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Weber v. County of Lancaster

United States District Court, D. Nebraska

April 1, 2019

NANCY WEBER, Plaintiff,
v.
COUNTY OF LANCASTER, Defendant.

          MEMORANDUM AND ORDER

          JOHN M. GERRARD CHIEF UNITED STATES DISTRICT JUDGE

         The plaintiff, Nancy Weber, is suing her former employer, Lancaster County, for allegedly discriminating against her in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.; violating the Family Medical Leave Act (FMLA) 29 U.S.C. § 2601 et seq.; violating Nebraska Fair Employment Practice Act (NFEPA) Neb. Rev. Stat. § 48-1101 et seq.; and retaliating against her for activity protected by all three provisions.

         This matter is before the Court on the defendant's motion for summary judgment (filing 54). For the reasons set forth below, the Court will grant that motion in part and deny it in part.

         I. BACKGROUND

         From 2000 until she was constructively discharged in May 2015, Weber worked as a paralegal in the Child Support Division at the Lancaster County Attorney's office. filing 55 at 18. During the first few years of Weber's employment, each child support matter was staffed using a "team approach"- using one legal secretary and one paralegal. See filing 55 at 5. Under that staffing method, legal secretaries generally worked to obtain child support orders from the court (i.e., the establishment phase) while paralegals generally monitored support payments and prepared bench warrants if obligations were not being met (i.e., the enforcement phase). See filing 66 at 3; filing 69 at 1.

         But in 2013, the Division implemented a "single case owners" approach. Under this case structure, a single employee, either a former secretary or paralegal, now handled both the establishment and enforcement phase of any given case. Filing 66 at 4; filing 69 at 2. Although County employees were not required to transition to the single case owner approach, Weber allegedly volunteered to switch to the new structure. See filing 58-2 at 28-29; 32. Under the single case owner approach, Weber was now in charge of conducting custodial party interviews, setting up case files, filing legal documents electronically, and other tasks previously performed by legal secretaries during the establishment phase of a given matter. See filing 58-2 at 29-30; filing 66 at 4; filing 69 at 3-4. Weber also continued to perform her previous enforcement duties--such as preparing support orders, monitoring child support payments, and preparing bench warrants. See filing 66 at 3.

         The transition from the "team approach" to the "single case owner approach" was, however, difficult for Weber. See filing 58-2 at 96. In particular, Weber admits that while she was staying close to the required two-week turnaround, she was having a hard time doing so. Filing 58-2 at 69.

         And while Weber attempted to adjust to work as a single case owner, she also experienced personal hardships outside of the work place. On October 2014, Weber's husband had a heart attack requiring open heart surgery. See filing 58-2 at 50. Weber used FMLA leave to take care of her husband while he recovered. See filing 58-2 at 53. But, according to Weber, she was only permitted to take intermittent rather than full FMLA leave. See filing 58-2 at 57. And because she was not allowed to take full leave, Weber contends that she was required to work five hours a day, in addition to providing around-the-clock care of her husband. Filing 58-2 at 57. The stress of having to juggle her responsibilities at work while also caring for her husband, Weber claims, caused her rheumatoid arthritis to flare up. Filing 66 at 5.

         In an effort to accommodate her rheumatoid arthritis, Weber requested the following accommodations: (1) a split keyboard, (2) a headset, (3) relocating her files, and (4) to be transitioned back to a paralegal position under the team approach (as opposed to the single case owner). See filing 58-2 at 126-127. The County accommodated most of those requests: it provided Weber with a split keyboard and a headset, and relocated her files to just outside her office door. See filing 58-2 at 83; 126-127. But the County declined to transfer Weber to cases still using the team approach. See filing 15 at 8; filing 58-2 at 83. So, Weber continued to work as a single case owner and tried to keep her workload at a manageable level. Filing 58-2 at 69.

         On April 7, 2016, Weber informed the County that she needed to take FMLA leave for a surgery she had scheduled in May. See filing 58-2 at 67. The foot surgery was necessary to repair a deformity in her foot caused by her rheumatoid arthritis. See filing 66 at 1. But before her scheduled surgery, the County informed Weber that she was required to attend a pre-disciplinary meeting regarding purported performance issues. See filing 69 at 10.

         In that meeting, the County informed Weber that there were problems with many of her case files. See filing 58-2 at 69. Specifically, the County noted that Weber had not been keeping up with her workload. See filing 58-2 at 69. Two days later, the County informed Weber that she could either retire, or be terminated. filing 58-2 at 70. When presented with that choice, Weber reluctantly decided to retire. Filing 58-2 at 70.

         II. STANDARD OF REVIEW

         Summary 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.

         On 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. 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.

         III. DISCUSSION

         Weber's operative complaint challenges the County's decision not to transfer her to a paralegal position under the team approach, as well as its subsequent decision to constructively terminate her employment. Filing 15 at 7-15. Weber also contends that the County interfered with her right to take FMLA leave on at least two occasions: (1) in 2014 when her husband was recovering from his heart attack, and (2) in 2016 when she tried to take FMLA leave for a scheduled a foot surgery. Filing 69 at 10-11.

         The County argues that Weber's claims are time-barred and, alternatively, that each allegation fails as a matter of law. Filing 54. The Court will begin its analysis with Weber's claims that the County discriminated against her disability before moving on to Weber's contentions that the County interfered with her rights to FMLA leave and retaliated against her for exercising her right to FMLA leave.

         1. ADA AND NFEPA

         As briefly noted above, Weber alleges that the County engaged in disability discrimination in violation of the Americans with Disability Act of 2008 (ADA), 42 U.S.C. § 12101 et seq. and the Nebraska Fair Employment Practices Act (NFEPA), § 48-1101 et seq. Filing 15 at 8-15. In particular, Weber claims that the County failed to reasonably accommodate her disability, discriminated against her disability, and retaliated against her disability. The County has moved for summary judgment on both of those claims.

         Before turning to the merits of that claim, however, the Court must address the County's contention that Weber's allegations under the NFEPA and ADA are time-barred. Under both statutory schemes, a plaintiff must file a written charge of an alleged unlawful employment practice within 300 days of the events giving rise to her claims. See Neb. Rev. Stat. § 48-1118(2); § 12117 (incorporating 42 U.S.C. § 200(e)-5(e)(1)). This 300-day clock begins to run at the time of the discrete discriminatory or retaliatory act, and not when the consequences of the act become most painful. Delaware State College v. Ricks, 449 U.S. 250, 258 (1980); Conner v. Reckitt & Colman, Inc., 84 F.3d 1100, 1102 (8th Cir. 1996). A discriminatory act can be the denial of a request for a reasonable accommodation, termination, failure to promote, denial of transfer, or refusal to hire. See Dick v. Dickinson State University, 826 F.3d 1054, 1059 (8th Cir. 2016); Taxi Connection v. Dakota, MN & Eastern R.R. Corp., 513 F.3d 823, 825 (8th Cir. 2008). So, for Weber's ADA or NFEPA claim to be actionable, the discriminatory act must have occurred on or after December 21, 2015--300 days before her formal charge was filed on October 11, 2016. Filing 15 at 7.

         Weber claims that the County violated the ADA and NFEPA: (1) when the County denied Weber's request to be transferred back to cases using the team approach, (2) when the County allegedly forced Weber to retire because of her disability, and (3) when the County retaliated against Weber for seeking an accommodation of her disability. See filing 15 at 7. With respect to Weber's latter two contentions, those claims are clearly within the 300-day limitations period. Indeed, Weber claims that in May 2016, she was discharged based, at least in part, on the County's discriminatory and retaliatory animus toward Weber's disability. See filing 66 at 22. That occurred just a few months before Weber filed her charge and as such, Weber's discrimination claim is not barred. See Dick, 826 F.3d at 1059.

         But Weber's request to be transferred back to cases using the "team approach" is outside of the 300-day statutory window. Filing 58 at 27. As noted above, the 300-day clock begins to run at the time the discriminatory act occurred--not the time the consequences become most painful. Delaware State College, 449 U.S. at 258; Conner, 84 F.3d at 1102. That means the window for Weber's reasonable accommodation request began to run at the time Weber's accommodation request was denied--on June 26, 2015--rather than at the time she was terminated. See filing 58 at 27. But June 26, 2015 is approximately 475 days before her formal charge was filed. And the Court is not persuaded by Weber's contention that because she renewed her request to return to the team setting in January 2015, that her accommodation claim is timely. See filing 66 at 19. After all, any subsequent request for the same accommodation does not, and cannot, restart the statute of limitations period. See Taxi Connection v. Dakota, Minnesota & E. R.R. Corp., 513 F.3d 823, 826 (8th Cir. 2008); see also Mercer v. Se. Pennsylvania Transit Auth., 26 F.Supp.3d 432, 442 (E.D. Pa. 2014), aff'd sub nom. Mercer v. SEPTA, 608 Fed.Appx. 60 (3d Cir. 2015); Brown v. Reg'l W. Med. Ctr., 916 N.W.2d 590, 597 (Neb. 2018).

         So, while Weber's disability discrimination and retaliation claims are not barred by the statute of limitations, the County's denial of Weber's request to be returned to a team setting is time-barred and cannot be considered for Weber's disability claim. SeeC ...


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