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Zagata v. Omaha Public Power District

United States District Court, D. Nebraska

March 5, 2018

JOSEPH ZAGATA, an individual; Plaintiff,
OMAHA PUBLIC POWER DISTRICT, a political subdivision of the State of Nebraska; Defendant.


          Laurie Smith Camp Chief United States District Judge

         This 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.


         The following facts are those stated in the Parties' briefs, supported by pinpoint citations to evidence in the record, in compliance with NECivR 56.1[1] and Federal Rule of Civil Procedure 56.

         Plaintiff 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.

         In the 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.

         OPPD 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.

         Zagata's 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.

         Again, 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.

         On 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 Zagata's claims.


         “Summary 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).

         In 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)).

         In 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 ...

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