United States District Court, D. Nebraska
MEMORANDUM AND ORDER
SMITH CAMP SENIOR UNITED STATES DISTRICT JUDGE
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
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
and Federal Rule of Civil Procedure 56.
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.
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.
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.
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.
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.” 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.
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,
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 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. Christensen Dep., ECF NO 33-3, Page ID
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.
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. 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.
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 and that
Christensen had rescheduled and then cancelled his meeting
with Levy. 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.
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. On August 31, 2017, this Court dismissed
the causes of action against the Omaha Police Officers
Association and OPD. 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
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).
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)).
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.
ADA Discrimination 
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.