United States District Court, D. Nebraska
ROSS F. TREMAINE, Plaintiff,
GOODWILL INDUSTRIES, INC., a Nebraska nonprofit corporation; Defendant.
MEMORANDUM AND ORDER
SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Motion to Dismiss, ECF No.
6, filed by Defendant Goodwill Industries, Inc.
(“Defendant”) pursuant to Federal Rule of Civil
Procedure 12(b)(6). For the reasons stated below, the Motion
will be granted, and the Plaintiff's Third Claim for
Relief, asserting a violation of the Nebraska Fair Employment
Practices Act, Neb. Rev. Stat. §48-1101 et seq.
(“NFEPA”), will be dismissed.
purposes of the pending Motion, the facts alleged in the
Plaintiff's First Amended Complaint, ECF 5,
(“Comp.”), are presumed to be true. The following
is a summary of those facts.
employed Plaintiff Ross F. Tremaine (“Tremaine”)
as a Facilities Manager beginning on October 15, 2011, and
eventually promoted him to Facilities Director. Comp. ¶
1, ECF No. 5, Page ID 21. Defendant terminated Tremaine's
employment on July 10, 2015, and Tremaine filed this lawsuit
alleging age and sex discrimination in violation of state and
federal law as well as retaliation for opposing an unlawful
practice or act in violation of the NFEPA, at Neb. Rev. Stat
§ 48-1114(3). Comp. ¶ 49, ECF No. 5, Page ID 35.
Defendant now moves to dismiss Tremaine's NFEPA claim
pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a
claim upon which relief can be granted. ECF No. 6.
asserts that in March of 2015, he notified Defendant's
executive board that its West Center retail store located at
8310 Spring Street (the “West Center Store”) was
infested with bed bugs. Comp. ¶ 4, ECF No. 5, Page ID
22. Accordingly, he recommended that the West Center Store be
closed immediately and until the infestation could be treated
because “it posed a threat to the public and
constituted a public health violation.” Id.
Defendant's executive board, however, decided the bed bug
treatment should coincide with a previously scheduled
shelving installation, leaving the West Center Store open and
untreated for four days. Id. Tremaine allegedly
opposed this course of action, and he asserts that the
Defendant terminated his employment in retaliation. Comp.
¶ 55-7, ECF No. 5, Page ID 36. Defendant cited
Tremaine's unauthorized personal use of company tools as
the basis for his termination. Comp. ¶ 55, ECF No. 5,
Page ID 36. Tremaine, however, maintains his use of company
tools was a pretext, and that Defendant terminated him in
retaliation for his “outspoken opposition to
[Defendant's] improper and illegal handling of the West
Center Store's bed bug infestation.” Comp. ¶
58, ECF No. 5, Page ID 36.
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, a plaintiff 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, 677 (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 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 Twombly, 550 U.S. at 555). 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).
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
555-56 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)). “Determining whether a complaint states 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.
claims under the NFEPA are governed by the same standard as
claims for retaliation under Title VII. Al-Zubaidy v. TEK
Indus., Inc., 406 F.3d 1030, 1039 (8th Cir. 2005)
(quoting City of Fort Calhoun v. Collins, 243 Neb.
528, 531 (1993) (explaining the NFEPA “is patterned
after Title VII” and “it is appropriate to
consider federal court decisions construing the federal
legislation”)). To establish a prima facie case of
discrimination under the NFEPA, a plaintiff must show
“(1) she engaged in a statutorily protected activity,
(2) an adverse employment action was taken against her, and
(3) a causal connection exists between the two events.”
Reyes v. Pharma Chemie, Inc., 890 F.Supp.2d 1147,
1167 (D. Neb. 2012) (citing Gacek v. Owens & Minor
Distribution, Inc., 666 F.3d 1142, 1146 (8th Cir.
48-1114(3) protects employees from employer discrimination
where the employee “oppose[s] any practice or refuse[s]
to carry out any action unlawful under federal law or the
laws of this state.” Neb. Rev. Stat. § 48-1114(3).
This statutory protection is only afforded, however,
“when the employee reasonably and in good faith
believes the [employer's] act to be unlawful.”
Wolfe v. Becton Dickinson and Co., 266 Neb. 53, 61
(2003). Thus, “[t]he plaintiff must not only have a
subjective (sincere, good faith) belief that he opposed an
unlawful practice; his belief must also be objectively
reasonable . . . .” Hamner v. St. Vincent Hosp. and
Health Care Ctr., 224 F.3d 701, 707 (7th Cir. 2000).
“In order for such a belief to be reasonable, the act
believed to be unlawful must either in fact be unlawful or at
least be of a type that is unlawful.” Wolf,
266 Neb. at 606.
assert Tremaine has not pled sufficient facts to show he
opposed an unlawful activity or practice and, as such, he
cannot maintain a claim under § 48-1114(3), based on
alleged retaliation for engaging in statutorily protected
activity. See ECF No. 7, Page ID 45-6. While it may
be inferred from the allegations in Tremaine's Amended
Complaint that he believed the Defendant violated state or
federal law when it kept the West Center Store open for four
days despite an alleged bed bug infestation, Tremaine has not
pled facts that show Defendant engaged in activity that is
“in fact [ ] unlawful or at least [ ] of a type that is
unlawful.” Wolfe, 266 Neb. at 606.
Tremaine's subjective belief that Defendant acted
unlawfully does not constitute “enough facts to state a
claim to relief” under § 48-1114(3) “that is
plausible on its face.” Corrado, 804 F.3d at
917 (quoting Twombly, 550 U.S. at 570).
Tremaine alleges that he “was aware that knowingly
keeping the store open while the facility was infested with
bed bugs [constituted] a public health code violation,
” he fails to cite any health code or other body of law
that prohibited such conduct. Comp. ¶ 53, ECF No. 5,
Page ID 35. Rather, he repeats “mere conclusory
statements” that Defendant committed public health