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Dittemore v. Transit Authority of City of Omaha

United States District Court, D. Nebraska

July 19, 2016

MICHAEL L. DITTEMORE, an individual, Plaintiff,


          John M. Gerrard, United States District Judge.

         This matter is before the Court on the defendant's motion to dismiss (filing 7) the plaintiff's claim for relief arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), the Americans with Disabilities Act (ADA), 42 U.S.C. § 12203, and the Nebraska Fair Employment Practice Act (NFEPA), Neb. Rev. Stat. § 48-1101 et seq. The Court agrees with the defendant that the plaintiff failed to state a claim under the NFEPA and did not exhaust his administrative remedies for a Title VII or ADA claim. Accordingly, the Court will grant the motion to dismiss.


         The plaintiff, Michael Dittemore, was a facility engineer for the defendant, Metro Area Transit (MAT). Filing 3 at 1. MAT engineers are required to maintain a commercial driver's license and Department of Transportation (DOT) medical certification. Filing 3 at 2.

         According to Dittemore, he received a DOT certification in 2013 that was valid until 2015. Filing 3 at 2. But in 2014, MAT refused to accept his certification. Filing 3 at 3. So, he got another DOT medical certification from his personal physician on April 23, 2014, which was valid through April 30, 2016. Filing 3 at 3. But in July 2014, Dittemore was told that he had to obtain a new certificate from a doctor listed on the National Registry of Certified Medical Examiners.[1] Filing 3 at 3.

         At around the same time, Dittemore reported to MAT that he had seen another MAT employee stealing scrap metal and selling it on eBay. Filing 3 at 3-4. Dittemore alleges that, a few days later, he was informed by his supervisor that he had been suspended for failing to obtain a new DOT certification. Filing 3 at 3. But he alleges that the day after that, another MAT supervisor told him that he had not been suspended and his time card was being docked "attendance points" because he was absent. Filing 3 at 4.

         A little over a week later, MAT's physician issued Dittemore a temporary 3-month DOT certification, but he was required to undergo a sleep study, at his own expense. Filing 3 at 4. He alleges that he was unable to complete the sleep study before the temporary certification expired. Filing 3 at 4. Dittemore was again suspended without pay in October 2014 on the basis of the expired certification, and he alleges that he "continue[d] to accrue attendance points while he was suspended." Filing 3 at 5; filing 10-3. In December, he was terminated, allegedly as a result of his accrued attendance points. Filing 3 at 11; filing 10-3.

         Dittemore filed a discrimination charge with the Nebraska Equal Opportunity Commission (NEOC). Filing 10-3.[2] His charge complained of age and whistleblower discrimination. Filing 10-3. The NEOC found that the evidence failed to support the allegations, and dismissed the charge on both bases. Filing 10-4. Dittemore sued. Filing 3.

         Dittemore's complaint contains two claims for relief. The first, that he was unlawfully terminated on the basis of his age in violation of state and federal age discrimination statutes, has not been put at issue by MAT's motion to dismiss. The second claim for relief is captioned "Violation of Nebraska Fair Employment Practice Act's Prohibition On Retaliation, " and cites 42 U.S.C. §§ 2000e-3(a) and 12203, and Neb. Rev. Stat. § 48-1114. Filing 3 at 9. It alleges that Dittemore was terminated in retaliation for (1) "provid[ing] medical documentation identifying and validating his medical status" and (2) reporting to "management that [MAT] employees were stealing . . . then selling . . . scrap metal for personal profit." Filing 3 at 11. MAT moves to dismiss Dittemore's retaliation claim. Filing 7.


         To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. 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. Id. While the Court must accept as true all facts pleaded by the nonmoving party and grant all reasonable inferences from the pleadings in favor of the nonmoving party, Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012), a pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Iqbal, 556 U.S. at 678. Determining whether a complaint states a plausible claim for relief will require the reviewing court to draw on its judicial experience and common sense. Id. at 679.


         MAT moves to dismiss the retaliation claim on two grounds. First, MAT claims that Dittemore fails to state a claim under the NFEPA. Second, MAT claims that to the extent Dittemore is attempting to plead a Title VII ...

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