Krueger v. Signs & Shapes Int'l Inc et al

Filing 6

MEMORANDUM AND ORDER - Plaintiff shall file an amended complaint by January 1, 2017, that states a claim upon which relief may be granted. Failure to file an amended complaint within the time specified by the court will result in the court dismissing this case without further notice to Plaintiff. The clerk of the court is directed to set a pro se case management deadline using the following text: January 1, 2017: check for 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
CINDY KRUEGER,

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Plaintiff,
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V.
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SIGNS & SHAPES INT’L INC,
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SCOTT BOWEN, Co-Owner, JEFF
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SCHULTE, Manager, and DEE ANN )
BOWEN, Sr. Sales Manager,
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Defendants.
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)

8:16CV425

MEMORANDUM AND ORDER

This matter is before the court on initial review of Plaintiff’s Complaint
pursuant to 28 U.S.C. § 1915(e). For the reasons that follow, the court finds that
Plaintiff has failed to state a claim upon which relief can be granted. However, on its
own motion, the court will allow Plaintiff to file an amended complaint.
I. APPLICABLE 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”).
“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).
II. SUMMARY OF COMPLAINT
Plaintiff brings this suit pursuant to Title VII of the Civil Rights Act and the
Americans with Disabilities Act. Liberally construed, Plaintiff alleges that her
employer terminated her employment and refused to hire her to fill other job vacancies
within the company on account of her sex, disability and in retaliation for comments
she made regarding discrimination in the workplace. (Filing No. 1.)
Plaintiff filed a Charge of Discrimination with the Nebraska Equal Opportunity
Commission and received a right-to-sue notice on June 13, 2016. Plaintiff instituted
this action on September 9, 2016.
III. DISCUSSION
1.

Title VII Discrimination Claims

Title VII forbids employment discrimination against “any individual” based on
that individual’s “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e2(a). In order to set forth a prima facie case of gender discrimination under Title VII,
Plaintiff must establish that she: (1) is a member of a protected class, (2) was qualified
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for her job, (3) suffered an adverse employment action, and (4) there are facts that
give rise to an inference of gender discrimination. Holland v. Sam’s Club, 487 F.3d
641, 644 (8th Cir. 2007). Here, Plaintiff alleges that she is a member of a protected
class. She also alleges that she suffered an adverse employment action. However,
Plaintiff does not sufficiently allege that she was qualified to perform the work or
describe circumstances which give rise to an inference of discrimination. In short,
Plaintiff has failed to plead sufficient factual content for the court to reasonably infer
that Defendants are liable for the alleged misconduct.
2.

ADA Claim

An employee seeking relief under the ADA must establish that: “[s]he was a
disabled person within the meaning of the ADA, that [s]he was qualified to perform
the essential functions of the job, and that [s]he suffered an adverse employment
action under circumstances giving rise to an inference of unlawful discrimination.”
Kozisek v. County of Seward, Neb., 539 F.3d 930, 934 (8th Cir. 2008). A person is
disabled within the meaning of the ADA if she demonstrates that she has a physical
or mental impairment which substantially limits one or more of her major life
activities, that she has a record of such an impairment, or that she is regarded as
having such an impairment. Amir v. Sta. Louis University, 184 F.3d 1017, 1027 (8th
Cir. 1999).
Plaintiff alleges that she suffers from rheumatoid arthritis and that she was
undergoing testing for cancer at the time she was fired. However, Plaintiff does not
provide any other details regarding her alleged disabilities. Further, Plaintiff does not
describe any circumstances that would give rise to an inference that her termination
or failure to be hired was actually related to any disability. Therefore, Plaintiff has
failed to allege sufficient facts to state a viable ADA claim.

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3.

Retaliation

Under Title VII, it is unlawful for an employer to discriminate against an
employee for opposing “any practice made an unlawful employment practice by this
subchapter.” 42 U.S.C. § 2000e-3. “Conduct protected under the statute includes
opposing ongoing discriminatory treatment as well as participating in an ADA or Title
VII proceeding.” Kozisek v. Vishay Dale Electronics, No. 8:06CV512, 2008 WL
427573, *5 (D. Neb. Feb. 14, 2008). The elements of a retaliation claim under Title
VII or the ADA are: “(1) that the employee engaged in protected opposition to
discrimination, (2) that the employee suffered an adverse employment action, and (3)
that there is a casual connection between the protected activity and the adverse
employment action.” Id.
Plaintiff has not sufficiently alleged how she opposed any discriminatory
practice or that her opposition resulted in her termination or failure to be hired for
another position. Therefore, she has failed to state a plausible retaliation claim.
Out of an abundance of caution, the court will grant Plaintiff leave to file an
amended complaint that states a claim upon which relief can be granted. Failure to
file an amended complaint within the time specified by the court will result in the
court dismissing this action without further notice to Plaintiff.
IT IS THEREFORE ORDERED that:
1.
Plaintiff shall file an amended complaint by January 1, 2017, that states
a claim upon which relief may be granted. Failure to file an amended complaint
within the time specified by the court will result in the court dismissing this case
without further notice to Plaintiff.
2.
The clerk of the court is directed to set a pro se case management
deadline using the following text: January 1, 2017: check for amended complaint.
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DATED this 1st day of December, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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