United States District Court, D. Nebraska
EDWARD K. MILLS, Plaintiff,
MEMORANDUM AND ORDER
M. Gerrard, Chief United States District Judge.
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.
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.
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.
STANDARD OF REVIEW
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.
Motions to Dismiss
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.
State Law Claims
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).
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. 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).
so, Mills contends that his NFEPA claim survives Hastings
Utilities' motion to dismiss. This is true, Mills argues,
because Neb. Rev. Stat. § 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 ...