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Christensen v. City of Omaha

United States District Court, D. Nebraska

April 22, 2019

JASON CHRISTENSEN, an individual; Plaintiff,
CITY OF OMAHA, a political subdivision of the State of Nebraska; Defendant.



         This matter is before the Court on the Motion for Summary Judgement, ECF No. 28, filed by Defendant City of Omaha (the City). For the reasons stated below, the Motion will be granted.


         Unless otherwise indicated, the following facts are those stated in the parties' briefs supported by pinpoint citations to admissible evidence in the record, in compliance with NECivR 56.1[1] and Federal Rule of Civil Procedure 56.

         In 2015, while working as an Omaha Police Department (OPD) officer, Plaintiff Jason Christensen sought leave under the Family Medical Leave Act (FMLA) to get treatment for his alcoholism. Christensen was granted FMLA leave in April 2015, until he exhausted his leave on or about July 18, 2015.

         Christensen sought voluntary inpatient alcohol treatment at Valley Hope from approximately April 26, 2015, through May 17, 2015. Christensen did not believe the treatment at Valley Hope was successful in treating his alcoholism.

         On May 20, 2015, OPD officer Brian Gerrity observed Christensen drinking and driving and contacted the La Vista police to get Christensen to give up the keys to his vehicle. Christensen was disorderly and verbally abusive but was not arrested.

         On May 21, 2015, Gerrity, OPD officer Jennifer Hansen, and Sgt. Mary Kirchoffer attempted to contact Christensen and eventually located him at a restaurant with his daughter. They believed he was intoxicated based on his appearance, slurred speech, and staggering gait. Hansen drove Christensen's truck home and she and Kirchoffer negotiated with Christensen for several hours until they finally convinced him to go to Bergan Mercy Hospital. Christensen was admitted because his blood alcohol level was over .20.

         On May 21, 2015, Deputy Chief of Police Elizabeth Davis wrote a letter to Christensen which stated “[p]er Chief Todd Schmaderer, this letter is to notify you that due to concerns about your continued abuse of alcohol, you are being ordered to comply with the recommendations of Bergan Mercy Hospital medical staff and your counselor, Stephanie Levy.”[2] ECF No. 30-2, Page ID 155. The letter went on to state that “[i]f you fail to comply with the recommended treatment plan you are subject to discipline up to and including termination.” Id.

         After his discharge from Bergan Mercy Hospital, based on the recommendation of Levy, the City required Christensen to complete inpatient substance abuse treatment at Bryan West and any recommended after care before returning to work. Davis Letter 5/22/15, ECF No. 33-4, Page ID 157; Schmaderer, ECF No., 30-1, Page ID 151. These requirements were set forth in a supplement to the May 21, 2015, letter. Davis Letter 5/22/15, ECF No. 33-4, Page ID 157. Christensen was admitted to Bryan Hospital West, for inpatient treatment on May 22, 2015.

         Christensen was released from Bryan Hospital West on June 1, 2015, and on the same day acknowledged receipt of a letter from Acting Chief of Police Greg Gonzalez outlining the steps that Christensen was required to take prior to returning to work. Gonzalez Letter 6/1/15, ECF No. 30-4, Page ID 160. These steps included participating in an intensive outpatient/relapse prevention program; contacting his Alcoholic Anonymous (AA) sponsor and providing his or her name to Human Resources with a release allowing the City to speak to the sponsor; attending AA meetings every day for 90 days and turning in signed accountability cards to Unger on a weekly basis; and continuing to meet with therapist, Stephanie Levy. Id. The letter stated that “[b[y your signature below, you hereby agree to these terms.” Id. at 161. Christensen acknowledged his signature on the correspondence. Christensen Dep., ECF No. 33-3, Page ID 264. After checking with Christensen's treatment providers, Unger learned[3] that he had attended intensive outpatient sessions on June 1st; attended but left early on June 3rd, 5th, 10th, and 12th; failed to attend on June 8th; and missed a scheduled appointment with Levy on June 10th. Unger Aff., ECF No. 30-13, Page ID 184-85. Christensen testified that although he did attend daily AA meetings, he did not turn in accountability cards to Unger because he did not know he was supposed to do so and because the cards had been sent to his OPD email which he did not think he could access.[4] Christensen Dep., ECF NO 33-3, Page ID 264.

         On June 18, 2015, Christensen received a citation for driving under the influence (DUI). Christensen was placed on administrative leave with pay. Schmaderer Letter, ECF No. 30-4, Page ID 162. As part of his administrative leave, Christensen was prohibited from engaging in outside employment which would require use of his police authority; required to be at his residence between 8:00 a.m. and 4:00 p.m., Monday through Friday; and required to be available by telephone. Id.

         After his DUI citation, Christensen voluntarily entered inpatient alcohol treatment at Keystone Treatment Center and was released on July 22, 2015. Upon discharge, Christensen agreed to Keystone's Continuing Care Plan which required, in part, that he “[a]ttend and complete the intensive outpatient treatment with Arbor Family Counseling.” Keystone Records, ECF No. 30-15, Page ID 220. The Plan stated that his initial appointment was scheduled for July 24, 2015, with Dr. John Cannon.[5] Id. The Plan also stated that Christensen was to “continue individual counseling to deal with his psychological problems” and that he had an appointment scheduled with Levy on July 29, 2015. Id. He was also required to attend AA meetings on a regular basis. Id.

         Unger checked with Christensen's treatment providers pursuant to the waivers Christensen signed allowing her to do so and found that as of July 31, 2015, Christensen had not contacted Dr. Cannon or shown up for any group meetings[6] and that Christensen had rescheduled and then cancelled his meeting with Levy.[7] Unger Aff., ECF No. 30-13, Page ID 185-86. Unger was unable to confirm Christensen's attendance at any AA meetings. Id. Unger shared this information with the OPD command staff on August 4, 2015. Id. Christensen testified that he had attended AA meetings during this time. Christensen, ECF No. 33-3, Page ID 271. On August 17, 2015, Chief Schmaderer sent members of the Omaha Police Union to Christensen's home to inform him that he had only an hour or two to decide if he wanted to retire or be terminated. Christensen Dep., ECF No. 33-3, Page ID 271. Christensen‘s request for additional time to decide was denied and he chose to retire. Id.

         Christensen filed this action on April 12, 2017, pleading claims under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., and the Nebraska Fair Employment Practices Act (“NFEPA”), Neb. Rev. Stat. § 48-1104.[8] On August 31, 2017, this Court dismissed the causes of action against the Omaha Police Officers Association and OPD.[9] ECF No 13. The remaining claims, Claims I, II, & III, are pled against the City for regarding Christensen as disabled, subjecting him to discriminatory terms of employment, and retaliating against him. The City filed a Motion for Summary Judgment seeking dismissal of all three claims.


         “Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Garrison v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881, 884 (8th Cir. 2016) (citing Fed.R.Civ.P. 56(c)). “Summary judgment is not disfavored and is designed for every action.” Briscoe v. Cty. of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)). In reviewing a motion for summary judgment, the Court will view “the record in the light most favorable to the nonmoving party . . . drawing all reasonable inferences in that party's favor.” Whitney v. Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing Hitt v. Harsco Corp., 356 F.3d 920, 923-24 (8th Cir. 2004)). Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, “Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.” Se. Mo. Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The moving party need not produce evidence showing “the absence of a genuine issue of material fact.” Johnson v. Wheeling Mach. Prods., 779 F.3d 514, 517 (8th Cir. 2015) (quoting Celotex, 477 U.S. at 325). Instead, “the burden on the moving party may be discharged by ‘showing' . . . that there is an absence of evidence to support the nonmoving party's case.” St. Jude Med., Inc. v. Lifecare Int'l, Inc., 250 F.3d 587, 596 (8th Cir. 2001) (quoting Celotex, 477 U.S. at 325).

         In response to the moving party's showing, the nonmoving party's burden is to produce “specific facts sufficient to raise a genuine issue for trial.” Haggenmiller v. ABM Parking Servs., Inc., 837 F.3d 879, 884 (8th Cir. 2016) (quoting Gibson v. Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts, and must come forward with specific facts showing that there is a genuine issue for trial.” Wagner v. Gallup, Inc., 788 F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson, 643 F.3d at 1042). “[T]here must be more than the mere existence of some alleged factual dispute” between the parties in order to overcome summary judgment. Dick v. Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir. 2016) (quoting Vacca v. Viacom Broad. of Mo., Inc., 875 F.2d 1337, 1339 (8th Cir. 1989)).

         In other words, in deciding “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.” Wagner, 788 F.3d at 882 (quoting Torgerson, 643 F.3d at 1042). Otherwise, where the Court finds that “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, ” there is no “genuine issue of material fact” for trial and summary judgment is appropriate. Whitney, 826 F.3d at 1076 (quoting Grage v. N. States Power Co.-Minn., 813 F.3d 1051, 1052 (8th Cir. 2015)).


         I. ADA Discrimination [10]

         Christensen claims he was subject to discriminatory terms and conditions of employment in violation of the ADA and NFEPA. In his brief, he states that “[the City] discriminates against disabled alcoholics through its treatment of officers charged with DUI.” Pl. Opp'n Br., ECF No. 33, Page ID 245. “Christensen contends [the City] treats employees-not diagnosed as alcoholics-with the option to return to work whereas OPD refused to provide him that opportunity because he is an alcoholic and disabled.” Id. ...

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