Bush v. Donner Steel Works

Filing 7

MEMORANDUM AND ORDER that Plaintiff's hostile work environment, disparate treatment, and retaliation claims may proceed and service of process 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 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 a nd send the completed forms back to the Clerk of the court. 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 Cler k of the court is directed to set a case management deadline with the following text: "April 6, 2015: Check for completion of service of summons." Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party with forms as directed) (ADB)

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

)
)
)
)
)
)
)
)
)

4:14CV3179

MEMORANDUM
AND ORDER

Plaintiff Charlie Bush, Jr. (“Plaintiff”) filed his Complaint in this matter on
August 29, 2014. (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 Donner Steel Works. Liberally construed,
Plaintiff, a black male, brings this action under Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. § 2000e, against his former employer for hostile work
environment based on race, constructive discharge, disparate treatment, and retaliation.
Plaintiff attached the charge of discrimination he filed with the Nebraska Equal
Opportunity Commission (“NEOC”) to his Complaint. (Filing No. 1 at CM/ECF p. 5.)
In assessing Plaintiff’s Complaint, the court will consider the allegations raised in
Plaintiff’s NEOC charge of discrimination, as well as those raised in the Complaint.
See Coleman v. Correct Care Solutions, 559 Fed. App’x. 601, 602 (8th Cir. 2014).
Plaintiff alleged he worked for Donner Steel Works in 2013. His supervisor,
Mark, a white male, swore at him every work day. (Filing No. 1 at CM/ECF p. 1.)
Mark’s instructions to Plaintiff were “always full of curse words,” but Mark gave

instructions to “non-black workers without swearing at them.” (Id. at CM/ECF p. 5.)
In addition, Mark scrutinized Plaintiff’s work “more than other non-black workers.”
(Id.) Plaintiff witnessed Mark treat other black workers similarly. After one of
Plaintiff’s black coworkers quit, Mark began harassing Plaintiff more frequently. (Id.)
On one occasion, Mark called one of Plaintiff’s coworkers the “N-Word” and was “sent
home 3 days for it.” (Id. at CM/ECF p. 1.)
Plaintiff alleged he reported Mark’s harassment to Aaron, a white supervisor.
(Id. at CM/ECF p. 5.) Aaron responded by asking Plaintiff to go “outside and cut
down bushes on trees for the rest of the afternoon [while] Mark was allowed to stay
inside where it was cool.” (Id.) The same month, Plaintiff was denied a raise because
he had argued with Mark. (Id.) Mark, however, received a raise. (Id. at CM/ECF p.
1.) Aaron informed Plaintiff that he would get a raise in 30 days if he did not get into
another argument with Mark. (Id. at CM/ECF p. 5.) Plaintiff alleged he “felt
compelled to quit [his] job” due to Mark’s harassment and due to the denial of his
raise. (Id.)
For relief, Plaintiff seeks $15,000.00 and also back pay from Donner Steel
Works. (Id. at CM/ECF p. 2.) 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-tosue notice from the United States Equal Employment Opportunity Commission. See
42 U.S.C. § 2000e-5(f)(1) (a charging party has 90 days from the receipt of the right-tosue notice to file a civil complaint based on a charge of discrimination).
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
2

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
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

A plaintiff need not plead facts sufficient to establish a prima facie case of
employment discrimination in his complaint. See Swierkiewicz v. Sorema N.A., 534
U.S. 506, 511-512 (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 Twombly, 550 U.S. at 570. 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, 1191 (10th Cir. 2012) (“While the 12(b)(6) standard
does not require that Plaintiff establish a prima facie case in her complaint, the

3

elements of each alleged cause of action help to determine whether Plaintiff has set
forth a plausible claim.”).
A.

Hostile Work Environment

To prove a claim for hostile work environment based on race, Plaintiff must
establish that “(1) he is a member of a protected group; (2) he was subject to
unwelcome race-based harassment; (3) the harassment was because of membership in
the protected group; and (4) the harassment affected a term, condition, or privilege of
employment.” Malone v. Ameren UE, 646 F.3d 512, 517 (8th Cir. 2011).
“Conduct of others in a workplace ‘affects a term, condition, or privilege of
employment’ under Title VII only if it is ‘sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.’”
Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). The court considers
the conduct “as it would be viewed objectively by a reasonable person and as it was
actually viewed subjectively by the victim.” Id. (quoting Singletary v. Missouri Dep’t
of Corr., 423 F.3d 886, 892 (8th Cir. 2005)). “All of the circumstances are relevant,
including ‘the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.’” Id. (quoting Harris,
510 U.S. at 23).
Here, Plaintiff raised a plausible hostile work environment claim. He alleged in
his Complaint and charge of discrimination that Mark, his white male supervisor,
swore at him every work day. (Filing No. 1 at CM/ECF p. 1.) Mark’s instructions to
Plaintiff were “always full of curse words,” but Mark gave instructions to “non-black
workers without swearing at them.” (Id. at CM/ECF p. 5.) In addition, Mark
scrutinized Plaintiff’s work “more than other non-black workers.” (Id.) Plaintiff
witnessed Mark treat other black workers similarly. After one of Plaintiff’s black
coworkers quit, Mark began harassing Plaintiff more frequently. (Id.) On one
4

occasion, Mark called one of Plaintiff’s coworkers the “N-Word” and was “sent home
3 days for it.” (Id. at CM/ECF p. 1.)
Plaintiff alleged he reported Mark’s harassment to Aaron, a white supervisor.
(Id. at CM/ECF p. 5.) Aaron responded by forcing Plaintiff to “go outside and cut
down bushes on trees for the rest of the afternoon [while] Mark was allowed to stay
inside where it was cool.” (Id.) The same month, Plaintiff was denied a raise because
he had argued with Mark. (Id.) Mark, however, received a raise. (Id. at CM/ECF p.
1.) Plaintiff alleged he “felt compelled to quit [his] job” due to Mark’s harassment.
(Id. at CM/ECF p. 5.)
In light of the liberal pleading standard afforded to pro se litigants, the court
finds that Plaintiff has stated a plausible hostile work environment claim and the claim
may proceed to service of process. The court cautions Plaintiff that this is only a
preliminary determination based solely on the allegations in the Complaint and charge
of discrimination. This is not a determination of the merits of Plaintiff’s claims or
potential defenses thereto.
B.

Constructive Discharge

“To establish a case of constructive discharge, [a plaintiff] must show that ‘(1)
a reasonable person in [his] situation would find [his] working conditions intolerable,
and (2) the employer intended to force [him] to quit.’” Rester v. Stephens Media, LLC,
739 F.3d 1127, 1132 (8th Cir. 2014) (quoting Wilkie v. Dep’t of Health & Human
Servs., 638 F.3d 944, 954 (8th Cir. 2011)).
Plaintiff does not allege any facts suggesting his employer intended to force him
to quit. Thus, the claim will be dismissed without prejudice to reassertion in an
amended complaint.

5

C.

Disparate Treatment and Retaliation

Under Title VII, 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). Title VII also prohibits retaliation against an employee “because he has
opposed any practice made an unlawful employment practice by [Title VII], or because
he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a).
To state a prima facie claim of race discrimination Plaintiff must allege facts
showing that (1) he is a member of a protected class; (2) he met his employer’s
legitimate expectations; (3) he suffered an adverse employment action; and (4) the
circumstances give rise to an inference of discrimination. Pye v. Nu Aire, Inc., 641
F.3d 1011, 1019 (8th Cir. 2011). “The required prima facie showing is a flexible
evidentiary standard, and a plaintiff can satisfy the fourth part of the prima facie case
in a variety of ways, such as by showing more-favorable treatment of similarly-situated
employees who are not in the protected class, or biased comments by a decisionmaker.”
Id. (internal quotations and citations omitted).
The Eighth Circuit Court of Appeals “has two lines of cases on the standard to
determine whether employees are ‘similarly situated’ at the prima facie stage of the
McDonnell Douglas test.” Id. (quoting Wimbley v. Cashion, 588 F.3d 959, 962 (8th
Cir. 2009)). “One line sets a ‘low threshold,’ requiring only that the employees are
‘involved in or accused of the same or similar conduct and are disciplined in different
ways. The other line more rigorously requires that the employees be ‘similarly situated
in all respects.’” Id.

6

Here, Plaintiff has alleged a plausible disparate treatment claim. He alleged his
job performance was satisfactory, yet Aaron denied him a raise because he had
“argued” with Mark. Mark, who is not in Plaintiff’s protected class, was given a raise
even though he engaged in the same or similar conduct as Plaintiff (i.e., arguing). This
denial of a raise occurred shortly after Plaintiff complained to Aaron that Mark was
harassing him. Accordingly, the court finds Plaintiff’s disparate treatment and
retaliation claims may proceed to service of process. However, the court cautions
Plaintiff that this is only a preliminary determination based solely on the allegations in
the Complaint and charge of discrimination. This is not a determination of the merits
of Plaintiff’s claims or potential defenses thereto.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s hostile work environment, disparate treatment, and retaliation
claims may proceed and service of process is now warranted.
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.

7

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: “April 6, 2015: Check for completion of service of summons.”
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 9th day of December, 2014.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District
Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third
parties or the services or products they provide on their Web sites. Likewise, the court has no
agreements with any of these third parties or their Web sites. The court accepts no responsibility for
the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
8