United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
who is proceeding in forma pauperis, has filed an Amended
Complaint (Filing 8) in response to this court's
Memorandum and Order (Filing 6) after initial review of
Plaintiff's claims under 28 U.S.C. § 1915(e)(2). The
court's Memorandum and Order directed that Plaintiff
allege facts describing the nature of what she characterized
as a claim under the Age Discrimination in Employment Act of
1967 (“ADEA”), 29 U.S.C. §§ 621-634
alleges that she is a 53-year-old Native American woman who
was the oldest employee, and the only woman, in her warehouse
position at CJ Foods Inc. She alleges that despite having
seniority and performing a two-person job by herself, she
earned less than other co-workers who had less seniority.
Plaintiff claims she earned $11.97 per hour, while one
employee she trained made $12.60 hourly. Attached to
Plaintiff's Complaint are purported statements from
co-workers who claim Plaintiff was the only female in her
work area, Plaintiff performed a fast-paced two-person job by
herself, and Plaintiff earned less pay than anyone else. One
presumably male co-worker alleges that he received a $14.00
hourly starting wage, while Plaintiff was only making
“[$]11.50 or so” after 4 1/2 years of service.
(Filing 8 at CM/ECF p. 10.) Plaintiff claims that her work
situation resulted in anxiety, for which she now takes
states that she was transferred to the night shift after
working days for four years, and that she received numerous
disciplinary “write-ups” for job-performance
issues on the night shift, which she had never before
received. (Filing 8 at CM/ECF p. 5.) Plaintiff does not
allege why or when she was transferred to the night shift.
also alleges that she filed complaints with the Nebraska
Equal Opportunity Commission and the Equal Employment
Opportunity Commission, and these agencies spent a year
investigating the matter. It is not clear if, or when, this
investigation was completed and whether Plaintiff's
lawsuit in this court was timely filed. See 42
U.S.C. § 2000e-5(f)(1) (charging party has 90 days from
receipt of right-to-sue notice to file civil complaint based
on charge of discrimination). In this court, Plaintiff seeks
monetary damages “for doing a 2 person job & for
equal pay as well as age discrimination.” (Filing 8 at
CM/ECF p. 3.)
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). “A pro se complaint must be liberally
construed, and pro se litigants are held to a lesser pleading
standard than other parties.” Topchian v. JPMorgan
Chase Bank, N.A., 760 F.3d 843, 849 (8th Cir. 2014)
(internal quotation marks and citations omitted).
construed, Plaintiff here seeks to assert claims for age and
sex discrimination and retaliation. 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 by Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). However, the elements
of a prima facie case are relevant to a plausibility
determination. See Rodriguez-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) (“While the 12(b)(6) standard
does not require that Plaintiff establish a prima facie case
in her complaint, the elements of each alleged cause of
action help to determine whether Plaintiff has set forth a
Equal Pay Acts
first appears to be asserting a claim under the federal Equal
Pay Act, 29 U.S.C. § 206(d) (“EPA”), and the
Nebraska Equal Pay Act, Neb. Rev. Stat. § 48-1221
(“NEPA”). Courts analyze NEPA claims under the
same standards as federal EPA claims. See Hunt v. Neb.
Pub. Power Dist., 282 F.3d 1021, 1027 (8th Cir. 2002).
EPA, with certain exceptions, prohibits employers from
discriminating against employees on the basis of sex with
respect to wages paid for equal work performed under similar
working conditions. The EPA, which is part of the Fair Labor
Standards Act, 29 U.S.C. §§ 201-219, provides:
No employer having employees subject to [the minimum wage
provisions of the Fair Labor Standards Act] shall
discriminate, within any establishment in which such
employees are employed, between employees on the basis of sex
by paying wages to employees in such establishment at a rate
less than the rate at which he pays wages to employees of the
opposite sex in such establishment for equal work on jobs the
performance of which requires equal skill, effort, and
responsibility, and which are performed under similar working
conditions, except where such payment is made pursuant to (i)
a seniority system; (ii) a merit system; (iii) a system which
measures earnings by quantity or quality of production; or
(iv) a differential based on any other factor other than sex
. . . .
29 U.S.C. § 206(d)(1).
To establish a claim of sex-based wage discrimination under
the Equal Pay Act or [NEPA] a plaintiff must show by a
preponderance of the evidence that (1) she was paid less than
a male employed in the same establishment, (2) for equal work
on jobs requiring equal skill, effort, and responsibility,
(3) which were performed under similar working conditions.
Heisler v. Nationwide Mut. Ins. Co., No. 18-1588, __
F.3d __, 2019 WL 3417277, at *5 (8th Cir. July 30, 2019)
(internal quotation marks ...