Opinion
Case No. 7:00CV5016
May 3, 2002
MEMORANDUM AND ORDER
This matter is before the Court on the Motion for Summary Judgment filed by the Defendants Tracy Broadcasting Corporation and Tracy Corporation II, d/b/a Western Total Communications (Filing No. 16). Evidence was submitted in support and in opposition to the Motion. (Filing Nos. 17, 22.) Briefs have been submitted.
FACTUAL BACKGROUND
In 1991, the Plaintiff, Beth Linn, left her employment as a waitress due to a spine injury suffered while she was in the military. (Filing No. 25, ¶ 2(A).) In 1994, Linn had back surgery. (Filing No. 25, ¶ 2(A).) Beginning sometime before January 1999, Linn began receiving approximately $800 per month from the Department of Veterans Administration ("VA") for an injury she received in the 1980s. (Linn Dep., 25:10-18.) Linn's condition improved so that she could work full-time even before being employed by the Defendants, Tracy Broadcasting Corporation ("Tracy Broadcasting") and Tracy Corporation II ("Tracy II"), d/b/a Western Total Communications (together "TBC") on or about January 1, 1999. (Filing No. 25.) The job description for the TBC position filed with the Nebraska Job Service read: "Applies principals [sic] of accounting to analyze financial information and prepare [sic] financial reports, analyzes financial information, detailing assets, liabilities and capital, and prepare [sic] balance sheets, profit and loss statement [sic]." (Filing No. 17, Ex. G.) Linn, who acknowledged that she is not a certified public accountant ("CPA"), interviewed for the position as a full-time position for both companies, according to Tracy and Michael Corr, Linn's direct supervisor. (Tracy Dep., 17:3-6; Corr Dep., 21:12-13.) Linn stated that only after the interview was a shared position contemplated. (Filing No. 22, Ex. 26.) In any event, Linn's employment was shared between the two Defendants, allowing her to work approximately 60% of her time with Western Total Communications and 40% of her time with Tracy Broadcasting. (Filing No. 25, ¶ 2(C); Corr Dep., 19:18-20.) Her duties consisted of providing bookkeeping, accounts receivable, and general accounting services for both companies. (Filing No. 25, ¶ 2(C).) Linn continued to receive the $800 monthly VA payment while she was employed by TBC. (Linn Dep., 25:21-23.)
Michael J. Tracy, Linn's ultimate supervisor and President of Tracy Broadcasting and a board member of Tracy II, described the evolving relationship of the two companies. He stated that during 1999-2000 the companies were slowly being separated, but they maintained several shared employees. (Tracy Dep., 10:6-15:21.)
Corr, a CPA, began his full-time employment with TBC on July 7, 1997. (Corr Dep., 9:12.) In September 1999, he began part-time work at 20 hours per week, because he wanted to increase his CPA practice out of his home and his duties at TBC did not require a full-time schedule. (Corr Dep., 11:4-8.) Linn disputes the reason for Corr's part-time status, claiming that he was allowed part-time status due to his health, (Linn Dep., 86:1.) Corr has multiple sclerosis. (Corr Dep., 29:3-4; Filing No. 25, ¶ 2(F).) Corr testified that after going part-time, he could still accomplish his duties for TBC. He stated that he works a total of about 50-60 hours per week, about 10 hours of which he works for TBC. (Corr Dep., 5:17-19; 38:21-24.) Corr stated that, as a CPA, his responsibilities differ from Linn's. (Corr Dep., 39:15-16.)
Linn's December 2, 1998, letter of application and resume did not reveal any health problems. (Filing No. 17, Exs. H, I.) An emergency contact form completed by Linn on January 29, 1999 revealed the following:
ANY MEDICAL CONDITION WE SHOULD BE AWARE OF? Yes
IF SO PLEASE EXPLAIN: I injured my spine in the military. It does require that I visit a VA Hospital for ongoing treatment. I have 2 bulging discs, stenosis, scoliosis, and osteoarthritis. It has put me in the hospital in the past.
(Filing No. 17, Ex. J.)
Additionally, Linn provided a list of her medications on the form. (Filing No. 17, Ex. J.) After beginning her employment, Linn asked for a few equipment accommodations, including a monitor stand about three to four months after she began her employment and an ergonomic keyboard about ten months after she began her employment. (Linn Dep., 40:4-8.) Also, Linn's desk was raised. (Linn Dep., 20:17.) Linn received all such requested equipment-related accommodations, as well as accommodations such as breaks and time to walk. (Linn Dep., 39:17-20; 40:13-21.)
In late December 1999, Linn suffered a fall at work, "caused by [her] herniation." (Linn Dep., 53:11-19.) Linn filed for workers' compensation, but she never received any information on her claim, which she did not pursue. (Linn Dep., 53:20-54:9.)
On January 10, 2000, Hasan Akhtar, M.D., Linn's physician, ordered that Linn work no more than four hours per day. Dr. Akhtar placed other restrictions on Linn's activity, i.e., sitting, walking, and lifting. (Filing No. 17, Ex. D.). In January 2000, Linn verbally asked Tracy whether she could work for TBC on a permanent part-time basis. (Linn Dep., 40:25-41:2; Filing No. 25, ¶ 2(D); Tracy Dep., 7:13-19.) Tracy immediately denied Linn's request. (Linn Dep., 52:11-12.) Tracy and Corr testified in their depositions that the position had to be full-time to provide adequate customer service. They explained that one contact person needed to be available between 8:00 a.m. and 5:00 p.m. each business day to allow for consistent customer service. (Tracy Dep.,50:18-21; 75:23-76:15; Corr Dep., 21-12-22:20.) Tracy emphasized that any monetary savings by having two part-time employees as opposed to one full-time employee would be temporary and, in the long-run, would cost TBC financially. (Tracy Dep., 75:10-22.) Tracy described the dilemma as a balancing process. He stated that it would not "be worth it" to maintain two part-time employees in Linn's position, particularly given the companies' changes in progress when Linn requested accommodation. (Tracy Dep., 45:2-46:14; 55:20-56:5.) Besides Corr, the only other TBC employees who were part-time were a few "DJs" and a maintenance person. (Corr Dep., 23:25-26:5.) Linn, Corr, and maintenance people were the only "shared" employees, working for both companies. (Corr Dep., 24:13-15.)
The exact date is in dispute. (Filing No. 25, ¶ 3(D).)
On January 10, 2000, Linn gave Tracy her notice in a written memorandum. The memorandum stated that Linn intended to work full-time until January 15, 2000, and then on a part-time basis until January 31, 2000. (Filing No. 17, Ex. K.) The implication was that January 31, 2000, would be Linn's last day. (See Filing No. 17, Ex. M.) In a January 13, 2000, inter-office memorandum, Tracy asked Linn for an official letter of resignation. (Filing No. 17, Ex. L.) Also on January 13, 2000, Tracy suggested to Corr that they hire a person who had already been interviewed, and ask Linn to train the new person. (Filing No. 17, Ex. M.) Linn agreed to stay on until an apparently unstated time to train the new person. (Filing No. 17, Ex. N.) On January 26, 2000, Linn again e-mailed Tracy, requesting permanent part-time status. Tracy again denied Linn's request in an e-mail dated February 2, 2000. (Filing No. 17, Ex. O.) On February 15, 2000, Linn left her employment. She stated that she was "fired," i.e., Tracy decided that her services were no longer required. (Linn Dep., 58:15; Filing No. 17, Ex. P.) However, TBC maintains that Linn resigned. (Corr Dep., 29:15.)
Tracy testified that Linn was angry and would not talk to him personally, relying solely on written or e-mail communication. (Tracy Dep., 46:15-19; 56:9-16.)
On March 31, 2000, Linn had a second back surgery. Based on her back condition, the VA found Linn 100% temporarily totally disabled from March 3, 2000, until July 1, 2000, at which time it rated her at 60% disabled. (Filing No. 17, Ex. E.) On May 18, 2000, Linn could have, in her treating physician's opinion, returned to part-time employment. (Filing No. 17, Ex. D.) On August 4, 2000, the VA determined: Linn's hip bursitis rendered her 10% disabled; Linn was "unemployable" because of her back problems; and Linn was entitled to receive $2,153 monthly because of her status as unemployable. (Filing No. 17, Exs. D and F.)
The VA also mentioned a 30% disability rating that was not discussed or explained by the parties.
Linn's Complaint states that, on February 10, 2000, she filed a charge of disability discrimination with the Equal Employment Opportunity Commission. (Filing No. 1.) On September 11, 2000, Linn filed this case, alleging: 1) a violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112 (2001), in that the Defendants failed to accommodate Linn's disability by refusing to allow her to assume permanent part-time status; 2) a violation of Title VII of the Civil Rights Act of 1964, ("Title VII"), 42 U.S.C. § 2000e-2000e-17 (2001), based on alleged sex discrimination; and 3) a pendent state law claim, an alleging violation of the Nebraska Fair Employment Practice Act, Neb. Rev. Stat. §§ 48-1101 to -1126 (Reissue 1998), based on alleged sex discrimination and analogous to the Title VII claim. Linn requests compensatory and punitive damages. (Filing No. 1.)
Also included in the ADA claim is a brief reference to harassment in violation of the ADA, 42 U.S.C. § 12203 (2001). This claim was not discussed by any of the parties in the Motion for Summary Judgment or the briefs relating to the Motion, and the Order on Final Pretrial Conference (Filing No. 25) includes no reference to factual or legal issues relating to this possible claim. Therefore, consistent with the parties' treatment of this language, the Court will not consider this issue as a separate claim. See Fed.R.Civ.P. 8(a) (requiring a short and plain statement of a claim).
The Defendants answered, alleging: Linn failed to mitigate damages; Linn is not a "qualified" individual with a "disability" under federal or state law; allowing Linn to work part-time would not have been a reasonable accommodation and would have imposed undue hardship on the Defendants. (Filing No. 4.)
The Defendants filed their Motion for Summary Judgment. (Filing No. 16).
DISCUSSION
With respect to summary judgment, the Court must examine the record in the light most favorable to the nonmoving party. U.S. ex rel. Quirk v. Madonna Towers, Inc., 278 F.3d 765, 767 (8th Cir. Oct. 18, 2002). However, summary judgment is "properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
The proponent of a motion for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 322 (quoting Fed.R.Civ.P. 56(c)). The proponent need not, however, negate the opponent's claims or defenses. Id. at 324-25.
In response to the proponent's showing, the opponent's burden is to "come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (quoting Fed.R.Civ.P. 56(e)). A "genuine" issue of material fact is more than "some metaphysical doubt as to the material facts." Id.
"[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "If the evidence is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." Id. (citations omitted). In addition, "the mere existence of some alleged factual dispute between the parties is not sufficient by itself to deny summary judgment. . . . Instead, 'the dispute must be outcome determinative under prevailing law.'" Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992) (citation omitted) (quoting Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989)).
Finally, the Court's function is not to weigh the credibility and persuasiveness of evidence in the context of a motion for summary judgment. Kampouris v. St. Louis Symphony Soc., 210 F.3d 845, 847 (8th Cir. 2000). Nevertheless, if testimony has been irrefutably contradicted by documentary evidence, or the testimony is otherwise inherently incredible, it need not be credited even for purposes of a motion for summary judgment. Walker v. Peters, 863 F. Supp. 671, 672-73 (N.D.Ill. 1994).
I. Americans With Disabilities Act ("ADA")
The ADA prohibits an employer from discriminating "against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a) (2001). A claim of discrimination under the ADA is analyzed pursuant to the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). In order to establish a prima facie case of refusal to accommodate a disability under the ADA, Linn must show: (1) she is "disabled" as defined by the ADA; (2) she is "qualified" to perform the essential functions of her job with or without reasonable accommodation; and (3) she suffered an adverse employment action due to her disability. Allen v. Interior Constr. Servs., Ltd., 214 F.3d 978, 981 (8th Cir. 2000). If Linn succeeds in making this showing, a rebuttable presumption of discrimination emerges. TBC must then articulate a legitimate, non-discriminatory reason for any adverse employment action taken against Linn. Id. If TBC proffers such a reason, Linn must demonstrate that the proffered non-discriminatory reason is merely a pretext for intentional discrimination. See id.
Qualified Individual
Defendants argue that Linn cannot show that she is "qualified" under the ADA and, therefore, she cannot prove her prima facie case because: 1) in August 2000, six months after Linn left her employment, she was deemed "unemployable" by the VA; and 2) attendance on a full-time basis is an element of Linn's position, and because she could not meet that requirement she was unable to perform the "essential functions" of her job. The ADA defines "a qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8) (2001). A disability is defined as "(A) a physical or mental impairment that substantially limits one or more of the life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2) (2001).
Related to the above-stated definitions is the Eighth Circuit Court of Appeals' frequently stated principle in this context that regular, reliable attendance is a necessary element of most jobs. An employee unable to work regularly cannot satisfy the essential functions of the job in question. Spangler v. Federal Home Loan Bank of Des Moines, 278 F.3d 847, 850 (8th Cir. 2002).
Disability Determination by the VA
The issue of Linn's subsequent 100% disability determination by the Department of Veterans' Affairs is relevant, insofar as the ADA's purpose is not to benefit totally disabled persons. Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 954 (8th Cir. 1999). The Court cannot locate any precedent relating to a VA determination in the ADA context, and the parties have not cited any such case law in their briefs. However, the Supreme Court considered a similar argument relating to whether an employee was "disabled" within the meaning of the ADA because he had been found "totally disabled" by the Social Security Administration ("SSA"). The Supreme Court rejected an automatic acceptance of the SSA's determination for ADA purposes. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 803 (1999).
After Cleveland, the Eighth Circuit decided a case in which an employee applied for social security benefits in October 1995 when he suffered injuries after a non-work related accident. In February 1996, the employee terminated his employment and in April 1996, began receiving social security benefits. Lloyd v. Hardin Cty., Iowa, 207 F.3d 1080, 1082 (8th Cir. 2000). The Eighth Circuit determined that the employee could not perform the essential functions of his job with or without reasonable accommodation. Id. at 1084. Additionally, the court noted that the employee could not overcome the "presumption" created by his "prior allegation of total disability for purposes of obtaining social security benefits." Id.
In Linn's situation, the Court is presented with a somewhat different set of facts insofar as Linn was, at the time she left her employment, receiving disability payments from the VA for a prior injury. Six weeks after leaving TBC, Linn had her second back surgery, resulting in a temporary 100% disability finding by the VA. Then, six months after leaving TBC, the VA found her "unemployable." There exists a lack of precedent with regard to VA disability findings as they relate to the determination of whether one is "qualified" under the ADA. The record does not reflect how the VA reached its determinations regarding disability and unemployability. Also, there was not a finding of 100% disability by the VA at the time Linn left TBC, and the Court finds that a six-month time lag between termination of employment and the 100% determination is attenuated.
Whether Linn is qualified to perform the "essential functions" of her job with or without reasonable accommodation will be explored below.
Essential Functions
Defendants argue that Linn cannot perform the essential functions of her job even with reasonable accommodation, which is meant to enable a person with a disability to perform the essential functions of the position in question. Hatchett v. Philander Smith Coll., 251 F.3d 670, 675 (8th Cir. 2001) (citing 29 C.F.R. § 1630.2( o)(1)(i) (2001)).
Linn bears the burden of requesting a reasonable accommodation. Buckles v. First Data Res., Inc., 176 F.3d 1098, 1101 (8th Cir. 1999). Linn argues that a material question of fact exists as to whether her request was for: 1) a reduction in hours and modification in schedule for what she argues were two part-time jobs; or 2) a completely new position. Plaintiff's Brief in Opposition to Defendants' Motion for Summary Judgment at 4. Linn's requested part-time schedule might be reasonable in appropriate circumstances. 42 U.S.C. § 12111(9) (2001). However, in other cases involving requests for part-time work, the Eighth Circuit has found that an employer is not required to fashion reasonable accommodations including the hiring of additional employees or restructuring of a position. Such requests are subject to the ADA's reasonableness requirement. Hatchett, 251 F.3d at 675; Treanor v. MCI Telecomm. Corp., 200 F.3d 570, 575 (8th Cir. 2000).
The ADA provides that a reasonable accommodation might include part-time work. 42 U.S.C. § 12111(9)(B) (2001). However, the ADA also provides that "in determining whether an accommodation would impose an undue hardship on a covered entity," the factors for consideration include:
the nature and cost of the accommodation needed under this chapter;
the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.42 U.S.C. § 12111(10)(B).
In Linn's case, TBC produced evidence showing that no part-time positions were available in January or February 2000. TBC also showed that, despite the 60%-40% split in Linn's duties between the two companies, changing her position into two permanent part-time positions would have negatively affected the companies' customer relations and in the long run resulted in increased costs to both companies. Linn attempts to overcome this evidence by stressing that her time was split between the companies and she worked essentially two part-time jobs. However, this distinction begs the question. TBC points out that, regardless of how Linn's job was technically split, it was necessary for one person to be available between 8:00 a.m. and 5:00 p.m. daily for consistency in dealing with vendors, given the particular job responsibilities requiring telephone and written contact with vendors. Linn has failed to refute this evidence that specifically relates to why Linn's proposed reasonable accommodation was not "reasonable" for the companies composing the entity known as "TBC" in its particular situation in January and February 2000.
In summary, Linn was unable to perform the essential functions of her position even with her requested reasonable accommodation. Therefore, she was not a "qualified" individual under the ADA, cannot prove her prima facie case, and is not entitled to protection under the ADA. Assuming, however, that Linn could prove a prima facie case, the Court finds that TBC articulated legitimate, nondiscriminatory reasons for its action in refusing Linn permanent part-time status. Linn has not met her burden of showing that TBC's legitimate, nondiscriminatory reasons, relating to customer satisfaction and financial savings are merely a pretext for intentional discrimination.
Therefore, the Defendant's Motion for Summary Judgment will be granted with regard to the ADA claim.
II. Title VII — Sex Discrimination
Title VII of the Civil Rights Act of 1964 ("Title VII") provides: "It shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or 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 race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1) (2001). Under Title VII, a plaintiff may establish the existence of intentional discrimination by presenting either direct or indirect evidence of employment discrimination. Lang v. Star Herald, 107 F.3d 1308, 1311 (8th Cir. 1997). Linn relies on indirect, circumstantial evidence to show that TBC unlawfully discriminated against her on the basis of her sex in denying her "promotions and employment opportunities," i.e., permanent part-time status. In "indirect" evidence cases under Title VII, the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), governs the burden of production and order of proof. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Texas Dep't of Comty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981).
In this context, Linn's burden in proving her prima facie case is satisfied if she shows: 1) she is a member of a protected class; 2) she requested permanent part-time status; 3) she was denied permanent part-time status; and 4) similarly situated employees who are not male received permanent part-time status. See Austin v. Minnesota Mining Mfg. Co., 193 F.3d 992, 995 (8th Cir. 1999) (addressing Title VII in the promotion context); Kindred v. Northome/Indus. Sch. Dist., 154 F.3d 801, 803 (8th Cir. 1998) (addressing Title VII in the equal pay context).
Under McDonnell Douglas, "[e]stablishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee." Burdine, 450 U.S. at 254. The presumption shifts the burden of production to the employer to demonstrate a legitimate, nondiscriminatory reason for the adverse employment action. Id.
When the employer successfully rebuts the prima facie case, the presumption of discrimination is eliminated and the Court must proceed to the ultimate issue of discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) ; Hicks, 509 U.S. at 511. In the summary judgment context, the Court must determine whether "the evidence considered in its entirety (1) creates a fact issue as to whether the employer's proffered reasons are pretextual and (2) creates a reasonable inference that [sex] was a determinative factor in the adverse employment decision." Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1336-67 (8th Cir. 1996).
In Linn's case, the Court finds that she has shown: she is a member of a protected class; she requested part-time status; and she was denied part-time status. However, the final prong of her prima facie case is more complicated. Linn attempts to show that Corr is similarly situated and was treated differently, i.e., granted permanent part-time status. To meet her burden of demonstrating that Corr is "similarly situated," Linn must show that Corr is "directly comparable to her in all material respects." Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002). In making this determination, the Court must view all relevant factors, depending on the particular context of Linn's case. Such factors include whether Linn and Corr had the same supervisor and had comparable "experience, education and qualifications," as long as TBC considered those factors in making the personnel decisions in question. Id. at 681.
Both Linn and Corr were supervised by Tracy. Corr was Linn's direct supervisor. Corr, a male who was granted permanent part-time status, is a CPA, while Linn is not. Corr was an accountant, and Linn was not. Corr's background includes work at a CPA firm, while Linn's background includes work such as writing invoices and making journal entries. The record shows that TBC considered Corr's qualifications when deciding that Corr would be allowed part-time status so he could pursue his other business interests. Corr indicated that he was still able to accomplish his responsibilities for TBC even after assuming part-time status.
For these reasons, the Court finds that Linn failed to prove that Corr is "similarly situated," which is necessary to prove the fourth prong of her prima facie case.
Assuming, however, that Linn succeeded in proving her prima facie case, TBC likewise succeeded in showing a "legitimate, nondiscriminatory reason" for its decision not to allow Linn permanent part-time status. TBC showed that allowing Linn to work part-time would not, in the long run, have been a financially sound decision and would have negatively affected its customer relations.
Linn has failed to show a fact issue as to whether TBC's proffered reasons are pretextual and create a reasonable inference that sex was a determinative factor in TBC's failure to allow her permanent part-time status. Although Linn names Corr, claiming that the only difference in their situations was their sex, the record shows otherwise. As discussed above, Corr had quite different professional qualifications, professional experience as a CPA, was deemed necessary to TBC as a CPA, was able to continue to fulfill his job duties with a part-time schedule, wished to pursue other business opportunities, and requested part-time status well before Linn's request. Corr's request was made when, under all circumstances, TBC could offer him such a position. The facts do not create a reasonable inference that sex was the determinative factor in TBC's decision in Linn's case.
Therefore, the Defendant's Motion for Summary Judgment will be granted with regard to the Title VII claim.
III. Nebraska Fair Employment Act
The viability of the pendent state law claim hinges on determination of the same issues involved in Linn's Title VII claim. See Schwieger v. Farm Bureau Ins. Co. of Neb., 207 F.3d 480, 482 (8th Cir. 2000). For the reasons discussed above, the Court will grant the Defendant's Motion for Summary Judgment on the pendent state law claim. The Court has the discretion to dismiss the state law claim. Schuler v. Phillips Petroleum Co., 169 F.3d 1171, 1172 (8th Cir. 1999). The Court will do so without prejudice. Stokes v. Lokken, 644 F.2d 779, 785 (8th Cir. 1981).
CONCLUSION
For the reasons discussed, the Defendant's Motion for Summary Judgment (Filing No. 16) will be granted, and the Complaint, in its entirety, will be dismissed as against both Defendants.
IT IS ORDERED:
1. The Defendant's Motion for Summary Judgment (Filing No. 16) is granted;
2. The Complaint, in its entirety, is dismissed as against both Defendants.
JUDGMENT
In accordance with the Memorandum and Order issued on this date,
IT IS ORDERED:
1. The Defendant's Motion for Summary Judgment (Filing No. 16) is granted;
2. The Complaint, in its entirety, is dismissed as against both Defendants.