United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. GERRARD CHIEF UNITED STATES DISTRICT JUDGE
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.
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
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.
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.
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.
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.
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.
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.
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.
STANDARD OF REVIEW
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.
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.
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.
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
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.
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
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).
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 ...