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Faulkner v. Douglas County Nebraska

United States Court of Appeals, Eighth Circuit

October 12, 2018

Linda L. Faulkner, an individual Plaintiff- Appellant
Douglas County Nebraska, a political subdivision of the State of Nebraska Defendant-Appellee

          Submitted: May 17, 2018

          Appeal from United States District Court for the District of Nebraska - Omaha

          Before SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges.

          BEAM, Circuit Judge.

         Linda Faulkner appeals the district court's[1] grant of summary judgment in favor of Douglas County Department of Corrections (DCDC) in this employment dispute based upon allegations of gender, age, and, most significantly, disability discrimination under state and federal civil rights laws. Because Faulkner cannot perform the essential functions of her job and was not discriminated against on any other basis, we affirm the district court.

         I. BACKGROUND

         At the time she filed her complaint, Faulkner was a 56-year old woman who worked for DCDC from April 2003 to January 2014, as a Correctional Officer II (COII). Based upon DCDC's job description, a COII was required to be able to control fights between inmates and to restrain combative inmates through use of necessary force at times. The physical requirements in the job description further provided that a COII must be able to stand, walk, sit, climb stairs, run, kneel, stoop, crouch, and move quickly from kneeling to standing positions; lift, grip, push, and pull certain minimal weights and forces, including the ability to lift 20 pounds frequently, lift up to 350 pounds occasionally as part of a team lift, push up to 100 pounds and pull up to 80 pounds occasionally, and push/pull up to 40 pounds on a frequent to occasional basis.

         It was during a combative inmate encounter that Faulkner was injured in August 2012. She injured her shoulder and the lumbar region of her back. She was put on light duty for a short while, and then returned to full duty in late August. On September 4, 2012, Faulkner was again involved in an inmate altercation that ultimately required shoulder surgery in October 2012. She was released to return to sedentary work in late November 2012. After many more doctor evaluations and physical therapy, and having obtained "maximum medical improvement" in April 2013, Faulkner returned to light-duty work in May 2013.[2] Faulkner's functional capacity evaluation (FCE) indicated that her restrictions were: lifting objects to shoulder level restricted to twenty pounds on an occasional basis and ten pounds on a frequent basis, overhead lifting restricted to fifteen pounds or less on an occasional basis, no prolonged or repetitive overhead work, and no pushing or pulling greater than forty pounds. Faulkner continued to work light duty until July 6, 2013, when she was removed from light-duty status because she used the maximum allowable number of days of light duty pursuant to the terms of the Collective Bargaining Agreement (CBA).

         Shortly thereafter, in August 2013, DCDC sent her a letter notifying her that her FCE restrictions precluded her from being able to perform the essential functions of the COII job. In that letter, her supervisor suggested that Faulkner advise him if she believed some type of accommodation would allow her to perform the essential functions of the COII position, or some other position within Douglas County. On October 7, 2013, at a meeting with DCDC officials, Faulkner asked to be indefinitely reassigned to the central control or lobby, or to the Douglas County Department of Motor Vehicles (DMV) as an accommodation for her permanent injuries. Shortly thereafter, on October 11, 2013, Faulkner underwent C5-C7 disc fusion surgery.[3] On January 31, 2014, DCDC officials terminated Faulkner's employment. DCDC indicated this was because she could not physically resume her regular COII duties with or without a reasonable accommodation, she had exhausted the amount of light duty she was entitled to under the CBA, and no positions were available at the DMV.

         On August 17, 2015, Faulkner brought this action against DCDC alleging sex, disability, and age discrimination, as well as a retaliation claim all in violation of state and federal civil rights laws. The district court granted summary judgment in favor of DCDC, finding that Faulkner could not make a prima facie case of sex or age discrimination because no similarly situated males were treated differently, and no similarly situated persons under the age of 40 were treated differently; that she was not physically qualified to do her job so could not prevail on her disability and failure-to-accommodate claims; and that she abandoned her retaliation claim in briefing.[4] Faulkner appeals.


         We review summary judgment de novo, taking all of the evidence and reasonable inferences in favor of the non-moving party and only affirming if there is no genuine issue of material fact. Crozier v. Wint, 736 F.3d 1134, 1136 (8th Cir. 2013).

         A. Sex Discrimination

         To establish a prima facie case of discrimination under the McDonnell Douglas framework, "a plaintiff must show (1) he is a member of a protected class, (2) he met his employer's legitimate expectations, (3) he suffered an adverse employment action, and (4) the circumstances give rise to an inference of discrimination." Pye v. Nu Aire, Inc., 641 F.3d 1011, 1019 (8th Cir. 2011). 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. Bennett v. Nucor Corp., 656 F.3d 802, 819 (8th Cir. 2011). Once the prima facie case is established, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action. Floyd-Gimon v. Univ. of Ark. for Med. Scis. ex rel. Bd. of Trs. of Univ. of Ark., 716 F.3d 1141, 1149 (8th Cir. 2013). If the defendant does so, the plaintiff then has the burden of proving that ...

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