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08/31/2018 09:09 AM CDT




                                                        - 937 -
                                  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.
                             - 938 -
           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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          Nebraska Supreme Court A dvance Sheets
                  300 Nebraska R eports
               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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           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
               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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           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
               BROWN v. REGIONAL WEST MED. CTR.
                       Cite as 300 Neb. 937

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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          Nebraska Supreme Court A dvance Sheets
                  300 Nebraska R eports
               BROWN v. REGIONAL WEST MED. CTR.
                       Cite as 300 Neb. 937

      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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               Nebraska Supreme Court A dvance Sheets
                       300 Nebraska R eports
                   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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                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                     BROWN v. REGIONAL WEST MED. CTR.
                             Cite as 300 Neb. 937

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	
      Id.
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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

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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                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                     BROWN v. REGIONAL WEST MED. CTR.
                             Cite as 300 Neb. 937

   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	
      Id.
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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

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.
