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Bush v. Mapes Canopies, LLC

United States District Court, D. Nebraska

April 26, 2018

CURTIS L. BUSH, Plaintiff,


          Richard G. Kopf Senior United States District Judge

         Plaintiff 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.


         Plaintiff 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 emotional distress.

         Plaintiff 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.

         Plaintiff 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 satisfactory.

         As a 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 damages.


         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).


         Liberally 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.

         A. Exhaustion of ...

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