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Splittgerber v. State

United States District Court, D. Nebraska

March 18, 2019



          Joseph F. Bataillon, Senior United States District Judge.

         This matter is before the Court on defendants' motion for summary judgment, Filing No. 100, pursuant to Fed.R.Civ.P. 56. Defendants filed a supporting brief and evidence. Filing Nos. 101 and 99. Plaintiff filed a brief in opposition, Filing No. 103, and an index of evidence, Filing No. 102. Plaintiff filed this action alleging hostile work environment in violation of 42 U.S.C.A. § 2000e et seq.[1] Filing No. 9, Amended Complaint.


         The Nebraska State Patrol hired plaintiff as an officer in early fall 2018. David Sankey served as the Colonel in charge of the Patrol until he retired on December 31, 2014. Bradley Rice was the Colonel in charge of the Nebraska State Patrol until July 2017. Stephen Haudrich is a physician licensed in the State of Nebraska and employed at Concentra Urgent Care, 4900 N. 26th Street, Suite 104, Lincoln, Nebraska at all relevant times herein. Defendants are State of Nebraska and the Nebraska State Patrol which is an agency of the State of Nebraska.

         As a candidate for the State Patrol, plaintiff was required to submit to a pre-employment physical examination performed by the defendant, Dr. Haudrich, on behalf of the Nebraska State Patrol. The Nebraska Law Enforcement Training Center (NLETC) has guidelines and requirements for physical examinations. As stated in her amended complaint, plaintiff alleges:

On September 11, 2014 Plaintiff during her pre-employment physical was instructed by Dr. Haudrich to remove her pants, lay on her back on the examination table, bend her knees to put her feet flat on the table and open her knees exposing her genitalia. Then Plaintiff was instructed to roll to the side with knees still bent and lift her right buttocks exposing her anus.

Filing No. 9, at pp. 3-4, ¶ 13. Dr. Haudrich performed the exam on September 11, 2014. A female witness was in the room. Plaintiff contends these are not medically necessary procedures and that she did not consent to the same. Plaintiff previously served as an officer in three different jurisdictions. Not once, she argues, was she ever asked to undergo an examination such as this one. She also contacted her treating physicians who allegedly told her that such an examination was not necessary or job-related. Further, she contends that even though she complained to her superiors as outlined below, at least the next two classes of females underwent the same examinations.

         She reported this incident initially in October 2014 to her class leaders Derik Kermoade and Cassie Wegelin, and then to Sgt. Tony Kavan, and then to her superior, Captain Mark Williams. Major Kyle Otte ultimately informed Colonel Sankey of plaintiff's concerns, and Sankey asked Major Otte to investigate. Plaintiff was told an investigation would occur. She waited what appears to be a couple of years and then asked Rice about the investigation. She received an email regarding the investigation, and she was told that no charges would be filed and there was no evidence of wrongdoing. Filing 99- 1, p. 12, Depo. D. Sankey, 11:14 - 12:6; Filing 99-7, ¶¶ 12-13, Affid. of Sankey. She felt that no investigation was conducted.

         She then contacted the new Superintendent Colonel, Brad Rice. Rice then instructed Patrol employees, including Agency Legal Counsel and the Human Resources Director, to contact the medical facility to determine what had occurred and inquire about their procedures for conducting the examination. Filing 99-14, Depo. B. Rice, 35:5-15. In July 2017 an investigation began regarding the handling of plaintiff's complaint. Lieutenant Lovelace was assigned to conduct an internal affairs investigation. He determined there was insufficient evidence of misconduct against any current State Patrol employee to continue the investigation. In July 2017, NSP Sergeant Phinney was assigned to do a criminal investigation, which was completed in December 2017.

         The Plaintiff also alleges in her brief, but not in her amended complaint, that she was denied the opportunity to apply for a position as a criminal investigator after she complained about the examination and initiated this lawsuit. Initially, this position was opened to troopers in two counties, but not Kearney where plaintiff lived. However, the criminal investigator position was opened to troopers based in Kearney within days of the Plaintiff's resignation from the State Patrol.

         Plaintiff claims the environment became a hostile one. She resigned in May of 2018. Plaintiff filed her EEOC Complaint which was received by the EEOC on May 25, 2017 relating to the incidents described above. Filing No. 102-5, Ex. 5. Plaintiff received a Dismissal and Notice of Rights letter from EEOC which was issued on June 19, 2017. Filing No. 102-6, Ex. 6. The EEOC found plaintiff's claim to be untimely.[2]


         Summary judgment is appropriate when, viewing the facts and inferences in the light most favorable to the nonmoving party, “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(B). The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “The movant ‘bears the initial responsibility of informing the district court of the basis for its motion and must identify ‘those portions of [the record] . . . which it 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) (quoting Celotex, 477 U.S. at 323). 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. (quoting Celotex, 477 U.S. at 324). “The inquiry performed is the threshold inquiry of determining whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). If “reasonable minds could differ as to the import of the evidence, ” summary judgment should not be granted. Id. at 251 (citing Wilkerson v. McCarthy, 336 U.S. 53, 62 (1949).

         The evidence must be viewed in the light most favorable to the nonmoving party, giving the nonmoving party the benefit of all reasonable inferences. Kenney v. Swift Transp., Inc., 347 F.3d 1041, 1044 (8th Cir. 2003). “In ruling on a motion for summary judgment, a court must not weigh evidence or make credibility determinations.” Id. “Where the unresolved issues are primarily legal rather than factual, ...

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