Evans v. Mosaic et al

Filing 7

MEMORANDUM AND ORDER that laintiff will have 30 days from the date of this Memorandum and Order to file a copy of any right-to-sue notice received from the NEOC/EEOC. In the alternative, Plaintiff may amend her complaint within 30 days to allege w hether she exhausted her administrative remedies with the EEOC/NEOC and, if so, the date on which she received a right-to-sue notice. The Clerk of Court is directed to set a pro se case management deadline in this case using the following text: November 12, 2020Check for Plaintiff's amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (ADB)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BERNIECE EVANS,
Plaintiff,

8:20CV153

vs.
MOSAIC, KARLY ELBRACHT,
TYLER ANDERSON, and DANIEL
JONES,

MEMORANDUM
AND ORDER

Defendants.

Plaintiff filed her Complaint in this matter on April 23, 2020. (Filing 1.)
Plaintiff has been given leave to proceed in forma pauperis. (Filing 6.) The court
now conducts an initial review of Plaintiff’s claims to determine whether summary
dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I.

SUMMARY OF COMPLAINT

Plaintiff’s 65-page “Complaint” consists of rambling descriptions of mostly
undated incidents that apparently occurred at Mosaic, Plaintiff’s employer, such as
being written up by human resources for failing to do tasks that were not hers to do,
while others were not subject to such treatment, and being subject to a racist
comment made by Plaintiff’s “white white” boss, Karly (apparently Defendant
Elbracht), saying to clients that the boss was a “slavedriver,” thus “intimating fact
that Plaintiff is descendant of actual slaves and thus ‘slave’ today 2020!” (Filing 1
at CM/ECF pp. 2, 4-6.) Plaintiff also complains that an EEOC “encounter . . . was
garbled lost in translation soft peddling our words,” but an audiotape in possession
of the EEOC would “reveal the nature” of retaliation “for complaining of
maltreatment.” (Id. at pp. 2-3, 5.)

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Interspersed between multiple pages of confusing handwritten notes are what
purports to be: (1) the July 2018 Mosaic employee handbook, portions of which
allegedly have been highlighted and annotated by Plaintiff’s former boss (who
Defendant Karly Elbracht caused to be fired) indicating the regulations Elbracht
supposedly violated as to Plaintiff (id. at pp. 9-24); (2) page one of a multiple-page
NEOC charge of discrimination dated March 8, 2019, filed by Plaintiff and alleging
retaliation she experienced after filing a previous charge of discrimination (id. at p.
25); (3) a page of 2016 reviews written by apparent employees of an unknown
business (id. at p. 28); (4) a “notice” by “Commission staff” regarding “hostile or
aggressive behavior” (id. at p. 30); (5) an October 17, 2018, letter from the NEOC
to Plaintiff acknowledging a charge she filed on October 12, 2018, and describing
to Plaintiff how the investigation would proceed in “several months” due to a
“backlog of cases” (id. at p. 34); and (6) a photo of a computer screen containing a
schedule of “nurse only” treatment such as taking weights and doing nail care (id. at
p. 41).
Plaintiff requests $10 million in damages. (Id. at p. 7.)
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
the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”). “A pro se
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complaint must be liberally construed, and pro se litigants are held to a lesser
pleading standard than other parties.” Topchian v. JPMorgan Chase Bank, N.A., 760
F.3d 843, 849 (8th Cir. 2014) (internal quotation marks and citations omitted).
Very liberally construed, Plaintiff here apparently seeks to assert claims for
employment discrimination and retaliation. A plaintiff need not plead facts sufficient
to establish a prima facie case of employment discrimination in his or her complaint.
See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-12 (2002) (holding a complaint
in employment discrimination lawsuit need not contain “facts establishing a prima
facie case,” but must contain sufficient facts to state a claim to relief that is plausible
on its face), abrogated in part on other grounds by Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007). However, the elements of a prima facie case are relevant
to a plausibility determination. See Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d
49, 54 (1st Cir. 2013) (stating elements of a prima facie case are “part of the
background against which a plausibility determination should be made” and “may
be used as a prism to shed light upon the plausibility of the claim”); see also Khalik
v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012) (“While the 12(b)(6)
standard does not require that Plaintiff establish a prima facie case in her complaint,
the elements of each alleged cause of action help to determine whether Plaintiff has
set forth a plausible claim.”).
III.

DISCUSSION

A. Timeliness
Plaintiff seems to be attempting to allege claims of discrimination and
retaliation based on race under Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. §§ 2000e et seq. (“Title VII”), and the Nebraska Fair Employment Practice
Act, Neb. Rev. Stat. §§ 48-1101 to 48-1125 (Westlaw 2020) (“NFEPA”). The
Complaint, however, fails to allege that Plaintiff has exhausted her administrative
remedies, as is required.
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Title VII and the NFEPA require a plaintiff to exhaust her administrative
remedies by first seeking relief through the Equal Employment Opportunity
Commission (“EEOC”) or the Nebraska Equal Opportunity Commission (“NEOC”).
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. The charging party has 90 days from
the receipt of the right-to-sue notice to file a civil complaint based on her charge. 42
U.S.C. § 2000e-5(f)(1) (Title VII); Neb. Rev. Stat. § 48-1120.01 (NFEPA); see also
Fort Bend Cty., Texas v. Davis, 139 S. Ct. 1843, 1847 (2019) (describing procedure).
The civil complaint may only encompass issues that are like or reasonably related to
the substance of the charges timely brought before the EEOC/NEOC. Cottrill v.
MFA, Inc., 443 F.3d 629, 634 (8th Cir. 2006).
Here, Plaintiff has not filed a copy of her right-to-sue notice nor has she set
forth the date on which she received a right-to-sue notice from the EEOC and/or
NEOC with respect to her charges of discrimination and retaliation. Thus, the court
cannot determine whether Plaintiff’s claim is timely. On the court’s own motion, the
court will permit Plaintiff 30 days in which to file a copy of her right-to-sue notice
with the court. In the alternative, Plaintiff may amend her complaint to allege
whether she exhausted her administrative remedies with the EEOC/NEOC and, if
so, the date on which she received a right-to-sue notice. To the extent Plaintiff did
not file suit within 90 days of her receipt of the right-to-sue notice, she must show
that equitable or exceptional circumstances warrant tolling of the 90-day period.
B. Rule 8
As stated above, Plaintiff’s Complaint is a string of incomprehensible
narration and unidentified documents that contains few, if any, descriptions of the
actions of each named Defendant, when they occurred, and how they harmed
Plaintiff. Thus, as currently written, Plaintiff’s Complaint fails to meet the minimal
pleading standard in Federal Rule of Civil Procedure 8, which requires that every
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complaint contain “a short and plain statement of the claim showing that the pleader
is entitled to relief” and that “[e]ach allegation . . . be simple, concise, and direct.”
Fed. R. Civ. P. 8(a)(2), (d)(1). A complaint must state enough to “‘give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson
v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)). The court will grant Plaintiff leave to file an amended complaint
that adheres to Rule 8’s requirements.
IT IS THEREFORE ORDERED that:
1.
Plaintiff will have 30 days from the date of this Memorandum and
Order to file a copy of any right-to-sue notice received from the NEOC/EEOC. In
the alternative, Plaintiff may amend her complaint within 30 days to allege whether
she exhausted her administrative remedies with the EEOC/NEOC and, if so, the date
on which she received a right-to-sue notice. To the extent Plaintiff did not file suit
within 90 days of her receipt of the right-to-sue notice, she must show that equitable
or exceptional circumstances warrant tolling of the 90-day period.
2.
In her amended complaint, Plaintiff must identify each defendant by
name and set forth all of Plaintiff’s claims (and any supporting factual allegations)
against each defendant. Plaintiff should be mindful to explain in her amended
complaint what each defendant did to her, when each defendant did it, and how the
defendants’ actions harmed her.
3.
In the event Plaintiff files an amended complaint, Plaintiff shall restate
the allegations of her original Complaint (Filing 1) in a clear, legible fashion and any
new allegations. Failure to consolidate all claims into one document may result in
the abandonment of claims. Plaintiff is warned that an amended complaint will
supersede, not supplement, her prior pleadings.

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4.
The court reserves the right to conduct further review of Plaintiff’s
claims pursuant to 28 U.S.C. § 1915(e)(2) after Plaintiff addresses the matters set
forth in this Memorandum and Order.
5.
The Clerk of Court is directed to set a pro se case management deadline
in this case using the following text: November 12, 2020—Check for Plaintiff’s
amended complaint.
DATED this 13th day of October, 2020.
BY THE COURT:

Richard G. Kopf
Senior United States District Judge

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