Alper v. Gallup, Inc.

Filing 6

MEMORANDUM AND ORDER - The Plaintiff's claims against Defendant Gallup may proceed and service is now warranted. To obtain service of process on Defendant, Plaintiff must complete and return the summons form which the Clerk of the court will pr ovide. The Clerk of the court shall send ONE (1) summons form and ONE (1) 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 C lerk of the court The Marshal shall serve the summons and Complaint without payment of costs or fees. 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 dismis sal of this matter without further notice as to such defendant. The Clerk of the Court is directed to set a pro se case management deadline in this case with the following text: January 27, 2012: Check for completion of service of summons. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 1/27/2012.) Ordered by Chief Judge Joseph F. Bataillon. (Copy mailed/ to pro se party with 1 USM-285 and 1 Summons)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NEIL S. ALPER,
Plaintiff,
v.
GALLUP, INC.,
Defendant.

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8:11CV254

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on July 25, 2011. (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 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 in this matter against Gallup, Inc. (“Gallup”), an
American corporation. (Filing No. 1 at CM/ECF p. 1.) Condensed and summarized,
Plaintiff sues Gallup for national origin discrimination under Title VII of the Civil
Rights Act of 1964. (Id. at CM/ECF pp. 2-3.)
Plaintiff alleges that he applied for a job at Gallup’s “wholly owned subsidiary”
located in Bangkok, Thailand. (Id. at CM/ECF p. 2.) Gallup interviewed Plaintiff
over the telephone, which qualified him for a second telephone interview and a “faceto-face interview in Bangkok.” (Id.) Plaintiff later “disclosed” to Gallup that he
“speak[s] Thai fluently” but can “read and write Thai at a rudimentary level.” (Id. at
CM/ECF pp. 2-3.) Gallup thereafter informed Plaintiff that it “decided to change the
criteria for the position and would accept only Thai citizens.” (Id. at CM/ECF p. 3.)
Although Plaintiff informed Gallup that he was “an American living in Thailand for
20 years,” they insisted on hiring only a Thai national. (Id.) Plaintiff alleges that he

met “the minimum requirements for the position,” but Gallup rejected him based
solely on his national origin. (Id. at CM/ECF p. 4.) Plaintiff further alleges that
“fluency in written Thai is not a bona fide qualification for the position.” (Id. at
CM/ECF p. 3.)
Plaintiff alleges that the Gallup office in Thailand is “an American owned and
controlled company outside of the U.S.” (Id.) Plaintiff filed a charge of
discrimination and received a right-to-sue letter from the Equal Opportunity
Employment Commission (“EEOC”) on April 29, 2011. (Id.) Plaintiff seeks punitive
damages in the amount of $300,000, as well as back pay and other damages. (Id. at
CM/ECF p. 6.)
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).
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).
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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 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 for failure to hire under
Title VII, a plaintiff must allege that “(1) he is a member of a protected class; (2) he
applied and was qualified for a job for which the employer was seeking applicants;
(3) he was rejected; and, (4) after he was rejected, [the employer] continued to seek
applicants with [the plaintiff’s] qualifications.” Harrison v. United Auto Group, 492
F.3d 972, 974 (8th Cir. 2007). If a plaintiff establishes a prima facie case, then the
burden shifts to the employer to produce evidence of a legitimate nondiscriminatory
reason for its action. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993). If
the employer succeeds in this burden of production, then the burden shifts back to the
plaintiff to prove that the employer’s proffered reason was a pretext for intentional
discrimination. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143 (2000).
The ultimate burden of persuasion remains with the plaintiff throughout the case.
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 will then investigate the charge and
determine whether to file suit on behalf of the charging party or make a determination
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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.A. § 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.A. §
2000e-5(f)(1). The civil complaint may only encompass issues that are 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 alleges that he is an American citizen living in Thailand.
Plaintiff further alleges that he suffered an adverse employment action when Gallup
refused to hire him only because he was not a “Thai national” even though he met all
of the minimum requirements for the position and that the position did not require
“fluency in written Thai.” (Filing No. 1 at CM/ECF pp. 2-3.) The record also shows
that Plaintiff exhausted his administrative remedies by presenting his claims to the
EEOC and receiving a right-to-sue letter. (Id. at CM/ECF p. 3.)1 These allegations
are sufficient to nudge Plaintiff’s Title VII claims across the line from conceivable
to plausible. However, 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 claims against Defendant Gallup may proceed and service is
now warranted.

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The court notes that although Plaintiff’s claims are based on actions taken in
Gallup’s Bangkok, Thailand office. However, the allegation that the office is “an
American owned and controlled company outside the U.S.” is sufficient to allow this
matter to proceed at this stage. See Sandoval v. Am. Bldg. Maint. Indus., Inc., 578
F.3d 787, 794-95 (8th Cir. 2009). However, the court makes no finding regarding the
truth of this allegation.
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2.
To obtain service of process on Defendant, Plaintiff must complete and
return the summons form which the Clerk of the court will provide. The Clerk of the
court shall send ONE (1) summons form and ONE (1) 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 form, 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 twenty (20) 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 pro se case management
deadline in this case with the following text: “January 27, 2012: 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
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address at all times while this case is pending. Failure to do so may result in
dismissal.
DATED this 30th day of September, 2011.
BY THE COURT:
s/ Joseph F. Bataillon
Chief 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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