Watson v. Kelloggs Co.

• Decision Date: 26 May 2020
• Docket Number: 8:20CV126
• Parties: RAFAEL EUGENE WATSON, Plaintiff, v. KELLOGGS CO., Defendant.
• Court: U.S. District Court — District of Nebraska

RAFAEL EUGENE WATSON, Plaintiff, v. KELLOGGS CO., Defendant.

8:20CV126

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

May 26, 2020

MEMORANDUM AND ORDER

This matter is before the court for an initial review of Plaintiff's pro se, in forma pauperis Complaint (Filing 1) to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).

I. SUMMARY OF COMPLAINT

Plaintiff states this action is based on "FMLA" and "EEOC/Discrimination." (Filing 1, p. 3.) For supporting facts, Plaintiff alleges:

I was suspended the defendant company to do FMLA. I never received a termination notice. I contacted my union worker rep. He has also been unable to get a strait [sic] answer from the defendant in regards to my job status.

(Filing 1, p. 4.) Attached to the Complaint is a copy of a charge of discrimination Plaintiff filed jointly with the Nebraska Equal Opportunity Commission ("NEOC") and the federal Equal Employment Opportunity Commission ("EEOC") on June 28, 2018, in which he states:

I. I am black. I have a disability and a record of disability. I was hired by Respondent on 11/26/2011, most recently in a Rice Cook position. I requested a reasonable accommodation, which was granted. Due to my disability, record of disability, and in retaliation for requesting accommodation, Respondent failed to accommodate me. Due to my race, color, disability, record of disability, and in retaliation for requesting accommodation, I was suspended, lost my benefits and I was terminated.

II. I believe I have been discriminated against on the basis of disability, record of disability and retaliation, in violation of ADA Amendments Act of 2008, and Section 48-1104 and 48-1114(1) of the Nebraska Fair Employment Practice Act, and on basis of race and color in violation of Title VII of the Civil Rights Act of 1964, as Amended and Section 48-1104 of the Nebraska Fair Employment Practice Act, in that:

1. Due to an impairment in September 2017, I applied for FMLA in October 2017, which was approved by Respondent. I was told by an Insurance Representative (name unknown, race unknown, disability unknown) I could take up [to] two days off a week due to my impairment. Due to my disability I took a few days off in October 2017.

2. In November 2017, I noticed I was getting points for not being at work, although Respondent had approved my FMLA. I called Respondent, and I was told that my doctor was only approving one day per month. I contacted my doctor and he submitted another document approving all the days I had taken off due to my impairment. I always called the line I was supposed to call in case I could not make it to work.

3. In December 2017, the doctor recommended me to have a surgery as soon as possible. I stated I could not have surgery in December. In January 2018, my doctor and I agreed I would have surgery in March 2018.

4. On February 5, 2018, HR Caroline-Rowe (biracial, no known disability) contacted me and stated I was being terminated, because I exceed my 13 points. Respondent was adding points since January 2017. The policy states after 1000 hours of work, three points should be dropped, but Respondent was not following their policy by adding points from 10 months before. My Union Representative Rob Downs (white, no known disability) explained to Ms. Rowe my doctor submitted updated information about my condition, and about the days I was not at work due to my disability. Ms. Rowe stated I was suspended and she would conduct an investigation and get back to me. 5. On March 12 2018, I had my surgery. On 5/2/2018, I was cleared to go back to work. On May 10, 2018, Mr. Downs had a meeting with HR and I was informed I was terminated and Respondent did not want me to go back to work, although they had all the documentation my doctor provided. Respondent never gave me a formal termination letter. The only letter I received was a letter stating Respondent was cancelling my benefits on May 13, 2018. I know my coworker Tracy Lux (white, disabled) had over 25 points due to her disability, and Respondent conducted an investigation and she was able to go back to work. Also my coworker Christopher Kid (white, no known disability) had a drug problem, and he was able to go back to work.

6. My performance was excellent.

(Filing 1, pp. 6-7.)¹

II. LEGAL STANDARDS ON INITIAL REVIEW

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." Id., at 849 (internal quotation marks and citations omitted).

III. DISCUSSION OF CLAIMS

Liberally construing Plaintiff's Complaint, this is an action to redress alleged violations of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. Plaintiff also asserts companion claims for disability and racial discrimination under the Nebraska Fair Employment Practice Act ("NFEPA"), Neb. Rev. Stat. § 48-1101 et seq.

A. Family and Medical Leave Act

The Eighth Circuit has recognized three categories of FMLA claims arising under 29 U.S.C. § 2615(a)(1)-(2):

(i) entitlement claims, in which an employee alleges a denial of a benefit to which he was entitled under the statute; (ii) discrimination claims, in which an employee alleges that the employer discriminated against him in the terms and conditions of employment because the employee exercised rights to which he was entitled under the FMLA; and (iii) retaliation claims, in which an employee alleges that the employer took adverse action against him for opposing a practice made unlawful under the FMLA.

Johnson v. Wheeling Mach. Prods., 779 F.3d 514, 517-18 (8th Cir. 2015).

"The first type [of FMLA claim], arising under § 2615(a)(1), occurs where an employer refuses to authorize leave under the FMLA or takes other action to avoid responsibilities under the Act." Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1005 (8th Cir. 2012); see Stallings v. Hussmann Corp., 447 F.3d 1041, 1050 (8th Cir.2006); 29 C.F.R. § 825.220(b). "An employee proceeding on this theory need not show that an employer acted with discriminatory intent." Id. (citing Throneberry v. McGehee Desha Cnty. Hosp., 403 F.3d 972, 979 (8th Cir. 2005)).

"A [second] type of claim recognized by [Eighth Circuit] precedent arises when an employer takes adverse action against an employee because the employee exercises rights to which he is entitled under the FMLA. In this scenario, the employer does not prevent the employee from receiving FMLA benefits. Rather, it is alleged that after the employee exercised his statutory rights, the employer discriminated against him in the terms and conditions of employment. An employee making this type of claim must prove that the employer was motivated by the employee's exercise of rights under the FMLA." Id. (citing Sisk v. Picture People, Inc., 669 F.3d 896, 900 (8th Cir. 2012); Stallings v. Hussmann Corp., 447 F.3d 1041, 1051 (8th Cir.2006)).²

"A [third] type of claim, arising under § 2615(a)(2), is analogous to retaliation claims that are familiar under Title VII and other federal antidiscrimination statutes. If an employee opposes any practice made unlawful under the FMLA—for example, if an employee complains about an employer's refusal to comply with the statutory mandate to permit FMLA leave—then the employer may not for that reason take adverse action against the employee who is engaged in the opposition." Id. (citations omitted).

In this case, Plaintiff appears to be claiming discrimination, by alleging his employment was terminated on February 5, 2018, because he took FMLA leave beginning in October 2017.³ On the facts alleged, however, it only appears he was terminated because Defendant failed to follow its policy of dropping 3 points after 1,000 hours of work. Plaintiff alleges that Defendant initially charged him with unexcused absences because his doctor was only approving one day per month as medical leave, but there is no allegation that Defendant failed to change its records after the doctor submitted another document in November 2017 approving all days Plaintiff had previously taken off work. Thus, as currently alleged, no plausible claim for relief is stated.

B. Disability Discrimination

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...