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Judge dismisses trooper’s lawsuit over pre-employment genital exam for state troopers

March 28, 2019

A former Nebraska State Patrol trooper has lost her lawsuit against the state alleging that to be hired she and other women were put through a genital exam that she alleged was medically unnecessary and not required of men.

Brienne Splittgerber resigned from the Patrol last May.

In an order last week, Senior U.S. District Judge Joseph Bataillon denied the state’s motion to dismiss the case alleging Splittgerber’s lawsuit had missed the statute of limitations.

The judge said she had made a case, on its face, of a hostile work environment within the time permitted under the law.

But Bataillon ultimately found that Splittgerber had not supported her allegations with evidence sufficient for the case to go forward.

For instance, he said, there was no evidence in the record that the physical standards for the examination were inappropriate for law enforcement officers; were outside the medical standards of care; or failed to conform to the physical standards required by the Nebraska Law Enforcement Academy.

And there was no evidence, outside Splittgerber’s hearsay statement that the physician didn’t perform similar exams “equally on males and females,” the judge said.

In the lawsuit filed in U.S. District Court in 2017, Splittgerber said as part of a pre-employment physical examination Sept. 11, 2014, by a male doctor chosen by the State Patrol to do the exams, she was told to take off her pants, lie on the table and position herself to expose her genitalia and anus, apparently to check for a hernia and hemorrhoids.

After talking to her personal physician, she complained to her superiors, arguing that the exam wasn’t medically necessary, and she hadn’t consented to it.

Two years later, believing nothing had been done, Splittgerber went to then-Patrol Superintendent Col. Brad Rice, who directed legal counsel and human resources employees to inquire about the procedures for conducting the examination.

The policy later was changed to allow job candidates to ask for a medical provider of a specific gender to conduct the pre-employment exam or to have their own doctor do it.

In the lawsuit, Splittgerber had alleged that the invasive medical examination was conducted on candidates inconsistently and that many male candidates didn’t have to undergo them at all.

She also contended the State Patrol “attempted to cover up any wrongdoing, conducted sham investigations, and created a hostile work environment for her.”

But Bataillon said the only evidence of a hostile work environment was an alleged delay in following through with an investigation of her complaints.

“Ultimately, a report was prepared and the policy concerning who administers physical examinations was amended,” the judge said.

As for the exam, Bataillon said the Nebraska Attorney General’s office presented unrebutted evidence that the physical qualifications for state trooper candidates are set by the Nebraska Police Standards Advisory Council, not the State Patrol.

“There is no evidence in the record, other than plaintiff’s bare hearsay and foundationless assertions, that the physical standards are medically inappropriate or that the examining physician inappropriately conducted the examination,” he wrote.

Bataillon then dismissed the lawsuit.