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Draper v. Doculynx, Inc.

United States District Court, D. Nebraska

March 29, 2019

KEYA C. DRAPER, Plaintiff,
v.
DOCULYNX, INC., Defendant.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff 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).

         I. SUMMARY OF COMPLAINT

         Plaintiff 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).

         Plaintiff, 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 air.” (Id.)

         On 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.

         Plaintiff 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).

         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 a lesser pleading standard than other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).

         III. DISCUSSION OF CLAIMS

         Liberally 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 three theories.

         A 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) ...


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