United States District Court, D. Nebraska
PATRICIA J. RECKLEY, Plaintiff,
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
filed her Complaint on January 19, 2017 (Filing No. 1), and
was granted leave to proceed in forma pauperis on January 20,
2017 (Filing No. 5). On January 26, 2017, after a mailing was
returned as undeliverable, the court entered an order
advising Plaintiff that the action would be dismissed if she
did not update her address within 30 days (Filing No. 7).
Plaintiff responded to the order on February 2, 2017, and has
made a sufficient showing that the address on file is correct
(Filing No. 11). The court now conducts an initial review of
Plaintiff's Complaint to determine whether summary
dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
indicates her action is brought pursuant to the Age
Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 621 et seq., the
Americans with Disabilities Act of 1990 (“ADA”),
42 U.S.C. § 12101 et seq., and the Nebraska Fair
Employment Practice Act (“NFEPA”), Neb. Rev.
Stat. § 48-1101 et seq.Plaintiff alleges that on August
27, 2016, she submitted an online application for employment
with Defendant which required her to state whether she was
“disabled” or “not disabled” and also
required her to complete a “personality
assessment.” Plaintiff does not allege that she was
required to state her age in the application. Plaintiff
claims she was not hired because of her responses to the
“personality assessment.” The Equal Employment
Opportunity Commission (“EEOC”) issued Plaintiff
a right-to-sue letter on October 6, 2016, a copy of which is
attached to the 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).
DISCUSSION OF CLAIMS
and the ADEA each require plaintiffs to file suit within 90
days after the date of the receipt of the right-to sue
letter. 42 U.S.C. § 2000e-5(f)(1); 42 U.S.C. §
12117(a); 29 U.S.C. § 626(e); see Lyons v.
Potter, 521 F.3d 981, 983 (8th Cir. 2008) (ADA);
Littell v. Aid Ass'n for Lutherans, 62 F.3d 257
(8th Cir. 1995) (ADEA). Plaintiff alleges that she received
the right-to-sue letter on October 19, 2016 (Filing No. 1 at
CM/ECF p. 5), thirteen days after its issuance by the EEOC,
which, if true, would mean that the 90-day filing deadline
expired on January 17, 2017. While Plaintiff mailed her
Complaint to the court on January 17, 2017, it was not
received and filed until two days later, which was untimely
under the ADA and the ADEA. See Hallgren v. U.S.
Dep't of Energy, 331 F.3d 588 (8th Cir. 2003)
(affirming dismissal of ADEA action where complaint was
mailed one day before expiration of 90-day time period but
was not received and filed by court until after 90 days).
the right-to-sue letter states that the EEOC adopted the
findings of the state agency that investigated
Plaintiff's charge, it appears the action is also
untimely under the NFEPA, which provides that “[t]he
deadline for filing an action directly in the district court
is ninety days after the complainant receives notice of the
last action the [Nebraska Equal Opportunity Commission] will
take on the complaint or charge.” Neb. Rev. Stat.
§ 48-1120.01. The NFEPA's limitations period is not
tolled pending issuance of the EEOC's right-to-sue
letter. See Hohn v. BNSF Ry. Co., 707 F.3d 995,
1000-01 (8th Cir. 2013).
the statute of limitations is an affirmative defense, a
district court may properly dismiss an in forma pauperis
complaint as frivolous when it is apparent that the statute
of limitations has run. Myers v. Vogal, 960 F.2d
750, 751 (8th Cir. 1992). Thus, unless Plaintiff can plead
additional facts to establish that her claims are not
time-barred, the action will be dismissed. The court need not
examine at this time whether the allegations of the Complaint
are otherwise sufficient to state a claim upon which relief
can be granted.
Complaint fails to state a claim upon which relief can be
granted because it appears on the face of the Complaint that
all claims alleged are barred by applicable statutes of
limitations. On its own motion, ...