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Birge v. Nebraska Medicine

United States District Court, D. Nebraska

February 27, 2017

LISA BIRGE, Plaintiff,



         Plaintiff 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. § 1915(e)(2).

         I. BACKGROUND

         Plaintiff 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.)

         On 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.)


         The 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).

         Pro se 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.”).

         “The 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).


         A. NFEPA Claims

         The 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.

         In 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.

         Plaintiff's Complaint was filed 171 days after the date of the NEOC notice. Accordingly, ...

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