Lammers v. Coop. Producers
| Decision Date | 10 June 2022 |
| Docket Number | 8:22CV65 |
| Parties | JESS T. LAMMERS, Plaintiff, v. COOPERATIVE PRODUCERS, INC. (CPI), Defendant. |
| Court | U.S. District Court — District of Nebraska |
Plaintiff a non-prisoner, sues a prospective employer for failing to hire him due to his disability. Plaintiff purports to bring suit under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112 et seq.; the Nebraska Fair Employment Practice Act (“NFEPA”), Neb. Rev. Stat. § 48-1101 et seq.; and 42 U.S.C. § 1983. (Filing 1 at CM/ECF p 1.) Plaintiff 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).
Plaintiff sues Cooperative Producers, Inc., otherwise known as CPI, an agricultural cooperative. Plaintiff alleges that he repeatedly applied for a “custom applicator” or “commercial chemical custom applicator” job with CPI, but he was not hired. Plaintiff states that the position required a commercial chemical applicators' license from the Nebraska Department of Agriculture, which Plaintiff has[1]; however, CPI also “preferred” applicants to have a “CDL[2], ” which Plaintiff apparently does not have and which Plaintiff asked CPI to waive as a “preferred qualification” for the job. After Plaintiff made his waiver request during an interview with CPI, the company “cho[]se to terminate conversations about employment with CPI.” (Filing 1 at CM/ECF p. 2.)
Plaintiff alleges that he has an undefined “documented disability, or a record of a documented disability from a public agency (Nebraska Vocational rehabilitation).” (Filing 1 at CM/ECF pp. 1-2.) An exhibit attached to Plaintiff's Complaint contains a letter dated May 22, 2012, from a “vocational rehabilitation employment specialist” with the Nebraska Department of Education stating that Plaintiff “is a person with a severe disability that qualifies him for consideration under the Schedule A hiring authority.” (Filing 1 at CM/ECF p. 5.) Again, the nature of Plaintiff's “disability” is unclear, nor is it clear that CPI knew of such letter. Also attached to Plaintiff's Complaint are medical records from 2000, 2001, 2004, and 2012 showing treatment for a leg injury from a car accident. (Filing 1-1 at CM/ECF pp. 1-10.) The 2012 report from Dr. Brent Adamson of Kearney Orthopedic & Sports Medicine imposes the following work restrictions on Plaintiff: “Maximum one hour at a time on his feet, 4 hours per day, maximum of 25 lbs repetitive lifting, 50 lbs occasional lifting.”[3] (Filing 1-1 at CM/ECF p. 10.)
Plaintiff alleges that he filed a complaint with the Nebraska Equal Opportunity Commission, but it is not attached to the Complaint in this case. Plaintiff has attached to the Complaint a right-to-sue notice dated December 8, 2021. This action was filed on February 18, 2022. Plaintiff requests money damages.
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) ().
“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).
Plaintiff purports to bring disability-discrimination claims under the ADA and the NFEPA for CPI's failure to hire him for a job after he requested that CPI waive one of its “preferred qualifications” for the job as an accommodation for Plaintiff's disability. Specifically, Plaintiff complains that Defendant failed to accommodate his disability and that it retaliated against him for requesting an accommodation during a job interview.
To pursue disability-discrimination claims under the ADA and the NFEPA, a plaintiff must first exhaust his administrative remedies. See 42 U.S.C. § 12117(a) (); Carter v. Metro. Cmty. Coll., No. 8:16CV44, 2017 WL 435750, at *5 (D. Neb. Jan. 31, 2017) (). Specifically, a plaintiff is required to seek relief through the Equal Employment Opportunity Commission (“EEOC”) or the Nebraska Equal Opportunity Commission (“NEOC”) prior to filing suit in this court, and a plaintiff may not bring a claim that was not included in the administrative charge to the EEOC or the NEOC. Lindeman v. Saint Luke's Hosp. of Kansas City, 899 F.3d 603, 608 (8th Cir. 2018) (); Russell v. TG Missouri Corp., 340 F.3d 735, 748 (8th Cir. 2003) (same).
Plaintiff alleges that he received a right-to-sue letter as evidence of such exhaustion (and he has attached a copy of it to the Complaint), but he has failed to file the NEOC complaint in order to establish that the claim he brings in this court was actually raised in his NEOC complaint. The court will give Plaintiff leave to do so.
“Title I of the ADA is the exclusive remedy for claims of disability discrimination in employment.” Nahkahyen-Clearsand v. Dep't of Health & Hum. Servs., No. 8:17CV43, 2017 WL 1283494, at *3 (D. Neb. Apr. 5, 2017) (Kopf, J.) (citing Neisler v. Tucker, 807 F.3d 225, 227 (7th Cir. 2015)). Because the NFEPA mirrors the ADA, the court may look to federal ADA precedent when interpreting the NFEPA, Powley v. Rail Crew Xpress, LLC, 25 F.4th 610, 613 (8th Cir. 2022), and the court need not conduct a separate analysis of Plaintiff's NFEPA claim, Morriss v. BNSF Ry. Co., 817 F.3d 1104, 1106 n.2 (8th Cir. 2016).
Title I of the ADA prohibits “discrimination against a qualified individual with a disability because of the disability of such individual in regard to job application procedures [and] the hiring . . . of employees.” 42 U.S.C. § 12112(a). Such “discrimination” includes “denying employment opportunities to a job applicant . . . who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant” and “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant . . . unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” 42 U.S.C. §§ 12112(b)(5)(A) & (B).
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); 29 C.F.R. § 1630.2 (). “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); Neb. Rev. Stat. § 48-1102. “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).
29 C.F.R. § 1630.2(j)(1)(ii). “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). As used in the “disability” definition, “major 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. §...
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