United States District Court, D. Nebraska
KEYA C. DRAPER, Plaintiff,
DOCULYNX, INC., Defendant.
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
filed her Complaint in this matter on August 8, 2018.
(Filing No. 1.) Plaintiff has been given leave to
proceed in forma pauperis. (Filing No. 5.) The court
now conducts an initial review of Plaintiff's claims to
determine whether summary dismissal is appropriate under 28
U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
filed her Complaint in this matter against Doculynx, Inc.
(“Defendant”), where she had been employed from
January 23, 2017, to March 17, 2017. (Filing No. 1 at
CM/ECF pp. 1, 7.) Plaintiff alleges that
Defendant discriminated against her 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 basis of sex, 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. (Id. at CM/ECF
p. 7.) Plaintiff's filings include the charge of
discrimination that she filed with the Nebraska Equal
Opportunity Commission (“NEOC”) and Equal
Employment Opportunity Commission (“EEOC”) on
March 30, 2017. (Id. at CM/ECF pp. 6-8.) In
assessing Plaintiff's Complaint, the court will consider
the allegations raised in Plaintiff's NEOC charge of
discrimination, as well as those raised in the Complaint.
See Coleman v. Correct Care Solutions, 559
Fed. App'x. 601, 602 (8th Cir. 2014).
a female in her 40s, was placed by Express Services, Inc.
with Defendant on January 23, 2017, as a Scanner. (Filing
No. 1 at CM/ECF p. 7.) Beginning in or around March 1,
2017, Plaintiff alleges she was “verbally [and]
sexually harassed” by another employee of Defendant
named Tasha, a female in her 40s. (Id. at CM/ECF pp.
4, 7.) Tasha made insulting comments and
gestures to Plaintiff like “fat bitches are a
trip” and would “avoid areas that [Plaintiff]
would be in such as not eating lunch when [Plaintiff] was in
the break room, instead eating at her desk or in her
car.” (Id. at CM/ECF p. 7.) Tasha would also
“mimic [Plaintiff] and walk with her nose in the
March 15, 2017, Plaintiff complained about the harassment to
Ray, a male manager in his 20s, and to her Express Employment
Recruiter Pam, a female in her 40s. Plaintiff also called the
local police to report that she was not safe at work. The
police interviewed Plaintiff and Ray and asked Ray if Tasha
and Plaintiff could be separated from each other. Ray offered
to move Plaintiff's work station, and Plaintiff refused
that move. Pam told Plaintiff not to return to work on March
16, 2017, and that she would investigate the situation and
call Plaintiff on March 17, 2017. Pam informed Plaintiff on
March 17, 2017, that her assignment with Defendant was ended.
Plaintiff alleges her job performance was satisfactory and
that Tasha did not lose her assignment.
alleges Defendant “did nothing to ensure [her] safety
and provide a safe work environment” after she informed
Defendant of Tasha's harassment, but instead fired
Plaintiff. (Id. at CM/ECF p. 4.) As relief,
Plaintiff seeks $250, 000.00 “in punitive
damages” for the humiliation and mental impact she
suffered. (Id.) The right-to-sue notice attached to
Plaintiff's Complaint reflects that she filed suit in
this court within 90 days of her receipt of the right-to-sue
notice from the EEOC. See 42 U.S.C. §
2000e-5(f)(1) (a charging party has 90 days from the receipt
of the right-to-sue notice to file a civil complaint based on
a charge of discrimination).
APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
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. §
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.”).
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).
DISCUSSION OF CLAIMS
construed, Plaintiff asserts claims of age and sex
discrimination. The court has considered Plaintiff's
discrimination claims under three potential theories:
disparate treatment, retaliation, and hostile work
environment. For the reasons discussed below, Plaintiff's
Complaint does not state a claim for relief under any of the
plaintiff need not plead facts sufficient to establish a
prima facie case of employment discrimination in his or her
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 byBell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). However, the elements of a prima facie case are
relevant to a plausibility determination. SeeRodriguez-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) ...