Faulkner v. Douglas County, Nebraska

Filing 42

MEMORANDUM AND ORDER - The Motion for Summary Judgment, ECF No. 26 , submitted by Defendant Douglas County, Nebraska, is granted. The Plaintiff's Complaint, ECF No. 1 , is dismissed, with prejudice. A separate Judgment will be entered. Ordered by Chief Judge Laurie Smith Camp. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LINDA L. FAULKNER, an individual,
Plaintiff,

8:15CV303

vs.
MEMORANDUM
AND ORDER

DOUGLAS COUNTY, NEBRASKA, a
political subdivision of the State of
Nebraska,
Defendant.

This matter is before the Court on the Motion for Summary Judgment (ECF No.
26) submitted by Defendant Douglas County, Nebraska, a Political Subdivision of the
State of Nebraska (“Douglas County”). For the reasons discussed below, the Motion
will be granted.
FACTS
The following facts are those stated in the parties’ briefs, ECF Nos. 27, 36, and
38, supported by pinpoint citations to evidence in the record, ECF Nos. 28, 29, 30 and
37, and admitted or not properly resisted by the opposing party as required by NECivR
56.11 and Federal Rule of Civil Procedure 56.

1

See NECivR 56.1(b)(1) (effective December 1, 2015):
The party opposing a summary judgment motion should include in its brief a concise
response to the moving party’s statement of material facts. The response should
address each numbered paragraph in the movant’s statement and, in the case of any
disagreement, contain pinpoint references to affidavits, pleadings, discovery responses,
deposition testimony (by page and line), or other materials upon which the opposing party
relies. Properly referenced material facts in the movant’s statement are considered
admitted unless controverted in the opposing party’s response.

At all relevant times, Douglas County operated the Douglas County Correctional
Center (“DCCC”) through the Douglas County Department of Corrections (“DCDC”), and
Dr. Mark Foxall (“Foxall”) was DCDC’s Director.
Plaintiff Linda L. Faulkner (“Faulkner”) is an African-American female, who was
age 56 at the time of the filing of her Complaint in 2015. Faulkner worked at the DCCC
from April 22, 2003, to January 31, 2014, and at all relevant times was a Correctional
Officer II (“COII”). DCDC’s job description for a COII included among the primary job
duties and responsibilities the maintenance of custody and control of inmates, including
the restraint of combative or disruptive inmates through use of necessary force. The job
description further provided that officers are required to physically engage inmates, and
must remain physically fit and without medical conditions that would prevent them from
subduing or restraining inmates who pose a threat to officers or other inmates.
The DCDC mandated that those holding the position of COII meet specific jobrelated physical requirements, including the ability to stand, walk, sit, climb stairs, run,
kneel, stoop, crouch, and move quickly from kneeling to standing positions. The DCDC
also required that COIIs maintain the ability to lift, grip, push, and pull certain minimal
weights and forces, including the ability to lift twenty pounds frequently, lift up to 350
pounds occasionally as part of a team lift, push up to 100 pounds and pull up to 80
pounds occasionally, and push/pull up to 40 pounds on a frequent to occasional basis.
Faulkner was aware that inmate contact was a COII a job requirement, as was
the ability to intervene physically to stop fights between inmates, and the ability to
restrain combative persons.
2

On August 6, 2012, Faulkner was involved in an inmate altercation. She suffered
a left shoulder strain, hand contusion, contusion of the lumbar region, and a lumbar
strain. The incident was reported to the Nebraska Workers Compensation Court as an
occupational injury. Faulkner received medical care, worked intermittent light duty2 from
August 12 to 20, and was released to full work duty with no limitations on August 23,
2012.

Faulkner was involved in another inmate altercation on September 4, 2012,

resulting in another report of occupational injury to the Nebraska Workers
Compensation Court, in which she alleged that she injured her upper back, left face,
and shoulder. On October 26, 2012, Faulkner underwent left shoulder surgery and was
absent from work until on or about November 26, 2012, when she was released by her
treating physician, Dr. Jonathon E. Buzzell (“Dr. Buzzell”), with permission to perform
sedentary work with a ten-pound lifting restriction.
On January 16, 2013, Dr. Buzzell prescribed physical therapy for Faulkner,
because she suffered from cervical spondylosis with radiculopathy. On January 17,
2013, Dr. Buzzell noted that Faulkner was experiencing soreness in her neck, and
diminished cervical range of motion.

Dr. Buzzell also noted that x-rays revealed

degenerative disc disease in Faulkner’s cervical spine, and he referred her to a spinal
surgeon, Dr. Bradley S. Bowdino (“Dr. Bowdino”). Dr. Bowdino ordered an MRI that

2

Foxall defines “light duty” through reference to DCDC Policy No. 1.3.108, ECF No. 28-5, Page
ID # 264-67, and Fraternal Order of Police, Lodge No. 8, Collective Bargaining Agreement (“CBA”), ECF
No. 28-4, Page ID # 256-57, 260-61. The documents indicate that the purpose of temporary light duty is
to permit union and nonunion personnel who are temporarily unable to perform all assigned duties due to
injury or illness an opportunity to work in specified light-duty positions. Both documents limit light duty to
a maximum of 180 days. Priority is given to individuals with work-related injuries. ECF No. 28-5, Page ID
# 265. Certain positions at DCCC are considered light duty positions. Id. at Page ID #266.

3

revealed multilevel bilateral neural foraminal stenosis and degenerative disc disease in
Faulkner’s cervical spine. On or about April 11, 2013, another physician, Dr. Alicia
Feldman (“Dr. Feldman”), met with Faulkner and noted that Faulkner would undergo an
epidural steroid injection in her cervical spine, administered by Dr. James Devney (“Dr.
Devney”), and could benefit from a functional capacity exam (“FCE”) to determine
permanent work restrictions.
On April 24, 2013, Dr. Buzzell noted that Faulkner’s shoulder had reached
maximum medical improvement and that Faulkner’s work was not limited as to her
shoulder. On May 3, 2013, Dr. Feldman released Faulkner to return to work with “light
duty” restrictions, and referred Faulkner for an FCE to determine her permanent work
restrictions related to her cervical spine. On May 20, 2013, Faulkner saw Neal
Wachholtz, P.T., (“Wachholtz”) for an FCE. Based on the FCE, Faulkner was given the
following permanent restrictions:

Lifting objects to shoulder level restricted to 20

pounds on an occasional basis and ten pounds on a frequent basis; overhead lifting
restricted to 15 pounds or less on an occasional basis; no prolonged or repetitive
overhead work; and no pushing or pulling greater than 40 pounds. Dr. Feldman
approved those permanent work restrictions on May 28, 2013.
Faulkner continued to work light duty until July 6, 2013, when Foxall removed
Faulkner from light duty status, concluding that she used the maximum allowable
number of days of light duty pursuant to the CBA3.

3

The relevant provisions in the Collective Bargain Agreements between Douglas County and the
F.O.P. Lodge No. 8 for the period of July 1, 2010, to June 30, 2013, ECF No. 28-4, Page ID 254-57, and

4

On August 27, 2013, Foxall gave Faulkner a letter notifying her that her
permanent FCE limitations were inconsistent with the physical requirements of a COII
position, and that the medical information provided to DCDC indicated she was unable
to perform the essential functions of the job. Foxall suggested that Faulkner advise him
if she believed some type of accommodation would allow her to perform the essential
functions of the COII position, or some other position with Douglas County.
On August 28, 2013, the Douglas County workers compensation coordinator sent
Faulkner a letter stating that Douglas County no longer would pay her temporary total
disability payments or provide medical treatment, because Faulkner reached maximum
medical improvement for her work-related shoulder injury, and because her treating
physicians agreed her cervical spine condition was not work-related.
In September 2013, Faulkner sought care from Dr. Matthew P. West (“Dr. West”)
due to worsening neck pain. He referred her to Dr. John Hain (“Dr. Hain”) to discuss
surgical options. Dr. Hain recommended an anterior cervical discectomy and fusion at
C5-C7.
On October 7, 2013, Faulkner attended a Douglas County Employee Review
Committee meeting, represented by her workers compensation attorney.

At the

meeting, Faulkner asked to be assigned to DCDC central control or lobby indefinitely, or
with the Douglas County Department of Motor Vehicles, as an accommodation for her

the period of July 1, 2013, to June 30, 2017, id. at Page ID 258-261, are the same. Both COBs provide:
“Light duty assignments may be made for a period of up to 90 calendar days. An additional 90 days may
be available by submitting a written request to the Directors or his/her designee.” Id. at Page ID 256, 260.

5

medical status.

On October 11, 2013, Faulkner underwent the anterior cervical

discectomy and fusion surgery as recommended by Dr. Hain.
On January 2, 2014, Faulkner filed a workers compensation claim in the
Nebraska Workers Compensation Court.
On January 22, 2014, Foxall denied Faulkner’s request for an extension of her
injured-on-duty (“IOD”) benefits, despite a recommendation for the extension by the
DCDC’s IOD Committee. Foxall relied on the opinions of two physicians, Dr. Buzzell
and Dr. Chris Cornett (“Dr. Cornett”), that Faulkner’s cervical spine complaints were not
work-related.
On January 23, 2014, Foxall advised Faulkner that DCDC would conduct a
hearing on January 31, 2014, to determine whether Faulkner should be separated from
employment due to disability.

At that time, Faulkner had received light duty

assignments at DCDC for a total of 1,296.83 hours4. On January 31, 2014, the hearing
took place. Faulkner was asked whether she could perform the essential duties of a
corrections officer, and she replied, “Not right now.” Faulkner’s employment with DCDC
was terminated. No positions were available at Douglas County Department of Motor
Vehicles.
On February 3, 2014, Faulkner began physical therapy to improve her neck
function. On February 18, 2014, Brianne J. Walbrecht, P.T., D.P.T., recommended that

4

The CBA limits light duty assignments for temporary disability to a maximum of 180 calendar
days. ECF No. 28-4, Page ID 256-57, 260-61. The Court infers that some calendar days Faulkner
worked on light duty status were less than eight work hours in length.

6

Faulkner cease physical therapy due to the increased pain suffered with attempts to
improve her soft tissue mobility.
On April 8, 2014, Faulkner met with Dr. Meryl A. Severson (“Dr. Severson”) in
connection with a social security disability claim. Dr. Severson opined that Faulkner’s
degenerative cervical disc disease was permanent and that she likely had received the
maximum benefit of medical treatment. He also concluded that Faulkner was unable to
lift or carry more than ten pounds, and unable to work with her arms above shoulder
level.
On April 22, 2014, Dr. Hain ordered another FCE for Faulkner. The second FCE
conducted on April 24, 2014, by Terry Nelson, P.T. (“Nelson”), restricted Faulkner’s
lifting, pushing, and pulling activities to levels below the DCDC standards for COIIs. On
July 29, 2014, Dr. Hain noted that he adopted the FCE findings, and that Faulkner had
achieved maximum medical improvement. On August 19, 2014, Dr. Hain stated that
Faulkner’s permanent restrictions were those outlined in the April 24, 2014, FCE.
Faulkner’s workers compensation action against Douglas County went to trial on
January 16, 2015. The Workers Compensation Court judge determined that Faulkner’s
neck injury was not work-related.
On August 17, 2015, Faulkner brought this action alleging that Douglas County
discriminated against her on the basis of her sex, in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-2, and the Nebraska Fair Employment Practices
Act, Neb. Rev. Stat. § 48-1101, et seq. (“NFEPA”); that Douglas County retaliated
against her in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.
7

(“ADA”), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”),
and NFEPA; that Douglas County discriminated against her in violation of the ADA and
NFEPA by refusing the make accommodations for her disabilities; and that Douglas
County discriminated against her on the basis of her age, in violation of the ADEA and
NFEPA5.
STANDARD OF REVIEW
“Summary judgment is appropriate when, construing the evidence most favorably
to the nonmoving party, there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law.” Crozier v. Wint, 736 F.3d 1134, 1136 (8th
Cir. 2013) (citing Fed. R. Civ. P. 56(c)). “Summary Judgment is not disfavored and is
designed for every action.” Briscoe v. Cnty. of St. Louis, 690 F.3d 1004, 1011 n.2 (8th
Cir. 2012) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)
(en banc) cert. denied, 132 S. Ct. 513 (2011)) (internal quotation marks omitted). In
reviewing a motion for summary judgment, the Court will view “all facts and mak[e] all
reasonable inferences favorable to the nonmovant.” Gen. Mills Operations, LLC v. Five
Star Custom Foods, Ltd., 703 F.3d 1104, 1107 (8th Cir. 2013). “[W]here the nonmoving
party will bear the burden of proof at trial on a dispositive issue . . . Rule 56(e) permits a
proper summary judgment motion to be opposed by any of the kinds of evidentiary
materials listed in Rule 56(c), except the mere pleadings themselves.” Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). The moving party need not negate the nonmoving
5

Although Faulkner refers to statutes within NFEPA, see Complaint, ECF No.1 at Page ID 9-11,
the Court infers that she means to make reference to the Nebraska Age Discrimination in Employment
Act, Neb. Rev. Stat. § 48-1001 et seq., which, like the ADEA, prohibits discrimination on the basis of age.

8

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.” Briscoe, 690 F.3d at 1011 (quoting
Torgerson, 643 F.3d at 1042) (internal quotation marks omitted). “‘[T]he mere existence
of some alleged factual dispute between the parties’” will not defeat an otherwise
properly supported motion for summary judgment. Quinn v. St. Louis Cty., 653 F.3d
745, 751 (8th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986)).
In other words, in deciding “a motion for summary judgment, facts must be
viewed in the light most favorable to the nonmoving party only if there is a genuine
dispute as to those facts.” Guimaraes v. SuperValu, Inc., 674 F.3d 962, 972 (8th Cir.
2012) (quoting Torgerson, 643 F.3d at 1042) (internal quotation marks omitted).
Otherwise, where the Court finds that “the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party,” there is no “genuine issue for trial”

9

and summary judgment is appropriate. Torgerson, 643 F.3d at 1042 (quoting Ricci v.
DeStefano, 557 U.S. 557, 586 (2009)) (internal quotation marks omitted).
DISCUSSION
I. Sex Discrimination under Title VII and NFEPA
Because Faulkner has presented no direct evidence of discrimination on the
basis of her sex, her Title VII claims of discrimination must be evaluated under the
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
To establish a prima facie case of discrimination under the McDonnell Douglas
framework, “a plaintiff must show (1) he is a member of a protected class, (2) he met his
employer's legitimate expectations, (3) he suffered an adverse employment action, and
(4) the circumstances give rise to an inference of discrimination.” Pye v. Nu Aire, Inc.,
641 F.3d 1011, 1019 (8th Cir. 2011). Once the prima facie case is established, the
burden of production shifts to the employer to articulate a legitimate, nondiscriminatory
reason for its action. Floyd-Gimon v. Univ. of Ark. for Med. Sciences ex rel. Bd. of
Trustees of Univ. of Ark., 716 F.3d 1141, 1149 (8th Cir. 2013). If the defendant does
so, the plaintiff then has the burden of proving that the defendant’s proffered reason is a
pretext for discrimination. Id.
Similar to Title VII, NFEPA prohibits employers from taking adverse action
against an individual “because of such individual's . . . sex[.]” Neb. Rev. Stat. § 48–
1104(1). NFEPA “is patterned after Title VII,” and “it is appropriate to consider federal
court decisions construing the federal legislation” when considering questions under

10

NFEPA. City of Fort Calhoun v. Collins, 500 N.W.2d 822, 825 (Neb. 1993); see also Orr
v. Wal–Mart Stores, Inc., 297 F.3d 720, 723 (8th Cir. 2002).
To prevail on her claim of sex discrimination under Title VII or NFEPA, Faulkner
must identify similarly situated males who were afforded preferential treatment by
Douglas County.

See Bennett, 656 F.3d at 819 (“To create an inference of racial

discrimination based on disparate treatment of fellow employees, the plaintiffs must
show that they were treated differently than similarly situated persons who are not
members of the protected class.”); Price, 664 F.3d at 1191. “The test to determine
whether individuals are similarly situated is rigorous and requires that the other
employees be similarly situated in all relevant respects before the plaintiff can introduce
evidence comparing herself to the other employees.” Bennett, 656 F.3d at 819 (quoting
Chism v. Curtner, 619 F.3d 979, 984 (8th Cir. 2010)) (internal quotation marks omitted).
Although this standard is rigorous, the “similarly situated co-worker inquiry is a search
for a substantially similar employee, not for a clone.” Ridout v. JBS USA, LLC, 716 F.3d
1079, 1085 (8th Cir. 2013) (quoting Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908,
916 (7th Cir. 2010) (internal quotation marks omitted)).
In Falkner’s Complaint, ECF No. 1, Page ID 5, she lists the names of seven men
whom she contends were similarly situated to her, but given more favorable treatment
by DCDC. In the Brief in Support of Defendant’s Motion for Summary Judgment, ECF
No. 27, Page ID 117-118, Douglas County provided details of its actions taken with

11

respect to the seven male employees, and four other male employees whom the Court
infers were identified during discovery as potential comparators.6
The first and second male comparators had surgery similar to Faulkner’s, but
were released back to work by their physicians with no medical restrictions and worked
without restrictions or accommodations. The third male comparator had no injuries or
restrictions and had never been assigned to light duty. The fourth male comparator was
released back to work with no medical restrictions and worked full duty without
restrictions or accommodations until his termination for unrelated reasons. The fifth
male comparator was released back to work with no restrictions and worked full duty
without restrictions or accommodations. The sixth male comparator was released back
to work with no medical restrictions and worked full duty without restrictions or
accommodations until his retirement, though Faulkner notes that he received light duty
assignments for a longer period of time than she was allowed. The seventh, eighth,
ninth, tenth, and eleventh male comparators were terminated from employment
because they could not perform the duties of a corrections officer.
Faulkner contends that Foxall should have allowed her to work light duty
indefinitely at the DCDC Central Control or housing unit “Bubble” stations where inmate
contact was not required, or that Foxall should have assigned her to the DCDC lobby or
night shifts indefinitely, as accommodation for her disability. No male comparator was
given such an accommodation. Although there appears to be an issue as to whether
6

The facts asserted by Douglas County concerning the male comparators are supported by
pinpoint citations to the evidentiary record, and there is no genuine dispute as to the facts summarized
herein.

12

one male comparator was allowed to work more hours on light duty than Faulkner was
afforded by Foxall, that issue of fact is not material because there is no suggestion that
Foxall was ever informed that the male comparator had permanent medical restrictions
inconsistent with the duties of a correctional officer. In contrast, in mid-2013, Foxall was
informed that Faulkner’s work restrictions related to her cervical spine were permanent,
and those physical limitations were inconsistent with the essential functions of a COII.
Although Faulkner continued to receive medical treatment for her cervical spine
condition later in 2013, and after her termination, there is no evidence that Foxall was
ever informed that further medical treatment might allow Faulkner to regain the physical
ability to perform essential functions of her job, nor did she regain such ability.
Construing all facts in a light most favorable to Faulkner, she has not shown that
any similarly situated male comparators were treated more favorably than she was
treated; she has not established an inference of discrimination; and her claims of sex
discrimination under Title VII and NFEPA will be dismissed.
II. Retaliation under ADA, ADEA, and NFEPA
In Count II of Faulkner’s Complaint, ECF No. 1, Page ID 7-8, she notes that Title
VII, the ADA, the ADEA, and NEFPA all prohibit employers from discriminating against
individuals who have opposed practices made unlawful under the acts, or who have
made charges or participated in investigations under the acts. Id. (citing 42 U.S.C. §
2000e-3(a), 42 U.S.C. § 12203, 29 U.S.C. § 623(d), and Neb. Rev. Stat. § 48-1114).
Her factual allegations in Count II are vague and conclusory, however, and would
be insufficient to withstand a motion to dismiss under Fed. R. Civ. P. 12(b)(6). See C.N.
13

v. Willmar Pub. Sch., Indep. Sch. Dist. No. 347, 591 F.3d 624, 629–30 (8th Cir. 2010)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In her Brief in Opposition to Defendant’s Motion for Summary Judgment, ECF
No. 36, Faulkner appears to abandon her retaliation claim, and addresses only the
Defendant’s arguments relating to her claims based on disability, age, and sex. Id. at
Page ID 1414-1418. The undisputed evidence demonstrates that Faulkner was
terminated from employment by Douglas County because of her disability, and for no
other reason. Accordingly, her claim based on alleged retaliation will be dismissed.
III. Failure to Accommodate Disability under ADA and NFEPA
A plaintiff seeking to recover under the ADA must establish a prima facie case of
discrimination, that is: “(1) an ADA-qualifying disability; (2) qualifications to perform the
essential functions of her position with or without reasonable accommodation; and (3)
an adverse employment action due to her disability.” Norman v. Union Pac. R.R. Co.,
606 F.3d 455, 459 (8th Cir. 2010) (citing Finan v. Good Earth Tools, Inc., 565 F.3d
1076, 1079 (8th Cir. 2009)).

The burden then shifts to the employer to show a

nondiscriminatory reason for the adverse action and then back to the plaintiff to show
that the articulated reason is merely a pretext for discrimination. Young v. WarnerJenkinson Co. Inc., 152 F.3d 1018, 1021 (8th Cir. 1998) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802–03 (1973)). “The plaintiff retains at all times the
ultimate burden of proving that the adverse employment action was motivated by
intentional discrimination.” Id.

14

NFEPA also provides that it is unlawful for an employer to discharge or
discriminate against an individual because of such individual’s disability. Neb. Rev.
Stat. § 48-1104(1). When applying NFEPA to cases involving disability, the Nebraska
Supreme Court follows the same analysis as used by federal courts in cases brought
pursuant to the ADA. See Father Flanagan’s Boys’ Home v. Goerke, 401 N.W.2d 461,
464 (Neb. 1987). The key inquiry is whether the individual’s condition inhibits her ability
to perform her job safely and efficiently. IBP, Inc. v. Sands, 563 N.W.2d 353, 358 (Neb.
1997).
To succeed in a failure-to-accommodate claim, a plaintiff “must establish both a
prima facie case of discrimination based on disability and a failure to accommodate it.”
Schaffhauser v. United Parcel Service, Inc., 794 F.3d 899, 905 (8th Cir. 2015).
Here, it is undisputed that Faulkner had a disability and that her employment was
terminated due to her disability. It is also undisputed that she could not perform the
essential functions of a COII position without accommodation. She contends that a
reasonable accommodation would have been for Foxall to have permitted her to work
indefinitely in light-duty assignments without inmate contact, or in the DCDC lobby, or
on night shift positions.

The undisputed evidence shows, however, that officers

assigned to lobby and night shift positions still must be able to perform the essential
physical duties of a correctional officer, including the ability to restrain offenders or stop
disturbances with use of force. Foxall Deposition, ECF 28-2, Page ID 181 (22:8-16) and
Page ID 197 (38:4-15). With respect to light-duty assignments not involving inmate
contact, the CBA gives priority for such assignments to officers with temporary
15

disabilities resulting from on-the-job injuries. The CBA gives secondary priority for such
positions to officers with temporary disabilities resulting from illnesses or injuries that
are not job related. The CBA provides:
While this policy is intended to benefit the employees of the Department
during short-term illnesses and injuries, it is not intended for long-term or
life long problems. Employees who request or are assigned light duty
must have a reasonable expectation or returning to fully [sic] duty status
as described in their respective job descriptions, within the maximum 180
days allowed under this policy.
CBA, ECF No. 28-4, Page ID 257, 261
The U.S. Court of Appeals for the Eighth Circuit has held that “an employer
need not reallocate or eliminate essential functions of a job to accommodate a disabled
employee.” Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 950 (8th Cir. 1999).
Nor is an employer required to reassign existing workers to assist a disabled worker in
the performance of essential duties. Dropinski v. Douglas County, 298 F.3d 704, 70910 (8th Cir. 2002).

“Under the ADA, an accommodation that would cause other

employees to work harder, longer, or be deprived of opportunities is not mandated.”
Rehrs v. Iams Co., 486 F.3d 353, 357 (8th Cir. 2007). “The ADA does not require that
[an employer] take action inconsistent with the contractual rights of other workers under
a collective bargaining agreement.” Benson v. Northwest Airlines, Inc., 62 F.3d 1108,
1114 (8th Cir. 1995).
Douglas County was not required to eliminate the essential functions of the COII
position in order to accommodate Faulkner’s disability, nor was it required to violate the
CBA. The accommodations Faulkner suggested would have required Douglas County
16

to take one or both of these measures. As a matter of law, Faulkner’s suggested
accommodations were not reasonable and would have created an undue burden for
Douglas County.

Although there is ample evidence in the record to support a

conclusion that Douglas County engaged in an interactive process with Faulkner to
explore whether reasonable accommodations could be made for her disability, as in
Dropinski, “any discussion concerning the interactive process under these facts is
superfluous.” 298 F.3d at 710.
Because Faulkner could not perform the essential functions of a COII, and
because the accommodations she suggested were not reasonable and would have
placed an undue burden on Douglas County, she has not presented a prima facie case
of discrimination under the ADA or NFEPA, and her claim based on a failure to
accommodate her disability in violation of these acts will be dismissed.
IV. Age Discrimination under ADEA and NADEA
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).
17

Similarly, the Nebraska Age Discrimination in Employment Act (“NADEA”)
prohibits employers from discriminating against employees because of age. Neb. Rev.
Stat. § 48–1001 et seq. Nebraska courts look to cases interpreting the ADEA for
guidance in cases arising under the NADEA. Allen v. AT&T Technologies, 423 N.W. 2d
424, 428 (Neb. 1988).
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. Rahlf, 642 F.3d at 637. 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. Rahlf, 642 F.3d at 637; see also Gross v. FBL Fin. Servs., Inc., 557
U.S. 167, 176 (2009)).
Faulkner’s age discrimination claim fails for the same reason her sex
discrimination claim fails, i.e., she has not provided any evidence that younger
employees, similarly situated to her in all relevant respects, received favorable
treatment.
In addition to the male comparators discussed above, who were not similarly
situated to Faulkner, she names one female employee in her forties whom Faulkner
contends was permitted to work light duty assignments longer than Faulkner was
allowed to do so. It is undisputed that the female employee ultimately was released by
her physicians to work with no restrictions, and there is no evidence that Foxall was

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informed that the female comparator had permanent medical restrictions inconsistent
with the duties of a correctional officer.
Construing all facts in a light most favorable to Faulkner, she has not shown that
any similarly situated younger comparators were treated more favorably than she was
treated; she has not established an inference of discrimination; and her claims of age
discrimination under ADEA and NADEA will be dismissed.
CONCLUSION
The Eighth Circuit Court of Appeals repeatedly has said 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).
Faulkner has not met her burden of demonstrating that she was qualified for the
position of COII, or that she could meet her employer’s legitimate expectations.
Douglas County articulated a legitimate, non-discriminatory reason for its actions, and
Faulkner has not demonstrated that its reason was pretext for discrimination on the
basis of her sex, age, or disability–nor pretext for retaliation against her for engaging in
protected activity. Accordingly, the Motion for Summary Judgment will be granted.

IT IS ORDERED:
1.

The Motion for Summary Judgment, ECF No. 26, submitted by Defendant

Douglas County, Nebraska, is granted;
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2.

The Plaintiff’s Complaint, ECF No. 1, is dismissed, with prejudice; and

3.

A separate Judgment will be entered.

Dated this 22nd day of December, 2016.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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