Murph v. Silver Memories
Filing
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MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Plaintiff shall have 30 days to (1) amend her complaint to allege that she exhausted her administrative remedies with respect to her allegations of retaliation against Silver Memories, and (2) f ile a copy of the right-to-sue notice related to her allegations of retaliation. The court reserves the right to conduct further review of Plaintiff's claims pursuant to 28 U.S.C. § 1915(e)(2) after Plaintiff addresses the matters set fo rth in this Memorandum and Order. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: June 17, 2013: Check for EEOC charge and right-to-sue notice. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party)(TCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TANYA MURPH,
Plaintiff,
v.
SILVER MEMORIES, Inc.,
Defendant.
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8:13CV11
MEMORANDUM
AND ORDER
Plaintiff Tanya Murph (“Plaintiff”) filed her Complaint in this matter on
January 8, 2013. (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
Liberally construed, Plaintiff alleges that Defendant Silver Memories, Inc.
(“Silver Memories” or “Defendant”) discriminated against her in violation of 42
U.S.C. § 2000e-3, the anti-retaliation provision of Title VII. Plaintiff alleges that she
filed a charge of discrimination against Silver Memories with the United States Equal
Employment Opportunity Commission (“EEOC”) in March of 2009. (Filing No. 1 at
CM/ECF p. 2.) The matter went to public hearing in December of 2010, and Plaintiff
received a right-to-sue notice from the EEOC on October 11, 2012. (Id. at CM/ECF
p. 7.) Plaintiff alleges that, after she filed her charge of discrimination with the EEOC,
Silver Memories management retaliated against her by using its influence with the
Omaha Police Department to “obtain non-public information” about her. Silver
Memories’ management also made intimidating and harassing telephone calls to her
residence, parked outside her residence to intimidate her, and “contact[ed] other
facilities within [her] occupational field to influence or alter [her] employment.” (Id.
at CM/ECF pp. 1-2.) For relief, Plaintiff seeks an unspecified amount of monetary
damages. (Id. at CM/ECF p. 5.)
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).
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
Title VII forbids employment discrimination against “any individual” based on
that individual’s “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e2(a). The anti-retaliation provision of Title VII prohibits an employer from
“discriminat[ing] against” an employee or job applicant because that individual
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“opposed any practice” made unlawful by Title VII or “made a charge, testified,
assisted, or participated in” a Title VII proceeding or investigation. 42 U.S.C.
§ 2000e-3(a). Liberally construed, Plaintiff alleges that Defendant discriminated
against her in violation of 42 U.S.C. § 2000e-3.
Prior to filing a suit in federal court under Title VII, a plaintiff is required to
exhaust his or her administrative remedies by first seeking relief through the EEOC
or the Nebraska Equal Opportunity Commission (“NEOC”). 42 U.S.C. § 2000e5(e)(1). 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(b); see
also Hanenburg v. Principal Mut. Life Ins. Co., 118 F.3d 570, 573 (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 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). However, each discrete incident of discriminatory or
retaliatory action by an employer constitutes its own unlawful employment practice
for which administrative remedies must be exhausted before bringing a Title VII
claim. Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 851 (8th Cir. 2012).
Plaintiff has filed a copy of a right-to-sue notice but, as best as the court can
tell, it is based on her original charge of discrimination against Silver Memories, and
not based on her allegations of retaliatory action by Silver Memories. Each discrete
incident of discriminatory or retaliatory action by an employer is its own unlawful
employment practice for which administrative remedies must be exhausted. Richter,
686 F.3d at 851. Here, the court cannot determine whether Plaintiff has exhausted her
administrative remedies as to her claims of retaliation or whether her claims are
timely. On the court’s own motion, the court will permit Plaintiff 30 days in which
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to (1) amend her complaint to allege that she exhausted her administrative remedies
with respect to her allegations of retaliation against Silver Memories, and (2) file a
copy of the right-to-sue notice related to her allegations of retaliation.
IT IS THEREFORE ORDERED that:
1.
Plaintiff shall have 30 days to (1) amend her complaint to allege that she
exhausted her administrative remedies with respect to her allegations of retaliation
against Silver Memories, and (2) file a copy of the right-to-sue notice related to her
allegations of retaliation.
2.
The court reserves the right to conduct further review of Plaintiff’s claims
pursuant to 28 U.S.C. § 1915(e)(2) after Plaintiff addresses the matters set forth in this
Memorandum and Order.
3.
The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: June 17, 2013: Check for EEOC charge
and right-to-sue notice.
DATED this 16th day of May, 2013.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge
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