United States District Court, D. Nebraska
PATRICIA J. RECKLEY, Plaintiff,
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
court determined on initial review of Plaintiff's
Complaint that it “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” (Filing No. 12). On the
court's own motion, Plaintiff was granted leave to file
an Amended Complaint that states a claim upon which relief
can be granted.
filed an Amended Complaint on March 16, 2017 (Filing No. 13),
corrected that filing on March 24, 2017 (Filing No. 16). The
court now reviews the Amended Complaint, as corrected, to
determine whether summary dismissal is appropriate under 28
U.S.C. § 1915(e)(2).
SUMMARY OF AMENDED COMPLAINT
is no substantive difference between Plaintiff's Amended
Complaint and the original Complaint. Plaintiff 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 original Complaint. Plaintiff alleges she
received the letter on October 19, 2016.
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.
Accepting this allegation as true, the 90-day filing deadline
expired on January 17, 2017. While Plaintiff mailed her
original 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).
There are no facts alleged which might provide grounds for
tolling the limitations period.
the right-to-sue letter states that the EEOC adopted the
findings of the state agency that investigated
Plaintiff's charge, 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
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). Plaintiff will not be allowed to
file a Second Amended complaint because the court has
concluded that to do so would be futile.