United States District Court, D. Nebraska
MEMORANDUM AND ORDER
R. Zwar, t United States Magistrate Judge.
matter is before the court on Plaintiff's motion for
leave to file an amended complaint. (Filing No. 21). For the
following reasons, the motion will be granted.
filed a complaint against CHI Health Good Samaritan Hospital
(“Good Samaritan”) on March 29, 2016, alleging a
violation of the Fair Labor Standards Act and seeking unpaid
wages pursuant to the Nebraska Wage Payment and Collection
Act. (Filing No. 1-1). The case was removed to federal court
on April 13, 2016. (Filing No. 1).
the parties' planning conference, counsel for plaintiff
informed counsel for Good Samaritan that Plaintiff intended
to file an amended complaint once he received the
right-to-sue letters from the EEOC and the NEOC. (Filing No.
27, at CM/ECF p. 2). The parties thereafter filed their 26(f)
report and on June 10, 2016, the court entered its Final
Progression Order consistent with the parties' report.
(See Filing Nos. 13, 15). On July 6, 2016, the undersigned
held a telephonic conference with the parties. During this
conference, counsel for Plaintiff orally requested an
extension of the deadline to move to amend the pleadings as
he had not yet received the right-to-sue letters. The court
granted the motion and extended the deadline for moving to
amend the pleadings to July 29, 2016. (Filing No. 19). On
July 29, 2016, Plaintiff timely filed the instant motion.
(Filing No. 21).
to amend “shall be freely given when justice so
requires.” Fed.R.Civ.P. 15(a). “[A]bsent a good
reason for denial-such as undue delay, bad faith or dilatory
motive, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the non-moving party,
or futility of amendment-leave to amend should be
granted.” Kozohorsky v. Harmon, 332 F.3d 1141,
1144 (8th Cir. 2003). But there is no absolute right to amend
a pleading. Hammer v. City of Osage Beach, MO, 318
F.3d 832, 844 (8th Cir. 2003). The court will deny a motion
for leave to amend as futile if the Plaintiff's proposed
complaint fails to state a claim under the pleading standard
described in Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007), thereby rendering the complaint subject to
dismissal under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Zutz v. Nelson, 601 F.3d 842, 850-51 (8th
complaint must contain sufficient facts which, if accepted as
true, state a claim for relief that is plausible on its face.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). The court should not
“incorporate some general and formal level of
evidentiary proof into the ‘plausibility'
requirement of Iqbal and Twombly.”
Whitney v. Guys, 700 F.3d 1118, 1128-29 (8th Cir.
2012). The question at this preliminary stage is not whether
the plaintiff might be able to prove his claim, but whether
the has “adequately asserted facts (as contrasted with
naked legal conclusions) to support” those claims.
Whitney, 700 F.3d at 1128-29.
proposed amended complaint alleges several new claims,
including a claim alleging the defendant violated Title VII
of the Civil Rights Act and the Nebraska Fair Employment Act.
Specifically Plaintiff alleges he was discriminated against
“for not conforming to sex stereotypes about how men
are expected to present themselves” and that he
suffered disparate treatment because he was a homosexual
male. (Filing No. 21-1, at CM/ECF p. 4, 5). Good Samaritan
claims that Thompson's Title VII claim is futile because
non-conformance to a sexual stereotype is not a recognized
type of discrimination and that Thompson otherwise fails to
plead facts establishing a prima facie case for sex
VII prohibits an employer from “discriminat[ing]
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of .
. . sex[.]” 42 U.S.C. § 2000e-2(a)(1). The United
States Supreme Court as well as the Eighth Circuit have
recognized that sex stereotyping can violate Title VII when
it influences employment decisions. See Price Waterhouse
v. Hopkins, 490 U.S. 228 (1989); Lewis v. Heartland
Inns of Am., LLC, 591 F.3d 1033 (8th Cir. 2010). To
state a sex stereotyping claim, the plaintiff must plead
facts showing his non-conformance to sex stereotypes was a
motivation for the adverse employment action. Lewis,
591 F.3d at 1041. Evidence of this motivation may be shown
through statements made by the employer that directly concern
the employee's gender and non-conformance with
stereotypes or by the timing of the adverse employment action
in relation to when the plaintiff began showing
non-stereotypical behaviors. See Jespersen v.
Harrah's Operating Co., Inc., 444 F.3d
1104, 1113 (9th Cir. 2006).
neither Nebraska law nor Title VII encompass discrimination
based upon sexual orientation. See Neb. Rev. Stat.
§§ 48-1114 et seq; see also Hively v.
Ivy Tech Community College, No. 15-1720, 2016 WL 4039703
(7th Cir. July 28, 2016); Dingle v. Bimbo Bakeries
USA/Entenmann's, 624 Fed.Appx. 57 (2d Cir. 2015);;
Brandon v. Sage Corp., 808 F.3d 266, 270 n.2 (5th
Cir. 2015); Kalich v. AT&T Mobility, LLC, 679
F.3d 464 (6th Cir. 2012); Wrightson v. Pizza Hut of Am.,
Inc., 99 F.3d 138, 142 (4th Cir. 1996); but see
Baldwin v Foxx, Appeal No. 0120133080, 2015 WL
4397641 (EEOC 7/15/15) (EEOC opinion holding that
discrimination on the basis of sexual orientation is
encompassed within Title VII). While a significant amount of
case law following Price included the discrimination
of gay or lesbian plaintiffs, these types of claims are only
successful if the plaintiffs can carve out discrimination
based upon sexual stereotypes from discrimination based upon
their sexual orientation Hively, 2016 WL 4039703 at
proposed amended complaint alleges a sex discrimination claim
on the basis of sex stereotype and states the following:
• He is a male who does not conform to sexual stereotype
regarding how men are present themselves in physical
appearance, actions, and behaviors (filing no. 21-1, ¶
10 at CM/ECF p. 2);
• He was subjected to discriminatory and stereotypical
language and treated poorly after appearing at a social event
with a male rather than a female, (id ...