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Bush v. Mapes Canopies, LLC

United States District Court, D. Nebraska

October 24, 2018

CURTIS L. BUSH, Plaintiff,


          Richard G. Kopf Senior United States District Judge.

         This matter is before the court on further review of Plaintiff's Complaint (filing no. 1) pursuant to 28 U.S.C. § 1915(e)(2).

         I. BACKGROUND

         Plaintiff 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”).

         On 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. 5.)

         Plaintiff 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. § 1915(e)(2).


         The 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.

         A 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.”).

         A. Age Discrimination

         Plaintiff 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.

         Plaintiff's 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).

         Here, 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.)

         While 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 ...

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