Iskandr v. Douglas County, Nebraska

Filing 43

MEMORANDUM AND ORDER that the Motion for Summary Judgment, ECF No. 32 , filed by Defendant Douglas County, Nebraska, is granted. The Motion to Strike, ECF No. 37 , filed by Plaintiff Sanaa Iskandr is denied. The above-captioned matter is dismissed, with prejudice. The parties will bear their own attorney fees and costs. A separate judgment will be entered. Ordered by Senior Judge Laurie Smith Camp. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

SANAA L. ISKANDR, an individual;
Plaintiff,

8:17CV306

vs.
DOUGLAS COUNTY, NEBRASKA,

MEMORANDUM
AND ORDER

Defendant.

This matter is before the Court on the Motion for Summary Judgement, ECF No.
32, filed by Defendant Douglas County, Nebraska (the County) and the Motion to Strike,
ECF No. 37, filed by Plaintiff Sanaa Iskandr. For the reasons stated below, the Motion
for Summary Judgment will be granted and the Motion to Strike will be denied.1
BACKGROUND
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 56.12 and Federal Rule of Civil Procedure 56.

1

With respect to the handwritten notes from Iskandr’s co-worker Mable King and King’s son Denzel
Hayes, ECF Nos. 33-8 and 33-10, the Motion to Strike the notes as hearsay is denied and the Court will
consider the notes only for the nonhearsay purpose of the effect they had on Eric Carlson in making his
decision to terminate Iskandr. The remainder of the Motion to Strike is denied as moot as the Court has not
relied on any of the remaining evidence Iskandr sought to strike. It is noted that ECF Nos. 33-45 and 33-46
referred to by Iskandr in her Motion are references to ECF Nos. 33-44 and 33-35 based on Iskandr’s
description of the documents.
2

See NECivR 56.1(b)(1):

The party opposing a summary judgment motion should 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 material 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

Iskandr, an Egyptian woman, was employed by Douglas County in the Douglas
County Mailroom (DCM) as a Mailroom Clerk I from August 2011, through July 27, 2016.
The DCM is operated through the Douglas County Purchasing Department and its
Purchasing Agent, Eric Carlson. Melissa Marchello was Iskandr’s supervisor and
Leeanne Derry filled in as acting supervisor when Marchello was not available. Derry
Decl., ECF No. 33-46, Page ID 516.
On or about February 29, 2016, Iskandr requested and was granted leave under
the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601. Her doctor released her to return
to work on April 25, 2016, but strongly recommended she transfer to a different
department because “her current department had caused her many health issues.”
Return to Work Note, ECF No. 33-39, Page ID 494.
On April 25, 2016, Iskandr met with HR director Karen Buche, Carlson, and
another HR employee regarding the return-to-work letter. Iskandr informed the individuals
at the meeting that she could not go back to work under the same circumstances. Iskandr
EEOC letter 4/26/16, ECF No. 33-37, Page ID 485; Buche Decl., ECF No. 33-12, Page
ID 207. Buche put Iskandr on paid administrative leave from April 25, 2016, until Buche
could evaluate the situation, and provided Iskandr with an Employee Disability
Accommodation Request Form (ADA Request Form) to fill out. Iskandr EEOC letter
4/26/16, ECF No. 33-37, Page ID 485.
On April 28, 2016, Iskandr submitted the ADA Request Form to Buche. ADA
Request Form, ECF No. 33-35, Page ID 478. The ADA Request Form listed Iskandr’s
disputed. Properly referenced material facts in the movant’s statement are considered
admitted unless controverted in the opposing party’s response.

2

disability as job related stress disorder causing panic attacks; stated she had no specific
accommodation request but was open to suggestions to eliminate the problem; stated
she was having difficulty performing in her current job environment; and stated “I only
want to be in [n]on stressful situation.” Id. at 478-79.
On May 5, 2016, Iskandr filed a Charge of Discrimination with the Nebraska Equal
Opportunity Commission. Charge of Discrimination, ECF No. 33-40, Page ID 500. On or
about May 16, 2016, Iskandr returned to work in the DCM. At some time shortly before
Iskandr’s termination, Marchello told her not to speak Arabic because it disturbed Derry.
Iskandr Dep., ECF No. 33-32, Page 408.
At some point in 2016, Employee Development and Relations Coordinator, Carol
Donnelly, was assigned to investigate a hostile work environment complaint filed by
Iskandr. Donnelly Decl., ECF No. 33-25, Page ID 338. On June 7, 2016, Donnelly
concluded that there was no hostile work environment. Donnelly Decl., ECF No. 33-25,
Page ID 339. Her report stated that “[t]here are ongoing and concerning behavioral issues
within the [DCM]. . . . Each individual contributes to the current state of work environment;
however, Ms. Marchello’s lack of response to Ms. Iskandr’s inappropriate behavior
appears to be the single greatest factor.” Donnelly Report, ECF No. 33-26, Page ID 355.
On June 2, 2016, Iskandr and her husband met with Buche, Carlson, and Connelly
to discuss Iskandr’s accommodation request and the note from Iskandr’s doctor. 6/10/16
Letter to Iskandr, ECF No. 33-21, Page ID 332. During the meeting, the only potential
accommodation identified was a transfer to a new department. Buche Decl., 33-12, Page
ID 208. Buche told Iskandr that if she moved to a different department it would be at a
lower salary, and that there was an office Buche could call. Iskandr Dep., ECF No. 333

32, Page ID 398. Iskandr questioned Buche as to why Buche would want to move Iskandr
to a different office with a lower salary. Id. Iskandr also told Buche “legally when I’m in a
condition like that, I’m being hurt, you should transfer me to an office that will – I will get
paid the same.” Id. After the meeting, Buche sent Iskandr a correspondence stating “[i]n
speaking with you last week, we reviewed the current job postings and found that none
of the posted jobs matched your skills and/or personal requirements.” 6/10/17 Iskandr
Letter, ECF No. 33-21, Page ID 333. The letter provided the County’s employment
website and encouraged Iskandr to identify and apply for any job she was qualified to
perform. Id. Iskandr applied for no other positions with the County.
On June 6, 2016, Iskandr was involved in a workplace incident,3 involving her
playing of music. Derry Decl., ECF No. 33-46, Page ID 517. According to King, the music
interfered with employees’ ability to hear each other and to hear the office radio, and King
complained to Marchello. King Notes, ECF No 33-8, Page ID 197. Marchello asked
Iskandr to turn the music down and she initially refused. Derry Decl., ECF No. 33-46,
Page ID 517. Iskandr accused King of attempting to fight with her. After Marchello told
Iskandr she could also hear the music, Iskandr disputed that Marchello could hear
anything. King Notes, ECF No 33-8, Page ID 197. Later in the day, Iskandr left the office
for approximately thirty-five minutes, and King was required to process outgoing mail
alone. Id.

3 Iskandr disputes the County’s statement of the facts regarding the June 6, 2016, incident, but
does not cite to any evidence to create a genuine issue of material fact. She also objects “to the multiple
hearsay statements” included in the statement of facts regarding the June 6, 2016, incident. The information
regarding the June 6, 2016, incident is offered for its effect on Carlson—that he believed Iskandr engaged
in misconduct, not to prove the truth of the matter asserted—Iskandr’s actual conduct. Thus, the Court has
considered the evidence only for its effect on Carlson.

4

On June 9, 2016, Iskandr was involved in another workplace incident. She walked
into the DCM and asked Hayes to move so she could put down her mail. Derry Notes,
ECF No. 33-47, Page ID 519. Iskandr also demanded that Marchello move a book that
remained on the table. Id. Marchello thought Iskandr was being rude and asked to speak
with her in the hall to tell her such conduct was unacceptable. Marchello Email, ECF No.
33-9, Page ID 200. Iskandr became upset and yelled4 at Marchello to stop putting
pressure on her. Id.; Derry Notes, ECF No. 33-47, Page ID 520. King then left for the day
due to the yelling. Derry Notes, ECF No. 33-47, Page ID 520. Marchello also left the DCM
after receiving a call from HR. Iskandr left the office shortly thereafter. Id. Derry claims
that Iskandr then returned and began screaming. Id. Although Iskandr disputes that she
was screaming, she admits that her voice got louder due to an increase in anxiety and
stated that “[t]hat doesn’t mean I , I scream for myself or yell for myself, no. It’s the illness
that I start having increase with the depression and pressure that I have from the office.”
Iskandr Dep., ECF No. 33-32, Page ID 404. When Marchello returned from HR “everyone
was standing in the hallway[]Sam from the dock called securit[y] because [Iskandr] was
yelling and screaming.” Marchello Email, ECF No. 33-9, Page ID 200.
Due to the incidents in the DCM on June 6, 2016, and June 9, 2016, Carlson placed
Iskandr on paid administrative leave, so he could investigate the events. Carlson Decl.,
ECF No 33-1, Page ID 186. Disciplinary charges were brought against Iskandr. 7/13/16

4 Iskandr disputes that she was yelling but cites to the investigation summary from June 7, 2016,
two days before the incident, where Marchello describes a similar incident in which Iskandr raised her voice
but did not yell. Thus, Iskandr has not demonstrated a genuine dispute of fact as to whether she was yelling.
Iskandr also admits “that happened and increased when the work environment getting worse and worse.
My anxiety getting increased and my voice getting loud.” Iskandr Dep., ECF No. 33-23, Page ID 401. The
distinction between whether Iskandr was yelling or raising her voice is not material.

5

Pre-Disciplinary Hearing Notice Letter, EFF No. 33-4, Page ID 193-94. Carlson sent
Iskandr a letter on July 13, 2016, informing her of the charges and scheduled hearing. Id.
A hearing was held on July 20, 2016, and Iskandr’s employment was terminated on July
27, 2016. Termination Letter, ECF No. 33-5, Page ID 193. The reasons stated for her
termination were 1) she had been insubordinate to her supervisor, 2) she failed to
maintain satisfactory working relationships with the public or other employees, and 3) she
used abusive or disgraceful language by making threats or creating a disturbance among
co-workers or members of the public. Id. Carlson made the decision to terminate Iskandr
after conducting his own investigation, in concert with the HR department. Carlson Decl.,
ECF No. 33-1, Page ID 186. Carlson spoke with Glen Moore, the Dock Foreman for the
Omaha-Douglas Public Building Commission; Lisa Anderson, Senior Buyer for the
Douglas County Purchasing Department; and Derry. Id. Carlson obtained written
statements from King and her son Hayes. Id. at 188. Carlson also obtained Marchello’s
recollection of the events by email. Id. The email from Marchello and the handwritten
notes from Hayes and King were part of the information relied upon by Carlson in making
his decision. Id. at 186-88. Iskandr was 57-years-old at the time of her termination.
After her termination, Iskandr filed a Complaint alleging discrimination5 based on
her Egyptian national origin in violation of Title VII of the Civil Rights Act, 42 U.S.C. §
2000e-2; her age, in violation of the Age Discrimination in Employment Act (ADEA), 29
U.S.C. § 623; and her disability, in violation of the Americans with Disabilities Act (ADA),
42 U.S.C. § 12101. She also alleged retaliation in violation of the ADA, Title VII and the

5

Despite stray references to state law, Iskandr’s Complaint states that “Ms. Iskandr is not pursuing
her state law claims in this case.” Thus, the Court will not address any potential state law claims.

6

Family Medical Leave Act (FMLA), 29 U.S.C. § 2601. Specifically, Iskandr argues that
she was discriminated against when she was placed on paid administrative leave and
terminated.6
STANDARD OF REVIEW
Iskandr 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. 39, Page ID 583 (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

“particularly deferential” standard of review that Iskandr 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

6

Although Iskandr’s Complaint lists numerous acts she claims were discriminatory in nature, in her
brief, she does not cite to evidence in the record for many of these events and does not specifically argue
these actions constituted harassment “sufficiently severe or persuasive to alter the conditions of [her]
employment and create an abusive working environment.” See Clay v. Credit Bureau Enterprises, Inc., 754
F.3d 535, 540 (8th Cir. 2014) (citation omitted). Even if Iskandr argued that the actions referenced in her
brief constituted a hostile work environment, the argument fails due to the nature of the actions and the
absence of evidence that they were taken due to national origin, age, or protected conduct. Thus, the Court
will consider only the discrete acts complained of by Iskandr, her paid administrative leave, and her
termination.

7

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).
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
8

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
I. National Origin Discrimination
Under Title VII, it is “an unlawful employment practice for an employer . . . to
discharge any individual, or otherwise to discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment, because of such
individual’s . . . national origin . . . .” 42 U.S.C. § 2000e-2(a). “An employee may establish
unlawful employment discrimination through direct or indirect evidence.” Takele v. Mayo
Clinic, 576 F.3d 834, 838 (8th Cir. 2009) (citation omitted). Absent direct evidence of
discrimination, Iskandr must satisfy the McDonnell Douglas burden-shifting framework by
first establishing a prima facie case of discrimination. Guimaraes v. SuperValu, Inc., 674
F.3d 962, 973 (8th Cir. 2012). Iskandr alleges both direct and indirect evidence of national
origin discrimination.
A. There is No Direct Evidence of National Origin Discrimination

9

“[D]irect evidence 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.” Guimaraes, 674 F.3d at 972 (quoting Thomas v. First Nat'l Bank of
Wynne, 111 F.3d 64, 66 (8th Cir.1997)). “Direct evidence is distinguished from ‘stray
remarks in the workplace, statements by nondecisionmakers, or statements by
decisionmakers unrelated to the decisional process.’” Elam v. Regions Fin. Corp., 601
F.3d 873, 878 (8th Cir. 2010) (quoting Clearwater v. Indep. Sch. Dist. No. 166, 231 F.3d
1122, 1126 (8th Cir.2000)). “Direct evidence does not include statements . . . that are
facially and contextually neutral.” Torgerson, 643 F.3d at 1045.
Iskandr argues that she has presented two separate instances which constitute
direct evidence of discrimination based on national origin. First, she alleges King shouted
at her because she raised her arms in front of King when putting items on a shelf. When
Marchello became involved, she instructed Iskandr not to report the incident to Human
Resources (HR), but King went to HR and reported her version of the events. Iskandr
Dep., ECF No. 33-32, Page ID 389-90. Iskandr cites no comments made by King or
Marchello during this event that suggest Iskandr’s nationality influenced King’s or
Marchello’s behavior or that their actions demonstrated discriminatory animus. These
facts do not constitute direct evidence of national origin discrimination as they are facially
and contextually neutral.

10

Second, at her deposition, Iskandr testified that her supervisor, Marchello, told her
not to speak Arabic because that disturbed Derry.7 Iskandr Dep., ECF No. 33-32, Page
ID 408. Yet Iskandr does not allege that she was terminated for speaking Arabic nor does
she allege that Marchello made the decision to terminate her employment or place her on
leave. Iskandr does not dispute that Carlson made the ultimate decision to terminate her
employment. The alleged request that Iskandr not speak Arabic was a comment by a
nondecisonmaker, not direct evidence of discrimination.8
B. There is No Indirect Evidence of National Origin Discrimination
To establish a prima facie case under the McDonnell Douglas burden-shifting
framework, Iskandr must show she “(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.” Bunch
v. Univ. of Ark. Bd. of Trs., 863 F.3d 1062, 1068 (8th Cir. 2017) (quoting Moody v. Vozel,
771 F.3d 1093, 1096 (8th Cir. 2014)). If Iskandr satisfies the prima facie case, the burden
shifts to the County to provide a “legitimate, non-discriminatory justification for its adverse
employment action.” Id. (quoting Moody, 771 F.3d at 1096). If the County meets this

7

Iskandr also alleges that Derry told her to stop speaking Arabic. Pl. Opp’n Br., ECF No. 39, Page
ID 605. However, Iskandr provides no citation to any evidence in support of this assertion of fact and even
if she had, like Marchello, Derry was not a decisionmaker. See NECivR 56.1(b)(1).
8 The Court recognizes that an employer may be liable on a “cat’s paw” theory when a
decisionmaker merely serves “as a conduit, vehicle or rubber stamp” for a supervisor harboring
discriminatory animus. Ludlow v. BNSF Ry. Co., 788 F.3d 794, 801–02 (8th Cir. 2015) (quoting Qamhiyah
v. Iowa State University of Science and Technology, 566 F.3d 733, 742 (8th Cir. 2009)). Liability on a “cat’s
paw” theory has been found where an independent investigation relies on facts provided by the biased
supervisor essentially delegating the factfinding portion of the investigation to the biased supervisor. Id.
Iskandr does not argue this theory and contends that Carlson did not rely on statements of other employees:
“Plainly, he did not consider the assessment by Ms. Iskandr’s own supervisor.” Pl. Br. ECF No. 39, Page
ID 600.

11

burden, Iskandr must “prove [the County’s] justification is a mere pretext for
discrimination.” Id. (quoting Moody, 771 F.3d at 1096).
1. Iskandr has not established a prima facie case of discrimination.
The County argues that Iskandr’s paid administrative leave does not constitute an
adverse employment action and Iskandr is unable to demonstrate that the circumstances
surrounding her discharge permit an inference of discrimination.
An employer’s act of putting an employee on paid leave does not qualify as an
adverse employment action where employee maintains her pay and benefits. See
Singletary v. Missouri Dep’t. of Corr., 423 F.3d 886, 891–92 (8th Cir. 2005) (holding the
employer’s act of putting an employee on administrative leave pending an investigation
did not qualify as an adverse employment action for purposes of a Title VII claim where
the employee maintained his pay, grade, and benefits during his leave, and was restored
to his position promptly after the investigation concluded). Iskandr was placed on leave
by Buche on April 25, 2016, to avoid sending her back to work in the DCM until HR could
complete an investigation into the environment Iskandr claimed had caused her health
issues. Buche Decl., ECF No. 33-12, Page ID 207; Iskandr EEOC letter 4/26/16, ECF No.
33-37, Page ID 485. Iskandr received full pay and benefits during the administrative leave
period. Buche Decl., ECF No. 33-12, Page ID 207. Thus, the administrative leave did not
constitute an adverse employment action and the only adverse employment action
Iskandr suffered was her termination.
The remaining question is whether Iskandr was terminated under circumstances
permitting an inference of discrimination. The County argues that Iskandr has not
established a prima facie case of discrimination because she has not shown that similarly
12

situated employees in the DCM were treated differently. Iskandr’s brief states “[f]or
purposes of the summary judgment analysis, the court will presume Ms. Iskandr’s
evidence established a prima facie case, ‘thus creating a rebuttable presumption of
discrimination.’” Pl. Br., ECF No 39, Page ID 606 (quoting Rose-Maston v. NME
Hospitals, Inc., 133 F.3d 1104, 1107 (8th Cir. 1988)). The Court declines Iskandr’s
invitation to presume she has met her burden of establishing a prima facie case of national
origin discrimination and the evidence presented demonstrates that she cannot meet this
low burden.
The prima facie showing is a “flexible evidentiary standard” and a plaintiff can
satisfy the causation element “in a variety of ways, such as by showing more favorable
treatment of similarly situated employees who are not in the protected class, or biased
comments by a decisionmaker.” Guimaraes, 674 F.3d at 974 (citing Pye v. Nu Aire, Inc.,
641 F.3d 1011, 1019 (8th Cir. 2011)). Iskandr does not cite to any evidence showing that
any other employees engaged in the type of conduct she is alleged to have engaged in
on June 6 and 9, 2016, and received more lenient treatment. She does cite to the
investigation that was completed by Douglas County HR department which noted
“ongoing behavioral issues within the Mailroom” and stated that “[e]ach individual
contributes to the current state of work environment.” Investigation Summary, ECF No.
33-26, Page ID 341. The investigation summary referenced by Iskandr is dated June 7,
2016, before at least one of the incidents leading to her termination, and does not
demonstrate that any individual engaged in conduct similar to that which led to her
termination. Accordingly, she has not established a prima facie case of age or national
origin discrimination.
13

2. The County has articulated a legitimate nondiscriminatory reason for
Iskandr’s termination.
Even if Iskandr had established a prima facie case of discrimination, the County
articulated a legitimate nondiscriminatory reason for her termination. The Eighth Circuit
has “consistently held that violating a company policy is a legitimate, non-discriminatory
rationale for terminating an employee.” Twymon v. Wells Fargo & Co., 462 F.3d 925, 925
(8th Cir. 2006) (citations omitted). Employee misconduct is also generally found to be a
legitimate, non-discriminatory basis for termination, even when the employer relied on
another employee’s account of the misconduct. See Blackwell v. Alliant Techsystems,
Inc., 822 F.3d 431, 436 (8th Cir. 2016).
Carlson terminated Iskandr because he believed she 1) was insubordinate to her
supervisor, 2) failed to maintain satisfactory working relationships with the public or other
employees, and 3) used abusive or disgraceful language make threats or created a
disturbance among co-workers or members of the public. Termination Letter, ECF No.
33-5, Page ID 193. The County policy manual listed thirty-three causes for disciplinary
action, including insubordination toward a supervisor; failure to maintain satisfactory
working relationships with the public or employees; abusive or disgraceful language; and
making threats or creating a disturbance among co-workers or the public. The County
articulated a legitimate nondiscriminatory reason for Iskandr’s termination, consistent with
its published policies.
3. Iskandr has not demonstrated the County’s reason for her termination
was pretext for discrimination.

14

A plaintiff may show pretext by demonstrating that the employer's proffered reason
for the adverse employment action had no basis in fact. E.E.O.C. v. Wal-Mart Stores, Inc.,
477 F.3d 561, 570 (8th Cir. 2007). “[T]he critical inquiry in discrimination cases like this
one is not whether the employee actually engaged in the conduct for which he was
terminated, but whether the employer in good faith believed that the employee was guilty
of the conduct justifying discharge.” Blackwell, 822 F.3d at 436 (8th Cir. 2016) (quoting
McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 861–62 (8th Cir.2009)). Iskandr
attempts to demonstrate pretext by arguing she was not insubordinate, maintained good
work relationships, and did not create a disturbance. She cites to her own testimony as
well as the June 7, 2016, investigation report where Marchello does not refer to Iskandr
as insubordinate; says Iskandr did not scream during a separate incident involving King;
and characterizes complaints about Iskandr as minor, not bad, and not very many. Neither
the June 7, 2016, investigation report nor Iskandr’s testimony demonstrate that Carlson
lacked a good faith belief that Iskandr engaged in the conduct for which she was
terminated.
A plaintiff may also show pretext by demonstrating that an employer failed to follow
its policies or treated similarly-situated employees in a disparate manner. E.E.O.C. v.
Prod. Fabricators Inc., 763 F.3d 963, 970 (8th Cir. 2014) (citing Lake v. Yellow Transp.,
Inc., 596 F.3d 871, 874 (8th Cir. 2010)). Although Iskandr alleges she was the only
Egyptian employee, she fails to demonstrate that any similarly-situated employees
outside the protected class engaged in conduct of comparable seriousness and were
treated more favorably. Thus, she has failed to demonstrate that the County’s reasons
for terminating her were pretext for age or national origin discrimination.
15

II. Age Discrimination
“The ADEA makes it ‘unlawful for an employer to . . . discriminate against any
individual with respect to his [or her] compensation, terms, conditions, or privileges of
employment, because of such individual’s age.’” Onyiah v. St. Cloud State Univ., 684 F.3d
711, 719 (8th Cir. 2012) (quoting 29 U.S.C. § 623(a)(1)). Absent direct evidence of
discrimination, Iskandr must satisfy the McDonnell Douglas burden-shifting framework.
Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 515 (8th Cir. 2011). Iskandr
cites no direct evidence of age discrimination. With respect to indirect evidence, Iskandr
states that she was 57-years-old at the time of her termination, thus belonging to the
protected category, and was the only employee terminated. Yet she provides no evidence
that similarly situated younger employees were treated more favorably. As stated with
respect to national origin discrimination, the County has articulated a legitimate
nondiscriminatory reason for her termination and she has failed to demonstrate pretext.
III. ADA Claims9
To establish a prima facie wrongful-termination claim under the ADA, Iskandr must
show she “(1) is disabled within the meaning of the ADA, (2) is a qualified individual under
the ADA, and (3) suffered an adverse employment action because of her disability.” Walz
v. Ameriprise Financial, Inc., 779 F.3d 842, 845 (8th Cir. 2015) (citing Kallail v. Alliant
Energy Corporate Servs., Inc., 691 F.3d 925, 930 (8th Cir. 2012)).
Iskandr argues that although the County alleges her misconduct was the basis for
her termination it ignores the fact that her “breakdowns on June 6 and June 9, 2016” were

9

Iskandr’s Complaint sets forth two separate ADA claims, one based on disability and one based
on Iskandr having a record of disability. The Court will analyze them together.

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“evidence of stress, distress, and reaction to the workplace environment.” Pl. Br., ECF
No. 39, Page ID 606. The County argues that Iskandr was not a qualified individual under
the ADA, that the County had a legitimate nondiscriminatory reason for terminating her,
and she has failed to demonstrate pretext. The Court agrees that Iskandr is not a qualified
individual under the ADA.
“Whether an individual is qualified within the meaning of the ADA is determined
by applying a two-part test.” Walz, 779 F.3d at 845. (citing EEOC v. Wal-Mart Stores, Inc.,
477 F.3d 561, 568-69 (8th Cir. 2007)). The first part is whether Iskandr “possesses the
requisite skills, education, certification or experience necessary for the job,” and the
second part is whether Iskandr “can, despite [her] impairments, perform the essential
functions of the job either with or without reasonable accommodation.” Id. Iskandr was a
longtime employee of the DCM, and the record does not indicate that she lacked any
credentials for her employment. Accordingly, the analysis hinges on whether Iskandr
could perform the essential functions of her position with or without reasonable
accommodation.
“Essential functions are ‘the fundamental job duties of the employment position.’”
Id. (quoting Mortiz v. Frontier Airlines, Inc., 147 F.3d 784, 787 (8th Cir. 1998)). “The term
‘essential functions’ does not include the marginal functions of the position.” Id. (quoting
Mortiz, 147 F.3d at 787). Here, Iskandr failed to establish a genuine issue of material fact
as to whether she could perform the essential functions of her position with or without
reasonable accommodation. She does not dispute that as a Mailroom Clerk I she was
required to have a significant number of interactions with co-workers, supervisors, other
County and City employees, and the public. Carlson Decl., ECF No. 33-1, Page ID 186.
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The Mailroom Clerk I position description includes “[a]bility to establish and maintain
effective working relationships with supervisors, fellow workers, and the general public.”
Position Description, ECF No. 33-14, Page ID 319.
The record in this case shows the County had reason to find Iskandr was
insubordinate, failed to maintain satisfactory relationships with co-workers, and created a
disturbance among co-workers. Although Iskandr contends that she was not
insubordinate, followed all polices, and did not yell; the undisputed evidence regarding
the June 9, 2016, incident shows that she raised her voice, had difficulty getting along
with employees and supervisors in the DCM, and security was called to the DCM as a
result.

Accordingly, Iskandr’s behavior prevented her from engaging in appropriate

interactions and maintaining effective working relationships with co-workers and
supervisors in the DCM—an essential function of her position. Therefore, Iskandr cannot
make a sufficient showing that she was able to perform the essential functions of her
position without an accommodation.
Iskandr nonetheless may be qualified under the ADA if a reasonable
accommodation would have allowed her to perform the essential functions of her position
and the County failed to provide the accommodation. To establish a failure to
accommodate claim, an employee must show that “the employee could have been
reasonably accommodated but for the employer’s lack of good faith.” Cravens v. Blue
Cross and Blue Shield of Kansas City, 214 F.3d 1011, 1021, (8th Cir. 2000) (citing
Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 952 (8th Cir. 1999). When considering
reassignment as a reasonable accommodation, the employee must be seeking an
existing position within the company, “the employer is not required to create a new
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position as an accommodation.” Id. at 1019 (citing Benson v. Nw. Airlines, Inc., 62 F.3d
1108, 1114 (8th Cir. 1995)). Additionally, the existing position must be vacant, and the
employee must be otherwise qualified for the reassignment position. Id. (citations
omitted). Iskandr has identified no accommodation, aside from reassignment to another
position, that would have alleviated her behavioral issues caused by stress in the
workplace. With respect to reassignment, Iskandr has identified no vacant positions for
which she was qualified and to which she could have been reassigned. In fact, Iskandr’s
brief states that “Buche was well aware that there were no ‘other’ jobs available within
Douglas County.” ECF No. 39, Page ID 596. Thus, Iskandr has not made a sufficient
showing that she was qualified to perform the essential functions of her position with or
without a reasonable accommodation, and her ADA claims will be dismissed.
IV. ADA and Title VII Retaliation Claims
Retaliation claims under the ADA and Title VII follow the same direct evidence or
burden-shifting analysis employed in discrimination claims. Oehmke v. Medtronic, Inc.,
844 F.3d 748, 758 (8th Cir. 2016) (citing EEOC v. Prod. Fabricators, Inc., 763 F.3d 963,
972 (8th Cir. 2014)) (ADA); Pye, 641 F.3d at 1020 (Title VII). Iskandr has not presented
any direct evidence of retaliation, thus, the McDonnell Douglas framework applies.
Requesting an accommodation is a protected activity, Heisler v. Metro. Council,
339 F.3d 622, 632 (8th Cir. 2003), as is filing a Title VII charge of discrimination, 42 U.S.C.
§ 2000e-3. Thus, causation is the only disputed element.
Iskandr’s only evidence of causation is the temporal proximity. The cases that have
accepted temporal proximity alone as sufficient to create an inference of a causal link
have uniformly held that the temporal proximity must be “very close.” Wallace v. Sparks
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Health Sys., 415 F.3d 853, 859 (8th Cir. 2005) (quoting Clark County Sch. Dist. v.
Breeden, 532 U.S. 268, 273 (2001)). However, “[t]emporal proximity alone is insufficient
to show that an employer's proffered reason for action was a pretext for discrimination.”
Kelleher v. Wal-Mart Stores, Inc., 817 F.3d 624, 633–34 (8th Cir. 2016) (citing Gibson v.
Geithner, 776 F.3d 536, 541 (8th Cir.2015)).
Iskandr requested accommodations on April 26, 2016. ADA Request Form, ECF
No. 33-35, Page ID 478. On May 5, 2016, Iskandr filed a Charge of Discrimination with
the Nebraska Equal Opportunity Commission. Charge of Discrimination, ECF No. 33-40,
Page ID 500. Iskandr was put on paid administrative leave on June 10, 2016, after a
workplace incident. A subsequent investigation ultimately led to her termination.
Even assuming Iskandr has met her burden to prove a prima facie case of
retaliation based solely on temporal proximity, Douglas County articulated a legitimate
non-retaliatory reason for her termination. With temporal proximity alone to support her
argument for pretext, Iskandr’s retaliation claims under ADA and Title VII fail.
V. FMLA Retaliation Claim
The FMLA entitles an eligible employee to twelve weeks of unpaid leave during
any twelve-month period if she has a serious health condition that makes her unable to
perform the functions of her position. 29 U.S.C. § 2612(a)(1)(D). Iskandr does not allege
that the County restrained her from using FMLA leave or denied her any benefit to which
she was entitled under the FMLA. Instead, she claims Douglas County interfered with her
FMLA rights in violation of 29 U.S.C. § 2615(a) by discriminating against her for exercising
those rights. Specifically, she alleges that after she took FMLA leave on February 29,
2016, she was put on administrative leave on April 25, 2016, when her doctor authorized
20

her to return to work. After Iskandr returned to work on May 16, 2016, she was put on
paid administrative leave a second time on June 10, 2016, after a workplace incident. A
subsequent investigation ultimately led to her termination.
FMLA retaliation claims are reviewed for direct evidence or under McDonnell
Douglas. Naguib v. Trimark Hotel Corp., 903 F.3d 806, 812–13 (8th Cir. 2018) (citing
Massey-Diez v. Univ. of Iowa Cmty. Med. Servs., Inc., 826 F.3d 1149, 1160 (8th Cir.
2016)). Iskandr has not provided any direct evidence that she was fired because she took
FMLA leave. Analyzing her claim under McDonnell Douglas, the only evidence that her
termination was causally linked to her protected conduct is temporal proximity. In the
context of a claim for FMLA retaliation, the Court “looks to the date an employer knew of
an employee’s use (or planned use) of FMLA leave, not the date it ended.” Sisk v. Picture
People, Inc., 669 F.3d 896, 900 (8th Cir. 2012) (citing Smith v. Allen Health Sys., Inc.,
302 F.3d 827, 833 (8th Cir. 2002)). “[M]ore than two months is too long to support a
finding of causation without something more.” Id. (citations omitted). Thus, Iskandr has
failed to present a prima facie case of FLMA retaliation and her claim will be denied.
Further, as stated supra, even if Iskandr could present a prima facie case of FMLA
retaliation, the County has articulated a legitimate nondiscriminatory reason for her
termination and Iskandr has failed to demonstrate pretext.

Accordingly,
IT IS ORDERED:
1. The Motion for Summary Judgment, ECF No. 32, filed by Defendant Douglas
County, Nebraska, is granted;

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2. The Motion to Strike, ECF No. 37, filed by Plaintiff Sanaa Iskandr is denied;
3. The above-captioned matter is dismissed, with prejudice;
4. The parties will bear their own attorney fees and costs; and
5. A separate judgment will be entered.
Dated this 10th day of May 2019.

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

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