Coleman v. Correct Care Solutions

Filing 22

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: To obtain service of process on Defendant, Plaintiff must complete and return the summons form that the Clerk of the Court will provide. The Clerk of the Court shall send one summons form and o ne 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. 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 (Filing No. 1 ), Amended Complaint (Filing No. 7 ), and Response (Filing No. 9 ) to the U.S. Marshal for service of process. The Marshal shall serve the summon s and the Complaint and Amended Complaint without payment of costs or fees. Service may be by certified mail pursuant to Federal Rule of Civil Procedure 4 and Nebraska law in the discretion of the Marshal. The Clerk of the Court will copy the Compl aint and Amended Complaint, and Plaintiff does not need to do so. 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 furthe r notice as to such defendant. A defendant has 21 days after receipt of the summons to answer or otherwise respond to a complaint. The Clerk of the Court is directed to set a pro se case management deadline in this case with the following text: &qu ot;December 29, 2014: 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 her current address at all times while this case is pending. Failure to do so may result in dismissal. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RUTH C. COLEMAN,
Plaintiff,
v.
CORRECT CARE SOLUTIONS,
Medical Dept; Douglas County
Correction,
Defendant.

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8:13CV82

MEMORANDUM
AND ORDER

This matter is before the court on remand from the Eight Circuit Court of
Appeals for consideration of whether Plaintiff Ruth Coleman has stated a plausible
race-discrimination claim under 42 U.S.C. § 1981. See Coleman v. Correct Care
Solutions, 559 F.App’x 601 (8th Cir. 2014) (per curiam) (holding that Coleman
adequately raised a race-discrimination claim by attaching EEOC complaint
containing race-discrimination allegations to her pleadings). For the reasons
discussed below, the court finds that Coleman’s pro se filings, taken together, state a
plausible race-discrimination claim.
I. BACKGROUND
A.

Summary of Complaint and Pre-Service Screening

Coleman filed her Complaint on March 12, 2013, alleging two former
coworkers, Valarie Jass and Brenda Tacke, engaged in discriminatory conduct against
her. (Filing No. 1.) Coleman is black, and she was 67 years old at the time she filed
her Complaint. (See Filing No. 9 at CM/ECF p. 5, charge of discrimination filed with
the Nebraska Equal Opportunity Commission.)

Coleman explained in her Complaint that, prior to the events leading to her
filing this action, she fractured her foot and later developed severe pain in her hips.
Coleman’s injury resulted in her being late for work because she had to sit on ice
packs each morning and take pain pills. Coleman always called the office to inform
staff she would be 20 minutes late. Coleman alleged Jass “never said a word for
months regarding [Coleman] being tardy.” (Id. at CM/ECF p. 3.)
In October 2010, Jass asked Coleman into her office for a meeting. Tacke was
also present. During this meeting, Jass yelled at Coleman “about [her] tardiness and
days missed.” (Id. at CM/ECF p. 4.) Jass allegedly made the following statements
during her meeting with Coleman: (1) “That’s why half the population are in jail now,
for taking drugs!”; (2) “[Ma]ybe you can’t even perform your duties on drugs.”; and
(3) “Maybe you are too old [to] be working for this company anyway.” (Id. at
CM/ECF p. 4.) Following the meeting, a coworker was consoling Coleman when Jass
screamed at her to get to work and stop gossiping. Moments later, Jass asked
Coleman to gather her belongings and leave the building. Coleman asked if she was
fired, and Jass responded that she was not. (Id.) Coleman decided to retire in
December 2010, though she had planned on working an additional one or two years.
(Id. at CM/ECF pp. 6-7.)
As relief, Coleman asked for Tacke “to be brought to court under oath and tell
the truth. This being Valarie Jass made age discrimination remark to me!” (Id. at
CM/ECF p. 5.) Coleman also asked to be compensated by Correct Care Solutions
because the incident with Jass forced her to retire. (Id.)
In the portion of the civil complaint form asking for information pertaining to
the court’s jurisdiction, Coleman wrote: “I believe Valarie Jass is a racist, reason
—two other employees she harassed till they quit (one in tears) were Black.” (Id. at
CM/ECF p. 9.) It is worth noting that Coleman did not allege she is black in either her

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Complaint or Amended Complaint. This fact was not apparent until Coleman filed
her charge of discrimination on October 18, 2013. (See Filing No. 9.)
The court conducted a pre-service screening of Coleman’s Complaint on
August 8, 2013. (See Filing No. 6.) The court construed the Complaint to raise only
a claim under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§
621-634. See Coleman, 559 F.App’x at 602. The court determined it could not tell
whether Coleman had exhausted her administrative remedies or whether her claim was
timely filed. Accordingly, the court ordered Coleman to either “file a copy of her
right-to-sue notice” from the Equal Employment Opportunity Commission (“EEOC”)
or “amend her complaint to allege that she filed suit within 90 days of her receipt of
the right-to-sue notice.” (Filing No. 6 at CM/ECF pp. 3-4.)
B.

Summary of Amended Complaint and Show-Cause Order

Coleman filed an Amended Complaint on August 20, 2013, in which she
substituted Correct Care Solutions as the defendant. (Filing No. 7.) Coleman
generally repeated the allegations contained in her Complaint regarding her meeting
with Jass, and Jass’ subsequent request that Coleman leave the building. Coleman
reiterated that she had been discriminated against on the basis of age.
On October 11, 2013, the court ordered Coleman to “show either that she filed
suit within 90 days of receipt of a right-to-sue notice [from the EEOC], or that
equitable or exceptional circumstances exist that warrant tolling of the 90-day period.”
(Filing No. 8 at CM/ECF p. 1.)
C.

Response to Show-Cause Order and Case Dismissal

On October 18, 2013, Coleman filed correspondence with the court asking that
this matter be allowed to proceed. (Filing No. 9.) Coleman described the harm she
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suffered as a result of Jass’ actions and generally repeated allegations regarding her
meeting with Jass. In addition, Coleman included allegations suggesting Jass’ actions
may have been motivated by racial animus: “I was 65 at time my coworker was 73,
but white. Two other black also were harassed enough too [sic] simply quit.” (Id. at
CM/ECF p. 2 (emphasis in original).) In addition, Coleman wrote, “Unlawful to make
age discrimination remarks. I was 65 at time, but my coworker was 73, but white.
Two other Black also quit after what I call plain harassment by Valarie Jass.” (Id. at
CM/ECF p. 3.)
Also on October 18, 2013, Coleman filed a copy of her right-to-sue notice
(dated January 12, 2012) and the charge of discrimination she filed with the EEOC.
(See Filing No. 9 at CM/ECF pp. 4-5.) In Coleman’s charge of discrimination,
Coleman stated that, prior to Jass being hired as an administrator, Coleman was
allowed to arrive to work late “to control pain caused by [her] disability.” (Id. at
CM/ECF p. 5.) On August 27, 2010, Jass informed her that if she was late again, her
employment would be terminated. Coleman asked if her arrival time could be
changed to 8:30 a.m. “to accommodate [her] disability,” and Jass said, “no.” Jass
allegedly stated, “With the drug you are taking for pain and your age, you should not
be working for CCS. . . The reason half of the jail population is incarcerated is for
drugs.” (Id.) Thereafter, Jass required Coleman to sign a form stating her tardiness
was discussed, and then Jass and Tacke escorted Coleman out of the building. (Id.)
Coleman stated she believed she had been discriminated against on the basis of age,
race, and disability. (Id.)
On December 16, 2013, the court dismissed this action because Coleman failed
to file suit within 90 days of her receipt of a right-to-sue notice, and because she failed

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to show that equitable or exceptional circumstances exist that warrant tolling of the
90-day time period.1
D.

Appeal and Remand

Coleman appealed the court’s dismissal of this action to the Eighth Circuit
Court of Appeals. (See Filing No. 16.) On June 5, 2014, the Eighth Circuit Court of
Appeals determined that Coleman’s pro se filings, taken together, adequately raised
a claim of race discrimination under 42 U.S.C. § 1981. However, the court
“express[ed] no opinion as to the sufficiency or plausibility of Coleman’s § 1981
claim.” Coleman, 559 F.App’x at 602. The Eighth Circuit remanded the matter to
this court “for consideration of whether Coleman has stated a plausible racediscrimination claim under 42 U.S.C. § 1981 and for any further proceedings as
necessary.”
II. DISCUSSION
Here, the court must determine whether Coleman has stated a plausible racediscrimination claim under 42 U.S.C. § 1981. Section 1981, as amended by the Civil
Rights Act of 1991, provides a cause of action for discrimination in the employment
relationship.
A plaintiff need not plead facts sufficient to establish a prima facie case of
employment discrimination in her complaint. See Swierkiewicz v. Sorema N.A., 534

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A plaintiff must commence an action alleging an employer’s violations of the
ADEA, Title VII of the Civil Rights Act of 1964, or the Americans with Disabilities
Act (“ADA”) within 90 days of the plaintiff’s receipt of a right-to-sue letter from the
EEOC, if such a letter is issued. See 29 U.S.C. § 626(e) (ADEA); 42 U.S.C.
§ 2000e-5(f)(1) (Title VII); 42 U.S.C. § 12117(a) (applying the 90-day statute of
limitations to ADA claims).
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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 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 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.”).
In assessing whether Coleman has pled enough facts to make entitlement to
relief plausible, the court looks to the elements of a prima facie case of discrimination
as guidance. “To establish a prima facie case for race discrimination, ‘a plaintiff must
show (1) [s]he is a member of a protected class, (2) [s]he met h[er] employer’s
legitimate expectations, (3) [s]he suffered an adverse employment action, and (4) the
circumstances give rise to an inference of discrimination (for example, similarly
situated employees outside the protected class were treated differently).’” Young v.
Builders Steel Co., 754 F.3d 573, 577 (8th Cir. 2014) (quoting Gibson v. American
Greetings Corp., 670 F.3d 844, 853-54 (8th Cir. 2012)).
Coleman has alleged she is a member of a protected class and she suffered an
adverse employment action. When read together, Coleman’s pro se filings allege that
she was scolded and disciplined by Jass. In addition, Coleman has alleged she was
meeting her employer’s legitimate expectations prior to the time she was disciplined
by Jass. While Coleman acknowledges that she was often late for work, she alleges
that Jass “never said a word for months regarding [her] being tardy.” (See Filing No.
1 at CM/ECF p. 3.)
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Finally, Coleman has alleged facts suggesting an inference of discrimination.
When read together, Coleman’s pro se filings allege that Jass scolded Coleman, stated
Coleman may be too old to work, accused Coleman of gossiping in front of Coleman’s
coworkers, and forced her to leave work for the day. Coleman alleged that her 73year-old “white” coworker was not harassed in a similar manner. In addition,
Coleman alleged that two other black employees were also harassed. The court
determines these allegations are sufficient to state a plausible race-discrimination
claim.
In light of the foregoing, Coleman’s section 1981 claims may proceed to service
of process. However, the court cautions Plaintiff that this is only a preliminary
determination based solely on the allegations of Coleman’s Complaint (Filing No. 1),
Amended Complaint (Filing No. 7), correspondence dated October 18, 2013 (Filing
No. 9), and charge of discrimination (id. at CM/ECF p. 5). This is not a determination
of the merits of Plaintiff’s claims or potential defenses thereto.
IT IS THEREFORE ORDERED that:
1.
To obtain service of process on Defendant, Plaintiff must complete and
return the summons form that the Clerk of the Court will provide. The Clerk of the
Court shall send one summons form and one 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.
2.
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 (Filing No. 1),
Amended Complaint (Filing No. 7), and Response (Filing No. 9) to the U.S. Marshal
for service of process. The Marshal shall serve the summons and the Complaint and
Amended Complaint without payment of costs or fees. Service may be by certified
mail pursuant to Federal Rule of Civil Procedure 4 and Nebraska law in the discretion
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of the Marshal. The Clerk of the Court will copy the Complaint and Amended
Complaint, and Plaintiff does not need to do so.
3.
Federal Rule of Civil Procedure 4 requires service of the 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.
4.
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 21 days after
receipt of the summons to answer or otherwise respond to a complaint.
5.
The Clerk of the Court is directed to set a pro se case management
deadline in this case with the following text: “December 29, 2014: Check for
completion of service of summons.”
6.
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 her current
address at all times while this case is pending. Failure to do so may result in
dismissal.

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DATED this 28th day of August, 2014.
BY THE COURT:
s/ John M. Gerrard
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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