Duffek v. City of Omaha

Filing 33

MEMORANDUM AND ORDER - The Motion for Summary Judgment, ECF No. 24 , filed by the City of Omaha, is granted. This action is dismissed, with prejudice. A separate judgment will be entered. Ordered by Senior Judge Laurie Smith Camp. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

CHRISTOPHER J. DUFFEK, an
individual;
8:17CV237
Plaintiff,
MEMORANDUM
AND ORDER

vs.
CITY OF OMAHA, a political subdivision
of the State of Nebraska;
Defendant.

This matter is before the Court on the Motion for Summary Judgment, ECF No. 24,
filed by the City of Omaha. For the reasons stated below, the Motion will be granted.
BACKGROUND
Plaintiff Christopher J. Duffek brought this action under Title VII of the Civil Rights
Act of 1964 (Title VII), 42 U.S.C. § 2000e-2, and the Nebraska Fair Employment Practices
Act (NFEPA), Neb. Rev. Stat. § 48-1104, claiming the City of Omaha (City) discriminated
against him on the basis of sex and national origin by terminating his employment but not
that of two other Omaha Police Department (OPD) employees. Compl., ECF No. 1. The
City moved for summary judgment arguing the evidence does not sufficiently support
Duffek’s disparate-treatment discrimination claims.
Unless otherwise indicated, the following facts are those stated in the parties’
briefs, supported by pinpoint citations to admissible evidence in the record, in compliance
with NECivR 56.11 and Federal Rule of Civil Procedure 56.

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See NECivR 56.1(b)(1):

On October 27, 2015, the City’s Chief of Police, Todd Schmaderer, recommended
that Duffek’s employment as an OPD officer be terminated, following an internal
investigation into allegations that Duffek assaulted his domestic partner on August 8,
2015.

Termination Letter, ECF No. 26-1.

Effective that same day, Schmaderer

suspended Duffek with pay “pending the outcome of [his] pre-termination hearing.” Id. at
Page ID 83. Although the identity of the ultimate decision-maker it is not clear, the City
terminated Duffek’s employment at some point thereafter. Duffek and Schmaderer are
both men.
The Internal Affairs investigation leading to Duffek’s termination revealed that
Duffek and his live-in girlfriend visited multiple bars on August 8, 2015; she accused him
of physically assaulting her; and the accusation was recorded in a police report. She later
recanted her accusations, and, in November 2015, Duffek was tried for domestic assault
and acquitted. Based on Internal Affairs’ findings, Schmaderer concluded that Duffek
should be terminated for the following reasons: (1) conduct unbecoming of an officer, (2)
intoxication, (3) criminal law violations by police department personnel, (4) failure to
cooperate with police personnel, (5) violation of firearms policy, and (6) actions that reflect
discredit upon the service. Schmaderer Aff., ECF No. 26-1, Page ID 74. Schmaderer
also cited Duffek’s 20-day suspension in 2012 for a physical altercation with other off-

The party opposing a summary judgment motion must include in its brief a concise
response to the moving party’s statement of material facts. Each material fact in the
response must be set forth in a separate numbered paragraph, must include pinpoint
references to affidavits, pleadings, discovery responses, deposition testimony (by page
and line), or other materials upon which the opposing party relies, and, if applicable, must
state the number of the paragraph in the movant’s statement of material facts that is
disputed. Properly referenced material facts in the movant’s statement are considered
admitted unless controverted in the opposing party’s response.

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duty OPD officers and a previous girlfriend. That incident occurred at a local bar where
Duffek had been consuming alcohol. Suspension Letter, ECF No. 26-1, Page ID 85-88.
Duffek refers to additional facts involving other OPD employees, in support of his
claims of disparate treatment. On March 17, 2014, an individual observed an altercation
between two off-duty OPD officers, Johnny Palermo and Amber Schlote. The witness
saw Palermo attempting to force Schlote into the back seat of a vehicle and believed the
situation to be an instance of domestic violence. Schmaderer approved an Internal Affairs
investigation into the incident, and the OPD Domestic Violence Unit conducted a separate
criminal investigation. No criminal charges were brought against Palermo or Schlote.
Based on those investigations, Schmaderer concluded that no domestic violence
occurred between Palermo and Schlote, and that “the evidence showed Officer Palermo
was attempting to assist another officer, who was intoxicated . . . .” Schmaderer Aff., ECF
No. 26-1, Page ID 74. Palermo was not intoxicated at the time of the incident. As such,
Schmaderer decided not to recommend any discipline for Palermo and to recommend
Schlote receive a 3-day suspension for intoxication and conduct unbecoming of an officer.
Neither Palermo nor Schlote had any prior discipline. Palermo is a Puerto Rican man,
and Schlote is a woman.
STANDARD OF REVIEW
Duffek incorrectly asserts that “Courts ‘must be particularly deferential to the party
opposing summary judgment’ when liability depends on inferences rather than direct
evidence.” Pl.’s Br., ECF No. 30, Page ID 124 (quoting Bell v. Conopco, Inc., 186 F.3d
1099, 1101 (8th Cir. 1999), abrogated by Torgerson v. City of Rochester, 643 F.3d 1031,
1043 (8th Cir. 2011) (en banc)).

In Torgerson, the Eighth Circuit stated that the
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“particularly deferential” standard of review that Duffek advocates for is “unauthorized and
should not be followed.” 643 F.3d at 1043 (citing Bell with disapproval).
“Summary judgment is appropriate when the evidence, viewed in the light most
favorable to the nonmoving party, presents no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.” Garrison v. ConAgra Foods
Packaged Foods, LLC, 833 F.3d 881, 884 (8th Cir. 2016) (citing Fed. R. Civ. P. 56(c)).
“Summary judgment is not disfavored and is designed for every action.” Briscoe v. Cty.
of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson, 643 F.3d at
1043). In reviewing a motion for summary judgment, the Court will view “the record in the
light most favorable to the nonmoving party . . . drawing all reasonable inferences in that
party’s favor.” Whitney v. Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing Hitt v.
Harsco Corp., 356 F.3d 920, 923–24 (8th Cir. 2004)). 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.” Se. Mo. Hosp. v. C.R. Bard,
Inc., 642 F.3d 608, 618 (8th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986)). The moving party need not produce evidence showing “the absence of a
genuine issue of material fact.” Johnson v. Wheeling Mach. Prods., 779 F.3d 514, 517
(8th Cir. 2015) (quoting Celotex, 477 U.S. 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.” St. Jude Med., Inc. v. Lifecare Int’l, Inc., 250 F.3d 587, 596
(8th Cir. 2001) (quoting Celotex, 477 U.S. at 325).

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In response to the moving party’s showing, the nonmoving party’s burden is to
produce “specific facts sufficient to raise a genuine issue for trial.” Haggenmiller v. ABM
Parking Servs., Inc., 837 F.3d 879, 884 (8th Cir. 2016) (quoting Gibson v. Am. Greetings
Corp., 670 F.3d 844, 853 (8th Cir. 2012)). 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.” Wagner
v. Gallup, Inc., 788 F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson, 643 F.3d at 1042).
“[T]here must be more than the mere existence of some alleged factual dispute” between
the parties in order to overcome summary judgment. Dick v. Dickinson State Univ., 826
F.3d 1054, 1061 (8th Cir. 2016) (quoting Vacca v. Viacom Broad. of Mo., Inc., 875 F.2d
1337, 1339 (8th Cir. 1989)).
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.” Wagner, 788 F.3d at 882 (quoting Torgerson, 643 F.3d at 1042). 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 of material fact” for trial
and summary judgment is appropriate. Whitney, 826 F.3d at 1076 (quoting Grage v. N.
States Power Co.-Minn., 813 F.3d 1051, 1052 (8th Cir. 2015)).
DISCUSSION
Under Title VII and the NFEPA, it is unlawful for an employer to discharge an
employee because of the employee’s sex or national origin. 42 U.S.C. § 2000e-2(a);
Neb. Rev. Stat. § 48-1104(1). Because Duffek’s claims under Title VII mirror his claims
under the NFEPA, the Court will apply the analysis for Title VII discrimination claims to
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his claims under the NFEPA. Jones v. Douglas Cty. Sheriff’s Dep’t, 915 F.3d 498, 500
(8th Cir. 2019) (quoting Edwards v. Hiland Roberts Dairy Co., 860 F.3d 1121, 1124 n.3
(8th Cir. 2017) (“We analyze discrimination claims under the NFEPA by applying the
same analysis for discrimination claims under Title VII.”)); Knapp v. Ruser, 901 N.W.2d
31, 43 (Neb. 2017) (stating “the NFEPA is patterned after federal Title VII,” and Nebraska
courts “look to federal court decisions construing Title VII for guidance with respect to the
NFEPA.”).
“To survive a motion for summary judgment with a Title VII claim, a plaintiff must
show either direct evidence of a Title VII violation or create an inference of discrimination
or retaliation under the McDonnell Douglas2 burden-shifting framework.” Shirrell v. St.
Francis Med. Ctr., 793 F.3d 881, 887 (8th Cir. 2015).
“Direct evidence of discrimination requires ‘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 employer’s
decision.’” Id. (quoting Putman v. Unity Health Sys., 348 F.3d 732, 735 (8th Cir. 2003))
(alteration in original). “‘[D]irect refers to the causal strength of the proof, not whether it
is ‘circumstantial’ evidence.” Guimaraes v. SuperValu, Inc., 674 F.3d 962, 972 (8th Cir.
2012).
Absent direct evidence, “the McDonnell Douglas framework applies, which
requires a plaintiff to make a prima facie case of discrimination . . . .” Shirrell, 793 F.3d at
887. If the plaintiff establishes a prima facie case, “a presumption of discrimination arises

2

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).

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and the burden shifts to [the defendant] to present evidence of a ‘legitimate,
nondiscriminatory reason for’ its adverse employment action.” Banks v. Deere, 829 F.3d
661, 666 (8th Cir. 2016) (quoting McDonnell Douglas, 411 U.S. at 802). “If [the defendant]
meets that burden, the presumption disappears and [the plaintiff] must prove [the
defendant’s] proffered justification is merely a pretext for discrimination.” Schaffhauser v.
United Parcel Serv., Inc., 794 F.3d 899, 903 (8th Cir. 2015).
Because there is no direct evidence of discrimination, Duffek must establish a
prima facie case. “A prima facie case of discrimination requires that the plaintiff ‘(1) is a
member of a protected group; (2) was meeting the legitimate expectations of the
employer; (3) suffered an adverse employment action; and (4) suffered under
circumstances permitting an inference of discrimination.’” Id. (quoting Davis v. Jefferson
Hosp. Ass’n, 685 F.3d 675, 681 (8th Cir. 2012)). In reverse discrimination cases, such
as this one, the plaintiff must establish that “background circumstances support the
suspicion that the defendant is that unusual employer who discriminates against the
majority.” Id. (quoting Hammer v. Ashcroft, 383 F.3d 722, 724 (8th Cir. 2004)); McGinnins
v. Union Pac. R.R., 496 F.3d 868, 875 (8th Cir. 2007)).
The City argues summary judgment is appropriate because the evidence includes
no background circumstances that suggest the City is the unusual employer that
discriminates against the majority, nor does the evidence support an inference of
discrimination on the basis of sex or national origin.3 The Court agrees.

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Although the City also argues that Duffek failed to establish a prima facie case of race
discrimination, Duffek’s Complaint and brief make no allegation of discrimination on that basis. Nor does
the evidence support a claim of discrimination on that basis.

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I.

Inference of Discrimination Based on Disparate Treatment

Duffek cannot survive summary judgment by demonstrating the City made an
unfair employment decision. Schaffhauser, 794 F.3d at 903 (“The question is not whether
[the employer] made a good decision, or even a fair one. The question is whether it took
an adverse employment action based on discriminatory animus.”).

“To create an

inference of discrimination based upon disparate treatment, the plaintiff must show she
was treated differently than similarly situated persons who are not members of the
protected class.” Faulkner v. Douglas Cty., 906 F.3d 728, 732 (8th Cir. 2018) (citing
Bennett v. Nucor Corp., 656 F.3d 802, 819 (8th Cir. 2011)). The other employees must
“be similarly situated in all relevant respects before the plaintiff can introduce evidence
comparing herself to the other employees.” Bennet, 656 F.3d at 819.
To establish an inference of sex and national origin discrimination, Duffek relies on
the fact that Palermo—a Puerto Rican man—and Schlote—a woman—were not
terminated for their March 17, 2014, incident while Duffek was terminated for his August
8, 2015, incident. Palermo and Schlote are not useful comparators, however, because
they were not similarly situated to Duffek. There is no dispute that the former Chief of
Police, Alexis Hayes, suspended Duffek in 2012 for his involvement in a physical
altercation with other off-duty officers, and a girlfriend, at a bar where he had consumed
alcohol to the point of intoxication. Suspension Letter, ECF No. 26-1, Page ID 85-88.
Neither Palermo nor Schlote had a record of discipline for any misconduct before the
March 17, 2014, incident, let alone misconduct similar to that which led to Duffek’s 2012
suspension; and Schmaderer cited Duffek’s 2012 suspension as one of the bases for the

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decision to recommend termination. Therefore, Duffek cannot establish an inference of
sex or national origin discrimination by comparing himself to Palermo or Schlote.
II.

Reverse Discrimination

Duffek did not address the reverse-discrimination aspect of his prima-facie burden
in his opposition brief, and the record contains no evidence of background circumstances
which raise the suspicion that OPD or the City discriminates against men or individuals
of Duffek’s national origin in its employment decisions. Presumably, Duffek’s national
origin is the United States, but he did not allege or otherwise present any evidence or
statement of his national origin. Further, Schlote was treated more harshly than Palermo
for their March 17, 2014, incident, which is a circumstance that undercuts Duffek’s
allegation that the City discriminates against men in its employment decisions.
Accordingly, Duffek failed to establish a prima facie case of discrimination on the
basis of sex or national origin.
IT IS ORDERED:
1.

The Motion for Summary Judgment, ECF No. 24, filed by the City of Omaha,
is granted;

2.

This action is dismissed, with prejudice; and

3.

A separate judgment will be entered.

Dated this 7th day of May 2019.

BY THE COURT:
s/Laurie Smith Camp
Senior United States District Judge
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