Fiedler v. State of Nebraska Department of Roads et al

Filing 8

MEMORANDUM AND ORDER - Plaintiff's claims for monetary damages under the ADA, ADEA, and FMLA self-care provisions against the Nebraska Department of Roads, the Nebraska Association of Public Employees, and the Nebraska Equal Opportunity Commissi on are dismissed. Plaintiff's claims for monetary damages under the FMLA family-care provisions, and Plaintiff's claims for injunctive relief under the ADA and FMLA self-care provisions may proceed against the Nebraska Department of Roads, the Nebraska Association of Public Employees, and the Nebraska Equal Opportunity Commission. However, no summons will be issued until Plaintiff has an opportunity to amend his Complaint in accordance with this Memorandum and Order. Plaintiff shall ha ve until October 30, 2008 to amend his Complaint. No summons will be issued until after Plaintiff has had an opportunity to amend his Complaint in accordance with this Memorandum and Order. The Clerk of the court is directed to set a pro se case man agement deadline in this case using the following text: Check for amended complaint on October 30, 2008. Plaintiff shall keep the court informed of his current address at all times while this case is pending. Ordered by Chief Judge Joseph F. Bataillon. (Copy mailed to pro se party)(JAE, )

IN THE UNITED STATES DISTRICT COURT FO R THE DISTRICT OF NEBRASKA E U G E N E J. FIEDLER, Plaintiff, v. ST A T E OF NEBRASKA D E P A R T M E N T OF ROADS, et a l., D e fe n d a n t s . Plaintiff filed his Complaint in this matter on July 8, 2008. (Filing No. 6.) Plaintiff has previously been given leave to proceed in forma pauperis. (Filing N o . 7.) The court now conducts an initial review of the Complaint to determine w h eth er summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2). I. SU M M A R Y OF COMPLAINT ) ) ) ) ) ) ) ) ) ) 4 :0 8 C V 3 1 4 4

M EM ORANDUM AND ORDER

P la in tiff filed his Complaint on July 8, 2008, against the Nebraska D epartment of Roads ("NDOR"), the Nebraska Association of Public Employees, the Nebraska Equal Opportunity Commission (collectively, the "State A g en cies" ), and 22 individuals. (Filing No. 6 at CM/ECF pp. 1-2.) Plaintiff is a former NDOR employee who currently resides in Weston, Nebraska. (Id. at C M /E C F pp. 1, 33.) Condensed and summarized, Plaintiff sues Defendants under the A m erican s with Disabilities Act ("ADA"), the Age Discrimination in E m plo y m en t Act ("ADEA") and the Family and Medical Leave Act ("FMLA"). (Id . at CM/ECF pp. 3, 24-32.) Plaintiff alleges that Defendants dismissed him from his job because he took FMLA leave. (Id. at CM/ECF pp. 24-29.) Plaintiff

also alleges Defendants discriminated against him because he was over 40 years o f age, and because he has a disability. (Id. at CM/ECF pp. 29-32.) Plaintiff seek s $500,000,000.00 in compensatory and punitive damages, as well as lost w ag es and benefits, and attorneys fees. (Id. at CM/ECF p. 33.) Plaintiff also seek s injunctive relief in the form of a court order that reinstates Plaintiff's em p loy m en t at the NDOR. (Id.) II. A P P L IC A B L E LEGAL STANDARDS ON INITIAL REVIEW

T h e court is required to review in forma pauperis complaints to determine w h eth e r summary dismissal is appropriate. See 28 U.S.C. §§ 1915(e)(2). The c ou rt must dismiss a complaint or any portion thereof that states a frivolous or m a lic io u s 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). T h e re fo re , where a pro se plaintiff does not set forth enough factual a lle g a tio n s to "nudge[] their claims across the line from conceivable to plausible, th e ir complaint must be dismissed" for failing to state a claim upon which relief can be granted. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007) (o v erru lin g Conley v. Gibson, 355 U.S. 41 (1967), and setting new standard for fa ilu re to state a claim upon which relief may be granted). Regardless of whether a plaintiff is represented or is appearing pro se, the plaintiff's complaint must alleg e specific facts sufficient to state a claim. See Martin v. Sargent, 780 F.2d 1 3 3 4, 1337 (8th Cir. 1985). However, a pro se plaintiff's allegations must be co n stru ed liberally. Burke v. North Dakota Dep't of Corr. & Rehab., 294 F.3d 1 0 4 3, 1043-1044 (8th Cir. 2002) (citations omitted). III. D ISC U SSIO N OF CLAIMS A. C la im s for Monetary Relief 1. S o v e re ig n Immunity-State Agencies

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T h e Eleventh Amendment bars claims for damages by private parties a ga in st a state, state instrumentalities and an employee of a state sued in the em p loy ee's official capacity. See, e.g., Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 6 1 5 , 619 (8th Cir. 1995); Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 4 4 2 , 446-447 (8th Cir. 1995). Any award of retroactive monetary relief payable b y the state, including for back pay or damages, is proscribed by the Eleventh A m en d m en t absent a waiver of immunity by the state or an override of immunity b y Congress. See, e.g., Dover Elevator Co., 64 F.3d at 444; Nevels v. Hanlon, 6 5 6 F.2d 372, 77-378 (8th Cir. 1981). Sovereign immunity does not bar damages c la im s against state officials acting in their personal capacities, nor does it bar c la im s brought pursuant to 42 U.S.C. §1983 which seek equitable relief from sta te employee defendants acting in their official capacity. The Supreme Court has established that sovereign immunity bars suits for m on ey damages against a state and its agencies under ADA and the ADEA. Bd. O f Trustees of Univ. Of Alabama v. Garrett, 531 U.S. 356, 374 (2001); Kimel v. F lo rid a Bd. Of Regents, 528 U.S. 62, 91 (2000). Similarly, state agencies are p ro te cte d by sovereign immunity against claims brought under the FMLA se lf-c are provision. However, state agencies are not entitled to sovereign im m u n ity for claims arising under the FMLA family-care provision. Nevada D ep a rtm en t of Human Resources v. Hibbs, 538 U.S. 721, 741 (2003) (holding that the FMLA family-care provisions abrogated the states' Eleventh Amendment im m u n ity ) . H e re , Plaintiff asserts claims against three state agencies, and 22 in d iv id u als under the ADA, ADEA, FMLA self-care provisions, and FMLA fam ily-care provisions. (Filing No. 6 at CM/ECF pp. 1, 3, 24-32.) As set forth ab ov e, state agencies enjoy sovereign immunity for monetary damages claims a ris in g under the ADA, ADEA, and FMLA self-care provisions. Therefore, Plain tiff's monetary damages claims against the State Agencies under the ADA, A D E A , and FMLA self-care provisions must be dismissed. 2. So v ereign Immunity-Individual Defendants

W h ere a plaintiff does not specify the capacity in which a defendant is su ed , it is presumed that a defendant is sued in his official capacity only. See,
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e.g ., Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (sta tin g that "[t]his court has held that, in order to sue a public official in his or h er individual capacity, a plaintiff must expressly and unambiguously state so in the pleadings, otherwise, it will be assumed that the defendant is sued only in his o r her official capacity."). In addition, a claim against an individual, in her o ffic ia l capacity, is in reality a claim against the entity which employs the o fficial. See Parrish v. Luckie, 963 F.2d 201, 203 n.1 (8th Cir. 1992) ("Suits ag ainst persons in their official capacity are just another method of filing suit ag ainst the entity. . . . A plaintiff seeking damages in an official-capacity suit is seek ing a judgment against the entity. . . . Therefore, the appellants in this case w ill collectively be referred to as the City.") (quotations omitted). Accord Eagle v . Morgan, 88 F.3d 620, 629 n. 5 (8th Cir. 1996) ("`[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.'") (q u o tin g Kentucky v. Graham, 473 U.S. 159, 165 (1985). As such, damages claim s against individual state employees acting in their official capacities are also barred by the Eleventh Amendment, as set forth above. Murphy v. State of A r k ., 127 F.3d 750, 754 (8th Cir. 1997). Plaintiff here has failed to specify the capacity in which he sues the 22 ind ividu al Defendants and has failed to state whether the individual Defendants are state employees. (Id. at CM/ECF p. 2.) As set forth above, if the individual D e fen dan ts are state employees sued in their official capacities only, the claims ag ain st them for monetary damages must be dismissed. Therefore, on the court's o w n motion, Plaintiff shall have 30 days in which to amend his Complaint to c le arly state in which capacity he sues the individual Defendants. In addition, Plaintiff should specify whether the individual Defendants are state employees. A n y amended complaint shall restate the allegations of Plaintiff's current C o m p laint (filing no. 6) and any new allegations. Failure to consolidate all claim s into one document may result in the abandonment of claims. Further, if P la in tiff fails to amend his Complaint in accordance with this Memorandum and O rd e r, the court will presume that Defendants are sued in their official capacities o n ly and will dismiss the claims for monetary damages without further notice. B. C la im s for Injunctive Relief

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1.

Plain tiff's ADEA Claims

L ib era lly construed, Plaintiff's Complaint sets forth claims for injunctive re lie f under the ADEA. The ADEA prohibits employers from discriminating ag ainst employees on the basis of age. 29 U.S.C. § 623(a)(1). To establish a prim a facie claim of age discrimination, a plaintiff must show he (1) was at least forty years old; (2) was terminated; (3) was meeting the employer's reasonable e xp ec ta tio n s at the time of the termination; and (4) was replaced by someone su b sta n tially younger. Mayer v. Nextel West Corp., 318 F.3d 803, 807 (8th Cir. 2 0 0 3); see also Haas v. Kelly Servs., Inc., 409 F.3d 1030, 1035 (8th Cir. 2005). In addition, a plaintiff must show "intentional discrimination against the plaintiff o n account of the plaintiff's age." Rothmeier v. Investment Advisers, Inc., 85 F .3 d 1328, 1331 (8th Cir. 1996). A plaintiff can prove intentional discrimination b y either presenting direct evidence of discrimination based on age or by p rese n ting circumstantial evidence. Id. at 1332 (citations omitted). A lth o u g h Plaintiff alleges that he is 40 years of age, and that he was term inated , he does not allege that he was replaced by someone substantially y o u ng er, or that he was meeting the expectations of his employer at the time he w as terminated. (Filing No. 6 at CM/ECF p. 30.) In short, Plaintiff has not alleg ed a cognizable claim under the ADEA. However, on the court's own m otion , Plaintiff shall have 30 days in which to amend his Complaint to clearly s ta te an ADEA claim for injunctive relief upon which relief can be granted a ga in st Defendants. Again, any amended complaint shall restate the allegations o f Plaintiff's current Complaint (filing no. 6) and any new allegations. Failure to consolidate all claims into one document may result in the abandonment of c la im s. 2. Plain tiff's ADA Claims

P la in tiff's Complaint also sets forth claims for injunctive relief under the A D A . See 42 U.S.C. §§ 12101-12213. An employee who seeks relief under the A D A must establish that he is disabled within its meaning, that he is qualified to p erform the essential functions of his job with or without reasonable acco m m o d ation , and that he suffered an adverse employment action in
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c irc um sta nc es that give rise to an inference of unlawful discrimination based on d isa b ility. Dropinski v. Douglas County, Neb., 298 F.3d 704, 706-07 (8th C ir.2 0 0 2). The employee retains the burden of persuading the trier of fact that h e has been the victim of illegal discrimination due to his disability. Benson v. N o rth w e st Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995). A person is disabled within the meaning of the ADA only if that person d em o n stra tes that he has a physical or mental impairment which substantially lim its one or more of her major life activities, that he has a record of such an im p airm en t, or that he is regarded as having such an impairment. Amir v. St. Lo u is University, 184 F.3d 1017, 1027 (8th Cir. 1999). "Major life activities u n d er the ADA are basic activities that the average person can perform with little o r no difficulty, including `caring for oneself, performing manual tasks, walking, s ee in g , hearing, speaking, breathing, learning, and working.'" Battle v. United P a r c e l Serv., Inc., 438 F.3d 856, 861 (8th Cir. 2006) (quoting 29 C.F.R. § 1 6 3 0 .2 (i)). Here, Plaintiff alleges that he suffers from multiple medical conditions includ ing , asthma, fibromyalgia, and irritable bowel syndrome. (Filing No. 6 at C M /EC F pp. 8, 10.) Plaintiff also alleges, with accommodations, he is able to p erform the functions of his job and, while employed, he received satisfactory p erform an ce evaluations and a promotion. (Id. at CM/ECF pp. 4-5, 13.) Further, P la in tiff alleges he was dismissed from his job because he took FMLA leave, one o f the accommodations for his "serious health condition . . . ." (Id. at CM/ECF p p . 4, 24-29.) Liberally construed, Plaintiff has alleged sufficient facts to "nudge" his A D A claims across the line from conceivable to plausible. As a result, Plaintiff's A D A claims for injunctive relief against the State Agencies may proceed. H o w e v er, the court cautions Plaintiff that this is only a preliminary determination b ase d on the allegations of the Complaint and is not a determination of the merits o f Plaintiff's claims or potential defenses thereto. Because the court has elected to grant Plaintiff 30 days to amend his Complaint, summons will not be issued for Plaintiff's claims until after amendment of the Complaint as set forth in this M em o ran d u m and Order.

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3.

Plain tiff's FMLA Claims

In addition to his ADEA and ADA claims, Plaintiff alleges Defendants failed to comply with the FMLA. (Filing No. 6 at CM/ECF pp. 3, 24-29.) The F M L A prohibits employers from discriminating against employees for using FM L A leave. See Stallings v. Hussmann Corp., 447 F.3d 1041, 1051 (8th C ir.2 0 0 6). Under the FMLA, an eligible employee may take up to twelve weeks o f unpaid leave during a twelve-month period in order to "care for a [family m e m b er that] has a serious health condition" or for "a serious health condition that makes the employee unable to perform the functions of [their] position . . . ." 29 U.S.C. § 2612(1)(C); 29 U.S.C. § 2612(1)(D). An employee triggers his e m p lo y e r's duties under the act when he provides enough information to put that em p loy er on notice that he may be in need of FMLA leave. Browning v. Liberty M u t. Ins. Co., 178 F.3d 1043, 1049 (8th Cir.1999), cert. denied, 528 U.S. 1050 (1 9 9 9 ). As discussed above, Plaintiff alleges that he has a serious health condition that qualifies him for FMLA leave. (Filing No. 6 at CM/ECF p. 4.) Plaintiff also alleg es that he needed to take FMLA leave in order to care for his "aging parents [ w ith ] . . . serious health conditions." (Id. at CM/ECF p. 4.) Moreover, Plaintiff a lle ge s that he informed, or reminded, his employer of his need to take FMLA leav e several times. (Id. at CM/ECF pp. 4, 15-17.) Despite these reminders, Plaintiff alleges he was denied FMLA leave on numerous occasions. (Id. at C M /E C F pp. 23-24.) These allegations are sufficient to nudge Plaintiff's FMLA claim s across the line from conceivable to plausible. As a result, Plaintiff's c la im s for injunctive relief against the State Agencies under the FMLA familyca re provisions, and the FMLA self-care provisions (for injunctive relief only), m ay proceed. However, the court cautions Plaintiff that this is only a preliminary d eterm ination based on the allegations of the Complaint and is not a d ete rm in atio n of the merits of Plaintiff's claims or potential defenses thereto. A g ain, because the court has elected to grant Plaintiff 30 days to amend his C o m p la in t, summons will not be issued for these claims until after the am en d m en t of the Complaint.
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IT IS THEREFORE ORDERED that: 1. P la in tiff's claims for monetary damages under the ADA, ADEA, and F M L A self-care provisions against the Nebraska Department of Roads, the N eb rask a Association of Public Employees, and the Nebraska Equal Opportunity C o m m issio n are dismissed. 2. Plaintiff's claims for monetary damages under the FMLA family-care p ro v isio n s, and Plaintiff's claims for injunctive relief under the ADA and FMLA se lf-c are provisions may proceed against the Nebraska Department of Roads, the N eb rask a Association of Public Employees, and the Nebraska Equal Opportunity C o m m is sio n . However, no summons will be issued until Plaintiff has an o p p ortu n ity to amend his Complaint in accordance with this Memorandum and O rd e r. 3. Plaintiff shall have until October 30, 2008 to amend his Complaint to specify the capacity in which he sues the individual Defendants, and to allege w h ether the individual Defendants are state employees. If Plaintiff fails to file an amended complaint, Plaintiff's claims against the individual Defendants will b e dismissed without further notice for failure to state a claim upon which relief m a y be granted, and summons will be issued for Plaintiff's ADA and FMLA claim s only, in accordance with this Memorandum and Order. 4. Plaintiff shall have until October 30, 2008 to amend his Complaint to clearly state an ADEA claim for injunctive relief upon which relief may be g ran ted against Defendants. If Plaintiff fails to file an amended complaint, Plaintiff's ADEA claims will be dismissed without further notice for failure to sta te a claim upon which relief may be granted, and summons will be issued for P la in tiff's ADA and FMLA claims only, in accordance with this Memorandum an d Order.

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5. In the event that Plaintiff files an amended complaint, Plaintiff shall resta te the allegations of the current Complaint (filing no. 6), and any new a lle ga tio n s. Failure to consolidate all claims into one document may result in the ab an d o n m en t of claims. 6. N o summons will be issued until after Plaintiff has had an o p p ortu n ity to amend his Complaint in accordance with this Memorandum and O rd er. 7. T h e Clerk of the court is directed to set a pro se case management d ea dlin e in this case using the following text: Check for amended complaint on O c to be r 30, 2008. 8. Plaintiff shall keep the court informed of his current address at all tim e s while this case is pending. Failure to do so may result in dismissal w itho ut further notice. September 30, 2008. B Y THE COURT:

s/ Joseph F. Bataillon Chief United States District Judge

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