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Iskandr v. Douglas County

United States District Court, D. Nebraska

May 10, 2019

SANAA L. ISKANDR, an individual; Plaintiff,
v.
DOUGLAS COUNTY, NEBRASKA, Defendant.

          MEMORANDUM AND ORDER

          Laurie Smith Camp, Senior United States District Judge

         This 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.[1]

         BACKGROUND

         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[2] and Federal Rule of Civil Procedure 56.

         Iskandr, 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.

         On or 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.

         On 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.

         On 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.

         On May 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.

         At some 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.

         On June 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.

         On June 6, 2016, Iskandr was involved in a workplace incident,[3] 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.

         On June 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[4] 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 hallway[]Sam from the dock called securit[y] because [Iskandr] was yelling and screaming.” Marchello Email, ECF No. 33-9, Page ID 200.

         Due to 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.

         After her termination, Iskandr filed a Complaint alleging discrimination[5] 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 terminated.[6]

         STANDARD OF REVIEW

         Iskandr 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).

         “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 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)).

         DISCUSSION

         I. National Origin Discrimination

         Under 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 ...


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