Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Peniska v. CJ Foods Inc.

United States District Court, D. Nebraska

August 19, 2019

KRISTEN LYNN PENISKA, Plaintiff,
v.
CJ FOODS INC., Defendant.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         Plaintiff, 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 (Westlaw 2019).

         I. FACTUAL ALLEGATIONS

         Plaintiff 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 prescription medication.

         Plaintiff 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.

         Plaintiff 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.)

         II. DISCUSSION

         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). “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).

         Liberally 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 plausible claim.”).

         A. Equal Pay Acts

         Plaintiff 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).

         The 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.