The Plaintiffs seek injunctive relief and damages.  But according to their attorney, Jefferson Downing, “They really hope to improve the culture of the institution . . . The comments and conditions they have had to endure are completely unacceptable.” 

          The following excerpts from the Complaint outline the conditions that 1^st shift African-American officers have been subjected to:  

• Plaintiffs are African-American employees at the Nebraska State Penitentiary (“NSP”) who, over an extensive period of time, have been subjected to racially offensive comments and racially discriminatory actions that have served to create an intolerable and racially hostile work environment.  This claim is brought pursuant to 42 U.S.C. §§ 1981, 1983, and 1988 for the deprivation of the plaintiffs’ rights secured to them by the First, Fifth, and Fourteenth Amendments to the United States Constitution.

* * *

• For safety and security purposes, it is required of staff to congregate and enter the facility together through what is known as the turnkey entrance.  Plaintiffs arrive for work and with the non-African-American employees of NSP proceed through master control, then through the turnkey area, to the staff dining area for roll call.  Over the last year, it became common practice for a significant number of the non-African-American staff and NSP supervisors to make comments when Plaintiffs arrive to the effect of:  “Looks like the back of the bus is here;” “Smells like fried chicken;”  “The gang has arrived;” “The ‘hood has arrived;” “If the lights went out, all you would see were white teeth;” and other racially charged  comments that are offensive, degrading, and humiliating to the Plaintiffs.
• Once the NSP employees pass through the front entrance, a sergeant is stationed nearby handling a drug-sniffing dog.  As non-African-American employees walk by the canine handler, he generally stands back and lets them pass without incident.  When the Plaintiffs walk through, the canine handler either moves forward or positions himself to have the canine drug-sniff the Plaintiffs.  This, too, is offensive, degrading, and humiliating to the Plaintiffs.
• The Plaintiffs have been subjected to racially offensive words and comments from NSP staff and supervisors that, while directed at inmates, serve to humiliate and embarrass Plaintiffs as African-Americans.  NSP staff have used the word “n_gger” and “n_ggers” in referencing inmates, as well as the term “black mother f____rs,” and other racially derogatory terms.  When observing African-American inmate behavior, the Plaintiffs have been asked by non-African-American staff:  “Why do you blacks act that way?”
• In the summer of 2010, an NSP corporal stated to one of the Plaintiffs that he hates “how blacks act” and that if they were in a group he would “shoot them all.”  The corporal professed to having been a member of a white supremacist group.  When these comments were reported by one of the Plaintiffs to an NSP sergeant, the Plaintiff was told to “Stay away from him; he’s a racist.”

* * *

• After Plaintiffs’ complaints became generally known, two of the Plaintiffs’ vehicles were vandalized while parked in the NSP parking lot.  One vehicle appeared to have been kicked in the side and another had a side view mirror broken and left hanging.
• After Plaintiffs’ complaints became generally known, one of the Plaintiffs was asked by a non-African-American employee near the front entrance, “What’s all this that’s going down . . . ?  You don’t want to be involved and you know what I mean . . . . You should watch your back.”
• After Plaintiffs’ complaints became generally known, one of the Plaintiffs was told by a non-African-American NSP officer that “the problem around here” is that “hotheads stir up trouble” and they (meaning the plaintiffs) had better “watch their backs.”
• After the Plaintiffs’ complaints became generally known, one of the Plaintiffs was told by a non-African-American officer that when he (the Plaintiff) went out into the yard, he had “better pair up” because “you never know what might happen in the yard.”
• Plaintiffs interpreted these remarks as veiled threats that if there would be a physical confrontation with inmates in the yard at NSP, non-African-American staff might not come to the aid of the Plaintiffs.
• In a prison setting, the most critical component of the working environment is the knowledge that despite their personal differences, staff always has one another’s safety at the fore of their minds.  It is an absolute necessity that prison staff protect “each other’s back.”  The veiled threat that some NSP staff might not “be there” for the Plaintiffs, has further served to create a hostile work environment for the Plaintiffs.  
• When Plaintiffs reported these comments in late October 2010 to Defendant Sheair and Defendant Bakewell, the Defendants responded that they would have an outside law enforcement agency investigate the matter.  An officer with an outside law enforcement agency then interviewed several of the Plaintiffs.  At the conclusion of the interviews, he advised the Plaintiffs that the comments did not rise to the level of an illegal threat.
• In late October 2010, the Plaintiffs were summoned to meet with Defendants Bakewell, Sheair, and Staley.  Defendants were late for the meeting and Plaintiffs were made to wait in a room at NSP for approximately two hours for the meeting to begin.  Plaintiffs were shocked and degraded when they saw a picture on the wall of the room that featured an African-American man stooped over picking crops.  One of the Plaintiffs captured an image of the picture with a cell phone camera.
•  When the meeting finally began, Plaintiffs were informed by Defendant Bakewell that this was the first he had heard of any racial problems at NSP.  Rather than address the actions of NSP staff who had made racially insulting and offensive remarks, Defendant Bakewell’s initial response was to blame the Plaintiffs.  Defendant Bakewell was dismissive of the Plaintiffs’ racial concerns and said that he did not like getting involved in “this issue.”  Defendant Bakewell advised the Plaintiffs that he was going to split them up and transfer them out of NSP to different NDCS facilities.  Plaintiffs objected because by working at NSP they have the opportunity to earn overtime and receive other benefits that they were not sure were available to them at other NDCS facilities.
• By placing them in a room for two hours with a picture of an African-American picking crops, making dismissive comments, and threatening an adverse employment action against them, the Plaintiffs felt that the Defendants were not taking the racial concerns of the Plaintiffs seriously and further contributed to the hostile working environment of the Plaintiffs.
• After the meeting with Defendants Bakewell, Sheair, and Staley, word immediately leaked out to NSP staff not in attendance at the meeting that the Plaintiffs were being transferred.  This further served to make the working conditions of the Plaintiffs difficult because it made them to feel that they, and not the racially offensive words and actions of the non-African American staff, were the problem.
• On November 10, 2010 a meeting was held with Plaintiffs and Defendants Houston, Hopkins, Bakewell, and Sheair.  Defendants advised Plaintiffs that the most that could be done to NSP staff who engaged in racially offensive behavior was to put a “B Form” in their employment file noting that their behavior was inappropriate.  Defendants advised the Plaintiffs that it would be difficult to take action to stop the racially offensive comments and behavior of NSP staff.

The entire complaint can be viewed here:  File Stamped Complaint.

SUIT CITES BIZARRE REASONING FOR FIRING
By Juan Perez Jr.
Omaha World Herald
June 30, 2010

A former employee of Omaha’s largest homebuilder has filed a lawsuit alleging that the company’s chief executive officer forced a religious agenda on workers and fired her because her unborn child carried “negative energy.”

The lawsuit was filed in U.S. District Court by Jammie D. Harms of Lincoln, who worked as administrative assistant to John J. Smith, chief executive officer of HearthStone Homes.

Harms alleged that Smith and other company managers “actively attempted to create a spiritual, religious work environment based on concepts incorporating universal energy, concepts of reincarnation, and intuitive spiritualism.”

Smith told employees that past lives can explain current behaviors, and they can be understood through positive and negative force fields, according to the lawsuit.

Harms, who alleges religious and pregnancy discrimination, is seeking back pay, reinstatement and compensatory and punitive damages.

An official with HearthStone Homes denied any wrongdoing and said Harms was fired, along with many other workers, because of the economic downturn that continues to plague the U.S. housing market.

Harms, hired in April 2008, believed she was required to follow these religious beliefs in the workplace and had to attend mandatory training sessions that reinforced the beliefs, said her attorney, Doug Peterson.

In April 2009, about one month after Harms told her boss she was pregnant, the lawsuit alleges that the following incidents occurred:

• Harms was called into a meeting led by Smith and other company managers. They told Harms that she had a troubling “disconnect” with her fetus.

• Harms was asked to take part in a conference call with an Arizona-based psychic to determine “whether or not negative energy was being created with the pregnant plaintiff because she had a male boss versus a female boss.”

• Smith consulted with a chiropractor and “self-described energy worker” who told Smith he shared a former life with Harms’ unborn child and suggested that he “partner” with the baby. Smith declined, saying the baby’s energy was hostile toward him.

Harms, who was paid $45,100 annually, was fired in June 2009.

Neil Smith, a HearthStone vice president who said he is not related to the company’s chief executive, declined to comment on the lawsuit’s allegations.

He said that Harms was let go because of the recession and that she declined the company’s offer of a severance package.

“This would appear to be just her next response as she tries to bring some sort of conclusion to her moving beyond HearthStone,” he said.

Neil Smith acknowledged that the company follows certain practices believed to help employees develop their intuition.

In addition to what he described as coaching sessions that help develop employee potential, he said the company uses massage therapy and creates quiet “meditative-type spaces, where people can take that time to get clear … so they can function at a higher level.”

Though the company’s practices may seem unorthodox, Neil Smith said, they should not be demonized. They even may have contributed to some of the company’s success despite bleak economic conditions, he said.

“The notion of ‘spiritualism’ takes it to more of an esoteric place that I’m not sure is productive,” he said. “We look at the body from a holistic perspective, and there are tons of different resources out there and we’re just open to exploring them.”

The company’s alleged emphasis on spiritualism has been argued before in the federal courts.

The 8th U.S. Circuit Court of Appeals upheld a jury verdict that favored a former HearthStone employee who sued the company for religious discrimination in 2003.

The employee, a Protestant, had alleged that the company fired him because he resisted attending “Mind Body Energy” sessions designed to cleanse his body of negative energy.

Neil Smith, the company vice president, said HearthStone did not want to force its views on any of its employees.

“I’ve not had anybody personally come to me and tell me that it’s been pushed on them,” he said. “We have a pretty open environment here. If someone feels like they had been pushed upon, it’s not while they’ve been working here.”

HearthStone has built homes in Omaha since 1970.

Builder Magazine recently ranked the company No. 28 on its annual Builder 100 list, up from No. 30 in 2008 and No. 64 in 2007, placing the company among the nation’s largest home construction companies.

If you or a loved one have suffered employment discrimination, please call the experienced Nebraska employment attorneys of the Keating, O’Gara Law Firm at 888/234-0621.

Judge dismisses Lancaster Manor defamation suit
Lincoln Journal Star
by Algis J. Laukaitis
March 18, 2010

A judge has dismissed a defamation lawsuit filed by Hunter Management against Kim Kaspar and the union that represented Lancaster Manor employees.

“It’s very good news, and it’s consistent with our theory that this was an attempt to shut down our free speech,” said Lincoln attorney Gary Young, who represented Kaspar and American Federation of State, County, and Municipal Employees Local 2468.

Kaspar is president of the union, which fought unsuccessfully to stop the county board from selling Lancaster Manor, a 293-bed nursing home at 1001 South St. The sale is in the final stage of closing.

During several town hall meetings and appearances before the board, Kaspar and the union voiced concerns about Hunter Management and the care it gave residents. The Evanston, Ill.-based company owns all or part of about 40 nursing homes, including Homestead Rehabilitation Center in Lincoln . . . .

Former Beatrice bank worker wins appeal
Saturday, Mar 14, 2009 – 09:00:17 am CDT
The Associated Press

OMAHA – A federal appeals court has reversed a lower court’s decision against a former Beatrice bank worker who said he lost his job because of his rare voice disorder.

The 8th U.S. Circuit Court of Appeals on Friday said the U.S. District Court was wrong to rule in favor of First National of Nebraska before trial and against Jeffrey Willnerd. There are significant facts in the case that warrant a jury trial.

The case has been sent back to the federal court.

First National is the parent company of First National Bank.

Willnerd, of Beatrice, sued First National in 2005, saying the company’s decision to eliminate his job and refuse to rehire him violated rights guaranteed by the Americans With Disabilities Act.

Years earlier, Willnerd was diagnosed with a neurological voice disorder that made it difficult for him to speak.

First National has said Willnerd’s job was eliminated for economic reasons. The company also said he wasn’t rehired because of the merits of other job applicants, according to court documents.

In 2007, a federal judge granted First National’s request for a summary judgment in its favor, without a trial.

But, said the three-judge appellate panel, “Because reasonable jurors could resolve these outstanding questions in Willnerd’s favor and conclude he is entitled to relief on his claims, we reverse.”

Doug Peterson, Willnerd’s Lincoln-based attorney, said he was encouraged by the decision and believes the court analysis was very complete.

Phone messages left with First National’s attorneys were not immediately returned.

Willnerd began working at a Beatrice bank in 1982. He was primarily responsible for real-estate loans and some commercial and installment lending. In 1983, First National acquired the bank.

In 1999, he noticed his voice was starting to cut out and worsened in following years to the point where he could only whisper. He interacted regularly with customers and didn’t request any accommodations or seek different bank duties.

First National has said that during the same period between 1999 and 2003, the bank branch’s performance suffered. The company realized it needed to cut expenses or boost income. In 2002, it began moving some duties of smaller branches to Omaha and that included some of Willnerd’s responsibilities.

Willnerd’s job was eliminated in September 2003. Later that year, he was diagnosed with a rare neurological voice disorder.

A supervisor later wrote in a memo that a downturn in the economy forced the move. He also described the merits of Willnerd and other employees and concluded that Willnerd’s position as a sales representative was the most expendable, according to court documents.

In total, Willnerd applied for 22 positions with First National between December 2003 and October 2005, but he raised issue with only four instances in his appeal.

“It is not necessarily the case that Willnerd was more qualified than the person actually hired, and at the end of the day, a jury may well accept First National’s proffered rationale,” the panel wrote.

If your employment rights have been violated, call the attorneys of Keating, O’Gara, Nedved, & Peter at 888/234-0621 for a free consultation.