JONES v. OMAHA HOOUSING AUTHORITY ET AL
MEMORANDUM AND ORDER - The Defendants' Motion for Summary Judgment 19 is granted; Plaintiff Travistene Jones's claims against Defendants Omaha Housing Authority and Stanley Timm are dismissed, with prejudice; Defendants' Objections to Paragraphs No. 6, 7, 8, 9, 10, 11, 16 and 20 of Filing No. 23 24 are denied as moot; and A separate judgment will be entered. Ordered by Judge Laurie Smith Camp. (KBJ)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
OMAHA HOUSING AUTHORITY aka
HOUSING IN OMAHA and STANLEY
TIMM, individually and in his official
CASE NO. 8:10CV275
This matter is before the Court on the Defendants’ Motion for Summary Judgment
or Partial Summary Judgment (Filing No. 19) and the Objection to Paragraphs No. 6, 7, 9,
10, 11, 16, and 20 of the Declaration of Travistene Jones (“Jones Decl.”) (Filing No. 24)
filed by Defendants Omaha Housing Authority and Stanley Timm. For the reasons
discussed below the Defendants’ Motion for Summary Judgment will be granted and the
Objection to the Jones Decl. will be denied as moot.
Plaintiff Travistene Jones (“Jones”), sued her former employer, the Omaha Housing
Authority (“the Authority”), alleging that the Authority retaliated against her for filing a
charge of age and race discrimination against the Authority (hereinafter “EEO complaint”).
In her Complaint (Filing No. 1) Jones asserted claims under Title VII, 42 U.S.C. § 1981,
and 42 U.S.C. § 1983 in connection with her reassignment from the position of Human
Resources Coordinator (“HR Coordinator”) to Assistant Site Manager and the Authority’s
subsequent termination of her employment. Essentially, Jones argues that the Authority
forced her out of her position as HR Coordinator in retaliation for her filing of the EEO
Jones did not respond to the statement of material facts filed by the defendant as
required by NECivR 56.1(b)(1). (See Filing No. 22, Pl. Brief p. 3-4, ¶¶ 1-27.) While Jones
did address each numbered paragraph in the Defendants’ statement of material facts, in
instances where she disputed the Defendants’ factual assertions, she did not cite to the
evidentiary record to demonstrate the existence of contrary evidence. (See Filing No. 22,
Pl. Br., p. 3-4, ¶¶ 6, 7, 8, 9, 10, 17, 20.) Instead, Jones provided her own statement of
material facts to support her brief. (See id. at p. 4-9, ¶¶ 1-25.) Therefore, to the extent that
Jones’s response is not in compliance with Nebraska Civil Rule 56.1(b)(1), the properly
referenced material facts in the Defendants’ brief (Filing No. 20), will be considered
admitted, unless specifically controverted by Jones with citations to the evidentiary record.
The Court has determined that according to the Complaint (Filing No. 1), the Defendants’
Answer (Filing No. 7), the parties’ briefs (Filing Nos. 20, 22), and the Defendants’ index of
evidence (Filing No. 21), the following facts are not in dispute:
At all times relevant to her Complaint, Jones was employed by the Authority as an
at-will employee. On or about April 3, 2007, Jones filed an EEO complaint of age and race
discrimination against the Authority for failing to promote her to or hire her for other
positions within the Authority. At the time the EEO complaint was filed, Jones was working
as an HR Coordinator at the Authority. In September of 2007, the Authority hired another
HR Coordinator, Gale Sayers Proby (“Proby”). The job duties of the two coordinators were
split so that each coordinator was responsible for handling the human resources needs of
various departments within the Authority. Along with the two HR Coordinators, the Human
Resources Department also had an Assistant, Audrey Boone (“Boone”). In October 2007,
George Achola (“Achola”), Interim HR Director for the Authority, transferred Boone to
another department within the Authority. Achola made this transfer with the approval of
the Authority’s Executive Director.
In the fall of 2007, the Authority discovered that paperwork from an employee’s
evaluation was missing from a personnel file that was stored in the office previously
occupied by Boone. Following this discovery, a decision was made to change the locks
to that office. After the locks were changed, Jones unsuccessfully attempted to get into
the office. Jones inquired why the locks were changed and was provided new keys to the
office on the same day.
On December 28, 2007, Achola determined that Jones had failed to perform her job
duties in a satisfactory manner. Specifically, Jones failed to timely process applications
for the Public Safety Department regarding a job posting in that Department.1 Jones was
issued a written warning citing her failure to meet the necessary standards. On January
3, 2008, Achola determined that Jones had again violated policy and procedures by
allowing an employee to start work without having passed a drug test. As a result, Jones
was issued another written reprimand and was suspended for one day, January 7, 2008.
Jones was to return to work on January 8, 2008, however, Jones called in sick that day.
Subsequently, Jones provided the Authority with a note, dated January 8, 2008, from Scott
Prescher, M.D. Dr. Prescher’s note recommended that Jones be excused from work from
January 8, 2008, to February 3, 2008.
In her brief Jones argues “she was not behind or late in notifying the Public Safety Departm ent of
the status of the application[,]” however, she has not cited to the evidentiary record to support this assertion.
(See Filing No. 22, Pl. Br., p. 12.)
On February 1, 2008, Dr. Prescher sent another note to the Authority excusing
Jones from work “for 6 months.” The same day, Jones requested leave under the Family
Medical Leave Act (“FMLA”). On February 25, 2008, the Authority retroactively approved
Jones’s FMLA leave effective February 4, 2008 through April 28, 2008. Jones did not
return to work at the end of the approved FMLA period of leave. Thereafter, by letter dated
April 28, 2008, the Authority advised Jones that her FMLA leave had expired and she was
to report to work on May 5, 2008. The letter also stated that, pursuant to policy, her
employment would be “resigned” if she was unable to return to work on May 5, 2008.
On May 1, 2008, Jones provided the Authority with a letter from Pamela J. Helem,
a mental health therapist. The letter advised that Jones’s return to work at that point would
be premature. In response, by letter dated May 1, 2008, the Authority advised Jones that
it would extend Jones’s leave as non-FMLA extended leave and would continue to pay her
medical benefits. The letter also notified Jones that the Authority would soon begin the
process of filling her original position, but that it would attempt to find her another position
should she advise that she was returning to work. Specifically, the letter stated that “[s]ince
[Jones’s] FMLA leave had expired” the Authority was no longer required to place her in an
equivalent job or restore her to her original position, should she return to work.
On May 29, 2008, the Authority posted the HR Coordinator position formerly held
by Jones. The posting closed on June 5, 2008. Interviews were held with finalists for the
position on June 16 and 17, 2008. A finalist was conditionally offered the HR Coordinator
position on June 17, 2008, pending background check. During the same time frame,
Jones advised that was she cleared to return to work.
By letter dated June 18, 2008, the Authority advised Jones that her previous position
had not been held open, that it had been posted, and that it had been offered to a
candidate. However, the letter offered Jones the position of Assistant Site Manager within
the Authority at the same salary she had prior to her FMLA leave. On July 1, 2008, the
Authority sent a follow-up letter to Jones, requesting that her medical clearance and signed
offer letter be sent to the Authority by July 3, 2008. The letter also advised Jones that
should the Authority not hear from her by July 3, 2008, the Authority would assume that
she was declining the offered position. On July 3, 2008, Jones sent an e-mail to Achola
advising him that the Assistant Site Manager position was not to her liking and that she
wanted to discuss other options. By letter dated July 3, 2008, Achola advised Jones that
the Authority considered Jones’s email a rejection of the position offered and, therefore,
the Authority considered Jones’s employment terminated, effective July 4, 2008.
The Authority’s Personnel Policy provides that “[n]either this handbook nor any other
[ ] document, confers any contractual right, either express or implied, to remain in the
[Authority’s] employ. Nor does it guarantee any fixed terms and conditions of your
employment. Your employment is not for any specific time and may be terminated at will,
with or without cause and without prior notice, by the [Authority], or you may resign for any
reason at any time.” The Authority’s Personnel Policy provides that “[a]ll employees of the
[Authority] serve at the pleasure of the [Authority], and no employee shall have any vested
rights in his or her employment or in the practices and procedures hereinafter set forth,
except only by specific written contract. Employment is at will.”
Upon receipt of the Authority’s Personnel Policy, Jones signed a statement
indicating, among other things, “. . . I specifically acknowledge that I am hired as an
employee at will, and that I can resign or be discharged from my employment at any time
and for any reason,” that “I understand the policies set forth in this handbook are not
intended to create a contract, nor are they to be construed to constitute contractual
obligations of any kind between the [Authority] and its employees . . .” and that, “[n]othing
in this handbook, or any related document or statement, shall limit the right to terminate
employment at will.”
STANDARD OF REVIEW
Summary judgment is only proper when the Court, viewing the evidence in the light
most favorable to the nonmoving party and drawing all reasonable inferences in the
nonmoving party’s favor, determines the evidence “show[s] that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c); Semple v. Federal Exp. Corp., 566 F.3d 788, 791 (8th Cir. 2009)
(quoting AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987)). “Where 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. 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. at 325.
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 [the] claim should
proceed to trial.” Nitro Distrib., Inc. v. Alitcor, Inc., 565 F.3d 417, 422 (8th Cir. 2009)
(internal quotation marks omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 585-86 (1986)). The nonmoving party is required to demonstrate a
“genuine issue of material fact” that is outcome determinative–“a dispute that might ‘affect
the outcome of the suit under the governing law . . . .’” Bloom v. Metro Heart Group of St.
Louis, Inc., 440 F.3d 1025, 1030 (8th Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1985)). Thus, a “genuine issue” is more than “some metaphysical
doubt as to the material facts,” Nitro Distrib., 565 F.3d at 422 (quoting Matsushita, 475
U.S. at 586-87), and “the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment.”
Bloom, 440 F.3d at 1029-30 (emphasis and quotation marks removed) (quoting Anderson,
477 U.S. at 247-48).
In employment discrimination cases, summary judgment is not disfavored. See
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000). The en banc panel
of the Eighth Circuit Court of Appeals has explained that “panel statements asserting a
different standard of review for summary judgment in employment discrimination cases are
contrary to Supreme Court precedent . . . and should not be followed” Torgerson v. City
of Rochester, No. 09-1131, 2011 WL 2135636, — F.3d —, at *8 (8th Cir. June 1, 2011) (en
banc) (emphasis added). Accordingly, on a motion for summary judgment, “district courts
should not ‘treat [employment] discrimination [cases] differently from other ultimate
questions of fact.’” Id. (quoting Reeves, 530 U.S. at 148); see also Fercello v. County of
Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010) (holding there is no “discrimination case
exception” to the application of summary judgment).
Defendants’ Objection to Jones’s Declaration
The Defendants object to certain portions of the Declaration of Travistene Jones in
Support of Response in Opposition to Defendants’ Motion for Summary Judgment (Filing
No. 23). Specifically, the Defendants argue that paragraphs 6, 7, 10, 11, 16, and 20 of
the Jones Decl. “constitute inadmissible hearsay that should be excluded under Fed. R.
Evid. 802.” (Filing No. 24, Objection to Filing No. 23.) Jones counters by arguing that each
objected-to statement falls within an exception to the hearsay rule. (See Filing No. 26,
Reply Regarding Objection to Filing No. 23.)
The Court need not determine the
admissibility of the objectionable statements in order to rule on the Defendants’ Motion for
Summary Judgment because consideration of the objectionable statements does not alter
the Court’s conclusions. Therefore, the Defendants’ objection will be denied as moot.
Title VII Retaliation Claims
Jones claims that the Defendants engaged in retaliatory conduct in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a) (hereinafter “Title VII”). Title VII,
in relevant part, prohibits an employer from retaliating against an employee “because he
[or she] has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a). Retaliation
is a distinct cause of action under Title VII different from claims of discrimination. Burkhart
v. Am. Railcar Indus., Inc., 603 F.3d 472, 476 (8th Cir. 2010). “To defeat summary
judgment on a retaliation claim, a plaintiff must produce either direct evidence of retaliation,
or create an inference of retaliation under the McDonnell Douglas2 burden-shifting
framework.” Young–Losee v. Graphic Packaging Int'l, Inc., 631 F.3d 909, 912 (8th Cir.
2011). Because Jones has produced no direct evidence of retaliation, her claims are
evaluated under the McDonnell Douglas burden-shifting framework.
Under that framework, first, Jones must establish a prima facie case of retaliation.
To do so Jones “must show that (1) she engaged in protected activity, (2) she suffered an
adverse employment action, and (3) there is a causal connection between the protected
activity and the adverse action.” Burkhart, 603 F.3d at 477. If this prima facie showing is
made, the burden shifts to the Authority to articulate “a legitimate, non-retaliatory reason
for the action [it] took against her . . . .” Id. If the Authority articulates such a reason,
Jones would have to show the Authority’s proffered reason was merely pretextual, thereby
creating the inference of retaliation. Id.
Here, it is undisputed that Jones engaged in a protected activity when she filed an
EEO complaint in April of 2007. As such, the Court’s analysis will focus on the second and
third elements of the prima facie case: whether she suffered an adverse employment
action, and whether there is a causal connection between the protected activity and the
adverse employment action. After a full review of the record, the Court concludes that (A)
Jones failed to show that she suffered an adverse employment action; and (B) Jones failed
to establish a causal connection between the protected activity and the alleged adverse
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Because Jones has failed to establish two of the three prim a facie elem ents the Court need not delve
into the legitim acy of the Authority’s proffered reasons for the actions.
Adverse Employment Action
An adverse employment action under Title VII must be “materially adverse,” not
merely trivial in nature. Burlington North. & Santa Fe RY. Co. v. White, 548 U.S. 53, 68
(2006); see also Jackson v. United Parcel Service, Inc., 548 F.3d 1137, 1142 (8th Cir.
2008). This is because “[t]he antiretaliation provision [of Title VII] protects an individual not
from all retaliation, but from retaliation that produces an injury or harm.” Burlington North.,
548 U.S. at 67. Under this “materially adverse” standard, Jones must demonstrate that the
Authority’s actions “well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Id. Applying the “materially adverse” standard set
forth in Burlington Northern, the Eighth Circuit has held that failure to provide training and
orientation, denying access to needed tools, interfering with the plaintiff’s authority, unfairly
adding negative reports and reprimands to plaintiff’s personnel file, excluding plaintiff from
meetings, and giving the plaintiff a negative evaluation were all insufficient to constitute
adverse employment action, even when considered collectively. Clegg v. Ark. Dep’t of
Corr., 496 F.3d 922, 929-30 (8th Cir. 2007) (“Any harm evidenced in the record was at
most trivial, failing to meet the significant harm standard set forth in Burlington Northern.”).
Here, Jones claims that she suffered retaliation by virtue of the Authority denying
her a promotion to HR Director in May of 20074; hiring Proby in October of 2007; assigning
duties formerly done by her to Proby; excluding her from certain meetings with the AFLAC
Insurance representative; failing to inform her of a change in the Authority’s insurance
carrier; changing the locks on the file room without notifying her; transferring Boone without
Jones did not list this claim in her Com plaint. (See Filing No. 1.) As such, she has failed to plead
a claim of retaliation based on the Authority denying her the position of HR Director in May of 2007. See
Fanning v. Potter, 614 F.3d 845, 851 (8th Cir. 2010) (holding that a claim not pled in com plaint was not
properly before district court on m otion for sum m ary judgm ent). Nevertheless, in the interest of judicial
econom y, the Court will still considered this claim in its analysis.
notifying her; issuing her a written reprimand in December of 2007; suspending her for one
day in January of 2008; and reassigning her to the position of Assistant Site Manager in
June of 2008. (See Filing No. 1, Complaint, ¶¶ 11-19.) The Court concludes that the
retaliatory acts alleged by Jones are immaterial, similar to the acts claimed by the plaintiff
in Clegg. Jones has not demonstrated through evidence that the Authority’s alleged
retaliatory actions harmed or injured her.5 Accordingly, Jones has failed to demonstrate
that she suffered an adverse employment action. See Clegg, 496 F.3d at 928-30; see also
Littleton v. Pilot Travel Ctrs., LLC, 568 F.3d 641, 644 (8th Cir. 2009) (holding that written
reprimand is not actionable unless used to alter terms or conditions of plaintiff’s
employment); Higgins v. Gonzales, 481 F.3d 578, 854 (8th Cir. 2007) (holding minor
changes in job duties are not actionable under Title VII); Box v. Principi, 442 F.3d 692, 696
(8th Cir.2006) (holding a change in job responsibilities “must be more disruptive than a
mere inconvenience or an alteration of job responsibilities” to be actionable).
Jones also claims that she suffered a retaliatory act by virtue of the Authority
constructively discharging from her position as HR Coordinator. “To prove a case of
constructive discharge, [Jones] must show (1) a reasonable person in h[er] situation would
find the working conditions intolerable, and (2) the [Authority] intended to force h[er] to
quit.” Carpenter v. Con-Way Cent. Express, Inc., 481 F.3d 611, 616 (8th Cir. 2007). “The
intolerability of working conditions is judged by an objective standard, not the employee’s
subjective feelings[.]” Tatom v. Georgia-Pacific Corp., 228 F.3d 926, 932 (8th Cir. 2000).
Jones’ claim s fall short even of those set forth by the plaintiff in Clegg. Jones has not claim ed that
she ever suffered a dock in pay, was denied access to tools necessary to her work, or was given an unjustified
reprim and. Jones has also failed to adequately state how the position of Assistant Site Manager was a
dim inution in title or position.
As such, “the question is whether working conditions were rendered so objectionable that
a reasonable person would have deemed resignation the only plausible alternative.” Id.
Here, Jones has failed to offer evidence that satisfies the first element. Jones has
provided no evidence that a reasonable person in her situation would have found the
working conditions at the Authority intolerable. In her email to Achola declining the position
of Assistant Site Manager, Jones stated that she “[was] available to discuss other positions
or positions that may become available[,]” intimating that Jones was willing to return to
work at the Authority in a role other than Assistant Site Manager. (Filing No. 21-2, Ex. P,
Jones Email.) This precludes a determination that a reasonable person would have found
the working conditions at the Authority were generally intolerable. Therefore, Jones must
produce evidence that a reasonable person would have found the working conditions of
the Assistant Site Manager position were intolerable. She has made no such showing.
Jones has not provided the Court with any evidence concerning the duties and
responsibilities of the position. Even assuming that the position was a demotion from HR
Coordinator, this fact alone does not support an inference that a reasonable person would
have found the working conditions intolerable. See id. (noting “[t]he intolerability of working
conditions is judged by an objective standard, not the employee's subjective feelings”).
In order to make a prima facie case of retaliation, Jones must produce evidence of
a causal connection between the protected activity and the alleged adverse actions. See
Jackson v. United Parcel Serv., 548 F.3d 1137, 1142 (8th Cir.2008) (holding that to survive
summary judgment plaintiff must show causal connection between protected activity and
adverse employment action). Generally, a plaintiff must show more than a mere temporal
connection between the protected conduct and the adverse employment action to present
a genuine issue of fact on the element of causation. Clark County Sch. Dist. v. Breeden,
532 U.S. 268, 273 (2001) (per curiam). In other words, an adverse action that occurs after
an employee engages in a protected activity may be evidence of causation, but alone it is
insufficient to establish causation. Back v. Danka Corp., 335 F.3d 790, 792 (8th Cir. 2003).
Jones argues that causation can reasonably be inferred from the temporal proximity
of her EEO complaint and the denial of the promotion. Specifically, Jones argues that
causation can be inferred because she was not hired for the HR Director position “a month
after the [EEO] complaint.” (Filing No. 22, Pl. Br., p. 12.) The Eighth Circuit, however, has
previously held that the passing of one month between an EEO complaint and an adverse
employment action did not establish a prima facie case of causation. Gagnon v. Sprint
Corp., 284 F.3d 839, 851-52 (8th Cir.2002) (holding that “[the plaintiff] fail[ed] to prove any
causal connection between his EEOC claim of discrimination and the [alleged adverse
employment action]“ when the alleged adverse employment action occurred one month
after the defendant employer filed its response to his EEOC claim.) Therefore, in order to
survive summary judgment Jones must point to something more than the temporal
proximity between her EEO complaint and the alleged adverse employment actions. See
e.g., Bradley v. Widnall, 232 F.3d 626, 633 (8th Cir.2000) (holding plaintiff “must do more
than point to the temporal connection between the filing of her first complaint and the
[defendant’s] allegedly adverse actions” to establish causation).
Other than the temporal proximity of the events, Jones has failed to point the Court
to any evidence that establishes a causal connection between her EEO complaint and the
alleged adverse employment action. (See Filing No. 22, Pl. Br., p. 12-13 (limiting the
discussion on issue of causation to temporal proximity of events).) Accordingly, the Court
finds that, as a matter of law, Jones has failed to make a prima facie showing of causation
with regard to the denial of promotion in May of 2007.
The Court finds it unnecessary to consider the element of causation as it relates to
the alleged adverse employment actions that occurred after May of 2007 because an
inverse relationship exists between the passage of time and the inference of causation.
Specifically, the other alleged adverse actions occurred five to fifteen months after Jones’s
EEO complaint (between September of 2007 and July of 2008), virtually eliminating any
inference of causation based on temporal proximity. See Kipp v. Missouri Highway and
Transp. Comm'n, 280 F.3d 893, 897 (8th Cir.2002) (holding “the interval of two months
between the complaint and [plaintiff’s] termination so dilutes any inference of causation that
we are constrained to hold as a matter of law that the temporal connection could not justify
a finding in [plaintiff’s] favor on the matter of causal link”).
To state a claim under 42 U.S.C. § 1983, Jones must show that Achola, her
supervisor, acted “under color of state law” and that he deprived her of rights, privileges,
or immunities secured by the Constitution or laws of the United States. Luckes v. County
of Hennepin, Minn., 415 F.3d 936, 939 (8th Cir. 2005). “[G]enerally, a public employee
acts under color of state law while acting in his official capacity or while exercising his
responsibilities pursuant to state law.” Roe v. Humke, 128 F.3d 1213, 1215 (8th Cir. 1997).
Here, it is undisputed that Achola acted under color of state law while performing his official
To the extent that the Com plaint (Filing No. 1) can be construed as asserting a claim under § 1981,
the claim m ust be dism issed. See Jett v. Dallas Ind. Sch. Dist., 491 U.S. 701, 735 (1989) (holding § 1983
provides for the exclusive dam ages rem edy for the violation of § 1981 by a state actor).
duties as the Interim HR Director for the Authority. As such, the only issue is whether
Achola deprived Jones of her rights under the Constitution or federal law.
As an initial matter, Jones’s claim fails because she had no property interest in
continued employment with the Authority. In order for an employee to have a property
interest in continued employment there must be an agreement, either explicit or implied,
giving rise to the expectation of continued employment. Perry v. Sindermann, 408 U.S.
593, 602 (1972). Here, there was no explicit agreement of continued employment. To the
contrary, the Authority’s employee handbook clearly stated that employment may be
“terminated at will, with or without cause and without prior notice . . . .” (Filing No. 21-3,
Ex. A, Proby Aff., p. 2.) Further, it is undisputed that Jones received a copy of the
handbook and signed statement acknowledging that she was aware of the at will
employment policy of the Authority. Jones attempts to argue that the letter offering her the
Assistant Site Manager position created an implied agreement of continued employment.
Jones has not demonstrated that she ever accepted the Authority’s offer. As such, Jones
must point to actions that implied an agreement of continued employment after her
rejection of the Assistant Site Manager position. She has made no such showing.
Therefore, the Court concludes that Jones has failed to establish that she had a
protectable property interest in continued employment.
Moreover, even if Jones had a property interest in continued employment, Jones’s
claim must fail because she has failed to articulate anything more than a de minimis
property deprivation. Jones claims that “the failure and or refusal of George Achola to
discuss the position of Assistant Site Manager being offered to her prior to the July 3,
2008, letter terminating her employment was a violation of due process.” (Filing No. 22,
Pl. Br., p. 15.) The Supreme Court has held that a de minimis property deprivation does
not implicate Due Process concerns. Cf Goss v. Lopez, 419 U.S. 565, 576 (holding Due
Process Clause concerns implicated “as long as a property deprivation is not de minimis”)
(emphasis added). As noted above, Jones’s reassignment would not have affected her
salary or benefits. Therefore, her reassignment merely affected her job responsibilities.
Such a property deprivation is categorically beneath the level of concerns implicated by the
Due Process Clause. In other words, the Due Process Clause does not guarantee every
employee the right to discuss a transfer with his or her supervisor.
Upon reviewing the pleadings and the exhibits submitted by the parties, and viewing
them in the light most favorable to Jones, the Court concludes that, as a matter of law,
Jones has failed to make a prima facie showing of retaliation under Title VII. Accordingly,
IT IS ORDERED:
The Defendants’ Motion for Summary Judgment (Filing No. 19) is granted;
Plaintiff Travistene Jones’s claims against Defendants Omaha Housing
Authority and Stanley Timm are dismissed, with prejudice;
Defendants’ Objections to Paragraphs No. 6, 7, 8, 9, 10, 11, 16 and 20 of
Filing No. 23 (Filing No. 24) are denied as moot; and
A separate judgment will be entered.
DATED this 14th day of July, 2011.
BY THE COURT:
s/Laurie Smith Camp
United States District Judge
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