Rodriquez v. Habitat for Humanity Omaha

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff filed a Complaint on August 20, 2018. (Filing No. 1.) He has been given leave to proceed in forma pauperis. (Filing No. 5.) 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).

         I. SUMMARY OF COMPLAINT

         Plaintiff brings this action against his former employer, Habitat for Humanity Omaha (“Defendant”), which employed Plaintiff from February 2016^[1] to September 2016 as a customer service sales representative in one of its restores. Plaintiff alleges that Defendant discriminated and retaliated against him on the bases of race (African-American), color (black), and religion (Muslim) 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, Neb. Rev. Stat. §§ 48-1101 to 48-1126 (“NFEPA”).

         Plaintiff states that, during his employment with Defendant, he and other black African-American employees “were treated to adverse assignments.” (Filing No. 1 at CM/ECF p. 6.) Plaintiff alleges that from February 2016 to September 2016, he was required to work every Saturday, unlike other employees, and that his performance was satisfactory. (Id. at CM/ECF p. 7.) In July 2016, Plaintiff complained to the store director that the store manager “was very discriminatory with the assignments, and that [he] just wanted a fair playing field.” (Id. at CM/ECF p. 6.) Plaintiff asserts that “[n]othing was ever done.” (Id.)

         Plaintiff states that, on one occasion, while helping a customer with a refrigerator in the appliance area, he stopped to assist another customer bring items to the dock area to be loaded into her car. (Id.) While in the dock area, another employee asked Plaintiff to look at his phone because it was not working. (Id.) When Plaintiff picked up the phone, the store manager came in and yelled “at the top of her voice and in front of both customers and employees, [‘]Didn't I tell you to get back in appliances[?']” (Id.) Plaintiff returned to the appliance area and told the manager that he had been helping customers “and that she didn't have to yell at [him] like [he] was one of her dogs, ” and she responded, “you are right go home.” (Id.) Upset at being yelled at and sent home, Plaintiff went to the corporate office and told the human resources director “about being yelled at when [he] was only doing [his] job helping customers, and how the Black African American employee[s] were treated differently at the restore.” (Id.) She said she would conduct an investigation and was aware of his prior meeting with the store director and manager in which he stated that he wanted “a fair playing field.” (Id.) According to Plaintiff, “[n]o proper investigation was conducted.” (Id.)

         Plaintiff further alleges that, on September 24, 2016, he was assigned to work in appliances when the assistant manager asked him to go to the dock area to help another employee load a high-priced item into a customer's vehicle. (Id. at CM/ECF p. 7.) When Plaintiff arrived at the dock area, a co-worker asked why he was there, and Plaintiff explained that the assistant manager sent him because the co-worker previously had damaged other items. (Id.) The co-worker “got offensive and told [Plaintiff] to get the fuck out of here raghead and go back to [Plaintiff's] area. He continued to yell and made the comment that when he was in the army he used to chase ragheads.” (Id.) Plaintiff interpreted these statements as a reference to Plaintiff being a Muslim. (Id.) Plaintiff became upset and told the co-worker that, if they had a problem, they “could go to the other side of Maple and handle it.” (Id.) The assistant manager heard them arguing and said if they did not stop someone would have to go home. (Id.) Plaintiff asked to go home because “he was upset and wanted to avoid any other problems.” (Id.)

         A couple of days later, on September 26, 2016, the assistant manager, Plaintiff, and the co-worker were called into the manager's office for a meeting. (Id.) Plaintiff told the manager that the co-worker “kept yelling and making inappropriate comments.” (Id.) The co-worker stated that he did not want to say anything because the assistant manager and Plaintiff grew up in the same neighborhood and requested a private meeting with the manager. (Id.) The manager met with the co-worker but never met with Plaintiff or the assistant manager. (Id.)

         Shortly thereafter, on September 29, 2016, Plaintiff was called into the corporate office and informed that an investigation revealed that Plaintiff had threatened the co-worker. (Id.) Plaintiff denied threatening the co-worker, but the human resources director stated that the co-worker “felt that [Plaintiff] had threaten[ed] him.” (Id.) When Plaintiff complained about the co-worker's comments, ” Plaintiff was told to leave the property. (Id.)

         For relief, Plaintiff seeks $20, 000.00 in damages for lost wages and bonus. (Id. at CM/ECF p. 8.)

         II. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW

         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 ...