MICHELLE PETERS v. CITY OF OMAHA JEAN STOTHERT DEBORAH SANDER (2025)

MEMORANDUM AND ORDER REGARDING DEFENDANTS’ MOTION TO DISMISS IN PART

In this case, a female Deputy City Attorney in the Civil Division of the Law Department of the City of Omaha alleges claims against the City, the Mayor, and the City's Human Resources Director arising from the hiring of an allegedly less-qualified male candidate to become the City Attorney and the City's alleged response to her complaints about his hiring. See generally Filing 41. Defendants filed a Motion to Dismiss, Filing 43, seeking dismissal of the Deputy City Attorney's equal protection claims against the City and the Human Resources Director and dismissal of her retaliation claims under Title VII and the Nebraska Fair Employment Practice Act (NFEPA) against the City. Defendants do not seek dismissal at this point in the litigation of the Deputy City Attorney's sexual discrimination claim under Title VII and NFEPA against the City or her equal protection claim against the Mayor. For the reasons set out below, Defendants’ Motion to Dismiss is granted.

I. INTRODUCTION

A. Factual Background

Because this matter is before the Court on a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court considers the following allegations from Plaintiff's Second Amended Complaint as true—to the extent that they are nonconclusory—for the purposes of ruling on this Motion. See Bauer v. AGA Serv. Co., 25 F.4th 587, 589 (8th Cir. 2022) (citing Pietoso, Inc. v. Republic Servs., Inc., 4 F.4th 620, 622 (8th Cir. 2021)). Unfortunately, Plaintiff's Second Amended Complaint is rife with conclusory opinions that Plaintiff presents as factual allegations.

1. Parties and Central Figures

Plaintiff Michelle Peters has worked for the City of Omaha Law Department for 26 years and currently serves as Deputy City Attorney in the Civil Division. Filing 41 at 1 (first ¶ 2), 4 (¶ 16). Defendant City of Omaha is a political subdivision in Douglas County, Nebraska. Filing 41 at 2 (¶ 3). Defendant Jean Stothert is currently the Mayor of Omaha, Nebraska, and was also the Mayor of the City of Omaha at the times relevant to this lawsuit. Filing 41 at 2 (¶ 6). Defendant Deborah Sander was the Human Resources Director for the City of Omaha at the relevant times. Filing 41 at 2 (¶ 7). Nonparty Paul Kratz, the former City Attorney, retired from his position as the head of the Law Department on December 11, 2020. Filing 41 at 3 (¶ 17). Nonparty Matt Kuhse was appointed as the Interim City Attorney, Filing 41 at 3 (¶ 19), and he was later selected to fill the permanent City Attorney position, Filing 41 at 6 (¶ 40).

2. Preparations for the Hiring of a New City Attorney

When Mr. Kratz retired as City Attorney, Mayor Stothert had to appoint an interim City Attorney. Filing 41 at 3 (¶¶ 17–19). Peters alleges that the City of Omaha has a facially neutral employment policy that provides for provisional appointments as follows:

When there is no appropriate list available, or for the purpose of filling the position of an employee in the classified service who is on extended leave of absence, the director may authorize the provisional appointment of a person meeting the prerequisites for the class to which the position is allocated. Any such provisional appointment shall terminate not later than 30 days after the establishment by the director of an appropriate eligibility list. Any time served by an employee under a provisional appointment may, with the approval of the director, be deducted from the probationary period if the employee is subsequently appointed from a list to the same or another position.

Filing 41 at 4 (¶ 22) (quoting Omaha Municipal Code § 23-237).¹

Peters alleges that she was better qualified than Kuhse to fill the interim and permanent City Attorney positions. See Filing 41 at 1 (¶ 2) (“Despite Ms. Peters’ qualifications and superior performance in all objective assessments of the application process for the vacant City Attorney position, the City of Omaha, through Mayor Jean Stothert, selected [Kuhse] a less qualified male candidate for the role.”). Peters alleges that her duties and experience in the Civil Division of the Law Department include the following:

Ms. Peters has handled dozens of jury trials in state and federal court, is currently the only attorney in the City of Omaha Law Department with federal civil jury trial experience, and has overseen civil litigation for the City of Omaha for the past decade. During this time, Ms. Peters was responsible for and gained experience assigning cases, mentoring and advising less senior attorneys, and assisting in the direction of litigation for the City of Omaha. Ms. Peters is also responsible for advising the Omaha Police Department, the Parks, Recreation and Public Property Department, the Omaha Public Library and other city departments on a wide variety of complex legal issues.

Filing 41 at 1 (first ¶ 2). In contrast, Peters alleges the following concerning Kuhse's qualifications:

Mr. Kuhse had no civil litigation nor civil trial experience before assuming the Interim City Attorney role. Prior to his appointment as Interim City Attorney, Mr. Kuhse was the City Prosecutor for the City of Omaha. His prior experience was in the Douglas County Attorney's office handling criminal matters only.

Filing 41 at 4 (¶ 20). Indeed, Peters alleges,

Prior to appointing Mr. Kuhse as Interim City Attorney, the City, through Human Resources Director, Deb Sander, changed the requirements for the City Attorney position so Mr. Kuhse could meet the minimum qualifications for the interim role. Specifically, the City changed several of the “Required Knowledge, Skills and Abilities” of the City Attorney position adding the phrase “or the ability to lea[r]n.” For example, instead of requiring “Knowledge of the City ordinances and accepted legal and court interpretations;” the requirement was changed to “Knowledge of or the ability to learn City ordinances and accepted legal and court interpretations.” In addition, they changed another requirement from “Ability to present and argue cases in court,” to “Ability to supervise and evaluate presentations and arguments in court.” (emphasis added).

Filing 41 at 3–4 (¶ 20). Mayor Stothert named Matt Kuhse as the Interim City Attorney in January 2021. Filing 41 at 3 (¶ 19).

The City originally posted the permanent City Attorney position in January 2021, and Peters applied for it, but Kuhse did not. Filing 41 at 5 (¶¶ 28–29). Peters alleges that there were several qualified applicants for the position, but Mayor Stothert “pulled” the posting after the application process had already begun. Filing 41 at 5 (¶ 29). Peters alleges that she “is not aware of any other situation where the City of Omaha pulled a job posting for a leadership position where applicants had already submitted applications and Training and Experience forms had been disseminated.” Filing 41 at 5 (¶ 30).

The permanent City Attorney position was re-posted in July 2021, at which time Peters reapplied. Filing 41 at 5 (¶¶ 31–32). Kuhse also applied at that time and allegedly stated that “he did so at the strong urging of Mayor Jean Stothert,” although there are no allegations about when Kuhse made that statement or to whom. Filing 41 at 5 (¶ 32). Peters alleges,

At the time he applied for the re-posted position, the majority of Mr. Kuhse's experience for the position was based on his seven months in the appointed Interim City Attorney role, a position he lacked the minimum qualifications to assume prior to the City of Omaha amending the qualifications to allow for Mr. Kuhse's appointment.

Filing 41 at 5 (¶ 33). Peters alleges that “[t]o [her] knowledge, she ranked first in the application process after submitting her Training and Experience forms,” although she does not allege the source of that knowledge or the basis for the alleged ranking. Filing 41 at 5 (¶ 34).

3. The Hiring Process for City Attorney

It is perhaps best to let Peters's allegations about the rest of the interview and hiring process speak for themselves. Peters alleges,

35. On September 9, 2021, the City of Omaha interviewed Ms. Peters before an all-male panel, which included Mayor Stothert's Chiefs of Staff, Tom Warren and Keith Station, as well as Mayor Stothert's friend and campaign contributor, John Fullencamp[,] and OPPD Labor Relations Director Steve Kerrigan.

36. After the panel interview and Training and Experience form submission, Ms. Peters still ranked first out of all candidates for the City Attorney position.

37. Ms. Peters sat for a final, personal interview with Mayor Stothert and four others on September 19, 2021.

38. Ms. Peters interviewed strongly and remained the most qualified candidate.

39. Ms. Peters previously served on an interview panel for a position with the City of Omaha where similar questions were asked the applicant, and Ms. Peters used those questions to prepare for her interview, so she was well-prepared for all interview questions.

Filing 41 at 6 (¶¶ 35–39).

On October 7, 2021, Sander told Peters that the City selected Kuhse to fill the position permanently. Filing 41 at 6 (¶ 40). Peters alleges that the City made the selection “through Mayor Jean Stothert.” Filing 41 at 1 (first ¶ 2). Peters alleges the following concerning Mayor Stothert's rationale for her decision:

41. According to Mayor Stothert, she did not want Ms. Peters for the position because Ms. Peters allegedly failed to make eye contact with Mayor Stothert during the personal interview.

42. Ms. Peters is an experienced litigator with extensive jury trial experience. She is also an instructor at the Omaha Police Academy. She made eye contact with all interviewers, including Mayor Stothert, during the personal interview.

Filing 41 at 6 (¶¶ 41–42).

Peters alleges the following further comparison of her qualifications with Kuhse's and the allegedly discriminatory nature of Kuhse's selection:

43. Mr. Kuhse would not have been qualified for the position had he not already served as Interim City Attorney for the previous nine months, as he had no civil litigation experience, had no experience advising the Mayor, the City Council or any City department except for minor prosecutorial related issues.

44. Ms. Peters was more qualified than Mr. Kuhse for the position because she had institutional knowledge of the department, extensive civil litigation experience specific to the City of Omaha, including acting as lead council in multiple civil trials, and already held leadership responsibilities within the department.

45. In hiring a significantly less experienced male candidate for the City Attorney position, despite Ms. Peters having decades of experience in civil litigation working in the Law Department, advising the Mayor, City Council, and other city departments, Mayor Stothert and the City of Omaha discriminated against Ms. Peters based on her sex.

Filing 41 at 6 (¶¶ 42–45).

4. Peters's Allegations of Retaliation

The Court will set out in full Peters's allegations about alleged retaliation below in § II.D.3 in the Court's analysis of whether Peters has stated a retaliation claim upon which relief can be granted. For now, the Court will summarize those allegations. Peters alleges that prior to her administrative charges of discrimination against the City, she had overseen the City's representation of certain departments and was involved in discussions and press conferences pertaining to those departments. Filing 41 at 7 (¶¶ 46–47). She alleges that after filing her charges, “the City of Omaha prevented [her] from completing her duties.” Filing 41 at 7 (¶ 48). She also alleges that when the City Attorney was unavailable either she or another experienced city attorney, Bernard in den Bosch, attended cabinet and City Council meetings, but after she filed her charge she was “excluded ․ from this responsibility.” Filing 41 at 7 (¶¶ 49–50). Peters also alleges that she was denied permission to work a hybrid schedule split between the office, court, and home, Filing 41 at 7 (¶ 51); denied an FMLA request to telecommute, Filing 41 at 7 (¶¶ 52–53); and excluded from and lied to about a “closed-door meeting” of Kuhse and other staff about her “personal and confidential employment matters,” Filing 41 at 7 (¶¶ 54–55). Finally, Peters alleges that she requested that the City investigate her allegations of retaliation, but Labor Relations Director Bree Robbins issued a finding of “no retaliation” without ever interviewing Peters. Filing 41 at 7 (¶¶ 56–57).²

B. Procedural Background

Peters filed her original Complaint in this matter on November 8, 2023. Filing 1. She filed an Amended Complaint on May 7, 2024. Filing 20. Defendants filed an Answer and Affirmative Defenses to Plaintiff's Amended Complaint on May 21, 2024. Filing 21. On November 25, 2024, Defendants filed a “[Rule] 12(c) Motion for Partial Judgment on the Pleadings” (the Rule 12(c) Motion) as to Counts II through V of Peters's Amended Complaint. Filing 28. Peters was granted an extension to December 23, 2024, to file her opposition to Defendants’ Rule 12(c) Motion. Filing 31. On December 23, 2024, Peters filed both a Motion for Leave to File Second Amended Complaint, Filing 34, and her Opposition to Defendants’ Rule 12(c) Motion, Filing 35. Over Defendants’ opposition, a magistrate judge granted Peters's Motion to Amend. Filing 40. Peters filed her Second Amended Complaint as authorized on January 21, 2025. Filing 41. On January 23, 2025, because Peters had filed a Second Amended Complaint, the Court denied Defendants’ Rule 12(c) Motion without prejudice to reassertion as to Peters's Second Amended Complaint. Filing 42.

A key difference between Peters's First Amended Complaint and her Second Amended Complaint is that the further amendment dropped Peters's disparate impact claim under Title VII and NFEPA. Compare Filing 20 at 8 (Claim II), with Filing 41 (including no such claim). Thus, Peters now asserts four claims. Claim I against the City alleges disparate treatment sex discrimination in violation of Title VII and NFEPA. Filing 41 at 8. Claim II against the City alleges violation of the equal protection clause of the United States Constitution. Filing 41 at 9. Claim III against Mayor Stothert and Sander also alleges violation of the equal protection clause of the United States Constitution. Filing 41 at 10. Claim IV against the City alleges retaliation in violation of Title VII and NFEPA. Filing 41 at 11.

On February 4, 2025, Defendants filed the Motion to Dismiss now before the Court seeking dismissal of all or parts of Claims II through IV of the Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Filing 43 at 1. Defendants argue that the challenged claims fail to plead sufficient prima facie causes of action and fail as a matter of law. Filing 43 at 1. Defendants state that they do not seek dismissal of the equal protection claim against Mayor Stothert in Claim III. Filing 44 at 1 n.1. They also do not seek dismissal of any part of Claim I of the Second Amended Complaint, see generally Filing 43, which alleges disparate treatment sex discrimination by the City, Filing 41 at 12. Defendants’ Motion to Dismiss is now fully submitted.

II. LEGAL ANALYSIS

The Court will consider in turn Defendants’ challenges to the three claims at issue. However, the Court will first summarize the standards for dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). A reminder of these standards is particularly appropriate where part of Peters's strategy is to denigrate Defendants’ motives for seeking dismissal rather than to argue the sufficiency of her pleading. Specifically, Plaintiff argues,

If Defendants are entitled to pre-trial dismissal of [Peters's] claims, they will be in an excellent position to make their arguments after the close of discovery. Defendants’ decision to bring their [prior Rule] 12(c) motion for judgment on the pleadings after [Peters] had already served discovery requests should raise serious questions as to what evidence Defendants seek to avoid producing. Defendants’ motives are best illuminated, however, by what they do not say. Indeed, Defendants’ omission of directly relevant precedent from the United States Supreme Court demonstrates Defendants are motivated not by a desire to curtail “unwarranted and expansive discovery on baseless allegations,” but by fear that application of the law to the facts of [Peters's] case will ultimately vindicate her claims.

Filing 45 at 3. The Court is not swayed by such ad hominem attacks. Rather, the Court will resolve Defendants’ Motion to Dismiss based on Peters's allegations in her Second Amended Complaint and applicable Rule 12(b)(6) standards.

A. Rule 12(b)(6) Standards

To state a claim, a complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Nevertheless, Federal Rule of Civil Procedure 12(b)(6) provides for a pre-answer motion to dismiss “for failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “A claim survives a Rule 12(b)(6) motion to dismiss only if the complaint's nonconclusory allegations, accepted as true, make it not just ‘conceivable’ but ‘plausible’ that the defendant is liable.” Mitchell v. Kirchmeier, 28 F.4th 888, 895 (8th Cir. 2022) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 680–83 (2009)). To put it another way, a court “must determine whether a plaintiff's complaint ‘contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ ” Far E. Aluminium Works Co. v. Viracon, Inc., 27 F.4th 1361, 1364 (8th Cir. 2022) (quoting Braden v. WalMart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)).

In ruling on a Rule 12(b)(6) motion, a court must “accept ‘the facts alleged in the complaint as true and draw[ ] all reasonable inferences in favor of the nonmovant.’ ” Bauer, 25 F.4th at 589 (citation omitted). On the other hand, “[m]ere conclusory statements and factual allegations lacking enough specificity to raise a right to relief above the speculative level are insufficient to support a reasonable inference that the defendant is liable.” Richardson v. BNSF Ry. Co., 2 F.4th 1063, 1068 (8th Cir. 2021) (internal quotation marks and citations omitted). A court also need not accept a pleader's “legal conclusions drawn from the facts.” Knowles v. TD Ameritrade Holding Corp., 2 F.4th 751, 755 (8th Cir. 2021). Nor is a court required to wait to see if more specific information becomes available through the discovery process to decide if a plaintiff can state a claim. Steinbuch v. Cutler, 518 F.3d 580, 591 (8th Cir. 2008) (finding no abuse of discretion in refusing to allow discovery where a complaint lacked sufficient factual allegations to state a claim).

Ultimately, “[a] claim is plausible when ‘the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” Christopherson v. Bushner, 33 F.4th 495, 499 (8th Cir. 2022) (quoting Iqbal, 556 U.S. at 678). In contrast, “ ‘[w]here a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility.” Id. (internal quotation marks and citations omitted).

Under this standard, “ ‘threadbare recitals of the elements of a cause of action’ cannot survive a [Rule 12(b)(6)] motion to dismiss.” Du Bois v. Bd. of Regents of Univ. of Minnesota, 987 F.3d 1199, 1205 (8th Cir. 2021) (quoting Iqbal, 556 U.S. at 678). The plaintiff is not required to plead facts establishing a prima facie case to survive a Rule 12(b)(6) motion, because the prima facie case is an evidentiary standard, not a pleading requirement. Wilson v. Ark. Dep't of Hum. Servs., 850 F.3d 368, 372 (8th Cir. 2017) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002)). Even so, the “elements of the prima facie case are [not] irrelevant to a plausibility determination.” Blomker v. Jewell, 831 F.3d 1051, 1056 (8th Cir. 2016) (cleaned up). Instead, “such elements are part of the background against which a plausibility determination should be made.” Id. Specifically, the elements may be used as a “prism to shed light upon the plausibility of the claim.” Id. (citation omitted). The Eighth Circuit Court of Appeals has cautioned that “the complaint should be read as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible.” Braden, 588 F.3d at 594.

The Court will apply these standards to each of the challenged claims.

B. The Equal Protection Claim Against the City

The first claim at issue on Defendants’ Motion to Dismiss is Claim II of the Second Amended Complaint against the City alleging violation of the equal protection clause of the United States Constitution. Filing 41 at 9. The Court begins its analysis with a summary of the parties’ arguments.

1. The Parties’ Arguments

Defendants argue that this claim fails because Peters does not allege facts to suggest the existence of an official or unofficial policy of intentional discrimination. Filing 44 at 1–2. Defendants argue that to state an equal protection claim against a governmental entity such as the City, a plaintiff must identify a policy or custom that caused the plaintiff injury. Filing 44 at 6. The essence of Defendants’ argument for dismissal of this claim is the following:

Peters’ Equal Protection claim against the City of Omaha lacks any factual basis to suggest that an official policy or custom caused her injury. Peters raises only a conclusory allegation that the City “discriminated against Plaintiff and others by establishing, maintaining, and enforcing policies which create or foster discrimination against women.” (Dkt. No. 41, Second Amended Complaint ¶ 69). Peters provides no other details about these alleged “policies” or the officials responsible for establishing, maintaining, or enforcing them. Vaguely referencing “policies” is insufficient to identify any specific, enduring practice by the City.

Filing 44 at 7. Defendants add that Peters's allegation that the City appointed six males in 10 years to provisional appointments under Omaha Municipal Code § 23-237 is not evidence of an “official policy.” Filing 44 at 7.

Peters opposes dismissal of this claim by challenging Defendant's view of what constitutes “official policy.” Filing 45 at 6. She argues that even a single decision by a municipal policymaker can establish a municipality's liability under 42 U.S.C. § 1983. Filing 45 at 6. Moreover, she argues that “official policy” encompasses more than formal rules or understandings and may not even be committed to writing, if the evidence shows adoption of a particular course of action made by an authorized decisionmaker. Filing 45 at 6. In this case, Peters argues that Mayor Stothert, the individual who made the decision to appoint Kuhse as the City Attorney both provisionally and permanently, is the highest official responsible for appointing all officers and employees in the executive branch under Omaha Municipal Code § 3.01 and that she is “the official appointing authority” for officers in the City's executive branch under Omaha Municipal Code § 3.04. Filing 45 at 6–7.³ Thus, Peters argues, “Mayor Stothert is a policymaker for the City of Omaha, so her decisions regarding matters for which she is responsible are the ‘official policy’ of the City of Omaha.” Filing 45 at 7. Peters argues that Mayor Stothert's decision to appoint Kuhse, standing alone, is the official policy of the City of Omaha. Filing 45 at 7. Similarly, Peters argues that pursuant to Omaha Municipal Code § 6.06, Sanders exercised her authority as Human Resources Director when she changed the job requirements for the City Attorney position so that Kuhse could be provisionally appointed despite his lack of qualifications, which also represented City policy. Filing 45 at 7–8. Lastly, Peters argues that Defendants have used Omaha Municipal Code § 23-237 in a discriminatory way to provide male candidates with an advantage in applying for permanent positions, which also represents City policy. Filing 45 at 8.

In reply, Defendants argue that municipal liability for a single decision arises only where the decisionmaker possesses the final authority to establish municipal policy with respect to the action ordered, but final policymaking authority is not the same as final decisionmaking authority. Filing 46 at 2. More specifically, Defendants argue that the authority to hire and fire does not inherently include responsibility for crafting related policies. Filing 46 at 2. Defendants argue that Peters cites no basis for labeling Mayor Stothert a policymaker for employment policy for the City where Omaha Municipal Code § 6.04 vests employment policymaking authority in the Personnel Board and the City Council, not the Mayor. Filing 46 at 4. Furthermore, Defendants point out that while other department directors may be appointed or removed by Mayor Stothert, the “head of the Law Department is selected through and is under civil service.” Filing 46 at 4 (quoting Omaha Municipal Code, Prefatory Synopsis, and citing Omaha Municipal Code § 3.09). Thus, Defendants argue that Mayor Stothert's authority to make discretionary employment decisions is constrained by policies not of her making. Filing 46 at 4. Likewise, Defendants argue that Sander had no policymaking authority because her responsibility to prepare a record of responsibilities for City positions is subject to review and approval by the Personnel Board and eventually by the City Council. Filing 46 at 5–6 (citing Omaha Municipal Code § 6.06).

2. Municipal Liability for Constitutional Violations

“Local governmental entities are ‘persons’ that may be held liable under 42 U.S.C. § 1983.” Poemoceah v. Morton Cnty., N. Dakota, 117 F.4th 1049, 1057 (8th Cir. 2024) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690–92, 694 (1978)). “Under Monell, ‘[s]ection 1983 liability for a constitutional violation may attach to [the political subdivision] if the violation resulted from (1) an “official [government] policy,” (2) an unofficial “custom,” or (3) a deliberately indifferent failure to train or supervise.’ ” Sorcan v. Rock Ridge Sch. Dist., 131 F.4th 646, 651 (8th Cir. 2025) (quoting Corwin v. City of Independence, 829 F.3d 695, 699 (8th Cir. 2016), in turn quoting Monell, 436 U.S. at 691). The Eighth Circuit then explained the difference between “policy” and “custom” as follows:

“Policy and custom are not the same thing.” [Corwin, 829 F.3d] at 699-700. A custom is “a persistent, widespread pattern of unconstitutional conduct of which officials have notice and subsequently react with deliberate indifference or tacit authorization.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 536 (8th Cir. 1999). A policy, by contrast, is “a deliberate choice of a guiding principle or procedure made by the [government] official who has final authority regarding such matters.” Corwin, 829 F.3d at 700. A single decision by a government's “authorized decisionmakers” to adopt a particular course of action “surely represents an act of official government policy,” regardless of “whether or not that body had taken similar action in the past or intended to do so in the future.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (internal quotation marks omitted).

Sorcan, 131 F.4th at 651. An “official policy” may even be unwritten. Id.

Not every decision of a final decisionmaker imposes liability on a municipality, however. Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986) (“[W]e hasten to emphasize that not every decision by municipal officers automatically subjects the municipality to § 1983 liability.”). Rather, municipal liability under § 1983 “attaches only where the decision-maker possesses final authority to establish municipal policy with respect to the action ordered.” Barnett v. Short, 129 F.4th 534, 545 (8th Cir. 2025) (quoting Soltesz v. Rushmore Plaza Civic Ctr., 847 F.3d 941, 946 (8th Cir. 2017)). Somewhat more specifically,

“Municipal liability ‘may be imposed for a single decision by municipal policymakers’ who possess ‘final authority to establish municipal policy with respect to the action ordered.’ ” Hamilton v. City of Hayti, 948 F.3d 921, 929 (8th Cir. 2020), quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (majority opinion). “[T]he challenged action must have been taken pursuant to a policy adopted by the official or officials responsible under state law for making policy in that area of the city's business.” City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion), citing Pembaur, 475 U.S. at 482-83, and n.12, 106 S.Ct. 1292 (plurality opinion).

Felts v. Green, 91 F.4th 938, 942 (8th Cir. 2024). Courts “look to local law to determine who has final policymaking authority.” Barnett, 129 F.4th at 545 (citing Bolderson v. City of Wentzville, 840 F.3d 982, 985 (8th Cir. 2016)); Felts, 91 F.4th at 942 (“To determine whether an official has final policymaking authority, this court [r]eview[s] the relevant legal materials, including state and local positive law, as well as custom or usage having the force of law.” (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989), in turn quoting Praprotnik, 485 U.S. at 124 (plurality opinion))). “The identification of final policymakers is a question of law to be decided before a case is submitted to the jury․” Gustilo v. Hennepin Healthcare Sys., Inc., 122 F.4th 1012, 1018 (8th Cir. 2024) (citing Soltesz, 847 F.3d at 946–47).

3. Mayor Stothert and Sander Lacked Final Policymaking Authority as to the Hiring of the City Attorney, So the City Is Not Liable under Monell

Peters's equal protection claim against the City founders on the legal question of whether either Mayor Stothert or Human Resources Director Sander had final policymaking authority concerning the hiring of the City Attorney such that the City could be liable under Monell. Gustilo, 122 F.3d at 1018 (explaining that who is a final policymaker is a question of law). Looking at local law, it is clear that neither Mayor Stothert nor Sander had the required final policymaking authority. See Barnett, 129 F.4th at 545 (explaining that the question is determined by looking at local law); Felts, 91 F.4th at 942 (listing legal sources to determine policymaking authority including “local positive law” (quoting Jett, 491 U.S. at 737)).

Sander did not have final policymaking authority as to qualifications for the Interim City Attorney, even though she allegedly changed the requirements for the City Attorney position so Kuhse could meet the minimum qualifications for the interim role. Filing 41 at 3 (¶ 20). Peters is correct that Sander is responsible for preparing and maintaining a record of the responsibilities for various City positions. Omaha Mun. Code § 6.06 (“The Human Resources Director shall prepare and maintain a current record of the duties and responsibilities of each position in the classified service.”). Sander did not have final policymaking authority over the duties and responsibilities of those positions, however. Rather, Omaha Municipal Code § 6.06 states, “The Personnel Board shall review and approve any amendments to any such plan.” Peters acknowledges that fact when she argues in her brief—without citation to any allegation in her Second Amended Complaint or to any record evidence—that “Sander personally advocated for the personnel board to change the job duties for the City Attorney position so that Kuhse could be deemed qualified for the interim position.” Filing 45 at 9. Even if Sander made the change so that Kuhse could be deemed qualified for the interim position, as Peters alleges, there is no allegation or evidence that the Personnel Board or the City Council approved Sander's proposed change and also knew of and approved her alleged basis for it, such that the Personnel Board and City Council ratified her reason. See Gustilo, 122 F.4th at 1018 (“When a subordinate makes a decision that is subject to review, and the municipality's authorized policymakers approve the subordinate's decision ‘and the basis for it,’ their ratification is ‘chargeable to the municipality because their decision is final.’ ” (quoting Praprotnik, 485 U.S. at 127, with emphasis added in Gustilo)).

Indeed, the final say over such duties and responsibilities of City positions lies with the City Council—not the Personnel Board or the Human Resources Director—pursuant to Omaha Municipal Code § 6.04(2) (“The board shall have power and shall be required to: ․ Review the personnel rules and regulations developed and recommended by the Human Resources Director; conduct hearings thereon; approve or reject such rules in whole or in part and with or without modifications; and transmit such rules with recommendations to the Council for its consideration and legislative action. In the enactment of any personnel rules, the Council may not enact legislation at variance with that recommended by the Personnel Board unless at least five Councilmembers vote to do so.”). Thus, as a matter of law, Sander did not have final policymaking authority concerning the hiring of the City Attorney such that the City could be liable under Monell. Gustilo, 122 F.4th at 1018 (explaining that who is a final policymaker is a question of law).

Although it would seem likely that Mayor Stothert has more policymaking authority than the City's Human Resources Director, Mayor Stothert still does not have the pertinent policymaking authority concerning the hiring of the City Attorney. Peters is correct that Mayor Stothert is “the official appointing authority of all officers and employees in the executive branch.” Omaha Mun. Code § 3.04. However, her “appointing authority” does not give her policymaking authority; instead, as mentioned above, that policy making authority lies with the Personnel Board and ultimately with the City Council. See Omaha Mun. Code § 6.04(2). Indeed, the Mayor does not have the unilateral authority to appoint the head of the Law Department, because the Omaha Municipal Code provides that the head of the Law Department (i.e., the City Attorney)—unlike the heads of other City executive departments—is a position in the classified service selected through and under civil service. Omaha Municipal Code § 3.09 states, “The head of the Law Department shall be the City Attorney, which position shall be in the classified service.” The part of the Prefatory Synopsis to the Omaha Municipal Code on Article III The Executive Branch states,

The executive organization operating under the Mayor consists of seven departments (Finance; Law; Parks, Recreation, and Public Property; Personnel; Planning; Public Safety; Public Works). The head of the Law Department is selected through and is under civil service. The heads (directors) of the other six departments are appointed by the Mayor, except that the Human Resources Director is chosen from three to five persons recommended by the Personnel Board. However, the Mayor may dismiss any of these six. Directors of all departments are required to be persons of experience and professional stature in their respective fields. A Taxpayer Complaint Office is set up in the Mayor's office, and an Urban Renewal Administrator is provided.

Omaha Mun. Code, Prefatory Synopsis, Art. III The Executive Branch. Thus, as a matter of law, Mayor Stothert did not have final policymaking authority concerning the hiring of the City Attorney such that the City could be liable under Monell. Gustilo, 122 F.3d at 1018 (explaining that who is a final policymaker is a question of law).

Defendants are entitled to dismissal of Peters's equal protection claim against the City in Claim II of her Second Amended Complaint as a matter of law because neither Mayor Stothert nor Sander had final policymaking authority such that the City could be liable under Monell.⁴

C. The Equal Protection Claim Against Sander

Claim III alleges violation of the equal protection clause of the United States Constitution by Mayor Stothert and Sander. Filing 41 at 10. Defendants state that they do not seek dismissal of this claim against Mayor Stothert at this time. Filing 44 at 1 n.1. Thus, at this point, the question is whether Peters has stated an equal protection claim against Sander upon which relief can be granted.

1. The Parties’ Arguments

Defendants argue that to establish an individual's liability for a constitutional violation under § 1983, the plaintiff must allege the individual's personal involvement in the alleged violation. Filing 44 at 8. However, Defendants argue that Peters has not alleged that Sander participated in any constitutional violation, let alone that she is directly responsible for one. Filing 44 at 9. They point out that Peters has alleged that Sander changed the requirements for the City Attorney position, so Kuhse could meet the minimum qualification for the interim role, and later told Peters that the City had selected Kuhse for the permanent position. Filing 44 at 9. Defendants argue that neither allegation—taken as true—suggests that Sander violated Peters's constitutional rights. Filing 44 at 9. Instead, Defendants argue that “changing requirements” does not plausibly suggest gender-based discrimination against Peters and that being the messenger that Peters was not selected is not a constitutional violation. Filing 44 at 9.

Peters takes a very different view of her allegations. She asserts that she has alleged that as part of Sander's responsibilities, Sander facilitated the interim appointment of an unqualified male candidate “by advocating for lower qualifications for the City Attorney role.” Filing 45 at 9. Peters asserts that she is alleging that Sander specifically and deliberately provided an advantage to Kuhse to Peters's detriment, where Peters was already qualified for the position, so that she received no advantage from lowering the minimum job requirements. Filing 45 at 10. In short, Peters argues that she alleges direct action by Sander that resulted in deprivation of Peters's constitutional right to be free from discrimination based on sex. Filing 45 at 10.

In reply, Defendants argue that, as a matter of law, Sander lacked unilateral authority to change the job requirements for the Interim City Attorney or the permanent City Attorney positions. Filing 46 at 8. Thus, Defendants argue that the only allegations against Sander in the Second Amended Complaint do not suggest Sander's personal involvement in or direct responsibility for a constitutional violation. Filing 46 at 8–9.

2. Peters Has Not Plausibly Alleged Sander's Personal Involvement in or Direct Responsibility for Any Constitutional Violation

The Eighth Circuit has explained, “Liability under section 1983 is ‘personal.’ ” Molina v. City of St. Louis, Missouri, 59 F.4th 334, 344 (8th Cir. 2023) (quoting White v. Jackson, 865 F.3d at 1064, 1080 (8th Cir. 2017)), cert. denied sub nom. Molina v. Book, 144 S. Ct. 1000 (2024). “By personal, we mean that ‘a plaintiff must show each individual defendant's personal involvement in the alleged violation.’ ” Id. (quoting White, 865 F.3d at 1081); accord Davis v. City of Little Rock, 122 F.4th 326, 331 (8th Cir. 2024) (“To prevail on a § 1983 claim, a plaintiff must show each individual defendant's personal involvement in the alleged violation.” (quoting White, 865 F.3d at 1081)). To put it slightly differently, “A government official can be liable in his individual capacity if ‘a causal link to, and direct responsibility for, the deprivation of rights’ is shown.” Burlison v. Springfield Pub. Sch., 708 F.3d 1034, 1041 (8th Cir. 2013) (quoting Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006)). Thus, “[w]hen ‘[t]he record is devoid of any evidence indicating [an officer was] involved,’ the officer is entitled to qualified immunity.” Davis, 122 F.4th at 331 (quoting Kingsley v. Lawrence County, 964 F.3d 690, 700 (8th Cir. 2020)).

First, the Court finds that Peters's characterization in her brief of what she pleaded does not reasonably follow from what she actually alleged in her Second Amended Complaint. See Far E. Aluminium Works Co., 27 F.4th at 1364 (explaining that allegations must provide a plausible inference of wrongdoing). She asserts that she has alleged that as part of Sander's responsibilities, Sander facilitated the interim appointment of an unqualified male candidate “by advocating for lower qualifications for the City Attorney role.” Filing 45 at 9. There are no allegations in the Complaint that Sander “advocated” for lower qualifications. See generally Filing 41. Rather, the allegation is that “Sander changed the requirements.” Filing 41 at 3 (¶ 20). Peters also asserts that she is alleging that Sander specifically and deliberately provided an advantage to Kuhse to Peters's detriment, where Peters was already qualified for the position, so that she received no advantage from lowering the minimum job requirements. Filing 45 at 10; see also Filing 41 at 3 (¶ 20) (alleging that Sander “changed the requirements for the City Attorney position so Mr. Kuhse could meet the minimum qualifications for the interim role”). The Second Amended Complaint is devoid of allegations that Sander took that action to Peters's detriment, even if the action aided Kuhse. Although Claim III itself alleges that Sander took actions to foster a discriminatory working environment on the basis of sex and by discriminating against women, there are no factual allegations plausibly suggesting how that was accomplished. See Filing 41 at 10 (Claim III).

Moreover, Peters's allegations fall short of establishing Sander's personal involvement in or direct responsibility for any constitutional violation. Davis, 122 F.4th at 331; Molina, 59 F.4th at 344; Burlison, 708 F.3d at 1041. There are only three factual allegations about Sander or her conduct in the factual background section of the Second Amended Complaint: First, that Sander is a resident of Nebraska and was at relevant times the Human Resources Director for the City, Filing 41 at 2 (¶ 7); second, that prior to Kuhse's interim appointment, “the City, through [Sander] changed the requirements for the City Attorney position so Mr. Kuhse could meet the minimum qualifications for the interim role,” Filing 41 at 3 (¶ 20): and third, that “Sander told Ms. Peters that the City of Omaha selected Mr. Kuhse for the permanent City Attorney position,” Filing 41 at 6 (¶ 40). The first and third allegations can be disregarded—even accepted as true, see Far E. Aluminium Works Co., 27 F.4th at 1364, and read in the context of the Complaint as a whole, see Braden, 588 F.3d at 594—because they provide no plausible inference that Sander had any personal involvement in or direct responsibility for any constitutional violation. See Mitchell, 28 F.4th at 895 (stating the plausibility standard); Far E. Aluminium Works Co., 27 F.4th at 1364 (same).

The second allegation about Sander changing the requirements for the Interim City Attorney position fares no better. First, it is conclusory as to Sander's reason for proposing the change. See Richardson, 2 F.4th at 1068 (explaining that mere conclusory statements and factual allegations lacking specification are not enough); Knowles, 2 F.4th at 755 (explaining that legal conclusions drawn from the facts need not be accepted). Second, it alleges only Peters's opinion about why Sander purportedly made the change. Moreover, as explained above in § II.B.3., Sander did not have the unilateral policymaking authority to change the requirements of the position as a matter of law. Still more importantly, there are no facts alleged that make it plausible, not just conceivable, that Sander proposed changing the requirements for the purpose of violating Peters's right to equal protection. See Mitchell, 28 F.4th at 895. The fact that Kuhse was male and Peters was female is merely consistent with a purpose to violate Peters's equal protection rights, which stops short of the line between possibility and plausibility. See Christopherson, 33 F.4th at 499. Even accepting as true the conclusory allegation that Sander changed the requirements so Kuhse could meet the minimum qualifications for the interim role, there are no facts pleaded plausibly suggesting that the reason Sander might have preferred Kuhse to Peters was because he was male.

Peters's further allegations in Claim III itself concerning Sander are too conclusory, vague, and speculative to state a claim. See Richardson, 2 F.4th at 1068; Knowles, 2 F.4th at 755. Peters alleges that Sander, in her individual capacity, “deprived [Peters] of rights protected by the Equal Protection Clause of the United States Constitution by establishing, maintaining, or enforcing policies which create or foster a discriminatory working environment on the basis of sex, by discriminating against women.” Filing 41 at 10 (¶ 75). This allegation leaves entirely to the imagination what policy Sander created, where as a matter of law Sander did not have the policymaking authority to change job requirements. The alternative allegation that Sander had a practice or custom with the purpose and intent of discriminating against women, see Filing 41 at 10 (¶ 76), is equally vague—and Peters has waived any reliance on a practice or custom by failing to argue it in her opposition brief. See United States v. Cooper, 990 F.3d 576, 583 (8th Cir. 2021) (“Ordinarily, a party's failure to make an argument in its opening brief results in waiver of that argument.”); Montin v. Moore, 846 F.3d 289, 295 (8th Cir. 2017) (“Because [c]laims not raised in an opening brief are deemed waived, and [appellant] failed to address the ․ claim in his opening brief, [appellant] waived this issue.” (cleaned up)). Peters's allegations that Sander deprived her of her rights with reckless or deliberate indifference, see Filing 41 at 10 (¶¶ 78–79), are precisely the sort of legal conclusions purportedly drawn from the facts that the Court need not accept. See Knowles, 2 F.4th at 755.

Peters's equal protection claim against Sander in Claim III of her Second Amended Complaint fails to state a claim upon which relief can be granted and is therefore dismissed.

D. The Retaliation Claim Under Title VII and NFEPA

Finally, Defendants challenge the retaliation claim under Title VII and NFEPA in Claim IV of the Second Amended Complaint. Filing 41 at 11. Defendants contend that this claim also fails to state a claim upon which relief can be granted. Peters maintains that this claim is also sufficiently pleaded.

1. The Parties’ Arguments

Defendants argue that Peters's retaliation claim fails because she has not alleged facts showing that she experienced any adverse action sufficient to dissuade a reasonable employee from protected activity. Filing 44 at 10. Defendants argue that Peters provides no detail about when and how she was prevented from completing her duties or when she was excluded from any particular meetings. Filing 44 at 10–11. Defendants argue further that neither denial of a request to work from home, a denial of an FMLA request, nor an alleged “closed-door meeting” about Peters is sufficient to rise to the level of materially adverse action. Filing 44 at 11. Defendants also argue that Peters does not allege a causal connection between her protected activity and any claimed adverse action. Filing 44 at 12. Defendants assert that Peters has not even alleged that adverse action was because of her protected activity. Filing 44 at 13.

Peters argues that Defendants reliance on a “materially adverse” standard—based on actions such as failing to hire, failing to grant leave, discharging, failing to promote, and changes in compensation—is outdated, because the proper test is whether the action might well have dissuaded a reasonable worker from making or supporting a charge of discrimination. Filing 45 at 11. Peters argues that considering the context and the proper standard, the conduct alleged would deter a reasonable senior attorney with nearly thirty years of experience with the same employer from engaging in protected activity. Filing 45 at 12. She contends that her former responsibilities advising the Omaha Public Library, Parks Department, and Omaha Police Department and participating in strategizing and press conferences were “stripped away” after she filed her charges of discrimination. Filing 44 at 12. She points out that she also alleged sufficiently adverse circumstances in denial of the ability to work from home, exclusion from a closed-door meeting about her, and failure to investigate her complaint of retaliation by failing to interview her. Filing 44 at 13. She alleges that the adverse retaliatory actions alleged resulted in loss of prestige and career advancement and the downgrading of her responsibilities where she formerly had direct access to high-level decisionmakers. Filing 44 at 13–14. Peters also contends that she has adequately pleaded the causal connection by alleging, “Defendant City of Omaha retaliated against Plaintiff because of her complaints, opposition to discrimination, and filing charges of discrimination with the NEOC and EEOC.” Filing 45 at 16 (citing Filing 41 at 11 (¶ 83)). She also suggests that the elements of a NFEPA retaliation claim are less onerous than those of a Title VII claim. Filing 45 at 16.

Defendants reply that Peters offers only “a smattering of perceived slights” with no facts tying them to her protected activities. Filing 46 at 1. Defendants argue that Peters makes a boilerplate conclusory allegation of retaliation for complaining, opposing discrimination, and filing charges of discrimination. Filing 46 at 10 (citing Filing 41 at 11 (¶ 83)). They also argue that Peters has not sufficiently alleged how she was “prevented” from doing her job or “excluded” from meetings, and that the alleged “closed-door” meeting occurred a year after her most recent charge. Filing 46 at 11. Defendants argue that as to adverse action, the standard is an objective one of whether a “reasonable employee” would be dissuaded from engaging in protected activity, which still requires a meaningful threshold for sufficiently adverse actions. Filing 46 at 12.

2. Retaliation Claims under Title VII and the NFEPA

To state a retaliation claim under either NFEPA or Title VII, a plaintiff must allege that a reasonable employee would have found the challenged action materially adverse enough to dissuade a “reasonable employee” from challenging the employer's conduct. Specifically, as to Title VII, the United States Supreme Court recently explained,

[I]n Burlington N. & S. F. R. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 [(2006)][,] [t]he Court ․ held that Title VII's anti-retaliation provision—which prohibits an employer from taking action against an employee for bringing or aiding a Title VII charge—applies only when the retaliatory action is “materially adverse,” meaning that it causes “significant” harm. Id., at 68, 126 S.Ct. 2405. White adopted that standard for reasons peculiar to the retaliation context. The test was meant to capture those employer actions serious enough to “dissuade[ ] a reasonable worker from making or supporting a charge of discrimination.” Ibid. An action causing less serious harm will not deter Title VII enforcement and so falls outside the purposes of the ban on retaliation.

Muldrow v. City of St. Louis, Missouri, 601 U.S. 346, 348, 144 S. Ct. 967, 969, 218 L. Ed. 2d 322 (2024). Similarly, the Nebraska Supreme Court explained,

To satisfy the “adverse employment action” requirement in a [NFEPA] retaliation claim, see Helvering, 13 Neb.App. at 842, 703 N.W.2d at 154, a plaintiff must show that “a reasonable employee would have found the challenged action materially adverse,” see Burlington N. & S. F. R. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). This, in turn, requires a showing that the employment action “ ‘might have “dissuaded ․’ ”” a reasonable worker from reporting the alleged unlawful practice. Id. To meet this burden, a plaintiff must demonstrate that the employment action was material, not trivial, and that it resulted in some concrete “ ‘injury or harm.’ ” AuBuchon v. Geithner, 743 F.3d 638, 644 (8th Cir. 2014).

Knapp v. Ruser, 901 N.W.2d 31, 48 (Neb. 2017). As to the materiality of adverse action, the Eighth Circuit likewise requires that the adverse action on which a retaliation claim is based “ ‘must be material, not trivial,’ [and a plaintiff] ‘avoid[s] the triviality pitfall’ if she shows that ‘the retaliation ․ produce[d] some injury or harm.’ ” Lopez v. Whirlpool Corp., 989 F.3d 656, 665 (8th Cir. 2021) (citing AuBuchon, 743 F.3d at 644).

Likewise, the Eighth Circuit recently explained that to allege a retaliation claim under either Title VII or the NFEPA, a plaintiff must “allege sufficient facts to infer a causal connection between her protected activity and the adverse employment action.” Brown v. Conagra Brands, Inc., 131 F.4th 624, 627–28 (8th Cir. 2025) (citing Meinen v. Bi-State Dev. Agency, 101 F.4th 947, 950 (8th Cir. 2024), for Title VII standards, and Knapp, 901 N.W.2d at 48, for the NFEPA standards). More generally, in construing the NFEPA, the Nebraska Supreme Court “ha[s] explained that it is patterned after federal title VII of the Civil Rights Act of 1964, see 42 U.S.C. § 2000e (2018), and therefore, it is appropriate to look to federal court decisions construing title VII for guidance on how to interpret the NFEPA.” Galloway v. Husker Auto Grp., LLC, 14 N.W.3d 218, 224 (Neb. 2024) (citing Knapp, 901 N.W.2d at 43).

Thus, the Court will apply the same standards to both Peters's retaliation claim under Title VII and her retaliation claim under the NFEPA.

3. Peters's Allegations of Retaliation

As promised above, in § I.A.4., the Court will set out in full here Peters's factual allegations concerning her retaliation claim. In support of her retaliation claim in Claim IV, Peters makes the following factual allegations:

46. As part of Ms. Peters’ role as Deputy City Attorney, she has overseen the City's representation of the Omaha Public Library and Parks Departments, as well as the Omaha Police Department.

47. Prior to filing her charge of discrimination with the NEOC and EEOC, Ms. Peters was involved in discussions, strategizing, and appearing in press conferences pertaining to the departments she represented.

48. Since filing her charge of discrimination with the NEOC and EEOC, the City of Omaha has prevented Ms. Peters from completing her duties.

49. Additionally, prior to filing her charge of discrimination, Ms. Peters attended cabinet meetings and City Council Meetings when City Attorney Matt Kuhse was unavailable. In the past, either Bernard in den Bosch, another experienced city attorney, or Ms. Peters would share this responsibility.

50. After filing her charge of discrimination, the City of Omaha has excluded Ms. Peters from this responsibility. This problem persists, even through the date of this Amended Complaint.

51. On June 15, 2022, Ms. Peters requested that Mr. Kuhse allow her to work a hybrid schedule, splitting her work hours between the City Law Department office, court, and home, as needed. Mr. Kuhse denied Ms. Peters’ request on June 16, 2022, stating he did not believe this was in Ms. Peters’ best interests.

52. On June 26, 2022, Ms. Peters submitted an FMLA request to Human Resources.

53. The City denied Ms. Peters’ request, stating that her request to telecommute did not fall under [its] FMLA process.

54. On August 21, 2023, Mr. Kuhse held a closed-door meeting with Bernard [i]n den Bosch, Jennifer Taylor, and Ryan Weisen to discuss Ms. Peters’ personal and confidential employment matters. There was no legitimate business reason for doing so, as none of these individuals is Ms. Peters’ supervisor, nor are they involved in Ms. Peters’ work assignments.

55. When Ms. Peters asked her colleagues what the meeting was about, they lied to Ms. Peters.

56. Ms. Peters requested that the City of Omaha Human Resource department investigate her allegations of retaliation. Labor Relations Director Bree Robbins claimed she investigated, however, she did not interview Ms. Peters.

57. On September 27, 2023, even though she had never interviewed Ms. Peters, Robbins issued a finding of “no retaliation” on Ms. Peters’ complaint.

Filing 41 at 7 (¶¶ 46–57).

In Claim IV itself, Peters pleads the following:

82. Plaintiff engaged in protected activity by complaining internally with the City of Omaha regarding discrimination, as well as by filing charges of discrimination with the NEOC and EEOC.

83. Defendant City of Omaha retaliated against Plaintiff because of her complaints, opposition to discrimination, and filing charges of discrimination with the NEOC and EEOC.

84. Plaintiff's protected activity was a motivating factor in Defendant City of Omaha's retaliation against Plaintiff during her employment.

85. Defendant's retaliation against Plaintiff would dissuade a reasonable employee from engaging in protected activity.

86. As a result of Defendant's acts and omissions, Plaintiff has in the past and will in the future suffer damages including, but not limited to, mental and emotional distress; fear; anguish; humiliation; embarrassment; lost enjoyment of life; lost wages; benefits; future earning capacity; and other emoluments of employment.

Filing 41 at 11 (Claim IV) (¶¶ 82–86).

4. Peters Has Not Plausibly Alleged Her Retaliation Claim under Either Title VII or the NFEPA

As the Eighth Circuit has explained, “To establish a prima facie case of retaliation, [a plaintiff] must demonstrate (1) ‘she engaged in protected conduct;’ (2) ‘a reasonable employee would have found her employer's retaliatory action materially adverse; and’ (3) ‘the materially adverse action was causally linked to her protected conduct.’ ” Parker v. United States Dep't of Agric., 129 F.4th 1104, 1114 (8th Cir. 2025) (quoting Devin v. Schwan's Home Serv., Inc., 491 F.3d 778, 785 (8th Cir. 2007), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031, 1031 (8th Cir. 2011) (en banc)); Norgren v. Minnesota Dep't of Hum. Servs., 96 F.4th 1048, 1055 (8th Cir. 2024) (“ ‘To establish a prima facie case of retaliation, an employee must show that he engaged in protected activity; he suffered a materially adverse action that would deter a reasonable employee from making a charge of employment discrimination; and there is a causal connection between the protected activity and the adverse action.’ ” (quoting Gibson v. Am. Greetings Corp., 670 F.3d 844, 856 (8th Cir. 2012)). Claim IV itself presents no more than a “ ‘threadbare recital[ ] of the elements of’ ” a retaliation claim set out above. See Filing 41 at 11 (Claim IV) (alleging protected activity in ¶ 82; materially adverse action sufficient to dissuade or deter an employee from making a charge in ¶¶ 83 and 85; and a causal link between the protected activity and the adverse action in ¶ 84). These allegations are “threadbare” because they do not set out any facts sufficient to make them plausible rather than merely conclusory. See Christopherson, 33 F.4th at 499, 2 F.4th at 1068; Far E. Aluminium Works Co., 27 F.4th at 1364. Because Claim IV itself does no more than offer “threadbare” allegations, it “cannot survive a [Rule 12(b)(6)] motion to dismiss” standing alone. Du Bois, 987 F.3d at 1205 (quoting Iqbal, 556 U.S. at 678). Because the “prima facie model is an evidentiary, not a pleading standard,” the Second Amended Complaint's factual allegations must “give plausible support to these elements.” Norgen, 96 F.4th at 1055 (internal quotation marks and citations omitted)). Peter's factual allegations in the body of her Second Amended Complaint fail to do so.

Specifically, even taking as true Peters's allegations about her role as Deputy City Attorney in ¶¶ 46 and 47 of her Second Amended Complaint, as the Court must, her further allegation in ¶ 48 of the alleged retaliation after she filed her charge is both vague and conclusory. See Richardson, 2 F.4th at 1068; Knowles, 2 F.4th at 755. Although Peters characterizes ¶ 48 in her brief as alleging that “Defendants stripped her job duties in retaliation for her complaints,” see Filing 45 at 2, that statement does not accurately characterize the actual allegation in her Second Amended Complaint that the City “has prevented Ms. Peters from completing her duties.” Filing 41 at 7 (¶ 48). More troublesome is the lack of any factual allegations in the Second Amended Complaint—let alone non-conclusory ones plausibly showing—how the City “prevented Ms. Peters from completing her duties,” even assuming the duties were those listed in ¶¶ 46 and 47. Equally vague and conclusory—or missing entirely—are any allegations plausibly suggesting how the City “excluded Ms. Peters from this responsibility” in ¶ 50, even assuming that the “responsibility” is adequately set out in ¶ 49. For example, Peters fails to allege in ¶ 50 that on any specific occasion when the City Attorney (then Kuhse) was not available she was not asked to attend cabinet meetings and City Council meetings, nor has she alleged whether on such occasions Bernard in den Bosch was or was not asked to attend, where he had also substituted for the City Attorney prior to Peters's charges of discrimination. See Filing 41 at 7 (¶ 49).

The lack of any allegation of temporal proximity between Peters's charges of discrimination and alleged adverse actions other than that the actions were taken “after” the charges defeats any plausible inference of a causal connection, and there are no others. See Filing 41 at 7 (¶¶ 46–50); see Brown, 131 F.4th at 62 (explaining “temporal proximity [of adverse action three months after protected activity] alone does not support an inference of retaliation, and [plaintiff] did not allege anything else about causation.”); Meinen, 101 F.4th at 950, (“Generally, something more than temporal proximity is required to establish the necessary causal connection.”); Lors v. Dean, 746 F.3d 857, 866 (8th Cir. 2014) (stating that “more than two months is too long to support a finding of causation without something more” (citation omitted)). Indeed, Peters alleges that she filed her latest charge of discrimination with the NEOC and EEOC on August 3, 2022, see Filing 41 at 3 (¶ 13), but she alleges that the “closed-door meeting” about her occurred on August 21, 2023, Filing 41 at 7 (¶ 54), more than a year later, which is by no measure “proximate” to the alleged protected activity, see Lors, 746 F.3d at 866. Although Peters alleges that she filed her first charge with the NEOC and the EEOC on January 18, 2022, see Filing 41 at 2 (¶ 10), that is more than six months prior to the denial of her request to work a hybrid schedule on June 15, 2022, and the denial of her FMLA request made June 26, 2022. See Filing 41 at 7 (¶¶ 51–53). Again, that is “too long to support a finding of causation without something more,” see Lors, 746 F.3d at 866, and nothing more is alleged.

Finally, Peters alleges that the finding of “no retaliation” by the City without even interviewing her after she requested an investigation supports her retaliation claim. See Filing 41 at 7 (¶¶ 56–57). However, Peters offers no factual allegations plausibly suggesting that the finding of “no retaliation” without interviewing her was anything more than trivial and certainly no allegations suggesting that the result was some harm or injury to her, as required to avoid “the triviality pitfall.” See Lopez, 989 F.3d at 665.

In short, Peters offers only conclusory opinions that she was subjected to sufficiently adverse action because of her charges of discrimination instead of factual allegations plausibly supporting such a claim. Under these circumstances, Peters fails to state a retaliation claim in Claim IV, and Defendants are entitled to dismissal of that claim. See Christopherson, 33 F.4th at 499; Mitchell, 28 F.4th at 895; Far E. Aluminium Works Co., 27 F.4th at 1364 (same).

III. CONCLUSION

The Court concludes that Defendants are entitled to dismissal of each claim or part of a claim that they challenge as failing to state a claim upon which relief can be granted. Accordingly,

Upon the foregoing,

IT IS ORDERED that Defendants’ Motion to Dismiss, Filing 43, is granted, and

1. Peters's equal protection claim against the City in Claim II of her Second Amended Complaint is dismissed;

2. Peters's equal protection claim against Sander in Claim III of her Second Amended Complaint, but Claim III against Mayor Stothert shall proceed; and

3. Peters's retaliation claim against the City in Claim IV is dismissed.

This case shall proceed further on the claim of sexual discrimination against the City in Claim I and the part of Claim III alleging violation of equal protection by Mayor Stothert.

Dated this 1st day of May, 2025.

FOOTNOTES

1.   Peters makes further allegations about the impact of Omaha Municipal Code § 23-237 that are nearly identical to allegations found in Claim II of Peters's First Amended Complaint alleging a disparate impact claim under Title VII and NFEPA. Filing 20 at 8 (¶¶ 64–66). Peters withdrew her disparate impact claim in her Second Amended Complaint. See Filing 34 at 2 (¶¶ 6, 9) (Motion for Leave to File Second Amended Complaint); see generally Filing 41 (not including such a claim). The reasserted allegations are the following:23. Although facially neutral, when Section 23-237 is applied, it allows a hiring manager to place an unqualified or minimally qualified person in a provisional/interim/temporary position for an unspecified period of time, allowing the individual to gain the necessary skills, abilities, qualifications, and experience for the position. As a result, when the person applies for the posted/ permanent position, they are almost certain to be hired because they have gained the actual experience by serving in the interim position.24. The practice of provisionally hiring individuals into these interim roles has a disproportionately adverse impact on women.25. In the City Law Department every provisional appointment over the last ten years (2013-2023) has been a (white) male and every one of those provisional appointees were ultimately hired for the permanent position to which they were provisionally appointed.26. This means Section 23-237 has been applied to provide men an advantage in the hiring process 100% of the time it has been applied. The men provisionally appointed include:Matt KuhseKevin SlimpPhil KleineJared DeanBrent QuandtMichael Florence27. Every one of the men identified in the preceding paragraph were placed in interim/provisional positions and were then selected for the subsequent job opening for a permanent position. In each instance, one or more women applied for the permanent position, but were passed over for the man that the City of Omaha appointed to the interim/provisional position.Filing 41 at 4–5 (¶¶ 23–27). Even though Peters withdrew her disparate impact claim, Peters's Second Amended Complaint nevertheless still includes in its Prayer a request that the Court grant equitable relief “including a permanent injunction enjoining Defendants from utilizing Section 23-237 in a way that discriminates based on sex.” Filing 41 at 10–11. That request for relief is inapposite to Peters's current claims. The Court will address below whether the reiterated allegations are sufficient to state a claim.

2.   Bree Robbins is not named as a defendant in this action and is not mentioned in any other allegations in the Second Amended Complaint. See generally Filing 41.

3.   Although Peters cites Omaha Municipal Code § 3.05, the language she quotes if found in Omaha Municipal Code § 3.04.

4.   Because neither Mayor Stothert nor Sander had policymaking authority concerning the hiring of the City Attorney, their alleged use of Omaha Municipal Code § 23-237 in a sexually discriminatory way to give men provisional positions to the detriment of women applicants for the permanent position also is not a basis for Monell liability of the City. Peters did not argue that the sexually discriminatory use of § 23-237 constituted an “unofficial custom” on which Monell liability could be based. See generally Filing 45. Such an argument has been waived. See United States v. Cooper, 990 F.3d 576, 583 (8th Cir. 2021) (“Ordinarily, a party's failure to make an argument in its opening brief results in waiver of that argument.”); Montin v. Moore, 846 F.3d 289, 295 (8th Cir. 2017) (“Because [c]laims not raised in an opening brief are deemed waived, and [appellant] failed to address the ․ claim in his opening brief, [appellant] waived this issue.” (cleaned up)).

Brian C. Buescher United States District Judge