Judge: State trooper can proceed with lawsuit claiming sexually invasive exam during mandatory physical

LINCOLN — A federal judge has ruled that a Nebraska State Patrol trooper can proceed with a lawsuit filed over alleged sexually invasive examinations required of female trooper candidates.

U.S. District Judge Joseph Bataillon said in a Tuesday order that Trooper Brienne Splittgerber’s allegations are “more than sufficient” to meet the standards for proceeding with claims based on federal law.

However, he dismissed the claims that she filed under state law against two former patrol superintendents and the doctor who performed the exams. He said the state law cited did not apply to public officials acting in their official capacity.

He also dismissed federal gender discrimination claims filed against the superintendents as individuals.

Splittgerber alleged, in an August lawsuit, that she had been subjected to gender discrimination and a hostile work environment in the patrol.

She said that Dr. Stephen Haudrich, working under contract with the patrol, had required her to remove her pants and display her genitals and anus for a “medically unnecessary” exam.

The exam was part of a mandatory physical she underwent as a recruit in 2014.

Splittgerber alleges that she reported the incident to her superior and was told it would be investigated. She heard nothing until after she hired an attorney a couple of years later.

The suit claims that the patrol failed to adequately investigate her complaint and then worked to cover it up, actions which she alleges created a hostile work environment.

The suit names the state, the patrol, Haudrich and two former superintendents, Col. Brad Rice and Col. David Sankey.

Attorneys for the three men and for the state had asked for the suit to be dismissed. They asserted that the case had been filed too late and that her claims did not amount to violations of the law.

Bataillon rejected those arguments as far as they involved federal laws.

He disagreed particularly with the state’s claim that Splittgerber’s allegations did not amount to “extremely offensive conduct.”

“On the contrary, the plaintiff has alleged conduct that seems invasive and severe for purposes of the motion to dismiss,” he said.

Splittgerber’s attorney, Tom White of Omaha, said he was pleased with the ruling, noting that the damages possible under state law would have been much more limited.

In response to the ruling, a spokeswoman for Attorney General Doug Peterson said the office will proceed to defend the state against the suit. Rice’s attorney, Robert Creager of Lincoln, said he expects that his client will continue trying to get the case dismissed.

Splittgerber was sworn in as a state trooper in May 2015 and was one of four troopers awarded their badges by their fathers. Her father is retired Sgt. Morry Abshier.

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