United States District Court, D. Nebraska
FREDDY S. RODRIQUEZ, Plaintiff,
v.
HABITAT FOR HUMANITY OMAHA, Defendant.
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 ...