Hopkins v. County of Douglas, Nebraska

Filing 42

MEMORANDUM AND ORDER - The Motion for Summary Judgment (Filing No. 30 ) submitted by Defendant County of Douglas, Nebraska, is granted; All pending motions are denied as moot; Plaintiffs Complaint is dismissed, with prejudice; and A separate Judgment will be entered. Ordered by Chief Judge Laurie Smith Camp. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DOROTHY L. HOPKINS,
Plaintiff,
v.
COUNTY OF DOUGLAS,
NEBRASKA, a political
subdivision of the State of Nebraska,
Defendant.

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CASE NO. 8:11CV365

MEMORANDUM
AND ORDER

This matter is before the Court on the Defendant’s Motion for Summary Judgment
(Filing No. 30). For the reasons discussed below, the Motion will be granted.
PROCEDURAL HISTORY
Plaintiff Dorothy L. Hopkins (“Hopkins”) brought this action against County of
Douglas, Nebraska (the “County”), alleging that she was subjected to discrimination based
on her age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et
seq. (“ADEA”), and the Nebraska Age Discrimination in Employment Act, Neb. Rev. Stat.
§ 48-1001 et seq. (“NADEA”); and that she was the victim of retaliation in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and the Nebraska
Fair Employment Practice Act, Neb. Rev. Stat. § 48-1101 et seq. (“FEPA”). (Amended
Complaint, Filing No. 5.)
More specifically, Hopkins alleges that the County denied her a promotion to the
position of Administrative Sergeant in March 2009, and instead filled the position with a 29year-old applicant. (Id. at ¶ 14.) After Hopkins filed a charge of age discrimination with the
United States Equal Employment Opportunity Commission (“EEOC”) and the Nebraska
Equal Opportunity Commission (“NEOC”), the County allegedly retaliated against her in

four respects: (1) not scheduling her for work as an alternate Administrative Sergeant, (2)
not paying her overtime wages, (3) entertaining false allegations that she engaged in
misconduct, and (4) eliminating her status as an alternate Administrative Sergeant, all
leading to her decision to take early retirement. (Id. at ¶¶ 16-17.)
The parties’ briefs (Filing Nos. 31, 33, 35) and indexes of evidence (Filing Nos. 32,
34) provide the Court with a plethora of information, all of which has been considered, but
much of which is unnecessary to recite or discuss for the purpose of resolving the pending
motion. The Court will summarize those undisputed facts leading the Court to conclude
that summary judgment should be entered in the County’s favor.
SUMMARY OF MATERIAL FACTS
The County operates the Douglas County Correctional Center (“DCCC”) through the
Douglas County Department of Corrections (“DCDC”). Hopkins was employed by DCDC
from 1989 to July 30, 2010, and she held the position of Sergeant from April 3, 2001, until
her retirement on July 30, 2010. At all times relevant to this action, Jeffery Newton
(“Newton”) was the Director of DCDC and had final authority for DCDC policies,
procedures, and employment decisions.
In 2004, DCCC created a temporary specialty assignment called Administrative
Sergeant. The Administrative Sergeant position was created due to an expansion of
DCCC’s jail facilities, and persons holding the Administrative Sergeant position were
expected to relieve the Watch Commander and Lieutenants of some of their administrative
duties, including drafting schedules, taking phone messages, and making schedule
changes to accommodate employee leave requests. Administrative Sergeants did not
have authority to grant employees paid time off, and most of their tasks required approval

of the Watch Commander. Assignment to an Administrative Sergeant position resulted in
no increase in a Sergeant’s salary, benefits, or seniority.
During all times relevant to this action, DCCC A-Shift Administrative Sergeants
supervised two to three officers, while A-Shift Housing Unit Sergeants supervised up to ten
officers. Administrative Sergeant duties involved the processing of paperwork and
performance of other administrative tasks, while the duties of Housing Unit Sergeants
required more direct hands-on supervision of employees, overseeing of inmate and staff
security, and ensuring that care was provided to inmates.
On January 22, 2009, Newton issued a written order authorizing DCDC to advertise
for several temporary specialty assignments including an Administrative Sergeant
assignment. The only advertised requirement for an employee’s assignment to the
Administrative Sergeant position was the rank of Sergeant. The advertisement stated that
the highest scored candidate would serve as the primary person assigned to the position,
and all other applicants would serve as alternates to back fill the position when the primary
person was away on leave, or if the position was vacated.
In March 2009, two DCDC Lieutenants and a DCDC Captain served on the interview
panel for the A-Shift Administrative Sergeant assignment. As a panel, they interviewed
four applicants: Sergeants David Aldrich (age 41), Dorothy Hopkins (age 641), Walter
Nurton (age 56), and William Stenneche (age 32). The Captain drafted questions used to
interview applicants, after seeking input from the Lieutenants, and the questions did not
indicate any age bias. Hopkins admits there was nothing about the interview process itself
that was unfair or discriminatory. (Filing No. 33 at 13.)
1

There is inconsistency in the record regarding the Plaintiff’s age, but it is
undisputed that she was in her early sixties.

At the conclusion of all the interviews for temporary specialty assignments, one of
the panel members collected score sheets and prepared a master spread sheet with the
results. With respect to the assignment of A-Shift Administrative Sergeant, Sergeant
Stenneche had the highest total interview score followed by Sergeant Nurton, and a tie
between Sergeants Aldrich and Hopkins.
On April 16, 2009, Newton issued an order appointing the successful applicants for
the temporary specialty assignment of Administrative Sergeant for all three shifts. Relevant
to this action, he appointed Sgt. William Stenneche as the A-Shift Administrative Sergeant.
It was DCDC’s general practice to have Alternate Administrative Sergeants fill in during an
Administrative Sergeant’s absence in a hierarchy based on their unsuccessful interview
scores. In practice, the person that scored the second highest points was eligible to serve
before the person with the third highest points, and so forth.
Hopkins filed her first complaint with the NEOC in December 2009 alleging
discrimination, including age discrimination, regarding the March/April 2009 Administrative
Sergeant selection and assignment process. DCDC was first notified of this filing in late
December 2009. The County responded to the charge of discrimination on February 4,
2010.
In January 2010, a DCDC Lieutenant, in consultation with a DCDC Captain,
changed the Administrative Sergeant rotation schedule and began scheduling Sergeant
Aldrich as the primary Alternate Administrative Sergeant for the A-shift, in Sergeant
Stenneche’s absence.

As part of that change, Hopkins was eligible to serve as

Administrative Sergeant, but only when Sergeants Stenneche and Aldrich both were not
on duty. Hopkins served as Administrative Sergeant nineteen times between January 17

and June 29, 2010. When this change in the rotation schedule was made, neither the
Lieutenant nor the Captain involved in making the change was aware that Hopkins filed a
claim of discrimination with the NEOC.
On April 23, 2010, Hopkins voluntarily applied for and was awarded overtime. When
she applied for the overtime, she designated a preference to work in a then-available
Administrative Sergeant position. Pursuant to a governing Union Contract, an employee
could designate a preference of location to work overtime, and management would try to
accommodate that request; however, management retained the ability to schedule
personnel according to the needs of the DCDC and an employee’s requested designation
was not guaranteed.

When Hopkins arrived for duty, she found the Administrative

Sergeant post was filled by Sergeant Stenneche who had cancelled his leave. Hopkins
was paged over the DCDC intercom system and she heard the page before she left the
building, but did not respond. Instead, she went home. DCDC considered her action to
be insubordinate and in violation of DCDC Policies and Procedures, that required
personnel reporting for overtime to remain available for assignment until excused. On or
about April 24, 2010, Hopkins submitted a request for payment for two hours of overtime
for April 23, 2010. A DCDC Lieutenant denied payment, because Hopkins left DCCC
without working on April 23, 2010, although her overtime had not been cancelled.
Hopkins filed her second complaint with the NEOC in June 2010, alleging that the
County retaliated against her by not scheduling her for regular hours as an Alternate
Administrative Sergeant after January 17, 2010, and by denying her two hours of overtime
pay in April 2010. DCDC was first notified of this filing in late June 2010.
Hopkins received documented counseling on June 29, 2010, for allegedly canceling

her overtime with less than two hours notice on April 23, 2010, though she contends she
thought she could go home when the Administrative Sergeant assignment was not
available. She also received documented counseling for alleged misuse of sick leave on
March 20, 2008, March 17, 2009, October 7, 2009, and February 2, 2010, though she
denies having misused sick leave. She received documented counseling on November
24, 2009, for allegedly awarding overtime inappropriately while acting as Administrative
Sergeant, though she denies having awarded overtime inappropriately. She received
documented counseling on February 2, 2010, for allegedly moving officers to unassigned
duty posts without authorization on October 19, 2009, and December 7, 2009, though she
denies having moved officers to unassigned duty posts.
On June 29, 2010, a DCDC Captain notified Newton of allegations that Hopkins
manipulated the A-Shift schedule without authorization while serving as Administrative
Sergeant. Hopkins admitted that in June 2010 she used her position as an Alternate
Administrative Sergeant to make significant scheduling changes, but denied that
permission was required for such changes. At the same time, Newton also learned of more
allegations of misconduct against Hopkins. First, on June 22, 2010, while speaking of her
impending retirement, Hopkins allegedly stated to a DCDC Sergeant that when she left she
planned to take people with her. Second, on June 22, 2010, Hopkins allegedly violated
DCDC policy during two planned use-of-force situations, putting subordinate officers at risk
of harm. Hopkins denied those two allegations.

Newton assigned the Office of

Professional Responsibility to investigate all the allegations, and Hopkins was notified that
she was temporarily removed as Alternate Administrative Sergeant pending the
investigation.

The investigation into Hopkins’s alleged misconduct was never completed, because
in early July 2010 Newton learned of Hopkins’s intent to retire from her employment with
DCDC on July 30, 2010. Newton ordered the investigation closed pending Hopkins’s
retirement. Hopkins was never disciplined, counseled or subjected to any other adverse
action based on the allegations, and she retired on July 30, 2010.
Hopkins amended the charge of retaliation in September 2010 to allege that DCDC
retaliated against her by initiating an investigation into her alleged unauthorized schedule
changes, by temporarily removing her from eligibility to serve as an Alternate
Administrative Sergeant, and by forcing her to retire. DCDC was first notified of that filing
in late September of 2010. The NEOC and EEOC issued noticed to Hopkins on or about
July 26, 2011, and August 11, 2011, entitling her to commence her actions within ninety
days of receipt of the notices, and she timely filed this action on October 27, 2011.
STANDARD OF REVIEW
“Summary judgment is appropriate when the record, viewed in the light most
favorable to the non-moving party, demonstrates there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.” Gage v. HSM Elec. Prot.
Servs., Inc., 655 F.3d 821, 825 (8th Cir. 2011) (citing Fed. R. Civ. P. 56(c)). The court will
view “all facts in the light most favorable to the non-moving party and mak[e] all reasonable
inferences in [that party's] favor.” Schmidt v. Des Moines Pub. Sch., 655 F.3d 811, 819
(8th Cir 2011). “[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.
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.'” Torgerson v. City of Rochester, 643 F.3d 1031, 1042
(8th Cir.) (quoting Matsushita, 475 U.S. at 586-87)), cert. denied, 132 S. Ct. 513 (2011).
“'[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 Cnty.,
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.'” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v. Harris, 550
U.S. 372, 380 (2007)). 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”–where there is no
“'genuine issue for trial'”–summary judgment is appropriate. Matsushita, 475 U.S. at 587
(quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

DISCUSSION
I. The County’s Failure to Assign Hopkins to the Administrative Sergeant Position
Was Not an Adverse Employment Action
Because Hopkins presented no direct evidence2 of age discrimination, her claims
under the ADEA and NADEA are considered under the burden-shifting analysis of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The ADEA makes it “unlawful for an employer to ... discriminate against any
individual with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1).
The McDonnell Douglas framework applies. Rahlf v. Mo–Tech Corp., 642
F.3d 633, 637 (8th Cir. 2011). In order to establish a prima facie case under
the ADEA, [a plaintiff] must show: (1) he is over 40; (2) he was qualified for
the position; (3) he suffered an adverse employment action; and (4)
substantially younger, similarly-situated employees were treated more
favorably. Anderson v. Durham D & M, L.L.C., 606 F.3d 513, 523 (8th
Cir.2010).
Onyiah v. St. Cloud State University, 684 F.3d 711, 719 (8th Cir. 2012).
If a plaintiff establishes a prima facie case of age discrimination, the burden of
production shifts to the defendant to “articulate a legitimate, nondiscriminatory reason” for
its action. Id. (quoting Rahlf v. Mo–Tech Corp., 642 F.3d 633, 637 (8th Cir. 2011)). If the
defendant does so, the plaintiff must show that the proffered reason was pretext for
discrimination. At all times, the plaintiff bears the ultimate burden of persuasion that “age
was the ‘but-for’ cause” of the adverse employment action. Id. (citing Rahlf, 642 F.3d at
637, and Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009)).

2

“Direct evidence in this context is not the converse of circumstantial evidence ... [but] is
evidence ‘showing a specific link between the alleged discriminatory animus and the
challenged decision, sufficient to support a finding by a reasonable fact finder that an
illegitimate criterion actually motivated’ the adverse employment action.” Torgerson v. City
of Rochester, 643 F.3d 1031, 1044 (8th Cir.2011) (en banc).

“Nebraska's age discrimination law is interpreted in conformity with the ADEA.”
Schultz v. Windstream Communications, Inc., 600 F.3d 948, 953 n.2 (8th Cir. 2010) (citing
Humphrey v. Neb. Pub. Power Dist., 243 Neb. 872, 503 N.W .2d 211, 217 (1993)).
Here, Hopkins has shown that she was over forty years of age; she was qualified
for the position of Administrative Sergeant; and a substantially younger and similarly
situated employee was selected for that position. But she has not shown that she suffered
an adverse employment action.
An adverse employment action is “a term used throughout Title VII jurisprudence
to denote a significant injury or harm.” Lisdahl v. Mayo Foundation, 633 F.3d 712, 720
(2011) (citing Clegg v. Ark. Dep't of Correction, 496 F.3d 922, 926 (8th Cir.2007) (defining
“adverse employment action” as a “tangible change in working conditions that produces
a material employment disadvantage” such as termination, cuts in pay or benefits, or
changes that affect an employee's future career prospects, but not “minor changes in
duties or working conditions, even unpalatable or unwelcome ones”)).
When the County selected another employee to serve in the position of A-Shift
Administrative Sergeant in April 2009, Hopkins did not lose any pay or benefits, and she
has not presented plausible evidence that the County’s action was likely to affect her future
career prospects. Accordingly, she has failed to present a prima facie case of age
discrimination in violation of the ADEA or NADEA.
II.

Hopkins Did Not Suffer any Materially Adverse Action that would Deter a

Reasonable Employee from Making a Charge of Employment Discrimination
Because Hopkins presented no direct evidence of retaliation, her retaliation claims
also are analyzed under the McDonnell Douglas burden-shifting analysis discussed above.

To establish a prima facie case of retaliation under Title VII3, a she must demonstrate (1)
she engaged in statutorily protected activity, (2) she suffered an adverse employment
action, and (3) a causal connection exists between the two. Gilbert v. Des Moines Area
Community College, 495 F.3d 906, 917 (8th Cir. 2007).
The anti–retaliation provision of Title VII protects individuals “from retaliation
that produces an injury or harm.” Burlington N. & Santa Fe Ry. Co. v. White
(White), 548 U.S. 53, 126 S.Ct. 2405, 2414, 165 L.Ed.2d 345 (2006). The
standard is an objective one, requiring the plaintiff to demonstrate “a
reasonable employee would have found the challenged action materially
adverse,” and the employer's action “might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Id. at 2415
(internal quotation marks omitted).
Gilbert, 495 F.3d at 917.
The County does not dispute that Hopkins engaged in protected activity when she
filed her NEOC charges, but does dispute that she suffered any adverse employment
action, or that there was a causal connection between her protected activity and any of the
County’s actions of which she complains.
Actionable retaliation must be “materially adverse.” Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 62-68 (2006) (noting that Title VII's anti-retaliation provision
“protects an individual not from all retaliation, but from retaliation that produces an injury
or harm,” and that an employee's decision to report discrimination “cannot immunize that
employee from those petty slights or minor annoyances that often take place at work and

3

NFEPA prohibits employers from retaliating against employees for “oppos[ing] any
practice or refus[ing] to carry out any action unlawful under federal law or the laws of this
state.” Neb.Rev.Stat. § 48–1114(3). “In construing the NFEPA, Nebraska courts have
looked to federal decisions, 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).

that all employees experience”).
Here, Hopkins complains that (1) in January 2010, her opportunities to serve as the
Alternate Administrative Sergeant were more limited than they had previously been, though
she still served in that post from time to time; (2) she did not receive two hours of overtime
pay for appearing for work on April 23, 2010, when the Administrative Sergeant cancelled
his vacation leave; (3) Newton denied her the opportunity to serve as an Alternate
Administrative Sergeant beginning July 29, 2010, pending investigation of allegations that
she violated certain DCDC policies; and (4) Newton never returned her to an Alternate
Administrative Sergeant position. Hopkins contends that the County’s alleged acts of
retaliation led to her constructive discharge.
To prove a case of constructive discharge, a plaintiff must show (1) a
reasonable person in her situation would find the working conditions
intolerable, and (2) the employer intended to force her to quit. An employee
must, however, grant her employer a reasonable opportunity to correct the
intolerable condition before she terminates her employment.
Anda v. Wickes Furniture Co., 517 F.3d 526, 534 (8th Cir.2008) (quotations, alterations,
and internal citations omitted).
Here, the County did not subject Hopkins to materially adverse actions causing
injury or harm such that the actions might have dissuaded a reasonable worker from
making or supporting a charge of discrimination. No reasonable person in Hopkins
situation would find her working conditions intolerable, and no reasonable jury could
conclude otherwise.
Further, the uncontroverted evidence shows that Hopkins had many formal channels
within DCDC through which she could voice her grievances and seek redress, and she
chose to use none of them. The uncontorverted evidence also shows that Hopkins

voluntarily took retirement effective July 30, 2010, because she wanted to retire.
The Eighth Circuit Court of Appeals repeatedly has noted that “the
employment–discrimination laws have not vested in the federal courts the authority to sit
as super–personnel departments reviewing the wisdom or fairness of the business
judgments made by employers, except to the extent that those judgments involve
intentional discrimination.” Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th
Cir.1995). Here, Hopkins has not met the burden of demonstrating a prima facie case of
age discrimination or retaliation, and the Court will not act as a super-personnel
department to review the wisdom or fairness of the management decisions made by the
County.
Accordingly,
IT IS ORDERED:
1.

The Motion for Summary Judgment (Filing No. 30) submitted by Defendant
County of Douglas, Nebraska, is granted;

2.

All pending motions are denied as moot;

3.

Plaintiff’s Complaint is dismissed, with prejudice; and

4.

A separate Judgment will be entered.

DATED this 13th day of March, 2013.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge