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Carter v. Metropolitan Community College

United States District Court, D. Nebraska

January 31, 2017

BRANDI CARTER, Plaintiff,
v.
METROPOLITAN COMMUNITY COLLEGE, a political subdivision of the State of Nebraska and body corporate and politic, Defendant.

          MEMORANDUM AND ORDER

          F.A. GOSSETT UNITED STATES MAGISTRATE JUDGE.

         This 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.

         FACTS

         Unless 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 56.1[1] and Federal Rule of Civil Procedure 56.

         Plaintiff 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).

         Beginning 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 female.

         Plaintiff 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).

         In 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).

         At all 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.

         Specific Allegations of Hostile Work Environment

         Plaintiff 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.

         Plaintiff 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 different.

         Plaintiff 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 “c--t” girlfriend.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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. 92-93).

         Plaintiff 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 ex-husband.

         Plaintiff 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).

         If 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 harassed her.

         Allegations Regarding Retaliation

         Plaintiff 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 ...


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