Summary
granting motion to dismiss "because plaintiff failed to file her NFEPA claim in federal court prior to dismissal by the NEOC."
Summary of this case from Ollis v. Hearthstone Homes, Inc.Opinion
8:02CV60
August 30, 2002
MEMORANDUM AND ORDER
This matter is before the court on defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Filing No. 5. Plaintiff has alleged that the defendants have discriminated against her on the basis of her sex in violation of Neb. Rev. Stat. § 48-1104 and § 20-148 and have retaliated against her for reporting such discrimination in violation of 42 U.S.C. § 2000(e) et seq. I have carefully reviewed the record, the briefs of the parties, and the relevant case law. I conclude that defendants' motion should be granted.
Standard of Review
In considering a motion to dismiss a complaint under Rule 12(b)(6), the court must assume all the facts alleged in the complaint are true and must liberally construe the complaint in the light most favorable to the plaintiff. Schmedding v. Tnemec Co., 187 F.3d 862, 864 (8th Cir. 1999). A Rule 12(b)(6) motion to dismiss a complaint should not be granted unless it appears beyond a doubt that the plaintiff can prove no set of facts which would entitle him to relief. Id. Thus, as a practical matter, a dismissal under Rule 12(b)(6) should be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief. Id.
Facts
Plaintiff was at all material times employed by the defendants in this case. Plaintiff claims that her supervisor referred to her and a co-worker as "love birds" on several occasions. She complained to the Human Resources Department in February 2000, and, consequently, her supervisor was removed from the department. From approximately May 12, 2000, through the fall of 2000, there were apparently complaints about plaintiff from her co-workers. A meeting was held on September 27, 2000, with plaintiff, her supervisor, and a co-worker. Following the meeting, plaintiff told the supervisor that she was worried about her job and was considering filing a charge with the Nebraska Equal Opportunity Commission (NEOC). On March 26, 2001, there was evidently another meeting with plaintiff and Human Resources with a plan to help plaintiff work with a different employee. On April 6, 2001, plaintiff stated she was encouraged to apply for another position within the company. She was then told that she was not qualified for the new position, and she was discharged on April 12, 2001.
Plaintiff filed a charge of discrimination on June 6, 2001, with the Nebraska Equal Opportunity Commission and the Equal Opportunity Commission. A finding of "no reasonable cause" was made on November 15, 2001. Filing No. 1, p. 2, No. 14. A right to sue letter was issued on December 18, 2001. Filing No. 1, Ex. B. Thereafter, on February 6, 2002, plaintiff filed this suit.
Discussion
Defendant first argues that plaintiff's state-based claims under § 20-148 are time barred by the statute of limitations. Claims under the Nebraska Fair Employment Practices Act (NFEPA) must be brought within 300 days of the alleged wrongful act, in this case her termination. Adkins v. Burlington Northern Santa Fe R. Co., 615 N.W.2d 469, 473-74 (2000). Plaintiff claims she was terminated on April 12, 2001, and she brought this suit on February 6, 2002. Defendant argues that more than 300 days have elapsed between the termination and the filing of the lawsuit. I have reviewed the record, including the date of filing, and I find that more than 300 days have not elapsed between the filing of the suit and the termination, and thus I conclude that the lawsuit is timely.
Defendants filed their motion to dismiss requesting that this court dismiss all claims brought under the NFEPA, Neb. Rev. Stat. § 48-1101 et seq., and Neb Rev. Stat. § 20-148. Defendants argue that Neb. Rev. Stat. § 48-1119(4) allows a complainant, in an action before the NEOC, to "at any stage of the proceedings prior to dismissal, file an action directly in the district court of the county where such alleged violation occurred." (Emphasis added.) Once the NEOC dismisses the complaint, argues defendants, the party forfeits its rights under NFEPA. Since in the present case the NEOC dismissed plaintiff's complaint, defendants contend that plaintiffs cannot now bring a cause of action under NFEPA in federal court. Defendants rely on the cases of Lampman v. McCook Public Schools, 54 F. Supp.2d 945, 946 (D.Neb. 1999), disapproved by Hassler v. Alegent Health, 198 F. Supp.2d 1108 (D.Neb. 2002), and Fritz v. Wal-Mart Stores, Inc., 158 F. Supp.2d 991 (D.Neb. 2001), disapproved by Hassler, in support of their arguments.
Subsequent to the filing of this lawsuit and the filing of briefs in support and in opposition to the motion to dismiss, Judge Kopf reconsidered his rulings in Lampman, Fritz and Sidak v. Pinnacle Telemarketing Ltd., 182 F. Supp.2d 873 (D.Neb. 2002). See Hassler v. Alegent Health, 198 F. Supp.2d 1108 (D.Neb. 2002). In Hassler, Judge Kopf wrote:
Upon further consideration, and in the interest of reconciling the above-described holdings, I now find that section 48-1119(4) of the NFEPA does not preclude a plaintiff from pursuing a NFEPA claim in federal court under the provisions of the NFEPA itself, and any language to the contrary in Siefken, Lampman, Fritz and Sidak is disapproved.Id. at 1112. Judge Kopf concluded that he had jurisdiction over the NFEPA claim pursuant to 28 U.S.C. § 1367(a) which gives district courts supplemental jurisdiction over claims related to the original jurisdiction. Judge Kopf then concluded that plaintiff had failed to file the NFEPA claim prior to the NEOC determination. Thus, plaintiff's claim under NFEPA was dismissed.
Likewise, defendants argue that Neb. Rev. Stat. § 20-148 is not applicable in this case. Section 20-148 allows a citizen to sue another person or company for deprivation of rights under the Constitution of the United States and of Nebraska. The Nebraska Supreme Court has stated that this statute was passed to avoid the review procedures of administrative agencies. See Goolsby v. Anderson, 549 N.W.2d 153, 156 (Neb. 1996). It grants no greater right than the statute or claim upon which it is based. Karstens v. Int'l Gamco, Inc., 939 F. Supp. 1430, 1438 (D.Neb. 1996). My review of Goolsby and Karstens convinces me that there is no substantive right of action under § 20-148. The right to sue under this section must flow from violation of another right.
That brings the analysis back to NFEPA and, in particular, to § 48-1118(1) which requires that the NEOC executive director dismiss the charge if there is not reasonable cause to believe that the charge of discrimination is true. Defendants argue in this case that the "no reasonable cause determination" equates to a dismissal. As argued by the defendants, § 48-1119(4) allows a plaintiff to file a lawsuit at any stage of the [NEOC] proceedings prior to dismissal of the administrative action. Riggs v. County Banner, 159 F. Supp.2d 1158, 1170 (D.Neb. 2001). In the case at hand, the NEOC issued "No reasonable cause determination" on November 15, 2001, and a "Notice of Right to Sue" on December 18, 2001. Filing No. 1, Ex. B. Contained therein is a statement that says "The EEOC is terminating its processing of this charge." Id. I conclude that such notice constituted a dismissal in accordance with § 48-1119(4).
In conclusion, I find that this court has jurisdiction over plaintiff's NPEPA claim pursuant to 28 U.S.C. § 1367(a). I further conclude that § 20-148 does not create a private cause of action separate from the NFEPA claim. I also find that plaintiff failed to file her NFEPA claim in federal court prior to the dismissal by the NEOC.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED THAT:
1. Defendants' motion to dismiss state law claims, Filing No. 5, is hereby granted;
2. Defendants' state law claims are hereby dismissed; and
3. A final judgment shall be entered after disposition of plaintiff's Title VII claims.