Opinion
Case No. 8:01CV638
September 30, 2002
MEMORANDUM AND ORDER
This matter is before the Court on the Defendants' Motion for Partial Summary Judgment and Summary Judgment Based on Qualified Immunity, Filing No. 12. The parties have submitted briefs, and indexes of evidence, Filing Nos. 13, 16, and 21. After the filing of the Defendants' Motion, the Plaintiff submitted an Amended Complaint, Filing No. 18, and the Defendants filed their Answer to the Amended Complaint, Filing No. 20. The Amended Complaint no longer alleges any cause of action under 42 U.S.C. § 1981, and so the Defendants' Motion for Partial Summary Judgment with respect to that cause of action is moot.
The Defendants seek (1) summary judgment with respect to the Plaintiff's cause of action alleging violations of the Nebraska Fair Employment Practices Act, and (2) summary judgment on behalf of the Defendant, Timothy Dunning, in his individual capacity, based on qualified immunity, with respect to the Plaintiff's claims under 42 U.S.C. § 1983.
FACTS
The Plaintiff, Dawn Russell-Cummings ("Russell-Cummings") is a black female employee of the Douglas County Correctional Center. The Defendant, Timothy Dunning ("Dunning"), is the Sheriff of Douglas County and has served as the Director of the Douglas County Correctional Center since 1998. The Defendant Douglas County is a political subdivision of the State of Nebraska.
Administrative Leave
On March 11, 2001, Russell-Cummings worked as a Correctional Officer II at the Douglas County Correctional Center, assigned to booking on the "B" shift with two other employees, Sgt. Michael Barnes, a white male, and Officer Dwand Hall, a black male. On March 12, 2001, Debra Ripa, a white female, and Sgt. Gary McNulty, a white male, discovered that over $500 was missing from the safe in the booking area. Chief Deputy Warden Ann O'Connor and Dunning were notified. Dunning referred the matter to the Criminal Investigations Bureau of the Douglas County Sheriff's Department.
In Dunning's Affidavit (Filing No. 13, Exhibit 2) he states that Detective F. N. Mainelli interviewed Sgt. Barnes, Officer Hall, Ms. Ripa, Sgt. McNulty, and Russell-Cummings, and informed Dunning that the investigation had been narrowed to three individuals — Hall, Barnes and Russell-Cummings. Dunning then requested that all three be polygraphed. Following the polygraph of Russell-Cummings, Deputy Sheriff John Pankonin reported to Dunning that the examination results indicated that Russell-Cummings gave deceptive answers "overall" and specifically with respect to key questions regarding the missing money. Dunning was also informed that Russell-Cummings had an outstanding warrant. Dunning reviewed the investigatory reports and consulted with Chief Deputy Warden Ann O'Connor before deciding to place Russell-Cummings on paid administrative leave pending the outcome of the investigation. Russell-Cummings was placed on administrative leave by letter dated March 16, 2001. Dunning then consulted with Ken Bencke of the Sarpy County Sheriff's Department for a secondary review of the polygraph results, and "confirmed" the earlier findings. Pankonin reported to Dunning that the Hall and Barnes polygraph results indicated that those two employees were truthful, and so Dunning did not place either of them on administrative leave. After Dunning reviewed all investigatory reports and consulted with staff of the Criminal Investigations Bureau, he concluded that there was insufficient evidence for either criminal charges or disciplinary action against any employee, and Russell-Cummings was notified that she should return to work. Dunning's statements in his affidavit are consistent with statements in the affidavits of Ann O'Connor (Filing No. 13, Exhibit 1), and John Pankonin (Filing No. 13, Exhibit 3), as well as the records of the investigation (Filing No. 13, Exhibits 7-13).
In Russell-Cummings's Affidavit (Filing No. 21, Exhibit 1) she states: "Other employees who are Caucasian and who had access to the money were never questioned or required to take a polygraph." Russell-Cummings also alleges that other officers in the booking area at the time of the theft had letters placed in their personnel files indicating that they were "exonerated" while the letter placed in her file indicated that the charges were "not sustained."
Failure to Promote
On November 27, 2000, Douglas County Civil Service posted an Internal Position Vacancy for the position of Corrections Officer III (Sergeant), in accordance with the County Civil Service Policy Manual (Filing No. 13, Exhibit 5) and the Agreement between Douglas County and the Corrections Bargaining Unit (Filing No. 13, Exhibit 6). Russell-Cummings submitted a Notification of Interest for the position, and met the minimum qualifications. She was therefore eligible to take a written exam. Russell-Cummings passed the written exam and proceeded with other candidates to the second phase of the testing process, which included both written and oral components. The written components of the test were scored without reference to the identity of the applicant. The oral components of the test were scored by Dunning and O'Connor. The resulting scores were submitted to Douglas County Civil Service where they were weighted for seniority and college education factors. A Register of Eligible Candidates was issued which ranked the candidates and was to be used for one year or until the list was exhausted, whichever occurred first. Out of 25 officers, Russell-Cummings ranked fourteenth on the Register (Filing No. 13, Exhibit 18). Candidates #1 through #9 on the Register who were white were all promoted, and candidates #10 and #11 who were black were also promoted during the effective dates of the Register. The Register expired on March 19, 2002, one year from the date of its issuance. Russell-Cummings was not promoted during the effective term of the Register.
Although the Affidavits submitted by the Defendants (Filing No. 13, Exhibits 1, 2, and 4) state that the position vacancy was posted on November 27, 2001, based on the remainder of the record before the Court, the Court concludes that the date cited in the affidavits is in error and that the posting of the Internal Position Vacancy referred to the in Affidavits was November 27, 2000.
The date of the written exam is referred to alternatively in the Affidavits as the week of January 1, 2001, and the week of January 1, 2002. The Court concludes that the exam took place during the week of January 1, 2001.
The Register itself (Filing No. 13, Exhibit 18) only reflects the promotion of the first seven of the candidates.
In her Affidavit, Russell-Cummings states: "I was next on the list of officers eligible to be promoted, but was never given the job." (Filing No. 21, Exhibit 1). Russell- Cummings also alleges that "recently" two white males who were promoted to the rank of Sergeant violated rules and regulations of the Correctional Center and were disciplined, but not demoted. She alleges that a third white Sergeant used a county computer to access pornography in April of 2002 and was not "promptly suspended and demoted." Russell-Cummings alleges that if the first two Sergeants had been demoted, and if the third had been promptly suspended and demoted, she could have received a promotion to Sergeant before the Register expired.
The Register itself (Filing No. 13, Exhibit 18) only reflects the promotion of the first seven of the candidates.
PROCEDURAL HISTORY
Russell-Cummings brought a claim of race discrimination before the Nebraska Equal Opportunity Commission ("NEOC") based on her placement on administrative leave, and the NEOC issued a No Reasonable Cause finding on September 21, 2001. The Equal Employment Opportunity Commission ("EEOC") adopted the findings of the NEOC and issued Russell-Cummings a Notice of Right to Sue on October 26, 2001. On November 30, 2001, Russell-Cummings filed a second action with the NEOC raising issues of failure-to-promote. Russell-Cummings filed this action in federal court on December 19, 2001. The NEOC issued a No Reasonable Cause finding with respect to the second claim on May 23, 2002. The Defendants' Motion for Partial Summary Judgment and Summary Judgment Based on Qualified Immunity (Filing No. 12) was submitted on June 3, 2002. On July 2, 2002, the EEOC issued a Notice of Right to Sue, again adopting the findings of the NEOC. Russell-Cummings filed an Amended Complaint with leave of this Court on August 8, 2002. (Filing No. 18).
In her Amended Complaint, Russell-Cummings asserts causes of action under 42 U.S.C. § 1983 based on alleged violations of her right to Equal Protection under the Fourteenth Amendment with respect to her placement on administrative leave, and with respect to the Defendants' failure to grant her a promotion. She alleges that the same facts violate her rights under the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Nebraska Fair Employment Practices Act, Neb. Rev. Stat § 48-1101, et seq.
The Defendants' Motion for Partial Summary Judgment and Summary Judgment Based on Qualified Immunity (Filing No. 12) requests dismissal of the Nebraska Fair Employment Practices Act claims, and the claims against Dunning in his individual capacity under § 1983 due to qualified immunity.
SUMMARY JUDGMENT STANDARD
The Court must examine the record in the light most favorable to the nonmoving party in the context of a summary judgment motion. U.S. ex rel. Quirk v. Madonna Towers, Inc., 278 F.3d 765, 767(8th Cir. 2001). 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. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (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. 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., 477 U.S. at 325. Nevertheless, 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), and summary judgment should be used sparingly in employment discrimination cases. Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994).
FAIR EMPLOYMENT PRACTICES ACT
The Defendants argue that Russell-Cummings should not be permitted to proceed with her claims under the Nebraska Fair Employment Practice Act ("NFEPA") because (1) NFEPA does not authorize the filing of an action in federal court, (2) Russell did not exhaust her administrative remedies with respect to her failure-to-promote claims, and (3) Neb. Rev. Stat. § 20-148 which normally allows a plaintiff to bring a NFEPA claim without exhausting administrative remedies does not apply to political subdivisions.
In support of their argument that NFEPA does not authorize the filing of an action in federal district court, the Defendants cite Lampman v. McCook Public Schools, 54 F. Supp.2d 945 (D.Neb. 1999). This Court finds that Neb. Rev. Stat. § 48-1119(4) does not preclude a plaintiff from pursuing a NFEPA claim in federal court under the provisions of NFEPA itself, and that where a plaintiff has satisfied the jurisdictional requirements of 28 U.S.C. § 1367(a) as to a NFEPA claim, federal district courts have jurisdiction over such claims. See Hassler v. Alegent Health, 198 F. Supp.2d 1108, 1112 (D.Neb. 2002), disapproving Lampman, supra.
With respect to exhaustion, this Court notes that Russell-Cummings did exhaust her administrative remedies for both claims of discrimination prior to her filing of the Amended Complaint. The arguments and admissions on the issue of exhaustion contained in the parties' in the briefs — submitted before the filing of the Amended Complaint — are, therefore, moot.
QUALIFIED IMMUNITY STANDARD
Qualified immunity is "an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511 (1985). In determining whether officials are entitled to qualified immunity, a court must first consider whether the facts as alleged, taken in the light most favorable to the nonmoving party, show that the defendant officials violated a federal statutory right. See id. at 201. "If no . . . right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Id. If the nonmoving party's allegations show a violation of such a right, then the court must inquire whether the right was clearly established. See id.; Ware v. Morrison, 276 F.3d 385, 387 (8th Cir. 2002). For a right to be clearly established, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). In other words, "[i]f the law did not put [the defendant] on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
42 U.S.C. § 1983 CLAIMS AGAINST DUNNING IN HIS INDIVIDUAL CAPACITY Placement on Administrative Leave
Although Russell-Cummings alleges that "other employees who are Caucasian and who had access to the money were never questioned or required to take a polygraph," the affidavits of Dunning, O'Connor, and Pankonin, and the records of the investigation (Filing No. 13, Exhibits 1, 2, 3, and 7 through 13) show that Barnes (white), Ripa (white), McNulty (white), and Hall (black) were all interviewed, and that Barnes and Hall were polygraphed. Russell-Cummings does not name any white employees who allegedly had access to the money and should have been interviewed or polygraphed and were not. Her affidavit contains conclusory statements, rather than facts which are needed to demonstrate a genuine issue of material fact. See Luciano v. Monfort, Inc., 259 F.3d 906, 910 (8th Cir. 2001) quoting Helfter v. United Parcel Service, Inc., 115 F.3d 613, 616 (8th Cir. 1997) (holding that "conclusory . . . statements, standing alone, are insufficient to withstand a properly-supported motion for summary judgment.") The uncontroverted evidence before the Court shows that Dunning relied on the expertise and advice of Detective Mainelli, Deputy Sheriff Pankonin, Chief Deputy Warden O'Connor, and Ken Bencke of the Sarpy County Sheriff's Office, when deciding to place Russell-Cummings on paid administrative leave. His decision was objectively reasonable, and not in violation of clearly-established law. The Court cannot discern any genuine issue of material fact which could lead a trier of fact to conclude that Dunning acted in violation of any clearly-established law. The Court will therefore grant Dunning's motion for summary judgment on this claim based on qualified immunity.
Failure to Promote
It is undisputed that the Defendants followed the Douglas County Civil Service Policy Manual and the Agreement between Douglas County and the Corrections Bargaining Unit when establishing the Register of Eligible Candidates. Russell-Cummings does not challenge the process used by the Defendants to establish the promotion Register. Instead, she contends that she could have attained a promotion to Sergeant if the Defendants had taken action to demote three white Sergeants, thereby creating personnel vacancies. Her allegations of "failure to demote" are vague as to time and circumstance. There are no facts upon which the Court can conclude that the Defendants should have taken more severe disciplinary action against employees so as to create vacancies to enhance Russell-Cummings's opportunity for promotion, or that the Defendants' failure to do so was a violation of her right to Equal Protection. See Omni Behavior Health v. Miller, 285 F.3d 646, 655 (8th Cir. 2002). If Russell-Cummings had been demoted and similarly-situated white employees had not, then she would state a claim under the Equal Protection Clause. This Court does not find any clearly-established law recognizing a right to the creation of employment vacancies for applicants, and the Court concludes that Dunning's failure to demote employees holding the position of sergeant did not violate any clearly-established law with respect to the rights of Russell-Cummings.
IT IS ORDERED that the Defendants' Motion for Partial Summary Judgment and Summary Judgment Based on Qualified Immunity, Filing No. 12, is granted in part and denied in part, as follows:
(1) The Motion is denied as moot with respect to Plaintiff's claim under 42 U.S.C. § 1981;
(2) The Motion is denied with respect to the Plaintiff's claims under the Nebraska Fair Employment Practices Act [Fifth Claim for Relief in Amended Complaint];
(3) The Motion is granted with respect to Plaintiff's claim against Defendant Dunning in his personal capacity related to Plaintiff's placement on administrative leave [First Claim for Relief in Amended Complaint]; and
(4) The Motion is granted with respect to Plaintiff's claim against Defendant Dunning in his personal capacity related to Plaintiff's claim of failure-to-promote [Second Claim for Relief in Amended Complaint].