lift, push up to 100 pounds and pull up to 80 pounds
occasionally, and push/pull up to 40 pounds on a frequent to
was aware that inmate contact was a COII a job requirement,
as was the ability to intervene physically to stop fights
between inmates, and the ability to restrain combative
August 6, 2012, Faulkner was involved in an inmate
altercation. She suffered a left shoulder strain, hand
contusion, contusion of the lumbar region, and a lumbar
strain. The incident was reported to the Nebraska Workers
Compensation Court as an occupational injury. Faulkner
received medical care, worked intermittent light
from August 12 to 20, and was released to full work duty with
no limitations on August 23, 2012. Faulkner was involved in
another inmate altercation on September 4, 2012, resulting in
another report of occupational injury to the Nebraska Workers
Compensation Court, in which she alleged that she injured her
upper back, left face, and shoulder. On October 26, 2012,
Faulkner underwent left shoulder surgery and was absent from
work until on or about November 26, 2012, when she was
released by her treating physician, Dr. Jonathon E. Buzzell
(“Dr. Buzzell”), with permission to perform
sedentary work with a ten-pound lifting restriction.
January 16, 2013, Dr. Buzzell prescribed physical therapy for
Faulkner, because she suffered from cervical spondylosis with
radiculopathy. On January 17, 2013, Dr. Buzzell noted that
Faulkner was experiencing soreness in her neck, and
diminished cervical range of motion. Dr. Buzzell also noted
that x-rays revealed degenerative disc disease in
Faulkner's cervical spine, and he referred her to a
spinal surgeon, Dr. Bradley S. Bowdino (“Dr.
Bowdino”). Dr. Bowdino ordered an MRI that revealed
multilevel bilateral neural foraminal stenosis and
degenerative disc disease in Faulkner's cervical spine.
On or about April 11, 2013, another physician, Dr. Alicia
Feldman (“Dr. Feldman”), met with Faulkner and
noted that Faulkner would undergo an epidural steroid
injection in her cervical spine, administered by Dr. James
Devney (“Dr. Devney”), and could benefit from a
functional capacity exam (“FCE”) to determine
permanent work restrictions.
April 24, 2013, Dr. Buzzell noted that Faulkner's
shoulder had reached maximum medical improvement and that
Faulkner's work was not limited as to her shoulder. On
May 3, 2013, Dr. Feldman released Faulkner to return to work
with “light duty” restrictions, and referred
Faulkner for an FCE to determine her permanent work
restrictions related to her cervical spine. On May 20, 2013,
Faulkner saw Neal Wachholtz, P.T., (“Wachholtz”)
for an FCE. Based on the FCE, Faulkner was given the
following permanent restrictions: Lifting objects to shoulder
level restricted to 20 pounds on an occasional basis and ten
pounds on a frequent basis; overhead lifting restricted to 15
pounds or less on an occasional basis; no prolonged or
repetitive overhead work; and no pushing or pulling greater
than 40 pounds. Dr. Feldman approved those permanent work
restrictions on May 28, 2013.
continued to work light duty until July 6, 2013, when Foxall
removed Faulkner from light duty status, concluding that she
used the maximum allowable number of days of light duty
pursuant to the CBA.
August 27, 2013, Foxall gave Faulkner a letter notifying her
that her permanent FCE limitations were inconsistent with the
physical requirements of a COII position, and that the
medical information provided to DCDC indicated she was unable
to perform the essential functions of the job. Foxall
suggested that Faulkner advise him if she believed some type
of accommodation would allow her to perform the essential
functions of the COII position, or some other position with
August 28, 2013, the Douglas County workers compensation
coordinator sent Faulkner a letter stating that Douglas
County no longer would pay her temporary total disability
payments or provide medical treatment, because Faulkner
reached maximum medical improvement for her work-related
shoulder injury, and because her treating physicians agreed
her cervical spine condition was not work-related.
September 2013, Faulkner sought care from Dr. Matthew P. West
(“Dr. West”) due to worsening neck pain. He
referred her to Dr. John Hain (“Dr. Hain”) to
discuss surgical options. Dr. Hain recommended an anterior
cervical discectomy and fusion at ¶ 5-C7.
October 7, 2013, Faulkner attended a Douglas County Employee
Review Committee meeting, represented by her workers
compensation attorney. At the meeting, Faulkner asked to be
assigned to DCDC central control or lobby indefinitely, or
with the Douglas County Department of Motor Vehicles, as an
accommodation for her medical status. On October 11, 2013,
Faulkner underwent the anterior cervical discectomy and
fusion surgery as recommended by Dr. Hain.
January 2, 2014, Faulkner filed a workers compensation claim
in the Nebraska Workers Compensation Court.
January 22, 2014, Foxall denied Faulkner's request for an
extension of her injured-on-duty (“IOD”)
benefits, despite a recommendation for the extension by the
DCDC's IOD Committee. Foxall relied on the opinions of
two physicians, Dr. Buzzell and Dr. Chris Cornett (“Dr.
Cornett”), that Faulkner's cervical spine
complaints were not work-related.
January 23, 2014, Foxall advised Faulkner that DCDC would
conduct a hearing on January 31, 2014, to determine whether
Faulkner should be separated from employment due to
disability. At that time, Faulkner had received light duty
assignments at DCDC for a total of 1, 296.83
hours. On January 31, 2014, the hearing took
place. Faulkner was asked whether she could perform the
essential duties of a corrections officer, and she replied,
“Not right now.” Faulkner's employment with
DCDC was terminated. No positions were available at Douglas
County Department of Motor Vehicles.
February 3, 2014, Faulkner began physical therapy to improve
her neck function. On February 18, 2014, Brianne J.
Walbrecht, P.T., D.P.T., recommended that Faulkner cease
physical therapy due to the increased pain suffered with
attempts to improve her soft tissue mobility.
April 8, 2014, Faulkner met with Dr. Meryl A. Severson
(“Dr. Severson”) in connection with a social
security disability claim. Dr. Severson opined that
Faulkner's degenerative cervical disc disease was
permanent and that she likely had received the maximum
benefit of medical treatment. He also concluded that Faulkner
was unable to lift or carry more than ten pounds, and unable
to work with her arms above shoulder level.
April 22, 2014, Dr. Hain ordered another FCE for Faulkner.
The second FCE conducted on April 24, 2014, by Terry Nelson,
P.T. (“Nelson”), restricted Faulkner's
lifting, pushing, and pulling activities to levels below the
DCDC standards for COIIs. On July 29, 2014, Dr. Hain noted
that he adopted the FCE findings, and that Faulkner had
achieved maximum medical improvement. On August 19, ...