United States District Court, D. Nebraska
CHRISTOPHER J. DUFFEK, an individual; Plaintiff,
CITY OF OMAHA, a political subdivision of the State of Nebraska; Defendant.
MEMORANDUM AND ORDER
SMITH CAMP SENIOR UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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
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
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).
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).
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 ...