Opinion
4:00CV3198
March 26, 2001
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The plaintiff has been an employee of defendant Department of Roads since 1985. In 1998, the plaintiff, who is a white male, applied for a position as Highway Photogrammetric Manager. A white female, defendant Marsha Munter, received the position. The plaintiff has filed a four-count complaint alleging violations of 42 U.S.C. § 1983 (Counts I and II), 42 U.S.C. § 2000e et seq. of the Civil Rights Act of 1964, as amended (Title VII) (Count III), and the Nebraska Fair Employment Practice Act, NEB. REV. STAT. §§ 48-1101-1125 (Michie 1995) (FEPA) (Count IV) (filing 1). The defendants have filed a motion for summary judgment, filing 15. I find that the defendant's motion must be granted in part and denied in part.
The background discussion is based upon the parties' statements of material facts submitted in accordance with NELR 56.1, with the plaintiffs receiving the benefit of all reasonable inferences that may be drawn from the record. Widoe v. District #111 Otoe County School, 147 F.3d 726, 728 (8th Cir. 1998). A number of factual statements set forth by the plaintiff are not genuinely supported by the portions of the record he has cited. For example, at ¶ 6, the statement, "He may also have been motivated by personal animosity" is unsupported by the citations provided. (Pl.'s Br. in Resp. to Mot. for Summ. J. Statement of Facts ¶ 6.) Some statements are clearly accurate, but are unsupported by the portions of the evidence cited by the plaintiff See, e.g., Id. at ¶ 3 (the statement is actually supported at Thornburg Depo. at 6:8-10.) Finally, in support of ¶ 8, I am referred to an entire 118-page "vacancy file" with no page or line designation. That is not in accord with NELR 56.1(b). The designation of "Thornburg Depo. 60:4-6:14" to support ¶ 8 is also incomprehensible and I do not know what pages or lines are intended.
At all relevant times, the plaintiff was employed by defendant Department of Roads in the photogrammetry department. In July of 1998, Richard Keefover resigned his position as Highway Photogrammetric Manager within the Roadway Design Division at the Nebraska Department of Roads. The candidates to replace Keefover included the plaintiff, defendant Marsha Munter, and two other individuals. The plaintiff claims that defendant Munter did not pursue the position until defendant Ted Watson encouraged her to apply some hours prior to the application deadline. Interviews of the candidates were conducted during August 1998. The interviewers included defendant Watson, defendant James Baird, and two other individuals. Each candidate for the Photogrammetric Manager position was asked the same series of questions during the interview. The interview questions were authored by defendant Baird. The plaintiff alleges that two of the questions asked during the interview were designed to favor defendant Munter, and that no questions were asked regarding consulting work. There is evidence that consulting forms a significant proportion of the office's work, and that the plaintiff had been managing the consulting work. (Thornburg Depo. at 32:14-33:19.) At the conclusion of the interview process, the candidates were ranked. Defendant Munter was ranked as the most qualified candidate, followed by the plaintiff. Defendant Munter was offered the position, and she accepted the offer on August 18, 1998. (Pl.'s Evidence in Resp. to Mot. for Summ. J., Vacancy File at 6.) Although the plaintiff believed that "reverse discrimination" played a role in the selection of Munter, he has never filed a claim with either the Equal Employment Opportunity Commission (EEOC) (Thomburg Depo. at 41:17-20) or the Nebraska Equal Opportunity Commission (NEOC).
The plaintiff has testified that he called the NEOC and talked with one he believes to be Mary Beth "and she would not allow me to file a claim. She either did not understand what I was saying or she did not believe I had enough grounds to file a claim; therefore, she would not let me file one." (Thornburg Depo. at 41:9-16). That does not constitute a filing or relieve him of the duty to file one.
Sometime after defendant Munter ascended to the Photogrammetric Manager position, the plaintiff apparently included complaints about the promotion practices of the Department of Roads in an employee satisfaction survey. The survey itself appears to have been an exhibit in the plaintiff's deposition, but it is not among the materials before me. The plaintiff's deposition indicates that a number of surveys, letters, memos, or internal complaints were generated, but frankly it is difficult to determine their relevance to the plaintiff's complaint without the proper documents in evidence. One survey was completed by the members of Roadway Design Division of the Department of Roads, which included the plaintiff. It seems that the plaintiff's responses on this survey resulted in a meeting with defendant Watson, who "chewed him out." (Thomburg Depo. at 13:2.) This event apparently forms the basis of Count II of the plaintiff's complaint, although a reading of that count would not suggest so. Compare Thomburg Depo. at 29:25-30:9 with Complaint ¶¶ 26-33.
Also since Munter's promotion to the Photogrammetric Manager position, the plaintiff's job duties increased to include the supervision of other employees, yet he received no raise in pay other than a standard "cost of living" pay increase. (Thornburg Depo. at 29:3-24.) Additionally, there appeared to be personal tensions between the plaintiff and Munter. It seems that on July 14, 2000, the plaintiff was called into Munter's office to sign a form. After the plaintiff made a reference to his attorney, Munter "got defensive" and told the plaintiff that if he did anything legally against the State, Munter, or Watson it would not be good for him. (Thomburg Depo. at 35:8-25.) This event apparently forms the the basis for the plaintiff's claims against defendant Munter set forth in Count I and Count III, and may be a basis for his Count II claim as well. (Id. at 34:23-35:25, 37:11-38:21, 39:2-7. But see Id. at 121.)
The plaintiff filed a four-count complaint on August 8, 2000. The first two counts allege violations of 42 U.S.C. § 1983. Specifically, in Count I the plaintiff argues that the defendants violated his equal protection rights as secured by the United States Constitution, and in Count II, the plaintiff argues that the defendants violated his First Amendment rights. Count III arises under 42 U.S.C. § 2000e et seq. of the Civil Rights Act of 1964, as amended (Title VII), and is based upon unlawful retaliation. Finally, Count IV arises under the Nebraska Fair Employment Practice Act, NEB. REV. STAT. §§ 48-1101-1125 (Michie 1995) (FEPA), and is based upon "retaliatory discrimination." (Complaint ¶ 41.) The defendants have moved for summary judgment. (Filing 15.)
II. STANDARD OF REVIEW
A motion for summary judgment shall be granted by the court when, viewing the facts and reasonable inferences in the light most favorable to the nonmoving party, "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A genuine issue of material fact exists when there is sufficient evidence favoring the party opposing the motion for a jury to return a verdict for that party. Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 248 (1986). If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, then the burden shifts to the opposing party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett , 477 U.S. 317 (1986). The opposing party "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial" and "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson , 477 U.S. at 256-57 (citations omitted).
III. ANALYSIS A. Counts I and II
The defendants' first argument in support of their motion for summary judgment is based upon the premise that the plaintiff's "four causes of action are substantially a claim for gender discrimination." (Defs.' Br. in Supp. of Mot. for Summ. J. at 9). The defendants point out that Title VII sets forth the remedial structure to be invoked in sex discrimination suits, and that the plaintiff has failed to complete the appropriate filings with either the EEOC or the NEOC. It is true that a time-barred Title VII sex discrimination claim cannot be enforced through § 1983. Hervey v. City of Little Rock, 787 F.2d 1223, 1233 (8th Cir. 1986). However, it is nevertheless permissible for the plaintiff to bring a § 1983 claim and attempt to prove that the defendants violated his equal protection rights under the Fourteenth Amendment. Id. I find that the plaintiff may pursue his First Amendment claim in the same manner. The defendants would have me convert the plaintiff's § 1983 claims set forth in Counts I and II of the complaint into Title VII claims, and then eliminate them as time-barred. Hervey does not support such an argument, and I find that it must be rejected.
The defendants next argue that summary judgment is appropriate on the equal protection claim (Count I) because the plaintiff is incapable of establishing a prima facie case. In support of this position, the defendants state the following:
"To establish a prima facie case of discrimination under Title VII, the ADEA, or § 1983, the plaintiff must show that the defendant failed to promote the plaintiff under circumstances which give rise to an inference of unlawful discrimination. Davenport v. Riverview Gardens Sch. Dist., 30 F.3d 940, 945 (8th Cir. 1994); Johnson v. Minnesota Historical Soc'y, 931 F.2d 1239, 1242 (8th Cir. 1991). The elements of an equal protection case under § 1983 are: 1) that the plaintiff is entitled to equal protection; 2) he was qualified for and applied for a promotion to a position for which the defendant was seeking applicants; 3) that the plaintiff was rejected for the promotion; and, 4) that other employees who were similarly situated and not members of this protected class were promoted to the position applied for by the plaintiff. Marzec v. Marsh, 990 F.2d 393, 395-96 (8th Cir. 1993). It is Defendants' contention that Plaintiff has failed to establish the first element.
(Defs.' Br. in Supp. of Mot. for Summ. J. at 12) (punctuation as in original). All but the last sentence of this excerpt from the defendants' brief is actually quoted verbatim in the plaintiff's brief at its seventh page, including even the quotation mark that opens the paragraph and is never closed.
It is represented that the first sentence of the paragraph excerpted above is a quote from either or both the Davenport and Johnson cases, but it actually appears in neither. Davenport involved a Title VII claim, but not a § 1983 or ADEA claim. "Title VII has been interpreted to require only that . . . the plaintiff demonstrate that his or her discharge occurred in `circumstances which allow the court to infer unlawful discrimination.'" Davenport, 30 F.3d at 945 (quoting Walker v. St. Anthony's Medical Center, 881 F.2d 554, 558 (8th Cir. 1989).Johnson applies this same requirement in the age discrimination context.Johnson, 931 F.2d at 1242 ("To establish a prima facie case of age discrimination, the plaintiff must show that the defendant discharged him `under circumstances which give rise to an inference of unlawful discrimination.'"). Neither case refers to § 1983.
The quote that the defendants have referred me to, and that the plaintiff evidently has adopted, actually hails from the Western Division of the Northern District of Iowa. Schallehn v. Central Trust and Savings Bank, 877 F. Supp. 1315, 1325 (N.D. Iowa 1995). Schallehn citesDavenport and Johnson in support of the quoted passage, even though no mention of § 1983 is made in either case. In Schallehn, the court found that the burdens of establishing a prima facie case of discrimination are the same under the ADEA, Title VII, and § 1983.Id. at 1325. In support of this proposition, the court refers to Richmond v. Board of Regents of the University of Minnesota, 957 F.2d 595, 598 (8th Cir. 1992), and Hicks v. St. Mary's Honor Center, 970 F.2d 487 (8th Cir. 1992). Richmond in turn relies upon Patterson v. McLean Credit Union, 491 U.S. 164, 186-87 (1989) and Scharnhorst v. Independent School District # 710, 686 F.2d 637 (8th Cir. 1982) in support of its finding that a prima facie case of discrimination under Title VII, § 1981, § 1983, or the ADEA entails a showing that the plaintiff belongs to a protected class; that he was qualified for the job from which he was discharged; that he was discharged; and that after his discharge, the employer sought people with his qualifications to fill the job. Richmond at 598. However, neither Scharnhorst nor Patterson involved § 1983, and thus do not directly support the proposition for which they are cited in Richmond. Hicks was reversed on other grounds by the Supreme Court. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).Hicks relies on Richmond, Briggs v. Anderson, 796 F.2d 1009, 1021 (8th Cir. 1986), and Craik v. Minnesota State University Board, 731 F.2d 465, 468 n. 5 (8th Cir. 1984) for the proposition that the elements of a Title VII discrimination claim are the same as the elements of a § 1983 claim. I have already pointed out the weak footing upon whichRichmond is based, but it appears to me that Briggs and Craik do stand firmly for the proposition that "[t]he inquiry into intentional discrimination is essentially the same for individual actions brought under [Title VII,] §§ 1981 and 1983 . . ." Briggs, 796 F.2d at 1021.See also Craik, 731 F.2d at 468 n. 5.
It seems to me that the defendants are correct that in a discrimination case that may be brought pursuant to either Title VII or § 1983, the framework for establishing a prima facie case of discrimination in a failure-to-promote case would be as it is set forth in Marzec. However, Count I of the complaint is not based on sex discrimination that may be remedied under either Title VII or § 1983, but rather on the equal protection right afforded under the Fourteenth Amendment. Hervey makes clear that this is a distinct claim wholly apart from a discrimination claim that would be analyzed under the Title VII framework, and that a different framework for establishing a prima facie case applies to § 1983 cases grounded in equal protection rights. Hervey, 787 F.2d at 1233 (8th Cir. 1986).
In the present case, the plaintiff must first show that a sexually discriminatory purpose was a motivating factor in the defendants' promotion decision. Hervey, 787 F.2d at 1233; O'Brien v. City of Greers Ferry, 873 F.2d 1115, 1119 (8th Cir. 1989). The burden then shifts to the defendants to show that the same promotion decision would have been made even if the impermissible purpose had not been considered. Id. If the defendants fail to meet this burden, an equal protection violation is established. Hervey, 787 F.2d at 1233.
Since the defendants did not frame their arguments directed at the plaintiff's equal protection claim in Count I using the proper legal analysis, I cannot find that their arguments entitle them to judgment as a matter of law on Count I generally. However, the briefs make clear that certain of the plaintiff's claims are not applicable to certain defendants. I recognize, based upon the parties' stipulations, that defendant Munter is dismissed as a defendant as to Count I and defendant Baird is dismissed as a defendant as to Count II. In all other respects, the defendants' motion for summary judgment is denied as to Counts I and II.
B. Count III
The plaintiff's third cause of action arises under Title VII. (Complaint ¶ 4.) Since the plaintiff has never filed a charge with either the EEOC or NEOC, he has failed to comply with the Title VII enforcement provisions. 42 U.S.C. § 2000e-5. Although the defendants presented their argument that the plaintiff has failed to comply with the Title VII enforcement provisions in their motion for summary judgment, I find that it would be more appropriate to dismiss Count III of the plaintiff's complaint due to the plaintiff's failure to file his charge with the EEOC or NEOC. There has been no argument by either party regarding the point at which the limitations period began to run on the plaintiff's retaliation claim. Therefore, Count III shall be dismissed without prejudice. If the plaintiff can comply with the relevant requirements, it may be possible for him to bring his claim properly in the future.
C. Count IV
The plaintiff's fourth cause of action arises under the Nebraska Fair Employment Practices Act, NEB. REV. STAT. §§ 48-1101-1125 (Michie 1995) (FEPA).
It appears to me that the plaintiff's FEPA claim must be dismissed for a reason that has not been recognized by either party:
Plaintiff's claim under the Nebraska Fair Employment Practice Act (NFEPA) is asserted pursuant to this court's supplemental jurisdiction. See 28 U.S.C. § 1367. There are two potential problems with this claim. . . . Second, and more importantly, there is some question as to whether, under the circumstances, this court has jurisdiction to entertain this state law claim.
The NFEPA does not expressly provide for a private judicial right of action for those individuals claiming to be aggrieved by an employer's unlawful employment practices under the Act. See Miller v. Union Pacific R. Co., 539 F. Supp. 134, 137 (D.Neb. 1982) (declining to exercise pendent jurisdiction over plaintiff's NFEPA claim because it is unclear whether the Act provides a private right of action). Rather, the NFEPA provides a comprehensive administrative remedy to persons claiming a violation of the Act, consisting of an administrative hearing and appeal of the administrative ruling to state district court for de novo review. See NEB.REV.STAT. § 48-1116 to 48-1120. The only instance where it appears an individual may claim a private right of action under the NFEPA is where the alleged violation of the NFEPA is asserted not as the sole cause of action, but as the basis for a claim under NEB.REV.STAT. § 20-148 (Reissue 1987), which creates a civil cause of action for the violation of rights secured by the constitution and laws of the State of Nebraska. See, e.g., Biberos v. Dayco Products, Inc., CV90-L-23 (D.Neb. Dec. 17, 1990) (available on WESTLAW, 1990 WL 302888). In this case plaintiff has not pleaded a violation of § 20-148, but only a violation of the NFEPA.Bruhn v. Foley, 824 F. Supp. 1345, 1348 n. 1 (D. Neb. 1993). In this case, the plaintiff is attempting to bring a FEPA claim pursuant to the supplemental jurisdiction of this court, but the FEPA does not authorize his private suit. The plaintiff has admittedly not engaged in the administrative remedies provided by the act. More importantly, the plaintiff has not attempted to bring his claim pursuant to NEB.REV.STAT. § 20-148. Even if the plaintiff had raised § 20-148 in his complaint, the applicability of this statute in this case might be questionable. See Sinn v. City of Seward, 3 Neb. App. 59 (1994). I find that Count IV of the plaintiff's complaint must be dismissed.
D. The Affirmative Action Plan
Finally, the defendants argue that they are entitled to summary judgment because the plaintiff "cannot show that some reason other than a remedial one motivated the employer when implementing the alleged affirmative action plan or that the plan adopted unreasonably exceeded its remedial purpose." (Defs.' Br. in Supp. of Mot. for Summ. J. at 15.) The defendants' argument is easily rejected. The burden identified by the defendants above falls to the plaintiff only after the defendants have shown that the plan is indeed designed to remedy "a conspicuous racial imbalance in [their] work force" and that the remedial plan is narrowly tailored to meet that goal. Donaghy v. City of Omaha, 933 F.2d 1448, 1458 (8th Cir. 1991). Since the defendants maintain that Munter's promotion was not related to an affirmative action plan, it is obvious that they have not satisfied their burden. (Watson Aff. at ¶ 10.) The defendants refer me to the plaintiff's allegation that some sort of "affirmative action goal" was involved in the promotion decision (Complaint ¶ 23), claiming that "implicit in this allegation is that the Defendants have enacted a bona fide affirmative action plan," and therefore the defendants are relieved of their burden. I disagree.
IT IS ORDERED that the defendants' motion for summary judgment, filing 15, is denied, except that defendant Munter is dismissed as a defendant on Count I, defendant Baird is dismissed as a defendant on Count II, and Counts III and IV are dismissed in their entirety.