United States District Court, D. Nebraska
SANAA L. ISKANDR, an individual; Plaintiff,
DOUGLAS COUNTY, NEBRASKA, Defendant.
MEMORANDUM AND ORDER
Smith Camp, Senior United States District Judge
matter is before the Court on the Motion for Summary
Judgement, ECF No. 32, filed by Defendant Douglas County,
Nebraska (the County) and the Motion to Strike, ECF No. 37,
filed by Plaintiff Sanaa Iskandr. For the reasons stated
below, the Motion for Summary Judgment will be granted and
the Motion to Strike will be denied.
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.
an Egyptian woman, was employed by Douglas County in the
Douglas County Mailroom (DCM) as a Mailroom Clerk I from
August 2011, through July 27, 2016. The DCM is operated
through the Douglas County Purchasing Department and its
Purchasing Agent, Eric Carlson. Melissa Marchello was
Iskandr’s supervisor and Leeanne Derry filled in as
acting supervisor when Marchello was not available. Derry
Decl., ECF No. 33-46, Page ID 516.
about February 29, 2016, Iskandr requested and was granted
leave under the Family Medical Leave Act (FMLA), 29 U.S.C.
§ 2601. Her doctor released her to return to work on
April 25, 2016, but strongly recommended she transfer to a
different department because “her current department
had caused her many health issues.” Return to Work
Note, ECF No. 33-39, Page ID 494.
April 25, 2016, Iskandr met with HR director Karen Buche,
Carlson, and another HR employee regarding the return-to-work
letter. Iskandr informed the individuals at the meeting that
she could not go back to work under the same circumstances.
Iskandr EEOC letter 4/26/16, ECF No. 33-37, Page ID 485;
Buche Decl., ECF No. 33-12, Page ID 207. Buche put Iskandr on
paid administrative leave from April 25, 2016, until Buche
could evaluate the situation, and provided Iskandr with an
Employee Disability Accommodation Request Form (ADA Request
Form) to fill out. Iskandr EEOC letter 4/26/16, ECF No.
33-37, Page ID 485.
April 28, 2016, Iskandr submitted the ADA Request Form to
Buche. ADA Request Form, ECF No. 33-35, Page ID 478. The ADA
Request Form listed Iskandr’s disability as job related
stress disorder causing panic attacks; stated she had no
specific accommodation request but was open to suggestions to
eliminate the problem; stated she was having difficulty
performing in her current job environment; and stated
“I only want to be in [n]on stressful situation.”
Id. at 478-79.
5, 2016, Iskandr filed a Charge of Discrimination with the
Nebraska Equal Opportunity Commission. Charge of
Discrimination, ECF No. 33-40, Page ID 500. On or about May
16, 2016, Iskandr returned to work in the DCM. At some time
shortly before Iskandr’s termination, Marchello told
her not to speak Arabic because it disturbed Derry. Iskandr
Dep., ECF No. 33-32, Page 408.
point in 2016, Employee Development and Relations
Coordinator, Carol Donnelly, was assigned to investigate a
hostile work environment complaint filed by Iskandr. Donnelly
Decl., ECF No. 33-25, Page ID 338. On June 7, 2016, Donnelly
concluded that there was no hostile work environment.
Donnelly Decl., ECF No. 33-25, Page ID 339. Her report stated
that “[t]here are ongoing and concerning behavioral
issues within the [DCM]. . . . Each individual contributes to
the current state of work environment; however, Ms.
Marchello’s lack of response to Ms. Iskandr’s
inappropriate behavior appears to be the single greatest
factor.” Donnelly Report, ECF No. 33-26, Page ID 355.
2, 2016, Iskandr and her husband met with Buche, Carlson, and
Connelly to discuss Iskandr’s accommodation request and
the note from Iskandr’s doctor. 6/10/16 Letter to
Iskandr, ECF No. 33-21, Page ID 332. During the meeting, the
only potential accommodation identified was a transfer to a
new department. Buche Decl., 33-12, Page ID 208. Buche told
Iskandr that if she moved to a different department it would
be at a lower salary, and that there was an office Buche
could call. Iskandr Dep., ECF No. 33- 32, Page ID 398.
Iskandr questioned Buche as to why Buche would want to move
Iskandr to a different office with a lower salary.
Id. Iskandr also told Buche “legally when
I’m in a condition like that, I’m being hurt, you
should transfer me to an office that will – I will get
paid the same.” Id. After the meeting, Buche
sent Iskandr a correspondence stating “[i]n speaking
with you last week, we reviewed the current job postings and
found that none of the posted jobs matched your skills and/or
personal requirements.” 6/10/17 Iskandr Letter, ECF No.
33-21, Page ID 333. The letter provided the County’s
employment website and encouraged Iskandr to identify and
apply for any job she was qualified to perform. Id.
Iskandr applied for no other positions with the County.
6, 2016, Iskandr was involved in a workplace
incident, involving her playing of music. Derry
Decl., ECF No. 33-46, Page ID 517. According to King, the
music interfered with employees’ ability to hear each
other and to hear the office radio, and King complained to
Marchello. King Notes, ECF No. 33-8, Page ID 197. Marchello
asked Iskandr to turn the music down and she initially
refused. Derry Decl., ECF No. 33-46, Page ID 517. Iskandr
accused King of attempting to fight with her. After Marchello
told Iskandr she could also hear the music, Iskandr disputed
that Marchello could hear anything. King Notes, ECF No. 33-8,
Page ID 197. Later in the day, Iskandr left the office for
approximately thirty-five minutes, and King was required to
process outgoing mail alone. Id.
9, 2016, Iskandr was involved in another workplace incident.
She walked into the DCM and asked Hayes to move so she could
put down her mail. Derry Notes, ECF No. 33-47, Page ID 519.
Iskandr also demanded that Marchello move a book that
remained on the table. Id. Marchello thought Iskandr
was being rude and asked to speak with her in the hall to
tell her such conduct was unacceptable. Marchello Email, ECF
No. 33-9, Page ID 200. Iskandr became upset and
yelled at Marchello to stop putting pressure on
her. Id.; Derry Notes, ECF No. 33-47, Page ID 520.
King then left for the day due to the yelling. Derry Notes,
ECF No. 33-47, Page ID 520. Marchello also left the DCM after
receiving a call from HR. Iskandr left the office shortly
thereafter. Id. Derry claims that Iskandr then
returned and began screaming. Id. Although Iskandr
disputes that she was screaming, she admits that her voice
got louder due to an increase in anxiety and stated that
“[t]hat doesn’t mean I, I scream for myself or
yell for myself, no. It’s the illness that I start
having increase with the depression and pressure that I have
from the office.” Iskandr Dep., ECF No. 33-32, Page ID
404. When Marchello returned from HR “everyone was
standing in the hallwaySam from the dock called securit[y]
because [Iskandr] was yelling and screaming.” Marchello
Email, ECF No. 33-9, Page ID 200.
the incidents in the DCM on June 6, 2016, and June 9, 2016,
Carlson placed Iskandr on paid administrative leave, so he
could investigate the events. Carlson Decl., ECF No. 33-1,
Page ID 186. Disciplinary charges were brought against
Iskandr. 7/13/16 8:17-cv-00306-LSC-MDN Doc # 43 Filed:
05/10/19 Page 6 of 22 - Page ID # 686 Pre-Disciplinary
Hearing Notice Letter, EFF No. 33-4, Page ID 193-94. Carlson
sent Iskandr a letter on July 13, 2016, informing her of the
charges and scheduled hearing. Id. A hearing was
held on July 20, 2016, and Iskandr’s employment was
terminated on July 27, 2016. Termination Letter, ECF No.
33-5, Page ID 193. The reasons stated for her termination
were 1) she had been insubordinate to her supervisor, 2) she
failed to maintain satisfactory working relationships with
the public or other employees, and 3) she used abusive or
disgraceful language by making threats or creating a
disturbance among co-workers or members of the public.
Id. Carlson made the decision to terminate Iskandr
after conducting his own investigation, in concert with the
HR department. Carlson Decl., ECF No. 33-1, Page ID 186.
Carlson spoke with Glen Moore, the Dock Foreman for the
Omaha-Douglas Public Building Commission; Lisa Anderson,
Senior Buyer for the Douglas County Purchasing Department;
and Derry. Id. Carlson obtained written statements
from King and her son Hayes. Id. at 188. Carlson
also obtained Marchello’s recollection of the events by
email. Id. The email from Marchello and the
handwritten notes from Hayes and King were part of the
information relied upon by Carlson in making his decision.
Id. at 186-88. Iskandr was 57-years-old at the time
of her termination.
her termination, Iskandr filed a Complaint alleging
discrimination based on her Egyptian national origin in
violation of Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000e-2; her age, in violation of the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §
623; and her disability, in violation of the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12101. She also
alleged retaliation in violation of the ADA, Title VII and
the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601.
Specifically, Iskandr argues that she was discriminated
against when she was placed on paid administrative leave and
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. 39,
Page ID 583 (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 Iskandr 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 judgment is appropriate.
Whitney, 826 F.3d at 1076 (quoting Grage v. N.
States Power Co.-Minn., 813 F.3d 1051, 1052 (8th Cir.
National Origin Discrimination
Title VII, it is “an unlawful employment practice for
an employer . . . to discharge any individual, or otherwise
to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual’s . . . national origin . .
. .” 42 U.S.C. § 2000e-2(a). “An
employee may establish unlawful employment discrimination
through direct or indirect evidence.” Takele v.
Mayo Clinic, 576 F.3d 834, 838 (8th Cir. 2009) (citation
omitted). Absent direct evidence of discrimination, Iskandr
must satisfy the McDonnell Douglas burden-shifting
framework by first establishing a prima ...