Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Case Number: 8:19-cv-00572
Judge: Joseph F. Bataillon
Court: United States District Court for the District of Nebraska
Defendant's Attorney: Michelle A. Peters
Description: Omaha, Nebraska civil rights lawyers represented Plaintiff who sued Defendants under 42 U.S.C. 2000e claiming to have been discriminated against because of her sex.
The following facts are gleaned from the Order on Pretrial Conference, Filing No. 105 at 1-2; the parties respective statements of uncontroverted facts, Filing No. 86, Defendants' Brief at 1-6, Filing No. 95, Plaintiff's Brief at 2-30, and Filing No. 99, Defendants' Reply Brief at 3-10; and from the evidence submitted in connection with this motion, Filing Nos. 87, 96, and 100, Indices of Evid.
The Plaintiff, Katherine Belcastro-Gonzalez, was employed as a Captain by the City of Omaha Police Department at all times relevant to this action. Defendant City of Omaha was and is a political subdivision within the State of Nebraska. The City of Omaha qualifies as an “Employer” under 42 U.S.C. § 2000e. Defendant Todd Schmaderer is employed by the City of Omaha Police Department was the plaintiff's superior for the duration of the matters at issue herein. Todd Schmaderer became Chief of Police in August 2012. On or about March 26, 2018, and August 9, 2018, plaintiff Katherine Belcastro-Gonzalez filed charges of discrimination with the Nebraska Equal Opportunity Commission and EEOC against the defendants, satisfying the procedural requirements of 42 U.S.C. § 2000e-5(a)-(e).
;Belcastro-Gonzalez had filed an allegation of discrimination against then Lieutenant Kerry Neumann (sometimes referred to as “KN”) with the Omaha Police Department in 2010 that was not properly investigated. Another female police officer, Stacy Witkowski, also filed a complaint of workplace harassment. Filing No. 96-8, Deposition of Staci Witkowski at 2-3. In 2010, Alex Hayes was the Chief of Police. Defendant Todd Schmaderer was the Deputy Chief in command of Plaintiff and subsequently for Kerry Neumann (“KN”) once he was promoted to Captain in August of 2010. The City does not dispute that Schmaderer may have looked at Stacy Witkowski's 2010 complaint. With regard to Lieutenant Witkowski's 2010 complaint, Chief Hayes authorized an investigation against Kerry Neumann. The parties agree that both the
plaintiff's 2010 complaint and Stacy Witkowski's 2010 complaint were not properly investigated.
The plaintiff disputes that Todd Schmaderer was not involved in the internal investigation filed in 2010 by plaintiff except to the extent that he may have sent the complaint up the chain of command. Chief Alex Hayes initialed the disposition of that complaint which stated, “Although not sustained, [KN] was verbally spoken to by me. ANH.” From 2011 to 2017, the plaintiff did not have any other problems with KN. The other female officers continued to have problems with Kerry Neumann. Filing No. 96-8, Ex. 14, Deposition of Staci Witkowski at 18-20. Lieutenant Stefani Fidone, who worked with then Lieutenant Kerry Neumann who later became Lieutenant Fidone's captain, went to Deputy Chief Mary Newman about the issues she was having with Kerry Neumann, including her perception that he did not like women. Filing No. 96-2, Ex. 8, Deposition of Stefanie Fidone at 7-9.
In 2015, both Plaintiff and KN (and others) applied for the position of Deputy Chief and from that testing process promotions were made in 2017. The plaintiff did not file a Charge of Discrimination for improper discrimination as a result of the two Deputy Chief promotions off of that list.
The record shows the plaintiff took action in 2017 when Internal Affairs Captain Tom Shaffer had approached Deputy Chief Greg Gonzalez, the plaintiff's husband, and told him that two books (of the Belcastro-Gonzalez and Witkowski complaints) had been located and they were found hidden under a desk. Filing No. 96-1, Ex. 7, Deposition of Katherine Belcastro-Gonzalez at 54-56; Filing No. 96-10, Ex. 16, Dep. Ex. 1, Excerpts of Young Investigation File at 170. Both the plaintiff and Lieutenant Witkowski filed complaints in 2017 in which both complained that their two 2010 internal affairs complaints were not properly investigated. The plaintiff submitted her April 2017 complaint to the Mayor's office. It was appropriate for the plaintiff to file her 2017 complaint with the Mayor under the City Executive Order.
Human Resources Director Tim Young undertook his investigation of the plaintiff's complaint in 2017, but the plaintiff disputes that he generally found no misconduct on the part of the male employee, KN. Filing No. 96-10, Young Investigation File at 169 (stating “the investigation found conflicting statements by multiple parties . . . [and] could not prove or disprove [Belcastro-Gonzalez's] allegations.”). As part of his investigation, Young interviewed 19 people, male and female, sworn officers and civilian employees, including 15 women and that Young issued his finding on September 1, 2017. Filing No. 96-9, Ex. 15, Deposition of Tim Young (“Young Dep.”) at 31-32. Young testified that in his investigation he was going to look into the current conduct of Kerry Neumann or his conduct in the past to see if it is still occurring. Id. at 38-39. The plaintiff disputes the defendant's contention that Chief Schmaderer did not participate in Young's investigation into the plaintiff's complaints and was not involved in the outcome. Tim Young testified that he “probably had some conversation” with Chief Schmaderer about the plaintiff's complaint. Filing No. 87-4, Young Dep. at 81
Kerry Neumann was promoted to Deputy Chief on September 27, 2017. There is evidence that Chief Schmaderer promoted him in spite of being aware of the harassment complaints that Lieutenant Witkowski and the plaintiff had previously lodged against Kerry Neumann. Filing No. 96-14, Investigation File of Complaint of Staci Witkowski
(“Witkowski File”) at 1972; Filing No. 96-13, 2010 Investigation File of Complaint of Katherine Belcastro-Gonzalez at 1874-95. Chief Schmaderer knew these investigations were not properly conducted. Filing No. 96-6, Deposition of Todd Schmaderer (“Schmaderer Dep.”) at 89-90, 92-93. Chief Schmaderer also promoted Kerry Neumann despite his receipt of Tim Young's September 1, 2017, report in which Young stated that there was testimony from female officers that was consistent with plaintiff's claims of disparate treatment. Filing No. 96-9, Young Dep. at 41-42; Filing No. 96-10, Young Investigation File at 168-69. Chief Schmaderer also promoted Kerry Neumann after he had dismissed without prejudice the case filed by Lieutenant Witkowski against Kerry Neumann. Filing No. 96-6, Schmaderer Dep. at 98-100; Filing No. 96-14, Witkowski File at 1972.
In 2018, two additional Deputy Chief positions became available due to retirements. The plaintiff applied for those open positions. After the testing process, Plaintiff ranked first out of eight candidates. All eight candidates were interviewed and the Chief selected candidate #2 (Ken Kanger, white male) and #5 (Michele Bang, white female) on or about June 25, 2018. The plaintiff suffered an adverse employment action when Chief Schmaderer did not promote her to the rank of Deputy Chief on June 27, 2018.
Tim Young testified that there was a lot of “noise” about Belcastro-Gonzalez, and he knew that her filing of a complaint with the Mayor really “ruffled some feathers” in the Omaha Police Department. Filing No. 96-9, Young Dep. at 70-71. This was the first time that Chief Schmaderer had passed over for promotion a person who was number 1 on the list for Deputy Chief. Filing No. 96-6, Schmaderer Dep. at 184-85. Chief Schmaderer made the sole decision to promote Ken Kanger and Michele Bang to Deputy Chief and to not promote Plaintiff.
The plaintiff disputes all of the reasons the Chief articulated as to why he did not promote the plaintiff to the position of Deputy Chief. The plaintiff submits evidence tending to show that the proffered reasons were pretextual.
Outcome: Plaintiff's verdict for $700,000.
10/06/2022 140 MOTION for New Trial by Attorney Michelle A. Peters on behalf of Defendants City of Omaha, Todd Schmaderer.(Peters, Michelle) (Entered: 10/06/2022)
10/06/2022 141 UNOPPOSED MOTION to Extend Motion for Extension of Time to File Brief in Support of Motion for Judgment as a Matter of Law or New Trial MOTION for New Trial 140 by Attorney Michelle A. Peters on behalf of Defendants City of Omaha, Todd Schmaderer.(Peters, Michelle) (Entered: 10/06/2022)
10/06/2022 142 BRIEF in opposition to Motion for Attorney Fees by Attorney Michelle A. Peters on behalf of Defendants City of Omaha, Todd Schmaderer.(Peters, Michelle) (Entered: 10/06/2022)