Thaden v. Transwood, Inc. et al

Filing 11

MEMORANDUM AND ORDER - The Partial Motion to Dismiss Plaintiffs' Complaint, ECF No. 7 , filed by Defendants Transwood, Inc., Transwood Carriers, Inc., and Transwood Logistics, Inc., is granted; Plaintiff's claims in Count II arising un der Neb. Rev. Stat. §§ 20-1231, 20- 124, and the Nebraska Clean Air Act, Neb. Rev. Stat. §§ 71-5701, et seq., are dismissed, with prejudice; and Count III of Plaintiff's Complaint is dismissed, with prejudice. Ordered by Chief Judge Laurie Smith Camp. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

TIMOTHY THADEN,
Plaintiff,

8:17CV108

vs.
MEMORANDUM AND ORDER
TRANSWOOD, INC., TRANSWOOD
CARRIERS, INC., and TRANSWOOD
LOGISTICS, INC.,
Defendants.

This matter is before the Court on the Partial Motion to Dismiss Plaintiff’s
Complaint, ECF No. 7, filed by Defendants Transwood, Inc., Transwood Carriers, Inc.,
and Transwood Logistics, Inc. (collectively “Defendants”). For the reasons stated below,
the Motion will be granted.
BACKGROUND
The following facts are taken from Plaintiff Timothy Thaden’s Complaint, ECF No.
1-1, which the Court accepts as true for the purposes of this Motion to Dismiss.
Defendants employed Thaden as a dispatcher from June 2013 through January
25, 2016. Thaden was disabled and, during his employment, requested accommodation
for his disability. Specifically, on multiple occasions Thaden requested that Defendants
post notices prohibiting smoking in Defendants’ workplace. Defendants did not post
such notices. On January 15, 2016, Thaden advised Defendants that he planned to file
a complaint with the “State Health Department” regarding Defendants’ refusal to post
“No Smoking” signs. On January 25, 2016, Defendants terminated Thaden.

Thaden alleges that his termination was wrongful. Thaden filed a Complaint, Jury
Demand, and Praecipe on February 27, 2017, in the District Court of Douglas County,
Nebraska. See ECF No. 1-1. Defendants removed the action to this Court on March 30,
2017. ECF No. 1. In his Complaint, Thaden sets forth three separate counts. Count I
alleges disability discrimination and failure to accommodate under the Americans with
Disabilities Act Amendments Act (“ADAAA”), 42 U.S.C. §§ 12101 et seq., and the
Nebraska Fair Employment Practices Act (“NFEPA”), Neb. Rev. Stat. § 48-1104. Count
II alleges retaliation for engaging in protected activity in violation of the ADAAA, NFEPA,
Neb. Stat. Rev. §§ 20-1231, 20-124 (referred to collectively in this Memorandum and
Order as the “Free Speech Statute”), Neb. Rev. Stat. § 20-148, and the Nebraska Clean
Air Act, Neb. Rev. Stat. §§ 71-5701, et seq. Count III alleges that Defendants violated
the posting and enforcement provisions of the Nebraska Clean Air Act. Plaintiff seeks
monetary damages for Defendants’ purported violations of these laws.
Defendants argue that Thaden’s claims arising under the Nebraska Clean Air Act
and the Free Speech Statute must be dismissed because neither law creates a private
right of action. Thaden concedes that the Complaint “could have been more artfully
drafted,” Pl. Br., ECF No. 9, Page ID 48, but argues that he may assert public policy
violations under the Clean Air Act and the Free Speech Statute. Thaden requests leave
to amend the Complaint to clarify that he is alleging public policy violations. Defendants
assert that leave would be futile and the claims should be dismissed.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 15(a)(2) states that “a party may amend its
pleading only with the opposing party's written consent or the court's leave. The court
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should freely give leave when justice so requires.”1 “[P]arties should not be allowed to
amend their complaint without showing how the complaint could be amended to save
the meritless claim.” Julianello v. K-V Pharm. Co., 791 F.3d 915, 922 (8th Cir. 2015)
(citation omitted). “Futility is a valid basis for denying leave to amend.” Jackson v.
Riebold, 815 F.3d 1114, 1122 (8th Cir. 2016) (quoting United States ex rel. Roop v.
Hypoguard USA, Inc., 559 F.3d 818, 822 (8th Cir. 2009). Where a court “denies leave
on the basis of futility, it means the district court has reached the legal conclusion that
the amended complaint could not withstand a motion to dismiss under Rule 12(b)(6) of
the Federal Rules of Civil Procedure.” Cornelia I. Crowell GST Tr. v. Possis Med., Inc.,
519 F.3d 778, 782 (8th Cir. 2008).
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 and
withstand a motion to dismiss under Rule 12(b)(6), 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 Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual

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The Court’s local rules also require parties to follow certain requirements when requesting leave
of Court to amend a pleading:
A party who moves for leave to amend a pleading (including a request to add parties)
must file as an attachment to the motion an unsigned copy of the proposed amended
pleading that clearly identifies the proposed amendments. Except as stated in these rules
or court order, the proposed amended pleading must be a complete pleading that, if
allowed to be filed, supersedes the original pleading in all respects; no part of the prior
pleading may be incorporated into the proposed amended pleading by reference. The
motion for leave to amend must (1) specifically state the proposed amendments and (2)
state whether the motion is unopposed or opposed, after conferring with opposing
parties.
NECivR 15.1(a).

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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, 678 (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 complaint’s factual allegations must
be “sufficient to ‘raise a right to relief above the speculative level.’” McDonough v.
Anoka Cty., 799 F.3d 931, 946 (8th Cir. 2015) (quoting Twombly, 550 U.S. at 555). 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 Iqbal, 556 U.S. at 678). 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 & 556 (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 679).
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DISCUSSION
The general rule in Nebraska “is that unless constitutionally, statutorily, or
contractually prohibited, an employer, without incurring liability, may terminate an at-will
employee at any time with or without reason.” Jackson v. Morris Commc'ns Corp., 657
N.W.2d 634, 636 (Neb. 2003). The Nebraska Supreme Court recognizes a public policy
exception to this rule. Id. “Under the public policy exception, we will allow an employee
to claim damages for wrongful discharge when the motivation for the firing contravenes
public policy.” Id. at 637. The public policy exception is narrow:
We believe that it is important that abusive discharge claims of employees
at will be limited to manageable and clear standards. The right of an
employer to terminate employees at will should be restricted only by
exceptions created by statute or to those instances where a very clear
mandate of public policy has been violated.
Id. (quoting Ambroz v. Cornhusker Square Ltd., 416 N.W.2d 510, 515 (Neb. 1987).
Thaden claims that his termination violated the public policies pronounced in the
Nebraska Clean Air Act and the Free Speech Statute. Yet, as Thaden concedes in his
brief, neither statute expressly authorizes a private right of action. Even if the statutes
pronounce a public policy, the Complaint fails to demonstrate that the public policy
exception for termination of at-will employees applies. Nor has Thaden proposed any
amendment to his pleading that would support a plausible claim with respect to Counts
II and III of his Complaint.
I. Violation of the Clean Air Act
Thaden alleges that Defendants retaliated against him by terminating him after
he requested that Defendants comply with the Clean Air Act (Count II) and that he
suffered damages as a result of Defendants’ failure to comply with the Clean Air Act
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(Count III). The Court concludes that the public policy exception does not apply to either
claim.
A. Count II: Retaliation Under the Clean Air Act
The statutory scheme of the Clean Air Act vests the Nebraska Department of
Health and Human Services (“DHHS”) with the right to “institute an action in any court
with jurisdiction to enjoin a violation of the Nebraska Clean Indoor Air Act.” Neb. Rev.
Stat. Ann. § 71-5732(1). Section 71-5732(1) permits any interested party to report
potential violations to the DHHS. Section 71-5732(2) states that “[n]o employer shall
discharge, refuse to hire, or in any manner retaliate against an employee . . . because
such employee . . . reports or attempts to report a violation of the act.” Thaden argues
that this language supports application of the public policy exception to his retaliation
claim.
Thaden argues that the Nebraska Supreme Court’s decision in Wendeln v. The
Beatrice Manor, Inc., 712 N.W.2d 226, 238 (Neb. 2006), supports his position. In
Wendeln, the plaintiff brought an action against her former employer, alleging retaliatory
discharge in contravention of public policy. 712 N.W.2d at 232. The plaintiff, a nursing
home employee, reported suspected patient abuse as required by the Nebraska Adult
Protective Services Act (“APSA”), Neb. Rev. Stat. § 28-372(1). Failure to report under
the APSA resulted in potential criminal sanctions. Id. The court permitted the plaintiff’s
wrongful-discharge claim to proceed under the public policy exception holding “that the
purpose of the APSA would be circumvented if employees mandated by the APSA to
report suspected patient abuse could be threatened with discharge for making such a
report.” Wendeln, 712 N.W.2d at 239. The court reasoned that the mandatory reporting
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requirement went “well beyond merely praiseworthy conduct.” Id. (citation omitted). The
purpose of the criminal sanction of the APSA was to ensure mandatory reporting, thus,
“a public policy exception to the employment-at-will doctrine applies to allow a cause of
action for retaliatory discharge when an employee is fired for making a report of abuse
as mandated by the APSA.” Id. at 240.
Unlike the APSA, the Clean Air Act does not contain a mandatory reporting
requirement. The reporting of violations of the Clean Air Act is expressly permissible,
but not mandatory. See § 71-5732(2) (“Any interested party may report possible
violations of the act to such departments.”) (emphasis added). In Wendeln, the
mandatory reporting requirement pushed the plaintiff’s report beyond “merely
praiseworthy conduct” not protected by the public policy exception. Wendeln, 712
N.W.2d at 239. Because the Clean Air Act does not contain a mandatory reporting
requirement, the reasoning in Wendeln regarding the mandatory reporting requirements
does not apply.
Further, the retaliation provision of § 71-5732(2) expressly prevents retaliation
against an employee who “reports or attempts to report” a violation of the Clean Air Act.
Although Thaden alleges that he announced his intention to file a complaint with the
DHHS, there is no allegation that he did so or attempted to do so. Thaden’s argument
would require the public policy to extend not only to reports of violations or attempts to
report violations, but also threats to report violations of the Clean Air Act. The Nebraska
Supreme Court has limited the public policy exception to those created by statute and
“very clear mandate[s] of public policy.” See Jackson, 657 N.W.2d at 637. Extending the
policy stated in § 71-5732(2) to threats of a report would go beyond the language of the
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statute and blur the “clear standard.” See id. There is no “very clear mandate of public
policy” regarding threats to report violations of the Clean Air Act. Jackson, 657 N.W.2d
at 637. Thaden has not suggested that he could amending his Complaint to allege that
he reported or attempted to report a Clean Air Act violation. Accordingly, his conduct is
not protected by the public policy exception and his retaliation claims under the Clean
Air Act in Count II must be dismissed.
B. Count III: Wrongful Termination Under the Clean Air Act
Thaden argues that although there is no explicit private right of action under the
Clean Air Act, the Nebraska Legislature articulated a public policy because it set forth
criminal penalties for violations of the Act. “The Legislature articulates public policy
when it declares certain conduct to be in violation of the criminal law.” Wendeln, 712
N.W.2d at 238. In the context of a criminal statute, an action for wrongful discharge as
a violation of public policy “lies only when an at-will employee acts in good faith and
upon reasonable cause in reporting his employer's suspected violation of the criminal
code.” Schriner v. Meginnis Ford Co., 421 N.W.2d 755, 759 (Neb. 1988).
In Ludlow v. BNSF Railway, the plaintiff, Kirk Ludlow, alleged he was terminated
in violation of public policy when he reported a forgery. Ludlow v. BNSF Ry. Co., No.
4:12CV3113, 2013 WL 3872930, at *2 (D. Neb. July 24, 2013). Ludlow argued that
Nebraska law generally permitted a claim for wrongful discharge for reporting the
violation of a crime. Id. at *23. This Court rejected Ludlow’s argument, concluding that
the Nebraska Supreme Court’s application of the public policy exception was more
narrow. Id. The Court noted that “employees are not protected from discharge ‘for
merely engaging in praiseworthy conduct consistent with public policy.’” Id. (quoting
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Wendeln, 712 N.W.2d at 239). The Court concluded that because there was no
evidence that Ludlow had a legal duty to report the alleged forgery, “his making of the
report—though praiseworthy and consistent with public policy—is not protected under
Nebraska's public policy exception to the at-will employment doctrine.” Id.
In this case, Thaden did not report any potential criminal activity. The only
potential basis for Thaden’s claims are his requests to Defendants that they comply with
the Clean Air Act and his subsequent threat to report continued violations to the DHHS.
In Ludlow, even though Ludlow actually reported the alleged forgery, his conduct was
not protected because he had no legal duty to report it. Similarly, in this case, Thaden
had no legal duty to report violations of the Clean Air Act. Further, while Thaden alleges
that he threatened to report Defendants’ alleged violations, there is no allegation that he
actually did so. Thus, based on the allegations in the Complaint, Thaden’s requests—
though praiseworthy and consistent with public policy—were not protected under the
public policy exception for termination of at-will employment.
Thaden’s request for leave to amend does not comply with NECivR 15.1 nor
does he identify any other facts that would clarify his allegations. Accordingly, Count III
must be dismissed and his request for leave to amend must be denied as futile.
II. Violation of the Free Speech Statute
Thaden broadly asserts that he should be allowed to amend the Complaint to
plead that Defendants violated the public policy of maintaining free speech. Thaden
argues that such a policy exists because Neb. Rev. Stat. § 20-123 states that it is the
“public policy to protect, preserve, and perpetuate the constitutional right to freely
speak, write, and publish on all lawful subjects.” Under, Nebraska Revised Statute § 209

124, “[a]ny individual, corporation, or municipality that attempts to interfere with or
restrain the exercise” of free speech “either by ordinance or otherwise, shall be guilty of
a misdemeanor.” Thaden argues that he may assert a policy-based claim under §§ 20123 and 20-124 because the Nebraska Legislature made it a crime for a corporation to
interfere with or to restrain his free speech rights.
Thaden alleges that Defendants violated the Free Speech statute after Thaden
engaged in whistleblower and/or protected activities. See Compl., ECF No. 1-1, Page ID
7. It is unclear whether Nebraska courts would permit a retaliation claim for damages
under the Free Speech Statute. The only Nebraska case that has addressed §§ 20-123
and 20-124 as the basis of a private right of action is Hartford v. Womens Servs., P.C.,
477 N.W.2d 161 (Neb. 1991). In Hartford, the Nebraska Supreme Court held that based
on § 20-124, “[w]hen the facts justify it, injunctive relief may be granted to protect the
right of an individual to exercise that individual's first amendment right of free speech.”
477 N.W.2d at 166 (citation omitted). The court did not address whether a claim under
the Free Speech Statute could support a claim for remedies other than injunctive relief.
Thus, it is unclear whether the policy stated in the Free Speech Statute would support
Thaden’s claim for damages.
Even if the policy pronounced in the Free Speech Statute supported a claim for
damages, Thaden has not pled sufficient facts to support such a claim. In Hartford, the
Nebraska Supreme Court implied that it would look to First Amendment jurisprudence to
analyze a potential claim under the Free Speech Statute. See 477 N.W.2d at 166 (citing
ACORN v. City of Frontenac, 714 F.2d 813 (8th Cir.1983)). Viewed as a free speech
retaliation claim, Thaden must prove “that he engaged in protected activity, and that this
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activity was a substantial or motivating factor in his employer's decision to terminate
him.” McCullough v. Univ. of Arkansas for Med. Scis., 559 F.3d 855, 865 (8th Cir. 2009).
To determine whether Thaden’s speech was protected, the Court follows a two-step
analysis. Id. “The first question is whether [Thaden’s] speech can be ‘fairly
characterized as constituting speech on a matter of public concern.’” Id. (quoting
Connick v. Myers, 461 U.S. 138, 146 (1983)). “If the answer is no, then [Thaden’s]
claim fails because no protected speech is at issue.” Id. “If the answer is yes, then
[Thaden’s] ‘right to comment on matters of public concern must next be balanced with
the employer's interest in promoting the efficiency of the public services it performs
through its employees.’” Id. (quoting Sparr v. Ward, 306 F.3d 589, 594 (8th Cir. 2002)).
Thaden’s Complaint is devoid of any allegation that his speech was primarily a
matter of public concern. “When speech relates both to an employee's private interests
as well as matters of public concern, the speech is protected if it is primarily motivated
by public concern.” Altonen v. City of Minneapolis, 487 F.3d 554, 559 (8th Cir. 2007)
(citing Bailey v. Dep't of Elem. & Secondary Educ., 451 F.3d 514, 518 (8th Cir. 2006)).
“If the main motivation for the speech was furthering [Thaden’s] ‘private interests rather
than to raise issues of public concern, [his] speech is not protected, even if the public
would have an interest in the topic of her speech.’” Altonen, 487 F.3d at 559 (quoting
Bailey, 451 F.3d at 518). In Altonen, the Eighth Circuit concluded that where an
employee’s primary motivation was to obtain access to her files rather than provide the
public with information, the speech at issue was not a matter of public concern. Id. at
559-60.

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In this case, the Complaint alleges summarily that, on numerous occasions,
Thaden “engaged in protected activities and whistleblower actions as defined by law as
he opposed actions/activities made illegal under state and federal law and spoke out of
matters involving public concerns.”

Compl., ECF No. 1-1, Page ID 5. These legal

conclusions, on their own, are insufficient to survive a motion to dismiss under Rule
12(b)(6). See Brown, 820 F.3d at 373. The only speech activities Thaden identifies in
the Complaint were his requests for accommodation under the Clean Air Act and his
threat to file a complaint with the DHHS regarding Defendants’ alleged Clean Air Act
violations. The Complaint makes clear that the purpose of these requests was to obtain
accommodation for Thaden’s disability. While these allegations may be sufficient to
support his claim for retaliation under the ADAAA, the “context and content” of Thaden’s
lawsuit show that his speech was primarily motivated by his private interests and not his
desire to raise issues of public concern. Thaden’s request for leave to amend does not
identify any other motivation for his speech beyond his own private interests, nor does
he identify any other protected speech to support a retaliation claim under the Free
Speech Statute. Accordingly, Thaden’s claims under the Free Speech Statute will be
dismissed.
CONCLUSION
Thaden’s Complaint lacks allegations supporting his retaliation claims under the
Clean Air Act and the Free Speech Statute. Accordingly, his claims under those laws in
Count II must be dismissed. Thaden also fails to identify a legal basis for his claim for
damages under the Clean Air Act. Accordingly, Count III will be dismissed. Thaden
failed to comply with NECivR 15.1 and failed to identify how an amended complaint
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would cure these deficiencies. Accordingly, his request for leave to amend will be
denied as futile.
IT IS ORDERED:
1.

The Partial Motion to Dismiss Plaintiffs’ Complaint, ECF No. 7, filed by
Defendants Transwood, Inc., Transwood Carriers, Inc., and Transwood
Logistics, Inc., is granted;

2.

Plaintiff’s claims in Count II arising under Neb. Rev. Stat. §§ 20-1231, 20124, and the Nebraska Clean Air Act, Neb. Rev. Stat. §§ 71-5701, et seq.,
are dismissed, with prejudice; and

3.

Count III of Plaintiff’s Complaint is dismissed, with prejudice.

Dated this 14th day of June, 2017.

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

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