Crudup v. City of Omaha

1

JANE CRUDUP, Plaintiff, v. CITY OF OMAHA, a Political Subdivision, Defendant.

No. 8:21CV45

United States District Court, D. Nebraska

March 31, 2023

MEMORANDUM AND ORDER

JOSEPH F. BATAILLON, SENIOR UNITED STATES DISTRICT JUDGE

Plaintiff Jane Crudup, has asserted various causes of employment discrimination while working as a firefighter for Defendant City of Omaha. The matter comes before the Court on the City of Omaha's motion for summary judgment. Filing No. 60. For the reasons set forth herein, the Court denies the motion for summary judgment.

I. BACKGROUND

Crudup is Black and was hired as a probationary firefighter with the City of Omaha in January 2019. Filing No. 56 at 1-2. After completing initial training, Crudup was assigned to Station 41 as a probationary firefighter candidate around May 2019 where Captains Scott Schendt and Todd Dippel were her supervisors. Filing No. 56 at 4. A fellow firefighter candidate, Mark Lukowski, was assigned to Station 41 at the same time. Filing No. 62-10 at 1; Filing No. 65 at 29-30. Lukowski is white. Filing No. 56 at 5.

Crudup describes several incidents in which she felt she was harassed based on her race between May 2019 and April 2020. One time, Crudup and Lukowski were tasked with breaking apart a firehose after a training exercise. Filing No. 62-10 at 1; Filing No. 65 at 42-43; Filing No. 62-3 at 6. A non-probationary firefighter, Heath Reyzlik, approached them and told them they should be using a different wrench for the task.

Filing No. 62-10 at 1; Filing No. 64 at 7. Crudup disagreed with this advice and told the firefighter so. Filing No. 65 at 42. Schendt then came over and said that Crudup should just “shut up and listen.” Filing No. 62-3 at 8; Filing No. 65 at 43-44; Filing No. 62-10 at 2.

On another occasion, at the scene where a Black infant had died, a firefighter named Chris Vacek said, “[I]t's sad to say, but that's the best thing that could have happened to that baby.” Filing No. 65 at 32-33. Crudup questioned how Vacek could say that about an “innocent” baby. Filing No. 65 at 33. He stated, “[W]ell, look at it, look at the environment that it lives in, look at its parents, it's like that's the best thing that could have happened.” Filing No. 65 at 33. Crudup responded that “just because an individual is from a poverty-stricken area, doesn't mean, you know, that death is the best thing that could have happened.” Filing No. 65 at 33.

Another time, while watching a television show concerning politics, Schendt said that “all Democrats could just kill themselves.” Filing No. 65 at 33. On a different occasion, Crudup and Schendt were watching a comedy program called “Tosh.0” that involved a skit with a white woman who self-identified as Black. Filing No. 65 at 36. Schendt stated something along the lines of, “[I]f that came to my house . . . I would shoot it.” Filing No. 65 at 36.

On or about 3, 2020, Crudup reported to Station 41 after an off-site training academy. Filing No. 65 at 58. She had not taken her firefighting gear, such as her helmet and coat, with her. Filing No. 65 at 61. Upon arriving at the station, she found her helmet and gear hanging from the flagpole in the front of the station in a manner that signified a mock lynching to her. Filing No. 65 at 58-61; Filing No. 63 at 25. Reyzlik was the one who hung Crudup's gear from the flagpole. Filing No. 65-10 at 11. Schendt testified that Crudup's gear being run up the flagpole was a form of corrective action from her fellow firefighters because she was unprepared by leaving the gear behind. Filing No. 65-12 at 63, 69; Filing No. 65-11 at 95-96. White firefighters had previously had their gear run up the flagpole as well. For example, Joseph Tisthammer left his gear at Station 41 while a firefighting candidate and had it put up the flagpole in 2017. Filing No. 62-11. Matthew Salmon, also white, had his gear run up the flagpole in late 1998 or early 1999 when he was a candidate at Station 41. Filing No. 62-12 at 1. He had left his gear behind at the station when he was supposed to have it with him. Filing No. 62-12 at 1. Lastly, Eric Schack, a white firefighter, had his shirt run up the flagpole outside Station 42 when a candidate. Filing No. 62-13 at 1. It is not clear why Schack's gear was put up the flagpole as he claimed not to have left anything behind. Filing No. 62-13 at 1.

Also in mid-March 2020, Crudup went on a fuel run with Vacek and Schendt. Crudup got off the truck to pump the gas. Filing No. 65-14 at 99-100. Vacek began to drive off before Crudup was fully back on the truck. Filing No. 65-14 at 100.

In late March 2020, Village Inn donated food to Station 41. Filing No. 65 at 50. The firefighters all chose various items they wanted to take. Filing No. 65 at 50-51. When Crudup had to leave the room, other firefighters took items that Crudup had selected. Filing No. 65 at 51-52.

Crudup successfully completed her probationary status on April 2, 2020, and was subsequently transferred to Station 61. Filing No. 56 at 7. At Station 61, Crudup was subject to two incidents of harassment she argues were racially motivated: on one occasion early in the COVID-19 pandemic, she found a used mask in her boot, Filing No. 65 at 78, and on another, her helmet strap was tampered with, Filing No. 65 at 74-75.

On April 12, 2020, a fellow firefighter in whom Crudup had confided sent an email to City officials in which she asserted Crudup had been discriminated against. Filing No. 65-3 at 6-7. Crudup went on unpaid medical leave starting on May 22, 2020. Filing No. 56 at 11. Crudup's psychiatrist and a psychological examiner concluded she was psychologically unfit to return to work as a firefighter and suffered from PTSD. Filing No. 65-9; Filing No. 65-14 at 191-92. Crudup filed a claim of discrimination with the Equal Employment Opportunity Commission (EEOC) and Nebraska Equal Opportunity Commission (NEOC) on November 7, 2020. Filing No. 62-8 at 3. On May 30, 2022, Crudup resigned. Filing No. 62-9.

The EEOC and NEOC issued right-to-sue letters, Filing No. 62-8 at 1, and Crudup subsequently commenced the present lawsuit. She alleges the City subjected her to racial discrimination, a hostile work environment, retaliation, and that it constructively discharged her. Filing No. 56. She also alleges an equal protection violation. Id. The City moves for summary judgment on all her claims.

II. ANALYSIS

A. Standard of Review

Summary judgment is appropriate when, viewing the facts and inferences in the light most favorable to the nonmoving party, the “materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” show that “an adverse party cannot produce admissible evidence to support” a fact essential to the nonmoving party's claim. Fed.R.Civ.P. 56(c)(1)(A) & (B). The plain language of Rule 56(c) mandates the entry of summary judgment after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. CelotexCorp. v. Catrett, 477 U.S. 317, 322 (1986).

“The movant ‘bears the initial responsibility of informing the district court of the basis for its motion,' and must identify ‘those portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material fact.'” Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (quoting Celotex Corp., 477 U.S. at 323). If the movant does so, “the nonmovant must respond by submitting evidentiary materials that set out ‘specific facts showing that there is a genuine issue for trial.'” Id. (quoting Celotex Corp., 477 U.S. at 324). 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, 251-52 (1986).

The evidence must be viewed in the light most favorable to the nonmoving party, giving the nonmoving party the benefit of all reasonable inferences. Kenney v. Swift Transp., Inc., 347 F.3d 1041, 1044 (8th Cir. 2003). “In ruling on a motion for summary judgment, a court must not weigh evidence or make credibility determinations.” Id.“Where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate.” Koehn v. Indian Hills Cmty. Coll., 371 F.3d 394, 396 (8th Cir. 2004).

If “reasonable minds could differ as to the import of the evidence,” summary judgment should not be granted. Anderson, 477 U.S. at 251.

B. Race Discrimination and Constructive Discharge

The City of Omaha moves for summary judgment on Crudup's claims of federal and state race-based discrimination as set forth in her first cause of action (under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.) second cause of action (under the Nebraska Fair Employment Practice Act or “NFEPA”), and third cause of action (under 42 U.S.C. § 1981), and on Crudup's claims of constructive discharge as set forth in her eleventh (NFEPA), twelfth (Title VII), and thirteenth causes of action (§ 1981). Crudup claims the City of Omaha discriminated against her when her gear was put up the flagpole in the form of a mock lynching, eventually resulting in her having to go on unpaid leave and later quitting her job due to mental health issues. Filing No. 63 at 18-19. The City of Omaha argues that Crudup fails to show she suffered an adverse employment action or was treated differently than similarly situated...