Tremaine v. Goodwill Industries, Inc.

Filing 11

MEMORANDUM AND ORDER - The Defendant's Motion to Dismiss, ECF No. 6 , is granted. The Plaintiff's Third Claim for Relief, based on alleged violations of the Nebraska Fair Employment Practices Act, is dismissed. The Defendant will respond to the remaining allegations in the Plaintiff's First Amended Complaint on or before February 13, 2017. Ordered by Chief Judge Laurie Smith Camp. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

ROSS F. TREMAINE,
Plaintiff,

8:16CV488

vs.
MEMORANDUM AND ORDER
GOODWILL INDUSTRIES, INC., a
Nebraska nonprofit corporation;
Defendant.

This matter is before the Court on the Motion to Dismiss, ECF No. 6, filed by
Defendant Goodwill Industries, Inc. (“Defendant”) pursuant to Federal Rule of Civil
Procedure 12(b)(6). For the reasons stated below, the Motion will be granted, and the
Plaintiff’s Third Claim for Relief, asserting a violation of the Nebraska Fair Employment
Practices Act, Neb. Rev. Stat. §48-1101 et seq. (“NFEPA”), will be dismissed.
BACKGROUND
For purposes of the pending Motion, the facts alleged in the Plaintiff’s First
Amended Complaint, ECF 5, (“Comp.”), are presumed to be true. The following is a
summary of those facts.
Defendant employed Plaintiff Ross F. Tremaine (“Tremaine”) as a Facilities
Manager beginning on October 15, 2011, and eventually promoted him to Facilities
Director.

Comp. ¶ 1, ECF No. 5, Page ID 21.

Defendant terminated Tremaine’s

employment on July 10, 2015, and Tremaine filed this lawsuit alleging age and sex
discrimination in violation of state and federal law as well as retaliation for opposing an
unlawful practice or act in violation of the NFEPA, at Neb. Rev. Stat § 48-1114(3).

Comp. ¶ 49, ECF No. 5, Page ID 35. Defendant now moves to dismiss Tremaine’s
NFEPA claim pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which
relief can be granted. ECF No. 6.
Tremaine asserts that in March of 2015, he notified Defendant’s executive board
that its West Center retail store located at 8310 Spring Street (the “West Center Store”)
was infested with bed bugs. Comp. ¶ 4, ECF No. 5, Page ID 22. Accordingly, he
recommended that the West Center Store be closed immediately and until the
infestation could be treated because “it posed a threat to the public and constituted a
public health violation.” Id. Defendant’s executive board, however, decided the bed
bug treatment should coincide with a previously scheduled shelving installation, leaving
the West Center Store open and untreated for four days.

Id.

Tremaine allegedly

opposed this course of action, and he asserts that the Defendant terminated his
employment in retaliation. Comp. ¶ 55-7, ECF No. 5, Page ID 36. Defendant cited
Tremaine’s unauthorized personal use of company tools as the basis for his termination.
Comp. ¶ 55, ECF No. 5, Page ID 36.

Tremaine, however, maintains his use of

company tools was a pretext, and that Defendant terminated him in retaliation for his
“outspoken opposition to [Defendant’s] improper and illegal handling of the West Center
Store’s bed bug infestation.” Comp. ¶ 58, ECF No. 5, Page ID 36.
STANDARD OF REVIEW
A complaint must contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To satisfy this requirement, a
plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”
Corrado v. Life Inv'rs Ins. Co. of Am., 804 F.3d 915, 917 (8th Cir. 2015) (quoting Bell
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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.” Barton v. Taber, 820
F.3d 958, 964 (8th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015)
(quoting Iqbal, 556 U.S. at 678), cert. denied, 135 S. Ct. 2941 (2015). The Court must
accept factual allegations as true, but it is not required to accept any “legal conclusion
couched as a factual allegation.” Brown v. Green Tree Servicing LLC, 820 F.3d 371,
373 (8th Cir. 2016) (quoting Twombly, 550 U.S. at 555). Thus, “a pleading that offers
‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action
will not do.’” Ash v. Anderson Merchandisers, LLC, 799 F.3d 957, 960 (8th Cir. 2015)
(quoting Iqbal, 556 U.S. at 678), cert. denied, 136 S. Ct. 804 (2016).
On a motion to dismiss, courts must rule “on the assumption that all the
allegations in the complaint are true,” and “a well-pleaded complaint may proceed even
if it strikes a savvy judge that actual proof of those facts is improbable, and “‘that a
recovery is very remote and unlikely.’” Twombly, 550 U.S. at 555-56 (quoting Scheuer
v. Rhodes, 416 U.S. 232, 236 (1974)). “Determining whether a complaint states a
plausible claim for relief…[is] a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Mickelson v. Cty. of Ramsey, 823
F.3d 918, 923 (8th Cir. 2016) (alternation in original) (quoting Iqbal, 556 U.S. at 678).
DISCUSSION

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Retaliation claims under the NFEPA are governed by the same standard as
claims for retaliation under Title VII. Al-Zubaidy v. TEK Indus., Inc., 406 F.3d 1030,
1039 (8th Cir. 2005) (quoting City of Fort Calhoun v. Collins, 243 Neb. 528, 531 (1993)
(explaining the NFEPA “is patterned after Title VII” and “it is appropriate to consider
federal court decisions construing the federal legislation”)). To establish a prima facie
case of discrimination under the NFEPA, a plaintiff must show “(1) she engaged in a
statutorily protected activity, (2) an adverse employment action was taken against her,
and (3) a causal connection exists between the two events.” Reyes v. Pharma Chemie,
Inc., 890 F. Supp. 2d 1147, 1167 (D. Neb. 2012) (citing Gacek v. Owens & Minor
Distribution, Inc., 666 F.3d 1142, 1146 (8th Cir. 2012)).
Section 48-1114(3) protects employees from employer discrimination where the
employee “oppose[s] any practice or refuse[s] to carry out any action unlawful1 under
federal law or the laws of this state.” Neb. Rev. Stat. § 48-1114(3). This statutory
protection is only afforded, however, “when the employee reasonably and in good faith
believes the [employer’s] act to be unlawful.” Wolfe v. Becton Dickinson and Co., 266
Neb. 53, 61 (2003). Thus, “[t]he plaintiff must not only have a subjective (sincere, good
faith) belief that he opposed an unlawful practice; his belief must also be objectively
reasonable . . . .” Hamner v. St. Vincent Hosp. and Health Care Ctr., 224 F.3d 701, 707
(7th Cir. 2000). “In order for such a belief to be reasonable, the act believed to be
unlawful must either in fact be unlawful or at least be of a type that is unlawful.” Wolf,
266 Neb. at 606.
1

Section 48-1102 of the NFEPA clarifies that “[u]nlawful under federal law or the laws of this
state shall mean acting contrary to or in defiance of the law or disobeying or disregarding the law.” Neb.
Rev. Stat. § 48-1102.

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Defendant assert Tremaine has not pled sufficient facts to show he opposed an
unlawful activity or practice and, as such, he cannot maintain a claim under § 481114(3), based on alleged retaliation for engaging in statutorily protected activity. See
ECF No. 7, Page ID 45-6. While it may be inferred from the allegations in Tremaine’s
Amended Complaint that he believed the Defendant violated state or federal law when it
kept the West Center Store open for four days despite an alleged bed bug infestation,
Tremaine has not pled facts that show Defendant engaged in activity that is “in fact [ ]
unlawful or at least [ ] of a type that is unlawful.” Wolfe, 266 Neb. at 606. Tremaine’s
subjective belief that Defendant acted unlawfully does not constitute “enough facts to
state a claim to relief” under § 48-1114(3) “that is plausible on its face.” Corrado, 804
F.3d at 917 (quoting Twombly, 550 U.S. at 570).
Although Tremaine alleges that he “was aware that knowingly keeping the store
open while the facility was infested with bed bugs [constituted] a public health code
violation,” he fails to cite any health code or other body of law that prohibited such
conduct. Comp. ¶ 53, ECF No. 5, Page ID 35. Rather, he repeats “mere conclusory
statements” that Defendant committed public health violations, which do not suffice for
purposes of stating a claim. Zink, 783 F.3d at 1098 (quoting Iqbal, 556 U.S. at 678).
A retaliation claim under § 1114(3) cannot survive a motion to dismiss under Fed.
R. Civ. P. 12(b)(6), where the plaintiff fails to state any facts that show, at some level,
that the defendant violated federal or Nebraska state law. See Wolfe, 266 Neb. at 606
(citing Hamner, 224 F.3d at 707 (“[i]f a plaintiff opposed conduct that was not proscribed
by [law], no matter how frequent or severe, then his sincere belief that he opposed an
unlawful practice cannot be reasonable”)).
5

Tremaine’s brief in opposition to Defendant’s Motion cites to the Environmental
Protection Agency (“EPA”) website, Bed Bugs are Public Health Pests, EPA, (Jan. 23,
2017),

https://www.epa.gov/bedbugs/bed-bugs-are-public-health-pests.,

and

the

Nebraska Administrative Code, 25 Neb. Admin. Code § 2-005.02B(8)(a), in an attempt
to remedy the defective Amended Complaint.2 ECF No. 9, Page ID 56. The EPA
website excerpt provides nothing more than health information on bed bugs. The cited
Nebraska Administrative Code section regulates standards for pesticide applicators and
provides no insight to the legality of Defendant’s conduct with respect to the alleged bed
bug infestation. Tremaine’s citation to these sources does not remedy the Amended
Complaint’s failure to state a claim under § 48-1114(3) of the NFEPA.
Tremaine’s brief offers the theory of premises liability as the basis for his belief
that Defendant acted unlawfully. ECF No. 9, Page ID 56-7. The Nebraska Supreme
Court, however, has not recognized opposition to potential premises liability, or potential
civil liability in general, as a basis for a retaliation claim under § 48-1114(3). “When the
forum state’s highest court has not decided an issue, federal courts . . . must attempt to
predict how the state’s highest court would resolve the question.” Highland Indus. Park,
Inc. v. BEI Defense Systems Co., 357 F.3d 794, 798 (8th Cir. 2004). The Nebraska
Supreme Court has provided some guidance in stating that the NFEPA is “not a general
‘bad acts’ statute,” Wolfe, 266 Neb. at 58 (quoting Wimmer v. Suffolk County Police
Dept., 176 F.3d 125, 135 (2d Cir. 1999), and, as such, this Court will not attempt to

2

Tremaine’s Amended Complaint does not make reference to either of these sources and alleges
no violation of law thereunder.

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interpret or extend Nebraska law to recognize opposition to potential civil liability as a
legitimate basis for a retaliation claim under § 48-1114(3) of the NFEPA. Accordingly,
IT IS ORDERED:
1.

The Defendant’s Motion to Dismiss, ECF No. 6, is granted;

2.

The Plaintiff’s Third Claim for Relief, based on alleged violations of

the Nebraska Fair Employment Practices Act, is dismissed; and
3.

The Defendant will respond to the remaining allegations in the

Plaintiff’s First Amended Complaint on or before February 13, 2017.
Dated this 27th day of January, 2017.

BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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