Beall v. Korn and More Inc

Filing 6

MEMORANDUM AND ORDER - IT IS ORDERED: Plaintiff shall have until May 31, 2013, to (1) amend his complaint to sufficiently allege a prima facie case of discrimination under the ADA, and (2) file a copy of his EEOC charge and right-to-sue notice with the Court. If plaintiff fails to file an amended complaint or copies of his EEOC charge and right-to-sue notice, plaintiff's claims against defendant will be dismissed without further notice for failure to state a claim upon which relief may be granted. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: Check for amended complaint on June 3, 2013. Plaintiff shall keep the Court informed of his current address at all times while this case is pending. Failure to do so may result in dismissal without further notice. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JUSTSIN D. BEALL,
Plaintiff,
v.
KORN AND MORE, INC.,
Defendant.

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4:13CV3002

MEMORANDUM AND ORDER

Plaintiff filed his complaint in this matter on January
7, 2013 (Filing No. 1).

Plaintiff has been given leave to

proceed in forma pauperis (Filing No. 5).

The Court now conducts

an initial review of plaintiff’s claims to determine whether
summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I.

SUMMARY OF COMPLAINT
Plaintiff filed his complaint against Korn and More,

Inc., his former employer (Filing No. 1 at CM/ECF p. 2).
Plaintiff’s allegations are vague.

He alleges only that, when he

was hired at Korn and More, Inc., he informed his employer that
he would need to miss work on occasion because of “court dates.”
In December 2012, after returning to work from one of his court
appearances, his employment was terminated.
2.)

(Id. at CM/ECF p.

Plaintiff does not allege what reason was given for his

termination, but states that he believes it was because of his
disability.

(Id. at CM/ECF p. 3 (“In my interview I explained my

court dates and my disability and now I have been discriminated

because of it.”).)

Plaintiff does not identify his disability or

explain why he believes he was terminated because of it.
II.

APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The Court is required to review in forma pauperis

complaints to determine whether summary dismissal is appropriate.
See 28 U.S.C. § 1915(e)(2).

The Court must dismiss a complaint

or any portion thereof 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).

Pro se plaintiffs must set forth enough factual
allegations to “nudge[] their claims across the line from
conceivable to plausible,” or “their complaint must be dismissed”
for failing to state a claim upon which relief can be granted.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see
also 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.”).

Regardless of

whether a plaintiff is represented or is appearing pro se, the
plaintiff’s complaint must allege specific facts sufficient to
state a claim.
Cir. 1985).

See Martin v. Sargent, 780 F.2d 1334, 1337 (8th

However, a pro se plaintiff’s allegations must be

construed liberally.

Burke v. North Dakota Dep’t of Corr. &
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Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations
omitted).
III. DISCUSSION OF CLAIMS
Liberally construed, plaintiff’s complaint alleges
claims under the Americans with Disabilities Act.

As set forth

in the ADA:
No covered entity shall
discriminate against a qualified
individual on the basis of
disability in regard to job
application procedures, the hiring,
advancement, or discharge of
employees, employee compensation,
job training, and other terms,
conditions, and privileges of
employment.
42 U.S.C. § 12112(a).
must establish that:

An employee seeking relief under the ADA
“he was a disabled person within the

meaning of the ADA, that he was qualified to perform the
essential functions of the job, and that he suffered an adverse
employment action under circumstances giving rise to an
inference of unlawful discrimination.”

Kozisek v. Cnty. of

Seward, Neb., 539 F.3d 930, 934 (8th Cir. 2008).

Further, a

person is disabled within the meaning of the ADA only if he
demonstrates that he has a physical or mental impairment that
substantially limits one or more of his major life activities,
that he has a record of such an impairment, or that he is
regarded as having such an impairment.
184 F.3d 1017, 1027 (8th Cir. 1999).
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Amir v. St. Louis Univ.,
“Major life activities

under the ADA are basic activities that the average person can
perform with little or no difficulty, including ‘caring for
oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working.’”

Battle v. United

Parcel Serv., Inc., 438 F.3d 856, 861 (8th Cir. 2006) (quoting
29 C.F.R. § 1630.2(i)).
Prior to filing suit in federal court, a plaintiff is
required to exhaust his administrative remedies by first seeking
relief through the EEOC or the NEOC.

The EEOC/NEOC will then

investigate the charge and determine whether to file suit on
behalf of the charging party or make a determination of no
reasonable cause.

If the EEOC/NEOC determines that there is no

reasonable cause, the agency will then issue the charging party
a right-to-sue notice.

42 U.S.C. § 2000e-5(b); 42 U.S.C.

§ 12117(a) (§ 2000e-5 applies to ADA claims).
Here, plaintiff has not sufficiently alleged that he
is a disabled person within the meaning of the ADA.

Plaintiff

states that he is “disabled,” but he does not allege that he
suffers from an impairment that substantially limits one or more
of his major life activities, that he has a record of such an
impairment, or that he is regarded as having such an impairment.
In addition, plaintiff has not alleged that he was qualified to
perform the essential functions of his job.

Finally, plaintiff

has not filed a copy of his EEOC charge or his right-to-sue

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notice.

Thus, the Court cannot determine whether plaintiff’s

claim is timely.

However, the Court will permit plaintiff to

(1) amend his complaint to sufficiently allege a prima facie
case of discrimination under the ADA, and (2) file a copy of his
EEOC charge and right-to-sue notice with the Court.
IT IS ORDERED:
1.

Plaintiff shall have until May 31, 2013, to (1)

amend his complaint to sufficiently allege a prima facie case of
discrimination under the ADA, and (2) file a copy of his EEOC
charge and right-to-sue notice with the Court.

If plaintiff

fails to file an amended complaint or copies of his EEOC charge
and right-to-sue notice, plaintiff’s claims against defendant
will be dismissed without further notice for failure to state a
claim upon which relief may be granted.
2.

The clerk of the court is directed to set a pro

se case management deadline in this case using the following
text:

Check for amended complaint on June 3, 2013.

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3.

Plaintiff shall keep the Court informed of his

current address at all times while this case is pending.
Failure to do so may result in dismissal without further notice.
DATED this 2nd day of May, 2013.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

* This opinion may contain hyperlinks to other documents or Web sites.
The U.S. District Court for the District of Nebraska does not endorse,
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