Johnson v. Edwards et al

Filing 6

MEMORANDUM AND ORDER that Plaintiff's Title VII race discrimination claims against defendants First Student, Vince Edwards, Phillip ODonnell, Josh Goossen, Denise Rollerson, Raymond Burt, and Miss McGee (first name unknown) may proceed and se rvice is now warranted. All other defendants are dismissed from this matter without prejudice. The clerk of the court shall send SEVEN (7) summons forms and SEVEN (7) USM-285 forms to plaintiff together with a copy of this Memorandum and Order. Plain tiff shall, as soon as possible, complete the forms and 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, t o the U.S. Marshal for service of process. The clerk of the court is directed to set a pro se case management deadline in this case with the following text: January 30, 2013: Check for completion of service of summons. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party with forms)(ADB, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TERRY N. JOHNSON,

)
)
Plaintiff,
)
)
v.
)
)
VINCE EDWARDS, Branch
)
Contract Manager, et al.,
)
)
Defendants.
)
______________________________)

8:12CV244

MEMORANDUM AND ORDER

Plaintiff filed his complaint in this matter on July
13, 2012 (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

his previous employer, First Student, several individual
employees of First Student and the Omaha Public Schools, and
numerous other individuals (Filing No. 1 at CM/ECF pp. 1-2).
Plaintiff sues defendants for race discrimination under Title VII
of the Civil Rights Act of 1964.

(Id. at CM/ECF pp. 1-8.)

Plaintiff alleges that he worked as a bus driver for
First Student in the Omaha Public School system from 2008 until
his termination on or around August 18, 2010.

(Id.)

Plaintiff

alleges that defendant Rollerson made false reports to First

Student management accusing him of being a “derelict,”
questioning whether plaintiff should be “on the bus” with young
women alone, and making numerous other “false statements”
regarding plaintiff’s character and work performance.
CM/ECF pp. 5-6.)

(Id. at

Plaintiff attempted to report defendant

Rollerson’s behavior to defendant Goossen, but defendant Goossen
ignored plaintiff and took no action.

(Id. at CM/ECF p. 5.)

Plaintiff was also called “Nigger” by other drivers, but
“Management sat back and just listened” without taking action.
(Id. at CM/ECF p. 6.)

Further, although First Student claimed

that plaintiff’s termination was due to recent performance
problems and conflicts with a principal at one school, plaintiff
drove his bus route adequately.

In the event that plaintiff was

running late due to maintenance issues beyond his control, he
always communicated with dispatch.

(Id. at CM/ECF pp. 2-4.)

Plaintiff filed a charge of discrimination and received
a right-to-sue letter from the Equal Opportunity Employment
Commission (“EEOC”).

(Id. at CM/ECF p. 11.)

Plaintiff seeks

reinstatement to his bus driver position and a “public apology”
from the “Management team of First Student.”

(Id. at CM/ECF p.

9.)
II.

APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The Court is required to review in forma pauperis

complaints to determine whether summary dismissal is appropriate.
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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.
Cir. 1985).

See Martin v. Sargent, 780 F.2d 1334, 1337 (8th

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.
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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 her 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 race
discrimination under Title VII, a plaintiff must allege that he
(1) is a member of a protected class; (2) was meeting the
legitimate expectations of his employer; (3) suffered an adverse
employment action; and (4) that circumstances exist which give
rise to an inference of discrimination.

See Wheeler v. Aventis

Pharm., 360 F.3d 853, 857 (8th Cir. 2004).

In addition, 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 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

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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, granting the complaint the most liberal
construction, plaintiff alleges that he is a member of a
protected class and that his work performance was satisfactory
(Filing No. 1 at CM/ECF pp. 1-8).

Plaintiff further alleges that

he suffered an adverse employment action when co-workers
repeatedly lied about his character and work performance,
resulting in his termination.

(Id.) He claims other co-workers

called plaintiff “Nigger,” and First Student management took no
action.

(Id.)

Plaintiff also alleges that he exhausted his

administrative remedies by presenting his claims to the
NEOC/EEOC.

(Id. at CM/ECF p. 11.)

The Court finds that 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.
The Court notes that plaintiff names 28 separate
defendants in this matter.

The Court is mindful that a complaint

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that only lists a defendant’s name in the caption or elsewhere in
the complaint, without alleging that the defendant was personally
involved in the alleged misconduct, fails to state a claim
against that defendant.

See Krych v. Hvass, 83 F. App’x 854, 855

(8th Cir. 2003) (citing Potter v. Clark, 497 F.2d 1206, 1207 (7th
Cir. 1974) (holding that the court properly dismissed a pro se
complaint where the complaint did not allege that defendant
committed a specific act and the complaint was silent as to
defendant except for his name appearing in caption)).

Here,

plaintiff has asserted one claim –- a Title VII race
discrimination claim based on his employment at First Student.
Plaintiff alleges conduct by the following defendants giving rise
to that claim:

First Student, Vince Edwards, Phillip O’Donnell,

Josh Goossen, Denise Rollerson, Raymond Burt, and Miss McGee
(first name unknown) (Filing No. 1).

All other defendants are

either only named in the caption of the complaint, or are
mentioned briefly in the complaint without any allegations
relating to their specific involvement in the alleged racial
discrimination.

(Id.) Thus, all defendants other than the seven

listed in this paragraph will be dismissed.
IT IS ORDERED:
1.

Plaintiff’s Title VII race discrimination claims

against defendants First Student, Vince Edwards, Phillip
O’Donnell, Josh Goossen, Denise Rollerson, Raymond Burt, and Miss

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McGee (first name unknown) may proceed and service is now
warranted.

All other defendants are dismissed from this matter

without prejudice.
2.

To obtain service of process on defendants,

plaintiff must complete and return the summons forms which the
clerk of the court will provide.

The clerk of the court shall

send SEVEN (7) summons forms and SEVEN (7) USM-285 forms 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 summonses 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 an

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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 30, 2013:
7.

Check for completion of service of summons.”

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.
DATED this 4th day of October, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

* This opinion may contain hyperlinks to other documents or
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of the Court.
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