Borrego v. Nelnet
Filing
43
MEMORANDUM AND ORDER denying that the defendant's motion to strike (filing 33 ) is denied. The plaintiff's motion to strike (filing 38 ) is denied. The defendant's motion for summary judgment (filing 25 ) is granted with respect to "Count 2" of the plaintiff's complaint, to the extent it is brought under Title VII, and denied with respect to "Count 1" under both Title VII and the Nebraska Fair Employment Practices Act, and "Count 2" under the Nebraska Fair Employment Practices Act, as set forth above. Ordered by Judge John M. Gerrard. (LAC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROSLYN BORREGO,
Plaintiff,
4:14-CV-3024
vs.
MEMORANDUM AND ORDER
NELNET, INC.,
Defendant.
The plaintiff, Roslyn Borrego, has sued Nelnet, Inc., a Nebraska
corporation, for race and color discrimination in violation of Title VII of the
Civil Rights Act, 42 U.S.C. § 2000e-2, and the Nebraska Fair Employment
Practices Act, Neb. Rev. Stat. § 48-1104. Filing 1. Specifically, the plaintiff
alleges that the defendant discriminatorily refused to hire her on two
separate occasions for the positions of Loan Advisor and Student Loan
Collector, respectively. Filing 1. This matter is before the Court on the
defendant's motion for summary judgment (filing 25), as well as the
defendant's motion to strike evidence (filing 33) and the plaintiff's motion to
strike evidence (filing 38). For the reasons discussed below, each motion to
strike will be denied, and the motion for summary judgment will be denied in
part and granted in part.
I. BACKGROUND
The defendant hired the plaintiff, Borrego, who is African-American, as
a debt collector on March 3, 2008. Filing 26 at 2. Borrego worked with
borrowers who were behind on student loan payments. Filing 26 at 2. On
March 1, 2010, she was promoted to the position of Specialist II–Quality
Assurance. Filing 26 at 2. In that role, she monitored debt collector calls and
offered advice on improvement. Filing 26 at 2. The plaintiff resigned on
February 11, 2011 because she planned to relocate to Texas, where her
husband had been offered a job. Filing 26 at 2. At the time of her resignation,
the plaintiff's job performance was satisfactory, and she was considered
eligible for rehire. Filing 26 at 2.
In the summer of 2011, Borrego began reapplying for work with the
defendant. Filing 26 at 3. On October 16, 2011, she applied for the position of
Loan Advisor. Filing 32 at 6; filing 35 at 1. Her application was denied
without an interview on October 20. Filing 26 at 8. According to the
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defendant, the plaintiff applied "late in the hiring process" and "[m]ost of the
positions had already been filled." Filing 26 at 8. The plaintiff contests the
defendant's explanation, noting that two Caucasian candidates applied for
the same position after she did and were hired. Filing 32 at 6.
On December 2, 2011, Borrego contacted a former supervisor to see if
the defendant had any job openings. Filing 26 at 3. That supervisor contacted
another supervisor, Jason Latimer, to ask if he had any open Student Loan
Collector positions. Filing 26 at 3. Latimer did not, but he did have "enough
room in his department's budget to hire another collector." Filing 26 at 3. He
received permission to open the position for the plaintiff to apply. Filing 26 at
3. The position was "essentially the same" as the one the plaintiff held when
she first began work with the defendant in 2008. Filing 26 at 4.
Renae Schwasinger was the recruiter for the Student Loan Collector
position. Filing 26 at 4. After the plaintiff was unable to complete the
application online, Schwasinger asked the plaintiff to complete the
application in person at the office. Filing 26 at 4. On December 7, 2011,
Borrego did so. Filing 26 at 4. On the application, she disclosed that she had
been convicted of assault in 2003, but that the conviction had been set aside
in 2007. Filing 26 at 4. After the plaintiff completed the application,
Schwasinger reviewed it and discussed it with her. Filing 26 at 4. During
that discussion, Schwasinger noted that the defendant had received a
contract with the United States Department of Education in June 2009.
Filing 26 at 4–5. Because of that contract, the defendant's employees were
required to obtain clearance through the federal government. Filing 26 at 5.
As a result, the defendant had instituted a stricter background check policy.
Filing 26 at 5. This change occurred during the plaintiff's employment, and
before her 2010 promotion. Filing 32 at 2.
Schwasinger mentioned that the plaintiff's assault conviction could be a
concern for the defendant, because individuals with assault convictions might
be "aggressive or belligerent with customers." Filing 26 at 5. According to the
plaintiff, she told Schwasinger that she had never become belligerent with
customers. Filing 32 at 3. The plaintiff further contends that her work record,
as well as her performance on the defendant's "Predictive Index,"
demonstrated her cooperative, team-oriented personality. Filing 32 at 3.
During the same conversation, Schwasinger asked the plaintiff why she had
not included a Texas address on her application, given that the plaintiff
resigned from her prior position with the defendant in order to move to
Texas. Filing 26 at 6. The plaintiff informed Schwasinger that she had not
ultimately moved to Texas. Filing 26 at 7.
The defendant conducted a background check on the plaintiff, which
indicated the plaintiff had been convicted of third-degree assault in 2003, and
was fined and sentenced to 9 months of probation. Filing 26 at 6. The report
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did not state that the conviction was set aside. Filing 26 at 6. According to
the defendant, Schwasinger therefore believed that the plaintiff's conviction
had not been set aside, and that the plaintiff was lying. Filing 26 at 5. The
plaintiff, however, disputes this. The plaintiff testified that she believed the
defendant already knew her conviction had been set aside because she passed
a background check when she was previously employed with the defendant.
Filing 32 at 4. Additionally, the plaintiff contends that she was never asked
to provide documentation that her conviction had been set aside. Filing 32 at
4.
Schwasinger consulted with her supervisor, Jeff Werley, about the
plaintiff's application. Filing 26 at 7. According to the defendant,
Schwasinger and Werley agreed that the plaintiff's assault conviction
disqualified her from employment, though they "were even more concerned
about the fact that [the plaintiff] appeared to have lied on her application."
Filing 26 at 7. However, the plaintiff notes that Werley also cited the
plaintiff's "negative attitude" during the application process as a reason for
not hiring her. Filing 32 at 5. On either December 9 or December 11, 2011,
Schwasinger informed the plaintiff that she would not be hired because of her
assault conviction. Compare filing 26 at 6 with filing 26 at 7. On December
13, the Lincoln Police Department faxed documentation to the defendant
indicating that the conviction had, in fact, been set aside. Filing 26 at 6.
According to the defendant, had the plaintiff's background check "come back
clear" or had she submitted proof her assault conviction had been set aside
before the hiring decision was made, she would have been hired. See filing 26
at 7.
The plaintiff disputes various aspects of the defendant's explanation of
its reasons for not hiring her. First, the plaintiff contends that the defendant
did not follow its own procedures in declining her application. Filing 32 at 7.
In particular, she cites a portion of the defendant's background check policy
that directs recruiters to consider convictions going back 7 years, and to give
less weight to older convictions. Filing 32 at 7. The plaintiff's conviction was
over 8.5 years old at the time of her application. Filing 32 at 7. She also
asserts that the defendant violated its policies when it failed to provide her
with a copy of her background check or a letter about her results. Filing 32 at
6–7.
Second, the plaintiff contends that the defendant hired Caucasian job
applicants who had similarly serious convictions. Filing 32 at 5. Specifically,
the plaintiff has produced evidence that one Caucasian applicant was hired
although he had been convicted of DUI, and that another Caucasian
applicant was hired although he had been convicted of passing bad checks.
Filing 32 at 5. The defendant counters with evidence that candidates of many
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races were denied employment because of their background checks. Filing 26
at 8.
And finally, as previously described, the plaintiff cites to her positive
work history with the defendant, and other evidence that she contends
indicates she has a suitable temperament for the job. Filing 32 at 3.
The plaintiff filed a charge of discrimination with the Nebraska Equal
Opportunity Commission on December 21, 2011. Filing 26 at 9. In that
charge, she alleged only that the defendant's refusal to hire her for the
Student Loan Collector position was discriminatory. Filing 26 at 9. She
amended her charge on October 29, 2012 to allege that the defendant's
refusal to hire her for the Loan Advisor position was discriminatory as well.
Filing 26 at 9.
II. STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the
initial responsibility of informing the Court of the basis for the motion, and
must identify those portions of the record which the movant 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). 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.
On 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. Id. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. But the nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts. Id. In order to
show that disputed facts are material, the party opposing summary judgment
must cite to the relevant substantive law in identifying facts that might
affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751
(8th Cir. 2011). The existence of a mere scintilla of evidence in support of the
nonmovant's position will be insufficient; there must be evidence on which
the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver
Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). 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. Torgerson, 643 F.3d at 1042.
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III. ANALYSIS
1. DEFENDANT'S MOTION TO STRIKE
The defendant moves to strike certain evidence the plaintiff relies on in
opposition to the defendant's motion for summary judgment. Filing 34. In
particular, the defendant argues that the plaintiff's exhibits 6, 7, and 12
should be stricken because they were not authenticated, and that exhibits 8,
9, 14, and 15 should be stricken because they contain inadmissible hearsay.
Filing 34 at 2–3.
(a) Authentication
First, the defendant moves to strike exhibits 6 (filing 31-2), 7 (filing 313), and 12 (filing 31-8) because they were not authenticated with supporting
affidavits. Filing 34 at 2. But after Fed. R. Civ. P. 56 was amended in 2010,
submission of unauthenticated documents in support of or opposition to a
summary judgment motion no longer violates it per se. See Foreword
Magazine, Inc. v. OverDrive, Inc., 2011 WL 5169384, at *2 (W.D. Mich. 2011).
Instead, the proper objection to unauthenticated evidence is that it cannot be
authenticated, and therefore cannot be presented in admissible form at trial.
See Fed. R. Civ. P. 56(c)(2); see also Foreword Magazine, at *2.1 Here,
defendant has not attempted to assert that plaintiff could not authenticate
the documents cited. Thus, the Court will not strike these exhibits on the
basis of authentication.
(b) Hearsay
Next, the defendant moves to strike the plaintiff's exhibits 8 (filing 314), 9 (filing 31-5), 14 (filing 31-10), and 15 (filing 31-11) because, according to
the defendant, those exhibits contain inadmissible hearsay. Filing 34 at 3.
Under Fed. R. Civ. P. 56(c)(2), a party may object "that the material cited to
support or dispute a fact cannot be presented in a form that would be
admissible in evidence." Then, the burden is on the proponent "to show that
the material is admissible as presented or to explain the admissible form that
is anticipated." Fed. R. Civ. P. 56(c) advisory committee note (2010).
First, exhibits 8 and 15 are not hearsay. Under Fed. R. Evid. 801(d)(2),
a statement made by a party or its agent is not hearsay when offered against
that party. Exhibits 8 and 15 contain statements made by the defendant's
counsel, Cheri K. Vandergrift, on the defendant's behalf. See filing 34 at 3.
Exhibit 8 is a letter from Vandergrift to an NEOC investigator. Filing 31-4.
The letter says, "I am writing to provide you additional information requested
It is true that a failure to authenticate exhibits violates NECivR 7.1. And the Court does
not condone such basic disregard for the local rules. Nonetheless, it shall consider this
evidence in its determination.
1
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by letter to me on June 27, 2012. Nelnet's responses are as follows[.]" Filing
31-4. Exhibit 15 is the defendant's "position statement," which Vandergrift
submitted to the NEOC regarding the plaintiff's claim. Filing 31-11. Clearly,
Vandergrift was acting as the defendant's agent, and was "a person whom the
party authorized to make a statement on the subject." See Fed. R. Evid.
801(d)(2). Thus, exhibits 8 and 15 are not inadmissible hearsay.
Next, the plaintiff argues that exhibits 9 (filing 31-5) and 14 (filing 3110) are admissible for impeachment purposes. Filing 37 at 2. Exhibit 9
contains the NEOC investigator's notes about her interview of Werley, and
exhibit 14 contains the investigator's notes about her interview of
Schwasinger.
The plaintiff argues that exhibit 9 is admissible for impeachment
purposes because it contains statements by Werley which, according to the
plaintiff, are inconsistent with the statements Werley made in his affidavit.
Filing 37 at 2. It is true that under Fed. R. Evid. 613(b), extrinsic evidence of
a witness's prior inconsistent statement is admissible for impeachment
purposes. This type of evidence is not considered hearsay because it is offered
not to establish the truth of what the prior inconsistent statement asserts,
but to attack the credibility of the witness. United States v. Yarrington, 634
F.3d 440, 448 (8th Cir. 2011).
But this does not resolve the hearsay issue. There are two layers of outof-court statements in exhibit 9: first, Werley's statements to the
investigator, and second, the investigator's statements about what Werley
said. While Werley's statements themselves may not be hearsay, the
investigator's assertions that Werley made those statements are. See Crews
v. Monarch Fire Prot. Dist., 771 F.3d 1085, 1092 (8th Cir. 2014). And the
plaintiff has not argued that those second-layer assertions are subject to any
hearsay exception. Thus, the plaintiff has not demonstrated that exhibit 9 is
admissible.
The plaintiff also contends that exhibit 14 is admissible to impeach
Werley. Filing 37 at 2. According to the investigator's notes in exhibit 14,
Schwasinger said that the plaintiff applied for the Loan Advisor position on
October 16, 2011, and that two Caucasian candidates who applied for the
Loan Advisor position after the plaintiff applied were hired. Filing 31-10.
These assertions, according to the plaintiff, impeach Werley's testimony that
the plaintiff applied for the position on October 20, 2011, and that the
plaintiff applied "late in the process." Filing 37 at 2. However, as with exhibit
9, the NEOC investigator's notes about what Schwasinger said are hearsay,
and the plaintiff has not demonstrated that they fall within any hearsay
exception.
Thus, it seems clear that exhibits 9 and 14 themselves are not
admissible. But it is equally clear that the information in the exhibits could
6
readily be presented in admissible form at trial. For instance, to offer
evidence of Werley's purportedly inconsistent statements, the plaintiff need
only call the NEOC investigator as a witness—eliminating the hearsay
problem. Similarly, to offer evidence as to when the plaintiff applied and
whether Caucasian candidates who applied after the plaintiff were hired, the
plaintiff could simply call Schwasinger to the stand. Accordingly, the Court
will deny the defendant's motion to strike.2
2. PLAINTIFF'S MOTION TO STRIKE
The plaintiff has moved to strike as conclusory paragraph 3 of the
defendant's exhibit 16, paragraph 21 of the defendant's exhibit 3, and the
defendant's exhibit 22. But the issue of whether a statement is conclusory
goes to the weight, rather than admissibility, of the evidence. See Brisbin v.
Aurora Loan Servs., LLC, 679 F.3d 748, 754 (8th Cir. 2012) (considering the
conclusory nature of certain evidence in the context of whether it was
sufficient to raise a genuine issue of material fact). Consequently, the Court
will deny the plaintiff's motion to strike.
3. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The defendant moves for summary judgment for three primary reasons.
First, the defendant contends that the plaintiff failed to exhaust her
administrative remedies with respect to her claim that the defendant's
refusal to hire her for the Loan Advisor position was discriminatory. Filing 26
at 15. Second, for both of the plaintiff's claims, the defendant argues that the
plaintiff can neither establish a prima facie case of discrimination, nor show
that the defendant's proffered reasons for refusing to hire her were
pretextual. Filing 26 at 11. Finally, the defendant contends that with respect
to the Loan Advisor claim, it would have made the same decision even absent
discriminatory motive. Filing 26 at 18.
(a) Exhaustion of administrative remedies
The defendant argues that the plaintiff failed to exhaust her
administrative remedies with respect to her claim that failing to hire her for
the Loan Advisor position was discriminatory. Filing 26 at 15. Specifically,
the defendant argues that the plaintiff failed to bring her administrative
charge of discrimination within the limitations period. Filing 26 at 15.
Because the rules regarding administrative exhaustion differ between Title
The Court notes, for the parties' future reference, that pursuant to Fed. R. Civ. P. 56(c)(2),
a party may simply object in its brief to evidence it believes to be in admissible: "[t]here is
no need to make a separate motion to strike." Fed. R. Civ. P. 56 advisory committee note
(2010).
2
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VII and Nebraska Fair Employment Practices Act, the Court shall analyze
each separately.
1. Title VII
Before a plaintiff can bring an unlawful discrimination suit under Title
VII, she must first exhaust her administrative remedies by filing a timely
charge of discrimination with the EEOC or a state or local agency with
authority to seek relief. Richter v. Advance Auto Parts, Inc., 686 F.3d 847,
850 (8th Cir. 2012). For an administrative charge to be "timely," the employee
must either file it with the EEOC within 180 days of the alleged unlawful
employment practice, or file it with a state or local agency within 300 days of
the alleged unlawful practice. 42 U.S.C. § 2000e-5(1). When multiple
unlawful employment practices are alleged, "[e]ach discrete discriminatory
act starts a new clock for filing charges alleging that act. The charge,
therefore, must be filed within the 180- or 300-day time period after the
discrete discriminatory act occurred." Nat'l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 113 (2002).
Here, the plaintiff's application for the position of Loan Advisor was
denied on October 20, 2011. Filing 26 at 8. She filed her original charge of
discrimination with the NEOC on December 21, 2011, but alleged only that
the defendant's refusal to hire her for the Student Loan Collector position
was discriminatory. Filing 26 at 9. She amended her charge on October 29,
2012 to add the allegation that the defendant's refusal to hire her for the
Loan Advisor position was discriminatory as well. Filing 26 at 9. Thus, with
respect to the Loan Advisor claim, the plaintiff filed her charge of
discrimination more than 300 days after the alleged unlawful employment
practice.
The plaintiff argues that, nonetheless, her Loan Advisor claim is not
barred for three reasons. First, the plaintiff contends that her Loan Advisor
claim is sufficiently related to the allegations of her original charge of
discrimination to be considered administratively exhausted. Filing 32 at 19.
Second, the plaintiff contends that the addition of the Loan Advisor
allegation to her charge of discrimination relates back to the filing date of the
original charge. Filing 32 at 19. Finally, the plaintiff contends that the
limitations period for the Loan Advisor allegation was tolled because she was
not aware that her application might have been declined for discriminatory
reasons until evidence of that possibility came to light during the NEOC
investigation. Filing 32 at 19.
Initially, the plaintiff argues that her Loan Advisor claim is not barred
because it is sufficiently related to the allegations of her original charge of
discrimination to be considered administratively exhausted. Filing 32 at 19.
Courts "deem administrative remedies exhausted as to all incidents of
8
discrimination that are 'like or reasonably related to the allegations of the
administrative charge.'" Tart v. Hill Behan Lumber Co., 31 F.3d 668, 671 (8th
Cir. 1994) (internal alterations omitted) (quoting Anderson v. Block, 807 F.2d
145, 148 (8th Cir. 1986)). Accordingly, "the scope of the civil suit may be 'as
broad as the scope of the administrative investigation which could reasonably
be expected to grow out of the charge of discrimination.'" Id. (internal
alterations omitted) (quoting Cobb v. Stringer, 850 F.2d 356, 359 (8th Cir.
1988)). The plaintiff argues that although her original charge of
discrimination did not include the Loan Advisor allegation, that allegation
falls within the scope of the investigation that could reasonably have been
expected to grow out of the original charge. Filing 32 at 19. Thus, the plaintiff
contends, the Loan Advisor claim is administratively exhausted. Filing 32 at
19.
But in cases where multiple discriminatory refusals to hire are alleged,
each refusal to hire constitutes a separate and discrete employment action
"that must be individually addressed before the EEOC" or state agency.
Sellers v. Deere & Co., 791 F.3d 938, 943 (8th Cir. 2015). And the Eighth
Circuit has held that "it is not reasonable to expect the [agency] to look for
and investigate such adverse employment actions if they are nowhere
mentioned in the administrative charge." Parisi v. Boeing Co., 400 F.3d 583,
585 (8th Cir. 2005). Here, the defendant's refusal to hire the plaintiff for the
Loan Advisor position is a discrete employment action, separate from its
refusal to hire her for the Student Loan Collector position. Consequently, it
would not be reasonable to expect the agency to investigate this allegation in
the course of its investigation of the allegations in the original charge of
discrimination.
Next, the plaintiff argues that the Loan Advisor claim relates back to
the date of the original charge of discrimination. The plaintiff relies on 29
C.F.R. § 1601.12(b), which states that a charge may be amended to "clarify
and amplify allegations made therein." It further provides that amendments
alleging "additional acts which constitute unlawful employment practices
related to or growing out of the subject matter of the original charge will
relate back to the date the charge was first received." § 1601.12(b). But as
explained above, each refusal to hire is a completely separate and discrete
adverse employment action. Thus, the Loan Advisor allegation does not
merely "clarify and amplify" the allegations in the original charge, nor is it
"related to or growing out of the subject matter of the original charge." See id.
Rather, it constitutes a completely distinct claim, based on a different set of
facts. Accordingly, the addition of the Loan Advisor allegation does not relate
back to the date of the filing the original charge.
Finally, the plaintiff argues that the limitations period should be tolled
because she was not aware until the NEOC investigation that her application
9
for the Loan Advisor position might have been declined for discriminatory
reasons. See filing 32 at 19. For Title VII cases, the limitations period begins
to run when the plaintiff receives notice of an adverse employment action,
even if the employee is not aware of any discriminatory motive behind the
action. Henderson v. Ford Motor Co., 403 F.3d 1026, 1032 (8th Cir. 2005).
However, a claim may be equitably tolled "when the plaintiff, despite all due
diligence, is unable to obtain vital information bearing on the existence of
[her] claim." Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 1328 (8th Cir.
1995) (quoting Chakonas v. City of Chicago, 42 F.3d 1132, 1135 (7th Cir.
1994)). In making this determination, a court considers "whether a
reasonable person in the plaintiff's position would have been aware" of a
possible violation of her rights. Id. (quoting Chakonas, 42 F.3d at 1135). And
"the qualification 'possible' is significant because 'if a plaintiff were entitled
to have all the time [s]he needed to be certain [her] rights had been violated,
the statute of limitations would never run.'" Id. (quoting Cada v. Baxter
Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990)). Additionally, equitable
tolling "does not apply to 'garden variety' claims of excusable neglect, and
should be invoked only in exceptional circumstances truly beyond the
plaintiff's control." Jenkins v. Mabus, 646 F.3d 1023, 1028–29 (8th Cir. 2011).
Here, the plaintiff believed by December 21, 2011 at the latest that the
defendant's refusal to hire her for the Student Loan Collector position was
discriminatory. Filing 26 at 9. A reasonable person in her position should
have been aware of the possibility that the same employer might have
refused to hire her for the Loan Advisor position for the same reasons. These
are not the "exceptional circumstances" that would justify equitable tolling.
See Jenkins, 646 F.3d at 1029. Consequently, the Court will grant summary
judgment on the Loan Advisor claim brought under Title VII.
2. Nebraska Fair Employment Practices Act
While the plaintiff may not pursue her Loan Advisor claim under Title
VII, she may do so under Nebraska law. Although the Nebraska Fair
Employment Practices Act requires plaintiffs to administratively exhaust
their claims, plaintiffs may instead bring suit under Neb. Rev. Stat. § 20-148.
Goolsby v. Anderson, 549 N.W.2d 153, 158 (Neb. 1996). Section 20-148
provides an independent cause of action for violations of Nebraska Fair
Employment Practices Act, and does not require administrative exhaustion.
Id. And the plaintiff may rely on § 20-148 even though she did not mention it
in her complaint; there is no need to specifically plead § 20-148. See Trimble
v. BNSF Ry. Co., 2008 WL 2795863 at *3 (D. Neb. 2008). Thus, the Court will
deny summary judgment on the Loan Advisor claim brought under Nebraska
law.
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(b) Evidence of discrimination
Next, the defendant argues that it is entitled to summary judgment
because the plaintiff has not produced evidence sufficient for a reasonable
jury to find that the defendant's refusal to hire the plaintiff was
discriminatory. Filing 26 at 11.
Under 42 U.S.C. § 2000e-2, it is unlawful for an employer "to fail or
refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's race, color, religion,
sex, or national origin." An employer has committed an unlawful practice
when "race, color, religion, sex, or national origin was a motivating factor for
any employment practice, even though other factors also motivated the
practice." 42 U.S.C. § 2000e-2(m). The Nebraska Fair Employment Practices
Act contains a provision nearly identical to 42 U.S.C. § 2000e-2. See Neb. Rev.
Stat. § 48-1104. Nebraska courts have held that the Nebraska Fair
Employment Practices Act "is patterned after 42 U.S.C. § 2000e et seq., and it
is appropriate to look to federal court decisions construing similar and parent
federal legislation." Bonn v. City of Omaha, 814 N.W.2d 114, 121 (Neb. Ct.
App. 2012).
The parties agree that there is no direct evidence of discrimination in
this case, and that therefore the McDonnell Douglas framework applies. See
filing 32 at 8. Under the McDonnell Douglas three-step framework, the
plaintiff has the initial burden of establishing a prima facie case. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the plaintiff makes a
prima facie showing, thus raising an inference of discrimination, the burden
shifts to the defendant to articulate a legitimate, nondiscriminatory reason
for the plaintiff's discharge. Id. If the defendant meets this burden, the
plaintiff must prove that the defendant's reason is merely a pretext for
discrimination. Id. at 804.
The defendant contends that it is entitled to summary judgment
because at step one, the plaintiff failed to establish a prima facie case of
employment discrimination, and at step three, the plaintiff failed to establish
that the defendant's proffered reasons for refusing to hire her were
pretextual. Filing 26 at 11.
1. Prima facie case
A plaintiff may establish a prima facie case of race or color
discrimination in the refusal-to-hire context by demonstrating: (1) that she
belongs to a protected class; (2) that she applied and was qualified for a job
for which the employer was seeking applicants; (3) that, despite her
qualifications, she was rejected; and (4) that, after her rejection, the position
remained open and the employer continued to seek applicants from persons of
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complainant's qualifications. McDonnell Douglas, 411 U.S. at 802. The
defendant argues that the plaintiff fails on the second prong; it contends that
she was not qualified for the jobs she applied for because she "failed" the
defendant's background check. Filing 26 at 12.
To demonstrate that she was qualified for a position, "a plaintiff must
show only that [s]he possesse[d] the basic skills necessary for performance of
the job." Haigh v. Gelita USA, Inc., 632 F.3d 464, 469 (8th Cir. 2011) (quoting
McGinnis v. Union Pac. R.R., 496 F.3d 868, 874 (8th Cir. 2007)). When an
employer asserts that it refused to hire an applicant because she was
unqualified, "the second prong of the prima facie test is exceedingly similar to
the proffered non-discriminatory reason in [the] second stage of the burdenshifting analysis." Dixon v. Pulaski Cty. Special Sch. Dist., 578 F.3d 862, 868
(8th Cir. 2009) (abrogated on other grounds by Torgerson, 643 F.3d 1031).
But courts "are cautious not to conflate the two." Id.; see Lake v. Yellow
Transp., Inc., 596 F.3d 871, 874 (8th Cir. 2010) (explaining that doing so
would "collapse" the McDonnell Douglas framework). Whether a plaintiff was
qualified turns on whether she, in fact, met the minimum requirements for
the position; she need not disprove the defendant's assertion that it believed
she was unqualified. See id. "The prima facie burden is not so onerous."
Davenport v. Riverview Gardens Sch. Dist., 30 F.3d 940, 944 (8th Cir. 1994).
Here, the defendant does not dispute that the plaintiff's conviction
really was set aside. And according to the defendant, "if [the plaintiff] had
submitted proof that her assault conviction had been set aside, she would
have been hired." Filing 26 at 7. Thus, the parties seem to agree that, in fact,
the plaintiff's criminal history did not disqualify her from employment.3
However, the defendant seems to argue not that the plaintiff's criminal
history disqualified her from employment, but that her "failed background
check rendered [her] unqualified." Filing 26 at 13. But it cannot be the case
that an acceptable background check itself is a qualification; rather, a
background check is merely a tool to determine if an applicant is qualified. To
illustrate, suppose a baseball team is looking for a new relief pitcher, and
expressly instructs its scout that the player "must be able to throw a 90-mph
fastball." What matters to the team is not that the radar gun flashes "90"
when the pitcher throws the ball; what matters is that the ball actually
moves that fast. The radar gun is just the tool of measurement.
Similarly, here, the defendant does not claim that it had concerns about
applicants with assault convictions because of some importance attached to
the background check process itself. Rather, the defendant asserts that it had
The plaintiff, of course, maintains that she would have been qualified to work for the
defendant even if her conviction had not been set aside. Filing 32 at 16.
3
12
concerns because an applicant with an assault conviction could be "aggressive
or belligerent with customers." Filing 26 at 5. Accordingly, the plaintiff has
shown that she was qualified for the positions she applied for, and has made
a prima facie showing of discrimination.
2. Legitimate nondiscriminatory reason
Because Borrego made a prima facie showing of discrimination, the
burden shifts to the defendant to articulate a legitimate, nondiscriminatory
reason for its refusal to hire her. McDonnell Douglas, 411 U.S. at 802.
With respect to the Loan Advisor position, the defendant asserts that it
declined to hire the plaintiff because she applied "late in the hiring process,"
and "[m]ost of the positions had already been filled at the time she applied."
Filing 26 at 8. This explanation is certainly relevant to a hiring decision: the
fewer open positions, the more competitive the hiring process. However, it
does not explain why the defendant chose to hire candidates other than the
plaintiff for the remaining open positions. Accordingly, the defendant has
failed to meet its burden to articulate a legitimate, nondiscriminatory reason
for its refusal to hire the plaintiff for the position of Loan Advisor. Therefore,
with respect to this claim, the plaintiff need not produce evidence of pretext
to survive summary judgment.
With respect to the Student Loan Collector position, the defendant
alleges that it refused to hire the plaintiff because Schwasinger and Werley
believed, on the basis of the background check, that the plaintiff's assault
conviction had not been set aside, and that the plaintiff was lying when she
said it had been. Filing 26 at 7. This explanation constitutes a legitimate,
nondiscriminatory reason for refusing to hire the plaintiff.
3. Pretext
Because the defendant has proffered a legitimate, nondiscriminatory
reason for refusing to hire the plaintiff for the Student Loan Collector
position, the burden shifts back to Borrego to establish that the defendant's
reasons are mere pretext for discrimination. McDonnell Douglas, 411 U.S. at
804. The defendant contends that the plaintiff is unable to establish pretext
because the plaintiff cannot show that the defendant acted with
discriminatory motive. Filing 26 at 13.
Evidence that the defendant's proffered reason lacks credence is
probative of pretext. See Hutson v. McDonnell Douglas Corp., 63 F.3d 771,
777 (8th Cir. 1995). For instance, a plaintiff may point to evidence that the
defendant's explanation is "incorrect, contrived, or deceitful." Id. However,
"proof that the defendant's articulated explanation is false or incorrect does
not, standing alone, entitle the plaintiff to judgment; instead, the showing
must be that the explanation is a pretext for discrimination." Id.
13
A plaintiff may show pretext in a variety of ways, including by
producing evidence that shows: that the employer "shifted its explanation of
the employment decision," that the employer "failed to follow its own
policies," or that the employer "treated similarly-situated employees in a
disparate manner." Lake, 596 F.3d at 874–75. Additionally, although
evidence that an employer misjudged an applicant's qualifications "does not
[by itself] invalidate the resulting proffered reason," it "may be probative of
whether the reasons articulated for an employment decision were merely
pretexts for discrimination." Dixon, 578 F.3d at 869 (quoting O'Connor v.
Peru State Coll., 781 F.2d 632, 637 (8th Cir. 1986)).
Here, Borrego has produced evidence which, according to her,
demonstrates that the defendant's explanation is unworthy of credence
because it was inconsistent with her positive work history. She also contends
that the defendant was "wrong about material facts" relating to the plaintiff's
application, that the defendant provided shifting explanations for not hiring
the plaintiff, that the defendant failed to follow its own procedures, and that
the defendant treated similarly situated candidates differently. Filing 32 at
14–18.
Initially, Borrego contends that the defendant's proffered explanations
are unworthy of credence. Filing 32 at 17. The defendant has asserted that
Schwasinger and Werley were concerned about applicants with assault
convictions because such applicants might be "aggressive or belligerent with
customers." See filing 26 at 5. The plaintiff argues that this explanation is not
credible, because the plaintiff's positive history with the defendant
demonstrated that she would be "cooperative, easy-going, and agreeable."
Filing 32 at 18. Moreover, Borrego argues, the credibility of the defendant's
explanation is further undermined by the fact that her conviction was 8.5
years old at the time of her application. Filing 32 at 18. According to the
plaintiff, this evidence shows that the defendant "reduced the plaintiff to the
stereotype of the 'angry black woman'" instead of evaluating her as an
individual. Filing 32 at 18.
Next, the plaintiff argues that the defendant was "wrong about
material facts" when it decided not to hire her. Filing 32 at 15. In particular,
the plaintiff points out that—contrary to what Schwasinger and Werley
assert they believed—her assault conviction really was set aside. Filing 32 at
15. The plaintiff also notes a discrepancy in the defendant's brief; at one
point, the defendant states that it rejected the plaintiff's application on
December 9, 2011, and at another point, on December 11, 2011. Filing 32 at
15. According to the plaintiff, if the defendant rejected the plaintiff's
application on December 9, it would show that the defendant took only 2 days
to make its decision after the plaintiff submitted her application. Filing 32 at
16. This, the plaintiff contends, would demonstrate that the defendant did
14
not give her adequate time to produce evidence that her conviction was set
aside. Filing 32 at 16.
Third, according to the plaintiff, the defendant has provided three
"shifting explanations" for not hiring her: (1) the defendant has asserted that
it rejected the plaintiff's application because she failed the background check;
(2) Schwasinger asserted that she believed the defendant lied about her
conviction being set aside; and (3) Werley asserted that the defendant
rejected the plaintiff's application both because she did not provide
documentation that her conviction was set aside, and because she had a
negative attitude during the hiring process. Filing 32 at 14–15. The Court
does not find these explanations to be particularly contradictory; the Court
acknowledges, however, that Werley and Schwasinger did not offer precisely
the same explanations for the decision, to the extent that might reflect on
each one's credibility.
Fourth, the plaintiff contends that the defendant did not follow its own
procedures in declining her application. Filing 32 at 16. In particular, she
cites a portion of the defendant's background check policy that directs
recruiters to consider convictions going back 7 years, and to give less weight
to older convictions. Filing 32 at 16. The plaintiff's conviction was over 8.5
years old at the time of her application. Filing 32 at 16. In addition, the
plaintiff contends that she never received a copy of her background check,
even though Schwasinger told her that one would be sent. Filing 32 at 16.
And, according to the plaintiff, the defendant has been unable to verify that it
sent the plaintiff a letter about her background check results, despite its
policy to do so. Filing 32 at 16.
Finally, the plaintiff contends that the defendant hired Caucasian job
applicants who had similarly serious convictions. Filing 32 at 17. Specifically,
the plaintiff has produced evidence that one Caucasian applicant was hired
although he had been convicted of DUI, and that another Caucasian
applicant was hired although he had been convicted of passing bad checks.
Filing 32 at 17. The Court acknowledges that these offenses are different in
nature from assault; nonetheless, a reasonable trier of fact could find that
they are similarly relevant to a job applicant's suitability for employment
with the defendant.
The Court finds that the plaintiff's evidence, considered all together,
raises a material issue of fact with respect to whether the defendant's
explanation was a pretext for discrimination. Thus, summary judgment is
precluded on this basis.
15
(c) Same decision
Finally, the defendant argues that, with respect to the Loan Advisor
claim, even if the plaintiff can establish discrimination, the defendant is not
liable because it would have made the same decision absent any
discriminatory motive. Filing 26 at 18. According to the defendant, if the
plaintiff's application had not been denied before a background check was
conducted, it would have been denied after one was conducted. Filing 26 at
18.
If a plaintiff proves a violation under § 2000e-2(m), an employer may
defend on the grounds that it "would have taken the same action in the
absence of the impermissible motivating factor." 42 U.S.C. § 2000e-5(g)(2)(B).
This is "a limited affirmative defense that does not absolve [the defendant] of
liability, but restricts the remedies available to a plaintiff. The available
remedies include only declaratory relief, certain types of injunctive relief, and
attorney’s fees and costs." Desert Palace, Inc. v. Costa, 539 U.S. 90, 94 (2003).
Here, the defendant has not established as a matter of law that it
would have rejected the plaintiff's application absent any illegal criterion.
The Court has already explained why a genuine issue of material fact exists
with respect to whether the defendant did, in fact, rely on the plaintiff's
background check in refusing to hire her for the Student Loan Collector
position. Having concluded that summary judgment for the defendant is not
warranted where the defendant did conduct a background check on the
plaintiff, the Court cannot conclude that summary judgment would be
warranted where the defendant might hypothetically have done so.
Accordingly, the Court will deny summary judgment on these grounds.
IT IS ORDERED:
1.
The defendant's motion to strike (filing 33) is denied.
2.
The plaintiff's motion to strike (filing 38) is denied.
3.
The defendant's motion for summary judgment (filing 25) is
granted with respect to "Count 2" of the plaintiff's
complaint, to the extent it is brought under Title VII, and
denied with respect to "Count 1" under both Title VII and
the Nebraska Fair Employment Practices Act, and "Count
2" under the Nebraska Fair Employment Practices Act, as
set forth above.
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Dated this 21st day of March, 2016.
BY THE COURT:
John M. Gerrard
United States District Judge
17
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