United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
Eric Mortimore, filed this case on March 2, 2017, and was
granted leave to proceed in forma pauperis on April 18, 2017.
The court now conducts an initial review of his Complaint to
determine whether summary dismissal is appropriate under 28
U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
alleges he has a bipolar disorder, a learning disability, and
speech impairment. He claims he was discriminated against on
the basis of disability or perceived disability when his
employment was terminated on December 7, 2016.
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).
construing the Complaint, Plaintiff is claiming his employer
violated the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. §§ 12111 to
12117.The ADA provides that “[n]o covered
entity shall discriminate against a qualified individual on
the basis of disability in regard to job application
procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other
terms, conditions, and privileges of employment.” 42
U.S.C. § 12112(a). A person is disabled within the
meaning of the ADA only if he demonstrates that he has a
physical or mental impairment that substantially limits one
or more of his major life activities, that he has a record of
such an impairment, or that he is regarded as having such an
impairment. Amir v. St. Louis Univ., 184 F.3d 1017,
1027 (8th Cir. 1999).
the court were to assume that Plaintiff is
“disabled” within the meaning of the ADA, and
that his employer is a “covered entity, ” there
are no facts alleged in the Complaint to show that he was
terminated or otherwise discriminated against because of a
disability or perceived disability. Plaintiff will be given
an opportunity to file an Amended Complaint to set forth
facts showing that he was discriminated against in violation
of the ADA.
addition, in order to pursue a claim under the ADA, a
plaintiff is required to exhaust administrative remedies by
first seeking relief through the Equal Employment Opportunity
Commission (“EEOC”) or the Nebraska Equal
Opportunity Commission (“NEOC”). The EEOC/NEOC
will then investigate the charge and determine whether to
file suit on behalf of the charging party or make a
determination of no reasonable cause. If the EEOC/NEOC
determines that there is no reasonable cause, the agency will
then issue the charging party a right-to-sue notice. 42
U.S.C.A. § 2000e-5(f)(1); 42 U.S.C. § 12117(a)
(stating that the remedies and procedures set forth in Title
VII, including those pertaining to exhaustion, apply to
disability discrimination claims). The charging party has 90
days from the receipt of the right-to-sue notice to file a
civil complaint based on his charge. Id.
has not alleged that he filed or charge of discrimination
with the NEOC/EEOC or that he received a right-to-sue letter
prior to filing suit. If Plaintiff files an Amended
Complaint, he must allege facts showing that his
administrative remedies have been exhausted, and, preferably,
attach a copy of the right-to-sue letter to the Amended
Plaintiff has named several supervisors as defendants.
“Neither the Court of Appeals for the Eighth Circuit
nor the United States Supreme Court have addressed the issue
of whether there is individual liability under Title I of the
ADA. However, other Circuit Courts have addressed the issue
and found that individual[s] are not personally liable under
Title I of the ADA.” Craig v. Wingfield, No.
4:05CV000791, 2007 WL 1219742, *3 (E.D.Ark. Apr. 25, 2007).
See also Rickert v. Midland Lutheran Coll., No.
8:07CV334, 2007 WL 2933229, at *1 (D. Neb. Oct. 5, 2007) (ADA
does not provide for individual liability); Whaley v.
United States,82 F.Supp.2d 1060, 1061 n. 1 (D.Neb.2000)
(same); Ways v. City of Lincoln, No. CV94-3265, 1995
WL 935759, *1 (D.Neb. Mar. 10, 1995) (“[I]t is
inconceivable that Congress intended to make individual
employees personally liable for employer violations of the
ADA [.]”) ...