Jones v. Live On Neb.

SAKENA JONES, Plaintiff, v. LIVE ON NEBRASKA; AMANDA BREWER, FSC Manager; and BRYN, in HR at Live on Nebraska, Defendants.

No. 4:21CV3111

United States District Court, D. Nebraska

September 16, 2021

MEMORANDUM AND ORDER

Richard G. Kopf, Senior United States District Judge

Plaintiff a non-prisoner, has been given leave to proceed in forma pauperis. (Filing 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

Following receipt of a right-to-sue notice from the Equal Employment Opportunity Commission (Filing 1 at CM/ECF p. 8), Plaintiff filed this race- and disability-discrimination and retaliation action against her former employer, Live On Nebraska, and two of its employees. Plaintiff sues under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq., the Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ 12112, et seq., as amended, and presumably the Nebraska Fair Employment Practice Act (“NFEPA”), Neb. Rev. Stat. §§ 48-1101 to 48-1125, claiming that she was terminated from her position because she is single, black, and because both she and her children have disabilities, which she identifies as “ADHD, anxiety, Diabetes.” (Filing 1 at CM/ECF p. 5.)

Attached to Plaintiff's Complaint is her charge of discrimination, which alleges that: (1) on September 11, 2020, she received approval to work from home that day because her childcare provider had been exposed to Covid-19, but she was able to work in an Omaha hospital that evening; (2) Plaintiff's employer scheduled appointments for her to attend on her “off days, ” and she is not aware of other non-black, single employees who were scheduled to work on their off days; and (3) after speaking with the human resources director and family services manager on September 25, 2020, about Plaintiff's disabled child's school schedule, her employer fired her on September 30, 2020, “allegedly due to being dishonest [about] my special needs child's school schedule.” (Filing 1 at CM/ECF pp. 11-12.)

Plaintiff claims she and her children have suffered pain, oppression, loss of sleep, and poverty, and Plaintiff's employer has “assassinated” her character and ruined her 10-year work record by terminating her employment. (Filing 1 at CM/ECF p. 6.)

II. 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) (internal quotation marks and citations omitted). 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

A. Proper Defendants

Because “Title VII addresses the conduct of employers only and does not impose liability on co-workers, ” Powell v. Yellow Book USA, Inc., 445 F.3d 1074, 1079 (8th Cir. 2006); because Title VII “does not provide for an action against an individual supervisor, ” Van Horn v. Best Buy Stores, L.P., 526 F.3d 1144, 1147 (8th Cir. 2008); because the ADA only applies to employers, employment agencies, labor organizations, and joint labor-management committees, 42 U.S.C. § 12111(2); and because the NFEPA prohibits “employers” from committing unlawful employment practices, Neb. Rev. Stat. § 48-1104, individual Defendants Brewer and Bryn will be dismissed from this action.

B. Race Discrimination

Title VII makes it unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Discrimination claims arising under the NFEPA are analyzed in the same manner as discrimination claims arising under Title VII. See Edwards v. Hiland Roberts Dairy, Co., 860 F.3d 1121, 1124 n.3 (8th Cir. 2017).

Plaintiff alleges she was discriminated against based on her race. Discrimination “because of” one's race means that “a particular outcome would not have happened ‘but for' the purported cause”-which here is Plaintiff's race. Bostock v. Clayton Cty., Georgia, 140 S.Ct. 1731, 1739 (2020). “When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff's [race] was one but-for cause of that decision, that is enough to trigger the law.” Id.

The court looks to the elements of a prima facie case of discrimination in assessing whether Plaintiff has pled enough facts to make entitlement to relief plausible. To state a prima facie claim of race or color discrimination, Plaintiff must allege facts showing that (1) she is a member of a protected class; (2) she met her employer's legitimate expectations; (3) she suffered an adverse employment action; and (4) the circumstances give rise to an inference of intentional discrimination. Pye v. Nu Aire, Inc., 641 F.3d 1011, 1019 (8th Cir. 2011); see also Lucke v. Solsvig, 912 F.3d 1084, 1087 (8th Cir. 2019); Tyler v. University of Arkansas Board of Trustees, 628 F.3d 980, 990 (8th Cir. 2011).

Here, Plaintiff alleges that she is black and was terminated from her employment, which is obviously an adverse employment action. However, she has not alleged facts suggesting that she met her employer's legitimate expectations or that her termination resulted from intentional racial discrimination; therefore, Plaintiff has failed to state a racial discrimination claim upon which relief can be granted. However, the court will permit Plaintiff to amend her Complaint to make such factual allegations, if they exist.

C. Disability Discrimination

Plaintiff also alleges that she was discriminated against based on her disability. The ADA prohibits discrimination “against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). A “qualified individual” must be able to perform the essential functions of the employment position, with or without reasonable accommodation. 42 U.S.C. § 12111(8). “Disability” under the ADA means that the individual (a) has a physical or mental impairment that substantially limits one or more major life activities; (b) has a record of such an impairment; or (c) is regarded as having such an impairment. See 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g)(2). “An individual may establish coverage under any one or more of these three prongs of the definition of disability. . . .” 29 C.F.R. § 1630.2(g)(2).

“The disability discrimination provision[s] in the NFEPA are patterned after the ADA, and the statutory definitions of ‘disability' and ‘qualified individual with a disability' contained in the NFEPA are virtually identical to the definitions of the ADA.” Ryan v. Capital Contractors, Inc., 679 F.3d 772, 777 n.3 (8th Cir. 2012) (internal quotation marks and citation omitted); Morriss v. BNSF Ry. Co., 817 F.3d 1104, 1106 n.2 (8th Cir. 2016); see Neb. Rev. Stat. §§ 48-1102(9) & (10).

In this case, Plaintiff's charge of discrimination states only that her daughter has a disability. (Filing 1 at CM/ECF p. 12.) Plaintiff's Complaint alleges that her two children have disabilities, “ADHD, anxiety, Diabetes”; that she was told she was terminated because she was “dishonest [about] my special needs child's school schedule; and that Plaintiff is diabetic. The court construes these statements to mean that Plaintiff is asserting an “associational discrimination” claim under the ADA.

Under the ADA, it is unlawful for an employer to “discriminate against a qualified individual on the basis of disability in regard to . . . [the] discharge of employees[.]” 42 U.S.C. § 12112(a). Discrimination “‘against a qualified individual on the basis of disability' includes . . . excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association[.]” 42 U.S.C. § 12112(b)(4). A similar provision exists in the NFEPA. Neb. Rev. Stat. § 48-1107.02(1)(d). See Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1002 (8th Cir. 2012) (recognizing that ADA makes it unlawful to deny equal jobs or benefits to qualified employee because of known disability of individual with whom qualified employee is known to have relationship); Strate v. Midwest Bankcentre, Inc., 398 F.3d 1011, 1019 n.7 (8th Cir. 2005) (recognizing protection under the ADA for individuals who associate with a...