Bush v. Mapes Inc.

Filing 6

MEMORANDUM AND ORDER that the Plaintiffs will have 30 days in which to file an Amended Complaint that states a claim upon which relief can be granted. Failure to file an Amended Complaint in accordance with this Memorandum and Order will result in dismissal of this action without further notice. The clerk's office is directed to set a pro se case management deadline using the following text: October 12, 2016: check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHARLIE B. BUSH JR.,
Plaintiff,
v.
MAPES, INC.,
Defendant.

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4:16CV3136

MEMORANDUM
AND ORDER

Charlie B. Bush, Jr. (“Plaintiff”), filed his Complaint on August 17, 2016,
against his former employer, Mapes Inc. (“Defendant”). He was granted leave to
proceed in forma pauperis on August 22, 2016. 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, a black male, brings this action under Title VII of the Civil Rights Act
of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Nebraska Fair Employment
Practice Act (“NFEPA”), Neb. Rev. Stat. § 48-1101 et seq. Liberally construed, his
Complaint asserts claims for a hostile work environment based on race and sex,
disparate treatment based on race, and retaliation.
Plaintiff alleges Defendant’s other employees “compared me to monkeys,
shunned me, harassed me about my looks, failed to ever help me as they did others,
and treated me with disrespect at all times” (Filing No. 1, at CM/ECF p. 2). After
allegedly being told by one of Defendant’s owners, John Mapes, that he could take
aluminum and other things he found in the trash home with him, Plaintiff received a
one-day suspension from a supervisor, Rick Morton, who accused him of stealing.

Plaintiff alleges “non-black employees take things home and are not disciplined”
(Filing No. 1, at CM/ECF p. 2). Plaintiff claims the “worst harassers were Josh and
TJ,” who cut the electrical cord on his radio, and that when Plaintiff complained to
Morton and stated he was being racially harassed, Morton terminated him (Filing No.
1, at CM/ECF p. 2). Morton allegedly told Plaintiff he could have his job back if
Plaintiff “gave him a blowjob,” but then relented after Plaintiff threatened to file
charges with the NEOC (Filing No. 1, at CM/ECF p. 2). Plaintiff alleges he was also
sexually harassed by other employees, who “made remarks about my privates, and
asked for oral sex, and [came] up behind me and simulate[d] having sex with me.”
(Filing No. 1, at CM/ECF p. 3). Plaintiff says he “complained about this to Mapes and
Morton but no action was taken” (Filing No. 1, at CM/ECF p. 3). Finally, Plaintiff
alleges that despite satisfactory job performance, he was terminated on July 9, 2015,
when Morton accused him of “threatening someone but would not say who or
anything else about the matter” (Filing No. 1, at CM/ECF p. 3).
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 of it 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.” 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.”).

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“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds
for a claim, and a general indication of the type of litigation involved.’” Topchian v.
JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v.
Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must
be liberally construed, and pro se litigants are held to a lesser pleading standard than
other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations
omitted).
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
elements of each alleged cause of action help to determine whether Plaintiff has set
forth a plausible claim.”).
III. DISCUSSION OF CLAIMS
A. Exhaustion of Administrative Remedies
Attached to the Complaint is a “right to sue” letter that was issued by the
Nebraska Equal Opportunity Commission (“NEOC”) on May 31, 2016, but the
Charge of Discrimination Plaintiff filed with the NEOC is not attached. Without that
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document, it is impossible to determine whether Plaintiff’s claims in this court “grow
out of or [are] like or reasonably related to the substance of the allegations in the
administrative charge.” Dorsey v. Pinnacle Automation Co., 278 F.3d 830, 838 (8th
Cir. 2002) (internal quotation and citation omitted).
Such a determination is necessary because “[a]llowing a complaint to
encompass allegations outside the ambit of the predicate EEOC charge would
circumscribe the EEOC’s investigatory and conciliatory role, as well as deprive the
charged party of notice of the charge, as surely as would an initial failure to file a
timely EEOC charge.” Dorsey, 278 F.3d at 838 (internal quotation and citation
omitted). Therefore, “[t]he breadth of the civil suit is ... as broad as the scope of any
investigation that reasonably could have been expected to result from the initial charge
of discrimination.” Id. (internal quotation and citation omitted).
The court will allow Plaintiff to file an Amended Complaint, attaching the
Charge of Discrimination he filed with the NEOC, so the court can determine if
Plaintiff has exhausted his administrative remedies. Meanwhile, the court will briefly
analyze each of the claims alleged in this lawsuit.1
B. 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). This

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Because NFEPA is patterned after Title VII, see Father Flanagan's Boys'
Home v. Agnew, 590 N.W.2d 688, 693 (Neb. 1999), the court will not separately
analyze the state-law claims.
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demanding standard requires extreme conduct rather than merely rude or unpleasant
conduct. Rester v. Stephens Media, LLC, 739 F.3d 1127, 1131 (8th Cir. 2014).
“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.’”
Malone, 646 F.3d at 517 (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).
The facts alleged by Plaintiff are not sufficient to state a plausible race-based
hostile work environment claim. Even if co-workers made demeaning comments and
were unfriendly toward Plaintiff because of his race, it has not been shown that their
actions affected a term, condition, or privilege of Plaintiff’s employment. See Burkett
v. Glickman, 327 F.3d 658, 662 (8th Cir. 2003) (“Offhand comments and isolated
incidents of offensive conduct (unless extremely serious) do not constitute a hostile
work environment.”). Additional facts will need to be alleged in an Amended
Complaint to support this claim.
Regarding Plaintiff’s claim of sexual harassment, he must prove that the alleged
harassment was “based on sex.” Pedroza v. Cintas Corp. No. 2, 397 F.3d 1063, 1068
(8th Cir. 2005). The based-on-sex requirement forces a plaintiff to prove that he or she
was the target of harassment because of his or her sex, and that the offensive behavior
was not merely “non-actionable, vulgar behavior.” Id. “This distinction exists because
‘Title VII does not prohibit all verbal or physical harassment in the workplace’ and

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is not ‘a general civility code for the American workplace.’” Id. (quoting Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)).
In Oncale, the Supreme Court set forth a non-exhaustive list that included three
possible evidentiary routes same-sex harassment plaintiffs may follow to show that
harassment was based on sex:
First, a plaintiff can show that the conduct was motivated by sexual
desire. Second, a plaintiff can show that the harasser was motivated by
a general hostility to the presence of the same gender in the workplace.
And third, a plaintiff may offer direct comparative evidence about how
the harasser treated both males and females in a mixed-sex workplace.
Id. (quoting McCowan v. St. John’s Health Sys., Inc., 349 F.3d 540, 543 (8th Cir.
2003)).
Only the first method of proof would seem applicable in this case, but it cannot
be determined from the facts alleged that sexual desire motivated the alleged
misconduct by Plaintiff’s supervisor and co-workers. See id. at 1069-70 (citing samesex harassment cases which distinguish between “vulgar and boorish” behavior and
conduct involving homosexual desire). Again, additional facts will need to be alleged
by Plaintiff in an Amended Complaint for this claim to be heard.
C. Disparate Treatment
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). 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
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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 similarlysituated employees who are not in the protected class, or biased comments by a
decisionmaker.” Id. (internal quotations and citations omitted).
Plaintiff has alleged a plausible disparate treatment claim with respect to his
one-day suspension, as he asserts that non-black employees were not disciplined for
taking waste materials home with them. Concerning his termination, however, it is
merely alleged that Plaintiff was accused of threatening someone. Without additional
facts to suggest that Plaintiff was fired because of his race, this claim fails.
D. Retaliation
Title VII 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 establish a
prima facie case of retaliation under Title VII, an employee must show: “(1) he
engaged in protected conduct; (2) a reasonable employee would have found the
retaliatory action materially adverse; and (3) the materially adverse action was
causally linked to the protected conduct.” Gibson v. Geithner, 776 F.3d 536, 540 (8th
Cir. 2015).
While Plaintiff alleges he was terminated by Morton after complaining about
race-based harassment, the termination was retracted when Plaintiff threatened to file
a charge of discrimination with the NEOC. Thus, there was no materially adverse
action taken against Plaintiff. No does it appear from the facts alleged that Plaintiff’s
subsequent termination on July 9, 2015, in was in retaliation for him complaining
about either racial or sexual harassment.
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IV. CONCLUSION
Plaintiff has alleged a plausible disparate treatment claim with respect to his
one-day suspension, but before the action may proceed Plaintiff must file an Amended
Complaint to show that such claim was included in the Charge of Discrimination that
he filed with the NEOC. Other claims alleged in the Complaint are not plausible, but
if Plaintiff has additional facts to support such claims, they may also be set out in the
Amended Complaint.
Accordingly,
IT IS ORDERED:
1. Plaintiffs will have 30 days in which to file an Amended Complaint that
states a claim upon which relief can be granted.
2. Failure to file an Amended Complaint in accordance with this Memorandum
and Order will result in dismissal of this action without further notice.
3. The clerk’s office is directed to set a pro se case management deadline using
the following text: October 12, 2016: check for amended complaint.
DATED this 12th day of September, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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