United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE
filed her Complaint on December 16, 2016. (Filing No.
1.) She has been given leave to proceed in forma
pauperis. (Filing No. 5.) The court now conducts an
initial review of Plaintiff's Complaint to determine
whether summary dismissal is appropriate under 28 U.S.C.
was terminated from her position at The Nebraska Medical
Center on February 8, 2016, after working there for a little
over four months. (Filing No. 1 at CM/ECF pp.
12-13.) She filed a charge of discrimination against The
Nebraska Medical Center with the Nebraska Equal Opportunity
Commission (“NEOC”), alleging that she was
discriminated against on the basis of her race and disability
and retaliated against due to her request for accommodation.
(Id.) On June 28, 2016, the NEOC found no reasonable
cause and dismissed Plaintiff's charge. (Id. at
CM/ECF pp. 14-15.) It specifically found, “The evidence
shows that due to performance issues, Respondent disciplined
and ultimately discharged Complainant. There is no evidence
to show any action taken was due to a discriminatory
reason.” (Id.) Plaintiff's charge was
referred to the U.S. Equal Employment Opportunity Commission
(“EEOC”), which adopted the findings of the NEOC.
(Id. at CM/ECF p. 10.) The EEOC mailed a
right-to-sue letter to Plaintiff at the address on her
current Complaint on September 13, 2016. (Id.)
December 16, 2016, Plaintiff filed her Complaint against four
defendants: The Nebraska Medical Center, Patrick J. Barrett,
the attorney for The Nebraska Medical Center, the NEOC, and
the EEOC. (Id. at CM/ECF p. 2.) She alleges claims
under Title VII of the Civil Rights Act of 1964, the American
Disabilities Act (“ADA”), and the Nebraska Fair
Employment Practices Act (“NFEPA”), Neb. Rev.
Stat. § 48-1101 et seq. (Id. at CM/ECF
pp. 3, 7.) Plaintiff alleges that the NEOC and EEOC
inadequately investigated her claims. (Id. at CM/ECF
p. 7.) Liberally construed, she also alleges claims of
defamation. (Id. at CM/ECF pp. 7-8.) Plaintiff seeks
monetary damages and asks that employees at The Nebraska
Medical Center “be estopped from providing negative,
false, and hurtful gossip . . .” that is making it
difficult for her to find employment and is an “attempt
to blacklist [her] out of this career.” (Id.
at CM/ECF pp. 6, 8.)
APPLICABLE LEGAL 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. §
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).
NFEPA makes it unlawful for an employer to discriminate based
on “race, color, religion, sex, disability, marital
status, or national origin” or because an employee
“opposed any practice or refused to carry out any
action unlawful under federal law or the laws of this
state.” Neb. Rev. Stat. §§ 48-1104 and
48-1114. A written charge of violation of the NFEPA shall be
filed within 300 days after the occurrence of the alleged
unlawful employment practice. § 48-1118(2). There is no
statute of limitations during the NEOC's proceedings.
Adams v. Tenneco Auto. Operating Co., 358 F.Supp.2d
878, 880 (D. Neb. 2005). But any suit following a
determination by the NEOC must be filed within 90 days.
See § 48-1120.01.
Hohn v. BNSF Railway, the Eighth Circuit held that a
claim filed more than 90 days after an NEOC determination
should have been dismissed. 707 F.3d 995, 1000-01 (8th Cir.
2013). The plaintiff in that case had filed an employment
discrimination charge with the NEOC which was closed by
August 4, 2005, and a charge with the EEOC which resulted in
a right-to-sue letter dated September 21. Id. at
999. The plaintiff filed suit in federal district court
within 90 days of the EEOC's right-to-sue letter, but
more than 90 days after the NEOC's final determination.
Id. The Eighth Circuit held that the plaintiff's
NFEPA claim was untimely because it was not filed within 90
days of the NEOC's determination. Id. at 1001.
Complaint was filed 171 days after the date of the NEOC
notice. Accordingly, ...