Olson v. City of Atkinson, Nebraska, et al

Filing 41

MEMORANDUM AND ORDER - The defendants' motion for summary judgment (filing 30 ) is granted. Olson's complaint is dismissed. A separate judgment will be entered. Ordered by Chief Judge John M. Gerrard. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RHONDA OLSON,
Plaintiff,

4:18-CV-3017

vs.
MEMORANDUM AND ORDER
CITY OF ATKINSON, NEBRASKA,
et al.,
Defendants.
This matter is before the Court on the motion for summary judgment
(filing 30) filed by the defendants: the City of Atkinson, the Atkinson Police
Department, and Tim Larby, the City of Atkinson's Chief of Police (collectively,
the City). The Court will grant the defendants' motion for summary judgment.
BACKGROUND
In 2008, the plaintiff, Rhonda Olson, applied for a position as a police
officer with the Atkinson Police Department. Filing 1 at 3. Although Olson was
well-qualified, the City chose a different candidate––Louis Genereux. Filing 1
at 3. When Olson learned that the position had been offered to Genereux, she
contacted Chief Larby to inquire further. At that time, Chief Larby told Olson
that he simply selected the person "who he felt was the best fit." Filing 33-1.
But in May 2017, Olson learned the real reason she was not hired: Chief
Larby did not think that the community was "ready for a female police officer."
Filing 1 at 3. Based on that discovery, Olson filed this lawsuit claiming that
the defendants violated her constitutional right to equal protection. Filing 1 at
1. She also alleges that the defendants' conduct violated art. I, § 1 of the

Nebraska constitution.1 Filing 1 at 1. The defendants have moved to dismiss
those claims arguing that Olson's claims are time-barred.
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 mere existence of a scintilla of evidence in support of the
nonmovant's position will be insufficient; there must be evidence on which the

1

Olson probably meant to cite art. I, § 3 of the Nebraska constitution, which contains

Nebraska's equal protection clause, or art. I, § 30, which proscribes discrimination in public
employment, public education, or public contracting.

2

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.
DISCUSSION
As briefly noted above, Olson contends that the City violated her
constitutional rights under the United States Constitution and the
constitution of the State of Nebraska. See filing 1 at 5-10. But according to the
City, Olson's claims are time-barred. Filing 31 at 5. That is true, the City says,
because Olson's claim for relief accrued in on April 30, 2008, when she was not
hired as a police officer, but this lawsuit was not filed until February 6, 2018–
–well beyond the four year statute of limitations. See Neb. Rev. Stat. § 25–212;
Lindner v. Kindig, 826 N.W.2d 868, 872 (Neb. 2013); Montin v. Estate of
Johnson, 636 F.3d 409, 412–13 (8th Cir. 2011).
Olson, on the other hand, alleges that the underlying action is timely.
Filing 34 at 1. To support that contention, Olson suggests that her claim did
not accrue in 2008, but rather on May 30, 2017––the date that she says she
first learned her gender was the sole reason she was not hired. Filing 34 at 1.
And she says that because the City "actively misled Olson as to the real reason
she wasn't hired," there was no way to know of the discrimination before that
date. Filing 34 at 1.
So, the question before the Court is this: what date did Olson's claims
accrue? To answer that question, the Court must separately determine when
Olson's federal claims and state-law claims accrued. That is true because the
accrual date of Olson's federal constitutional claims are not resolved by
reference to state law. Wallace v. Kato, 549 U.S. 384, 388 (2007); Montin, 636
F.3d at 413. And as the Supreme Court has explained, aspects of § 1983 which
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are not governed by reference to state law are governed by federal rules
conforming to common-law tort principles. Wallace, 549 U.S. at 388.
The standard federal rule is that accrual occurs when the plaintiff has a
complete and present cause of action, that is, when the plaintiff can file suit
and obtain relief. Id. Under this rule, the tort cause of action accrues, and the
statute of limitations commences to run, when the wrongful act or omission
results in damages. Id. at 391. The cause of action accrues even though the full
extent of the injury is not then known or predictable. Id. Were it otherwise, the
Court has explained, the statute would begin to run only after a plaintiff
became satisfied that he or she had been harmed enough, placing the supposed
statute of repose in the sole hands of the party seeking relief. See id.
The problem this presents for Olson is evident. Here, the wrongful act
(i.e., gender discrimination) occurred in 2008 when Olson was not hired for the
police officer position. Filing 1 at 2. But she did not file this case until February
6, 2018. Filing 1 at 1. Olson attempts to alleviate that problem by claiming that
prior to May 2017 she had "no reason to believe" that she was not hired because
of her gender. But whatever the plaintiff might have believed, she had already
been injured—the discrimination that is the gravamen of her constitutional
claim had already occurred, and at that time, she could have sued. See Wallace,
549 U.S. at 388.
Alternatively, Olson claims that the accrual of the statute of limitations
was delayed by the doctrine of equitable estoppel. Filing 1 at 2. Equitable
estoppel applies when the employee knows she has a claim, but the employer
affirmatively and actively takes action that causes the employee not to timely
file her suit. Henderson v. Ford Motor Co., 403 F.3d 1026, 1033 (8th Cir. 2005).
Equitable estoppel is a tolling doctrine that, unlike accrual, is determined by
reference to state law. Wallace, 549 U.S. at 393-94; Montin, 636 F.3d at 413.
4

Under Nebraska law, there are six elements that must be satisfied for
the doctrine of equitable estoppel to apply: (1) conduct which amounts to a false
representation or concealment of material facts or, at least, which is calculated
to convey the impression that the facts are otherwise than, and inconsistent
with, those which the party subsequently attempts to assert; (2) the intention,
or at least the expectation, that such conduct shall be acted upon by, or
influence, the other party or other persons; (3) knowledge, actual or
constructive, of the real facts; (4) lack of knowledge and of the means of
knowledge of the truth as to the facts in question; (5) reliance, in good faith,
upon the conduct or statements of the party to be estopped; and (6) action or
inaction based thereon of such a character as to change the position or status
of the party claiming the estoppel. Woodard v. City of Lincoln, 588 N.W.2d 831,
836 (Neb. 1999).
Olson argues that Chief Larby's gender discrimination came to light only
after she uncovered a written memorandum from Todd Bailey, a police officer
vetting Olson for a different police officer position in South Dakota. Filing 34
at 8-9. In that memorandum, Bailey stated that Chief Larby informed him the
real reason the City did not hire Olson was because Chief Larby didn't think
"the community is ready for a female police officer." Filing 1 at 9. And according
to Olson, she had no reason to know she was not hired because of her gender
before that date. Filing 1 at 9; filing 34 at 8-9.
That is true, Olson claims, because in 2008 when she pressed Chief
Larby on the reasons why she was not selected for the position, Chief Larby
made false representations and concealed material facts. More specifically,
Olson argues that Chief Larby concealed his gender discrimination by
suggested that someone else was simply more qualified than Olson. Filing 331 at 13. And so, in Olson's view, the statute of limitations period was equitably
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tolled until May 2017 when she learned, despite Chief Larby's statements to
the contrary, that the real reason she wasn't hired was because she is a woman.
Filing 33-1 at 13.
But the problem with Olson's argument is that it is contradicted, by
evidence that well before 2017, Olson did have reason to believe she wasn't
hired because of discrimination. Indeed, on November 6, 2011, Olson sent a
Facebook message to a friend specifically referencing her belief that Larby
chose not to hire her "because of her name and gender." Filing 33-4. That
evidence demonstrates that at least as soon as November 2011, Olson had some
inclination that that the reason she was not hired was actually based on a
discriminatory motive. And with that knowledge, Olson's reliance on Officer
Larby's previous statements to the contrary––and her subsequent inaction––
are no longer reasonable under the circumstances.2 Simply put, there is
evidence that Olson had actual knowledge of the gender discrimination and
the true reason she was not hired. In that scenario, equitable estoppel is not
available. See generally Woodard, 588 N.W.2d at 836.
In short, Olson's federal constitutional claims are time-barred. The same
reasoning applies to Olson's state constitutional claim. Nebraska follows the
same general rule discussed above, that a statute of limitations begins to run
as soon as the claim accrues, and an action based on a constitutional
deprivation accrues as soon as the plaintiff's rights are affected. See Lindner v.
Kindig, 826 N.W.2d 868, 871 (Neb. 2013); see also Lindner v. Kindig, 881
N.W.2d 579, 587 (Neb. 2016). And as previously explained, Olson has not
presented the Court with a sufficient evidence that equitable estoppel is

2

The Court notes that Olson claims her 2011 reference to gender discrimination was "based

on conjecture and was only a guess." Filing 34 at 9. But even if that were true, that is
sufficient knowledge to undermine Olson's reliance on Officer Larby's previous statements.

6

warranted. See, e.g., Woodard, 588 N.W.2d at 836. So, Olson's state
constitutional claims are also time-barred.3
It is unfortunate that the City's apparent and inexcusable discrimination
may go unsanctioned, but the facts supporting the City of Atkinson's statute of
limitations defense are clear. Olson's claims are time-barred, and the City of
Atkinson's motion for summary judgment will be granted in its entirety.
Accordingly,
1.

The defendants' motion for summary judgment (filing 30) is
granted.

2.

Olson's complaint is dismissed.

3.

A separate judgment will be entered.

Dated this 6th day of December, 2018.
BY THE COURT:
John M. Gerrard
Chief United States District Judge
3

In addition, Nebraska law generally does not permit a direct cause of action for violation of

a state constitutional provision. See McKenna v. Julian, 763 N.W.2d 384, 391 (Neb. 2009);
see also Neb. Rev. Stat. § 20-148 (any person or company “except any political subdivision”
shall be liable for a violation of the Nebraska constitution). There may be a remedy for
discrimination in public employment pursuant to Neb. Const. art. I, § 30(7), but as noted
above, it's not clear whether Olson meant to rely on that provision. But whatever the basis
for the claim, it's time-barred.

7