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.
matter is before the court on further review of
Plaintiff's Complaint (filing no. 1) pursuant to
28 U.S.C. § 1915(e)(2).
Curtis L. Bush filed his Complaint (filing no. 1) in
this matter on October 10, 2017. Liberally construed,
Plaintiff brings this action under the Age Discrimination in
Employment Act (“ADEA”) and Title VII of the
Civil Rights Act of 1964 (“Title VII”).
April 26, 2018, the court conducted an initial review of
Plaintiff's Complaint. (Filing No. 12.) The
court determined it was unclear whether Plaintiff filed his
suit in a timely manner. The court ordered Plaintiff to file
a copy of his right-to-sue notice with the court or,
alternatively, to amend his complaint to allege whether he
exhausted his administrative remedies with the Equal
Employment Opportunity Commission
(“EEOC”)/Nebraska Equal Opportunity Commission
(“NEOC”) and, if so, the date on which he
received a right-to-sue notice. (Id. at CM/ECF p.
filed a copy of his right-to-sue notice received from the
EEOC. (Filing No. 13.) The document shows that
Plaintiff filed suit within 90 days of his receipt of his
right-to-sue notice. See 29 U.S.C. § 626(e); 42
U.S.C.A. § 2000e-5(f)(1). The court now conducts further
review of Plaintiff's claims pursuant to 28 U.S.C. §
DISCUSSION OF CLAIMS
court summarized the Complaint's allegations and set
forth the applicable legal standards on initial review in its
April 26, 2018 Memorandum and Order and incorporates the same
herein. (Filing No. 12 at CM/ECF pp. 1-3.) Briefly,
Plaintiff alleges Defendant, his former employer,
discriminated against him on the basis of age, in violation
of the 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, 42
U.S.C. §§ 2000e-2000e-17, and the Nebraska Fair
Employment Practice Act (“NFEPA”), Neb. Rev.
Stat. §§ 48-1101-1126.
plaintiff need not plead facts sufficient to establish a
prima facie case of employment discrimination in his
complaint. See Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 511-12 (2002) (holding a complaint in
employment discrimination lawsuit need not contain
“facts establishing a prima facie case, ” but
must contain sufficient facts to state a claim to relief that
is plausible on its face), abrogated in part on other
grounds by Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007). However, the elements of a prima facie case are
relevant to a plausibility determination. See
Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 54
(1st Cir. 2013) (stating elements of a prima facie case are
“part of the background against which a plausibility
determination should be made” and “may be used as
a prism to shed light upon the plausibility of the
claim”); see also Khalik v. United Air
Lines, 671 F.3d 1188, 1192 (10th Cir. 2012)
(“While the 12(b)(6) standard does not require that
Plaintiff establish a prima facie case in her complaint, the
elements of each alleged cause of action help to determine
whether Plaintiff has set forth a plausible claim.”).
asserts claims under the ADEA and the NADEA. The ADEA
protects individuals over 40 and prohibits an employer from
failing or refusing to hire, discharging, or otherwise
discriminating against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's age. 29 U.S.C. §
623(a); Anderson v. Durham D & M, L.L.C.,
606 F.3d 513, 523 (8th Cir. 2010). The NADEA offers similar
protection. SeeNeb. Rev. Stat. § 48-1004(1)(a).
The NADEA is interpreted in conformity with the ADEA, and the
court will apply the same analysis to both claims.
See Billingsley v. BFM Liquor Mgmt., Inc.,
645 N.W.2d 791, 801 (Neb. 2002). The court looks to the
elements of a prima facie case of discrimination in assessing
whether Plaintiff has pled enough facts to make entitlement
to relief plausible.
claim of age discrimination is most naturally read as raising
a disparate treatment claim. Disparate treatment cases
present the most easily understood type of discrimination.
Ricci v. DeStefano, 557 U.S. 557, 577 (2009).
Disparate treatment occurs where an employer treats
particular individuals less favorably than others because of
a protected trait. Id. To set forth a prima facie
claim of age discrimination, a plaintiff must establish that
(1) he is over 40; (2) he was qualified for the position; (3)
he suffered an adverse employment action; and (4)
similarly-situated employees outside the class were treated
more favorably. Anderson, 606 F.3d at 523.
“The hallmark of an ADEA disparate-treatment claim is
intentional discrimination against the plaintiff on account
of the plaintiff's age.” Rothmeier v. Inv.
Advisers, Inc., 85 F.3d 1328, 1331 (8th Cir. 1996). This
requires proof that age was the “but-for” cause
of the employer's adverse decision. Gross v. FBL Fin.
Servs. Inc., 557 U.S. 167, 176-78 (2009).
Plaintiff alleged that he is over 40. In addition, the court
can reasonably infer he was qualified for his position
because he alleged he had been hired by the Defendant as a
production worker after starting out as a temporary worker
and later assumed the duties of an assistant supervisor.
(See Filing No. 1 at CM/ECF pp. 1-2.) The
court interprets Plaintiff's allegations to suggest that
there were two actions against Plaintiff that he considers
adverse. The first was that he received “less favorable
wages.” (Id. at CM/ECF p. 1.) The second was
not being promoted to the assistant supervisor position
despite taking over the duties of that position.
(Id. at CM/ECF pp. 1-2.)
receiving less favorable wages is certainly an adverse
employment action, the court cannot reasonably infer from the
facts alleged that Plaintiff's age was a cause of the
unfavorable wages. Plaintiff alleges that he received a
$0.25/hour raise when he began performing the assistant
supervisor duties, but after he was terminated, his
replacement received a $1.00/hour raise despite having less
experience. However, Plaintiff alleges that his replacement
was approximately 42 years old. (Id. at ...