Tegley v. Lancaster County, Nebraska

Filing 26

MEMORANDUM AND ORDER granting 11 Motion for Summary Judgment. Final judgment shall be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
AMY TEGLEY,
Plaintiff,
v.
LANCASTER COUNTY,
NEBRASKA,
Defendant.

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4:13CV3104

MEMORANDUM
AND ORDER

Amy Tegley was separated from her employment with Lancaster County,
Nebraska, in December 2011 after the County Treasurer determined that migraine
headaches prevented Tegley from performing the essential functions of her job as a
motor vehicle clerk. Tegley contends in this action that she was discriminated against
on the basis of disability and denied reasonable accommodations in violation of the
Americans With Disabilities Act (ADA), and that she was actually discharged for
exercising her rights under the ADA and the Family and Medical Leave Act (FMLA).
The County has moved for summary judgment on all claims. For the reasons
discussed below, the motion will be granted and judgment will be entered dismissing
all claims with prejudice.
I. Undisputed Facts
Our local rules provide that “[t]he moving party must include in the brief in
support of the summary judgment motion a separate statement of material facts about
which the moving party contends there is no genuine issue to be tried and that entitles
the moving party to judgment as a matter of law.” NECivR 56.1(a)(1). “The statement
of facts should consist of short numbered paragraphs, each containing pinpoint

references to affidavits, pleadings, discovery responses, deposition testimony (by page
and line), or other materials that support the material facts stated in the paragraph.”
NECivR 56.1(a)(2) (emphasis in original). The party opposing a summary judgment
motion must then include in its brief a concise response to the moving party’s
statement of material facts. “Each material fact in the response must be set forth in a
separate numbered paragraph, must include pinpoint references to affidavits,
pleadings, discovery responses, deposition testimony (by page and line), or other
materials upon which the opposing party relies, and, if applicable, must state the
number of the paragraph in the movant’s statement of material facts that is disputed.”
NECivR 56.1(b)(1). “Properly referenced material facts in the movant’s statement are
considered admitted unless controverted in the opposing party’s response.” Id.
(emphasis in original).
Each party has generally complied with these briefing requirements. For the
most part, Tegley does not dispute the County’s statement of material facts. Similarly,
the County does not dispute most of the additional facts which Tegley has set out in
her opposing brief, although it does not concede their materiality.1
Based on the parties’ respective statements, and a review of the referenced
exhibits, the court finds there is no genuine dispute as the following facts:2

1

The County states in its reply brief that, subject to one exception, it “does not
dispute the supplemental facts contained in Plaintiff’s brief as almost all of those facts
were contained in the exhibits” (filing 24 at 1). The County disputes that the County
Treasurer made a disparaging statement about employees taking FMLA leave.
2

Paragraphs 1 through 34 are derived from the County’s statement of material
facts (filing 13 at 1-5), but Tegley’s opposing brief is the source for all lettered
subparagraphs (filing 21 at 2-16). Paragraphs 35 though 40 are also taken from
Tegley’s opposing brief (filing 21 at 16-17). For readability, the parties’ references
to exhibits have been omitted.
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1. Tegley was hired to work as a Motor Vehicle Clerk in the Lancaster County,
Nebraska Treasurer’s Office in 2006.
2. Tegley only worked as a Motor Vehicle Clerk during her time employed by
The County.
3. Tegley’s job duties as a Motor Vehicle Clerk included public contact3 and
reviewing paperwork submitted to the Treasurer’s Office by car dealers or car buyers
and verifying that the paperwork submitted contained the accurate tax information and
entering that information into a computer.
4. Tegley was also expected to process the registrations and license plates for
motor vehicles, collect the appropriate taxes for those vehicles, and if necessary
handle the cash or credit card transaction.
5. All of these tasks are performed while the clerk is either standing or sitting
at a service counter while dealing face-to-face with a customer at the County
Treasurer’s Office locations.
6. Tegley began experiencing migraine headaches while she was in high school.
7. Until 2007 or 2008, Tegley had success in managing her migraines through
the use of over-the-counter Excedrin.
8. Beginning in 2007 or 2008, the nature of the headaches changed to the extent
that Tegley would lose her vision, her arms would become numb and she would

3

The County states there was “considerable” public contact, but Tegley objects
to this characterization. Tegley did testify she had “a lot of face-to-face interactions”
when registering motor vehicles and issuing license plates (filing 12-1 at 14).
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experience severe nausea for a period of time between 12 hours and as much as four
days.
8a. Tegley’s lack of vision was in the left eye; Tegley’s arm numbness did not
prohibit her from using her arm, and there was no worry about dropping anything.
9. These migraines tended to last two to three days on average and “couldn’t be
managed at all.”4
10. Typically the post-2007 migraines would begin in the middle of the night
and cause Tegley to vomit and return to bed until the migraines would subside.
11. During the time in which Tegley suffered from the debilitating migraines,
her doctors prescribed “anything and everything” to treat the migraines.
12. In addition to medications, Tegley tried chiropractic care, massage and
allergy treatments to attempt to prevent or treat the migraines.
13. The medications “sometimes” provided relief,5 but none of the other
treatments worked; near the end of her employment with The County, Tegley began
taking a new medication which “after four months did seem to break the cycle.”
13a. Tegley had difficulty getting someone assigned to cover her station so she
could go in the back for a few minutes to take her medication.

4

Tegley testified some of the headaches were “not quite as light sensitive” and
“[s]ometimes the nausea [was] not involved” (filing 12-1 at 47).
5

Tegley had shots which she could carry with her; if those did not work, Tegley
would go to Dr. Fisher’s office and be injected with three different medications, which
did not always work either (filing 12-1 at 18).
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13b. Not all of Tegley’s migraines from 2007 to 2011 were “severe.”
13c. Tegley was able to work if she was not having a severe migraine.
14. In 2009, Tegley was taking intermittent leave under the Family and Medical
Leave Act of 1993 because of her migraines, which at the time she considered to be
a serious health condition that rendered her unable to perform the essential functions
of her position.
15. In March 2011, Tegley requested to move her service window to a location
underneath a skylight window so that she would be removed from the “backroom
drama” and to see if the natural light would help her migraines.
15a. Tegley thought being under the skylight would help with her headaches
because Fluorescent lighting has been statistically proven to cause tension headaches
and migraines. Tegley believed it would be less stress on the eyes.
15b. Tegley requested the seating under the skylights because her doctor had
suggested no fluorescent lighting, and the only option to attempt to achieve that would
be the skylight.
15c. The skylights are big enough to cover two workstations and provide the
only direct overhead lighting for those stations.
15d. Tegley did research on her own and discussed with her doctor various
medical and other alternatives to mange and reduce her headaches.
16. Tegley was assigned to that location for about a month before she was
inexplicably reassigned. Tegley could not determine whether the location under the
skylight provided any relief to her headaches in that amount of time.

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16a. Tegley did not feel that she was placed under the skylight long enough to
give it a fair trial.
17. Upon being moved from the skylight position, Tegley did not voice any
objection to the office scheduler.
17a. Tegley did not feel that she was going to receive any cooperation from the
management following her removal from the skylight station.
17b. Tegley did not feel that she had been unreasonable in asking to be placed
under the skylight; she had been trying to work with the County at that time to
develop a solution.
17c. Kathleen (Kacey) Walkowiak, was in charge of the seating assignments
at the time Tegley was removed from skylight window.
17d. Tegley did not request to be put back under the skylight because she felt
that Ms. Walkowiak did not respect the clerk’s opinions and that as was typical for the
office that Ms. Ross would just defer to Ms. Walkowiak on this matter as she routinely
did on matters regarding clerks. Tegley did not wish to jeopardize her job.
17e. Windows were assigned based on competency, quickness and whether or
not your supervisor liked you, but mostly on how much Mr. Walkowiak liked the
person she was assigning and Tegley believed that Ms. Walkowiak did not like her.
17f. Matthew Hollins, Jerad Higley and Jody Groff, nondisabled employees,
were allowed to remain in permanent stations and not be regularly moved.
18. In April 2011, Tegley was reprimanded for being absent without leave for
taking a day off of work when she was experiencing the stomach flu.

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18a. In March 2011, Andrew Stebbing approved a new sick leave policy for the
County Treasurer’s Office which included semiannual monitoring of sick leave usage
of all employees.
18b. Stebbing took office as County Treasurer in January 2011.6
18c. The County did not fully apply the sick leave policy to Tegley and her sick
leave was not reviewed “because her sick leave use was almost entirely FMLA leave.”
18d. Despite not reviewing Tegley’s sick leave per the new policy, Stebbing
met with Tegley “to discuss her attendance issues” on or about March 3, 2011.
18e. Stebbing met with Tegley “to discuss her attendance issues while Tegley
was on intermittent FMLA leave.
18f. Although Tegley’s sick leave had not been reviewed “because her sick
leave use was almost entirely FMLA leave,” Tegley was disciplined for sick leave use
under the new policy enacted.
19. On that day in April 2011, Tegley was absent without leave because she had
used her available paid sick leave earlier in the pay period when she experienced a
migraine.
19a. Tegley’s migraine was an absence covered by the FMLA.

6

Tegley testified that shortly after Stebbing took office, he held a meeting with
all County Treasurer employees and stated he believed that sick leave and FMLA time
were a waste of county time and money should cease (filing 12-1 at 64). The County
denies this statement was made.
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19b. Tegley was required to use her available sick leave for covered absences
and was not allowed to reserve sick leave for non-FMLA qualifying absences per the
County FMLA policy.
20. On or about August 1, 2011, Tegley received her annual evaluation for the
year 2011 and received the highest score she had ever received on an annual
evaluation during her employment with the County.
20a. At the time Stebbing wrote on Tegley’s evaluation regarding her
attendance, Tegley was approved for FMLA leave, and Tegley’s absences were
largely related to her FMLA usage.
20b. Throughout Tegley’s performance she was always rated sufficiently at a
minimum.
21. Tegley received a merit pay increase as a result of her passing her annual
evaluation.
22. In November 2011, Tegley saw Dr. John Puente, a neurologist, whom she
had heard from a friend had expertise in treating chronic migraines.
23. Tegley went to Dr. Puente in part because her migraines seemed to adapt
to medications, which would stop working after a month or so.
23a. Tegley only saw Dr. Puente once.
23b. Tegley primarily saw Dr. Fischer for her migraines and Dr. Puente was
working with Dr. Fisher to manage Tegley’s migraines.
24. In or about November 2011, Tegley met with Lancaster County Treasurer
Andy Stebbing and her division manager, Susan Ross, to discuss her migraines and
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whether there were any accommodations that would allow her to work while she was
dealing with these headaches. At that meeting, the only accommodation Tegley
requested was use of a chainsaw to cut off her head.
25. In the same meeting, Tegley gave Stebbing authorization to contact Dr.
Puente.
25a. Tegley offered to provide a medical release of information for the County
to obtain medical information from Dr. Fischer as well, but Stebbing refused Tegley’s
offer.
26. Dr. Puente provided Stebbing “some initial information” regarding Tegley’s
condition on November 23, 2011. In response to Stebbing’s request for information,
opinions, and recommendations about Tegley’s diagnosis, functional limitations, need
for accommodations, and ability to perform the essential functions of her job, Dr.
Puente stated, “I am not sure I am the appropriate one to ask these questions, as our
encounter was just an initial evaluation and I do not think I am prepared to tell you
what her prognosis or response to medicine is, as her workup is in progress.” He
indicated, however, that “[a]t this time, her headache is considered chronic idiopathic;
meaning, no clear cause; with a migraine component,” that she does not have
functional limitations unless she has a headache, that “[i]f she does have one of her
headaches, they tend to be debilitating and she will likely have to be relieved from
duty,” that there was no specific need for job accommodation “other than the fact that
at times she will need time off due to her headaches unless they are under better
control,” and that her prognosis was “quite guarded.”
26a. The County relied on Dr. Puente’s documentation, rather than requesting
any additional information in determining that Tegley’s employment should be
separated.

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27. Following exhaustion of Tegley’s statutory leave time under FMLA,
Stebbing allowed Tegley to take leave without pay in order to provide her with
additional time to manage her migraines.
27a. Tegley was notified of the expiration of her FMLA leave on November 4,
2011, approximately 42 days prior to her termination.
28. Tegley was granted approved leave without pay on November 3, 4, 9, 10,
14, 18, 21 and 28 of 2011.
29. During this period of approved leave without pay, Tegley’s headaches
continued to be debilitating and incapacitating to the point that Tegley could not
perform any activities other than lying in bed until the migraine subsided.
30. On or about November 2011, Tegley submitted a completed application for
long-term disability benefits to Hartford Life Insurance Company because she
believed she could not work for periods of time due to her migraines.
31. In addition to the days of leave without pay, Tegley was also absent from
work on November 29, 2011, and December 1, 2, 5, 6 and 7 of 2011.
32. On December 6, 2011, Stebbing provided Tegley with a letter which
indicated his intent to separate her employment from Lancaster County because she
could not perform the essential functions of her position and set a time for a meeting
to discuss whether any reasonable accommodations would allow her to perform the
essential functions of her position.
33. During the pre-separation meeting held on December 14, 2011, Tegley
requested additional leave time to determine whether a new medication she had been
prescribed would alleviate her headaches.

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33a. At the beginning of the meeting, and several times throughout the meeting,
County Treasurer, Andy Stebbing, stated that the meeting was not a disciplinary
meeting, and made it clear it was a “Disability Meeting.”
33b. Stebbing announced that the purpose of the meeting was discuss whether
there were accommodations that could be put in place because of Tegley’s disability.
Stebbing made several references to Tegley’s disability and gave indications that he
regarded her as disabled.
33c. During the meeting, Rebecca Bolli, Tegley’s union representative
suggested, as an accommodation, that Tegley be allowed to work in the mail room so
that if she was experiencing a migraine that she would not have to leave customer[s]
in order to deal with the possible side effects, like nausea.
33d. Bolli suggested the assignment in the mail room as an accommodation
because it would not interfere with the work of the other clerks and would be easily
accessible for Tegley to go be sick if she were experiencing nausea related to a
migraine.
33e. Bolli worked with Tegley at the Treasurer’s office and was familiar with
layout and the operation of the office, and knew that placement of Tegley in the mail
room would not produce an increased burden on the other clerks, as some clerks are
already assigned only to windows and the floating staff who perform non-customer
duties regularly are only utilized when the customer need is sufficient to warrant
additional employees being placed at customer windows.
33f. At the meeting, Tegley discussed how she had recently seen Dr. Puente for
the first time and that they were working on managing the correct dosage of a new
migraine medication but that it could take a few days for a new dosage to be effective.

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33g. Tegley explained how she was also working with Dr. Fischer and he was
managing the dosage of the new medication.
33h. During the meeting, Tegley’s counsel and Bolli requested that Tegley be
given a short amount of time, an additional 30-60 days, to allow to determine if the
new medication was going to be effective in managing Tegley’s migraines.
33i. It was made very clear that Tegley was not requesting an indefinite amount
of time to determine if the new medication was going to be effective, but a short 30-60
day time period before a decision was made regarding her termination.
33j. Stebbing indicated that he was going to consider whether or not the county
was willing to provide the accommodations requested and listed both accommodations
that had been requested during the meeting.
34. On December 15, 2011, Stebbing elected to separate Tegley’s employment
with the County because the only accommodation requested by Tegley which would
potentially allow her to perform the essential functions of her position was indefinite
leave time to determine if a new medication would alleviate her headaches. Stebbing
could not grant indefinite leave due to the operational needs of his office.7
35. The County stated that “it should be pointed out, that in total, Ms. Tegley
was absent from work 51 of the 109 workdays preceding the interactive meeting on
December 14, 2011.”
36. Tegley no longer experiences severe headaches, they are manageable with
over the counter migraine medication again.
7

Although Stebbing may have understood Tegley to be requesting “indefinite
leave time,” Tegley has presented evidence that her attorney and union representative
only asked for 30-60 additional days. The County has not refuted this evidence.
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37. Tegley’s migraines became more manageable again when the medication
Tegley began near the time of her termination had time to build up, and the migraines
had pretty much subsided by February.
38. Tegley provided medical documentation to Defendant throughout the time
of Tegley’s FMLA leave.
39. The County perceived Tegley as disabled because of the doctor’s notes
provided by Tegley.
40. Tegley requested accommodations in order to better manage her headaches
and to be able to take less leave.
II. Discussion
“Summary judgment will only be granted if the evidence shows ‘there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.’” Branch v. Gorman, 742 F.3d 1069, 1071 (8th Cir.
2014) (quoting Fed.R.Civ.P. 56(c)).8 “When ruling on a summary judgment motion,
‘a court must view the evidence in the light most favorable to the nonmoving party.’”
Id. (quoting Roers v. Countrywide Home Loans Inc., 728 F.3d 832, 835 (8th Cir.
2013). “However, in order to avoid summary judgment, the nonmoving party must
‘come forward with specific facts showing that there is a genuine issue for trial.’”
8

An issue is “genuine” if the evidence is sufficient to persuade a reasonable
jury to return a verdict for the nonmoving party. Heacker v. Safeco Ins. Co. of
America, 676 F.3d 724, 727 (8th Cir. 2012). “As to materiality, the substantive law
will identify which facts are material....” Id. (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). “Only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the entry of summary
judgment.” Anderson, 477 U.S. at 248.
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Barnhardt v. Open Harvest Co-op., 742 F.3d 365, 369 (8th Cir. 2014) (quoting B.M.
ex rel. Miller v. S. Callaway R-II Sch. Dist., 732 F.3d 882, 886 (8th Cir. 2013)). “The
nonmoving party may not rely on mere speculation or conjecture.” Bayside Holdings,
Ltd. v. Viracon, Inc., 709 F.3d 1225, 1228 (8th Cir. 2013).
A. FMLA Claim
“Under [the] FMLA, eligible employees are entitled to take leave from work
for certain family or medical reasons, including a serious health condition that makes
the employee unable to perform the functions of the position of such employee.”
Jackson v. City of Hot Springs, 751 F.3d 855, __, 2014 WL 1876129, *3 (8th Cir.
2014) (quoting Hite v. Vermeer Mfg. Co., 446 F.3d 858, 864-65 (8th Cir. 2006)).
Although the parties characterize Tegley’s FMLA claim as a “retaliation” claim
arising under 29 U.S.C. § 2615(a)(2) (which makes it “unlawful for any employer to
discharge or in any other manner discriminate against any individual for opposing any
practice made unlawful by [the Act]”), in truth it is a “discrimination” claim arising
under 29 U.S.C. § 2615(a)(1) (which makes it “unlawful for any employer to interfere
with, restrain, or deny the exercise of or the attempt to exercise, any right provided
under [the Act]”). See Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996,
1005-06 (8th Cir. 2012).9
“[A]n employer may not consider an employee’s use of FMLA leave as a
negative factor in an employment action. ” Jackson, 2014 WL 1876129 at *3 (quoting
Hite, 446 F.3d at 865 (internal quotations omitted)). “Basing an adverse employment
action on an employee’s use of leave ... is therefore actionable.” Id. (quoting Smith v.
Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir. 2002)). “An employee making this

9

A third type of FMLA claim is an “entitlement” claim, which also arises under
29 U.S.C. § 2615(a)(1). This type of claim “occurs where an employer refuses to
authorize leave under the FMLA or takes other action to avoid responsibilities under
the Act.” Pulczinski, 691 F.3d at 1005. Tegley does not assert an “entitlement” claim.
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type of claim must prove that the employer was motivated by the employee’s exercise
of rights under the FMLA.” Pulczinski, 691 F.3d at 1006. “This proof may come from
direct evidence or indirect evidence using the McDonnell Douglas10 burden-shifting
framework.” Brown v. City of Jacksonville, 711 F.3d 883, 891 (8th Cir. 2013).
1. Direct Evidence
Direct evidence includes “conduct or statements by persons involved in the
decision-making process, which indicate a discriminatory attitude was more likely
than not a motivating factor in the employer’s decision.” Id. at 893 n. 11 (quoting
Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1046 (8th Cir. 2005)). “Thus,
‘direct’ refers to the causal strength of the proof, not whether it is ‘circumstantial’
evidence.” Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004).
Tegley claims there is direct evidence Stebbing acted with discriminatory intent
in terminating her employment because, shortly after taking office in early January
2011, he told employees in the County Treasurer’s Office “he believed that sick leave
and FMLA was a waste of county time and money and he wanted to see it cease”
(filing 12-1 at 64, 66). While denying that Stebbing said these words,11 the County
argues that such a statement would fall under the category of “stray remarks” because
it allegedly was made almost a year before Tegley’s employment was terminated and
was unrelated to the decisional process. The County also argues that the alleged
statement has become stale as evidence of discriminatory intent because Stebbing
subsequently included a provision in the new sick leave policy that “[t]he Lancaster
County Treasurer’s Office will comply with the rules and regulations of the Family
and Medical Leave Act of 1993 and the County’s policy that governs the application

10

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

11

Tegley testified “to the best of [her] memory,” but indicated the statement she
attributed to Stebbing was “not verbatim” (filing 12-2 at 64).
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of the Act” (filing 12-2 at 26) and excluded Tegley from the biannual reviews of
employee sick leave usage.
The Eighth Circuit has held in several cases that when a statement evidencing
discriminatory animus and an adverse employment action are not close in time, the
plaintiff must present additional evidence to establish a causal link between the
statement and the adverse employment action. See, e.g., Brown, 711 F.3d at 889 (ADA
claim; plaintiff who walked with a cane because of hip problem allegedly was called
“old woman” and “crip” by her supervisor 2 years before termination); Bone v. G4S
Youth Services, LLC, 686 F.3d 948, 954 (8th Cir. 2012) (Title VII and ADEA claims;
education director at youth correction center allegedly said 6 months before plaintiff’s
termination that “she did not want an old white lady in a suit doing recruiting”); King
v. United States, 553 F.3d 1156, 1159 (8th Cir. 2009) (ADEA claim; selection
committee members made statements in April 2003, February 2004, and September
or October 2004 indicating they wanted to hire younger, educated people; plaintiff
claimed she was not selected for a position in March 2005 because of her age); Ramlet
v. E.F. Johnson Co., 507 F.3d 1149, 1152 (8th Cir. 2007) (ADEA claim; 4 months
prior to plaintiff’s termination, sales vice president allegedly commented to persons
not involved in the decisional process that he intended to hire “young studs” to replace
older sales people); Richardson v. Sugg, 448 F.3d 1046, 1058-59 (8th Cir. 2006) (Title
VII claim; racially offensive remarks allegedly were made by university athletic
director 2 years before African-American basketball coach was fired); Yates v.
Douglas, 255 F.3d 546, 549 (8th Cir. 2001) (Title VII claim; supervisor’s racially
offensive comments were made “approximately one to two years” before decision was
made to terminate African-American plaintiff’s employment); Simmons v. Oce-USA,
Inc., 174 F.3d 913, 915-16 (8th Cir. 1999) (Title VII claim; African-American
plaintiff’s supervisor allegedly uttered racial slur and repeated racially offensive joke
2 years before plaintiff was fired); Walton v. McDonnell Douglas Corp., 167 F.3d
423, 426-27 (8th Cir. 1999) (ADEA claim; 2 years before 54-year-old plaintiff’s
termination as part of a reduction in force, plaintiff’s supervisor advised another older

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employee to accept a transfer because if there was a RIF the supervisor would need
to protect younger employees).
Tegley has not presented sufficient evidence to establish a causal link between
the statement Stebbing allegedly made in early January 2011 and the decision he made
in mid-December 2011 to terminate her employment. Tegley complains that in March
2011 she was counseled regarding the new sick leave rules (filing 12-5, ¶ 10) and in
April 2011 was disciplined for taking a sick day unrelated to her serious health
condition (filing 12-5, ¶19), but neither of those events were connected to her usage
of FMLA leave. Tegley also complains that even though she was given her highest
rated performance review and a merit increase in August 2011, Stebbing commented
when approving her pay raise that “Amy’s attendance at work is of great concern and
should not be overlooked” (filing 12-2 at 37). Again, however, there is no indication
that Stebbing was criticizing Tegley’s use of FMLA leave. In fact, Stebbing further
commented that “[d]uring this [performance review] period she was written up for
being gone w/o leave” (filing 12-2 at 37). This comment directly relates to an
observation that was made in the written evaluation by Tegley’s supervisor, Susan
Ross, who stated: “Amy’s attendance is an issue due to the fact that she often times
has no sick or vacation time accrued to use in an emergency. While the majority of
Amy’s absences are excused under FMLA, there have been some occurrences that
were not. Amy needs to continue to work on her attendance issues” (filing 12-2 at 36).
Similarly, while Tegley claims that after she exhausted her available FMLA
leave in November 2011, “Stebbing immediately commented on [her] attendance in
a series of actions that ultimately led to her termination” (filing 21 at 24), the evidence
shows that Stebbing’s concern was that Tegley had also exhausted all of her paid sick
leave and vacation time. When Stebbing wrote to Tegley on November 4, 2011, to
inform her that she had no hours of FMLA leave remaining, he also advised her that
under the sick leave policy she would need to make a written request for taking unpaid
leave, which could be granted at the discretion of the department head. In addition,
Stebbing stated he “would like to meet with [Tegley] to discuss her circumstances and
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any requests for reasonable accommodation that [she] may have” (filing 12-5 at 23).
Stebbing granted Tegley’s request for leave without pay on November 9, 2011, and
again expressed his desire to meet to discuss reasonable accommodation (filing 12-5
at 24). Stebbing also granted Tegley leave without pay on November 3, 4, 10, 14, 18,
21 and 28 of 2011. The meeting with Stebbing took place on November 22, 2011, but
Tegley made no request for an accommodation and stated that nothing could be done
(filing 12-5 at 3-4). Tegley was also absent from work on November 29, 2011, and
December 1, 2, 5, 6 and 7 of 2011. On December 6, 2011, after receiving a report
from Tegley’s neurologist, Stebbing notified Tegley that he intended to separate her
employment because she was unable to attend work on a regular and reliable basis,
but he again offered to meet to discuss reasonable accommodation and scheduled a
meeting for December 14, 2011 (filing 12-5 at 31). At this meeting, Tegley requested
a period of 30-60 days to try a new medication. Stebbing concluded this was not a
reasonable accommodation and, on December 15, 2011, notified Tegley that her
employment was terminated (filing 12-5). None of these actions by Stebbing suggest
that his alleged dislike for FMLA leave caused him to discharge Tegley.
Finally, Tegley notes that in March 2012, in responding to a charge of
discrimination she filed with the Nebraska Equal Opportunity Commission, the
County stated that “it should also be pointed out, that in total, Ms. Tegley was absent
from work 51 of the 109 workdays preceding the interactive meeting on December 14,
2011” (filing 21-3 at 5-6). This statement is not an admission that Tegley was fired
for taking FMLA leave, but, rather, it provides strong evidence that no reasonable
accommodation was possible.12

12

As Stebbing states in his affidavit: “In separating Ms. Tegley’s employment,
I considered the fact that she had been absent for a considerable amount of days in the
preceding year while she experimented with different medical treatments and that my
office would not be able to reach its service objectives without placing a burden on
my other employees” (filing 12-5, ¶ 27).
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2. Indirect Evidence
To establish a prima facie case of retaliation, Tegley must show that (1) she
engaged in protected conduct; (2) she suffered a materially adverse employment
action; and (3) the materially adverse action was causally linked to the protected
conduct. See Chappell v. Bilco Co., 675 F.3d 1110, 1117 (8th Cir. 2012). If Tegley
establishes a prima facie case, the burden shifts to the County to “promulgate a
non-discriminatory, legitimate justification for its conduct,” and then back to Tegley
to “either introduce evidence to rebut the employer’s justification as a pretext for
discrimination, or introduce additional evidence proving actual discrimination.” Id.
(quoting Sprenger v. Fed. Home Loan Bank of Des Moines, 253 F.3d 1106, 1111 (8th
Cir. 2001)).
“The cases that accept mere temporal proximity between an employer’s
knowledge of protected activity and an adverse employment action as sufficient
evidence of causality to establish a prima facie case uniformly hold that the temporal
proximity must be very close.” Smith v. Fairview Ridges Hosp., 625 F.3d 1076, 108788 (8th Cir. 2010), abrogated on other grounds by Torgerson v. City of Rochester, 643
F.3d 1031, 1043, 1058 app. (8th Cir. 2011) (quoting Clark Cnty. Sch. Dist. v. Breeden,
532 U.S. 268, 270 (2001)). In Smith, the Eight Circuit found that an interval of
“approximately one month” was too long to establish a prima facie case. The same
result was reached in Wisbey v. City of Lincoln, 612 F.3d 667, 676 (8th Cir. 2010),
abrogated on other grounds by Torgerson, 643 F.3d at 1043, 1058 app. (plaintiff did
not present any evidence of causality “besides the fact that her termination occurred
approximately one month after she submitted the FMLA application”). In the present
case, 42 days elapsed between the date Tegley exhausted her FMLA leave and the
date she was separated from her employment, and she even was permitted to take
leave without pay for several days during this period. It is not reasonable to infer
from these facts that Tegley was terminated as a result of taking FMLA leave.

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Even if Tegley could establish a prima facie case of discrimination, the
County’s evidence shows that she was terminated for a legitimate, non-discriminatory
reason, namely, that Tegley was unable to perform an essential function of her job
because her migraine headaches prevented her from maintaining regular and reliable
attendance at work. Tegley argues this stated reason was pretextual, but she presents
no evidence beyond that which has already been discussed above in connection with
Stebbing’s alleged January 2011 statement. And, as discussed, that evidence fully
supports the County’s position that Tegley’s attendance issues were an ongoing
problem. “[A] reason cannot be proved to be ‘a pretext for discrimination’ unless it
is shown both that the reason was false, and that discrimination was the real reason.”
Bone, 686 F.3d at 955 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515-16
(1993) (emphasis in original)). Because there is no genuine issue of material fact
regarding the truthfulness of the County’s stated reason for Tegley’s discharge, her
FMLA discrimination claim fails as a matter of law.
B. ADA Claims
Tegley asserts both a failure-to-accommodate claim under 42 U.S.C. § 12112(a)
(making it unlawful to “discriminate against a qualified individual on the basis of
disability”)13 and a retaliation claim under 42 U.S.C. § 12203(a) (making it unlawful
to “discriminate against any individual because such individual has opposed any act
or practice made unlawful by this chapter or because such individual made a charge,

13

“As used in subsection (a) of [section 12112], the term ‘discriminate against
a qualified individual on the basis of disability’ includes ... not making reasonable
accommodations to the known physical or mental limitations of an otherwise qualified
individual with a disability who is an applicant or employee, unless such covered
entity can demonstrate that the accommodation would impose an undue hardship on
the operation of the business of such covered entity[.]” 42 U.S.C. § 12112 (5)(A).
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testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under [the ADA]”).14 There is not sufficient evidence to establish either claim.
1. Failure to Accommodate
The parties incorrectly characterize Tegley’s claim under 42 U.S.C. § 12112(a)
as alleging disparate treatment (i.e., intentional discrimination). Tegley actually is
claiming that the County failed to make reasonable accommodations as required by
42 U.S.C. § 12112 (5)(A).15 Such a claim requires the application of a “modified
burden-shifting analysis.” Fenney v. Dakota, Minnesota & E.R.R. Co., 327 F.3d 707,
712 (8th Cir. 2003).
“Unlike disparate treatment claims, which require the use of the McDonnellDouglas burden-shifting analysis to ‘flesh[ ] out th[e] elusive factual question of
intentional discrimination,’ failure to accommodate claims do ‘not turn on the
employer’s intent or actual motive.’” Knutson v. Medtronic, Inc., Civ. No. 05-180,
2006 WL 1851142, *9 (D.Minn. 2006) (quoting Peebles v. Potter, 354 F.3d 761, 766
(8th Cir. 2004)). Instead, “the discrimination [underlying a failure to accommodate
14

The Eighth Circuit “has held that a person who is terminated after
unsuccessfully seeking an accommodation may pursue a retaliation claim under the
ADA, if she had a good faith belief that the requested accommodation was
appropriate.” Hill v. Walker, 737 F.3d 1209, 1218 (8th Cir. 2013) (citing Heisler v.
Metro. Council, 339 F.3d 622, 632 (8th Cir. 2003)).
15

Tegley does allege that she was “regularly moved” while non-disabled
employees were allowed to remain in permanent workstations (filing 1-1, ¶¶ 9-11),
but this does not constitute an adverse employment action. See Jackman v. Fifth
Judicial Dist. Dept. of Correctional Services, 728 F.3d 800, 804-05 (8th Cir. 2013)
(“[M]inor changes in duties or working conditions, even unpalatable or unwelcome
ones, which cause no materially significant disadvantage, do not rise to the level of
an adverse employment action.”). Tegley’s primary complaint in this connection is
that she was not allowed to stay at the workstation under the skylight as an
accommodation to her disability.
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claim] is framed in terms of the failure to fulfill an affirmative duty–the failure to
reasonably accommodate the disabled individual's limitations.” Id. (quoting Peebles,
354 F.3d at 767). “The known disability triggers the duty to reasonably accommodate
and, if the employer fails to fulfill that duty, [the court] does not care if [the employer]
was motivated by the disability.” Id. (quoting Peebles, 354 F.3d at 767).
Tegley “must first make a facial showing that [she] has an ADA disability and
that [she] has suffered adverse employment action.” Fenney, 327 F.3d at 712. Then
Tegley “must make a facial showing that [she] is a ‘qualified individual.’” Id. “To be
a ‘qualified individual’ within the meaning of the ADA, an employee must ‘(1)
possess the requisite skill, education, experience, and training for her position, and (2)
be able to perform the essential job functions, with or without reasonable
accommodation.” Heaser v. Toro Co., 247 F.3d 826, 830 (8th Cir. 2001), abrogated
on other grounds by Torgerson, 643 F.3d at 1043, 1058 app. For purposes of the
summary judgment motion, the County only disputes that Tegley was able to perform
the essential functions of the job.
“Although the plaintiff retains the ultimate burden of proving that [she] is a
qualified individual, if the employer disputes that the employee can perform the
essential functions of the job, then the burden shifts to the employer to ‘put on some
evidence of those essential functions.’” Fenney, 327 F.3d at 712 (quoting Benson v.
Northwest Airlines, Inc., 62 F.3d 1108, 1113 (8th Cir. 1995)). “Further, if the
employee cannot perform the essential functions of the job without an
accommodation, [she] must only make a ‘facial showing that a reasonable
accommodation is possible ....’” Id. (quoting Benson, 62 F.3d at 1112 (emphasis
added)). “The burden of production [then] shifts to the employer to show that it is
unable to accommodate the employee.” Benson, 62 F.3d at 1112 (emphasis in
original). “If the employer can show that the employee cannot perform the essential
functions of the job even with reasonable accommodation, [then] the employee must
rebut that showing with evidence of [her] individual capabilities.” Id. “At that point,

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the employee’s burden merges with [her] ultimate burden of persuading the trier of
fact that [she] has suffered unlawful discrimination.” Id.
The County contends, and Tegley does not dispute, that Tegley was unable to
perform the essential functions of her job because migraine headaches prevented her
from attending work on a regular basis. It is also undisputed that the tasks of a motor
vehicle clerk are performed while the clerk is either standing or sitting at a service
counter while dealing face-to-face with a customer at the County Treasurer’s Office
locations. Tegley maintains, however, that the County could have accommodated her
by (1) always having someone available to cover her workstation so she could go to
the back room to inject herself with migraine medication; (2) assigning her to a
service window under the skylight to see if natural light would reduce her migraines;
(3) reassigning her to the mail room; and (4) not terminating her employment for 3060 days to see if new medication would provide some relief.
The first three accommodations suggested by Tegley are not reasonable because
the migraine headaches she was experiencing in 2011 typically began during the
middle of the night and were so incapacitating that they would cause her to miss work
for one or more days. Thus, there is no reason to conclude that her attendance issues
would have been resolved even if she had been permitted to leave her workstation,
work under a skylight, or work in the mail room.16 Whether the new medication that
Tegley was prescribed by Dr. Puente near the end of her employment would “break
the cycle” of debilitating headaches was unknown at the time the termination decision
was made, but Tegley’s neurologist had already opined that her prognosis was “quite
guarded” and he could not recommend an accommodation except to state that Tegley
“will need time off due to her headaches unless they are under better control.” Without
any evidence to indicate that there was cause to believe in mid-December 2011 that
16

Also, the injections Tegley took at work were not always effective and she
could not tell that her condition had improved any after working under the skylight
for a month.
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Tegley would be able to maintain a regular work schedule after taking 30-60 days of
additional leave, she cannot make the required facial showing that a reasonable
accommodation was possible.17 “The nonmoving party may not rely on mere
speculation or conjecture” to defeat a motion for summary judgment. Bayside
Holdings, 709 F.3d at 1228.
2. ADA Retaliation
“To establish unlawful retaliation under the ADA, a plaintiff must show that (1)
she engaged in a statutorily protected activity, (2) the employer took an adverse action
against her, and (3) there was a causal connection between the adverse action and the
protected activity.” Hill, 737 F.3d at 1218. In this case, there simply is no evidence to
establish a causal connection between Tegley’s requests for an accommodation and
her termination.
The evidence does not disclose when, if ever, Tegley complained about not
having someone assigned to cover her workstation so she could go in the back to take
medication, but her request to work under the skylight was made in March 2011, some
8 or 9 months prior to her termination. The other requests for accommodation (i.e.,
reassignment to the mail room and additional leave time) were only made after
Stebbing had raised the issue of Tegley’s disability and scheduled two meetings to
discuss possible accommodations. At the first meeting on November 22, 2011, the
only accommodation Tegley requested was use of a chainsaw to cut off her head. It
was following this meeting, on December 6, 2011, that Stebbing provided notice to
17

Although Tegley states that her migraines “had pretty much subsided by
February [2012],” this is not a material fact. “In determining whether a leave request
is a reasonable accommodation, the prospect of the employee’s recovery from
treatment or enablement to return to work should not be judged by hindsight, but
rather, by what reasonably appears at the time the leave is requested.” Gibson v.
Lafayette Manor, Inc., Civil Action No. 05-1082, 2007 WL 951473, *9 n. 16
(W.D.Pa. 2007).
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Tegley that he intended to separate her employment because she was unable to
perform the essential functions of the job. The second meeting called by Stebbing took
place on December 14, 2011. It was during this meeting that Tegley’s attorney and
union representative proposed the other accommodations in an attempt to forestall or
avoid Tegley’s discharge. The mere fact that the termination occurred the next day
does not create an inference that the termination was causally linked to the requests
for accommodation, which Stebbing had invited.
III. Conclusion
There is not sufficient direct or indirect evidence of discrimination to establish
a claim under the FMLA, nor is there sufficient evidence to establish a claim under
the ADA for failure to accommodate or retaliation. Accordingly,
IT IS ORDERED that the defendant’s motion for summary judgment (filing 11)
is granted, and final judgment shall be entered by separate document.
DATED this 7th day of July, 2014.
BY THE COURT:

Richard G. Kopf
Senior United States District Judge

* This opinion may contain hyperlinks to other documents or Web sites. The U.S. District
Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third
parties or the services or products they provide on their Web sites. Likewise, the court has no
agreements with any of these third parties or their Web sites. The court accepts no responsibility
for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work
or directs the user to some other site does not affect the opinion of the court.

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