Scott v. Concrete Supply, Inc.

• Decision Date: 15 February 2018
• Docket Number: 8:17CV361
• Parties: ROOSEVELT SCOTT, an individual; Plaintiff, v. CONCRETE SUPPLY, INC., an Iowa corporation doing business in Nebraska; Defendant.
• Court: U.S. District Court — District of Nebraska

ROOSEVELT SCOTT, an individual; Plaintiff, v. CONCRETE SUPPLY, INC.,an Iowa corporation doing business in Nebraska; Defendant.

8:17CV361

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

February 15, 2018

MEMORANDUM AND ORDER

This matter is before the Court on the Motion to Dismiss, ECF No. 4, filed by Defendant Concrete Supply, Inc. For the reasons stated below, the Motion will be granted.

BACKGROUND

The following facts are those alleged in the Complaint, ECF No. 1, and are assumed true for purposes of the Motion to Dismiss.

Plaintiff Roosevelt Scott, an African-American man, was hired as a truck driver for Concrete Supply, Inc., on March 7, 2014. In September 2015, Scott "was injured on his way to work and was unable to work until October 2015." Comp. ¶ 2, ECF No. 1, Page ID 1. Without indicating the nature of the injury, Scott's Complaint alleges he "provided Concrete Supply with medical documentation and requested light duty." Id. Concrete Supply continued to have Scott perform his regular truck driving duties.

When Scott returned to work in October 2015, he also requested a schedule that would accommodate his 5:00 p.m. physical therapy appointments. Scott alleges Concrete Supply refused to grant him that accommodation, but "accommodated David Miller's request for light duty when he cut his finger." Comp. ¶4, ECF No. 1, Page ID 2. David Miller is Caucasian. Scott further alleges he was required to work on Saturdays while other Caucasian employees with less seniority were not.

Scott complained about the foregoing treatment to his immediate supervisor, Chris Rogers, on or around October 26, 2015. He also complained to the shop supervisor, Brian Hensley, and the dispatch manager, Marty Miles. In early 2016, Scott found out his 2015 annual bonus was $1,200 less than his 2014 annual bonus, which Hensley explained was "due to [Scott's] injury." Comp. ¶8, ECF No. 1, Page ID 2. One of Scott's co-workers also told a racially offensive joke, which was not addressed by management.

On or around April 8, 2016, Scott provided Concrete Supply with notice that he would be terminating his employment in two weeks. Scott alleges he was not permitted to work during that two-week period, but that another Caucasian employee was allowed to do so after giving his two-week notice. Scott filed his Complaint on September 27, 2017, and asserted claims for race discrimination, disability discrimination, hostile work environment, and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, the Americans with Disabilities Act, 42 U.S.C. § 12112, and the Nebraska Fair Employment Practices Act, Neb. Rev. Stat. § 48-1104. Concrete Supply filed its Motion to Dismiss requesting that the Court dismiss the Complaint or, in the alternative, require Scott to file a more definite statement of his claims.

STANDARD OF REVIEW

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). To satisfy this requirement, aplaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Corrado v. Life Inv'rs Ins. Co. of Am., 804 F.3d 915, 917 (8th Cir. 2015) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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." Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at 678), cert. denied, 135 S. Ct. 2941 (2015). The complaint's factual allegations must be "sufficient to 'raise a right to relief above the speculative level.'" McDonough v. Anoka Cty., 799 F.3d 931, 946 (8th Cir. 2015) (quoting Twombly, 550 U.S. at 555). The Court must accept factual allegations as true, but it is not required to accept any "legal conclusion couched as a factual allegation." Brown v. Green Tree Servicing LLC, 820 F.3d 371, 373 (8th Cir. 2016) (quoting Iqbal, 556 U.S. at 678). Thus, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Ash v. Anderson Merchandisers, LLC, 799 F.3d 957, 960 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at 678), cert. denied, 136 S. Ct. 804 (2016).

On a motion to dismiss, courts must rule "on the assumption that all the allegations in the complaint are true," and "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.'" Twombly, 550 U.S. at 555 & 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). "Determining whether a complaintstates a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Mickelson v. Cty. of Ramsey, 823 F.3d 918, 923 (8th Cir. 2016) (alternation in original) (quoting Iqbal, 556 U.S. at 679).

DISCUSSION

The Court will dismiss Scott's Complaint because it failed to allege he exhausted his administrative remedies with respect to his Title VII and ADA claims. It further failed to allege a disability within the meaning of the ADA and the NFEPA, and it failed to state a plausible claim for race-based hostile work environment. The Court will also grant Scott's request to file an amended complaint.

I. Failure to Exhaust Administrative Remedies

A. Discrimination and Hostile Work Environment Claims Under Title VII and the ADA

A plaintiff must exhaust administrative remedies before asserting claims under Title VII and the ADA. Randolph v. Rodgers, 253 F.3d 342, 347 n.8 (8th Cir. 2001) ("Title VII of the Civil Rights Act of 1964 and Title I of the ADA both require exhaustion of administrative remedies[.]"); see also Cottrill v. MFA, Inc., 443 F.3d 629, 634-35 (8th Cir. 2006); 42 U.S.C. § 12117(a). "'Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable unlawful employment practice' that must be individually addressed before the EEOC." Sellers v. Deere & Co., 791 F.3d 938, 943 (8th Cir. 2015) (quoting Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 851 (8th Cir. 2012). Although courts in the Eighth Circuit must "liberally construe an administrative charge for exhaustion of remedies purposes, . . . 'there is a differencebetween liberally reading a claim which lacks specificity, and inventing, ex nihilo, a claim which simply was not made.'" Id. (quoting Parisi v. Boeing Co., 400 F.3d 583, 585-86 (8th Cir. 2005). Thus, "[t]he claims of employment discrimination in the complaint may be as broad as the scope of the EEOC investigation which reasonably could be expected to result from the administrative charge." Wallace v. Interbake Foods, LLC, 973 F. Supp. 2d 1067, 1075 (2013) (quoting Parisi, 400 F.3d at 585).

Scott's Complaint alleges he dual filed a "charge of retaliation" with the Nebraska Equal Opportunity Commission (NEOC) and the United States Equal Employment Opportunity Commission (EEOC), but nothing more. Comp. ¶15, ECF No. 1, Page ID 4. The attached right-to-sue letter is incomplete and does not include a copy of the charges or facts submitted for investigation. See 29 C.F.R. 1601.28(e) (a copy of the submitted charges is among the contents of a right-to-sue letter). Thus, there are no allegations that the scope of the administrative investigation included hostile work environment charges under Title VII or discrimination charges under either Title VII or the ADA. Scott has, therefore, failed to allege he exhausted his administrative remedies with respect to his hostile work environment and discrimination claims under Title VII and the ADA. Dittemore v. Transit Auth. of the City of Omaha, No. 8:16-CV-23, 2016 WL 3945154, at *4 (D. Neb. July 19, 2016) (explaining "[t]he scope of a civil suit may be as broad as the scope of the administrative investigation . . . but it cannot be broader"); see Wallin v. Minn. Dep't. of Corr., 153 F.3d 681, 688 (8th Cir. 1998) ("[I]t is well established that retaliation claims are not reasonably related to underlying discrimination claims.").

Nor does the Complaint allege whether Scott submitted his charge of retaliation based on statutorily protected activity under Title VII or the ADA. As such, it is unclear whether the scope of the administrative investigation included retaliation under Title VII, the ADA, or both. Therefore, the Court will also dismiss these claims because it is unable to determine whether Scott exhausted his administrative remedies with respect to each.

B. Claims Under the NFEPA

If a plaintiff's NFEPA claims fall under Neb. Rev. Stat. § 20-148,¹ the plaintiff does not have to exhaust administrative remedies with respect to those claims. Goolsby v. Anderson, 549 N.W.2d 153, 158 (Neb. 1996). Although Scott does not explicitly allege he is asserting his NFEPA claims pursuant to § 20-148, he has alleged "the deprivation of [a] right[ ], privilege[ ], or immunity[y] secured by the . . . laws of the State of Nebraska." Neb. Rev. Stat. § 20-148. Thus, his NFEPA claims are not subject to dismissal for failure to exhaust administrative remedies.²

II. Failure to Allege a Disability Under the ADA

Concrete Supply also argues Scott failed to allege a disability within the meaning of the ADA and the NFEPA.

To state a claim for disability discrimination under the ADA, Scott must allege facts showing he "is disabled within the meaning of the ADA[.]" Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir. 2013). Under the ADA, "[t]he term 'disability' means . . .

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;

(B) a record

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