Brown v. Regional West Med. Ctr. , 300 Neb. 937 ( 2018 )


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  • Nebraska Supreme Court Online Library
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    10/19/2018 08:13 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    300 Nebraska R eports
    BROWN v. REGIONAL WEST MED. CTR.
    Cite as 
    300 Neb. 937
    Melinda J. Brown, appellant,
    v. R egional West M edical
    Center et al., appellees.
    ___ N.W.2d ___
    Filed August 31, 2018.   No. S-17-555.
    1.	 Summary Judgment: Appeal and Error. An appellate court will
    affirm a lower court’s grant of summary judgment if the pleadings
    and admitted evidence show that there is no genuine issue as to any
    material facts or as to the ultimate inferences that may be drawn from
    those facts and that the moving party is entitled to judgment as a matter
    of law.
    2.	 ____: ____. In reviewing a summary judgment, an appellate court views
    the evidence in the light most favorable to the party against whom the
    judgment was granted and gives that party the benefit of all reasonable
    inferences deducible from the evidence.
    3.	 Limitations of Actions: Appeal and Error. The point at which a
    statute of limitations begins to run must be determined from the facts
    of each case, and the decision of the district court on the issue of the
    statute of limitations will not be set aside by an appellate court unless
    clearly wrong.
    4.	 Termination of Employment: Workers’ Compensation. To establish
    a prima facie case for retaliatory discharge for filing a workers’ com-
    pensation claim, a plaintiff must establish the following elements: (1)
    The plaintiff filed a workers’ compensation claim, (2) the plaintiff was
    terminated from employment, and (3) a causal link existed between the
    termination and the workers’ compensation claim.
    5.	 Termination of Employment: Workers’ Compensation: Evidence:
    Time. A plaintiff supports an assertion of retaliatory motive by demon-
    strating proximity in time between the workers’ compensation claim and
    the firing, along with evidence of satisfactory work performance and
    supervisory evaluations.
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    Nebraska Supreme Court A dvance Sheets
    300 Nebraska R eports
    BROWN v. REGIONAL WEST MED. CTR.
    Cite as 
    300 Neb. 937
    Appeal from the District Court for Scotts Bluff County: Leo
    P. Dobrovolny, Judge. Affirmed.
    Robert M. Brenner, of Robert M. Brenner Law Office,
    for appellant.
    Howard P. Olsen, Jr., Steven W. Olsen, and John L. Selzer,
    of Simmons Olsen Law Firm, P.C., for appellee Regional West
    Medical Center.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
    Papik, JJ., and Schreiner, District Judge.
    Schreiner, District Judge.
    INTRODUCTION
    Melinda J. Brown appeals from an order of the district court
    granting summary judgment in favor of Regional West Medical
    Center (RWMC) and dismissing her complaint for employment
    discrimination and retaliatory discharge. The district court
    found that Brown’s discrimination claims were barred by the
    applicable statute of limitations. It dismissed her retaliation
    claim on the basis that there was no evidence to support a
    finding that her termination was retaliatory. For the reasons set
    forth below, we affirm the judgment of the district court.
    BACKGROUND
    Brown was employed by RWMC as a customer service
    representative in the patient financial services department. On
    August 16, 2011, Brown fell in the parking lot of RWMC as
    she was leaving work, injuring her right hand and wrist. She
    reported for work the following day, but was instructed to seek
    medical care shortly after she arrived. Brown notified RWMC
    of the injury and made a workers’ compensation claim. Despite
    being cleared to work with certain restrictions as of March 21,
    2012, she has not returned to work since that day.
    After providing Brown with 12 weeks of requested leave
    under the Family Medical Leave Act, RWMC sent a letter to
    Brown on December 13, 2011, advising her that she had been
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    BROWN v. REGIONAL WEST MED. CTR.
    Cite as 
    300 Neb. 937
    approved for an additional 8 weeks of director-approved leave
    which would expire on January 7, 2012. The letter further
    advised Brown that she was “not guaranteed a return to any
    job” but was “encouraged to apply to any posted open posi-
    tion” with RWMC.
    On December 16, 2011, Brown delivered a letter to RWMC
    asking for reasonable accommodations to allow her to con-
    tinue her employment, either in her current department or in
    another department within RWMC. RWMC responded with a
    letter asking Brown to complete an employee accommodation
    request form in order to determine whether she was eligible for
    accommodation. Brown completed the form, writing that she
    had “limited use of [her] Right hand,” and requested the fol-
    lowing accommodation: “Want a job that I can come back to
    after I am cleared by my Doctor . . . .”
    On January 19, 2012, RWMC sent a letter to Brown
    informing her that her period of director-approved leave had
    been exhausted as of January 8, 2012, and that she was being
    placed on furlough until August 15. It explained that although
    her position was not being held, she would remain on the
    employment rolls for purposes of receiving benefits while
    in furlough status. The letter further notified Brown that her
    employment would terminate on August 15 unless she applied
    for and secured another position with RWMC before that
    date. Brown testified that she did not look for or apply for
    any other positions with RWMC, as she felt she should not
    have to reapply.
    On August 15, 2012, RWMC sent a termination letter to
    Brown, stating:
    Following the use of all available leave time, you
    requested, and [RWMC] granted, your move to “Furlough”
    status. The maximum amount of leave and furlough time
    has now been depleted, and you have not returned to
    work with [RWMC] in another position. Therefore, con-
    sistent with our policies, we are now administratively
    ending your employment with [RWMC].
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    BROWN v. REGIONAL WEST MED. CTR.
    Cite as 
    300 Neb. 937
    On December 20, 2012, Brown filed a charge of discrimina-
    tion with the Nebraska Equal Opportunity Commission (NEOC)
    and the U.S. Equal Employment Opportunity Commission
    (EEOC), alleging violations of the Nebraska Fair Employment
    Practice Act (NFEPA) and the Americans with Disabilities Act
    (ADA). She alleged that she was denied reasonable accom-
    modations and that her employment was ultimately terminated
    by RWMC due to her disability. On March 12, 2013, the
    NEOC issued a “right to sue” notice on Brown’s discrimina-
    tion charge.
    Brown filed a complaint in the district court for Scotts Bluff
    County, alleging violations of the ADA and NFEPA for wrong-
    ful termination and failure to accommodate her disability. She
    further alleged that RWMC retaliated against her for filing a
    workers’ compensation claim. RWMC denied the majority of
    Brown’s allegations and asserted the statute of limitations as
    an affirmative defense.
    RWMC moved for summary judgment on the basis that (1)
    Brown’s claims under the ADA and NFEPA were barred by
    the statute of limitations, (2) Brown cannot establish a prima
    facie case for retaliation because RWMC had legitimate non-
    retaliatory reasons for terminating Brown’s employment, and
    (3) Brown’s claims for punitive damages are barred by the
    Nebraska Constitution, and any punitive damages under the
    ADA are barred by the statute of limitations.
    At the summary judgment hearing, RWMC submitted depo-
    sitions of several human resources personnel, who testified
    regarding the leave structure at RWMC. They testified that
    after an employee used his or her 12 weeks of legally man-
    dated leave under the Family Medical Leave Act, RWMC’s
    policies provided for an additional 8 weeks of “general” or
    “director approved” leave. After an employee had exhausted
    12 weeks of leave under the Family Medical Leave Act and
    8 weeks of director-approved leave, RWMC policies provided
    for the employee to be placed on furlough for a period end-
    ing 1 year from the date of the employee’s first absence. An
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    employee on furlough does not have a position with RWMC,
    but is kept on the employment rolls for purposes of benefit eli-
    gibility and is required to apply for an open position in order
    to return to work for RWMC. If an employee on furlough does
    not apply for and obtain another position, his or her employ-
    ment will be administratively terminated at the end of the
    furlough period.
    RWMC also submitted its written leave policy into evidence.
    It states, in part:
    The combination of the different leaves available shall
    not exceed 20 calendar weeks in a rolling 12-month
    period.
    The hospital is not required to, and generally will
    not, reserve an employee’s position beyond a total of 20
    weeks leave time in a rolling 12-month period. In the case
    of an extended medical leave of absence, however, even
    though the employee’s position is no longer reserved, the
    hospital will wait the balance of one full year before offi-
    cially removing the employee’s name from the employ-
    ment rolls. During this time, the status of the employee
    will be designated as “on furlough” and the employee, if
    eligible under the insurance contract, may continue pay-
    ment of their insurance premiums as if they were still in
    their initial 20 weeks of leave of absence. If an employee
    has not returned to active duty in a regular employment
    position prior to the expiration of the furlough date, their
    employment will be terminated.
    If, during the course of a leave of absence, an employee
    is engaged in light duty work, the period(s) of time
    engaged in light duty shall not affect or in anyway [sic]
    extend the above stated one full year clause. Light duty
    assignments shall not collectively exceed six (6) months.
    If, an employee has the appropriate clearance to return
    to work and the return to work date is after 20 weeks of
    leave of absence but before the end of one full year, that
    employee will be considered for any job openings for
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    which they qualify. If no job match can be made within
    the one year period, termination will result. The former
    employee may then continue to apply for positions as an
    outside applicant.
    RWMC also submitted evidence showing that it had placed
    other employees on furlough and terminated their employment
    in accordance with the leave policies described above.
    Brown acknowledged that she did not apply for any other
    positions with RWMC, but testified that she made numerous
    contacts with human resources, her department supervisor,
    and workers’ compensation personnel, asking to be returned to
    work. She testified that she never heard back from anyone at
    RWMC about her accommodation requests.
    The district court granted summary judgment in favor
    of RWMC and dismissed Brown’s complaint. It found that
    Brown’s ADA and NFEPA claims were barred by the appli-
    cable 300-day statute of limitations. It found that the alleged
    discriminatory action took place on January 19, 2012, when
    RWMC informed Brown that her employment would termi-
    nate on August 15 unless she applied for and secured another
    position with RWMC. The time for filing claims under the
    ADA and NFEPA expired 300 days later, on November 16, but
    Brown did not file such claims until December 20. The district
    court found there was no evidence of a subsequent employ-
    ment practice by RWMC that would restart the limitations
    period. Regarding Brown’s common-law retaliation claim, the
    district court found there was no evidence of a causal link
    between Brown’s termination of employment and her filing of
    a workers’ compensation claim. Rather, the evidence showed
    that the termination resulted from RWMC’s following its stan-
    dard policies and procedures for employment termination.
    Brown appeals.
    ASSIGNMENTS OF ERROR
    Brown assigns six errors on appeal, but her arguments can
    be consolidated into three areas. She argues the district court
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    BROWN v. REGIONAL WEST MED. CTR.
    Cite as 
    300 Neb. 937
    erred in (1) finding that her ADA and NFEPA claims were
    barred by the applicable statute of limitations; (2) finding
    that there was no retaliation, in that there was no causal link
    between Brown’s termination of employment and the filing of
    her workers’ compensation claim; and (3) denying her claim
    for punitive damages.
    STANDARD OF REVIEW
    [1,2] An appellate court will affirm a lower court’s grant
    of summary judgment if the pleadings and admitted evidence
    show that there is no genuine issue as to any material facts or
    as to the ultimate inferences that may be drawn from those
    facts and that the moving party is entitled to judgment as a
    matter of law.1 In reviewing a summary judgment, an appel-
    late court views the evidence in the light most favorable to the
    party against whom the judgment was granted and gives that
    party the benefit of all reasonable inferences deducible from
    the evidence.2
    [3] The point at which a statute of limitations begins to
    run must be determined from the facts of each case, and the
    decision of the district court on the issue of the statute of
    limitations will not be set aside by an appellate court unless
    clearly wrong.3
    ANALYSIS
    Statute of Limitations
    Under both the ADA and the NFEPA, a claim must be
    filed with the EEOC and the NEOC within 300 days after the
    occurrence of the alleged unlawful employment practice.4 The
    1
    Knapp v. Ruser, 
    297 Neb. 639
    , 
    901 N.W.2d 31
    (2017).
    2
    Id.
    3
    Strode v. City of Ashland, 
    295 Neb. 44
    , 
    886 N.W.2d 293
    (2016).
    4
    42 U.S.C. §§ 12117(a) and 2000e-5(e)(1) (2012); Neb. Rev. Stat.
    § 48-1118(2) (Reissue 2010).
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    issue presented in this case is when that limitations period
    began to run. RWMC argues that the statute of limitations
    began to run on January 19, 2012, when it notified Brown
    that she had been placed on furlough and that her employment
    would terminate on August 15 if she did not obtain another
    position with RWMC before that date. Brown argues that the
    limitations period did not begin to run until the actual date of
    termination, which was August 15.
    The U.S. Supreme Court addressed a similar issue in
    Delaware State College v. Ricks,5 in which the plaintiff, who
    was a professor at the college, was informed that the college
    had voted to deny him tenure, but was given a 1-year terminal
    contract after which his employment would terminate. The
    plaintiff argued that the statute of limitations for his EEOC
    claim began to run only after his 1-year terminal contract
    expired. The U.S. Supreme Court disagreed and held that the
    limitations period begins to run at the time the employment
    decision is made and communicated to the employee, even
    though the effects of the employment decision may not occur
    until a later date.6
    Here, we find that the limitations period began to run
    when Brown was notified of RWMC’s decision on January
    19, 2012, even though the consequences of that decision
    (i.e., her termination of employment) did not occur until
    August 15. Upon receiving the January 19 letter, Brown
    was on notice that her employment would terminate on
    August 15 unless she applied for and obtained another posi-
    tion with RWMC before that date. As in Ricks, it does not
    matter that the date of termination was delayed, given that
    the employment decision was made and communicated to
    Brown, and her termination of employment was an inevitable
    5
    Delaware State College v. Ricks, 
    449 U.S. 250
    , 
    101 S. Ct. 498
    , 
    66 L. Ed. 2d
    431 (1980).
    6
    
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    consequence of her being placed on furlough and not obtain-
    ing another position within the specified time period. Although
    Brown argues that there is no evidence in the record as to
    when Brown received the January 19 letter, we note that
    her NEOC complaint acknowledges receipt of such letter in
    January 2012.
    We are also not persuaded by Brown’s argument that there
    were numerous acts of continuing violations that occurred
    within the limitations period, such as RWMC’s continued
    failure to make reasonable accommodations. Rather, we con-
    clude that the continuing violations doctrine does not apply
    here because Brown’s allegations are for wrongful termination
    and failure to accommodate, both of which are allegations of
    discrete discriminatory acts that are individually actionable.7
    Because the alleged discriminatory acts are discrete, they must
    have occurred within the limitations period in order to be
    actionable. Additionally, we agree with RWMC’s argument
    that its first alleged failure to make reasonable accommo-
    dations occurred in December 2011 (outside the limitations
    period), and Brown cannot restart the limitations period by
    renewing a previously denied request for accommodation. If
    an employee could render a claim timely by simply renewing
    a previously denied request, the limitations period would be
    rendered meaningless.8
    7
    See, National Railroad Passenger Corporation v. Morgan, 
    536 U.S. 101
    ,
    
    122 S. Ct. 2061
    , 
    153 L. Ed. 2d 106
    (2002); Dick v. Dickinson State
    University, 
    826 F.3d 1054
    , 1059 (8th Cir. 2016) (“‘denial of a request
    for a reasonable accommodation’ . . . ‘is a discrete act of discrimination
    that is an independently actionable unlawful employment practice under
    the ADA’”); Taxi Connection v. Dakota, MN & Eastern R.R. Corp., 
    513 F.3d 823
    , 825 (8th Cir. 2008) (“[t]he continuing violation doctrine does
    not encompass discrete discriminatory acts, such as termination, failure
    to promote, denial of transfer, or refusal to hire, which are individually
    actionable”).
    8
    Mercer v. Southeastern Pennsylvania Transit Auth., 
    26 F. Supp. 3d 432
           (E.D. Pa. 2014).
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    We conclude that the statute of limitations began to run
    when Brown was notified of RWMC’s decision on January
    19, 2012, and expired 300 days later on November 16. Brown
    did not file her claims with the EEOC and NEOC until
    December 20. Thus, the district court did not err in finding
    that Brown’s ADA and NFEPA claims were barred by the
    applicable statute of limitations.
    R etaliation
    [4,5] Brown argues that the district court erred in dismiss-
    ing her common-law retaliation claim. To establish a prima
    facie case for retaliatory discharge for filing a workers’ com-
    pensation claim, a plaintiff must establish the following ele-
    ments: (1) The plaintiff filed a workers’ compensation claim,
    (2) the plaintiff was terminated from employment, and (3)
    a causal link existed between the termination and the work-
    ers’ compensation claim.9 A plaintiff supports an assertion
    of retaliatory motive by demonstrating proximity in time
    between the workers’ compensation claim and the firing,
    along with evidence of satisfactory work performance and
    supervisory evaluations.10
    We agree with the district court that Brown could not
    establish that a causal link existed between her termination of
    employment and the filing of her workers’ compensation claim.
    There was no real temporal proximity, as Brown filed her
    workers’ compensation claim on or about August 17, 2011, and
    RWMC did not place her on furlough until approximately 20
    weeks later. She was then administratively discharged 1 year
    after her first absence. The evidence showed that RWMC’s
    decisions were based on the expiration of Brown’s leave bal-
    ances, in accordance with its policies and procedures, and con-
    sistent with how it treated other similarly situated employees.
    In other words, there was no evidence of retaliation against
    9
    See Riesen v. Irwin Indus. Tool Co., 
    272 Neb. 41
    , 
    717 N.W.2d 907
    (2006).
    10
    
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    Brown for filing a workers’ compensation claim. The district
    court did not err in dismissing this claim.
    Punitive Damages
    Finally, Brown assigns the district court erred in deny-
    ing her claim for punitive damages. Given our conclusions
    above that the district court did not err in dismissing her
    substantive claims, it follows that she was not entitled to puni-
    tive damages.
    CONCLUSION
    For the reasons set forth above, we affirm the judgment of
    the district court.
    A ffirmed.