Collins v. FbG Cleaning Service

Filing 11

MEMORANDUM AND ORDER that this action is dismissed without prejudice. Judgment will be entered by separate document. 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
ROGER COLLINS,
Plaintiff,
V.
FBG CLEANING SERVICES, et al.,
Defendants.

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8:16CV241

MEMORANDUM
AND ORDER

This matter is before the court upon review of Plaintiff’s Second Amended
Complaint. (Filing No. 10.) For the reasons set forth below, this action will be
dismissed.
I. BACKGROUND
Plaintiff filed an Amended Complaint in this action, asserting claims under the
Fair Labor Standards Act, 29 U.S.C. § 201, et seq., and relevant state law. Upon initial
review of Plaintiff’s Amended Complaint, the court concluded that Plaintiff had not
sufficiently alleged an FLSA violation. (Filing No. 9.) However, the court granted
Plaintiff leave to file a second amended complaint.
II. SUMMARY OF SECOND AMENDED COMPLAINT
Plaintiff’s Second Amended Complaint alleges that Plaintiff was employed by
Defendant FBG cleaning services on May 4, 2016, in a janitorial position. He claims
that he was terminated on or about May 14, 2016 because of his race. He maintains
that he complained “about discrimination following [his] termination, and due to [his]
race, color and in retaliation for [his] complaint” to the Department of Labor, FBG
withheld a portion of his wages from his final paycheck. (Filing No. 10.)

Plaintiff alleges that FGB sent his wages to the Department of Labor on June
21, 2016, and that the Department mailed his wages to him.
III. DISCUSSION
Liberally construed, Plaintiff’s Second Amended Complaint asserts claims
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).
Plaintiff has not shown he exhausted his administrative remedies by attaching
a right-to-sue notice to his Second Amended Complaint. Moreover, even if Plaintiff
had submitted the notice, Plaintiff has failed to assert a plausible claim under Title
VII. Plaintiff has pled nothing to support his allegation that he was terminated due to
his race, or that his wages were withheld due to his race. Plaintiff’s conclusory
assertions in this regard do not support a Title VII claim.
Plaintiff’s Second Amended Complaint also purports to assert a retaliation
claim under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. To
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make out a prima facie case of retaliation under the FLSA, an employee must show
that (1) he participated in a statutorily-protected activity, (2) he experienced an
adverse employment action, and (3) that a causal connection existed between the two.
Grey v. City of Oak Grove, Missouri, 396 F.3d 1031, 1034-35 (8th Cir. 2005).
Plaintiff has failed to set forth a plausible FLSA claim. Plaintiff alleges that he
was terminated on or about May 14, 2016. He claims that he received his final
paycheck on June 2, 2016, but that he did not receive compensation for three-days of
work. Thereafter, he filed a complaint with the Department of Labor about the unpaid
wages. Plaintiff maintains that his wages were withheld because he filed a complaint
with the Department of Labor, however, the sequence of events set forth in the Second
Amended Complaint does not support this claim. Plaintiff was terminated and issued
his final paycheck before he contacted the Department of Labor, and there is no
allegation that Plaintiff complained about not receiving wages prior to his termination.
In short, there is no indication that Plaintiff experienced an adverse employment
action due to his grievance. Therefore, Plaintiff’s FLSA claim will be dismissed.
IT IS THEREFORE ORDERED that this action is dismissed without prejudice.
Judgment will be entered by separate document.
DATED this 8th day of December, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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