Collins v. Great Dane Trailers et al

Filing 12

MEMORANDUM AND ORDER - Plaintiff shall file a third amended complaint which states a claim upon which relief can be granted by December 16, 2016. The third amended complaint will supersede, rather than supplement, previous pleadings filed in this cas e. Therefore, Plaintiff must submit both a right-to-sue letter and Charge of Discrimination with his third amended complaint. Failure to file a third amended complaint in accordance with this Memorandum and Order will result in dismissal of this acti on without further notice. The clerk of court is directed to set a pro se case management deadline using the following text: December 16, 2016: check for third amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROGER COLLINS,

)
)
Plaintiff,
)
)
V.
)
)
GREAT DANE TRAILERS, and )
ADVENTURE STAFFING AGENCY, )
)
Defendants.
)
)

8:16CV132

MEMORANDUM
AND ORDER

This matter is before the court upon review of Plaintiff’s Second Amended
Complaint. (Filing No. 9.)
I. BACKGROUND
Plaintiff’s original Complaint alleged he was terminated from his employment
with Defendant Great Dane Trailers based on discrimination. (Filing No. 1 at
CM/ECF p. 7.) He also alleged that Defendant Adventure Staffing Agency refused
to find him a job following his termination. (Filing No. 1 at CM/ECF p. 8.) Plaintiff
maintained that as a result of his termination, he was unable to collect unemployment
benefits, incurred medical bills due to loss of insurance benefits, and fell behind on
other bills. (Filing No. 1 at CM/ECF p. 7.) Plaintiff requested damages totaling
$35,850.00. (Filing No. 1 at CM/ECF p. 10.)
Plaintiff subsequently filed an amended complaint, asserting claims under Title
VII of the Civil Rights Act of 1964 (“Title VII”). (Filing No. 7.) Upon review, the
court concluded that Plaintiff had failed to state a claim. The court noted various
deficiencies with Plaintiff’s amended complaint, as well as Plaintiff’s failure to submit
a right-to-sue letter. Plaintiff was granted leave to file a second amended complaint.

II. SUMMARY OF SECOND AMENDED COMPLAINT
Plaintiff’s Second Amended Complaint alleges that Plaintiff contacted
Defendant Adventure Staffing to help him find employment. Adventure Staffing
helped him obtain a job with Defendant Great Dane Trailers. Plaintiff was told that
he would be considered a temporary worker initially, but that he would become a
permanent employee of Great Dane with higher wages and benefits after 90 days.
Plaintiff contends that under this arrangement, he was an employee of both Adventure
Staffing and Great Dane at all times relevant to this action.
Plaintiff asserts that on October 12, 2015, near the end of his 90-day
probationary period, he was “racially profiled and taunted aggressively over a two day
period” by a Great Dane employee. (Filing No. 9 at CM/ECF p. 3.) Plaintiff alleges
that he informed his team-leaders and shift-boss about the situation on October 12,
2015. He also called Adventure Staffing on October 13, 2015 and explained what had
happened.
Plaintiff alleges that the situation was investigated by individuals from Great
Dane and Adventure Staffing. Plaintiff further alleges that on October 15, 2016, he
was informed by an individual from Adventure Staffing that the investigation revealed
that Plaintiff was being “racially profiled, taunted, verbally and physically assaulted”
and that Plaintiff defended himself and was not the aggressor. (Filing No. 9 at
CM/ECF p. 4.)
Plaintiff maintains that Great Dane made the decision to terminate him on
October 15, 2015, “knowing that he was becoming [a] permanent [employee].”
(Filing No. 9 at CM/ECF p. 4.) Plaintiff alleges that he asked Adventure Staffing to
find him another job, but Adventure Staffing refused to do so unless he signed a
“promissory letter to Defendant Adventure Staffing Agency just in case another
similar incident occur[red], even though Defendant Adventure Staffing Agency knew
and was told that [Plaintiff] was not the aggressor, which led [Plaintiff] to believe he
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was black balled by Defendant Great Dane Trailers.” (Filing No. 9 at CM/ECF p. 5.)
Plaintiff claims that he took action to get the situation with the Great Dane employee
resolved, but that Great Dane and Adventure Staffing did not protect him from
workplace discrimination, harassment, racial profiling, and assault.
Plaintiff alleges that he submitted a claim with the EEOC on December 1, 2015,
and that he received a right-to-sue letter on February 29, 2016.
III. DISCUSSION
Liberally construed, Plaintiff brings this action under Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e. Title VII forbids employment
discrimination against “any individual” based on that individual’s “race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a).
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 Equal
Employment Opportunity Commission (“EEOC”) or the Nebraska Equal Opportunity
Commission (“NEOC”). 42 U.S.C. § 2000e-5. 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 Mutual
Life Insurance Company, 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). However, the civil complaint may only
encompass issues that are reasonably related to the substance of charges brought
before the EEOC. See Williams v. Little Rock Municipal Water Works, 21 F.3d 218,
222 (8th Cir. 1994).
Plaintiff attached the right-to-sue letter issued by the EEOC to his Second
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Amended Complaint, and it appears that this suit was initiated within 90 days of the
issuance of the letter. However, the Charge of Discrimination Plaintiff filed with the
EEOC was not included. Without that document, it is impossible for the court to
determine whether Plaintiff’s claims in this court grow “out of or [are] like or
reasonably related to the substance of the allegations in the administrative charge.”
Dorsey v. Pinnacle Automation Co., 278 F.3d 830, 838 (8th Cir. 2002).
The court will allow Plaintiff to file a another amended complaint, attaching
both the right-to-sue letter and the Charge of Discrimination he filed with the EEOC.
When drafting his third amended complaint, Plaintiff should take care to cure other
deficiencies in his Second Amended Complaint. A few of these deficiencies are
outlined below.
To prove a claim for hostile work environment, Plaintiff must establish that “(1)
he is a member of a protected group; (2) he was subject to unwelcome race-based
harassment; (3) the harassment was because of membership in the protected group;
and (4) the harassment affected a term, condition, or privilege of employment.”
Malone v. Ameren UE, 646 F.3d 512, 517 (8th Cir. 2011). “Conduct of others in a
workplace affects a term, condition, or privilege of employment under Title VII only
if it is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Id. at 517 (quotation
omitted). Relevant considerations in evaluating such claims include “the frequency
of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with
an employee’s work performance.” Id. at 517. The facts alleged by Plaintiff are
insufficient to state a viable hostile work environment claim.
To state a disparate treatment claim of discrimination, Plaintiff must allege facts
showing that “(1) he is a member of a protected class, (2) he met his employer’s
legitimate expectations, (3) he suffered an adverse employment action, and (4) the
circumstances give rise to an inference of discrimination.” Pye v. Nu Aire, Inc., 641
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F.3d 1011, 1019 (8th Cir. 2011). 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
similarly-situated employees who are not in the protected class, or biased comments
by a decisionmaker.” Id. Plaintiff has not actually alleged that he is a member of a
protected class, nor has he plead any facts suggesting he was fired because of his race
or that Adventure Staffing refused to find him another job because of his race.
IT IS THEREFORE ORDERED:
1.

Plaintiff shall file a third amended complaint which states a claim upon
which relief can be granted by December 16, 2016. The third amended
complaint will supersede, rather than supplement, previous pleadings
filed in this case. Therefore, Plaintiff must submit both a right-to-sue
letter and Charge of Discrimination with his third amended complaint.

2.

Failure to file a third amended complaint in accordance with this
Memorandum and Order will result in dismissal of this action without
further notice.

3.

The clerk of court is directed to set a pro se case management deadline
using the following text: December 16, 2016: check for third amended
complaint.

DATED this 22nd day of November, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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