United States District Court, D. Nebraska
CURTIS L. BUSH, Plaintiff,
MAPES CANOPIES, LLC, Defendant.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
filed a Complaint on October 10, 2017. (Filing No.
1.) He has been given leave to proceed in forma
pauperis. (Filing No. 11.) The court now conducts an
initial review of Plaintiff's Complaint to determine
whether summary dismissal is appropriate under 28 U.S.C.
§§ 1915(e) and 1915A.
SUMMARY OF COMPLAINT
brings this action against his former employer Mapes
Canopies, LLC (“Defendant”), which employed
Plaintiff from June 2013 to March 2016. 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, color, and religion
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. Liberally construed, Plaintiff also asserts
state law claims of slander and intentional infliction of
is a 43-year-old black man who began working for the
Defendant as a production worker before assuming the duties
of assistant supervisor in August 2015. (Filing No. 1 at
CM/ECF pp.1, 4.) Plaintiff alleges he was
harassed by other employees who called him racial slurs and
disparaged his Christian faith whenever Plaintiff chose to
listen to Christian music on the jobsite. Plaintiff alleges
he complained to his supervisor and management about the
employees' behavior but “nothing ever became of
it.” (Id. at CM/ECF p.4.) Plaintiff also
claims that he was subjected to different terms and
conditions of employment because he received a lesser raise
at the time he assumed assistant supervisor duties than did
the white, lesser-experienced man who replaced Plaintiff
after his termination.
states that he was suspended for three days in February 2016
after he complained to management that a white employee had
called him a racial slur and the employee denied it.
Plaintiff alleges that management determined the problems
stemmed from Plaintiff's choice of music and restricted
employees from playing their personal music in their work
areas, but permitted employees to listen to the radio.
Plaintiff found a Christian music station on the radio and
again was harassed by other employees for listening to it.
Plaintiff complained to his supervisors and, as a result,
employees were permitted to listen to only two radio
stations, neither of which played Christian music. Shortly
thereafter, on March 26, 2016, Plaintiff was terminated from
his employment even though his job performance was
result of the discrimination and harassment by Defendant,
Plaintiff alleges that he suffered great stress and
depression, leading him to abuse alcohol “which is the
cause of his imprisonment.” (Id. at CM/ECF
p.2.) For relief, Plaintiff seeks $1, 500, 000.00 in
APPLICABLE LEGAL 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. §
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,
discrimination, and retaliation based on age, race, and
religion under both federal and Nebraska law. The Complaint,
however, fails to allege that Plaintiff has exhausted his
administrative remedies as required.
Exhaustion of ...