United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge.
matter is before the Court on the Motion to Dismiss, ECF No.
4, filed by Defendant Concrete Supply, Inc. For the reasons
stated below, the Motion will be granted.
following facts are those alleged in the Complaint, ECF No.
1, and are assumed true for purposes of the Motion to
Roosevelt Scott, an African-American man, was hired as a
truck driver for Concrete Supply, Inc., on March 7, 2014. In
September 2015, Scott “was injured on his way to work
and was unable to work until October 2015.” Comp.
¶ 2, ECF No. 1, Page ID 1. Without indicating the nature
of the injury, Scott's Complaint alleges he
“provided Concrete Supply with medical documentation
and requested light duty.” Id. Concrete Supply
continued to have Scott perform his regular truck driving
Scott returned to work in October 2015, he also requested a
schedule that would accommodate his 5:00 p.m. physical
therapy appointments. Scott alleges Concrete Supply refused
to grant him that accommodation, but “accommodated
David Miller's request for light duty when he cut his
finger.” Comp. ¶4, ECF No. 1, Page ID 2. David
Miller is Caucasian. Scott further alleges he was required to
work on Saturdays while other Caucasian employees with less
seniority were not.
complained about the foregoing treatment to his immediate
supervisor, Chris Rogers, on or around October 26, 2015. He
also complained to the shop supervisor, Brian Hensley, and
the dispatch manager, Marty Miles. In early 2016, Scott found
out his 2015 annual bonus was $1, 200 less than his 2014
annual bonus, which Hensley explained was “due to
[Scott's] injury.” Comp. ¶8, ECF No. 1, Page
ID 2. One of Scott's co-workers also told a racially
offensive joke, which was not addressed by management.
around April 8, 2016, Scott provided Concrete Supply with
notice that he would be terminating his employment in two
weeks. Scott alleges he was not permitted to work during that
two-week period, but that another Caucasian employee was
allowed to do so after giving his two-week notice. Scott
filed his Complaint on September 27, 2017, and asserted
claims for race discrimination, disability discrimination,
hostile work environment, and retaliation under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, the
Americans with Disabilities Act, 42 U.S.C. § 12112, and
the Nebraska Fair Employment Practices Act, Neb. Rev. Stat.
§ 48-1104. Concrete Supply filed its Motion to Dismiss
requesting that the Court dismiss the Complaint or, in the
alternative, require Scott to file a more definite statement
of his claims.
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). To satisfy this
requirement, a plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.”
Corrado v. Life Inv'rs Ins. Co. of Am., 804 F.3d
915, 917 (8th Cir. 2015) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “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.”
Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Zink v. Lombardi, 783 F.3d 1089,
1098 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at
678), cert. denied, 135 S.Ct. 2941 (2015). The
complaint's factual allegations must be “sufficient
to ‘raise a right to relief above the speculative
level.'” McDonough v. Anoka Cty., 799 F.3d
931, 946 (8th Cir. 2015) (quoting Twombly, 550 U.S.
at 555). The Court must accept factual allegations as true,
but it is not required to accept any “legal conclusion
couched as a factual allegation.” Brown v. Green
Tree Servicing LLC, 820 F.3d 371, 373 (8th Cir. 2016)
(quoting Iqbal, 556 U.S. at 678). Thus, “[a]
pleading that offers ‘labels and conclusions' or
‘a formulaic recitation of the elements of a cause of
action will not do.'” Ash v. Anderson
Merchandisers, LLC, 799 F.3d 957, 960 (8th Cir. 2015)
(quoting Iqbal, 556 U.S. at 678), cert.
denied, 136 S.Ct. 804 (2016).
motion to dismiss, courts must rule “on the assumption
that all the allegations in the complaint are true, ”
and “a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable, and ‘that a recovery is very remote and
unlikely.'” Twombly, 550 U.S. at 555 &
556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)). “Determining whether a complaint states a
plausible claim for relief . . . [is] a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Mickelson v. Cty. of
Ramsey, 823 F.3d 918, 923 (8th Cir. 2016) (alternation
in original) (quoting Iqbal, 556 U.S. at 679).
Court will dismiss Scott's Complaint because it failed to
allege he exhausted his administrative remedies with respect
to his Title VII and ADA claims. It further failed to allege
a disability within the meaning of the ADA and the NFEPA, and
it failed to state a plausible claim for race-based hostile
work environment. The Court will also grant Scott's
request to file an amended complaint.
Failure to Exhaust Administrative RemediesA. Discrimination and Hostile Work Environment Claims