United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard Chief United States District Judge.
matter is before the Court on the motion for summary judgment
(filing 30) filed by the defendants: the City of Atkinson,
the Atkinson Police Department, and Tim Larby, the City of
Atkinson's Chief of Police (collectively, the City). The
Court will grant the defendants' motion for summary
2008, the plaintiff, Rhonda Olson, applied for a position as
a police officer with the Atkinson Police Department. Filing
1 at 3. Although Olson was well-qualified, the City chose a
different candidate--Louis Genereux. Filing 1 at 3. When
Olson learned that the position had been offered to Genereux,
she contacted Chief Larby to inquire further. At that time,
Chief Larby told Olson that he simply selected the person
"who he felt was the best fit." Filing 33-1.
May 2017, Olson learned the real reason she was not hired:
Chief Larby did not think that the community was "ready
for a female police officer." Filing 1 at 3. Based on
that discovery, Olson filed this lawsuit claiming that the
defendants violated her constitutional right to equal
protection. Filing 1 at 1. She also alleges that the
defendants' conduct violated art. I, § 1 of the
Nebraska constitution. Filing 1 at 1. The defendants have moved
to dismiss those claims arguing that Olson's claims are
judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant
is entitled to judgment as a matter of law. See Fed.R.Civ.P.
56(a). The movant bears the initial responsibility of
informing the Court of the basis for the motion, and must
identify those portions of the record which the movant
believes demonstrate the absence of a genuine issue of
material fact. Torgerson v. City of Rochester, 643
F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does
so, the nonmovant must respond by submitting evidentiary
materials that set out specific facts showing that there is a
genuine issue for trial. Id.
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. Id. Credibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the evidence are jury
functions, not those of a judge. Id. But the
nonmovant must do more than simply show that there is some
metaphysical doubt as to the material facts. Id. In
order to show that disputed facts are material, the party
opposing summary judgment must cite to the relevant
substantive law in identifying facts that might affect the
outcome of the suit. Quinn v. St. Louis County, 653
F.3d 745, 751 (8th Cir. 2011). The mere existence of a
scintilla of evidence in support of the nonmovant's
position will be insufficient; there must be evidence on
which the jury could conceivably find for the nonmovant.
Barber v. C1 Truck Driver Training, LLC, 656 F.3d
782, 791-92 (8th Cir. 2011). Where the record taken as a
whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.
Torgerson, 643 F.3d at 1042.
briefly noted above, Olson contends that the City violated
her constitutional rights under the United States
Constitution and the constitution of the State of Nebraska.
Seefiling 1 at 5-10. But according to the City,
Olson's claims are time-barred. Filing 31 at 5. That is
true, the City says, because Olson's claim for relief
accrued in on April 30, 2008, when she was not hired as a
police officer, but this lawsuit was not filed until February
6, 2018- -well beyond the four year statute of limitations.
SeeNeb. Rev. Stat. § 25-212; Lindner v.
Kindig, 826 N.W.2d 868, 872 (Neb. 2013); Montin v.
Estate of Johnson, 636 F.3d 409, 412-13 (8th Cir. 2011).
on the other hand, alleges that the underlying action is
timely. Filing 34 at 1. To support that contention, Olson
suggests that her claim did not accrue in 2008, but rather on
May 30, 2017--the date that she says she first learned her
gender was the sole reason she was not hired. Filing 34 at 1.
And she says that because the City "actively misled
Olson as to the real reason she wasn't hired," there
was no way to know of the discrimination before that date.
Filing 34 at 1.
question before the Court is this: what date did Olson's
claims accrue? To answer that question, the Court must
separately determine when Olson's federal claims and
state-law claims accrued. That is true because the accrual
date of Olson's federal constitutional claims are not
resolved by reference to state law. Wallace v. Kato,
549 U.S. 384, 388 (2007); Montin, 636 F.3d at 413.
And as the Supreme Court has explained, aspects of §
1983 which are not governed by reference to state law are
governed by federal rules conforming to common-law tort
principles. Wallace, 549 U.S. at 388.
standard federal rule is that accrual occurs when the
plaintiff has a complete and present cause of action, that
is, when the plaintiff can file suit and obtain relief.
Id. Under this rule, the tort cause of action
accrues, and the statute of limitations commences to run,
when the wrongful act or omission results in damages.
Id. at 391. The cause of action accrues even though
the full extent of the injury is not then known or
predictable. Id. Were it otherwise, the Court has
explained, the statute would begin to run only after a
plaintiff became satisfied that he or she had been harmed
enough, placing the supposed statute of repose in the sole
hands of the party seeking relief. See id.
problem this presents for Olson is evident. Here, the
wrongful act (i.e., gender discrimination) occurred
in 2008 when Olson was not hired for the police officer
position. Filing 1 at 2. But she did not file this case until
February 6, 2018. Filing 1 at 1. Olson attempts to alleviate
that problem by claiming that prior to May 2017 she had
"no reason to believe" that she was not hired
because of her gender. But whatever the plaintiff might have
believed, she had already been injured-the discrimination