Collum v. PayPal. INC

Filing 16

MEMORANDUM AND ORDER granting the Defendant's 10 Motion to Dismiss; This matter is dismissed without prejudice to reassertion after Plaintiff exhausts his administrative remedies. Plaintiff's 12 Motion to Continue, construed as a respo nse to the Motion to Dismiss, is denied. A separate judgment will be entered in accordance with this Memorandum and Order. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Judge Richard G. Kopf. (Copy emailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRIAN T. COLLUM,
Plaintiff,
v.
PAYPAL. INC,
Defendant.

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8:11CV12

MEMORANDUM
AND ORDER

This matter is before the court on Defendant’s Motion to Dismiss. (Filing No.
10.) As set forth below, the Motion is granted.
I.

BACKGROUND AND SUMMARY OF COMPLAINT

Plaintiff filed his Complaint in this matter against his previous employer,
Paypal, Inc. (“Paypal”). (Filing No. 1.) Condensed and summarized, Plaintiff alleges
that Paypal terminated him on December 28, 2010. (Id. at CME/CF p. 2.) Plaintiff
alleges that he is an “american [sic] with a disability” and that his insurance was “cut
on December 31, 2010.” (Id.) Plaintiff alleges that he is disabled because he suffers
from depression, and can no longer afford his medical and psychological care because
of his termination. (Id.) Plaintiff seeks a “settlement . . . in the amount of 2.5 million
dollars.” (Id. at CM/ECF p. 4.)
Paypal filed a Motion to Dismiss, arguing, among other things, that Plaintiff’s
Complaint must be dismissed because Plaintiff failed to exhaust his administrative
remedies before filing this case. (Filing Nos. 10 and 11.) Plaintiff filed a “Motion
to Continue,” which the court liberally construes as a response to the Motion to
Dismiss. (Filing No. 12.) This matter is therefore deemed fully submitted.

II.

MOTION TO DISMISS STANDARD

Where a pro se plaintiff does not set forth enough factual allegations to “nudge[
her] claims across the line from conceivable to plausible, 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) (overruling Conley v. Gibson, 355
U.S. 41 (1967), and setting new standard for failure to state a claim upon which relief
may be granted). Regardless of whether a plaintiff is represented or is appearing pro
se, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (quotation omitted); see also Martin
v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). As set forth in Ashcroft:
First, the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice. . . . Second, only a complaint
that states a plausible claim for relief survives a motion to
dismiss. . . . But where the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has
alleged-but it has not “show[n]”-“that the pleader is entitled to relief.”
Fed. Rule Civ. Proc. 8(a)(2). In keeping with these principles a court
considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not
entitled to the assumption of truth. While legal conclusions can provide
the framework of a complaint, they must be supported by factual
allegations. When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly
give rise to an entitlement to relief.
Id. at 1949-50. 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). In addition, a court may not consider facts outside of the
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pleadings.
III.

DEFENDANT’S MOTION TO DISMISS

Paypal argues, among other things, that Plaintiff’s Complaint must be
dismissed because he did not exhaust his administrative remedies prior to filing this
matter. (Filing No. 11.) The court agrees. The allegations in the Complaint are
sparse, but as best as the court can tell, Plaintiff alleges a claim under the Americans
with Disabilities Act (the “ADA”). As set forth in the ADA:
No covered entity shall discriminate against a qualified individual with
a disability because of the disability of such individual 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).
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 United States
Equal Employment Opportunity Commission (“EEOC”) or the Nebraska Equal
Opportunity Commission (“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(f)(1); 42 U.S.C. § 12117(a); see also Williams v.
Thomson Corp., 383 F.3d 789, 790 (8th Cir. 2004) (noting that the procedures set
forth in 42 U.S.C. § 2000e-5 apply to ADA claims); 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). The civil complaint may only encompass issues that are
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reasonably related to the substance of charges timely brought before the
EEOC/NEOC. Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir.
1994).
Here, Plaintiff has not alleged that he exhausted his administrative remedies
prior to filing suit. The Complaint does not indicate that Plaintiff ever presented his
claims to the EEOC or NEOC, and does not allege that he received the requisite right
to sue letter. (Filing No. 1.) Importantly, the Complaint alleges that Paypal
terminated Plaintiff on December 28, 2010. (Id. at CM/ECF p. 2.) Plaintiff filed this
matter on January 19, 2011, approximately three weeks after his termination. The
timing of these events indicates that Plaintiff has not presented his claims to the
EEOC/NEOC. As such, the court need not provide Plaintiff with the chance to amend
his Complaint. Plaintiff has not exhausted his administrative remedies and this court
cannot address his claims until he has done so. As such, the court will dismiss the
Complaint without prejudice to reassertion after exhaustion of Plaintiff’s
administrative remedies.
IT IS THEREFORE ORDERED that:
1.
Defendant’s Motion to Dismiss (filing no. 10) is granted. This matter
is dismissed without prejudice to reassertion after Plaintiff exhausts his administrative
remedies.
2.
Plaintiff’s Motion to Continue (filing no. 12), construed as a response
to the Motion to Dismiss, is denied.
3.
A separate judgment will be entered in accordance with this
Memorandum and Order.
DATED this 27th day of May, 2011.
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BY THE COURT:
Richard G. Kopf
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.
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