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300 Nebraska Report

BROWN v. REGIONAL WEST MED. CTR.

Cite as 300 Neb. 937

Melinda J. Brown, appell

v. Regional West Me

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’ compensation 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 demonstrating proximity in time between the workers’ compensation claim and 

the firing, along with evidence of satisfactory work performance and 

supervisory evaluations.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/19/2018 08:13 AM CDT
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300 Nebraska Report

BROWN v. REGIONAL WEST MED. CTR.

Cite as 300 Neb. 937

Appeal from the District Court for Scotts Bluff County: Le

P. Dobrovolny, Judge. Affirm

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, Fu

Papik, JJ., and Schreiner, District Ju

Schreiner, District Jud

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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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 position” with RWMC.

On December 16, 2011, Brown delivered a letter to RWMC 

asking for reasonable accommodations to allow her to continue 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 following 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, consistent 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 discrimination 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 accommodations 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 discrimination charge.

Brown filed a complaint in the district court for Scotts Bluff 

County, alleging violations of the ADA and NFEPA for wrongful 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 nonretaliatory 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 depositions 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 mandated 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 ending 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 eligibility 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 employment 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 officially removing the employee’s name from the employment 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 payment 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 applicable 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 terminate 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 employment 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 standard 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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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 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.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 Limitat

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 position 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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consequence of her being placed on furlough and not obtaining 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 conclude 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 accommodations 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.

Retaliati

[4,5] Brown argues that the district court erred in dismissing her common-law retaliation claim. To establish a prima 

facie case for retaliatory discharge for filing a workers’ compensation 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.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 balances, in accordance with its policies and procedures, and consistent 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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Brown for filing a workers’ compensation claim. The district 

court did not err in dismissing this claim.

Punitive Dama

Finally, Brown assigns the district court erred in denying 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 punitive damages.

CONCLUSION

For the reasons set forth above, we affirm the judgment of 

the district court.

Affirm