Court Refuses to Dismiss Nebraska Sexual Harassment Suit

The US District Court for the District of Nebraska has refused to grant summary judgment to the City of Lincoln concluding that firefighter/EMT Amber Benson raised sufficient questions of fact to get her sexual harassment and retaliation claims to a jury. Benson filed suit back in 2018, and the case has been in the fire law headlines several times since.

After the suit was filed, Benson accused a captain of abandoning her in a building. She then asked the court to issue an injunction to require the city to discipline the captain, prevent him from supervising her, and appoint an independent investigator. The court refused to issue the injunction, and Benson was terminated for making false allegations about the captain. Following arbitration, Benson was reinstated but quit after working just two days claiming the department failed to reasonably accommodate her needs.

For a more detailed account, here is how the court summarized the facts:

  • Amanda Benson was hired by Lincoln Fire & Rescue (LFR) on July 1, 2013, as a Firefighter/EMT. After serving as a floating firefighter, Benson was assigned permanently to Station 8 on the Engine 8 crew for C shift on October 15, 2014.
  • Captain Shawn Mahler was the Captain of the Truck crew at Station 8.
  • Benson does not properly dispute Defendants’ allegation that Mahler had no authority over promoting, disciplining, firing, or reassigning Benson to significantly different duties, but she does allege that he “manipulated” the schedule at Station 8 to prevent her from working on Truck 8, and that he had supervisory control over her and could significantly influence her “career trajectory.”
  • In November of 2020, Benson became the Acting Captain on Engine 1 at Station 1, then later became the Acting Captain of Truck 1 at that Station.
  • Benson alleges that she was subjected to sexual discrimination and harassment for almost the entirety of her employment with LFR.
  • She filed charges of discrimination with the Nebraska Equal Opportunity Commission (NEOC) on August 15, 2016, and four years later with the federal Equal Employment Opportunity Commission (EEOC), on October 14, 2020.
  • It is safe to say that many-but not all-of Benson’s allegations of discrimination, harassment, and retaliation were based on conduct by Mahler.
  • On April 26, 2021, LFR was called to a cardboard fire within a warehouse.
  • Benson and T1 arrived at the scene before Mahler and T8.
  • Mahler and his crew were called to the warehouse fire mid-morning.
  • The parties dispute several circumstances about that fire and the interaction between Benson and Mahler during that fire.
  • On May 5, 2021, Benson alleged Mahler had abandoned her during the fire, and that she and her crew could have been killed or injured, when she spoke to and submitted a complaint to her superiors at LFR.
  • The LFR conducted an investigation, although Benson disputes its adequacy. Benson was unhappy with the outcome of that investigation, so Benson and her Union filed a grievance on June 9, 2021, seeking a “thorough and honest investigation” and punishment of employees who breached rules of conduct.
  • On June 11, 2021, Benson filed a motion for a preliminary injunction asking this Court to (1) order that the City of Lincoln immediately initiate disciplinary proceedings against Mahler; (2) enjoin Mahler from assignment/dispatch to any fire scene during the pendency of disciplinary proceedings; and (3) appoint an independent third-party investigator to investigate Plaintiff’s complaint about Mahler’s actions at the warehouse fire.
  • On August 16, 2021, another judge of this Court denied Benson’s Motion for Preliminary Injunction.
  • After pre-disciplinary investigations and proceedings, Benson was terminated effective November 2, 2021.
  • Fire Chief David Engler, who is not a party to this litigation, determined that Benson had made false allegations against Mahler and that her actions were “a direct hindrance to the effective performance of LFR’s functions and reflect undue discredit upon the department,” establishing “good cause” for dismissal.
  • The parties agree that after arbitration, Benson was reinstated to LFR on December 21, 2022.
  • However, Benson contends that the City denied “various reasonable accommodations” that she requested and that the failure to accommodate resulted in her “constructive[ ] discharge[ ]” on March 13, 2023.
  • Defendants admit that Benson quit, but deny the remainder of her allegations, alleging instead that Benson returned to work for just two days of training and never reported to her assigned station to resume her duties with LFR.

The ruling addresses a number of topics that may be of interest to the legal eagles, including:

  • Whether Benson mitigated her damages by seeking alternative employment…
  • Attorney-to-attorney barbs about whether procedural maneuvering was “litigation terrorism that is hostile to [the Federal Rules of Civil Procedure], indifferent to the truth, and singularly focused on creating a crushing workload so disproportionate to the needs of the case that defendants will merely pay ransoms to free themselves regardless of the merit of the allegations at issue,” or whether it is nothing more than the proverbial pot calling the kettle black…
  • The doctrine of after acquired evidence… mentioned but not fully expounded upon…
  • The “cat’s paw” theory.

However, the most important issues center upon whether Benson established sufficient facts in dispute to get her case to the jury. While sounding somewhat sympathetic to the city and the fire department, the court concluded that Benson was entitled to her day in court:

  • Although the Court might well conclude otherwise, a reasonable jury could conclude that the myriad incidents of ridicule and insult that Benson claims she suffered-and that the record reasonably supports – over the duration of her employment with LFR demonstrate that the harassment was at least sufficiently “pervasive” to alter the conditions of her employment and did not involve merely a few isolated incidents.
  • Similarly, the record is sufficient for a reasonable jury to conclude that Benson was subjected to retaliatory actions that were “materially adverse,” that is, “well might have dissuaded a reasonable worker from making or supporting a charge of [retaliation].”
  • While the Court has considerable doubt that many of the allegedly retaliatory adverse actions-other than termination- “consider[ed] in turn” would be found by a reasonable jury to be “materially adverse,” the “cumulative force” of those incidents, which a jury must also consider, may be sufficient to meet this standard.
  • A closer question is whether Benson has generated genuine issues of material fact that she suffered any adverse employment action-again, other than termination-that is sufficient to sustain her sex discrimination claims.

Here is a copy of the complaint:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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