Birge v. Nebraska Medicine et al

Filing 6

MEMORANDUM AND ORDER - Plaintiff's state-law defamation claims are dismissed without prejudice to reassertion in the proper forum. Plaintiff's remaining claims are dismissed with prejudice. A separate judgment will issue in accordance with this memorandum and order. Ordered by Senior Judge Richard G. Kopf. (Copy e-mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LISA BIRGE,
Plaintiff,

8:16CV551

vs.
NEBRASKA MEDICINE,
NEBRASKA EQUAL OPPORTUNITY
COMMISSION, et; and US EQUAL
OPPORTUNITY COMMISSION,

MEMORANDUM
AND ORDER

Defendants.
Plaintiff filed her Complaint on December 16, 2016. (Filing No. 1.) She has
been given leave to proceed in forma pauperis. (Filing No. 5.) The court now
conducts an initial review of Plaintiff’s Complaint to determine whether summary
dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I. BACKGROUND
Plaintiff was terminated from her position at The Nebraska Medical Center
on February 8, 2016, after working there for a little over four months. (Filing No. 1
at CM/ECF pp. 12-13.) She filed a charge of discrimination against The Nebraska
Medical Center with the Nebraska Equal Opportunity Commission (“NEOC”),
alleging that she was discriminated against on the basis of her race and disability
and retaliated against due to her request for accommodation. (Id.) On June 28,
2016, the NEOC found no reasonable cause and dismissed Plaintiff’s charge. (Id.
at CM/ECF pp. 14-15.) It specifically found, “The evidence shows that due to
performance issues, Respondent disciplined and ultimately discharged
Complainant. There is no evidence to show any action taken was due to a
discriminatory reason.” (Id.) Plaintiff’s charge was referred to the U.S. Equal

Employment Opportunity Commission (“EEOC”), which adopted the findings of
the NEOC. (Id. at CM/ECF p. 10.) The EEOC mailed a right-to-sue letter to
Plaintiff at the address on her current Complaint on September 13, 2016. (Id.)
On December 16, 2016, Plaintiff filed her Complaint against four
defendants: The Nebraska Medical Center, Patrick J. Barrett, the attorney for The
Nebraska Medical Center, the NEOC, and the EEOC. (Id. at CM/ECF p. 2.) She
alleges claims under Title VII of the Civil Rights Act of 1964, the American
Disabilities Act (“ADA”), and the Nebraska Fair Employment Practices Act
(“NFEPA”), Neb. Rev. Stat. § 48-1101 et seq. (Id. at CM/ECF pp. 3, 7.) Plaintiff
alleges that the NEOC and EEOC inadequately investigated her claims. (Id. at
CM/ECF p. 7.) Liberally construed, she also alleges claims of defamation. (Id. at
CM/ECF pp. 7-8.) Plaintiff seeks monetary damages and asks that employees at
The Nebraska Medical Center “be estopped from providing negative, false, and
hurtful gossip . . .” that is making it difficult for her to find employment and is an
“attempt to blacklist [her] out of this career.” (Id. at CM/ECF pp. 6, 8.)
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
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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).
III. DISCUSSION
A. NFEPA Claims
The NFEPA makes it unlawful for an employer to discriminate based on
“race, color, religion, sex, disability, marital status, or national origin” or because
an employee “opposed any practice or refused to carry out any action unlawful
under federal law or the laws of this state.” Neb. Rev. Stat. §§ 48-1104 and 481114. A written charge of violation of the NFEPA shall be filed within 300 days
after the occurrence of the alleged unlawful employment practice. § 48-1118(2).
There is no statute of limitations during the NEOC's proceedings. Adams v.
Tenneco Auto. Operating Co., 358 F. Supp. 2d 878, 880 (D. Neb. 2005). But any
suit following a determination by the NEOC must be filed within 90 days. See §
48-1120.01.
In Hohn v. BNSF Railway, the Eighth Circuit held that a claim filed more
than 90 days after an NEOC determination should have been dismissed. 707 F.3d
995, 1000-01 (8th Cir. 2013). The plaintiff in that case had filed an employment
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discrimination charge with the NEOC which was closed by August 4, 2005, and a
charge with the EEOC which resulted in a right-to-sue letter dated September 21.
Id. at 999. The plaintiff filed suit in federal district court within 90 days of the
EEOC's right-to-sue letter, but more than 90 days after the NEOC's final
determination. Id. The Eighth Circuit held that the plaintiff's NFEPA claim was
untimely because it was not filed within 90 days of the NEOC's determination. Id.
at 1001.
Plaintiff’s Complaint was filed 171 days after the date of the NEOC notice.
Accordingly, Plaintiff’s NFEPA claims must be dismissed.
B. Title VII and ADA Claims
Plaintiff’s Title VII and ADA claims are also time-barred. See 42 U.S.C. §
2000e-5(f)(1); 42 U.S.C. § 12117(a) (applying the 90-day statute of limitations to
ADA claims); Maegdlin v. Int'l Ass'n of Machinists & Aerospace Workers, Dist.
949, 309 F.3d 1051, 1054 (8th Cir. 2002) (affirming the dismissal of Title VII
claims as untimely because they were filed more than 90 days after the issuance of
the right-to-sue letter).
The EEOC right-to-sue letter was mailed to Plaintiff on Tuesday, September
13, 2016. It is presumed that “a properly mailed document is received by the
addressee.” Davis v. U.S. Bancorp, 383 F.3d 761, 766 (8th Cir. 2004). The
document is presumed received three days after mailing. See Baldwin County
Welcome Ctr. v. Brown, 466 U.S. 147, 148 n. 1 (1984) (citing Fed. R. Civ. P. 6(e)
and finding that a notice of right-to-sue issued on January 27 was presumed to
have been received January 30). It is presumed, then, that Plaintiff received the
letter on September 16, 2016. So, the final day of the limitations period was
Thursday, December 15, 2016. Plaintiff filed her Complaint on December 16,
2016, one day late.
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The ninety-day limitations period is subject to equitable tolling. See Hill v.
John Chezik Imports, 869 F.2d 1122, 1124 (8th Cir. 1989). However, Plaintiff’s
allegations defeat any tolling of the limitations period. She alleges that she was
aware in September 2016 of the EEOC decision. (Filing No. 1 at CM/ECF p. 7.)
She then filed a complaint with the Office of the Inspector General instead of in
federal court. (Id.) Plaintiff alleges that, on December 15, 2016, she spoke with an
agent at the Office of the Inspector General, who informed her that she would call
her the following week, but Plaintiff knew that “her deadline is too close and [she]
must file before [she] . . . lost the right to file in federal court.” (Id.) “Equitable
tolling is appropriate only when the circumstances that cause a plaintiff to miss a
filing deadline are out of his hands.” See Heideman v. PFL, Inc., 904 F.2d 1262,
1266 (8th Cir. 1990). Plaintiff’s allegations show that she was aware of the filing
deadline and chose to pursue another avenue of relief first. Accordingly, Plaintiff’s
Title VII and ADA claims must be dismissed.
C. EEOC Claim
Liberally construed, Plaintiff may be attempting to assert a claim against the
EEOC under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
In Bivens, the United States Supreme Court established that a victim of a
constitutional violation by a federal agent has a right to recover damages against
the official in federal court despite the absence of any statute conferring such a
right. 403 U.S. 388. However, a Bivens claims cannot be asserted directly against
the EEOC, an agency of the United States. See FDIC v. Meyer, 510 U.S. 471, 486
(1994) (stating Bivens action for damages is not actionable directly against
agencies of the United States).1 Additionally, “no cause of action against the EEOC
1

In her Complaint, Plaintiff names the EEOC as Defendant No. 4 and lists
“Joseph J. Wilson, State and Local Program Manager” as the “Job or Title” of
Defendant No. 4. (Filing No. 1 at CM/ECF p. 2.) The court presumes that, if he is
considered a named defendant, Wilson is sued in his official capacity because
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exists for challenges to its processing of a claim.” Scheerer v. Rose State Coll., 950
F.2d 661, 663 (10th Cir. 1991) (quotation marks omitted); see, e.g., Jordan v.
Summers, 205 F.3d 337, 342 (7th Cir. 2000); Baba v. Japan Travel Bureau Int'l,
Inc., 111 F.3d 2, 6 (2d Cir. 1997) (per curiam). Plaintiff’s claim against the EEOC
must be dismissed.
D. NEOC Claim
The Eleventh Amendment bars claims for damages by private parties against
a state, state instrumentalities, and an employee of a state sued in the employee’s
official capacity. See, e.g., Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th
Cir. 1995); Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446-47 (8th
Cir. 1995). Any award of retroactive monetary relief payable by the state,
including for back pay or damages, is proscribed by the Eleventh Amendment
absent a waiver of immunity by the state or an override of immunity by Congress.
See, e.g., id.; Nevels v. Hanlon, 656 F.2d 372, 377-78 (8th Cir. 1981).
Plaintiff seeks solely monetary relief against the NEOC, a state agency. Her
claim against the NEOC is therefore barred by the Eleventh Amendment and must
be dismissed.2
Plaintiff did not specify the capacity in which he is sued. See, e.g., Johnson v.
Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (stating that “in order
to sue a public official in his or her individual capacity, a plaintiff must expressly
and unambiguously state so in the pleadings, otherwise, it will be assumed that the
defendant is sued only in his or her official capacity.”). Such a claim is also barred
by sovereign immunity. See Buford v. Runyon, 160 F.3d 1199, 1203 (8th Cir.
1998) (concluding complaint against government official in official capacity is suit
against United States; Bivens action cannot be prosecuted against United States
because of sovereign immunity).
2

To the extent that Plaintiff alleges a claim against Valerie Kimble, the
NEOC officer who handled her charge of discrimination, (See Filing No. 1 at
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E. State-Law Defamation Claims
Plaintiff may also have state-law defamation claims. The court will dismiss
the state law claims without prejudice to reassertion in the proper forum.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s state-law defamation claims are dismissed without
prejudice to reassertion in the proper forum. Plaintiff’s remaining claims are
dismissed with prejudice.
2.
and order.

A separate judgment will issue in accordance with this memorandum

Dated this 27th day of February, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

CM/ECF p. 7), the court likewise assumes that she is sued in her official capacity,
and the claim is barred by sovereign immunity.
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