Gould v. Omaha Public Schools

Filing 6

MEMORANDUM AND ORDER that the plaintiff shall have 30 days from the date of this Memorandum and Order to file an amended complaint. The clerk's office is directed to set a pro se case management deadline for 1/9/15: Check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ALICE MAE GOULD,
Plaintiff,
v.
OMAHA PUBLIC SCHOOLS,
Defendant.

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8:14CV258

MEMORANDUM
AND ORDER

Plaintiff Alice Gould (“Plaintiff”) filed her Complaint in this matter on
September 2, 2014. (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 Omaha Public Schools (“OPS”). She was
an employee of OPS for 37 years. She alleged school officials discriminated against
her on the basis of age in violation of the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621-634; and the Nebraska Age Discrimination in
Employment Act (“NADEA”), Neb. Rev. Stat. §§ 48-1001-1010. She also alleged
school officials discriminated against her on the basis of sex and race in violation of
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-2000e-17;
and the Nebraska Fair Employment Practice Act (“NFEPA”), Neb. Rev. Stat. §§ 481101-1126.
Plaintiff attached the charge of discrimination she filed with the Nebraska Equal
Opportunity Commission (“NEOC”) to her Complaint. (Filing No. 1 at CM/ECF p.
10.) In assessing Plaintiff’s Complaint, the court will consider the allegations raised

in Plaintiff’s NEOC charge of discrimination, as well as those raised in the Complaint.
See Coleman v. Correct Care Solutions, 559 Fed. App’x. 601, 602 (8th Cir. 2014).
Plaintiff, a black female, was a teacher at OPS. On August 14, 2013, she “was
assigned more behavioral students” than two other teachers. Plaintiff was assigned
10 “behavioral students,” while “Faith Johnson (bi-racial, 20’s, female) and Ivan
Halpin (white, 20’s male)” were each assigned one. (Filing No. 1 at CM/ECF p. 10.)
On January 6, 2014, Principal Christina Windsor, a black female in her 50’s,
“noted that [Plaintiff] fabricated [her] students’ reading scores.” (Id.) Thereafter,
Windsor and Lynn Wray, a reading teacher, “tested 4 of [Plaintiff’s] students on their
reading and questioned them about information on [Plaintiff’s] reading record.” (Id.)
Plaintiff alleged no students from other classes were tested “even though Windsor
indicated 5 other teachers had issues with their reading assessment records.” (Id.)
On January 13, 2014, Windsor reported Plaintiff to human resources. On
March 14, 2014, Plaintiff was notified that her employment would be terminated at
the end of the school year. (Id. at CM/ECF p. 11.) Plaintiff alleged her termination
was done in retaliation for a charge of discrimination she filed against OPS in 2013.
(Id.; see previous charge of discrimination at Filing No. 1 at CM/ECF pp. 7-8.)
As relief, Plaintiff seeks declaratory relief as well as money damages for lost
pay, benefits, retirement, and other compensatory damages for humiliation and
emotional distress. (Id. at CM/ECF p. 6.) The right-to-sue notice attached to
Plaintiff’s Complaint reflects that she filed suit in this court within 90 days of her
receipt of the right-to-sue notice from the United States Equal Employment
Opportunity Commission. See 42 U.S.C. § 2000e-5(f)(1) (a charging party has 90
days from the receipt of the right-to-sue notice to file a civil complaint based on a
charge of discrimination).

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II. 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
Plaintiff has asserted claims for age, race, and sex discrimination. The court has
considered Plaintiff’s discrimination claims under two potential theories: disparate
treatment and retaliation. As discussed below, Plaintiff’s Complaint does not state a
claim for relief under either theory.
A plaintiff need not plead facts sufficient to establish a prima facie case of
employment discrimination in his complaint. See Swierkiewicz v. Sorema N.A., 534
U.S. 506, 511-512 (2002) (holding a complaint in employment discrimination lawsuit
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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 Twombly, 550 U.S. at 570. However, the elements of a prima facie case
are relevant to a plausibility determination. See Rodriguez-Reyes v. MolinaRodriguez, 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.”).
A.

Age Discrimination

Plaintiff asserts claims under the ADEA and the NADEA. The ADEA protects
individuals over 40 and prohibits an employer from failing or refusing to hire,
discharging, or otherwise discriminating 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). The NADEA offers similar protection. See Neb. Rev. Stat.
§ 48-1004(1)(a). The NADEA is interpreted in conformity with the ADEA, and the
court will apply the same analysis to both claims. See Billingsley v. BFM Liquor
Mgmt., Inc., 645 N.W.2d 791, 801-02 (Neb. 2002). The court looks to the elements
of a prima facie case of discrimination in assessing whether Plaintiff has pled enough
facts to make entitlement to relief plausible.
i.

Disparate Treatment

To set forth a prima facie claim of age discrimination, a plaintiff must establish
that (1) she is over 40; (2) she was qualified for the position; (3) she suffered an
adverse employment action; and (4) similarly-situated employees outside the class
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were treated more favorably. Anderson, 606 F.3d at 523. “The hallmark of an ADEA
disparate-treatment claim is intentional discrimination against the plaintiff on account
of the plaintiff’s age.” Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1331 (8th Cir.
1996). This requires proof that age was the “but-for” cause of the employer’s adverse
decision. Gross v. FBL Fin. Servs. Inc., 557 U.S. 167, 176-78 (2009).
Here, Plaintiff has alleged she is over 40. In addition, the court can reasonably
infer she was qualified for her position because she alleged she was employed by
Defendant for 37 years. (See Filing No. 1 at CM/ECF p. 3.) The court interprets
Plaintiff’s allegations to suggest there were two actions against Plaintiff she
considered adverse. The first was her being “assigned more behavioral students than
other teachers.” (Filing No. 1 at CM/ECF p. 10.) The second was her termination
from employment.
Being assigned “more behavioral students than other teachers” is probably not
an adverse employment action where there are no facts suggesting it caused Plaintiff
to suffer a material employment disadvantage or a tangible change in her working
conditions. See Thomas v. Corwin, 483 F.3d 516, 528-29 (8th Cir. 2007); Wedow v.
City of Kan. City, Mo., 442 F.3d 661, 671 (8th Cir. 2006). Even if being assigned
“more behavioral students than other teachers” were an adverse employment action,
the court cannot reasonably infer from the facts alleged that Plaintiff’s age was a cause
of the student assignment.
Plaintiff’s termination from her employment is an adverse employment action.
However, the court cannot infer Plaintiff’s age was a cause of her termination.
Plaintiff alleged in her Complaint she was terminated due to allegations that she
fabricated her students’ reading scores. There are no additional facts to suggest the
termination was because of Plaintiff’s age. Thus, the court finds Plaintiff has failed
to state a disparate treatment claim upon which relief can be granted.

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ii.

Retaliation

The ADEA makes it unlawful for an employer to discriminate against an
employee because she has opposed any practice made unlawful by the ADEA, or
because the employee has participated in any manner of an investigation, proceeding,
or litigation. 29 U.S.C. § 623(d). To state a claim for retaliation, Plaintiff must allege
facts showing that (1) she engaged in ADEA-protected activity; (2) her employer took
an adverse employment action against her; and (3) there is a causal connection
between the two events. Lors v.s Dean, 746 F.3d 857, 865, 867 (8th Cir. 2014).
Approximately one year prior to Plaintiff’s termination, Plaintiff filed a charge
of discrimination against the school alleging age, race, and sex discrimination. (See
Filing No. 1 at CM/ECF pp. 7-8.) This charge of discrimination is ADEA-protected
activity. In addition, Plaintiff’s termination is an obvious adverse employment action.
However, the court cannot infer a causal connection between the charge of
discrimination and Plaintiff’s termination. Plaintiff set forth in her Complaint that she
was terminated due to allegations that she fabricated her students’ reading scores.
Plaintiff does not allege these allegations were unfounded or fabricated. The only
allegation Plaintiff makes tying her termination to her previously filed charge of
discrimination is as follows: “I am being retaliated against for filing prior complaints
as Wray was identified in one of my prior complaints.” (Filing No. 1 at CM/ECF p.
10.) According to Plaintiff, Wray is a teacher who, along with the school principal,
tested four of Plaintiff’s students to determine whether Plaintiff had fabricated reading
scores. (Id.) Plaintiff does not allege that Wray—a reading teacher—had anything
to do with the decision to terminate Plaintiff’s employment. Thus, based on the facts
alleged, Plaintiff has failed to state a retaliation claim.
B.

Title VII

Plaintiff also brings claims under Title VII and NFEPA. Title VII makes it
unlawful for an employer “to fail or refuse to hire or to discharge any individual, or
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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. § 2000e2(a)(1). The same analysis
governs Plaintiff’s claims under Title VII and the NFEPA. See Leiting v. Goodyear
Tire & Rubber Co., 117 F.Supp.2d 950, 955 (D. Neb. 2000); Father Flanagan’s Boys’
Home v. Agnew, 590 N.W.2d 688, 693 (Neb. 1999). Plaintiff alleged discrimination
on the basis of race and sex.
i.

Disparate Treatment

To state a prima facie claim of discrimination, a plaintiff must allege facts
showing that (1) she is a member of a protected class; (2) she met her employer’s
legitimate expectations; (3) she suffered an adverse employment action; and (4) the
circumstances give rise to an inference of discrimination. Pye v. Nu Aire, Inc., 641
F.3d 1011, 1019 (8th Cir. 2011). “The required prima facie showing is a flexible
evidentiary standard, and a plaintiff can satisfy the fourth part of the prima facie case
in a variety of ways, such as by showing more-favorable treatment of similarlysituated employees who are not in the protected class, or biased comments by a
decisionmaker.” Id. (internal quotations and citations omitted).
Here, Plaintiff has alleged she is a member of a protected class and she suffered
an adverse employment action (i.e., termination from employment). However, the
court cannot infer Plaintiff was meeting her employer’s legitimate expectations or that
circumstances exist that give rise to an inference of discrimination. Plaintiff offered
a blanket assertion that her “performance [was] satisfactory,” but also alleged she was
terminated because she was suspected of fabricating her students’ reading scores.
Plaintiff did not set forth in her complaint or charge of discrimination that the
suspicion was unfounded. Moreover, Plaintiff did not allege facts suggesting
someone outside of her protected class was treated more favorably and was similarly
situated. Accordingly, Plaintiff has failed to state a discrimination claim upon which
relief may be granted.
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ii.

Retaliation

Title VII also prohibits retaliation against an employee “because he has opposed
any practice made an unlawful employment practice by [Title VII], or because he has
made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a).
For the reasons set forth above in the court’s discussion of Plaintiff’s retaliation
claims under ADEA, Plaintiff has not stated a retaliation claim under Title VII. In
short, the court cannot infer based on the facts as they are alleged that there was a
causal connection between the charge of discrimination and Plaintiff’s termination.
IT IS THEREFORE ORDERED that:
1.
On the court’s own motion, Plaintiff shall have 30 days from the date of
this Memorandum and Order to file an amended complaint that sufficiently alleges an
employment discrimination claim upon which relief may be granted. Failure to file
an amended complaint in accordance with this Memorandum and Order will result in
dismissal of this action without prejudice and without further notice.
2.
The clerk’s office is directed to set a pro se case management deadline
in this case using the following text: January 9, 2015: Check for amended complaint.
DATED this 8th day of December, 2014.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge
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of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
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