United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon, Senior United States District Judge.
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
Filing No. 9, Amended Complaint.
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
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.
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.
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.
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
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
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).
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, ...