Fehderau v. First Nat'l of Neb., Inc.

• Decision Date: 16 May 2019
• Docket Number: 8:18CV588
• Parties: RYAN ELLIOT FEHDERAU, Plaintiff, v. FIRST NATIONAL OF NEBRASKA, INC., d/b/a FIRST NATIONAL BANK OF OMAHA, Defendant.
• Court: U.S. District Court — District of Nebraska

RYAN ELLIOT FEHDERAU, Plaintiff, v. FIRST NATIONAL OF NEBRASKA, INC., d/b/aFIRST NATIONAL BANK OF OMAHA, Defendant.

8:18CV588

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

May 16, 2019

MEMORANDUM AND ORDER

Plaintiff, Ryan Elliot Fehderau, filed this case on December 21, 2018, and was granted leave to proceed in forma pauperis on December 31, 2018.¹ The court now conducts an initial review of Plaintiff's Complaint (Filing 1) to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).

I. SUMMARY OF COMPLAINT

Plaintiff claims his former employer, Defendant, First National of Nebraska, Inc., violated the Americans with Disabilities Act ("ADA"), and he seeks to recover damages. Plaintiff's alleged disabling impairment is autism spectrum disorder. His standard form "Complaint for Employment Discrimination" contains a section entitled "Statement of Claim" with checkboxes listing various discriminatory acts. Plaintiff has checked the boxes for "termination of my employment," "failure to promote me," "failure to accommodate my disability," "unequal terms and conditions of my employment," and "retaliation." (Filing 1, p. 4) No supporting facts are alleged in the Complaint, but Plaintiff has attached a charge of discrimination he filed jointly with the Nebraska Equal Opportunity Commission ("NEOC")and the federal Equal Employment Opportunity Commission ("EEOC") on November 21, 2018, which sets out the following particulars:

I was hired on or about July 10, 2017 as a Network Services Administrator.

From the beginning of my employment, I was denied tools and access to programs that would help me complete my job duties. I received access in the spring of 2018. My coworkers were given those tools and access to the programs within weeks of their hire dates.

I experienced harassment from my coworkers by overhearing them talk about my medical conditions.

In or about May 2018, I informed my supervisor of my medical conditions and harassment I was receiving because of my medical conditions. I asked my supervisor if he wanted me to email him with a list of my medical conditions, and he replied he didn't want that in writing. Regardless, my supervisor documented my medical conditions during that meeting. The harassment stopped for a few weeks but started again shortly after.

Starting on or about September 14, 2018, I was not able to work because of my medical conditions. My medical conditions restricted my ability to contact the company about my absences. On or about September 18, 2018, I was admitted to the hospital. On or about September 21, 2018, my sister-in-law spoke with my supervisor and informed him that I was not at work because of a medical condition and that I was in the hospital. On or about September 25, 2018, I was released from the hospital and found an email stating I had been discharged on September 24, 2018. I contacted my supervisor on or about September 26, 2018, and he confirmed that I had been discharged on or about September 27, 2018, Human Resources sent an email stating I had been discharged for missing seven days of work without notification.

Human Resources has continued to mock me in writing because of my medical condition.

I believe I was denied equal terms and conditions, harassed, and discharged because of my disability, record of disability, and/or being regarded as disabled in violation of the Americans with Disabilities Act of 1990, as amended.

(Filing 1, pp. 10-11)

Also attached to the Complaint is a right-to-sue letter that the EEOC issued on November 29, 2018. (Filing 1, 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) (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

Title I of the ADA prohibits a covered entity from "discriminat[ing] against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). Discrimination includes "not making reasonable accommodations to the known physical or mental limitations" of an employee, unless the employer can "demonstrate that theaccommodation would impose an undue hardship on the operation of the business." Sharbono v. N. States Power Co., 902 F.3d 891, 894 (8th Cir. 2018) (quoting 42 U.S.C. § 12112(b)(5)(A)).

"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).

"[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." 42 U.S.C. § 12102(2)(A). "[A] major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions." 42 U.S.C.A. § 12102(2)(B).

"The term 'substantially limits' shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA." 29 C.F.R. § 1630.2(j)(1). "An impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting." 29 C.F.R. § 1630.2(j)(2).

"An individual has a record of a disability if the individual has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities." 29 C.F.R. § 1630.2(k)(1). "An individual meets the requirement of 'being regarded as having such an impairment' if the individual establishes that he or she has been subjected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." 42 U.S.C.A. § 12102(3).

A. Disability Discrimination

To establish a prima facie case of disability discrimination, a plaintiff must show that he (1) has a "disability" within the meaning of the ADA, (2) is a "qualified individual" under the ADA, and (3) suffered an "adverse employment action" as a result of the disability. Denson v. Steak 'n Shake, Inc., 910 F.3d 368, 370 (8th Cir. 2018).

Although no facts are alleged in the Complaint to show that Plaintiff's autism spectrum disorder is a "disability," Plaintiff stated in the charge of discrimination he filed with the EEOC that he has a "disability, record of disability, and/or [was] regarded as disabled in violation of the [ADA]." This is sufficient under federal pleading practice. See Trimble v. BNSF Ry. Co., No. 4:08CV3116, 2008 WL 2795863, at *3 (D. Neb. July 17, 2008) (denying defendant's motion for judgment on the pleadings based on ADA plaintiff's failure to allege what physical or mental impairment defendant regarded him as possessing and which major life activities were substantially limited); EEOC v. Northwest Airlines, Inc., 216 F.Supp.2d 935, 939 (D. Minn. 2002) (noting that four circuit courts have ruled that an ADA plaintiff, at the pleading stage, is not required to explicitly assert a substantially limited major life activity). See also Neudecker v. Boisclair Corp., 351 F.3d 361, 364-65 (8th Cir. 2003) (citing Northwest Airlines with approval).

However, Plaintiff has not sufficiently alleged that he is a "qualified individual." To be a "qualified individual" within the meaning of the ADA, an employee must (1) possess the requisite skill, education, experience, and training for his position, and (2) be able to perform the essential job functions, with or without reasonable accommodation. Denson, 910 F.3d at 370. While it might reasonably be inferred that Plaintiff has the requisite skill, education, experience, and training for the Network Services Administrator position since he apparently held...