Nebraska Supreme Court Dismisses Race Discrimination Case

The Nebraska Supreme Court upheld the dismissal of a racial discrimination lawsuit that had been filed by a state employee who said the state offered her inferior health insurance because she lives in Omaha on Friday.

Sandra Cartwright, a black woman, argued in her lawsuit that employees living in Omaha and Lincoln ZIP code areas that begin with either 680, 681 or 685, where some 96 percent of the state's black employees reside, were given a choice between two health insurance plans that offered inferior coverage to what employees in other areas of the state could get.

Cartwright filed the lawsuit because she was denied the opportunity to enroll with the health insurance carrier that had insured her prior to 2007 due to the ZIP code exclusion plan. Cartwright alleges that she was discriminated against on the basis of her race because most African-American employees resided in the three excluded ZIP codes and they were offered substandard health insurance based upon the ZIP codes 

associated with their residential addresses.

She further alleged that the “health insurance coverage offered through the Mutual of Omaha Insurance was less satisfactory, less comprehensive, provided fewer services, fewer providers, less coverage and less treatment options than the health insurance plan  offered in all other zip codes.” In her deposition, Cartwright 

stated that as a result of this discriminatory practice, she suffered an increase in blood pressure, had to increase her insulin and blood pressure medication, suffered headaches, and had to take time off work due to health-related matters. Cartwright also had to make additional visits to her physician, purchase more prescription medications and diabetes test equipment, and suffered from back spasms as a result of the stress related to the discriminatory practice.

The first cause of action was based upon 42 U.S.C. § 1981 and alleged that the ZIP code-based health insurance coverage plan discriminated on the basis of race. The second cause of action was under 42 U.S.C. § 1983 and alleged that Cartwright was denied equal protection of the law. The third claim was brought under Title VII, and it alleged that there was a disparate impact upon her as an African American employee of the State.

Title VII prohibits both intentional discrimination, known as disparate treatment, as well as practices that, 

although they are not intentional discrimination, have a disproportionately adverse effect on minorities, which is known as disparate impact.  See Ricci v. DeStefano, 557 U.S. 557, 129 S. Ct. 2658, 174 L. Ed. 2d 490 

(2009).  Disparate impact occurs when an employer uses an employment practice that has a disproportionately adverse effect on protected groups.  Id.  Thus, to prove a prima facie case  of disparate impact, the plaintiff must show (1) the existence  of a statistically significant disparity among members of different groups affected by employment decisions; (2) the existence of a specific, facially neutral employment practice; and (3) a causal nexus between the specific, facially neutral employment 

practice and the statistical disparity.  Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S. Ct. 2115, 104 L. Ed. 2d 733 (1989); Bennett v. Nucor Corp., 656 F.3d 802 (8th Cir. 2011), cert. denied ___ U.S. ___, 132 S. Ct. 1807, 182 L. Ed. 2d 619 (2012), and ___ U.S. ___, 132 S. Ct. 1861, 182 L. Ed. 2d 644 (2012); E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263 (11th Cir. 2000).

The Nebraska Supreme Court has held that in order to recover under the disparate impact theory, plaintiffs must do more than merely prove circumstances raising an inference of a discriminatory impact; they must prove the discriminatory impact at issue.  See Allen v. AT&T Technologies, 228 Neb. 503, 423 N.W.2d 424 (1988).  That is, they must point to a clearly identifiable practice and prove its impact.  Id.

The Court held that Cartwright has failed to establish that the alleged inferiorities of the plans she was offered resulted in any adverse impact to her. Cartwright alleged that her post-2006 health insurance did not cover her mammogram or Pap smear, did not allow access to some specialists, did not cover her insulin prescriptions, and classified the doctor treating her back condition as an “out-of-network provider.” Cartwright’s allegations fail because she never provided evidence that the plans she was excluded from would have provided these services. Rather, she repeatedly referenced that these were covered under her previous Blue Cross Blue Shield policy, which the Court held was irrelevant. 

Cartwright, who has since retired, had sought damages for pain, suffering, humiliation, inconvenience and emotional distress.

On Friday, Nebraska's high court said Cartwright failed to show that the health plans offered to those in Omaha and Lincoln were inferior to plans offered to others, citing state attorneys' evidence that the plans for those living in the Lincoln and Omaha ZIP codes were nearly identical to the plans offered for those living outside those areas.

The only difference found in evidence presented by the state was that "across the board, the premiums paid in ZIP codes starting with 680, 681, and 685 were cheaper than the ... counterparts," the high court said.

The state ended its insurance strategy based on ZIP codes in 2009, but said it did so for cost savings, not allegations of discrimination.

If you feel that you may have suffered discrimination based on your race in Nebraska, contact Madathil Law Office for a free consultation today.

Angela Y. Madathil
Madathil Law Office, LLC

Nebraska Employment Discrimination Lawyer
Serving clients throughout Nebraska

In Omaha
1625 Farnam Street #830
Omaha, NE 68102

In Lincoln
285 South 68th Street Place, Suite 322
Lincoln, NE 68510

angela@madathil-law.com
http://www.madathil-law.com/

T: 402.577.0686
F: 402.415.0635