Opinion
Case No. 8:01CV3084
August 19, 2002
MEMORANDUM AND ORDER
This matter is before the Court on the Motion for Summary Judgment (Filing No. 20) filed by the Defendants, Chadron State College and the Board of Trustees of the Nebraska State Colleges. The Motion is supported by a brief and an Evidence Index (Filing No. 21). The Plaintiff, Carol Porter, submitted a brief and filed an Index of Evidence (Filing No. 48).
FACTUAL BACKGROUND
On August 1, 1994, Carol Porter was hired by the Board of Trustees of the Nebraska State Colleges to work at Chadron State College as an Accounting Clerk, II. In September 1996, Porter was promoted to Secretary to the President of Chadron State College, Samuel Rankin. On July 1, 1998, after Thomas Krepel succeeded Rankin as President of the College, Krepel retained Porter. (Filing No. 46.)
On May 24, 1999, Porter told Krepel that she was pregnant and expected to deliver her baby in early January 2000 and that she would request leave in conjunction with the arrival of her child. Porter took maternity leave under the Family Medical Leave Act in late December 1999. On February 10, 2000, Porter filed charges of sex and pregnancy discrimination with the Nebraska Equal Opportunity Commission against Chadron State College, alleging discrimination on the bases of her sex and her pregnancy. (Filing No. 46; Filing No. 48, Ex. 2A.) Porter returned to work on March 27, 2000.
On May 22, 2000, Porter was terminated from her position as Secretary to Krepel. (Filing No. 46.)
On or about June 15, 2000, Porter filed a charge of retaliation against Chadron State College with the Nebraska Equal Opportunity Commission. (Filing No. 46; Filing No. 48, Ex. 2B.)
DISCUSSION
Porter alleged that the Defendants engaged in unlawful employment practices in violation of the following: the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2000e-17 (Counts I, II, III, V, and VI); the Pregnancy Discrimination Act ("PDA"), 42 U.S.C. § 2000e(k) (Count IV); the Federal Medical Leave Act, 29 U.S.C. § 2601-2654 (Count VII); and the Nebraska Fair Employment Practices Act, Neb. Rev. Stat. §§ 48-1101 to 1126, and Neb. Rev. Stat. § 20-148 (Reissue 1997) (Count VIII).
Title VII declares it unlawful for an employer to discharge "or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment" on the basis of the individual's sex. 42 U.S.C. § 2000e-2(a)(1). As amended by the PDA, sex discrimination under Title VII includes discrimination "on the basis of pregnancy, childbirth, or related medical conditions." 42 U.S.C. § 2000e(k). The Family Medical Leave Act entitles eligible employees to 12 workweeks of leave during any 12-month period for the birth of a child, and to care for such child. 29 U.S.C. § 2612. Porter voluntarily dismissed her claims under Nebraska law (Count VIII), and so the Defendants' Motion for Summary Judgment is moot with respect to those claims. Summary Judgment Standard
Pursuant to Federal Rule of Civil Procedure 56, summary judgment is appropriate when, viewing the facts and inferences in the light most favorable to the nonmoving party, "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). See Harder v. ACandS, 179 F.3d 609, 611 (8th Cir. 1999). In making this determination, the function of the Court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court must "look to the substantive law to determine whether an element is essential to a case, and `[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.'" Dulany v. Carhahan, 132 F.3d 1234, 1237 (8th Cir. 1997) (quoting Anderson, 477 U.S. at 248).
The Court must examine the record in the light most favorable to the nonmoving party. Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992). Summary judgment is "properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex v. Catrett, 477 U.S. 317, 325 (1986).
The proponent of a motion for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 322 (quoting Fed.R.Civ.P. 56(c)). In response to the proponent's showing, the opponent's burden is to "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (quoting Fed.R.Civ.P. 56(e)); Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366 (8th Cir. 1997) (quoting Fed.R.Civ.P. 56(e)).
The nonmoving party must show more than "`some metaphysical doubt as to the material facts; [it] must show there is sufficient evidence to support a jury verdict in [its] favor.'" Chism v. W.R. Grace Co., 158 F.3d 988, 990 (8th Cir. 1998) (quoting Matsushita Elec. Indus. Co., Ltd., 475 U.S. at 586). Accordingly, the nonmoving party must "set forth in its opposing brief a separate statement of each material fact as to which it is contended there exists a genuine issue to be tried and as to each shall identify the specific document or discovery response or deposition testimony (by page and line) which it is claimed established the issue." NELR 56.1(b).
Finally, although the Court may not weigh the credibility and persuasiveness of evidence in the context of a motion for summary judgment, if testimony has been irrefutably contradicted by documentary evidence, or the testimony is otherwise inherently incredible, it need not be credited even for purposes of a motion for summary judgment. Walker v. Peters, 863 F. Supp. 671, 672-673 (N.D.Ill. 1994).
Application of Summary Judgment Standard
In the summary judgment context, because Porter relies upon circumstantial evidence, her case is analyzed under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The McDonnell burden-shifting analysis is used for Title VII claims and claims brought pursuant to the FMLA. To establish a prima facie case of unlawful discrimination, Porter must show: 1) she was a member of a protected group; 2) she was qualified for her position; 3) she was discharged; and 4) additional evidence that her discharge was based on a prohibited criterion, such as gender, under circumstances giving rise to an inference of discrimination. Bergstrom-EK v. Best Oil Co., 153 F.3d 851, 857 (8th Cir. 1998); Herrero v. St. Louis Univ. Hosp., 109 F.3d 481, 483-84 (8th Cir. 1997). If Porter successfully establishes her prima facie case, the burden of production shifts to Chadron State College to offer a nondiscriminatory reason for its action. Bergstrom-EK, 153 F.3d at 857. If Chadron State College shows a nondiscriminatory reason for Porter's discharge, the burden shifts back to Porter, who can survive summary judgment if she shows "sufficient admissible evidence from which a rational factfinder could disbelieve [Chadron State College's] proffered reason and find that the [college's] true motivation for its conduct was intentional discrimination." Id. at 857-58.
A similar analysis is followed for claims of retaliation brought under Title VII. To establish a prima facie case of retaliation under Title VII, Porter must show: 1) she was engaged in a protected activity; 2) she suffered an adverse employment action; and 3) the adverse action occurred because she was engaged in the protected activity. Hunt v. Nebraska Pub. Power Dist., 282 F.3d 1021, 1028 (8th Cir. 2002). If the prima facie case is established, the burden shifts to the defendant to show a nondiscriminatory reason for the adverse action. If the defendant meets its showing, the burden then shifts back to the plaintiff to show that the defendant's proffered reason was pretextual. Id.
Porter has produced sufficient evidence to cast doubt on Chadron State College's asserted motivation for its actions, e.g., Porter's alleged poor job performance. Porter's evidence indicates the possibility of pretext. Porter points to evidence showing that she told Krepel, her supervisor, that she was pregnant. This disclosure, and the birth of her child, occurred in close time proximity to Porter's filing of her claim of discrimination and Porter's termination. (Filing No. 48, Ex. 1, Carol Porter Dep., 26:10-12; 28:18-20; Filing No. 48, Exs. 2A and 2B.) Chadron State College argues that Porter was terminated because of problems with her job performance. (Filing No. 21, Ex. 1 Affidavit of Thomas Krepel.) Porter has shown, however, that the disciplinary procedures in the staff handbook were not followed and also that she was not counseled according to the handbook procedures. (Filing No. 48, Ex. 4, Jolene Hersch Dep., 70:17-21; Filing No. 48, Ex. 3, Ronald Busch Dep., 44:12-19 and attachments.) Any deficiencies in Porter's job performance were not brought to the attention of Ronald Busch, former Director of Administrative Services at Chadron State College, who testified that he had no reason to believe that Porter's job performance was deficient. (Filing No. 48, Ex. 3, Busch Dep., 41:24-43:9.) Porter also makes numerous allegations which, if accepted as true by the finder of fact, would support an inference of discriminatory animus on the part of Krepel.
These issues, involving evidence relating to Porter's job performance, also relate to whether Porter can prove the second element of her prima facie case, i.e., whether she was qualified for her position.
The Court finds that there are genuine issues as to material facts regarding Chadron State College's true motivation for Porter's termination which preclude granting summary judgment. See Johnson v. Arkansas State Police, 10 F.3d 547, 552 (8th Cir. 1993) (reversing the district court's findings relating to the prima facie case and pretext in a case involving alleged deficient performance, where the plaintiff was never reprimanded or given an indication that his performance was deficient).
Regarding the FMLA claim, the Defendant argues that Porter cannot establish a private right of action under the FMLA, arguing that an FMLA claim must first be brought before the NEOC. Defendant's Brief in Support of Motion for Summary Judgment at 12. However, exhaustion of administrative remedies is not a prerequisite to the bringing of an FMLA claim. Parrish v. Immanuel Med. Ctr., 92 F.3d 727, 734 (8th Cir. 1996); Ritchie v. Walker Mfg. Co., 963 F.2d 1119, 1123 (8th Cir. 1992); Goolsby v. Anderson, 549 N.W.2d 153, 157 (Neb. 1996).
CONCLUSION
For the reasons discussed, the Court finds that the Defendants' Motion for Summary Judgment (Filing No. 20) should be denied.