Coleman v. Correct Care Solutions

Filing 6

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Plaintiff shall have 30 days from the date of this Memorandum and Order to file an amended complaint in accordance with this Memorandum and Order. If Plaintiff fails to do so, this matter will be dismissed without further notice. The Clerk of the court is directed to set a pro se case management deadline using the following text: September 6, 2013: Check for amended complaint. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(TCL )

Coleman v. Jass et al

Doc. 6

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RUTH C. COLEMAN,
Plaintiff,
v.
VALARIE JASS, and BRENDA
TACKE,
Defendants.

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8:13CV82

MEMORANDUM
AND ORDER

Plaintiff filed her Complaint in this matter on March 12, 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

Plaintiff filed her Complaint against two individuals, Valarie Jass and Brenda
Tacke. (Filing No. 1 at CM/ECF p. 1.) Liberally construed, Plaintiff’s Complaint
alleges age discrimination under the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621-634.
Plaintiff alleges that she is 65 years old. (Id. at CM/ECF p. 7.) In
approximately October 2010, Plaintiff worked for Correct Care Solutions. As best
as the court can tell, Defendants Brenda Tacke and Valarie Jass were also employed
by Correct Care Solutions. In October 2010, Brenda Tacke called Plaintiff into
Valarie Jass’s office, where Jass yelled at Plaintiff for being late to work. (Id. at
CM/ECF p. 2.) Jass informed Plaintiff that the next time she was late, her
employment would be terminated. (Id.) Jass also stated, “maybe you are too old to
be working for this company anyway.” (Id. at CM/ECF p. 4.) During this meeting,

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Tacke “never said a word nor looked at Plaintiff.” (Id. at CM/ECF p. 3.) Following
the meeting, Jass asked Plaintiff to get her belongings and leave the building. (Id. at
CM/ECF p. 4.) Plaintiff asked if she was being fired, and Jass responded that she was
not fired. (Id.) Although Plaintiff’s employment was not terminated, Plaintiff retired
as a result of her meeting with Valarie Jass and Brenda Tacke. (Id. at CM/ECF p. 7.)

As relief, Plaintiff asks for Brenda Tacke “to be brought to court under oath
and tell the truth” about the discriminatory remark Valarie Jass made to Plaintiff. (Id.
at CM/ECF p. 5.) She also asks that Correct Care Solutions compensate her for the
loss of income she suffered as a result of being forced to retire early. (Id.)
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, 678 (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
A.

Exhaustion of Administrative Remedies

Liberally construed, Plaintiff brings her claims under the ADEA. The ADEA
protects individuals over 40 and prohibits an employer from “fail[ing] or refus[ing]
to hire or . . . discharg[ing] any individual or otherwise discriminat[ing] against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s age.” 29 U.S.C. § 623(a). Anderson v.
Durham D & M, L.L.C., 606 F.3d 513, 523 (8th Cir. 2010).
To pursue discrimination claims under the ADEA, a plaintiff must exhaust all
administrative remedies. See generally 29 U.S.C.§ 626(d)(1). To accomplish this,
a plaintiff must first present his claims to the Equal Employment Opportunity
Commission (“EEOC”) by filing an administrative charge of discrimination. See,
e.g., Dorsey v. Pinnacle Automation Company, 278 F.3d 830, 835 (8th Cir. 2002)
(finding the ADEA requires the filing of an administrative charge of discrimination
with the EEOC). Even if a plaintiff timely files an administrative charge, she cannot
proceed with her claims in federal court unless she first receives a right-to-sue letter
and files her claim within 90 days. 29 U.S.C. § 626(e).
Here, Plaintiff has not filed a copy of her right-to-sue notice. Thus, the court
cannot determine whether Plaintiff has exhausted her administrative remedies or
whether Plaintiff’s claim is timely. On the court’s own motion, the court will permit
Plaintiff 30 days in which to file a copy of her right-to-sue notice with the court. In

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the alternative, Plaintiff may amend her complaint to allege that she filed suit within
90 days of her receipt of the right-to-sue notice.
B.

Defendants Valarie Jass and Brenda Tacke

Valarie Jass and Brenda Tacke, as coworkers or supervisors, may not be held
personally liable under the ADEA. See, e.g., Medina v. Ramsey Steel Co., Inc., 238
F.3d 674, 686 (5th Cir. 2001) (“The ADEA authorizes suits against employers for age
discrimination. . . . Likewise, the ADEA provides no basis for individual liability for
supervisory employees”) (internal citations and quotation marks omitted); Smith v.
Lomax, 45 F.3d 402, 403 n.4 (11th Cir. 1995) (same); Birkbeck v. Marvel Lighting
Corp., 30 F.3d 507, 510 (4th Cir. 1994) (“[T]he ADEA limits civil liability to the
employer.”); Miller v. Maxwell’s Int’l, 991 F.2d 583, 587 (9th Cir. 1993) (same). See
also Rickert v. Midland Lutheran College, 8:07CV334, 2007 WL 2933229, at *1 (D.
Neb. Oct. 5, 2007) (dismissing ADEA claims against individual defendants because
they were not “employers” and could not be held individually liable under the
ADEA); Feller v. McCarthy, No. 4:07CV3117, 2007 WL 3204463, at *3 (D. Neb.
Oct. 30, 2007) (finding the plaintiff’s complaint did not state an ADEA claim against
two individual defendants because the complaint did not allege that they were the
plaintiff’s “employers” under the ADEA).
Plaintiff alleges that her employer at all relevant times was Correct Care
Solutions. However, Plaintiff has not named Correct Care Solutions as a defendant
in this matter. Rather, she has named two individuals who, as best the court can tell,
are Plaintiff’s supervisors or coworkers. For this reason, Plaintiff’s Complaint fails
to state an ADEA claim upon which relief may be granted. On the court’s own
motion, Plaintiff will be given an opportunity to file an amended complaint that either
names a proper defendant, or alleges that the currently named Defendants (Valarie
Jass and Brenda Tacke) are her “employers” within the meaning of the ADEA.

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IT IS THEREFORE ORDERED that:
1.
Plaintiff shall have 30 days from the date of this Memorandum and Order
to file an amended complaint in accordance with this Memorandum and Order. If
Plaintiff fails to do so, this matter will be dismissed without further notice.
2.
The Clerk of the court is directed to set a pro se case management
deadline using the following text: September 6, 2013: Check for amended complaint.
DATED this 8th day of August, 2013.
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
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