Robinson v. Bridgeport Public Schools, et al

Filing 6

MEMORANDUM AND ORDER that the Plaintiff's claims against individual defendants Lambert, Corman, Norman, Anderson, Linders, Pohl, Barnette, Asche, and Miller are dismissed with prejudice. Plaintiff must file an amended complaint within 30 day s of the date of this order that asserts plausible claims for relief under Title VII and the ADEA, if the facts support such claims. To the extent Plaintiff intended to allege something other than, or in addition to, claims under Title VII and the ADEA, he must so provide in his amended complaint. Plaintiff shall attach to his amended complaint the Charge of Discrimination he filed with the EEOC against BPS for discrimination based on "age and gender" on August 5, 2014. Plaintiff&# 039;s failure to act in accordance with this order will result in dismissal of this action. The clerk's office is directed to set the following pro se case management deadline: August 18, 2016: Check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PATRICK ROBINSON,

)
)
Plaintiff,
)
)
v.
)
)
BRIDGEPORT PUBLIC SCHOOLS, )
a public school district in Nebraska,
)
CHUCK LAMBERT, in his official
)
capacities, JUSTIN CORMAN, in his )
official capacities, LINDA
)
NORMAN, in her official capacities, )
KAY ANDERSON, in her official
)
capacities, SCOTT LINDERS, in his )
official capacities, JEFF POHL, in his )
official capacities, CRAIG
)
BARNETTE, in his official
)
capacities, MATTHEW ASCHE, in
)
his official capacities, and DAVID
)
MILLER, in his official capacities,
)
)
Defendants.
)
)

8:16CV177

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint (Filing No. 1) in this matter, and this court has
given him leave to proceed in forma pauperis. The court now conducts an initial
review of his Complaint to determine whether summary dismissal is appropriate under
28 U.S.C. § 1915(e)(2).
I. SUMMARY OF COMPLAINT
Plaintiff, a 47-year-old male, worked for defendant Bridgeport Public Schools
(“BPS”) from August 2013 to March 2015 as a curriculum and assessment
coordinator. (Filing No. 1 at CM/ECF p. 6.) Plaintiff alleges that BPS, along with its

former and current superintendent, school board members, and high school principal,
discriminated and retaliated against him and subjected him to a hostile work
environment, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. §§ 2000e-2000e-17.
Plaintiff claims that in December 2013, two BPS teachers falsely accused him
of using an electronic device to initiate inappropriate contact with a minor female
student, and BPS failed to follow statutory protocol for reporting such crimes for
investigation, which resulted in harassment and a hostile work environment that
irreparably damaged Plaintiff’s reputation and resulted in loss of his job. (Filing No.
1 at CM/ECF pp. 5 & 8.)
Specifically, Plaintiff asserts that BPS has never given him documentation
regarding the accusation, nor did it reveal the identity of Plaintiff’s accusers until his
termination hearing. (Filing No. 1 at CM/ECF p. 8.) In December 2013, when
Plaintiff was first accused of wrongdoing, he twice asked school officials for
information and was rebuffed. Later that month, Robinson started preparing a
complaint of discrimination with the United States Equal Employment Opportunity
Commission (“EEOC”). In January 2014, a BPS teacher told Plaintiff that he had
heard about the allegations against Plaintiff from a BPS counselor. Robinson
requested that the school superintendent begin an immediate investigation into the
counselor’s breach of confidentiality.
Also in January 2014, Plaintiff told a school board member about the EEOC
complaint that Plaintiff had initiated, but not formally filed, after which Plaintiff
received a letter from the superintendent stating that the investigation into Plaintiff’s
alleged conduct had been concluded. That same month, Plaintiff filed a “testing
security violation report” with the superintendent and the Nebraska Department of
Education. The superintendent ordered Plaintiff to withdraw the report, which he
refused to do. (Filing No. 1 at CM/ECF p. 9.)

2

Plaintiff then asked, and was denied, permission from the superintendent to
discuss with the school board the hostile work environment at BPS and how Plaintiff
had been treated. Plaintiff then contacted the school board president, who allowed
him to meet with the board in executive session. During this meeting, Plaintiff
requested that the board investigate how he had been treated and that the board make
clear to BPS staff that he had been found not guilty of misconduct. (Filing No. 1 at
CM/ECF p. 10.)
In February 2014, the superintendent notified Plaintiff that an evaluation of his
performance had been completed although Plaintiff had not participated in a
performance review. In March 2014, Plaintiff again requested, but was denied,
permission to meet with the school board to get an update on Plaintiff’s prior request
to investigate. Plaintiff then filed “certification investigation requests” with the
Nebraska Department of Education against the school superintendent and principal
“for their failure to follow Nebraska statutes pertaining to child abuse reporting and
failure to follow various [BPS] school board policies.” (Filing No. 1 at CM/ECF p.
11.) In May 2014, Plaintiff submitted a letter to the school board requesting a
grievance hearing, but received no response.
In July 2014, Plaintiff was accused of insubordination when he refused to
answer the new BPS lawyers’ and superintendent’s questions without his attorney
present. (Filing No. 1 at CM/ECF p. 11.) On August 5, 2014, Plaintiff filed an EEOC
complaint against BPS for discrimination based on age and gender. (Filing No. 1 at
CM/ECF p. 12.) On August 11, 2014, Plaintiff filed an EEOC complaint against the
Nebraska State Education Association and the Bridgeport Education Association for
denying him union representation in meetings with school administrators in March
2014.
In August 2014, Plaintiff informed the superintendent of unusually high and
suspicious special education test scores. During a teacher’s union meeting on August
28, 2014, Plaintiff (who was not present) was “subjected to vitriolic, hateful
3

comments by several [BPS] teachers.” (Filing No. 1 at CM/ECF p. 13.) Plaintiff’s
subsequent request that the superintendent perform “harassment investigations” into
the teachers who made such comments was ignored. On August 31, 2014, Plaintiff
complained to the Nebraska Department of Education about his mistreatment and
requested an investigation of the offending personnel at the teacher’s union meeting.
After a meeting with Plaintiff on September 4, 2014, regarding Plaintiff’s
investigation request, the superintendent placed Plaintiff on indefinite administrative
leave with pay and barred him from BPS property. Plaintiff was then notified that the
superintendent had distributed a memorandum to the BPS “community” instructing
them to “refrain from communicating” with Plaintiff and “to secure communications
from” Plaintiff, and also threatening to seize social media account information from
people who communicated with Plaintiff. (Filing No. 1 at CM/ECF p. 14.)
During Plaintiff’s administrative leave, two teachers contacted Plaintiff
regarding testing security procedures, as both teachers had been informed that students
were aware of state writing subject prompts prior to testing. Plaintiff told the teachers
to contact the superintendent and/or the state to inform them of the security breach.
On January 31, 2015, Plaintiff contacted the Nebraska Department of Education office
himself to inform them of the testing breaches described by the teachers, despite the
fact that Plaintiff was on forced administrative leave.
On February 2, 2015, the superintendent issued to Plaintiff a Notice of Intent
to Terminate his employment. Plaintiff was not allowed to personally pick up a copy
of his personnel file, but the file was delivered to his home by a sheriff’s deputy on
February 18, 2014. The file did not contain any letters of reprimand, counseling
statements, or performance improvement plans, according to Plaintiff. (Filing No. 1
at CM/ECF p. 15.) At Plaintiff’s termination hearing on March 6 and 7, 2015, Plaintiff
finally learned the identity of his accusers, and his employment was terminated.
(Filing No. 1 at CM/ECF p. 17.)

4

Plaintiff asserts that BPS’s Findings of Fact in support of his termination
include Plaintiff’s alleged inappropriate conduct with a minor female student, a charge
of which he had been cleared; insubordination, despite the lack of any reprimands
during his employment; incompetent performance, for which Plaintiff had never been
reprimanded or questioned; improper relationship with a textbook salesperson, which
Plaintiff refuted with evidence presented at the hearing; and sending inappropriate
emails to a co-worker, an offense that occurred during Plaintiff’s prior contract year.
The right-to-sue notice attached to Plaintiff’s Complaint reflects that Plaintiff
filed suit in this court within 90 days of his 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).
Plaintiff asserts claims under Title VII for discrimination, retaliation, and a
hostile work environment. (Filing No. 1 at CM/ECF pp. 19-21.)
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). The court must
dismiss a complaint or any portion of it 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.” 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.”).
5

“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds
for a claim, and a general indication of the type of litigation involved.’” Topchian v.
JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v.
Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must
be liberally construed, and pro se litigants are held to a lesser pleading standard than
other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations
omitted).
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
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. 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.”).
III. DISCUSSION OF CLAIMS
A. Exhaustion of Administrative Remedies
Title VII plaintiffs must exhaust their administrative remedies with the EEOC
before filing suit in this court. Tyler v. Univ. of Arkansas Bd. of Trustees, 628 F.3d
980, 989 (8th Cir. 2011). Plaintiff’s complaint states that he filed an EEOC complaint
6

against BPS for discrimination based on “age and gender” on August 5, 2014.1 (Filing
No. 1 at CM/ECF p. 12.) However, Plaintiff has not attached to the Complaint a copy
of his Charge of Discrimination filed with the EEOC, making it impossible to
determine whether his 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) (internal quotation and
citation omitted).
Such a determination is necessary because “[a]llowing a complaint to
encompass allegations outside the ambit of the predicate EEOC charge would
circumscribe the EEOC’s investigatory and conciliatory role, as well as deprive the
charged party of notice of the charge, as surely as would an initial failure to file a
timely EEOC charge.” Dorsey, 278 F.3d at 838 (internal quotation and citation
omitted). Therefore, “[t]he breadth of the civil suit is . . . as broad as the scope of any
investigation that reasonably could have been expected to result from the initial charge
of discrimination.” Id. (internal quotation and citation omitted).
The court shall allow Plaintiff to file an amended complaint attaching the
August 5, 2014, Charge of Discrimination he filed with the EEOC so the court can
determine if Plaintiff has exhausted his administrative remedies. Assuming Plaintiff’s
EEOC charge did include claims for discrimination, retaliation, and a hostile work
environment based on Plaintiff’s age and gender, the court shall analyze those claims
next.
B. Discrimination

1

Plaintiff’s Complaint also alleges that he filed an EEOC charge against the
Nebraska State Education Association and the Bridgeport Education Association on
August 11, 2014, for denying him union representation in meetings with school
administrators. As the Complaint is currently pled, this charge is irrelevant because
it does not involve any defendant in this case.
7

1. Sex/Gender
Under Title VII, it is unlawful for an employer “to fail or refuse to hire or to
discharge any individual, or 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). Discrimination “because of” one’s sex “occurs when sex is ‘a motivating
factor for any employment practice, even though other factors also motivated the
practice.’” Tyler, 628 F.3d at 990 (quoting 42 U.S.C. § 2000e-2(m)).
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. To state a prima facie claim of sex 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
F.3d 1011, 1019 (8th Cir. 2011); see also Tyler, 628 F.3d at 990.
Plaintiff’s Complaint states that he was involuntarily placed on administrative
leave and then terminated due to a false allegation by co-workers that he
inappropriately attempted to contact a minor female student via an electronic device,
even though he was cleared of the accusation. There are no allegations whatsoever
that these adverse employment actions were taken because of Plaintiff’s gender;
rather, Plaintiff’s allegations focus on his mistreatment by BPS co-workers and
administrators related to a false charge that had sexual connotations. The United
States Supreme Court has
never held that workplace harassment, even harassment between men
and women, is automatically discrimination because of sex merely
because the words used have sexual content or connotations. The critical
issue, Title VII’s text indicates, is whether members of one sex are
8

exposed to disadvantageous terms or conditions of employment to which
members of the other sex are not exposed.
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (internal quotation
and citation omitted). In other words, Plaintiff will need to “prove that the conduct
at issue was not merely tinged with offensive sexual connotations, but actually
constituted “discrimina[tion] . . . because of . . . sex.” Id. (quoting 42 U.S.C. § 2000e2(a)(1)).
Because Plaintiff fails to allege that BPS’s adverse employment actions against
him occurred because of his gender, the court shall grant Plaintiff leave to amend his
Complaint to properly allege sexual discrimination under Title VII, if the facts support
such a claim.
2. Age
Plaintiff apparently intends to assert a claim for age discrimination under the
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621, et seq., which
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).
To set forth a prima facie claim of age discrimination, a plaintiff must establish
that (1) he is over 40; (2) he was qualified for the position; (3) he suffered an adverse
employment action; and (4) similarly situated employees outside the class were treated
more favorably. Anderson, 606 F.3d at 523. “The hallmark of an ADEA disparatetreatment 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).

9

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).
As with Plaintiff’s purported sex-discrimination claim discussed above,
Plaintiff has also failed to allege facts suggesting that BPS’s adverse employment
actions against him were because of his age and that other similarly situated
employees who were under 40 were treated more favorably. Accordingly, Plaintiff
may file an amended complaint properly alleging age discrimination under the ADEA,
if the facts support such a claim.
C. Retaliation
Title VII 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). To establish a
prima facie case of retaliation under Title VII, an employee must show: “(1) he
engaged in protected conduct; (2) a reasonable employee would have found the
retaliatory action materially adverse; and (3) the materially adverse action was
causally linked to the protected conduct.” Gibson v. Geithner, 776 F.3d 536, 540 (8th
Cir. 2015).
Here, Plaintiff has alleged that he was placed on administrative leave and then
fired (a materially adverse action) after he filed an EEOC Charge of Discrimination
against BPS for discrimination based on age and gender on August 5, 2014 (protected
conduct), thereby suggesting that BPS fired Plaintiff because he filed an EEOC
Charge of Discrimination. While it remains to be seen whether BPS’s adverse
employment action against Plaintiff was motivated by retaliatory intent, Plaintiff’s
allegations are sufficient to state a claim to relief for retaliation that is plausible on its
face.

10

D. Hostile Work Environment
To establish a prima facie case of hostile work environment based on age or
sex, Plaintiff must show:
(1) membership in a protected group; (2) the occurrence of unwelcome[]
[] harassment; (3) that the harassment occurred because of [his] sex [or
age]; and (4) that the harassment affected a term, condition or privilege
of [his] employment. This demanding standard requires extreme conduct
rather than merely rude or unpleasant conduct. We look to the totality of
the circumstances to consider whether the plaintiff has established that
discriminatory intimidation, ridicule, and insult permeated the
workplace.
Rester v. Stephens Media, LLC, 739 F.3d 1127, 1131 (8th Cir. 2014) (internal
quotations and citations omitted).
As with his discrimination claims, Plaintiff has failed to allege facts stating a
plausible claim for a hostile work environment based on Plaintiff’s age or sex because
the Complaint does not indicate that the alleged harassment occurred because of his
sex or age. Accordingly, the court shall grant Plaintiff leave to file an amended
complaint alleging facts supporting a claim for hostile work environment based on
Plaintiff’s age or sex, if the facts support such a claim.
E. Plaintiff’s Claims Against Individual Defendants
The court will provide Plaintiff with leave to replead his employment
discrimination claims against his employer, BPS. However, the individual2

2

The caption of Plaintiff’s Complaint states that the individual defendants are
sued in their “official capacities,” but the body of the Complaint states that its
allegations refer to “acts and failures to act of each Defendant acting individually.”
(Filing No. 1 at CM/ECF p. 8.)
11

defendants—Lambert, Corman, Norman, Anderson, Linders, Pohl, Barnette, Asche,
and Miller—are not subject to liability under any of the statutes underlying Plaintiff’s
claims. Title VII only imposes liability upon employers, not individual supervisors
or co-workers. Bales v. Wal-Mart Stores, Inc., 143 F.3d 1103, 1111 (8th Cir. 1998).
The same rule applies to claims under the ADEA. See, e.g., Medina v. Ramsey Steel
Co., Inc., 238 F.3d 674, 686 (5th Cir. 2001); Smith v. Lomax, 45 F.3d 402, 403 n.4
(11th Cir. 1995); Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510 (4th Cir. 1994);
Miller v. Maxwell’s Int’l, Inc., 991 F.2d 583, 587 (9th Cir. 1993); see also Feller v.
McCarthy, No. 4:07CV3117, 2007 WL 3204463, at *3 (D. Neb. Oct. 30, 2007);
Rickert v. Midland Lutheran Coll., No. 8:07CV334, 2007 WL 2933229, at *1 (D. Neb.
Oct. 5, 2007).
Consequently, Plaintiff’s claims against all of the individual defendants will be
dismissed, and his action will proceed only against Bridgeport Public Schools.
IV. CONCLUSION
Plaintiff’s Complaint does not indicate that he has exhausted his administrative
remedies with the EEOC as to the claims asserted here. Even if Plaintiff had
established exhaustion, he has not alleged facially plausible claims for discrimination
or hostile work environment based on his age or gender. However, Plaintiff has stated
a plausible claim for retaliation. Plaintiff shall be given leave to file an amended
complaint in compliance with the order set forth below.
IT IS ORDERED:
1.
Plaintiff’s claims against individual defendants Lambert, Corman,
Norman, Anderson, Linders, Pohl, Barnette, Asche, and Miller are dismissed with
prejudice;

12

2.
Plaintiff must file an amended complaint within 30 days of the date of
this order that asserts plausible claims for relief under Title VII and the ADEA, if the
facts support such claims. To the extent Plaintiff intended to allege something other
than, or in addition to, claims under Title VII and the ADEA, he must so provide in
his amended complaint;
3.
Plaintiff shall attach to his amended complaint the Charge of
Discrimination he filed with the EEOC against BPS for discrimination based on “age
and gender” on August 5, 2014;
4.
Plaintiff’s failure to act in accordance with this order will result in
dismissal of this action;
5.
The clerk’s office is directed to set the following pro se case management
deadline: August 18, 2016: Check for amended complaint.
DATED this 15th day of July, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

13