Vacek v. State of Nebraska et al

Filing 35

MEMORANDUM AND ORDER that Defendants' Motion for Summary Judgment 23 is granted. Defendants' Motion to Strike 29 is denied as moot. Defendants' Motion in Limine 33 is denied as moot. Plaintiff's claims will be dismissed, with prejudice. A separate Judgment will be entered. Ordered by Chief Judge Laurie Smith Camp. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LISA M. VACEK,
Plaintiff,
v.
STATE OF NEBRASKA, and THE
STATE OF NEBRASKA DEPARTMENT
OF CORRECTIONAL SERVICES,
Defendants.

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CASE NO. 4:14CV3000

MEMORANDUM
AND ORDER

This matter is before the Court on the Defendants’ Motion for Summary Judgment
(Filing No. 23), Motion to Strike (Filing No. 29), and Motion in Limine (Filing No. 33). For
the reasons discussed below, the Motion for Summary Judgment will be granted, and the
Motion to Strike and Motion in Limine will be denied as moot.
FACTS
Defendants’ brief in support of their Motion for Summary Judgment (Filing No. 24)
contains a statement of material facts with pinpoint citations to the evidentiary record (Filing
No. 25) in compliance with NECivR 56.1(a). Plaintiff’s brief (Filing No. 28) does not comply
with NECivR 56(b1), and the properly referenced material facts in the Defendants’ brief are
deemed admitted. The following is a summary of the facts the Court considers material
to the disposition of the pending Motion for Summary Judgment.
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NECivR 56.1(b)(1) provides:

The party opposing a motion for summary judgment shall include in its brief
a concise response to the moving party’s statement of material facts. The
response shall address each numbered paragraph in the movant’s statement
and, in the case of any disagreement, contain pinpoint references to
affidavits, pleadings, discovery responses, deposition testimony (by page
and line), or other materials upon which the opposing party relies. Properly
referenced material facts in the movant’s statement will be deemed
admitted unless controverted by the opposing party’s response.
(Emphasis in original.)

The Nebraska Department of Correctional Services (“DCS”) is an agency of the
Defendant State of Nebraska (“State”) that maintains custody of persons in correctional
institutions. Plaintiff Lisa Vacek (“Vacek”) was employed by DCS from October 28, 2012
until April 11, 2013, assigned to the DCS Community Correctional Center in Omaha,
Nebraska (“CCCO”), as a Corrections Unit Caseworker. As a new employee, her first six
months on the job constituted a probationary period of employment. The six-month
probationary period of employment was a requirement of the labor contract between the
State and the Nebraska Association of Public Employees that governed Vacek’s
employment. (Filing No. 25-4 at ECF 25, article 8.1.) That contract provided: “Employees
may be separated at any time during the original probationary period. . . . Employees on
original probation do not have grievance rights.” (Id. at ECF 25, article 8.5.)
On October 29, 2012, Vacek acknowledged receipt of the DCS Employee Handbook
and DCS Administrative Regulations, and acknowledged that she understood discipline
could be imposed for violations of the Handbook or Regulations. The Handbook provided:
“No employee should carry any prescription medication into the facility/program unless
there is a need for the medication at work. Medication needs to be cleared through the
Custody Officer Supervisor.” (Filing No. 25-3 at ECF 8.) The Handbook also provided:
“Sick leave is a conditional leave subject to the employee being ill . . . Requests require
supervisory approval on the appropriate form.” (Id. at ECF 10.) DCS Administrative
Regulation 112.41 provided that “an employee may not use . . . sick . . . leave unless
authorized by a supervisor.” (Filing No. 25-17 at ECF 57.) The Handbook further provided:
“Employees who are assigned to posts or duty assignments that involve the supervision
of inmates shall not leave the post or duty assignment until they are properly relieved or
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have proper authorization. Employees are expected to remain on duty on the entire shift
or work assignment unless properly authorized to leave that shift or assignment.” (Filing
No. 25-3 at ECF 12.)
On November 9, 2012, Vacek was in a training class at DCS when a Training
Specialist conducted a physical search of the students. While waiting her turn to be
searched, Vacek asked another trainee to hold her pills. Vacek was confronted by her
classmates. The Training Specialist examined the pills and noted they were loose,
unwrapped pills of more than one variety. On November 14, 2012, a DCS Training and
Development Manager interviewed Vacek about the incident. At that time, Vacek had with
her a prescription bottle with several other types of pills, though not the types observed on
November 9, 2012. As a result of the incidents, the Training Specialist issued a Corrective
Counseling Log, noting concerns about Vacek’s character and her choice to hide the pills
on November 9, 2012. Vacek signed the log, documenting the incident.
Vacek’s supervisors at CCCO noted that her job performance was not satisfactory,
and that she had difficulty learning specific job duties and grasping facility procedures. The
supervisors met with Vacek to discuss her job performance and adjustment. On April 10,
2013, one of Vacek’s supervisors met with Vacek and one of Vacek’s co-workers to
discuss their workplace interactions. During the meeting, Vacek told the supervisor that
she was going home “sick” for the rest of the day. Vacek did not request permission to
leave, but simply walked out of the meeting and left the building before the scheduled end
of her eight-hour shift. Vacek’s absence left the facility short-handed, and her supervisor
had to fill in for her.

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On April 11, 2013, Vacek returned to CCCO and received a termination letter from
the Assistant Warden, signed by the Warden. The letter informed Vacek that she was
being terminated based on two incidents, i.e., her attempt to circumvent a search by
passing medication to another employee, and her departure from the facility on April 10,
2013, without being relieved from her post.
STANDARD OF REVIEW
“Summary judgment is appropriate when, construing the evidence most favorably
to the nonmoving party, there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Crozier v. Wint, 736 F.3d 1134, 1136 (8th Cir.
2013) (citing Fed. R. Civ. P. 56(c)). “Summary Judgment is not disfavored and is designed
for every action.” Briscoe v. Cnty. of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012)
(quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc)
cert. denied, 132 S.Ct. 513 (2011)) (internal quotations omitted). In reviewing a motion for
summary judgment, the court will view “all facts and mak[e] all reasonable inferences
favorable to the nonmovant.” Gen. Mills Operations, LLC v. Five Star Custom Foods, Ltd.,
703 F.3d 1104, 1107 (8th Cir. 2013). “[W]here the nonmoving party will bear the burden
of proof at trial on a dispositive issue . . . Rule 56(e) permits a proper summary judgment
motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c),
except the mere pleadings themselves.” Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986). The moving party need not negate the nonmoving party’s claims by showing “the
absence of a genuine issue of material fact.” Id. at 325. Instead, “the burden on the moving
party may be discharged by ‘showing’ . . . that there is an absence of evidence to support
the nonmoving party’s case.” Id.

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In response to the movant’s showing, the nonmoving party’s burden is to produce
specific facts demonstrating “‘a genuine issue of material fact’ such that [its] claim should
proceed to trial.” Nitro Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 422 (8th Cir. 2009)
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The
nonmoving party “must do more than simply show that there is some metaphysical doubt
as to the material facts, and must come forward with specific facts showing that there is
a genuine issue for trial.” Briscoe, 690 F.3d at 1011 (quoting Torgerson, 643 F.3d at 1042)
(internal quotations omitted). “‘[T]he mere existence of some alleged factual dispute
between the parties’” will not defeat an otherwise properly supported motion for summary
judgment. Quinn v. St. Louis Cty., 653 F.3d 745, 751 (8th Cir. 2011) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).
In other words, in deciding “a motion for summary judgment, facts must be viewed
in the light most favorable to the nonmoving party only if there is a genuine dispute as to
those facts.” Guimaraes v. SuperValu, Inc., 674 F.3d 962, 972 (8th Cir. 2012) (quoting
Torgerson, 643 F.3d at 1042) (internal quotations omitted). Otherwise, where the Court
finds that “the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party,” there is no “genuine issue for trial” and summary judgment is
appropriate. Torgerson, 643 F.3d at 1042 (quoting Ricci v. DeStefano, 557 U.S. 557, 586
(2009)) (internal quotations omitted).
DISCUSSION
Vacek alleges that she was wrongfully discharged. (Complaint, Filing No. 1-1 ¶4.)
Liberally construed, her first claim (id. ¶¶3, 7-10) appears to assert that she was terminated

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due to her sex and age2, in violation of Title VII of the Civil Rights Act of 1964, as amended
(42 U.S.C. § 2000e et seq.) and the Nebraska Fair Employment Practice Act, Neb. Rev.
Stat. § 48-1104 et seq. (“NFEPA”). Her second claim (Filing No. 1 at ECF 3, 5-7 ¶¶3, 1118) alleges that she was discharged in violation of oral or written contracts. (Id. at ECF 5
¶15.)
Although an introductory paragraph in Vacek’s Complaint (Filing No. 1 at ECF 3 ¶3)
makes reference to “hostile work environment, workplace incivility, sexual harassment, and
retaliation,” neither in her Complaint nor in her response to the Defendants’ Motion for
Summary Judgment does Vacek allege facts in support of such allegations. Accordingly,
the Court concludes that any such claims are not plausible or have been abandoned.
Vacek’s claims under 42 U.S.C. § 1983, to the extent any were properly presented in her
Complaint, were dismissed on January 30, 2014, due to the Defendants’ sovereign
immunity. (Memorandum and Order, Filing No. 7.)
Title VII and NFEPA Claims
Because Vacek has presented no direct evidence of discrimination, her Title VII
claim must be evaluated under the burden-shifting framework of McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). To establish a prima facie case of discrimination under the
McDonnell Douglas framework, “a plaintiff must show (1) he is a member of a protected
class, (2) he met his employer's legitimate expectations, (3) he suffered an adverse

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Age is not a protected class under Title VII or NFEPA. Further, Vacek states
that she was born on October 31, 1973, and was under age forty at the time of her
termination. (Complaint, Filing No. 1-1 ¶1.) Accordingly, she also falls outside the
protected age class under federal and state Age Discrimination in Employment Acts, 29
U.S.C. § 631(a) and Neb. Rev. Stat. § 48-1003(1) (Reissue 2010).
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employment action, and (4) the circumstances give rise to an inference of discrimination.”
Pye v. Nu Aire, Inc., 641 F.3d 1011, 1019 (8th Cir. 2011). Once the prima facie case is
established, the burden of production shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its action. Floyd-Gimon v. Univ. of Ark. for Med. Sciences ex
rel. Bd. of Trustees of Univ. Of Ark., 716 F.3d 1141, 1149 (8th Cir. 2013). If the defendant
does so, the plaintiff then has the burden of proving that the defendant’s proffered reason
is a pretext for discrimination. Id.
The Court will assume, without deciding, that Vacek can prove all four elements of
a prima facie case of discrimination. The burden then is on the Defendants to come
forward with a legitimate, non-discriminatory reason for her termination, and they have
done so. Because the Defendants met their burden of coming forward with legitimate, nondiscriminatory reasons for Vacek’s termination, it is her burden to demonstrate that their
proffered reasons for terminating her were a pretext for sex discrimination. “A reason
cannot be proved to be pretext for discrimination unless it is shown both that the reason
was false, and that discrimination was the real reason.” Bone v. G4S Youth Servs., LLC,
686 F.3d 948, 955 (8th Cir. 2012) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
515 (1993)) (internal quotation marks omitted). Vacek cannot meet that burden simply by
showing that the termination lacked fundamental fairness or due process. 3
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In Evance, a nurse was terminated from her job at a nursing home due to
allegations of inappropriate contact with a patient. She sued her former employer
under Title VII, alleging discrimination on the basis of her sex and religion, and she
complained that her accusers were not credible and the employer’s investigation was
not thorough. Upholding the district court’s grant of summary judgment for the
defendants, the Eighth Circuit stated, “We are not a super-personnel department with
the power to second-guess employers’ business decisions.” 719 F.3d at 678 (quoting
Russell v. TG Mo. Corp., 340 F.3d 735, 746 (8th Cir. 2003)) (internal quotation marks
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Vacek must pass a “rigorous” test, showing that she was “similarly situated in all
relevant respects” to male employees who were treated more favorably. Evance v.
Trumann Health Services, LLC, 719 F.3d 673, 678 (8th Cir. 2013). “‘[T]he individuals used
for comparison must have dealt with the same supervisor, have been subject to the same
standards, and engaged in the same conduct without any mitigating or distinguishing
circumstances.’” Id. (quoting Bone, 686 F.3d. at 956). 4
Vacek has come forward with no evidence that the Defendants treated similarly
situated male employees any better than they treated her. There is no evidence that male
employees accused of similar misconduct received lesser forms of discipline. As in
Evance, Vacek “does not provide any evidence that any other employees who were not
[female] were accused of the exact or similar behavior as [she] was.” Id. at 678. NFEPA
at Neb. Rev. Stat. § 48-1104 provides:
It shall be an unlawful employment practice for an employer: (1) to fail or
refuse to hire, to discharge, or to harass any individual, or otherwise to
discriminate against any individual with respect to compensation, terms,
conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, disability, marital status, or national origin.
.
“In construing the NFEPA, Nebraska courts have looked to federal decisions,

omitted).
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The Eighth Circuit acknowledges “two lines of cases on the standard to
determine whether employees are similarly situated at the prima facie stage of the
McDonnell Douglas test.” Pye, 641 F.3d at 1019 (quoting Wimbley v. Cashion, 588
F.3d 959, 962 (8th Cir. 2009)) (internal quotation marks omitted). “One line sets a ‘low
threshold,’ requiring only that the employees are ‘involved in or accused of the same or
similar conduct and are disciplined in different ways.’ The other line more rigorously
requires that the employees be ‘similarly situated in all respects.’” Id. Under either
standard, Vacek has failed to come forward with similarly situated male employees who
were treated less favorably.
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because the NFEPA is patterned after Title VII[.]” Orr v. Wal-Mart Stores, Inc., 297 F.3d
720, 723 (8th Cir. 2002) (citing Father Flanagan's Boys' Home v. Agnew, 590 N.W.2d 688,
693 (Neb. 1999); IBP, Inc. v. Sands, 563 N.W.2d 353, 357-59 (Neb. 1997)). Vacek’s claim
asserted under NFEPA fails for the same reasons her Title VII claim fails.
Contract Claims
In Vacek’s “Response & Resistance to Defendants’ Motion for Summary Judgment”5
her counsel states, “Plaintiff believes that if allowed to conduct proper discovery, she can
demonstrate sufficient evidence that there will be controverted issues to be resolved by the
trier of fact[.]” (Filing No. 26 ¶12.) In Vacek’s affidavit in resistance to the Defendants’
Motion for Summary Judgment, she states: “My attorney has not had ample opportunity
to develop certain evidence on my behalf and I believe I may be unfairly deprived in my
right to jury determination of issues by the filing of this Summary Judgment by defendants.”
(Filing No. 27-3 at ECF 3 ¶15.)
Vacek has not met her burden of producing specific facts demonstrating “‘a genuine
issue of material fact’ such that [her] claim should proceed to trial.” Nitro Distrib., 565 F.3d
at 422 (quoting Matsushita, 475 U.S. at 586). This Court finds that the record taken as a
whole could not lead a rational trier of fact to find for Vacek, there is no genuine issue for
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NECivR 7.1(b)(1) provides: “The party opposing a motion must not file an
‘answer,’ ‘opposition,’ ‘objection,’ or ‘response,’ or any similarly titled responsive filing.
Rather, the party must file a brief that concisely states the reasons for opposing the
motion and cites to supporting authority.”

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trial on Vacek’s contract claims, and summary judgment on those contract claims is
warranted.
CONCLUSION
Because Vacek has not met her burden of demonstrating that the Defendants’
legitimate, non-discriminatory reasons for terminating her employment were pretext for
discrimination on the basis of her sex, the Defendants’ Motion for Summary Judgment on
Vacek’s Title VII claim will be granted. Because Vacek has not come forward with
admissible evidence demonstrating any genuine issues of material fact as to the existence
of an oral or written contract breached by the Defendants, the Defendants’ Motion for
Summary Judgment on Vacek’s contract claim also will be granted.
Accordingly,
IT IS ORDERED:
1. Defendants’ Motion for Summary Judgment (Filing No. 23) is granted;
2. Defendants’ Motion to Strike (Filing No. 29) is denied as moot;
3. Defendants’ Motion in Limine (Filing No. 33) is denied as moot;
4. Plaintiff’s claims will be dismissed, with prejudice; and
5. A separate Judgment will be entered.
DATED this 18th day of November, 2014.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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