United States District Court, D. Nebraska
JOHN A. PERRY, Plaintiff,
CERTIFIED TRANSMISSION REBUILDERS INC., Defendant.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
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. §
SUMMARY OF COMPLAINT
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).
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
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
APPLICABLE LEGAL STANDARS 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
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.
Demand for Relief
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