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State paying nearly $800K to settle civil rights suit

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The state of Nebraska will pay more than three quarters of a million dollars to settle a civil rights lawsuit filed by five black Nebraska State Penitentiary guards who alleged race-based harassment and retaliation at work.

The state did not admit any wrongdoing as part of the settlement.

Just the same, the state is choosing to give Jaryl Ellis $225,000, and $100,000 each to Michael Hunter, Tiffany Johnson, Paul Zeiger and Aaron Delaney rather than take the case to trial in September.

The state will pay $152,087 to Keating O'Gara Law Firm for their fees, costs and expenses representing the guards.

That adds up to $777,087.50.

Jefferson Downing, an attorney for the five, said his office received the first installment of funds — $50,000 to each of the five and to the firm — on Monday.

The rest will have to be appropriated by the Legislature in next year's session. 

In 2010, the five sued former state Corrections Director Robert Houston and other prison employees, saying it had become common practice for white staff, including sergeants, to make racially charged jokes and remarks in front of lieutenants as they reported for first-shift roll call.

In the months leading up to the filing, they said, when they came into the room co-workers would say things like "looks like the back of the bus is here," "smells like fried chicken," "the 'hood has arrived" and "if the lights went out, all you would see is white teeth."

Several white members of the shift testified in depositions that supervisors not only laughed, but also took no disciplinary action against those making the jokes.

The black officers said they felt powerless to respond.

Ellis and Zeiger said then they felt like inmates at work. Hunter, who had been a first-shift case worker, said he felt like a black child in the 1950s walking into an all-white school.

In September 2010, the five wrote a joint letter to Maj. Barry Loock, the ranking officer in charge of the prison guards.

An investigation followed, which led prison authorities to impose sanctions on three supervisors. But when the jokes continued, the black officers sued.

In 2012, Senior U.S. District Judge Richard Kopf dismissed the lawsuit, saying they hadn't met the demanding standard for a hostile work environment set by case law.

This February, the 8th Circuit Court of Appeals reversed him and sent the case back for trial on harassment claims against Sgt. Chad Miles and on Ellis' retaliation claims against Lts. Kevin Stoner and Chad Haney.

Two, Miles and Haney, still work for the prison.

Of the five guards, only Johnson still works at the State Penitentiary.

In the opinion, 8th Circuit Judge Diana E. Murphy said the plaintiffs provided evidence that first-shift supervisors were present and often laughed, smirked or chuckled at racial taunts.

Murphy said such behavior by a supervisor tacitly endorses racist remarks by subordinates.

The case appeared headed toward trial until news of the settlement came this week.

"We were pleased to gain vindication at the 8th Circuit Court of Appeals," Downing said this week. "Obviously, we are pleased with the settlements."

His clients declined to comment, as did the Nebraska Attorney General's Office.

In an email, corrections spokeswoman Dawn-Renee Smith said the department "places a high priority on interpersonal communication skills and cultural competence among its staff."

"NDCS provides annual training regarding diversity and inclusion and strives to provide an environment free from discrimination in any form, Smith said. "NDCS will continue to stringently enforce its anti-harassment and discrimination policies."

Reach the writer at 402-473-7237 or lpilger@journalstar.com. On Twitter @LJSpilger.

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Public safety reporter

Lori Pilger is a Norfolk native and University of Nebraska-Lincoln graduate who has been a public safety reporter for the Journal Star since 2005.

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