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Scott v. Concrete Supply, Inc.

United States District Court, D. Nebraska

February 15, 2018

ROOSEVELT SCOTT, an individual; Plaintiff,
CONCRETE SUPPLY, INC., an Iowa corporation doing business in Nebraska; Defendant.


          Laurie Smith Camp Chief United States District Judge.

         This 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.


         The following facts are those alleged in the Complaint, ECF No. 1, and are assumed true for purposes of the Motion to Dismiss.

         Plaintiff 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 duties.

         When 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.

         Scott 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.

         On or 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.


         A 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).

         On a 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).


         The 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.

         I. Failure to Exhaust Administrative RemediesA. Discrimination and Hostile Work Environment Claims ...

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