United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
matter is before the court on initial review of
Plaintiff's Complaint pursuant to 28 U.S.C. §
1915(e). For the reasons that follow, the court finds that
Plaintiff has failed to state a claim upon which relief can
be granted. However, on its own motion, the court will allow
Plaintiff to file an amended complaint.
APPLICABLE STANDARDS ON INITIAL REVIEW
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).
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”).
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.”
Topchian, 760 F.3d at 849 (internal quotation marks
and citations omitted).
SUMMARY OF COMPLAINT
brings this suit pursuant to Title VII of the Civil Rights
Act and the Americans with Disabilities Act. Liberally
construed, Plaintiff alleges that her employer terminated her
employment and refused to hire her to fill other job
vacancies within the company on account of her sex,
disability and in retaliation for comments she made regarding
discrimination in the workplace. (Filing No. 1.)
filed a Charge of Discrimination with the Nebraska Equal
Opportunity Commission and received a right-to-sue notice on
June 13, 2016. Plaintiff instituted this action on September
Title VII Discrimination Claims
VII forbids employment discrimination against “any
individual” based on that individual's “race,
color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-2(a). In order to set forth a prima facie case
of gender discrimination under Title VII, Plaintiff must
establish that she: (1) is a member of a protected class, (2)
was qualified for her job, (3) suffered an adverse employment
action, and (4) there are facts that give rise to an
inference of gender discrimination. Holland v. Sam's
Club, 487 F.3d 641, 644 (8th Cir. 2007). Here, Plaintiff
alleges that she is a member of a protected class. She also
alleges that she suffered an adverse employment action.
However, Plaintiff does not sufficiently allege that she was
qualified to perform the work or describe circumstances which
give rise to an inference of discrimination. In short,
Plaintiff has failed to plead sufficient factual content for
the court to reasonably infer that Defendants are liable for
the alleged misconduct.
employee seeking relief under the ADA must establish that:
“[s]he was a disabled person within the meaning of the
ADA, that [s]he was qualified to perform the essential
functions of the job, and that [s]he suffered an adverse
employment action under circumstances giving rise to an
inference of unlawful discrimination.” Kozisek v.
County of Seward, Neb.,539 F.3d 930, 934 (8th Cir.
2008). A person is disabled within the meaning of the ADA if
she demonstrates that she has a physical or mental impairment
which substantially limits one or more of her major life
activities, that she ...