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Benson v. City of Lincoln

United States District Court, D. Nebraska

April 22, 2019



          Richard G. Kopf Senior United States District Judge.

         In yet another lawsuit[1] alleging that employees of the City of Lincoln and Lincoln Fire and Rescue (“LF&R” or “LFR”) discriminated against, retaliated against, and created a hostile work environment for female firefighters on the basis of sex and/or national origin, Plaintiff Amanda Benson asserts in her Second Amended Complaint (Filing No. 18) the following causes of action (“COA”) against the City of Lincoln and eight other Defendants in their individual and official capacities:

COA 1: NFEPA[2] Hostile Work Environment
COA 2: NFEPA Discrimination Based on Sex
COA 3: NFEPA Retaliation
COA 4: Title VII[3] Hostile Work Environment
COA 5: Title VII Discrimination Based on Sex
COA 6: Title VII Retaliation
COA 7: Equal Protection (City of Lincoln & Defendants in Official Capacities)
COA 8: Equal Protection (Individual Defendants in Individual Capacities)
COA 9: 42 U.S.C. § 1985 Conspiracy

         Defendants move to dismiss Plaintiff's claims under Fed.R.Civ.P. 12(b)(6) and the doctrine of qualified immunity or, alternatively, to strike several of the allegations contained in Plaintiff's Second Amended Complaint under Fed.R.Civ.P. 12(f). (Filing No. 23.)


         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This “plausibility standard” is not one of probability, “but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. Where a complaint contains facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Twombly, 550 U.S. at 557 (brackets omitted).

         “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. “But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. (quoting Fed.R.Civ.P. 8(a)(2)). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678.

         In the discrimination context, “[i]t is not necessary to plead facts sufficient to establish a prima facie case at the pleading stage. The prima facie standard is an evidentiary standard, not a pleading standard, and there is no need to set forth a detailed evidentiary proffer in a complaint.” Blomker v. Jewell, 831 F.3d 1051, 1056 (8th Cir. 2016) (internal quotation marks and citations omitted). However, “the complaint must include sufficient factual allegations to provide the grounds on which the claim rests.” Id. (internal quotation marks and citation omitted).


         Plaintiff's 181 paragraphs of allegations in her Second Amended Complaint (Filing No. 18) can be summarized as set forth in Plaintiff's Brief in Opposition to Defendants' Motion to Dismiss.

Lincoln Fire & Rescue (“LFR”) was under the leadership of the individual Defendants. Mayor Beutler is required by the City's Equity and Diversity Plan, City Equal Employment Opportunity ordinance §2.06.010, and Neb. Rev. Stat. §15-310 to enforce and comply with employment laws. Plaintiff has alleged that City officials under the direction of Beutler, Casady [Director of Public Safety], McDaniel, and Linke [Interim LF&R Fire Chief] were all policymakers or were delegated policymaking authority by the City regarding the terms and conditions of her employment. [Plaintiff's] supervisors created, fostered, and promoted a hostile work environment based on sex, discriminated and retaliated against her because of her complaints, which was the official custom or policy of LFR of the City of Lincoln. [Plaintiff] . . . was treated less favorably than men regarding work assignments, number of scheduled hours, training, and evaluations. She alleges verbal harassment and intimidation to the point where she [was] treated for anxiety, depression, and panic attacks. This unlawful conduct was condoned and/or perpetrated by the individual Defendants and/or others under their supervision within LFR. The City was on notice as early as 2012 [of] LFR's unlawful employment practices as it related to women and those who complain about gender harassment and discrimination. Plaintiff also alleges that she or Giles [Station Captain] complained to multiple supervisors, and [Plaintiff's] complaints were ignored.

(Filing No. 28, Br. Opp'n Defs' Mot. Dismiss at CM/ECF pp. 7-8 (citations to Complaint and Second Amended Complaint omitted).)

[Plaintiff] missed work because of the harassment; was forced to transfer; [was] denied training and the opportunity to rotate to [LF&R] Captain] Mahler's truck; [was] ostracized by Mahler and her fellow firefighters; and was terrified to go to work. She experienced panic attacks on the job; and was forced to work in an environment wherein she could not trust anyone. Trust is paramount for firefighters given the life-threatening situations . . . firefighters face and the environment in which they live and work with [one] another. [Plaintiff's] hostile work environment led to her seeking out mental health counseling, which is continuing. Giles and [Plaintiff] complained repeatedly to Jones [Battalion Chief in charge of Station 8] and then to Linke, Benes [LF&R Battalion Chief], and Taylor-Riley [City Equity and Diversity Officer]-yet no one would remedy the discriminatory environment. The City of Lincoln's legal department and Mayor Beutler stopped a proposed mediation that was arranged by Taylor-Riley. The Mayor . . . failed to rely upon his EEO investigator and her findings and recommendations and did nothing, but recommend a meeting with Casady and McDaniel. Both Casady and McDaniel acknowledged a “management failure” and a systemic issue with LFR that dated back to 2012, but their only solution was to put [Plaintiff] right back in the same hostile work environment that Linke assured her would watch closely after her complaint. That did not occur. Linke and Benes ignored [Plaintiff's] pleas for assistance and allowed the hostile work environment to continue. . . . Jones acknowledged multiple problems that were not addressed with Mahler in 2015, he believed supervisors needed training on equity, hostile work environment and equality and stated, “LFR needs a culture change.” All of the Defendant City representatives have been aware of the discriminatory nature of LFR's environment for women for years and continue to do nothing to remedy. With no assurance for her safety, [Plaintiff] had no choice but to transfer to another station.

(Id. at CM/ECF pp. 21-22 (internal citations omitted).)

This discrimination originated from the time of [Plaintiff's] transfer to Station 8, and became increasingly hostile, especially after her complaints to LFR command staff and Taylor-Riley.

(Id. at CM/ECF p. 25 (internal citations omitted).)

         Plaintiff alleges the following specific facts, among many others, in support of the above allegations[4]:

         • When LF&R Captain Mahler learned that Plaintiff would be replacing a male firefighter at Station 8, Mahler was visibly upset and had a “verbal confrontation” with co-workers. When Plaintiff began her service at Station 8, Mahler refused to speak to her and did not review rules, expectation, or procedures with her. (Filing No. 18 ¶¶ 20-22.) When Mahler eventually spoke to Plaintiff, he was “demeaning and condescending.” (Id. ¶ 34.)

         • Unlike male firefighters, Mahler did not allow Plaintiff to participate in the “standard rotation” on the truck for engine firefighters, thereby denying Plaintiff training “that would allow her to perform her job duties more effectively and assist her in her career trajectory.” (Id. ¶¶ 23-24, 30.) When Plaintiff questioned Mahler about his failure to include her in the truck rotation, Mahler told her “she should stick with medical specialties because typically women are less mechanically-minded than men.” (Id. ¶ 30.)

         • Mahler told Plaintiff she could not perform roof-venting operations because she did not own a fall-protection belt, despite the fact that LF&R policy did not mandate such belts. Other similarly situated male firefighters who did not purchase fall-protection belts were allowed to vent roofs under Mahler. (Id. ¶ 30.) Plaintiff eventually purchased a fall-protection belt, but Mahler stated that Plaintiff “had still not proven to him that she was trained to his standards.” (Id. ¶ 38.) Mahler also refused to train Plaintiff on rope rescue and rigging because “it was not his job to train her.” (Id. ¶ 33.)

         • Contrary to LF&R policy and unlike nine similarly situated male firefighters who worked for Mahler at Station 8, Mahler told Plaintiff he would observe her for 18 months to three years before deciding she was “qualified and competent enough to be on his truck.” (Id. ¶¶ 31-32.)

         • Despite “house policy” which provided that firefighters who do not participate in the house meal are not required to clean up, Mahler insisted that Plaintiff handwash the dishes used in a meal in which she did not participate. (Id. ¶¶ 49-52.)

         • After Plaintiff and Giles complained to LF&R administration about Mahler's continued harassment of Plaintiff and the “kitchen incident, ” LF&R began an investigation during which Mahler was moved to another fire station. Prior to Mahler's predisciplinary hearing, Interim LF&R Fire Chief Linke released to Mahler Plaintiff's and Giles's entire statements to assist Mahler in mounting a defense. This was a departure from LF&R's past practice, which was not to provide evidence and statements to employees undergoing the disciplinary process. (Id. ¶ 55.) Union representative Ron Trouba assisted Mahler with his defense in the predisciplinary proceedings. (Id. ¶ 55.)

         • Casady asked Taylor-Riley whether Plaintiff had approached her about filing an EEO complaint. Employees' communication with Taylor-Riley is confidential. (Id. ¶ 56.)

         • Following Mahler's disciplinary investigation, the City found no reason for disciplinary action, and both Mahler and Plaintiff were directed to return to Station 8. (Id. ¶ 62.) Defendants Linke and Benes told Plaintiff she must return to Station 8 or “give up her assignment and become a floater.” (Id. ¶ 71.) When Plaintiff met with union representative Trouba about her transfer rights, she discovered that Trouba was aware of her private medical information, and Trouba advised her “that she should be spending her energy trying to fix her career and reputation instead of pursuing a harassment claim against the City.” (Id. ¶ 79.)

         • Plaintiff filed an internal EEO complaint with Taylor-Riley alleging sexual harassment and discrimination. (Id. ¶ 77.) After an extensive investigation, Taylor-Riley concluded that Mahler had discriminated and retaliated against Plaintiff, citing as evidence, among other things, schedule differences between Plaintiff and a similarly situated male comparator that gave the comparator superior hands-on truck experience and a lighter overall workload; Mahler's statements that women are not equipped to “be on the USAR team, they are better suited to medical positions” and “there's no room for women in the fire service”; that another male firefighter was allowed to rotate to the truck immediately upon his transfer to Station 8; that a new male recruit with no prior experience was allowed to work on the truck crew and vented his first roof without a fall-protection belt on his third day of service; that firefighters are not required to have any truck experience before an assignment, they can be “sent to a truck right out of the academy, ” and “the captain is expected to train them”; and witnesses' observations that Mahler bullied Plaintiff. (Id. ¶ 108.)

         • Plaintiff was eventually forced to surrender her Station 8 assignment to become a “floating firefighter” because “the environment was so toxic and retaliatory towards her she felt she had no other option.” (Id. ¶ 113.) Defendants McDaniel and Casady tried to force Plaintiff to stay at Station 8, but Plaintiff refused because the situation had not been remedied. After discussing her options with newly appointed LF&R Fire Chief Michael Despain, Plaintiff was transferred to Station 3. (Id. ¶¶ 117-118.)

         • With regard to the situation at Station 8, Defendant Casady admitted there had been a “management failure, ” and Defendant McDaniel stated that LF&R had “a systemic issue that need[ed] to be addressed.” (Id. ¶ 116.)

         • On August 15, 2016, Plaintiff filed a Charge of Discrimination with the NEOC alleging harassment based on sex, discrimination, and retaliation. (Id. ¶ 119.) On December 12, 2016, Plaintiff received a 74% job-evaluation rating, which was “far lower than the latest evaluation that she was given by Giles.” Her next evaluation rating was 91%. (Id. ¶ 122.)

         • Plaintiff incurred medical expenses and used sick pay as a result of the above alleged discrimination, retaliation, and hostile work environment, and her “career prospects at LFR have been materially adversely affected by the Defendants' actions.” (Id. ¶ 124.)


         A. ...

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