A federal judge has dismissed a whistleblower lawsuit filed by the onetime administrator who oversaw the Nebraska Department of Correctional Services’ mental health and substance abuse services and sex offender program.
Alice Mitwaruciu alleged she was demoted after reporting that the deputy director of prisons, Dawn-Renee Smith, was making clinical decisions concerning inmates without a license and that staff at the Lincoln Correctional Center weren’t properly administering medication to inmates.
She also later accused Dr. Harbans Deol, then-medical director of the prisons, of discrimination and Smith of retaliation.
Alice Mitwaruciu
Courtesy photo
Mitwaruciu, a Black woman from Kenya, filed the lawsuit in 2021, on the heels of lawmakers approving a $100,000 payment to settle a discrimination lawsuit filed against the prison by Razak Aljanabi, a former corporal at the Nebraska State Penitentiary who is from Iraq and a practicing Shia Muslim.
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In a decision last month, United States District Judge Susan Bazis said she would assume without deciding that Mitwaruciu’s attorney had shown enough evidence of discrimination to warrant a trial, but she had failed to show there hadn’t been a legitimate reason to change her position.
Kathleen Neary had argued it was pretext, shown by inconsistencies given by Deol and then-Director Scott Frakes for why she was moved to a different position. One said it was performance-based, the other said the heavy demands of the position.
“The problem with plaintiff’s argument, however, is that viewed in its full context, all this evidence is in step,” the judge wrote.
The Nebraska Attorney General’s Office, which represented the prison, maintained that their behavioral health services needed to be reorganized. They said multiple individuals saw the need for it, including an expert witness retained as part of an American Civil Liberties Union lawsuit filed in 2018 on behalf of 11 inmates alleging deficiencies.
In October 2016, Mitwaruciu was promoted to behavioral health administrator following a resignation. But in June 2019, following her reports, she was reassigned to a different position and her salary cut $5,000.
Mitwaruciu ultimately left her job in September 2019.
In her order, Bazis said the Nebraska Fair Employment Practices Act forbids an employer from discriminating against an employee or taking adverse action against them for opposing a practice that is unlawful under federal or Nebraska law.
But, she said, Mitwaruciu couldn’t show that she had participated in a protected activity because the alleged unlawful activities she reported had been done by fellow employees, not her employer.
In the order, Bazis said the former chief operating officer of the Department of Corrections Health Services, John Wilson, testified in the case that “anyone who disagreed with Deputy Director Smith would be ‘targeted,’ regardless of that individuals’ race or ethnicity.”
She said others testified that they did not necessarily agree with Deol’s management approach and said his interpersonal skills could be “off-putting.”
“Although Dr. Deol may have had a management style that plaintiff found inappropriate, there is no evidence that Dr. Deol treated plaintiff negatively based on her race, color, national origin, or because she complained about alleged illegal conduct,” the judge wrote.
She said even after Mitwaruciu was reassigned, she remained the highest compensated behavioral health assistant administrator, making thousands more than her peers.
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