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Mills v. Hastings Utilities

United States District Court, D. Nebraska

April 26, 2019

EDWARD K. MILLS, Plaintiff,


          John M. Gerrard, Chief United States District Judge.

         This matter is before the Court on two partial motions to dismiss (filing 4; filing 13) and a motion to strike (filing 6) filed by the defendant, Hastings Utilities. Those motions will be granted in part and denied in part as set forth below.

         I. BACKGROUND

         From 2009 until he was terminated in May 2017, the plaintiff, Edward Mills, was employed by Hastings Utilities. Filing 1-1 at 3-4. In 2016, Hastings Utilities posted openings for two shift foreman positions. See filing 1-1 at 4. Mills applied for both positions, but was not selected for either. See filing 1-1 at 4. Mills contends that the reason Hastings Utilities did not select him for either position is because he "made management feel defensive and backed into a corner." Filing 1-1 at 4. This is true, Mills alleges, because in November 2014, Mills reported the existence of several safety violations to the Occupational Safety and Health Administration (OSHA). Filing 1-1 at 3.

         Accordingly, Mills filed this lawsuit claiming that Hastings Utilities unlawfully retaliated against him in violation of OSHA and the Nebraska Fair Employment Practice Act ("NFEPA"), Neb. Rev. Stat. § 48-1101 et seq. Mills also contends that Hastings Utilities engaged in age discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. § 621 et seq. and the Nebraska Age Discrimination in Employment Act ("NADEA"), Neb. Rev. Stat. § 48-1001 et seq., by filling the shift foreman positions with employees who were significantly younger than Mills. Filing 1-1 at 4.


         To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. 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. Id. While the Court must accept as true all facts pleaded by the non-moving party and grant all reasonable inferences from the pleadings in favor of the non-moving party, Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012), a pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Iqbal, 556 U.S. at 678. Determining whether a complaint states a plausible claim for relief will require the reviewing court to draw on its judicial experience and common sense. Id. at 679.


         1. Motions to Dismiss

         Hastings Utilities moves to dismiss the following causes of action: age discrimination in violation of the NADEA, retaliation in violation of the NFEPA, and OSHA retaliation. Filing 5 at 2; filing 14 at 2. Because Hastings Utilities' arguments relating to Mills' NADEA and NFEPA claims (i.e., the state law claims) raise similar issues of law and fact, the Court will consider those claims together before moving on to Hastings Utilities' OSHA retaliation claim.

         (a) State Law Claims

         Hastings Utilities moves to dismiss Mills' NADEA and NFEPA claims as untimely. See filing 11 at 3-4; filing 14 at 2-3. Under both statutory schemes, the deadline for filing an action in the district court is ninety days after the complainant receives notice of the last action the Nebraska Equal Opportunity will take on the complaint or charge. Neb. Rev. Stat. § 48-1120.01; see also Clark v. Union Pac. R.R., 2009 WL 1740597, at *1 (D. Neb. June 18, 2009). Often times, the last action the Commission will take is issuing its determination. See, e.g., Worlds v. Midwest Demolition Co., 2017 WL 1283477, at *2 (D. Neb. Apr. 5, 2017); Bieler v. Cardinal Health 200, LLC, 2016 WL 2626862, at *2 (D. Neb. May 6, 2016); Birge v. Nebraska Med., 2017 WL 773525, at *2 (D. Neb. Feb. 27, 2017).

         Here, the Commission issued its last action on May 18, 2018--the date the Commission released its determinations dismissing Mills' charges. Filing 1-1 at 1-2; see also filing 15-1 at 1.[1] At this time, the Commission also informed Mills that he had "90 days after the receipt of this notice" to file his action in district court. Filing 15-1 at 3. But Mills did not file suit until October 2, 2018- nearly 137 days after he received the Commission's determination on his NFEPA and NADEA claims. Filing 1-1 at 1. So, Mills' state law claims were not filed within the 90-day window, and as such are barred by the statute of limitations. See Hohn v. BNSF Ry. Co., 707 F.3d 995, 1001 (8th Cir. 2013).

         Even so, Mills contends that his NFEPA claim survives Hastings Utilities' motion to dismiss.[2] This is true, Mills argues, because Neb. Rev. Stat. ยง 48-1119(4) permits a claimant to file a district court action in the county where the violation occurred without exhausting his administrative remedies. Filing 8 ...

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