United States District Court, D. Nebraska
MEMORANDUM AND ORDER
GOSSETT UNITED STATES MAGISTRATE JUDGE.
matter is before the court on the Motion for Summary Judgment
(Filing No. 23) filed by Defendant, Metropolitan
Community College (“MCC”) and the Motion to
Strike the Transcript of Pebley Interview (Filing No.
35) filed by Plaintiff, Brandi Carter. For the reasons
explained below, the court will grant the motion for summary
judgment. The court will deny as moot Plaintiff's motion
to strike because the court's summary judgment ruling is
not based on any evidence contained in the exhibit Plaintiff
requests be stricken.
otherwise noted, the following facts were presented in the
parties' briefs, Filing Nos. 24, 37, and 40, and
supported by pinpoint citations to admissible evidence in the
record. The parties have admitted these facts, or have not
properly controverted them as required by NECivR
and Federal Rule of Civil Procedure 56.
is a Caucasian female residing in Omaha, Nebraska. Defendant
MCC is a political subdivision of the State of Nebraska. In
September 2009, Plaintiff began her employment with MCC as a
part-time Health & Public Services Specialist, working 18-20
hours per week. At all times while Plaintiff was employed by
MCC, she was supervised by Dean Stacey Ocander (“Dean
Ocander”), a female. Plaintiff's duties as a
part-time employee included helping individuals enroll in
certified nurse assistant classes, assisting Erin Olson
(“Ms. Olson”) (who was at that time the associate
to the dean's office), answering phones and greeting
students, and generally doing whatever Dean Ocander wanted
her to do. Plaintiff testified she has Epstein-Barr Syndrome,
and informed Dean Ocander of this diagnosis sometime in 2012.
(Filing No. 32-3 at pp. 117-118).
in 2013, and during the remainder of her part-time
employment, Plaintiff worked in an office suite with Dean
Ocander, Ms. Olson (during January 2013), Tina Pebley (who
replaced Ms. Olson after January 2013), Jessica Vanderloo,
Laura Leach, and Kay Robinson (who was later replaced by
Kelly Grammer). All the employees in the office suite were
applied for and was hired by Dean Ocander for a full-time
faculty secretary position, effective July 23, 2014. The
previous full-time faculty secretary, Lauri Cook (“Ms.
Cook”), was female. At or near the time Plaintiff
applied for the full-time position, on July 8, 2014, she
signed a “Voluntary Self-Identification of
Disability” form provided to her by MCC, checking the
box that said, “No, I don't have a
disability.” (Filing No. 31-2 at p. 3;
Filing No. 31-5).
Plaintiff's full-time position from July 23, 2014,
through the date of her termination on November 4, 2014, she
worked in the same building she had worked in as a part-time
employee, but in a different office. In the full-time
position, Plaintiff performed secretarial duties and provided
general secretarial support for the faculty. Plaintiff
testified that her working hours were originally set at 8:00
a.m. to 5:00 p.m., with one hour for lunch. (Filing No.
32-3 at p. 27). Plaintiff testified Dean Ocander
permitted Plaintiff to change her start time to 8:30 a.m. so
that Plaintiff could drop her children off at school in the
morning. (Filing No. 32-3 at pp. 27-28).
times during Plaintiff's employment with MCC, MCC had a
“Policy Prohibiting Harassment of Employees &
Discrimination.” MCC's harassment policy provided,
“Employees who believe they have been subjected to
unlawful discrimination or harassment should file a complaint
with Associate Vice President for Equity and Diversity, the
College's General Counsel, or the Associate Vice
President of Human Resources (“HR”).”
MCC's harassment policies were freely available and
accessible online to employees of MCC, including Plaintiff,
and members of the general public. During Plaintiff's
employment with MCC, Cynthia Good was MCC's Associate
Vice President for Equity and Diversity, James Thibodeau was
MCC's General Counsel, and Maureen Moeglin (“Ms.
Moeglin”) was MCC's Associate Vice President of
Human Resources. Plaintiff never filed a complaint of
discrimination/harassment with, or complained about, Dean
Ocander's treatment of employees to any of the above
three designated individuals.
Allegations of Hostile Work Environment
alleges that between September and October 2009, Dean Ocander
made statements to Plaintiff that she “needed a
vibrator” and that Dean Ocander would take Plaintiff
“across the bridge [in reference to Council Bluffs,
Iowa] to get one.” (Filing No. 32-3 at p.
139). Plaintiff further alleges during her part-time
employment, “Dean Ocander often walked in an
exaggerated, bowlegged manner through the office . . . saying
she overused her vibrator the night before.” Plaintiff
alleges that on at least 20 occasions, Dean Ocander called
the employees and the staff in the office area a “bunch
of hookers.” Plaintiff did not know the last time she
heard Dean Ocander use the expression and did not know
whether she heard Dean Ocander use that expression during
Plaintiff's full-time employment. According to Dean
Ocander, neither she nor other staff members used the
expression other than in a joking or endearing manner.
alleges Dean Ocander used the phrase “f--k me
running” in the workplace on multiple occasions.
Plaintiff never heard Dean Ocander direct the expression at
Plaintiff or anyone else. Plaintiff and others in the
workplace also used the “F-word” here and there
in the workplace. In Plaintiff's opinion, Dean
Ocander's use of the expression was “vulgar and
implie[d] something of a sexual nature, ” while
Plaintiff's use of the f-word as an expletive was
alleges that on five to ten occasions beginning in 2012, Dean
Ocander sat in the office suite near Plaintiff's assigned
desk and talked “for hours” about Dean
Ocander's ex-husband and his “whore” or
alleges that on two or three occasions during her part-time
employment, Dean Ocander briefly lifted up her own skirt
exposing her “private parts” to all the
employees/staff in the office area. Plaintiff testified that
by “private parts, ” she meant she could see Dean
Ocander's nylons and her underwear. (Filing No. 32-3
at p. 75). Plaintiff could not recall the last time she
saw this occur.
alleges that on two occasions in 2014, Dean Ocander joked to
a new employee about having failed MCC's sexual
harassment training, and on one occasion shouted to the
entire office in a self-congratulatory tone that she failed
her sexual harassment training. Plaintiff admitted she
understood those statements to be jokes.
alleges that sometime between 7:00 p.m. and 8:30 p.m. on
October 1, 2014, she participated in a group text message
with Dean Ocander and the other employees from the office in
which Dean Ocander referred to Ms. Pebley and Ms. Vanderloo
as “ass wipes, ” referred to all staff/employees
as “hookermeat wipes, ” and also wrote,
“jerk bait keep singing for your mate, damn I can't
rhymth [sic] screw it.” Finally, Plaintiff alleges that
on two occasions during her part-time employment, Ms. Olson
walked through the office area with a plastic penis as part
of a “ring toss” game. Plaintiff testified Ms.
Olson was “made” to do it, although Plaintiff did
not know how it came about. (Filing No. 32-3 at pp.
admits she never indicated to Dean Ocander that Plaintiff
found any of the above behavior distasteful or offensive.
Plaintiff also admits she never complained about or reported
Dean Ocander's behavior to MCC. Plaintiff did indicate to
her coworkers, Ms. Cook, Ms. Olson, Laura Leach, Kay
Robinson, Ms. Vanderloo, Ms. Pebley, and Peggy Dean, that
Plaintiff found Dean Ocander's use of the expression
“f--k me running” offensive. Plaintiff also
indicated she “would have said something” to Ms.
Cook about Dean Ocander's discussions regarding her
asserts she did not complain about any of Dean Ocander's
behavior because she “didn't feel safe.”
(Filing No. 32-3 at p. 77). Plaintiff testified that
Dean Ocander would be “nasty” to Plaintiff and
“give privileges to other people and not me” if
Plaintiff “acted like [she] was not interested in what
[Dean Ocander] had to say or her stories or her antics or
anything[.]” (Filing No. 32-3 at p. 76).
Plaintiff also submitted an affidavit from Ms. Olson, who
stated that on one occasion, Ms. Olson reported Dean
Ocander's “unethical business practices” to
Ms. Moeglin, MCC's Associate Vice President of Human
Resources. In her affidavit, Ms. Olson does not specify what
the “unethical business practices” were. Shortly
after Ms. Olson's report, Dean Ocander called Ms. Olson,
“furious.” Ms. Olson stated that in the following
weeks, Dean Ocander avoided Ms. Olson, glared in Ms.
Olson's direction, excluded Ms. Olson from daily
activities, and communicated with Ms. Olson through email
only. Ms. Olson resigned her employment in January 2013
“due to Ocander's harassment of and retaliation
against me for having reported her.” (Filing No.
37-1 at pp. 1-2).
Plaintiff ever indicated to anyone at MCC that Dean
Ocander's behavior or language were offensive,
distasteful, or unwelcome, Dean Ocander was not aware of it.
Plaintiff does not claim that anyone other than Dean Ocander
claims that when she was a part-time employee, Dean Ocander
treated Plaintiff differently from Ms. Vanderloo, Ms. Leach,
and Ms. Cook. When Plaintiff was a full-time employee, she
asked permission from Dean Ocander to work through lunch
periods so she could leave work early every day to pick up
her children. Plaintiff testified Dean Ocander allowed
Plaintiff's predecessor, Ms. Cook, to work through lunch
periods. Plaintiff did not ...