Draper v. Doculynx, Inc.

KEYA C. DRAPER, Plaintiff, v. DOCULYNX, INC., Defendant.

8:18CV374

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

March 29, 2019

MEMORANDUM AND ORDER

Plaintiff filed her Complaint in this matter on August 8, 2018. (Filing No. 1.) Plaintiff has been given leave to proceed in forma pauperis. (Filing No. 5.) The court now conducts an initial review of Plaintiff's claims to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).

I. SUMMARY OF COMPLAINT

Plaintiff filed her Complaint in this matter against Doculynx, Inc. ("Defendant"), where she had been employed from January 23, 2017, to March 17, 2017. (Filing No. 1 at CM/ECF pp. 1, 7.) Plaintiff alleges that Defendant discriminated against her on the basis of age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, and the Nebraska Age Discrimination in Employment Act ("NADEA"), NEB. REV. STAT. §§ 48-1001-1010; and on the basis of sex, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-2000e-17, and the Nebraska Fair Employment Practice Act ("NFEPA"), NEB. REV. STAT. §§ 48-1101-1126. (Id. at CM/ECF p. 7.) Plaintiff's filings include the charge of discrimination that she filed with the Nebraska Equal Opportunity Commission ("NEOC") and Equal Employment Opportunity Commission ("EEOC") on March 30, 2017. (Id. at CM/ECF pp. 6-8.) In assessing Plaintiff's Complaint, the court will consider the allegations raised in Plaintiff's NEOC charge of discrimination, as well as those raised in the Complaint. See Coleman v. Correct Care Solutions, 559 Fed. App'x. 601, 602 (8th Cir. 2014).

Plaintiff, a female in her 40s, was placed by Express Services, Inc. with Defendant on January 23, 2017, as a Scanner. (Filing No. 1 at CM/ECF p. 7.) Beginning in or around March 1, 2017, Plaintiff alleges she was "verbally [and] sexually harassed" by another employee of Defendant named Tasha, a female in her 40s. (Id. at CM/ECF pp. 4, 7.) Tasha made insulting comments and gestures to Plaintiff like "fat bitches are a trip" and would "avoid areas that [Plaintiff] would be in such as not eating lunch when [Plaintiff] was in the break room, instead eating at her desk or in her car." (Id. at CM/ECF p. 7.) Tasha would also "mimic [Plaintiff] and walk with her nose in the air." (Id.)

On March 15, 2017, Plaintiff complained about the harassment to Ray, a male manager in his 20s, and to her Express Employment Recruiter Pam, a female in her 40s. Plaintiff also called the local police to report that she was not safe at work. The police interviewed Plaintiff and Ray and asked Ray if Tasha and Plaintiff could be separated from each other. Ray offered to move Plaintiff's work station, and Plaintiff refused that move. Pam told Plaintiff not to return to work on March 16, 2017, and that she would investigate the situation and call Plaintiff on March 17, 2017. Pam informed Plaintiff on March 17, 2017, that her assignment with Defendant was ended. Plaintiff alleges her job performance was satisfactory and that Tasha did not lose her assignment.

Plaintiff alleges Defendant "did nothing to ensure [her] safety and provide a safe work environment" after she informed Defendant of Tasha's harassment, but instead fired Plaintiff. (Id. at CM/ECF p. 4.) As relief, Plaintiff seeks $250,000.00 "in punitive damages" for the humiliation and mental impact she suffered. (Id.) The right-to-sue notice attached to Plaintiff's Complaint reflects that she filed suit in this court within 90 days of her receipt of the right-to-sue notice from the EEOC. See 42 U.S.C. § 2000e-5(f)(1) (a charging party has 90 days from thereceipt of the right-to-sue notice to file a civil complaint based on a charge of discrimination).

II. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW

The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must dismiss a complaint or any portion of it that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

Pro se plaintiffs must set forth enough factual allegations to "nudge[] their claims across the line from conceivable to plausible," or "their complaint must be dismissed." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.").

"The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party 'fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.'" Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, "[a] pro se complaint must be liberally construed, and pro se litigants are held to a lesser pleading standard than other parties." Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).

III. DISCUSSION OF CLAIMS

Liberally construed, Plaintiff asserts claims of age and sex discrimination. The court has considered Plaintiff's discrimination claims under three potentialtheories: disparate treatment, retaliation, and hostile work environment. For the reasons discussed below, Plaintiff's Complaint does not state a claim for relief under any of the three theories.

A plaintiff need not plead facts sufficient to establish a prima facie case of employment discrimination in his or her complaint. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-12 (2002) (holding a complaint in employment discrimination lawsuit need not contain "facts establishing a prima facie case," but must contain sufficient facts to state a claim to relief that is plausible on its face), abrogated in part on other grounds by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). However, the elements of a prima facie case are relevant to a plausibility determination. See Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 54 (1st Cir. 2013) (stating elements of a prima facie case are "part of the background against which a plausibility determination should be made" and "may be used as a prism to shed light upon the plausibility of the claim"); see also Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012) ("While the 12(b)(6) standard does not require that Plaintiff establish a prima facie case in her complaint, the elements of each alleged cause of action help to determine whether Plaintiff has set forth a plausible claim.").

A. Age Discrimination

Plaintiff asserts claims under the ADEA and the NADEA. The ADEA protects individuals over 40 and prohibits an employer from failing or refusing to hire, discharging, or otherwise discriminating against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age. 29 U.S.C. § 623(a); Anderson v. Durham D & M, L.L.C., 606 F.3d 513, 523 (8th Cir. 2010). The NADEA offers similar protection. See Neb. Rev. Stat. § 48-1004(1)(a). The NADEA is interpreted in conformity with the ADEA, and the court will apply the same analysis to both claims. See Billingsley v. BFM Liquor Mgmt., Inc., 645 N.W.2d 791, 801 (Neb. 2002). The court looks to theelements of a prima facie case of discrimination in assessing whether Plaintiff has pled enough facts to make entitlement to relief plausible.

i. Disparate Treatment

Disparate treatment cases present the most easily understood type of discrimination. Ricci v. DeStefano, 557 U.S. 557, 577 (2009). Disparate treatment occurs where an employer treats particular individuals less favorably than others because of a protected trait. Id. To set forth a prima facie claim of age discrimination, a plaintiff must establish that (1) he is over 40; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) similarly-situated employees outside the class were treated more favorably. Anderson, 606 F.3d at 523. "The hallmark of an ADEA disparate-treatment claim is intentional discrimination against the plaintiff on account of the plaintiff's age." Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1331 (8th Cir. 1996). This requires proof that age was the "but-for" cause of the employer's adverse decision. Gross v. FBL Fin. Servs. Inc., 557 U.S. 167, 176-78 (2009).

Here, Plaintiff alleged that she is over 40 and her job performance was satisfactory. In addition, the termination of Plaintiff's assignment with Defendant is an adverse employment action. However, the court cannot infer Plaintiff's age was a cause of her termination. There are no facts to suggest the termination was because of Plaintiff's age. Plaintiff alleges that Tasha did not lose her assignment, but Tasha is also over age 40. Thus, Plaintiff has not alleged facts suggesting that persons outside the protected class were treated more favorably. Accordingly, the court finds that Plaintiff has failed to state an ADEA disparate treatment claim upon which relief can be granted.

ii. Retaliation

The ADEA makes it unlawful for an employer to discriminate against an employee because she has opposed any practice made unlawful by the ADEA, orbecause the employee has participated in any manner in an investigation, proceeding, or litigation. 29 U.S.C. § 623(d). To state a claim for retaliation, Plaintiff must allege facts showing that (1) she engaged in ADEA-protected activity; (2) her employer took an adverse employment action against her; and (3) there is a causal connection between the two events. Lors v. Dean, 746 F.3d 857, 865, 867 (8th Cir. 2014).

Here, Plaintiff alleges no facts to suggest she engaged in ADEA...