Perry v. Lancaster Cnty.

PRECIOUS PERRY, Plaintiff, v. LANCASTER COUNTY, NEBRASKA, Defendant.

4:13CV3013

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

DATED: June 9, 2014

MEMORANDUMAND ORDER

Plaintiff Precious Perry, a former juvenile detention officer at the Lancaster County Youth Services Center, claims she was discriminated and retaliated against, harassed, and ultimately terminated from her employment on the basis of her use of leave pursuant to the Family and Medical Leave Act, her race, and her husband's disability. In addition, Perry claims that she was denied employment because of her membership in a labor organization, contrary to the provisions of Neb. Rev. Stat. § 48-217 and Neb. Const. art. XV, §13. (Filing 1-1, Complaint Removed from District Court of Lancaster County, Nebraska).¹ Defendant Lancaster County has filed a motion for summary judgment as to all of Perry's claims. (Filing 17.)

I. SUMMARY JUDGMENT STANDARD

"Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Jackson v. United Parcel Serv., Inc., 643 F.3d 1081, 1085 (8th Cir. 2011) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc)). After the movant has demonstrated the absence of a genuineissue of material fact, the nonmovant must respond by submitting evidence that sets out specific facts showing that there is a genuine issue for trial. Id. In doing so, the nonmovant must substantiate her allegations with "sufficient probative evidence [that] would permit a finding in [her] favor on more than mere speculation, conjecture, or fantasy." Moody v. St. Charles Cnty., 23 F.3d 1410, 1412 (8th Cir. 1994) (quoting Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992)). "A mere scintilla of evidence is insufficient to avoid summary judgment." Id. "The basic inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir. 2005) (internal quotation marks and citations omitted). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Jackson, 643 F.3d at 1085 (quoting Torgerson, 643 F.3d at 1042).

II. UNDISPUTED MATERIAL FACTS²

1. Plaintiff Precious Perry ("Perry") is an African-American resident and citizen of Lincoln, Lancaster County, Nebraska. (Filing 1-1, Complaint Removed from District Court of Lancaster County ¶ 2.)

2. Defendant County of Lancaster, Nebraska, ("the County") is a political subdivision duly formed and existing under the laws of the State of Nebraska. (Filing 1-1, Complaint ¶ 3.)

3. At all relevant times, the County operated a juvenile detention facility located in Lincoln, Nebraska. At the time of the events alleged in Perry's complaint, that facility was known as the Youth Services Center ("YSC"). (Filing 18-1, Dep. Precious Perry 5:20-6:9.)

4. Perry was originally hired to work at the County's juvenile detention facility in 1998, and she continued working in that capacity until her employment was terminated on February 22, 2012. (Filing 1-1, Complaint ¶¶ 4, 17.)

5. At the time of the events alleged in the complaint, Perry held the position of juvenile detention officer. (Filing 1-1, Complaint ¶ 5.) In that capacity, she was responsible for performing a variety of duties, with the primary responsibility being security. (Filing 18-1, Perry Dep. 12:5-13:6.) Juvenile detention officers were directly supervised by duty supervisors; duty supervisors were supervised by team leaders; and above team leaders in the chain of command were a deputy director, and, ultimately, the department director. (Filing 18-1, Perry Dep. 17:18-20:5.) At the relevant time, Ryan Timmerman was a duty supervisor with whom Perry worked on occasion. (Filing 18-2, Perry Dep. 137:7-138:20.) Eric Rezabek was a team leader and Perry's direct supervisor. Annette Thompson was the deputy director. Michelle Schindler was the director. (Filing 18-1, Perry Dep. 16:4-12, 22:5-7, 85:3-87:3.) Only Schindler had the technical authority to impose discipline on YSC employees. (Filing 18-60, Tr. Lancaster County Personnel Board Hearing at 265:12-15; Filing 18-38, Aff. Michelle Schindler ¶ 3.)

6. On Thursday, April 7, 2011, Perry sent an e-mail to YSC Director Schindler requesting leave without pay from Sunday, April 10, through Tuesday, April 19, 2011, with possible intermittent leave for up to six weeks thereafter, all in connection with surgery that was scheduled for her husband, Mike Perry, for a serious medical need. Perry stated that her husband's surgery was scheduled for April 12, but "pre-op" tests were required on April 11. She promised to "submit my leave forms for the time specified above today." (Filing 18-4.) Perry had already submitted the necessary medical certification forms to the medicalproviders prior to sending her e-mail to Schindler. (Filing 18-1, Perry Dep. 34:21-36:13.)

7. In response to that e-mail, Schindler contacted her administrative aide, who, in turn, requested that a clerk, Dena Hupp, "do an fmla letter." (Filing 18-4; Filing 18-1, Perry Dep. 31:2-33:1.) That letter, which included a copy of the County's Family and Medical Leave Act policy, was signed by Schindler and sent to Perry on April 7, 2011. (Filing 18-6.) The letter acknowledged the office's notification of Perry's "need to be off work"; acknowledged that Perry's husband's condition may be considered a serious health condition under the FMLA; requested that a physician complete an FMLA medical certification form and Perry fill out an FMLA application; and directed Perry to return the form and application as soon as possible. The letter stated: "Beginning April 10, 2011, your leave from work will be counted against your twelve weeks of FMLA leave entitlement." (Filing 18-6.) Perry acknowledged that she received the letter. (Filing 18-1, Perry Dep. 32:17-34:19.) On April 7, 2001, Perry also filled out a leave request form and placed it in the office mailbox of YSC Director Schindler. (Filing 18-5; Filing 18-1, Perry Dep. 26:17-28:2.)

8. On Friday, April 8, Perry learned that her husband's surgery had been cancelled, at which time she received an itinerary of medical testing that would be done in lieu of immediate surgery. On April 10, 2011, Perry reported to work and completed her shift despite having previously requested the day off as FMLA leave. (Filing 18-1, Perry Dep. 45:8-46:24.)

9. Although the new medical itinerary did not require Perry and her husband to be at the hospital on Monday, April 11, Perry did not report to work her regularly scheduled shift on that day, but her husband—also a county employee—did. A supervisor attempted to contact Perry about her absence, but was unsuccessful. After receiving several phone calls from co-workers warning her that she had failed to show up for work without calling, Perry called the facility at approximately 2:30 p.m. During that telephone conversation with Records Manager Tina Dingman, Perry acknowledged that she had not received confirmation that her FMLA leave request had been approved. (Filing 18-1, Perry Dep. 41:3-43:11; 62:24-63:7.)

10. Perry failed to advise anyone at YSC of the changes in plans, either on Sunday, April 10, when she went into work, or on Monday, April 11, when she spoke with Ms. Dingman on the telephone. (Filing 18-1, Perry Dep. 44:11-53:17.) Perry testified that instead of immediate surgery, her husband would undergo a "transplant evaluation," so she had "spent [Monday, April 11] on the phone with the nurse off and on to pin down exactly what we need to do . . . who we were supposed to contact as far as hotel, as far as what he needed to do for procedures and preparation," and she knew "that it wasn't something I could . . . have dealt with at work." (Filing 18-1, Perry Dep. 46:24; 54:3-19, 57:2-4.)

11. Perry's original FMLA leave request indicated that leave was being sought for the period from April 10 through April 19, 2011. However, because Perry reported to work and completed her April 10, 2011, shift despite having previously requested the day off as FMLA leave, Perry's leave request form was later amended by administrative aide Melissa Hood to indicate that leave was being sought for the period from April 11 through April 19, 2011. (Filing 18-5; Filing 18-57, Aff. Melissa M. Hood ¶ 5.)

12. Despite her previous request for FMLA leave through April 19, 2011, Perry returned to work on Monday, April 18, 2011, and worked her regular shift. On that date, Perry told her duty supervisor and payroll clerk Dena Hupp that her husband's surgery had been cancelled. (Filing 18-1, Perry Dep. 44:4-45:1, 64:12-65:24.)

13. On April 20, 2011, Perry submitted the required medical certification statement that had been completed and signed by her husband's medical provider. The certification stated that treatment had been provided on April 12, 13, and 14, 2001, and that Perry's husband had "end stage liver disease & tumors in liver." (Filing 18-7.)

14. On April 28, 2011, YSC Director Schindler informed Perry by letter that her request for FMLA leave was approved for April 12, 13, and 14, 2011, and that time would be counted against her 12 weeks of FMLA leave entitlement. The letter also stated that Schindler did not believe Perry qualified for FMLA leave to care for her husband on April 10, 11, 15, 16, 17, 18, and 19, and Perry's entitlement to leave without pay for this non-FMLA leave was "still under review." (Filing 18-8.)

15. On April 29, 2011, YSC Director Schindler sent a letter to Perry proposing to suspend her for one working day for alleged violations of a number of provisions contained in the Lancaster County Personnel Rules, the YSC...