Wanda Walker v. First Care Management Group, LLC

United States Court of Appeals
For the Eighth Circuit
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No. 21-1844
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Wanda Walker
Plaintiff - Appellant
v.
First Care Management Group, LLC
Defendant - Appellee
Gen3 Holdings, LLC, doing business as Parsons House on Eagle Run
Defendant
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No. 21-1846
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LaShonn Wright
Plaintiff - Appellant
v.
First Care Management Group, LLC
Defendant - Appellee
Gen3 Holdings, LLC, doing business as Parsons House on Eagle Run
Defendant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: November 16, 2021
Filed: March 1, 2022
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Before BENTON, KELLY, and ERICKSON, Circuit Judges.
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ERICKSON, Circuit Judge.
Wanda Walker (“Walker”) and LaShonn Wright (“Wright”) claim First Care
Management Group, LLC (“First Care”) unlawfully terminated them from their
positions at an assisted-living facility. They each commenced an action alleging
state and federal claims for race discrimination and state claims for unlawful
retaliation. The district court1 granted summary judgment in favor of First Care on
all claims. Walker and Wright appeal and we affirm.
I. BACKGROUND
Walker and Wright were employed at Parsons House on Eagle Run (“Parsons
House”) in Omaha, Nebraska. Walker, beginning in 2015 until her termination in
2017, worked as a caregiver throughout the facility on the 3:00 p.m. to 11:00 p.m.
shift. In 2017, Walker worked primarily in the memory care unit. Walker’s position
required her to assist the residents with daily-living activities and to monitor the
residents to make sure they did not hurt themselves or others. Wright began working
at the facility as a certified nurse/medication aide in 2003 or 2004 and was promoted
to lead medication aide in 2005. Her job duties included administering daily
1 The Honorable Robert F. Rossiter, Jr., then United States District Judge for
the District of Nebraska, now Chief Judge for the District of Nebraska.

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medication, monitoring residents, scheduling medication aides, and overseeing
medication documentation. Like Walker, Wright worked in the memory care unit.
First Care policy required employees working at Parsons House to report
resident abuse by: (1) “immediately” reporting the incident to their supervisor;
(2) completing an incident report; and (3) making a note in the resident’s chart.
Employees were informed that failure to comply with this policy could result in
discipline, including termination. Walker and Wright, along with other employees,
attended a meeting during which they received training on First Care’s reporting
policy as well as the steps they were required to take if they saw a resident abusing
another.
While working at Parsons House, Wright observed B.P., a resident in the
memory care unit who suffers from Lewy Body Dementia, sexually assaulting
female residents in the unit four times and intervened to stop him each time. Walker
observed B.P. sexually assault other residents at least twice and also acted to stop
him. Walker and Wright assert they reported the assaults to a supervisor and
recorded the incidents in an informal communication book, which was kept on the
premises to inform other staff at shift change how the previous shift had gone. On
at least one occasion, Walker and Wright each waited until the next day to report
B.P.’s behavior. The delay and failure to document in the resident’s chart violated
First Care’s policy requiring all employees to immediately report resident abuse to
their supervisor, simultaneously complete an incident report, and note the incident
in the resident’s chart.
Acting on an anonymous complaint about B.P.’s conduct, the Nebraska
Department of Health and Human Services (“DHHS”) made an unannounced site
visit to Parsons House on February 2, 2017. Investigators interviewed several staff,
including Wright, two white employees, and three other black employees. Walker
was not working at the time of the site visit. Wright reported to DHHS that she had
observed B.P. engage in inappropriate actions with residents, that she had reported
those incidents, and that she was led to believe management would “handle it.”

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On February 15, 2017, First Care held a staff meeting to discuss the DHHS
site visit. Penny Bowden, the facility’s executive director, confessed ignorance of
B.P.’s conduct and informed staff that “[a]fter an investigation is over, there would
be consequences and people will be disciplined.” Wright and other staff confronted
Bowden, asserting that Bowden could not plausibly claim ignorance because B.P.’s
conduct had been reported to her and other members of management, but no action
was ever undertaken to address the complaints.
On February 24, 2017, First Care terminated three black employees: Walker,2
Wright, and Latunda Knowles, also a caregiver. Two other black employees and
two white employees, who had also been interviewed during the site visit or who
had confronted Bowden, were not terminated. Bowden informed Walker that she
was fired because she “let a client be in harm’s way.” Wright claims Bowden told
her that she was being let go “due to a family complaint.” Bowden later testified
that Walker and Wright were terminated because, as mandatory reporters, they had
failed to immediately report observed abuse. First Care asserts it terminated Walker,
Wright, and Knowles because they worked during the shifts when most of B.P.’s
inappropriate behavior occurred.
Walker and Wright filed complaints against First Care and the assisted-living
license holder of Parsons House with the Nebraska Equal Opportunity Commission
(“NEOC”). After the NEOC issued its findings, Walker and Wright filed complaints
in state court, asserting: (1) unlawful retaliation after engaging in protected
activities, in violation of Neb. Rev. Stat. § 48-1114(1)(c);3 (2) unlawful retaliation,
in violation of Neb. Rev. Stat. § 71-445 (as raised through Neb. Rev. Stat. § 20-148);
and (3) unlawful race discrimination, in violation of Neb. Rev. Stat. § 48-1101 et.
2 First Care decided to terminate Walker on February 24, 2017, but she was
not notified until she returned from vacation on March 1, 2017.
3 The complaints listed Neb. Rev. Stat. § 48-1114(3). In 2019, the Nebraska
Legislature renumbered § 48-1114(3) to § 48-1114(1)(c), but the operative language
remains the same. L.B. 217, § 1, 106th Leg., Reg. Sess. (Neb. 2019).

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seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq., and 42
U.S.C. § 1981. Walker and Wright sought compensatory and punitive damages.
The cases were removed to federal court and consolidated for purposes of discovery.
First Care successfully moved for summary judgment on all claims.
Wright and Walker appeal the district court’s grant of summary judgment on
all claims except for those brought under Neb. Rev. Stat. §§ 71-445 and 20-148,
which they abandoned below.
II. DISCUSSION
“We review a district court’s grant of summary judgment de novo, viewing
any facts in which there is a genuine dispute in a light most favorable to the
nonmoving party.” Kempf v. Hennepin Cnty., 987 F.3d 1192, 1195 (8th Cir. 2021).
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a).
A. Retaliation in Violation of § 48-1114(1)(c)
Under Nebraska law, an employer may not discriminate against an employee
who “opposed any practice or refused to carry out” any unlawful action. Neb. Rev.
Stat. § 48-1114(1)(c). To establish retaliation under § 48-1114(1)(c), the employee
must show: (1) she engaged in protected conduct, (2) she was subjected to an
adverse employment action, and (3) a causal connection exists between the protected
conduct and the adverse action. Knapp v. Ruser, 901 N.W.2d 31, 48 (Neb. 2017).
The practices opposed “must be unlawful practices of the employer . . . and not
unlawful actions by individuals or coemployees.” Baker-Heser v. State, 963 N.W.2d
59, 69 (Neb. 2021) (quoting Bonn v. City of Omaha, 814 N.W.2d 114, 121 (Neb.
Ct. App. 2012)).

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Walker contends her internal complaints of abuse constitute protected
activity, while Wright claims both her DHHS interview and her confrontation of
Bowden are protected activity. These activities—the report made to DHHS
interviewers, internal complaints, and the confrontation of Bowden about her alleged
ignorance—were not in opposition to any unlawful activity by First Care. Because
they have failed to identify any demand by First Care to engage in an unlawful
action, it follows that they have not established they engaged in protected activity,
and thus their retaliation claims under Neb. Rev. Stat. § 48-1114(1)(c) fail as a matter
of law. See McPherson v. City of Scottsbluff, 931 N.W.2d 451, 462 (Neb. 2019)
(noting one of the elements for a prima face case of retaliation under § 48-1114
requires a showing that the plaintiff engaged in protected conduct).
B. Race Discrimination Claims
Walker and Wright assert race discrimination claims under 42 U.S.C. § 1981,
Title VII, and Neb. Rev. Stat. § 48-1104(1). The analysis for each of these claims is
identical. Beasley v. Warren Unilube, Inc., 933 F.3d 932, 936 n.2 (8th Cir. 2019)
(noting same analysis applies to discrimination claims under Title VII and 42 U.S.C.
§ 1981); Edwards v. Hiland Roberts Dairy, Co., 860 F.3d 1121, 1124 n.3 (8th Cir.
2017) (applying same analysis for discrimination claims brought under Title VII and
Nebraska state law). Where, as here, there is no direct evidence of discrimination,
each plaintiff must show: (1) membership in a protected group; (2) she was qualified
to perform the job; (3) she suffered an adverse employment action; and
(4) circumstances sufficient to permit an inference of discrimination. Edwards, 860
F.3d at 1125. If this burden is met, the burden shifts to the employer to provide a
nondiscriminatory reason for the discharge. Id. If the employer meets its burden,
the plaintiff must demonstrate the employer’s proffered nondiscriminatory reason
was pretext for intentional discrimination. Beasley, 933 F.3d at 937. Walker and
Wright’s burden to show pretext merges with their ultimate burden of persuasion
that they were the victims of intentional discrimination. Guimaraes v. SuperValu,
Inc., 674 F.3d 962, 973 (8th Cir. 2012) (citing Torgerson v. City of Rochester, 643

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F.3d 1031, 1046 (8th Cir. 2011) (en banc)). Proof of pretext coupled with a strong
prima facie case may create a triable question of fact. Id.
We assume without deciding that Walker and Wright have established prima
facie cases. First Care brings forth a nondiscriminatory reason for the terminations:
both employees worked in the memory care unit on the shift where most of B.P.’s
inappropriate conduct took place. Walker and Wright claim pretext. To demonstrate
pretext, a plaintiff may show disparate treatment of similarly situated employees by
the employer. Edwards, 860 F.3d at 1125-26. At the pretext stage, the test for
whether someone is similarly situated is rigorous, and the plaintiffs must establish
comparators outside their “protected group were similarly situated in all relevant
respects.” Johnson v. Securitas Sec. Servs. USA, Inc., 769 F.3d 605, 613 (8th Cir.
2014) (en banc) (citations and quotation marks omitted). While Walker and Wright
claim that white employees were not disciplined, they have only identified a white
supervisor as a comparator. Their failure to identify a similarly situated comparator
is fatal to their claims. See Rowles v. Curators of Univ. of Mo., 983 F.3d 345, 355
(8th Cir. 2020) (determining summary judgment was appropriate when the proffered
comparators were not similarly situated in all relevant respects).
C. Excluded Evidence
Walker and Wright also appeal the district court’s exclusion of the NEOC
investigator notes and reports on hearsay grounds. We need not resolve whether the
hearsay issue could be cured at trial because Walker and Wright have not pointed to
any fact or statement within the notes or reports that would change the outcome. As
to Walker and Wright’s retaliation claims, we assumed as true their allegations of
protected conduct and found they were insufficient as a matter of law. Similarly, we
found Walker and Wright’s failure to identify a sufficiently similar comparator was
fatal to their race discrimination claims. Because they have not directed us to
anything in the excluded notes or reports that would cure these substantive defects,
Walker and Wright have failed to raise a genuine issue for trial. Smith v. Kilgore,

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926 F.3d 479, 485 (8th Cir. 2019) (affirming grant of summary judgment when there
was no “sufficient dispute to require submission to the jury”).
III. CONCLUSION
We affirm the district court’s grant of summary judgment.
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