United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge
matter is before the Court on the Motion for Summary
Judgment, ECF No. 20, filed by Defendant Omaha Public Power
District (OPPD). For the reasons stated below, the Motion
will be granted.
following facts are those stated in the Parties' briefs,
supported by pinpoint citations to evidence in the record, in
compliance with NECivR 56.1 and Federal Rule of Civil
Joseph Zagata, a 61-year-old man of Polish national origin,
was employed as a reliability engineer at OPPD's nuclear
power plant in Fort Calhoun, Nebraska, where he was
responsible for a Maintenance Rule Program (MRP). The MRP was
a program required by federal law and designed to ensure
nuclear facilities comply with federal law, including
regulations of the United States Nuclear Regulatory
Commission (the Commission). In 2011, the Fort Calhoun
facility was shut down by the Commission, and OPPD
transferred Zagata and assigned him different job
responsibilities. OPPD also hired an independent contractor,
Exelon, to manage the Fort Calhoun facility.
Fall of 2013, OPPD transferred Zagata back to the MRP and Joe
McManis became his immediate supervisor. By the Spring of
2014, Exelon had overhauled many of the procedures under the
MRP. Under the new program, Zagata was charged with creating
a database for the Fort Calhoun facility's documents
designed to provide information and guidance on certain
pieces of equipment. OPPD believed Zagata was not making
sufficient progress on the database and hired an outside
consultant, John Van Pelt, to assist. Zagata contends he was
making some progress, but that he was not receiving enough
help and that OPPD unreasonably expected him to implement the
database “overnight.” Zagata Depo., ECF No. 22-2,
Page ID 106.
also asked Zagata to train other OPPD employees on the new
MRP, lead expert technical panel meetings, and ensure that
the systems engineers were properly evaluating equipment
performance. However, Van Pelt ultimately assumed each of
these responsibilities. OPPD contends Zagata disregarded his
training and oversight responsibilities, and was not
effective at leading the expert technical panel meetings.
Zagata claims Van Pelt usurped his responsibilities over his
objection. When the Fort Calhoun facility submitted its 2014
Maintenance Rule Health Report, the Commission assigned the
facility its lowest rating. By 2015, the facility's
Commission of the facility rating improved, but the degree to
which the rating improved is disputed. Zagata contends he
contributed to the improvement.
2014 mid-year review and his 2014 annual review stated his
job performance was below expectations; and in December of
2014, his supervisor, McManis, placed him on a performance
improvement plan (PIP). McManis instructed Zagata to take
more leadership over the MRP, to improve the Commission's
rating of the facility, and stop relying on Van Pelt to
perform his responsibilities. Other OPPD reliability
engineers also were placed on PIPs. Without providing first
names, Zagata's statement of facts identified them as
Boston and Swierczyk.
in 2015, Zagata's mid-year review stated his job
performance was below expectations and McManis concluded that
Zagata's performance had not improved under the PIP.
Accordingly, McManis decided to terminate Zagata's
employment in August 2015. A former Exelon employee
identified as Haraj assumed Zagata's MRP
responsibilities. Zagata complained that McManis did not meet
with him during the PIP, that his PIP lasted several months
longer than either Boston's or Swierczyk's, and that
his performance had improved. Neither Boston nor Swierczyk
was terminated, because OPPD believed their performance had
sufficiently improved. Zagata also complained that he was
placed at a disadvantage because the MRP was not managed for
ten months during the 2011 shut down, which created a backlog
of work for him to complete. It is undisputed that neither
McManis nor any other supervisors made comments about
Zagata's age or national origin.
December 15, 2016, Zagata filed his Complaint, ECF No. 1, and
asserted a claim for age discrimination under the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §
623(a)(1), and the Nebraska Age Discrimination in Employment
Act (NADEA), Neb. Rev. Stat. § 48-1004. He also asserted
a claim for discrimination on the basis of his national
origin-Poland-under Title VII of the Civil Rights Act, 42
U.S.C. § 2000e-2(a), and the Nebraska Fair Employment
Practices Act, Neb. Rev. Stat. § 48-1104(1). OPPD's
Motion for Summary Judgment asks the Court to dismiss each of
judgment is appropriate when the evidence, viewed in the
light most favorable to the nonmoving party, presents no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Garrison
v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881, 884
(8th Cir. 2016) (citing Fed.R.Civ.P. 56(c)). “Summary
judgment is not disfavored and is designed for every
action.” Briscoe v. Cty. of St. Louis, 690
F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson v.
City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011)
(en banc)). In reviewing a motion for summary judgment, the
Court will view “the record in the light most favorable
to the nonmoving party . . . drawing all reasonable
inferences in that party's favor.” Whitney v.
Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing
Hitt v. Harsco Corp., 356 F.3d 920, 923-24 (8th Cir.
2004)). Where the nonmoving party will bear the burden of
proof at trial on a dispositive issue, “Rule 56(e)
permits a proper summary judgment motion to be opposed by any
of the kinds of evidentiary materials listed in Rule 56(c),
except the mere pleadings themselves.” Se. Mo.
Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir.
2011) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986)). The moving party need not produce evidence
showing “the absence of a genuine issue of material
fact.” Johnson v. Wheeling Mach. Prods., 779
F.3d 514, 517 (8th Cir. 2015) (quoting Celotex, 477
U.S. at 325). Instead, “the burden on the moving party
may be discharged by ‘showing' . . . that there is
an absence of evidence to support the nonmoving party's
case.” St. Jude Med., Inc. v. Lifecare Int'l,
Inc., 250 F.3d 587, 596 (8th Cir. 2001) (quoting
Celotex, 477 U.S. at 325).
response to the moving party's showing, the nonmoving
party's burden is to produce “specific facts
sufficient to raise a genuine issue for trial.”
Haggenmiller v. ABM Parking Servs., Inc., 837 F.3d
879, 884 (8th Cir. 2016) (quoting Gibson v. Am. Greetings
Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving
party “must do more than simply show that there is some
metaphysical doubt as to the material facts, and must come
forward with specific facts showing that there is a genuine
issue for trial.” Wagner v. Gallup, Inc., 788
F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson,
643 F.3d at 1042). “[T]here must be more than the mere
existence of some alleged factual dispute” between the
parties in order to overcome summary judgment. Dick v.
Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir.
2016) (quoting Vacca v. Viacom Broad. of Mo., Inc.,
875 F.2d 1337, 1339 (8th Cir. 1989)).
other words, in deciding “a motion for summary
judgment, facts must be viewed in the light most favorable to
the nonmoving party only if there is a genuine dispute as to
those facts.” Wagner, 788 F.3d at 882 (quoting
Torgerson, 643 F.3d at 1042). Otherwise, where the
Court finds that “the record taken as a whole could not
lead a rational trier of fact to find for the non-moving
party, ” there is no “genuine issue of material
fact” for trial and summary ...