Bush v. Donner Steel Works

Filing 7

MEMORANDUM AND ORDER that Plaintiff shall have until November 18, 2013, to amend his complaint and clearly state a claim upon which relief may be granted against Defendant in accordance with this Memorandum and Order. The Clerk is directed to set a Pro Se Case Management Deadline for 11/18/2013: Check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHARLIE B. BUSH JR.,
Plaintiff,
v.
DONNER STEEL WORKS,
Defendant.

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4:13CV3148

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on August 15, 2013. (Filing No. 1.)
Plaintiff has previously been given leave to proceed in forma pauperis. (Filing No.
5.) The court now conducts an initial review of the Complaint to determine whether
summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I.

SUMMARY OF COMPLAINT

Plaintiff filed his Complaint in this matter against his former employer, Donner
Steel Works. (Filing No. 1 at CM/ECF p. 1.) Plaintiff is an African-American who
currently resides in Lincoln, Nebraska. (Id. at CM/ECF p. 5; Docket Sheet.)
Condensed and Summarized, Plaintiff alleges he was forced to quit his job
because his supervisor made him “cut trees and bushes in the hot sun,” talked to him
“in a disrespectful way,” and failed to give him a raise. (Filing No. 1 at CM/ECF p.
5.) Plaintiff believes he was harassed and discriminated against because he is “black.”
(Id.) Plaintiff seeks monetary damages. (Id.)
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). 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).
A pro se plaintiff 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, 129 S. Ct.
1937, 1950 (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. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). However,
a pro se plaintiff’s allegations must be construed liberally. Burke v. North Dakota
Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations omitted).
III.

DISCUSSION OF CLAIMS

Liberally construed, Plaintiff’s claims are brought pursuant to Title VII of the
Civil Rights Act (“Title VII”). Title VII states that it is unlawful for an employer “to
fail or refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1).
In order to set forth a prima facie case of discrimination under Title VII,
Plaintiff must establish that he: (1) is a member of a protected class, (2) met his
employer’s legitimate expectations, (3) suffered an adverse employment action, and
(4) the circumstances give rise to an inference of discrimination. Gibson v. Am.
Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012). Additionally, prior to filing a suit
in federal court under Title VII, a plaintiff is required to exhaust his administrative
remedies by first seeking relief through the EEOC or the NEOC. The EEOC/NEOC
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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(f)(1); see also Hanenburg v.
Principal Mut. Life Ins. Co., 118 F.3d 570 (8th Cir. 1997). The charging party has 90
days from the receipt of the right-to-sue notice to file a civil complaint based on his
charge. 42 U.S.C. § 2000e-5(f)(1).
Here, Plaintiff alleges that he is a member of a protected class and that he
suffered an adverse employment action when he was forced to quit because of
harassment. (Filing No. 1 at CM/ECF pp. 1-2.) However, Plaintiff does not allege
that he was meeting the legitimate expectations of his employer nor does he describe
circumstances which give rise to an inference of discrimination. Further, Plaintiff has
not filed a copy of his EEOC charge or his right-to-sue notice. Thus, the court cannot
determine whether Plaintiff’s claim is timely.
However, on its own motion, the court will provide Plaintiff with the
opportunity to (1) amend his Complaint to sufficiently allege a Title VII claim against
Defendant, and (2) file a copy of his EEOC charge and right-to-sue notice with the
court. Any amended complaint shall restate the allegations of Plaintiff’s current
Complaint (filing no. 1), and any new allegations. Failure to consolidate all claims
into one document will result in the abandonment of claims. If Plaintiff fails to file
an amended complaint in accordance with this Memorandum and Order, Plaintiff’s
Complaint will be dismissed without prejudice without further notice.
IT IS THEREFORE ORDERED that:
1.
Plaintiff shall have until November 18, 2013, to amend his Complaint
and clearly state a claim upon which relief may be granted against Defendant in
accordance with this Memorandum and Order. If Plaintiff fails to file an amended
complaint, Plaintiff’s claims against Defendant will be dismissed without further
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notice for failure to state a claim upon which relief may be granted and for failure to
follow this court’s orders.
2.
In the event that Plaintiff files an amended complaint, Plaintiff shall
restate the allegations of the current Complaint (filing no. 1) and any new allegations.
Failure to consolidate all claims into one document may result in the abandonment of
claims.
3.
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
November 18, 2013.
4.
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 16th day of October, 2013.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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