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Perry v. Certified Transmission Rebuilders Inc.

United States District Court, D. Nebraska

November 22, 2017

JOHN A. PERRY, Plaintiff,
v.
CERTIFIED TRANSMISSION REBUILDERS INC., Defendant.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         Plaintiff filed his Complaint in this matter on September 1, 2017. (Filing No. 1.) Plaintiff has been given leave to proceed in forma pauperis. (Filing No. 5.) The court now conducts an initial review of Plaintiff's claims to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).

         I. SUMMARY OF COMPLAINT

         Plaintiff filed his Complaint in this matter against Certified Transmission Rebuilders, Inc. (“Defendant”), where he had been employed from July 4, 2004, to June 8, 2016. (Filing No. 1 at CM/ECF pp.1, 6.) Plaintiff alleges that Defendant discriminated against him on the basis of age, in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634, and the Nebraska Age Discrimination in Employment Act (“NADEA”), Neb. Rev. Stat. §§ 48-1001-1010; and on the bases of race and color, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-2000e-17, and the Nebraska Fair Employment Practice Act (“NFEPA”), Neb. Rev. Stat. §§ 48-1101-1126. (Id. at CM/ECF p.6.) Plaintiff's filings include the charge of discrimination that he filed with the Nebraska Equal Opportunity Commission (“NEOC”) and Equal Employment Opportunity Commission (“EEOC”) on July 14, 2016. (Id. at CM/ECF pp.6-7.) In assessing Plaintiff's Complaint, the court will consider the allegations raised in Plaintiff's NEOC charge of discrimination, as well as those raised in the Complaint. See Coleman v. Correct Care Solutions, 559 Fed. App'x. 601, 602 (8th Cir. 2014).

         Plaintiff is a 60-year-old, black man who worked for Defendant most recently as a janitor/light maintenance worker with driving duties. (Filing No. 1 at CM/ECF p.6) Plaintiff alleges that his job performance was “very good, ” but due to his age, race, and color, he “was harassed, subjected to different terms and conditions of employment, and [his] employment was terminated.” (Id. at CM/ECF pp.6-7.)

         The substance of Plaintiff's allegations are contained in the charge of discrimination filed with the EEOC/NEOC and attached to the Complaint. (Id.) However, Plaintiff does not allege that he received a right-to-sue notice from the EEOC/NEOC.

         II. APPLICABLE LEGAL STANDARS ON INITIAL REVIEW

         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).

         III. DISCUSSION OF CLAIMS

         Liberally construed, Plaintiff has alleged claims of harassment and discrimination based on age and race under both federal and Nebraska law. The Complaint, however, does not satisfy the general rules of pleading as discussed below.

         A. Demand for Relief

         Complaints filed in federal court must contain “a demand for the relief sought.” Fed.R.Civ.P. 8(a)(3). Plaintiff's Complaint does not specify the relief he seeks. (See generally Filing No. 1.) Accordingly, this matter may not proceed on Plaintiff's current Complaint. On the court's own motion, the court will ...


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