Opinion
4:00CV3135
August 7, 2000.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT
This case comes before me on motion of the defendants, Nebraska Public Power District (hereinafter NPPD), Jerry Steger , Meshelle Boruch, and Glen Baete (filing 11), to dismiss Donna Kastanek's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The plaintiff asserts that the defendant NPPD illegally terminated her employment in retaliation for bringing safety concerns to the attention of NPPD. The plaintiff contends that this termination violated her First Amendment right to free speech and the Nebraska Fair Employment Practice Act (hereinafter NFEPA). The defendants counter that the First Amendment does not protect the plaintiff's speech and that the plaintiff failed to exhaust mandatory administrative remedies required under the NFEPA. After carefully reviewing this matter, I conclude that I shall deny the defendants' motion to dismiss the First Amendment claims, and I shall grant the defendants' motion to dismiss the NFEPA claim.
I. Factual Background
The defendant NPPD is a public corporation and political subdivision of the State of Nebraska. The plaintiff Donna Kastanek worked for NPPD from 1994 to March 28, 2000, when she was terminated from her position as a buyer at NPPD's Sheldon station. The defendants Jerry Steger, Meshelle Boruch, and Glen Baete were all employees of NPPD at the time of the plaintiff's termination. As of March 28, 2000, Jerry Steger was a manager, Meshelle Boruch was a direct supervisor of the plaintiff, and Glen Baete was a plant manager.
The plaintiff alleges that during the course of her employment with NPPD, she "observed numerous practices conducted and condoned by the management of NPPD which were unethical, illegal, and/or threatened the safety of employees." Complaint ¶ 14. Specifically, the plaintiff alleges that during 1999 and early 2000, she observed the following:
a) Flyash Silo explosion on December 29, 1999
b) On February 21, 2000, a 9th Floor bunker explosion in which management failed to sound any warning sirens, account for personnel, or call in the Emergency Response Team
c) Failure to clean bunker floors
d) Failure to equip bunker floors with fire protection such as CO2 or water-type fire extinguishers
e) Failure to properly train employees
Id. ¶ 15.
After observing these incidents, the plaintiff met with Bill Mayben, an employee of NPPD, on February 22, 2000. During this meeting, the plaintiff expressed her concerns about the safety of the NPPD plant. She reported that the bunker explosions had been occurring since the summer of 1998, yet NPPD management had done nothing to stop them. She also informed Mayben that the 9th floor of the plant was "filthy with coal dust," but management would not hire anyone to clean the floor because of the cost. Id. ¶ 17. Thus, according to the plaintiff, employees from other departments took turns cleaning this area, despite the fact that these employees had not been properly trained to complete such a job.
On February 24, 2000, the plaintiff met with Bill Fehrman, vice president of NPPD's Sheldon station, and expressed similar safety concerns. The plaintiff also notified Fehrman that the plant's fire protection was inadequate. On March 2, 2000, the plaintiff again met with Fehrman and reported that she was working in an area in which she was improperly trained. She also informed Fehrman that the bunker fires had begun approximately two years earlier, when the defendant Glen Baete became the Plant Manager. The plaintiff then contacted Bill Mayben on March 10, 2000, "to touch base and reiterate her concerns." Id. ¶ 20.
On March 16, 2000, NPPD suspended the plaintiff with pay and informed her that she was the subject of an internal investigation. On March 23, 2000, NPPD requested the plaintiff's resignation. After refusing to resign, the plaintiff was notified that she would be terminated for "`conduct inconsistent with District policy and values.'" Id. ¶ 24. Defendants Jerry Steger and Meshelle Boruch signed the Notice of Termination, which was essentially effective as of March 28, 2000.
In her first cause of action, the plaintiff asserts that she was illegally terminated by defendants Jerry Steger, Meshelle Boruch, and Glen Baete in retaliation for exercising her First Amendment right to comment on matters of public concern. In her second cause of action, the plaintiff makes the same assertion against the defendant NPPD. In her third cause of action, the plaintiff asserts that NPPD discriminated and retaliated against her for opposing unlawful employment practice in violation of § 48-1114(3) of the NFEPA.
II. Standard of Review
The defendants have moved to dismiss the plaintiff's complaint per Rule 12(b)(6) of the Federal Rules of Civil Procedure. Pursuant to Rule 12(b)(6), "a motion to dismiss a complaint should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief." Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986) (citation omitted); see Hishon v. King Spalding, 467 U.S. 69, 73 (1984). In resolving such motions, all well-pleaded allegations in the complaint must be taken as true. Morton, 793 F.2d at 187. Furthermore, the complaint and all reasonable inferences arising therefrom must be weighed in favor of the plaintiff. Id.
III. Legal Discussion A. First Cause of Action: Defendants Jerry Steger, Meshelle Boruch, and Glen Baete
Public employees do not leave their First Amendment rights at the office door. In Pickering v. Board of Education, the United States Supreme Court first recognized the right of public employees to speak freely on matters of public concern "without fear of retaliatory dismissal." 391 U.S. 563, 572 (1968); see also Day v. Johnson, 119 F.3d 650, 657 (8th Cir. 1997) (recognizing that "[a] public employee's speech enjoys limited protection under the First Amendment" (citing Connick v. Meyers, 461 U.S. 138, 154 (1983)). When analyzing cases arising in the context of public employee speech, courts employ the four-part test that has evolved from the Pickering analysis. Under this test, a public employee claiming a violation of her First Amendment right to free speech bears the burden of proving the following: (1) that the speech at issue involved a matter of "public concern"; (2) that the public employee's interest in freely speaking on matters of public concern outweighs the public employer's interest in "promoting the efficiency of the public services it performs through its employees"; and (3) that the speech at issue played a "substantial part" in the public employee's dismissal. Pickering, 391 U.S. at 568; Mount Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 283-84 (1977); Connick, 461 U.S. at 140; Rankin v. McPherson, 483 U.S. 378, 384 (1987). If the public employee can satisfy this burden, the burden then shifts to the public employer to prove (4) that it would have terminated the public employee even if she had not exercised her First Amendment right to free speech. Mount Healthy, 429 U.S. at 285-86.
Under the test set forth above, the plaintiff in this case, Donna Kastanek, bears the threshold burden of pleading and proving that her speech in question can be fairly characterized as a matter of public concern. The defendants contend that the plaintiff has not met this burden. I disagree.
The question of whether a public employee's speech fairly involves a matter of public concern "must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick, 461 U.S. at 146, 147-48 (footnote omitted); Rankin, 483 U.S. at 384-85; Shands v. City of Kennett, 993 F.2d 1337, 1343 (8th Cir. 1993); Buazard v. Meridith, 172 F.3d 546, 548 (8th Cir. 1999). The employee speech at issue must relate to some matter of "political, social, or other concern to the community." Connick, 461 U.S. at 146; Rankin, 483 U.S. at 384; Shands, 993 F.2d at 134; Buazard, 172 F.3d at 548. Matters that are "purely job-related," such as employee grievances, are not entitled to First Amendment protections. Buazard, 172 F.3d at 548; see Connick, 461 U.S. at 154. Thus, to be characterized as a matter of public concern, the employee must be speaking as a "concerned citizen" and not merely as a public employee. Buazard, 172 F.3d at 548.
I find that the plaintiff has met her threshold burden of pleading that the speech in question can be fairly characterized as relating to matters of public concern. As the Eighth Circuit recognized in Shands v. City of Kennett, topics implicating the "quality and safety" of a public agency relate to matters of public concern. 993 F.2d at 1343 (noting that "[t]he purchase of firefighting equipment and the department's need to hire someone to disconnect meters addressed matters of public concern; both topics implicated the quality and safety of the fire department"). The plaintiff's comments to Bill Mayben and Bill Fehrman pertained to the quality and safety of the Sheldon plant. See Complaint ¶¶ 15, 17-20 (alleging that plaintiff expressed concerns regarding bunker explosions, inadequate fire protection, "filthy" plant areas, and inadequate employee training). Such comments would appear to be of interest to the community as a whole. Thus, in expressing these concerns to Mayben and Fehrman, the plaintiff was apparently speaking as a concerned citizen, and not merely as a public employee. See Bausworth v. Hazelwood School Dist., 986 F.2d 1197, 1198 (8th Cir. 1993).
I conclude that the defendants' motion to dismiss the plaintiff's first cause of action should be denied.
B. Second Cause of Action: Defendant NPPD
As outlined above, I find that the plaintiff has met her threshold burden of pleading that the speech in question can be fairly characterized as relating to matters of public concern. Thus, I conclude that the defendants' motion to dismiss the plaintiff's second cause of action is also hereby denied.
C. Third Cause of Action: Nebraska Fair Employment Practices Act
In her third cause of action, the plaintiff asserts that the defendant NPPD discriminated and retaliated against her for opposing an unlawful employment practice in violation of § 48-1114(3) of the NFEPA. See Complaint ¶¶ 38-40. According to this provision, "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his or her employees . . . because he or she . . . has opposed any practice or refused to carry out any action unlawful under federal law or the laws of this state." Neb. Rev. Stat. Ann. § 48-1114 (Mitchie 1995). The defendants have moved to dismiss this cause of action on the ground that the plaintiff failed to exhaust required administrative remedies before bringing this civil action. I agree with the defendants.
The purpose of the NFEPA is to provide "a comprehensive administrative remedy to persons claiming a violation of the Act, consisting of an administrative hearing and appeal of the administrative ruling to state district court for de novo review." Bruhn v. Foley, 824 F. Supp. 1345, 1348 n. 1 (D.Neb. 1993) (citing Neb. Rev. Stat. Ann. §§ 48-1116 to -1120). Accordingly, "[t]he only instance where it appears an individual may claim a private right of action under the NFEPA is where the alleged violation of the NFEPA is asserted not as the sole cause of action, but as the basis for a claim under Neb.Rev.Stat. § 20-148 (Reissue 1987)." Id.; see also Goolsby v. Anderson, 549 N.W.2d 153, 157, 250 Neb. 306, 312 (Neb.Ct.App. 1996) ("[I]t is clear that the purpose of § 20-148 is to allow plaintiffs to enforce their constitutional and statutory rights in district court without first having exhausted statutory administrative remedies. Section 20-148 was enacted to provide an alternative remedy for plaintiffs who otherwise would be trapped in bureaucratic backlogs such as the one at [the Nebraska Equal Opportunity Commission].").
As the defendants correctly note, however, § 20-148 does not apply to this case. According to the relevant provision of § 20-148:
Any person or company . . . except any political subdivision, who subjects or causes to be subjected any citizen of this state . . . to the deprivation of any rights, privileges, or immunities secured by the United States Constitution or the Constitution and laws of the State of Nebraska, shall be liable to such injured person in a civil action or other proper proceeding for redress brought by such injured person.
Neb. Rev. Stat. Ann. § 20-148 (Mitchie 1999) (emphasis supplied). The defendant NPPD is a political subdivision of the State of Nebraska, thus rendering § 20-148 inapplicable according to its express terms. Accordingly, the plaintiff may not invoke this court's jurisdiction by bringing a private cause of action under the NFEPA without first exhausting the administrative requirements and remedies available to her under the Act.
I conclude that the defendants' motion to dismiss the plaintiff's third cause of action is to be granted.
D. Supplemental Jurisdiction
The defendants have also requested that I decline to exercise supplemental jurisdiction over the plaintiff's NFEPA claim. Since this cause of action has been dismissed, the defendants' request is now moot.
IT IS THEREFORE ORDERED that the defendants' motion to dismiss, filing 11, is hereby denied as to the plaintiff's first and second causes of action and granted as to the plaintiff's third cause of action.