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Duffek v. City of Omaha

United States District Court, D. Nebraska

May 7, 2019

CHRISTOPHER J. DUFFEK, 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 Judgment, ECF No. 24, filed by the City of Omaha. For the reasons stated below, the Motion will be granted.


         Plaintiff Christopher J. Duffek brought this action under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-2, and the Nebraska Fair Employment Practices Act (NFEPA), Neb. Rev. Stat. § 48-1104, claiming the City of Omaha (City) discriminated against him on the basis of sex and national origin by terminating his employment but not that of two other Omaha Police Department (OPD) employees. Compl., ECF No. 1. The City moved for summary judgment arguing the evidence does not sufficiently support Duffek's disparate-treatment discrimination claims.

         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.

         On October 27, 2015, the City's Chief of Police, Todd Schmaderer, recommended that Duffek's employment as an OPD officer be terminated, following an internal investigation into allegations that Duffek assaulted his domestic partner on August 8, 2015. Termination Letter, ECF No. 26-1. Effective that same day, Schmaderer suspended Duffek with pay “pending the outcome of [his] pre-termination hearing.” Id. at Page ID 83. Although the identity of the ultimate decision-maker it is not clear, the City terminated Duffek's employment at some point thereafter. Duffek and Schmaderer are both men.

         The Internal Affairs investigation leading to Duffek's termination revealed that Duffek and his live-in girlfriend visited multiple bars on August 8, 2015; she accused him of physically assaulting her; and the accusation was recorded in a police report. She later recanted her accusations, and, in November 2015, Duffek was tried for domestic assault and acquitted. Based on Internal Affairs' findings, Schmaderer concluded that Duffek should be terminated for the following reasons: (1) conduct unbecoming of an officer, (2) intoxication, (3) criminal law violations by police department personnel, (4) failure to cooperate with police personnel, (5) violation of firearms policy, and (6) actions that reflect discredit upon the service. Schmaderer Aff., ECF No. 26-1, Page ID 74. Schmaderer also cited Duffek's 20-day suspension in 2012 for a physical altercation with other off- duty OPD officers and a previous girlfriend. That incident occurred at a local bar where Duffek had been consuming alcohol. Suspension Letter, ECF No. 26-1, Page ID 85-88.

         Duffek refers to additional facts involving other OPD employees, in support of his claims of disparate treatment. On March 17, 2014, an individual observed an altercation between two off-duty OPD officers, Johnny Palermo and Amber Schlote. The witness saw Palermo attempting to force Schlote into the back seat of a vehicle and believed the situation to be an instance of domestic violence. Schmaderer approved an Internal Affairs investigation into the incident, and the OPD Domestic Violence Unit conducted a separate criminal investigation. No. criminal charges were brought against Palermo or Schlote. Based on those investigations, Schmaderer concluded that no domestic violence occurred between Palermo and Schlote, and that “the evidence showed Officer Palermo was attempting to assist another officer, who was intoxicated . . . .” Schmaderer Aff., ECF No. 26-1, Page ID 74. Palermo was not intoxicated at the time of the incident. As such, Schmaderer decided not to recommend any discipline for Palermo and to recommend Schlote receive a 3-day suspension for intoxication and conduct unbecoming of an officer. Neither Palermo nor Schlote had any prior discipline. Palermo is a Puerto Rican man, and Schlote is a woman.


         Duffek incorrectly asserts that “Courts ‘must be particularly deferential to the party opposing summary judgment' when liability depends on inferences rather than direct evidence.” Pl.'s Br., ECF No. 30, Page ID 124 (quoting Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir. 1999), abrogated by Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)). In Torgerson, the Eighth Circuit stated that the “particularly deferential” standard of review that Duffek advocates for is “unauthorized and should not be followed.” 643 F.3d at 1043 (citing Bell with disapproval).

         “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, 643 F.3d at 1043). 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 ...

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