Wang v. Nebraska Public Power District

Filing 6

MEMORANDUM AND ORDER - Plaintiff's Title VII claims against Defendant may proceed and service is now warranted. To obtain service of process on Defendant, Plaintiff must complete and return the summons form that the Clerk of the court will pro vide. The Clerk of the court shall send ONE summons form and ONE USM-285 form to Plaintiff together with a copy of this Memorandum and Order. Plaintiff shall, as soon as possible, complete the forms and send the completed forms back to the Clerk of the court. In the absence of the forms, service of process cannot occur. The Clerk of the court is directed to set a case management deadline with the following text: March 6, 2014: Check for completion of service of summons. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party with summons and form)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NIT WANG,
Plaintiff,
v.
NEBRASKA PUBLIC POWER
DISTRICT,
Defendant.

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4:13CV3161

MEMORANDUM
AND ORDER

Plaintiff Nit Wang (“Plaintiff”) filed his Complaint in this matter on September
6, 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 the Nebraska Public Power District
(“NPPD”). (Filing No. 1 at CM/ECF p. 1.) Rather than setting forth any allegations
in the body of the Complaint, Plaintiff refers the court to his Charge of Discrimination
filed with the Nebraska Equal Employment Opportunity Commission on January 25,
2013. (Id. at CM/ECF pp. 2-3.)
Plaintiff alleges in his Charge of Discrimination that he is “Black from Sudan.”
(Id. at CM/ECF p. 9.) He was employed by the NPPD from May 17, 2004, until his
resignation on September 14, 2012. (Id. at CM/ECF pp. 9-10.) Condensed and
summarized, Plaintiff alleges that NPPD failed to promote him because of his race
and national origin. Specifically, on June 5, 2012, Plaintiff applied for the position
of System Control Supervisor. He was informed by a manager that he did not receive
the position because “someone with better qualifications had been hired.” (Id. at

CM/ECF p. 9.) Plaintiff alleges that this given reason was false, as the person hired
had less experience and education than Plaintiff. (Id.) Plaintiff alleges that the actual
reason Plaintiff did not receive the promotion is because of his race and national
origin. (See generally id. at CM/ECF pp. 9-10.)
Plaintiff also alleges that he was harassed by employees. After he complained
about this harassment, a manager informed him that “he could not be hired for any
other positions because [he] had complained.” (Id. at CM/ECF p. 10.) Plaintiff
alleges that NPPD refused to investigate Plaintiff’s complaints about harassment and
“the lack of promotion.” (Id.) Plaintiff alleges that during his time at NPPD, he
applied for 18 positions and was never hired for any of them. (Id.)
As relief, Plaintiff seeks unspecified monetary damages to compensate him for
loss of employment, distress, and humiliation. (Id. at CM/ECF p. 5.)
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, 679 (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
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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

Plaintiff’s claims are brought pursuant to Title VII of the Civil Rights Act.
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. § 2000e2(a)(1). The right-to-sue notice attached to Plaintiff’s Complaint reflects that Plaintiff
filed suit in this court within 90 days of his receipt of the right-to-sue notice from the
United States Equal Employment Opportunity Commission. (See Filing No. 1 at
CM/ECF p. 7.) See 42 U.S.C. § 2000e-5(f)(1) (a charging party has 90 days from the
receipt of the right-to-sue notice to file a civil complaint based on a charge of
discrimination).
As set forth above, Plaintiff alleges that he is a black male from Sudan. (Filing
No. 1 at CM/ECF p. 9.) He alleges that he did not receive a promotion that he applied
for, and he was told it was because someone “with better qualifications” had been
hired instead. (Id.) Plaintiff alleges that this stated reason was not credible where the
person hired was much less qualified, and the actual reason he did not receive the
promotion is because he is black and from Sudan. (Id.) Based on these allegations,
the court finds that, liberally construed, Plaintiff has stated a Title VII claim against
Defendant upon which relief may be granted, and that service on Defendant is now
warranted. See Wright v. First Student, Inc., 710 F.3d 782, 784 (8th Cir. 2013)
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(holding that, in light of the liberal construction afforded pro se complaints, employee
stated an employment-discrimination claim where he alleged that employer gave a
non-credible reason for firing him and the real reason was because he is African
American, disabled, and over age 55).
Liberally construed, Plaintiff also alleges a retaliation claim under Title VII.
To establish a prima facie case of retaliation under Title VII, an employee must show
that he engaged in protected activity, he suffered a materially adverse employment
action that would deter a reasonable employee from making a charge of employment
discrimination, and there is a causal connection between the protected activity and the
adverse action.” Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 801-02
(8th Cir. 2011) (internal quotation marks and citation omitted).
Here, Plaintiff alleges he engaged in protected conduct when he complained
to managers that he was being harassed by coworkers. Following his complaint, a
manager informed him that he “could not be hired for any other positions because
[he] had complained.” (Filing No. 1 at CM/ECF p. 10.) Throughout his employment,
Plaintiff “applied for at least 18 positions,” but was never hired. (Id.)
Liberally construed, Plaintiff has alleged sufficient facts to nudge his Title VII
retaliation claim across the line from conceivable to plausible, and that service on
Defendant is now warranted. Although the court finds that Plaintiff’s claims may
proceed against Defendant, the court cautions Plaintiff that this is only a preliminary
determination based on the allegations of the Complaint, and is not a determination
of the merits of Plaintiff’s claims or potential defenses thereto.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s Title VII claims against Defendant may proceed and service
is now warranted.
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2.
To obtain service of process on Defendant, Plaintiff must complete and
return the summons form that the Clerk of the court will provide. The Clerk of the
court shall send ONE summons form and ONE USM-285 form to Plaintiff together
with a copy of this Memorandum and Order. Plaintiff shall, as soon as possible,
complete the forms and send the completed forms back to the Clerk of the court. In
the absence of the forms, service of process cannot occur.
3.
Upon receipt of the completed forms, the Clerk of the court will sign the
summons forms, to be forwarded with a copy of the Complaint, to the U.S. Marshal
for service of process. The Marshal shall serve the summons and Complaint without
payment of costs or fees. Service may be by certified mail pursuant to Fed. R. Civ.
P. 4 and Nebraska law in the discretion of the Marshal. The Clerk of the court will
copy the Complaint, and Plaintiff does not need to do so.
4.
Fed. R. Civ. Pro. 4 requires service of a complaint on a defendant within
120 days of filing the complaint. However, because in this order Plaintiff is informed
for the first time of these requirements, Plaintiff is granted, on the court’s own
motion, an extension of time until 120 days from the date of this order to complete
service of process.
5.
Plaintiff is hereby notified that failure to obtain service of process on a
defendant within 120 days of the date of this order may result in dismissal of this
matter without further notice as to such defendant. A defendant has 21 days after
receipt of the summons to answer or otherwise respond to a complaint.
6.
The Clerk of the court is directed to set a case management deadline with
the following text: “March 6, 2014: Check for completion of service of summons.”

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7.
The parties are bound by the Federal Rules of Civil Procedure and by the
Local Rules of this court. 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 of this matter without further notice.
DATED this 7th day of November, 2013.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

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of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
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court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases
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