Hill v. Life Line Screening of Am., LLC

• Decision Date: 27 September 2021
• Docket Number: 8:21CV161
• Parties: GLORIA HILL, Plaintiff, v. LIFE LINE SCREENING OF AMERICA, LLC, MICHAELLE L. BAUMERT, and NEBRASKA EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendants.
• Court: U.S. District Court — District of Nebraska

GLORIA HILL, Plaintiff,
v.
LIFE LINE SCREENING OF AMERICA, LLC, MICHAELLE L. BAUMERT, and NEBRASKA EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendants.

No. 8:21CV161

United States District Court, D. Nebraska

September 27, 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 11.) 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 alleges that she is a 55-year-old Hispanic, Christian woman with a disability and a record of disability. She claims she worked as an ultrasound technician at her employer's Omaha, Nebraska, location from May 14, 2018, to the date of her termination on April 25, 2019, and her performance was satisfactory during that time. Plaintiff alleges that she was “harassed” or “treated poorly” by coworkers and a manager due to her age, national origin, and religion, after which Plaintiff complained (presumably to her employer) twice. Plaintiff states that one of her coworkers harassed her on a daily basis by talking to others about Plaintiff and purposely losing Plaintiff's paperwork. Plaintiff claims that a manager told Plaintiff she was doing things wrong and did not know protocol, as well as talked to other coworkers about Plaintiff in a voice loud enough that patients could hear. After

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Plaintiff complained about this treatment, she received a bonus that was half as much as was promised. (Filing 1 at CM/ECF p. 6.)

Plaintiff alleges that she was injured on the job on March 22, 2019, resulting in a doctor's order that she not lift more than 10 pounds, avoid standing for long periods of time, and not load and unload the van.^[1] Plaintiff “requested and received medical leave as a reasonable accommodation” after her injury. (Filing 1 at CM/ECF p. 6.) She returned to work from medical leave on April 24, 2019, after her employer verified her doctor's restrictions. Plaintiff claims she was then terminated the next day for the purported reason that she “was not a good fit.” (Filing 1 at CM/ECF p. 6.)

Finally, Plaintiff alleges that her employer refused to give her a paycheck for the one day she worked after returning from medical leave and for the “remainder of [her] Paid Time Off leave, ” claiming that the amount allegedly owed to Plaintiff “went to deductions and they did not owe [Plaintiff] anything.” Plaintiff's former employer has also failed to send her a letter she requested six times in order to “take the state boards for a Registered Vascular Technician.” (Filing 1 at CM/ECF p. 6.)

Plaintiff complains that because of her national origin, religion, age, and disability, her employer unlawfully terminated her, failed to promote her, subjected her to unequal terms and conditions of employment, and retaliated against her, and that her employer failed to accommodate her disability. Plaintiff makes her claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17 (Westlaw 2021); the Nebraska Fair Employment Practice Act (“NFEPA”), Neb. Rev. Stat. §§ 48-1101 to 48-1125 (Westlaw 2021); the Age Discrimination in

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Employment Act (“ADEA”), 29 U.S.C. §§ 621 to 634 (Westlaw 2021); the Nebraska Age Discrimination in Employment Act (“NADEA”), Neb. Rev. Stat. §§ 48-1001, et seq. (Westlaw 2021); and the Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ 12112 to 12117 (Westlaw 2021).

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).

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III. DISCUSSION

A. Exhaustion of Administrative Remedies

To pursue discrimination and retaliation claims under Title VII, the ADA, and the ADEA, a plaintiff must exhaust all administrative remedies. To accomplish this, a plaintiff must seek relief through the Equal Employment Opportunity Commission (“EEOC”) or the Nebraska Equal Opportunity Commission (“NEOC”). 42 U.S.C. § 2000e-5(f)(1) (Title VII); 42 U.S.C. § 12117(a) (stating that the remedies and procedures set forth in Title VII, including those pertaining to exhaustion, apply to disability discrimination claims under the ADA); Parisi v. Boeing Co., 400 F.3d 583, 585 (8th Cir. 2005) (“Exhaustion of administrative remedies is a condition precedent to the filing of an action under the ADEA in federal court.”). The EEOC/NEOC will then investigate the charge and determine whether to file suit on behalf of the charging party or make a determination of no reasonable cause. If the EEOC/NEOC determines that there is no reasonable cause, the agency will then issue the charging party a right-to-sue notice. 42 U.S.C. § 2000e-5(f)(1). In Title VII and ADA cases, the charging party has 90 days from the receipt of the right-to-sue notice to file a civil complaint based on her charge. 42 U.S.C. § 2000e-5(f)(1).

Here, the right-to-sue letter attached to the Complaint is dated November 16, 2020. (Filing 1 at CM/ECF p. 9.) The Complaint alleges that Plaintiff received the right-to-sue letter on November 22, 2020. (Filing 1 at CM/ECF p. 7.) She had 90 days from her receipt of the letter-or until February 22, 20212-to file a lawsuit under Title VII and the ADA. It appears she did so, as Plaintiff has attached to her Complaint letters from the Douglas County District Court dated February 23, 2021, and March 4, 2021, indicating that Plaintiff twice attempted to file her Complaint entitled “United States District Court” in that court, but she was directed to either send them to the proper court or properly prepare a petition and pay the filing fee in order to initiate a lawsuit in the Douglas County District Court. (Filing 1 at CM/ECF^[2] pp. 12-13.)

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For purposes of this initial review only, I shall assume Plaintiff exhausted her administrative remedies. Whether such exhaustion actually occurred is an issue that can be raised during motion practice should service of process eventually be ordered.

B. Proper Defendants

The Defendants in this case include Michaelle L. Baumert, a lawyer at the Jackson Lewis law firm in Omaha, Nebraska, and the Nebraska Equal Employment Opportunity Commission. Because the federal laws under which Plaintiff seeks to bring her claims apply to the actions of “employers, ” and because Defendants Michaelle L. Baumert and the Nebraska Equal Employment Opportunity Commission are not alleged to be Plaintiff's employers, these Defendants will be dismissed from this action. Powell v. Yellow Book USA, Inc., 445 F.3d 1074, 1079 (8th Cir. 2006) (“Title VII addresses the conduct of employers only”); Coleman v. Jass, No. 8:13CV82, 2013 WL 4041860, at *2 (D. Neb. Aug. 8, 2013) (coworkers and supervisors may not be held personally liable under ADEA because ADEA authorizes suits against “employers”; collecting cases); Smith v. PayPal, Inc., No. 8:12CV226, 2013 WL 2444032, at *8 (D. Neb. June 4, 2013) (NADEA's express terms limit liability to “employers”); 42 U.S.C. § 12111(2) (the ADA only applies to employers, employment agencies, labor organizations, and joint labormanagement committees); Neb. Rev. Stat. § 48-1104 (the NFEPA prohibits “employers” from committing unlawful employment practices).

C. National-Origin & Religious Discrimination (Title VII/NFEPA)

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).

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Plaintiff alleges she was discriminated against based on her national origin and religion. Discrimination “because of” one's national origin or religion within the meaning of 42 U.S.C. § 2000e-2(a)(1) means that “a particular outcome would not have happened ‘but for' the purported cause”-which here is Plaintiff's national origin and religion. 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 [national origin or religion] was one but-for cause of that decision, that is...