Maclin v. City of Omaha, Nebraska
Filing
20
MEMORANDUM AND ORDER - The City's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) (Filing 17 ) is granted in part and denied as set forth within the order. Plaintiff shall file a third amended complaint no later than 5:00 PM onSeptember 20, 2016. The failure to file a third amended complaint ina timely fashion may result in the dismissal of the entire case withoutfurther notice. Ordered by Senior Judge Richard G. Kopf. (MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MAKAYLA MACLIN,
Plaintiff,
v.
CITY OF OMAHA, NEBRASKA,
Defendant.
)
)
)
)
)
)
)
)
)
)
8:16CV75
MEMORANDUM
AND ORDER
Plaintiff, an African-American female who is employed as an Assistant City
Attorney for the City of Omaha, Nebraska (“the City”), filed this action against the
City under the Nebraska Fair Employment Practices Act (“NFEPA”), Neb. Rev. Stat.
§§ 48-1101 to 48-1125; 42 U.S.C. §§ 1981 and 1983; and Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17, as amended. The City has
filed a motion to dismiss portions of Plaintiff’s second amended complaint pursuant
to Fed. R. Civ. P. 12(b)(6). (Filing 17.)
I. CLAIMS & FACTUAL ALLEGATIONS
Plaintiff brings the following claims:
Count I
Discrimination—Race
NFEPA, Title VII, §§ 1981 & 1983
Count II
Hostile Working Environment—Race
NFEPA, Title VII, §§ 1981 & 1983
Count III
Discrimination—Gender
NFEPA, Title VII
Count IV
Hostile Working Environment—Gender
NFEPA, Title VII
Count V
Discrimination—Gender Plus Race or Race Plus Gender
NFEPA, Title VII
Count VI
Hostile Working Environment—Gender Plus Race or Race Plus
Gender
NFEPA, Title VII
Count VII
Retaliation
NFEPA, Title VII, §§ 1981 & 1983
Count VIII Retaliatory Hostile Working Environment
NFEPA, Title VII, §§ 1981 & 1983
(Filing 16, Second Amended Complaint.)
Plaintiff alleges that the following events occurred during her City employment,
and that such events form the basis for her claims:
Aug. 2004
Plaintiff began her employment with the City of Omaha.
Feb. 2009
After Plaintiff filed a complaint of discrimination against a white
co-worker, the City failed to conduct annual performance
evaluations of Plaintiff. The City failed to advise Plaintiff of the
status of her complaint or the City’s findings, and the “unlawful
conduct has continued throughout Plaintiff’s tenure of
employment.”
Oct. 2011
Plaintiff “was prohibited” from applying for a promotion to Senior
Attorney, in violation of City policy and despite the fact she was
qualified for the position.
Late 2012-Early
2013
Plaintiff took maternity leave and was required to meet
substantially more stringent conditions than at least one similarly
situated white female employee who also took maternity leave.
The City required Plaintiff to take FMLA leave, use 480 hours of
2
sick leave, submit leave slips for all leave taken, and attend a work
meeting while on leave.
After Plaintiff took maternity leave, City managerial employees
“repeatedly asked Plaintiff if she is pregnant and/or if she is
planning on becoming pregnant.” Such questions have “continued
through the present.” City managerial employees have stated that
“women should not be hired as they may get pregnant” and have
referred to women as “uterus factories.”
Plaintiff was assigned to the worst courtroom, and after she
returned from FMLA leave, her child-abuse assignment was
permanently given to a white, male employee.
Feb. 2014
Plaintiff’s application for a promotion to Senior Attorney was
rejected in favor of a white employee.
June 2015
Plaintiff was denied promotions to Chief Deputy City Prosecutor
and First Assistant—positions which were given to a white female
and white male, respectively. These promotions were made
without interviews, contrary to City hiring practices, and Plaintiff
had more job experience and longer tenure with the City than
those who were promoted.
Plaintiff submitted a written complaint of discrimination and
retaliation to the City’s human resources department.
Late 2015
Plaintiff applied for another position with the City, but she was
not hired, despite the fact that she was qualified for the job.
2004-2016
Plaintiff’s work performance was satisfactory.
Since 2009, Plaintiff “[o]n numerous occasions” has made verbal
and written complaints of discriminatory and retaliatory conduct
to City management and/or human resources personnel, but the
offending conduct has continued. Plaintiff alleges that such
conduct “has been sufficiently patterned and/or pervasive.” White
employees, male employees, and employees who did not engage
3
in protected activity were treated more favorably than the
Plaintiff.
Plaintiff was told she was hired only because of her race;
managerial employees were upset with the hiring of another
African-American employee; such employees “repeatedly asked”
Plaintiff if she was related to African-American criminal
defendants; and City employees made frequent racist and
offensive remarks during meetings that Plaintiff attended,
including the statement that a criminal defendant must be Native
American because his blood-alcohol level was so high.
Unspecified
Time:
One of the City’s African-American employees was given the
book “Nigger” by a co-worker, and that co-worker “replayed
racist voicemails to members of the defendant’s staff and utilized
racist and offensive slurs in referring to persons of Asian descent.”
Plaintiff had to buy and assemble her own office chair; City
management directed her to remain in her office if she was not in
court; Plaintiff was stripped of her special assignments; and City
management chastised Plaintiff in front of fellow employees.
II. STANDARD OF REVIEW
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “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.” Id. This “plausibility standard” is not
one of probability, “but it asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id. Where a complaint contains facts that are “merely consistent
with” a defendant’s liability, it “stops short of the line between possibility and
plausibility of ‘entitlement to relief.’” Twombly, 550 U.S. at 557 (brackets omitted).
4
“Determining whether a complaint states a plausible claim for relief will . . . be
a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679. “But where the well-pleaded
facts do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to
relief.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)). “While legal conclusions can provide the
framework of a complaint, they must be supported by factual allegations.” Id.
“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. at 678.
III. DISCUSSION
Defendant City of Omaha asserts that portions of Plaintiff’s second amended
complaint must be dismissed for several reasons, each discussed in turn below.
A. Statute of Limitations on § 1983 Claims
The City first argues that Plaintiff’s § 1983 claims arising before September 30,
20111, are barred by Nebraska’s four-year personal-injury statute of limitations. Neb.
Rev. Stat. § 25-207 (Westlaw 2016); Miller v. Norris, 247 F.3d 736, 739 (8th Cir.
2001) (§ 1983 claims are governed by personal-injury statute of limitations of the state
where the claim arose).
Plaintiff implies that the continuing violation doctrine might be applicable here.
(Filing 19, Pl.’s Br. Opp’n Def.’s Mot. to Dism. at CM/ECF p. 4 (“Plaintiff has been
discriminated against for many, many years during her tenure of employment as an
Assistant City Attorney for the City of Omaha, Nebraska.”).) However, while the
continuing violation doctrine may be used to toll the statute of limitations in the
1
Plaintiff originally filed this action on September 30, 2015, in the Douglas
County District Court. The suit was removed to this court on February 16, 2016.
5
context of employment disputes, the doctrine is not applicable to § 1983 claims.
Montin v. Gibson, No. 4:08CV3082, 2009 WL 5034044, at *2 (D. Neb. Dec. 14,
2009); Poor Bear v. Nesbitt, 300 F. Supp. 2d 904, 913 (D. Neb. 2004). Plaintiff does
not argue that the four-year statute of limitations should be tolled for any other reason.
Therefore, I shall grant the City’s motion to dismiss as to Plaintiff’s § 1983
claims that arose before September 30, 2011, because such claims are barred by the
applicable statute of limitations.
B. Timely Filing of Title VII and NFEPA Claims
The City next asserts that under Nebraska’s statute of limitations for
employment-discrimination claims, written charges of NFEPA violations must be
filed within 300 days of the occurrence of the unlawful employment practice. Neb.
Rev. Stat. § 48-1118(2) (Westlaw 2016). The City maintains that because Plaintiff
filed her charge of discrimination with the NEOC/EEOC on September 18, 2015, any
claim arising before September 13, 2014, is not cognizable under the NFEPA or under
Title VII, which has a 180-day filing requirement.2 42 U.S.C. § 2000e-5(e)(1). The
City argues that the only claims that are timely under the 300-day rule are those based
on the events that occurred in 2015. (Filing 16, Second Amended Complaint ¶¶ 1820.)
I shall deny, without prejudice, the City’s motion to dismiss some of Plaintiff’s
Title VII and NFEPA claims for failure to timely file a charge of discrimination
because Plaintiff has not attached a copy of her NEOC/EEOC charge of
discrimination to her second amended complaint such that a date of filing can be
2
The court is confused by the City’s argument because September 13, 2014, to
September 18, 2015, is not 300 days.
6
determined.3 “The filing of a timely charge with the EEOC is not a jurisdictional
prerequisite to a suit in federal court,” but “it is a condition precedent and, like a
statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Dorsey v.
Pinnacle Automation Co., 278 F.3d 830, 835 (8th Cir. 2002) (internal quotation marks
and citation omitted); Germany v. Moonrise Hotel, No. 4:13CV1208, 2013 WL
5442748, at *1 (E.D. Mo. Sept. 30, 2013) (noting that Plaintiff’s failure to attach
EEOC charge of discrimination to complaint prevented court from determining
whether Plaintiff exhausted her administrative remedies as to claims she brought in
court).
Therefore, I shall deny the City’s motion to dismiss on this ground without
prejudice to raising the issue on summary judgment, and I shall grant Plaintiff leave
to attach to her third amended complaint her NEOC/EEOC charge of discrimination
and right-to-sue letter.
C. § 1983 Claims in General
The City next submits that Plaintiff’s § 1983 claims must be dismissed because
she fails to identify the constitutional or federal statutory violations that underlie such
claims. A § 1983 claim requires a plaintiff to allege a violation of rights protected by
the United States Constitution or created by federal statute. West v. Atkins, 487 U.S.
42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). However, a
plaintiff may not use a violation of Title VII as a basis for a § 1983 claim. Henley v.
Brown, 686 F.3d 634, 641 (8th Cir. 2012) (plaintiff may not assert violations of rights
created by Title VII as basis for § 1983 claim; however, § 1983 may be used to
vindicate “rights independently conferred by the Constitution”).
3
Plaintiff’s second amended complaint only alleges that she filed suit in state
court “during the pendency of the NEOC administrative action.” (Filing 16, Second
Amended Complaint ¶ 5.)
7
The Equal Protection Clause of the Fourteenth Amendment confers a right to
be free from racial discrimination in employment, which is “committed with a
discriminatory racial purpose.” Henley, 686 F.3d at 641 (internal quotation marks and
citation omitted). However, Plaintiff has not specifically identified this clause—or
any other—as the source of her § 1983 claims. I shall grant Plaintiff leave to do so,
and I shall deny without prejudice the City’s motion to dismiss on this ground.
D. § 1983 Municipal Liability
The City argues that Plaintiff’s § 1983 claims against it must be dismissed
because the plaintiff failed to allege the existence of a policy, practice, or custom that
caused the violation of Plaintiff’s rights. Monell v. Dep’t of Soc. Servs. of City of New
York, 436 U.S. 658, 694 (1978) (“it is when execution of a government’s policy or
custom, whether made by its lawmakers or by those whose edicts or acts may fairly
be said to represent official policy, inflicts the injury that the government as an entity
is responsible under § 1983”).
The City is correct about the pleading requirements to state a § 1983 claim
against a municipality. Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1214
(8th Cir. 2013) (city could be liable under § 1983 for constitutional violation only if
violation resulted from official municipal policy, unofficial custom, or deliberately
indifferent failure to train or supervise); Davison v. City of Minneapolis, 490 F.3d 648
(8th Cir. 2007) (city could be liable under § 1983 for fire chief denying plaintiff’s
promotion in retaliation for plaintiff’s exercise of First Amendment rights only if one
of city’s customs or policies caused the violation of plaintiff’s constitutional rights);
Uland v. City of Winsted, 570 F. Supp. 2d 1114, 1119 (D. Minn. 2008) (dismissing §
1983 claim against city for plaintiff’s failure to allege that violation of constitutional
rights occurred pursuant to a custom, practice, or official policy by the municipality)
(citing Springdale Educ. Ass’n v. Springdale Sch. Dist., 133 F.3d 649, 651 (8th
Cir.1998)).
8
While it is conceivable that Plaintiff’s description of several instances of
discrimination and retaliation she experienced over many years while working for the
City is an attempt to allege a “custom” or “practice” that could serve as a basis for the
City’s § 1983 liability, Plaintiff’s second amended complaint does not clearly allege
this. I shall grant Plaintiff leave to make such allegations, and I shall deny the City’s
motion to dismiss on this basis without prejudice to reassertion in a properly
supported motion for summary judgment.
E. § 1983 Retaliation Claim
Finally, the City urges dismissal of Plaintiff’s § 1983 retaliation claims because
Title VII provides the exclusive remedy for claims of retaliation. (Filing 18, Br. Supp.
Mot. Dism. at CM/ECF p. 6.)
It is true that 42 U.S.C. § 2000e-3(a)4 of Title VII may not serve as the basis for
a retaliatory discharge claim in a § 1983 action, but § 1983 does “provide[] a vehicle
for redressing claims of retaliation on the basis of the First Amendment.” Burton v.
Arkansas Sec’y of State, 737 F.3d 1219, 1236 (8th Cir. 2013) (internal quotation
marks, emphasis, and citation omitted) (stating that “claims based on the allegation
that [plaintiff] was treated differently in retaliation for his speech are, at their core,
free-speech retaliation claims . . . .”; “The right to be free from retaliation is clearly
established as a first amendment right and as a statutory right under Title VII . . . .”
(internal quotations and citations omitted)); Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d
980, 986 (8th Cir. 2011) (explaining that “[a]lthough section 704(a) of Title VII may
not be the basis for a retaliatory discharge claim in a § 1983 action, § 1983 provides
4
Section 2000e-3(a) of Title VII provides that an employer may not
“discriminate against any of his employees or applicants for employment . . . because
he has opposed any practice made an unlawful employment practice by [Title VII],
or because he has made a charge [of discrimination] . . . under [Title VII].”
9
a vehicle for redressing claims of retaliation on the basis of the First Amendment”)
(internal quotation marks and citation omitted).
Further, “[t]he Supreme Court has explained that it is ‘well embedded’ that §
1981 also allows for retaliation claims,” Ellis v. Houston, 742 F.3d 307, 319 (8th Cir.
2014) (quoting CBOCS W., Inc. v. Humphries, 553 U.S. 442, 451 (2008)), and such
claims “are analyzed under the same McDonnell Douglas burden shifting framework
as Title VII claims.” Id. In short, “employers cannot lawfully retaliate against an
employee based on race and . . . § 1981 provides a cause of action for any employee
experiencing such retaliation.” Id. at 325. See also DePriest v. Milligan, 823 F.3d
1179, 1185-86 (8th Cir. 2016) (noting that retaliation claims brought under § 1983
(First Amendment) and state civil rights act are analyzed under “the same framework
as claims of retaliation under Title VII”); Butler v. Crittenden Cty., Ark., 708 F.3d
1044, 1050-51 (8th Cir. 2013) (retaliation claim under § 1981 and First Amendment
claim under § 1983 require plaintiff to “establish a prima facie case of retaliation by
showing that (1) she engaged in protected activity, (2) she suffered an adverse
employment action, and (3) a causal connection existed between the two”).
Plaintiff has clearly alleged facts plausibly suggesting that she was subject to
several instances of discrimination and retaliation in her workplace after she exercised
her First Amendment right to make numerous verbal and written complaints of
discriminatory and retaliatory conduct to City management and human-resources
personnel. However, as with her potential equal-protection claim, Plaintiff has failed
to explicitly state that her § 1983 retaliation claim is based on the First Amendment.
I shall deny the City’s motion to dismiss Plaintiff’s § 1983 retaliation claims without
prejudice to reassertion on summary judgment, and I shall grant Plaintiff leave to file
a third amended complaint to identify the constitutional basis for this claim.
Accordingly,
IT IS ORDERED:
10
The City’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) (Filing 17)
is granted in part and denied in part as follows:
1.
The City’s motion to dismiss Plaintiff’s § 1983 claims that are based on
events that occurred before September 30, 2011, is granted because such
claims are barred by the applicable statute of limitations. Accordingly,
the following claims, insofar as they are based on 42 U.S.C. § 1983 and
on instances of discrimination, retaliation, and creation of a hostile work
environment before September 30, 2011, are dismissed under Fed. R.
Civ. P. 12(b)(6): Count I (Race Discrimination); Count II (Hostile
Working Environment Based on Race); Count VII (Retaliation); and
Count VIII (Retaliatory Hostile Working Environment);
2.
The City’s motion to dismiss some of Plaintiff’s Title VII and NFEPA
claims for failure to timely file a charge of discrimination is denied
without prejudice to raising the issue on summary judgment, and
Plaintiff is directed to attach a copy of her NEOC/EEOC charge of
discrimination and right-to-sue letter to her third amended complaint;
3.
The City’s motion to dismiss Plaintiff’s § 1983 claims for failure to
identify the constitutional or federal statutory violations that underlie
such claims is denied without prejudice, and Plaintiff is granted leave to
file a third amended complaint to identify the constitutional violation on
which her § 1983 claims are based;
4.
The City’s motion to dismiss Plaintiff’s § 1983 claims for failure to
allege the existence of a policy, practice, or custom that caused the
violation of Plaintiff’s rights is denied without prejudice to reassertion
in a properly supported motion for summary judgment. Plaintiff is
granted leave to file a third amended complaint to allege the existence of
11
a policy, practice, or custom that caused the violation of Plaintiff’s
rights;
5.
The City’s motion to dismiss Plaintiff’s § 1983 retaliation claims is
denied without prejudice to reassertion on summary judgment, and
Plaintiff is granted leave to file a third amended complaint to identify the
constitutional basis for this claim.
6.
Plaintiff shall file a third amended complaint no later than 5:00 PM on
September 20, 2016. The failure to file a third amended complaint in
a timely fashion may result in the dismissal of the entire case without
further notice.
DATED this 18th day of August, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?