RGR Co. v. Lincoln Commission on Human Rights , 292 Neb. 745 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/courts/epub/
02/12/2016 08:24 AM CST
- 745 -
Nebraska A dvance Sheets
292 Nebraska R eports
RGR CO. v. LINCOLN COMMISSION ON HUMAN RIGHTS
Cite as 292 Neb. 745
RGR Company LLC, appellant, v.
Lincoln Commission on Human R ights
on behalf of Lionel Simeus, appellee.
___ N.W.2d ___
Filed February 12, 2016. No. S-15-076.
1. Municipal Corporations: Equity: Appeal and Error. An appeal of
a case heard in district court under Neb. Rev. Stat. § 15-1201 et seq.
(Reissue 2012) to the appellate court is to be reviewed as in equity.
2. Equity: Appeal and Error. On appeal from an equity action, an appel-
late court tries factual questions de novo on the record and, as to ques-
tions of both fact and law, is obligated to reach a conclusion independent
of the conclusion reached by the trial court, provided that where credible
evidence is in conflict in a material issue of fact, the appellate court
considers and may give weight to the fact that the trial judge heard
and observed the witnesses and accepted one version of the facts rather
than another.
3. Civil Rights: Discrimination: Municipal Corporations: Equity:
Appeal and Error. An appeal filed in district court pursuant to Neb.
Rev. Stat. § 15-1201 et seq. (Reissue 2012) from an order or decision of
a human rights commission of a city of the primary class is to be heard
as in equity, and upon appeal to the Nebraska Supreme Court, it is the
duty of the court to try issues of fact de novo upon the record and to
reach an independent conclusion thereon without reference to the find-
ings of the district court.
4. Appeal and Error. When reviewing an appeal de novo on the record, an
appellate court reappraises the evidence as presented by the record and
reaches its own independent conclusions on the matters at issue.
5. Discrimination: Proof. In a housing discrimination case, a court evalu-
ates the evidence under the three-part burden-shifting framework from
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.
Ed. 2d 668 (1973).
- 746 -
Nebraska A dvance Sheets
292 Nebraska R eports
RGR CO. v. LINCOLN COMMISSION ON HUMAN RIGHTS
Cite as 292 Neb. 745
6. ____: ____. With the exception of summary judgments, under the
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.
Ed. 2d 668 (1973), framework, (1) the plaintiff has the burden of estab-
lishing a prima facie case of discrimination; (2) if the plaintiff succeeds
in establishing a prima facie case, the burden shifts to the defendant to
articulate some legitimate, nondiscriminatory reason for its action; and
(3) if the defendant successfully articulates a legitimate, nondiscrimi-
natory reason for its action, to succeed, the plaintiff must prove by a
preponderance of the evidence that the legitimate reason offered by the
defendant was not its true reason, but was instead a pretext for discrimi-
nation and that discrimination was the real reason.
7. Discrimination: Intent: Proof. In a housing discrimination case, the
ultimate burden of persuading the trier of fact that the defendant inten-
tionally discriminated against the plaintiff remains at all times with
the plaintiff.
8. Discrimination: Proof. The defendant’s responsibility to produce proof
of a nondiscriminatory, legitimate justification for its action is not an
onerous task; it is a burden of production, not of persuasion.
9. Discrimination: Proof: Words and Phrases. The term “pretext” means
pretext for discrimination; a defendant’s reason for its action cannot be
proved to be a pretext for discrimination unless it is shown both that the
reason was false and that discrimination was the real reason.
10. Discrimination: Proof. Although strong evidence of a prima facie case
of discrimination can be considered to establish pretext, proof of pretext
or actual discrimination requires more substantial evidence.
Appeal from the District Court for Lancaster County: Lori
A. M aret, Judge. Reversed and remanded with directions.
Melanie J. Whittamore-Mantzios, of Wolfe, Snowden, Hurd,
Luers & Ahl, L.L.P., for appellant.
Jeffery R. Kirkpatrick, Lincoln City Attorney, and Jocelyn
W. Golden for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, and
Cassel, JJ.
Miller-Lerman, J.
NATURE OF CASE
On June 12, 2013, Lionel Simeus filed a complaint against
RGR Company LLC (RGR) with the Lincoln Commission on
- 747 -
Nebraska A dvance Sheets
292 Nebraska R eports
RGR CO. v. LINCOLN COMMISSION ON HUMAN RIGHTS
Cite as 292 Neb. 745
Human Rights (the Commission) for housing discrimination
on the basis of race, nationality, and disability pursuant to 42
U.S.C. § 3604(b) (2012) of the federal Fair Housing Act and
Lincoln Mun. Code § 11.06.020(b) (1991). The Commission
determined that reasonable cause existed to believe that RGR
discriminated against Simeus in the provision of housing on
the basis of race and national origin. On October 31, the
Commission, on behalf of Simeus, filed a charge of discrimi-
nation against RGR. A public hearing was held. On February
27, 2014, the Commission filed an amended final order finding
against RGR and awarding various penalties and costs.
RGR appealed to the district court for Lancaster County.
On December 23, 2014, the district court affirmed the
Commission’s amended final order. RGR appeals. For reasons
more fully explained below, we determine that the Commission
failed to prove that RGR’s explanation of its negative treat-
ment of Simeus was a pretext for discrimination and that the
Commission did not establish that intentional discrimination
was the real reason. Therefore, we reverse the decision of the
district court and enter orders accordingly.
STATEMENT OF FACTS
RGR owns a rental property located at 1315 D Street in
Lincoln, Nebraska. Ryan Reinke is the sole owner of RGR,
as well as various other business entities. There are 12 rental
properties in Lincoln that are owned by Reinke or entities
owned by Reinke. At the time relevant to this case, 75 tenants
lived in the 12 rental properties.
Simeus is a black man from Haiti. On May 27, 2013, Reinke
and Simeus met to discuss Simeus’ renting an apartment in the
building located at 1315 D Street. Simeus entered into a 1-year
lease agreement with an agreed monthly rent of $385. The
parties disagree about whether Simeus signed a lease. Despite
requests from Simeus, Reinke did not provide Simeus with a
copy of the lease, and there is not a signed copy of the lease
in the record. Simeus resided in the apartment from June 1
through August 7.
- 748 -
Nebraska A dvance Sheets
292 Nebraska R eports
RGR CO. v. LINCOLN COMMISSION ON HUMAN RIGHTS
Cite as 292 Neb. 745
Simeus noted that there were repairs that needed to be
completed in the apartment. There was a hole in the bed-
room wall. There were broken items, including a shower
faucet, kitchen cabinets, and a stove with only one function-
ing burner. Simeus attempted to contact Reinke regarding the
repairs by telephone and in person. Reinke did not answer or
return Simeus’ calls. Simeus stated that on or about June 5,
2013, he approached Reinke while Reinke was in his vehicle
outside the apartment building, but instead of talking to
Simeus, Reinke rolled up his car window and said, “‘That’s
why I don’t want to deal with you foreigners . . . .’” Reinke
denies making the statement. However, Reinke acknowledges
he rolled up the car window because he was in a conversion
on his cell phone.
On June 6, 2013, Reinke gave Simeus a “Fourteen-Day
Notice of Termination of Rental Agreement,” which stated
that Simeus was “in material noncompliance” of his rental
agreement for the following reasons: “1. Burning candles,
incense, or smoking within the premises[,] 2. Disturbances[,]
3. Argumentative or threatening other tenants[,] 4.
Public intoxication.”
On June 7, 2013, the police responded to a noise com-
plaint regarding Simeus’ apartment. Simeus spoke with the
responding officer who asked him to turn his music down, and
Simeus complied.
Reinke asserted that he delivered a second 14-day notice to
Simeus sometime after June 6, 2013, but a signed copy of the
second notice was not offered at the hearing, and a signed copy
is not in the record. An unsigned copy of the second notice
is in the record, and it stated that Simeus was “in material
noncompliance” with the rental agreement for the following
reasons: “1. Commons area damage by tenant or guest[,] 2.
Replace advertising banner[,] 3. Failure to maintain build-
ing thermal efficiency when heat[ing] or cooling apartment.”
Simeus denied receiving the second notice.
- 749 -
Nebraska A dvance Sheets
292 Nebraska R eports
RGR CO. v. LINCOLN COMMISSION ON HUMAN RIGHTS
Cite as 292 Neb. 745
Simeus filed complaints with the Commission on June 12,
2013, and with the U.S. Department of Housing and Urban
Development on July 2, alleging that Reinke and RGR com-
mitted discriminatory housing practices on the basis of race,
national origin, and disability, in violation of § 11.06.020(b)
of the Lincoln Municipal Code, which describes acts which
are unlawful regarding housing, and 42 U.S.C. § 3604(b) of
the federal Fair Housing Act. On June 13, the Commission
sent a notice of the filing of the complaint to RGR and
Reinke. Reinke refused to claim the certified letter, so it
was returned. On June 27, the sheriff served Reinke with
the notice.
Angela Lemke, a senior civil rights investigator with the
Commission, investigated Simeus’ complaint. While the
Commission was investigating his complaint, additional inci-
dents occurred. On or about June 17, 2013, Simeus contacted
the Lincoln’s Building and Safety Department regarding per-
ceived violations of the housing code in his apartment. A
housing inspector inspected Simeus’ apartment and noted that
the leaking bathtub faucet constituted a code violation. The
housing inspector sent RGR a letter dated June 17, 2013, which
stated that the violation must be repaired by July 3.
On June 26, 2013, Simeus had left his apartment, and when
he returned, the electricity was not working in his apart-
ment. He contacted Lemke and notified her that his electric-
ity was not working, and Lemke contacted the Building and
Safety Department. A housing inspector from the Building
and Safety Department determined that the issue was with
the main breaker box in the hallway outside of Simeus’ apart-
ment, which was located in a locked closet. It was determined
that Simeus’ apartment was the only apartment in the building
where the electricity was affected.
On June 27, 2013, Reinke entered Simeus’ apartment to
make repairs. Reinke did not provide Simeus with notice.
That night, Simeus had taken medication to help him sleep,
and he was asleep when Reinke entered the apartment and
- 750 -
Nebraska A dvance Sheets
292 Nebraska R eports
RGR CO. v. LINCOLN COMMISSION ON HUMAN RIGHTS
Cite as 292 Neb. 745
completed the repairs. In an interview with Lemke, Reinke
acknowledged that he completed the repairs while Simeus
“was ‘not alert.’”
On July 9, 2013, Reinke posted a “3 Day Notice of Breach
of Lease Agreement” on Simeus’ apartment door. The notice
stated that Simeus owed $465, which was rent in the amount of
$385 and a late fee in the amount of $80. The notice stated that
if Simeus did not remedy the noncompliance by July 12, the
rental agreement would terminate. Reinke brought an eviction
proceeding against Simeus in the district court for Lancaster
County in the separate case No. CI 13-8406. Simeus moved
out of the apartment on or about August 7 without paying his
rent for July.
Based on Lemke’s investigation, the Commission determined
that reasonable cause existed to believe that a discriminatory
housing practice had occurred on the basis of race and national
origin. Therefore, on October 31, 2013, the Commission, on
behalf of Simeus, issued a “Charge of Discrimination” against
RGR, pursuant to Lincoln Mun. Code § 11.02.070 (1996) and
rule 2-(6.1a) of the Commission’s rules and regulations. The
charge alleged, inter alia, that RGR failed to respond to Simeus’
requests for repairs in a timely fashion and that when Reinke
did complete the repairs, he entered Simeus’ apartment without
notice and while Simeus was sleeping. The charge stated that
timely repairs were made “to units occupied by tenants outside
of [Simeus’] race and national origin” and that RGR failed to
make timely repairs to an apartment “which houses a Black
tenant of Ethiopian descent.” Based on these facts, the charge
alleged that RGR discriminated against Simeus on the basis of
race and national origin.
Neither party elected to have the claims asserted in a civil
action, so a public hearing was held before a hearing officer on
December 4 and 5, 2013. Simeus, Reinke, and Lemke testified
at the hearing. The Commission offered and the hearing offi-
cer received 17 exhibits. RGR offered and the hearing officer
received 15 exhibits.
- 751 -
Nebraska A dvance Sheets
292 Nebraska R eports
RGR CO. v. LINCOLN COMMISSION ON HUMAN RIGHTS
Cite as 292 Neb. 745
The hearing officer’s “Findings of Fact and Discussion”
were received by the Commission on December 19, 2013.
Based on the evidence adduced at the hearing, the hearing
officer determined that Reinke discriminated against Simeus
on the basis of race or national origin. In making this determi-
nation, the hearing officer had found that (1) Reinke failed to
make timely repairs to Simeus’ apartment; (2) Reinke served
upon Simeus a notice to quit the premises only 6 days after
Simeus moved into the apartment; (3) Reinke, without notice,
entered Simeus’ apartment to complete repairs when Simeus
was sleeping; and (4) Simeus was the only tenant who lost
electricity on June 26, 2013, and “[i]t is more likely than
not that . . . Reinke was responsible for the loss of electric-
ity to the Simeus apartment.” The hearing officer also noted
that there was no evidence that (1) any other tenant had been
given a notice to quit the premises after requesting a copy of
the lease agreement, (2) Reinke had entered any other apart-
ment to make repairs while the tenant was sleeping, or (3)
Reinke had rolled up his car window when any other tenant
was speaking to him. The hearing officer therefore determined
that RGR and Reinke discriminated against Simeus based on
his race or national origin. The hearing officer recommended
the following order: that a civil penalty be imposed against
Reinke in the amount of $1,000, that Reinke pay Simeus’
moving costs in the amount of $100, that Reinke return
Simeus’ security deposit in the amount of $385, and that RGR
file a satisfaction of the judgment against Simeus by Reinke
or RGR for the eviction for unpaid rent or costs in the amount
of $1,348.62.
On January 30, 2014, the Commission held a meeting at
which it discussed, inter alia, the public hearing against RGR.
And later on January 30, the Commission filed its “Final
Order.” The final order largely adopted the hearing officer’s
findings of fact, and set forth the following findings of fact:
1. The property at issue in this case is located at 1315
D Street, in Lincoln, Nebraska. Respondent, RGR . . .
- 752 -
Nebraska A dvance Sheets
292 Nebraska R eports
RGR CO. v. LINCOLN COMMISSION ON HUMAN RIGHTS
Cite as 292 Neb. 745
owns the subject property, and Respondent . . . Reinke is
the sole owner of RGR . . . .
2. The Complainant . . . Simeus, is a black individual
of Haitian descent. Respondent denies having knowledge
of the Complainant’s national origin. Respondent Reinke
testified about the nationality or race of his other ten-
ants, and testified that he believed Complainant Simeus
had a speech impediment and not an accent. Based on
the record of the hearing, Complainant Simeus speaks
English with a Haitian accent.
3. On June 1, 2013, Complainant Simeus moved into
1315 D Street, #6. The monthly rent was $385.
4. On June 5, 2013, Complainant Simeus asked
Respondent Reinke for a copy of the lease agreement.
Respondent did not provide the lease agreement to
Complainant Simeus, and told Complainant Simeus that
he was not going to provide him a copy.
5. Numerous attempts were made by Complainant
Simeus to contact Respondent Reinke relating to needed
repairs in the subject property.
6. After this time, Respondent Reinke stopped commu-
nicating with Complainant Simeus, refused to return his
phone calls, and rolled up the window of his vehicle when
Complainant Simeus tried to speak with him.
7. On June 6, 2013, Respondent Reinke issued a 14 day
notice to Complainant Simeus citing his use of candles/
smoking, disturbing the peace, argumentative or threat-
ening tenants, and public intoxication. This was issued
within six days of the Complainant moving into the sub-
ject property citing violations of a lease agreement which
was never provided to Complainant Simeus.
8. On June 7, 2013, the Lincoln Police Department was
called to 1315 D Street, #6 and an officer was there for
seven minutes.
9. On June 12, 2013, Complainant Simeus filed the
instant case with the . . . Commission . . . and the
- 753 -
Nebraska A dvance Sheets
292 Nebraska R eports
RGR CO. v. LINCOLN COMMISSION ON HUMAN RIGHTS
Cite as 292 Neb. 745
Department of Housing & Urban Development alleg-
ing discrimination in housing in violation of the Lincoln
Municipal Code and the Federal Fair Housing Act
as amended.
10. On or about June 17, 2013, Complainant Simeus
contacted the Lincoln Building & Safety Department
regarding perceived violations of the housing code at
1315 D Street, #6. An inspection was done that day and a
code violation was found.
11. On June 26, 2013, the electricity stopped working
in 1315 D Street, #6. This unit was the only unit affected.
The electrical service in the building is located behind
a locked door. The City Inspector found that the issue
stemmed from a breaker box in this locked room.
12. On June 27, 2013, Respondent Reinke entered
the rented premises to make requested repairs while
Complainant Simeus was sleeping. Respondent Reinke
did not give advance notice to Complainant Simeus that
he would enter the apartment and make the repairs. He
made the repairs while Complainant Simeus was sleep-
ing, twenty[-]seven days after Complainant Simeus began
requesting the repairs be completed.
13. On July 9, 2013, Respondent Reinke served on
Complainant Simeus a 3 day notice of breach of lease
agreement seeking $465.
14. A signed lease agreement was not produced during
the hearing, and Respondent Reinke provided no expla-
nation as to why it was not produced except to say that
another attorney had possession of it.
15. Complainant Simeus moved from 1315 D Street,
#6, after refusing to pay his rent for the month of
July 2013.
16. No evidence exists to show that any tenant, other
than Complainant Simeus, was given a notice to quit
the premises shortly after requesting a copy of the
lease agreement.
- 754 -
Nebraska A dvance Sheets
292 Nebraska R eports
RGR CO. v. LINCOLN COMMISSION ON HUMAN RIGHTS
Cite as 292 Neb. 745
17. No evidence exists to show that Respondent Reinke
entered another tenant’s apartment when the tenant was
asleep or under the influence of medication.
18. No evidence exists that Respondent Reinke rolled
up the car window when any other tenant was speaking
to him.
19. Evidence does exist to show that a tenant of
Ethiopian descent, residing in #5 of the subject property,
has a large hole in the ceiling of his bathroom that has
existed for a minimum of several months.
20. Evidence exists to show that the tenant residing in
apartment #5 has requested Respondent Reinke [to] fix
this hole on at least one occasion. As of the date of the
public hearing, the hole had not been repaired.
In the final order, the Commission ordered: a civil penalty
against RGR and Reinke in the amount of $2,000, that RGR
and Reinke pay Simeus’ moving costs in the amount of $100,
that RGR and Reinke return Simeus’ security deposit in the
amount of $385, that RGR file a satisfaction of the judgment
against Simeus for the eviction for unpaid rent or costs in the
amount of $1,348.62 in separate case No. CI 13-8406, and that
RGR and Reinke pay Simeus pain and suffering in the amount
of $3,500.
On February 7, 2014, RGR filed a motion for new trial or
reconsideration in which it challenged the findings and the
award against RGR. On February 27, the Commission filed an
amended final order, which amended the original final order by
deleting the requirement that Reinke file a satisfaction of judg-
ment in case No. CI 13-8406; all other portions of the original
final order remained unchanged.
RGR appealed from the amended final order to the dis-
trict court. On December 23, 2014, the district court filed an
order in which it affirmed the decision of the Commission.
The district court stated that after reviewing the record and
considering the parties’ oral arguments and briefs, it generally
gave deference to the credibility determinations of the hearing
- 755 -
Nebraska A dvance Sheets
292 Nebraska R eports
RGR CO. v. LINCOLN COMMISSION ON HUMAN RIGHTS
Cite as 292 Neb. 745
officer and the Commission and affirmed the Commission’s
amended final order.
RGR appeals.
ASSIGNMENTS OF ERROR
RGR claims that the district court erred in numerous
respects, including finding that the evidence was sufficient to
prove that RGR discriminated against Simeus based on his race
and national origin, relying on hearsay evidence, and awarding
inappropriate damages. Because our analysis of RGR’s first
assignment of error regarding the sufficiency of evidence is
dispositive, we do not reach RGR’s remaining assignments of
error. See Cain v. Custer Cty. Bd. of Equal., 291 Neb. 730, 750,
868 N.W.2d 334, 348 (2015) (stating that “[a]n appellate court
is not obligated to engage in an analysis that is not necessary
to adjudicate the case and controversy before it”).
STANDARDS OF REVIEW
[1,2] According to § 11.02.070(j) of the Lincoln Municipal
Code, regarding equal opportunity administration, an appeal
from an order of the Commission shall be taken to the district
court as provided in Neb. Rev. Stat. § 15-1201 et seq. (Reissue
2012). In district court, the case shall be heard as in equity
without a jury. See § 15-1205. An appeal of a case heard in
district court under § 15-1201 et seq. to the appellate court
is to be reviewed as in equity. See, Whitehead Oil Co. v. City
of Lincoln, 245 Neb. 660, 515 N.W.2d 390 (1994); American
Stores v. Jordan, 213 Neb. 213, 328 N.W.2d 756 (1982). On
appeal from an equity action, an appellate court tries factual
questions de novo on the record and, as to questions of both
fact and law, is obligated to reach a conclusion independent of
the conclusion reached by the trial court, provided that where
credible evidence is in conflict in a material issue of fact, the
appellate court considers and may give weight to the fact that
the trial judge heard and observed the witnesses and accepted
one version of the facts rather than another. See Rauscher
v. City of Lincoln, 269 Neb. 267, 691 N.W.2d 844 (2005)
- 756 -
Nebraska A dvance Sheets
292 Nebraska R eports
RGR CO. v. LINCOLN COMMISSION ON HUMAN RIGHTS
Cite as 292 Neb. 745
(considering appeal in wage claim action filed in district court
under § 15-1201 et seq.).
ANALYSIS
Clarifying Standards of Review.
As an initial matter, we note that there appears to be some
inconsistency in the appellate briefs regarding the relevant
standards of review applicable to an appeal of an order of the
Commission. Accordingly, we clarify the correct standards
of review.
The standards of review relevant to this case can be found by
following the legislative scheme. We begin with § 11.02.070(j)
of the Lincoln Municipal Code pertaining to equal opportunity
administration, which provides that “orders of the Commission
may be appealed to the District Court of Lancaster County
as provided by Neb. Rev. Stat. § 15-1201, et seq.” Section
15-1201 et seq. generally refers to appeals of orders and
decisions from various entities of a city of the primary class.
Lincoln is a city of the primary class.
Section 15-1205 provides:
The district court shall hear the appeal as in equity and
without a jury and determine anew all questions raised
before the city. The court may reverse or affirm, wholly
or partly, or may modify the order or decision brought up
for review. Either party may appeal from the decision of
the district court to the Court of Appeals.
[3,4] We have previously stated that an appeal filed in
district court pursuant to § 15-1201 et seq. from an order or
decision of a human rights commission of a city of the pri-
mary class is to be heard as in equity, and upon appeal to
this court, it is the duty of this court to try issues of fact de
novo upon the record and to reach an independent conclusion
thereon without reference to the findings of the district court.
American Stores, supra. When reviewing an appeal de novo
on the record, we have recently stated that an appellate court
reappraises the evidence as presented by the record and reaches
its own independent conclusions on the matters at issue. See
- 757 -
Nebraska A dvance Sheets
292 Nebraska R eports
RGR CO. v. LINCOLN COMMISSION ON HUMAN RIGHTS
Cite as 292 Neb. 745
In re Claims Against Pierce Elevator, 291 Neb. 798, 868
N.W.2d 781 (2015). See, similarly, Rauscher, supra.
Contrary to the standards of review recited immediately
above, it appears that the confusion regarding the proper stan-
dard of review to be applied by this court in this case results
from the citation to decisions which involved appeals of cases
which had been filed in district court as petitions in error
generally under Neb. Rev. Stat. § 25-1903 (Reissue 2008).
In contrast to the de novo on the record standard of review
applicable in this case stemming from the filing of this case
under § 15-1201 et seq., the standard of review by the appel-
late courts reviewing a ruling by the district court on a peti-
tion in error is a review of the matter to determine whether
the agency acted within its jurisdiction and whether sufficient,
relevant evidence supports the decision of the agency. See
Fleming v. Civil Serv. Comm. of Douglas Cty., 280 Neb. 1014,
792 N.W.2d 871 (2011). Such is not the standard of review
applicable here.
As ably explained in Jackson v. Board of Equal. of Omaha,
10 Neb. Ct. App. 330, 630 N.W.2d 680 (2001), where possible,
the relevant standard of review should be identified in statutes
and applied. Thus, in Jackson, the Nebraska Court of Appeals
observed that given the statutory framework, the standard
of review applicable to an appeal of a city council’s special
assessment to the district court differed according to whether
the city is of the “‘metropolitan class’” or “‘primary class’”;
the former proceeds to a petition in error via statutes com-
mencing with Neb. Rev. Stat. § 14-548 (Reissue 1997) and
is reviewed solely on the record before the original tribunal,
whereas the latter proceeds via § 15-1205 and is “‘heard in the
district court as in equity and without a jury.’” 10 Neb. Ct. App. at
334, 335, 630 N.W.2d at 684.
In the present case, the language of § 11.02.070(j) of the
Lincoln Municipal Code put us on the path to identifying
the controlling standard of review. Section 11.02.070(j) spe-
cifically provides that “orders of the Commission may be
- 758 -
Nebraska A dvance Sheets
292 Nebraska R eports
RGR CO. v. LINCOLN COMMISSION ON HUMAN RIGHTS
Cite as 292 Neb. 745
appealed to the District Court of Lancaster County as pro-
vided by Neb. Rev. Stat. § 15-1201, et seq.” Section 15-1205
provides that “[t]he district court shall hear the appeal as in
equity and without a jury and determine anew all questions
raised before the city.” Thereafter, this case must be reviewed
by this court as an equity action de novo on the record.
It is on this basis that we have reappraised the evidence
and, as discussed below, reach a different outcome than the
lower tribunals.
Merits of the Case and Applicable Framework.
In its first assignment of error, RGR contends that the evi-
dence presented at the public hearing, which served as the
trial in this matter, was insufficient to prove that RGR inten-
tionally discriminated against Simeus on the basis of Simeus’
race and national origin. We agree with RGR. Because our
analysis of RGR’s first assignment of error is dispositive,
we do not reach RGR’s remaining assignments of error. See
Cain v. Custer Cty. Bd. of Equal., 291 Neb. 730, 868 N.W.2d
334 (2015).
This case was brought under § 11.06.020 of the Lincoln
Municipal Code, which provides that regarding housing “it
shall be unlawful to . . . (b) Discriminate against any person
in the terms, conditions, privileges of sale or rental of a dwell-
ing, or in the provision of service or facilities in connection
therewith, because of race, color, religion, sex, disability,
national origin, familial status, handicap, ancestry, or marital
status.” Section 11.06.020(b) of the Lincoln Municipal Code
was modeled after 42 U.S.C. § 3604(b) of the federal Fair
Housing Act. Section 3604 of the federal Fair Housing Act
provides that “it shall be unlawful . . . (b) To discriminate
against any person in the terms, conditions, or privileges of
sale or rental of a dwelling, or in the provision of services
or facilities in connection therewith, because of race, color,
religion, sex, familial status, or national origin.” We note that
Neb. Rev. Stat. § 20-318(2) (Reissue 2012) of the Nebraska
- 759 -
Nebraska A dvance Sheets
292 Nebraska R eports
RGR CO. v. LINCOLN COMMISSION ON HUMAN RIGHTS
Cite as 292 Neb. 745
Fair Housing Act is also modeled after § 3604(b) of the fed-
eral Fair Housing Act. Therefore, because § 11.06.020(b) of
the Lincoln Municipal Code is patterned after § 3604(b) of the
federal Fair Housing Act, as is § 20-318(2) of the Nebraska
Fair Housing Act, we look to federal decisions regarding the
federal Fair Housing Act and Nebraska decisions regarding
the Nebraska Fair Housing Act for guidance. See, Ventura v.
State, 246 Neb. 116, 517 N.W.2d 368 (1994); Zalkins Peerless
Co. v. Nebraska Equal Opp. Comm., 217 Neb. 289, 348
N.W.2d 846 (1984).
[5,6] In a housing discrimination case, a court evaluates the
evidence under the three-part burden-shifting framework from
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.
1817, 36 L. Ed. 2d 668 (1973). See, Ventura, supra (applying
McDonnell Douglas Corp. three-part burden-shifting frame-
work in case involving housing discrimination); Osborn v.
Kellogg, 4 Neb. Ct. App. 594, 547 N.W.2d 504 (1996) (applying
McDonnell Douglas Corp. three-part burden-shifting frame-
work in case involving housing discrimination). Following
trial, under the McDonnell Douglas Corp. framework, (1) the
plaintiff has the burden of establishing a prima facie case of
discrimination; (2) if the plaintiff succeeds in establishing a
prima facie case, the burden shifts to the defendant to articu-
late some legitimate, nondiscriminatory reason for its action;
and (3) if the defendant successfully articulates a legitimate,
nondiscriminatory reason for its action, to succeed, the plain-
tiff must prove by a preponderance of the evidence that the
legitimate reason offered by the defendant was not its true
reason, but was instead a pretext for discrimination and that
discrimination was the real reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d
407 (1993).
[7] Regarding the burden of persuasion, the U.S. Supreme
Court stated that “[t]he ultimate burden of persuading the trier
of fact that the defendant intentionally discriminated against
the plaintiff remains at all times with the plaintiff.” Texas
- 760 -
Nebraska A dvance Sheets
292 Nebraska R eports
RGR CO. v. LINCOLN COMMISSION ON HUMAN RIGHTS
Cite as 292 Neb. 745
Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101
S. Ct. 1089, 67 L. Ed. 2d 207 (1981) (applying McDonnell
Douglas Corp. three-part burden-shifting framework in case
involving employment discrimination). Thus, we have stated
that the ultimate burden of persuading the trier of fact that
the defendant intentionally discriminated against the plain-
tiff remains at all times with the plaintiff. Ventura, supra.
See, also, O’Brien v. Bellevue Public Schools, 289 Neb. 637,
856 N.W.2d 731 (2014) (applying McDonnell Douglas Corp.
three-part burden-shifting framework in case involving wrong-
ful termination from employment). The “ultimate question
[is] discrimination vel non.” U.S. Postal Service Bd. of Govs.
v. Aikens, 460 U.S. 711, 714, 103 S. Ct. 1478, 75 L. Ed. 2d
403 (1983).
The Commission’s Prima Facie Case.
Under the McDonnell Douglas Corp. three-part framework,
the Commission, on behalf of Simeus, must first establish a
prima facie case of housing discrimination. We determine that
the Commission’s evidence demonstrated a prima facie case.
The applicable section of the Lincoln Municipal Code
describing what acts are unlawful regarding housing is
§ 11.06.020, entitled “Unlawful Acts Enumerated.” As stated
above, § 11.06.020 provides that “it shall be unlawful to . . .
(b) Discriminate against any person in the terms, conditions,
privileges of sale or rental of a dwelling, or in the provision
of service or facilities in connection therewith, because of
race, color, religion, sex, disability, national origin, familial
status, handicap, ancestry, or marital status.” Therefore, under
§ 11.06.020(b) of the Lincoln Municipal Code, in order to
establish a prima facie case of housing discrimination, the
Commission must demonstrate by a preponderance of evidence
that (1) Simeus is a member of one of the protected classes
enumerated in § 11.06.020(b); (2) Simeus was discriminated
against in the terms, conditions, privileges of sale or rental
of a dwelling, or in the provision of service or facilities in
- 761 -
Nebraska A dvance Sheets
292 Nebraska R eports
RGR CO. v. LINCOLN COMMISSION ON HUMAN RIGHTS
Cite as 292 Neb. 745
connection therewith, and (3) the discrimination was because
of his status as a member of one of the enumerated protected
classes. The Commission always retained the ultimate burden
of persuading the trier of fact that RGR intentionally discrimi-
nated against Simeus. See, Ventura v. State, 246 Neb. 116, 517
N.W.2d 368 (1994); Osborn v. Kellogg, 4 Neb. Ct. App. 594, 547
N.W.2d 504 (1996).
With respect to the first element, the Commission demon-
strated that Simeus is a member of two of the protected classes
listed in § 11.06.020(b): race and national origin. The parties
do not dispute that Simeus is black. Because the evidence pre-
sented at the hearing focused on Simeus’ national origin, we
focus on that protected class. Simeus testified at the hearing
that he is from Haiti. The Commission met the first element of
the prima facie case.
With respect to the second element, the Commission pro-
duced evidence at the hearing which showed that RGR pro-
vided inadequate service in connection with Simeus’ rental of
the apartment. The record shows that Reinke, the sole owner
of RGR, refused to provide Simeus with a copy of the lease
agreement, despite Simeus’ requests for a copy. The record
also shows that Reinke was slow in responding to Simeus’
requests for repairs to his apartment. Soon after Simeus began
his lease on June 1, 2013, Simeus noted that his apartment
was in need of repairs. There was a hole in his bedroom wall.
There were broken items, including a shower faucet, kitchen
cabinets, and a stove with only one functioning burner. Simeus
called Reinke regarding the repairs, but Reinke did not return
those calls. On or about June 17, Simeus contacted Lincoln’s
Building and Safety Department regarding the needed repairs.
A housing inspector determined that the leaking faucet consti-
tuted a code violation, and a letter was sent to RGR stating that
the violation must be repaired by July 3.
The evidence shows that on June 27, 2013, Reinke entered
Simeus’ apartment to make the repairs. He did not provide
Simeus with notice. The evidence further shows that Reinke
- 762 -
Nebraska A dvance Sheets
292 Nebraska R eports
RGR CO. v. LINCOLN COMMISSION ON HUMAN RIGHTS
Cite as 292 Neb. 745
completed the repairs while Simeus was asleep. In an inter-
view with Lemke, Reinke acknowledged that he completed the
repairs while Simeus “was ‘not alert.’”
The record also shows that on June 26, 2013, the electric-
ity stopped working in Simeus’ apartment and that Simeus’
apartment was the only one in which the electricity was
affected. A housing inspector from the Building and Safety
Department determined that the issue was with the main
breaker box located in a locked closet in the hallway outside
of Simeus’ apartment.
Based on the evidence regarding Reinke’s refusal to pro-
vide Simeus a copy of the lease, Reinke’s delay in responding
to Simeus’ request for repairs (at least one of which was a
code violation), the fact that Reinke entered Simeus’ apart-
ment without notice and completed the repairs while Simeus
was asleep, and the electricity outage limited to Simeus’
apartment, the Commission demonstrated that RGR provided
inadequate service to Simeus in connection with his rental of
the apartment and established the second element of the prima
facie case.
With respect to the third element of the prima facie case,
the Commission’s evidence adequately showed that RGR’s
poor provision of service could be viewed as resulting from
Simeus’ status as a member of a protected class, namely his
national origin. Specifically, Simeus testified that he is from
Haiti. Simeus further testified at the hearing that on or about
June 5, 2013, he approached Reinke, who was sitting in his
vehicle outside the apartment building, with the intention of
speaking with him. According to Simeus’ testimony and as
contained in the housing discrimination complaint, instead
of talking to Simeus, Reinke rolled up his window and said,
“‘That’s why I don’t want to deal with you foreigners . . . .’”
There was additional evidence that RGR also failed to make
timely repairs to an apartment where a man of Ethiopian
descent lived. For purposes of its prima facie case regarding
the third element, the Commission adequately showed that the
- 763 -
Nebraska A dvance Sheets
292 Nebraska R eports
RGR CO. v. LINCOLN COMMISSION ON HUMAN RIGHTS
Cite as 292 Neb. 745
poor provision of services to Simeus by RGR could be the
result of Simeus’ national origin. Because the Commission,
on behalf of Simeus, demonstrated these three elements, the
Commission met its initial burden of establishing a prima facie
case of discrimination.
RGR’s Legitimate, Nondiscriminatory Reasons.
Because the Commission established a prima facie case
of discrimination, under the three-part burden-shifting frame-
work of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S. Ct. 1817, 36 L. Ed. 2d 668 (1973), the burden shifted to
RGR to articulate some legitimate, nondiscriminatory reasons
for its action. We determine that by its evidence, RGR suc-
cessfully articulated legitimate, nondiscriminatory reasons for
its actions.
[8] The defendant’s responsibility to produce proof of a
nondiscriminatory, legitimate justification for its action is not
an onerous task. Ebersole v. Novo Nordisk, Inc., 758 F.3d 917
(8th Cir. 2014) (stating proposition in case involving retalia-
tory discharge). It is a burden of production, not of persuasion.
Riesen v. Irwin Indus. Tool Co., 272 Neb. 41, 717 N.W.2d 907
(2006) (stating proposition in case involving retaliatory dis-
charge). In order to meet the requisite burden, the defendant
need only explain what has been done or produce evidence
of a legitimate, nondiscriminatory reason for the action. See,
O’Brien v. Bellevue Public Schools, 289 Neb. 637, 85 N.W.2d
731 (2014); Riesen, supra. Furthermore, “[t]he defendant need
not persuade the court that it was actually motivated by
the proffered reasons.” Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 67 L. Ed. 2d 207
(1981). This is so because the burden-of-production determi-
nation necessarily precedes the credibility-assessment stage.
St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct.
2742, 125 L. Ed. 2d 407 (1993). A failure of production by the
defendant occurs when the defendant has failed to introduce
evidence which, taken as true, would permit the conclusion
- 764 -
Nebraska A dvance Sheets
292 Nebraska R eports
RGR CO. v. LINCOLN COMMISSION ON HUMAN RIGHTS
Cite as 292 Neb. 745
that there was a nondiscriminatory reason for the adverse
action. See id. But a failure of production at this stage is not
because the proffered explanation is “‘unworthy of credence.’”
509 U.S. at 517.
At the hearing, Reinke testified that he was aware that
Simeus was black when he rented the apartment to him, but
he stated that he was unaware that Simeus was foreign born
until the complaint was filed in this case. Reinke stated that
he did not think Simeus spoke with an accent, which would
have indicated to him that Simeus was foreign born, but
instead, Reinke testified that he believed that Simeus had a
speech impediment.
Reinke testified that the reason he did not provide Simeus
with a copy of the signed lease agreement was not based on
Simeus’ race or national origin. Reinke stated that he did not
provide Simeus with a copy of the signed lease agreement
because his copy machine was broken, and accordingly, he
could not make a copy of the lease for Simeus or any other
tenant. Reinke testified that he offered to scan the signed
lease agreement and e-mail the copy of it to Simeus, but that
he did not do so because Simeus never provided him with an
e-mail address.
Reinke testified that the reason he had delayed in making
Simeus’ requested repairs was not based on Simeus’ race or
national origin. Reinke explained that he delayed in complet-
ing Simeus’ repairs because he had a large number of requested
repairs that were needed in the apartments he managed, and
he had to prioritize how to complete the repairs. Reinke testi-
fied that he prioritizes the maintenance requests based on the
emergent nature of the repairs needed. Reinke also testified
that he was unaware of the leaking faucet in Simeus’ apart-
ment until he received the letter from the housing inspector,
and accordingly, he was unaware that the faucet needed repair
before then.
At the hearing, RGR offered, and the hearing officer
received, exhibit 30, which was created for purposes of this
- 765 -
Nebraska A dvance Sheets
292 Nebraska R eports
RGR CO. v. LINCOLN COMMISSION ON HUMAN RIGHTS
Cite as 292 Neb. 745
case and consisted of a list of tenants who had outstand-
ing maintenance requests for repairs. Reinke testified that
sometimes the maintenance requests take months to complete.
Reinke testified that many of the tenants listed on exhibit 30
were Caucasian, and the Commission agreed at the hearing
to stipulate that, according to Reinke’s opinion, 75 percent of
the tenants listed on exhibit 30 were “white.” Reinke further
stated that he does not answer all of his tenants’ calls regarding
requests for repairs because he receives such calls “[h]ourly”
and he does not “have the physical capacity to sit on the phone
for every phone call.” RGR also offered, and the hearing offi-
cer received, exhibit 34, which was a list created by Reinke
for purposes of this case of 24 tenants that RGR rented to who
Reinke believed were foreign born.
Reinke testified that the lease agreements he has with his
tenants allows him to go into a tenant’s apartment without
notice in the event the tenant makes a maintenance request
for repairs. He further testified that in order to make repairs,
he has entered other tenants’ apartments, including Caucasian
tenants, when the tenants were sleeping. Therefore, Reinke
contends that the reason he entered Simeus’ apartment without
notice and completed the requested repairs while Simeus was
asleep was because that is how he generally conducts his busi-
ness, and not because of Simeus’ race or national origin.
Regarding the electricity not operating in Simeus’ apart-
ment on June 26, 2013, Reinke testified that on that day, there
were maintenance people in Simeus’ apartment building, and
that Reinke had given them the key to the electrical cabinet
in case they needed access to it. Reinke stated that he was not
aware that the housing inspector was in the building that day to
inspect the electricity issue in Simeus’ apartment.
Based on the foregoing reasons that RGR provided for its
actions and its evidence contained in the record, we determine
that RGR met its burden of production and articulated legiti-
mate, nondiscriminatory reasons for its actions. In this regard,
we repeat that the defendant need not persuade the court it was
- 766 -
Nebraska A dvance Sheets
292 Nebraska R eports
RGR CO. v. LINCOLN COMMISSION ON HUMAN RIGHTS
Cite as 292 Neb. 745
actually motivated by the proffered reasons. See St. Mary’s
Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L.
Ed. 2d 407 (1993).
No Establishment of Pretext or Real Reason
Was Intentional Discrimination.
Where the defendant succeeds, as did RGR in this case,
in carrying its burden of production, then the McDonnell
Douglas Corp. framework’s presumptions are no longer rel-
evant. See St. Mary’s Honor Center, supra. Regarding the
defendant’s articulated explanations and reasons, the U.S.
Supreme Court in St. Mary’s Honor Center has stated that “a
reason cannot be proved to be ‘a pretext for discrimination’
unless it is shown both that the reason was false, and that dis-
crimination was the real reason.” 509 U.S. at 515 (emphasis
in original). Therefore, the trier of fact proceeds to the third
stage in which it is to decide the ultimate question: whether
the plaintiff has proved that the defendant intentionally dis-
criminated against him or her because of race or national
origin. See id. As applied in this case, to succeed on its claim
of intentional discrimination, the Commission was required to
establish by a preponderance of the evidence that the legiti-
mate reasons offered by RGR were not its true reasons, but
pretexts for discrimination, and that Simeus was intentionally
discriminated against. See, St. Mary’s Honor Center, supra;
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.
1817, 36 L. Ed. 2d 668 (1973). Following our de novo review
of the record, we determine that the Commission did not
establish by a preponderance of the evidence that RGR’s prof-
fered reasons were pretexts or that Simeus was the victim of
intentional discrimination.
[9,10] The term “pretext” means pretext for discrimina-
tion. Osborn v. Kellogg, 4 Neb. Ct. App. 594, 547 N.W.2d 504
(1996). A defendant’s reason for its action cannot be proved
to be a pretext for discrimination unless it is shown both
that the reason was false and that discrimination was the real
- 767 -
Nebraska A dvance Sheets
292 Nebraska R eports
RGR CO. v. LINCOLN COMMISSION ON HUMAN RIGHTS
Cite as 292 Neb. 745
reason. Doe v. Board of Regents, 287 Neb. 990, 846 N.W.2d
126 (2014) (applying McDonnell Douglas Corp. framework
to case involving discrimination based on disability). See,
also, Osborn, supra. The plaintiff must do more than merely
discredit the defendant’s explanation. We have stated that
although strong evidence of a prima facie case of discrimi-
nation can also be considered to establish pretext, proof
of pretext or actual discrimination requires more substan-
tial evidence. O’Brien v. Bellevue Public Schools, 289 Neb.
637, 856 N.W.2d 731 (2014) (applying McDonnell Douglas
Corp. framework to case involving retaliatory discharge
from employment).
In support of its assertion that RGR’s proffered reasons
were a pretext, the Commission points to the fact that an
Ethiopian man living in another of RGR’s apartments had a
hole in the ceiling of his apartment which was not repaired for
“a minimum of several months.” The Commission contends
that this evidence relating to another foreign-born tenant sup-
ports its assertion that RGR’s proffered reasons are a pretext
and that RGR discriminates in completing repairs based on
a tenant’s national origin in general and did so as to Simeus
in particular.
However, upon our de novo review of the record, the
evidence shows that RGR is slow to complete repairs for
many tenants and that most notably, its negative treatment
is not limited to tenants who are foreign born. At the hear-
ing, RGR offered exhibit 34, in which Reinke listed names
of 24 tenants who he believed were foreign born. RGR also
offered exhibit 30, in which Reinke listed the tenants who
had outstanding maintenance requests for repairs to their
apartments. The record demonstrates that while some tenants
whose apartments were in need of repairs were foreign born,
not all of the tenants were, and that the parties stipulated
that approximately 75 percent of the tenants listed on exhibit
30 awaiting repairs were Caucasian. Reinke testified that he
prioritizes the requested repairs based on the emergent nature
- 768 -
Nebraska A dvance Sheets
292 Nebraska R eports
RGR CO. v. LINCOLN COMMISSION ON HUMAN RIGHTS
Cite as 292 Neb. 745
of the requests. Reinke testified that some of the repairs took
months to complete. The fact that the Commission can point
to evidence of delayed repairs for one other foreign-born
tenant does not dispute or defeat RGR’s assertion that it is
generally slow to complete many of its tenants’ requested
repairs, including Caucasian and non-foreign-born tenants.
The Commission did not show that RGR’s explanation was a
pretext for discrimination.
In a further attempt to establish that RGR’s proffered rea-
sons are pretexts, the Commission also points to the disputed
statement of June 5, 2013. Simeus testified that on June 5,
he approached Reinke while Reinke was in his car, and that
instead of speaking with Simeus, Reinke rolled up his car win-
dow and told Simeus, “‘That’s why I don’t want to deal with
you foreigners . . . .’” Reinke testified that he never made this
statement. He further testified that he rolled up his car window
when Simeus approached him because Reinke was already
having a conversation with someone on his cell phone and he
wanted to complete that conversation.
We recognize that when reviewing an equity case de novo
on the record where evidence is in dispute, we may give weight
to the fact that the fact finder heard and observed the witnesses
and accepted one version of the facts rather than another. See
Rauscher v. City of Lincoln, 269 Neb. 267, 691 N.W.2d 844
(2005). But such deference is not limitless.
The parties acknowledge that there are credibility issues
regarding both Simeus and Reinke. And it is clear from the
record that Simeus considered Reinke to be a difficult land-
lord and that Reinke considered Simeus to be a problematic
tenant. Nevertheless, we determine that the disputed state-
ment, whether Reinke stated it or not, did not establish that
RGR’s proffered reasons for its treatment of Simeus were
false or pretexts, or that discrimination was the real reason for
its actions.
As outlined above, the record indicates that Reinke is slow
to complete all tenants’ requested repairs, he enters tenants’
- 769 -
Nebraska A dvance Sheets
292 Nebraska R eports
RGR CO. v. LINCOLN COMMISSION ON HUMAN RIGHTS
Cite as 292 Neb. 745
apartments evidently with little or no notice to make repairs,
and he sometimes completes the repairs while the tenants are
sleeping. The record shows that Reinke’s tardy method of
making repairs, although negative, was not limited to foreign-
born tenants.
We are required to analyze the third stage of the proceed-
ings under the framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1993).
Given the totality of the evidence contained in the record, and
applying our correct equity standard of review of de novo
upon the record, we determine that the Commission did not
prove that RGR’s proffered reasons were false, nor did the
Commission prove that discrimination was RGR’s real reason
for its actions. Based on our determinations stated above, we
conclude that the district court erred when it affirmed the final
amended order of the Commission, and we enter orders as
indicated below.
CONCLUSION
In this housing discrimination case, we determine that the
district court erred when it affirmed the final amended order of
the Commission, which had ruled in favor of the Commission
and against RGR. We reverse the decision of the district court
and remand the cause to the district court with directions to
remand the matter to the Commission with directions that the
Commission dismiss the charge brought by the Commission,
on behalf of Simeus, against RGR.
R eversed and remanded with directions.
McCormack and Stacy, JJ., not participating.