Kristin M. Jones, an individual Plaintiff - Appellant
Douglas County Sheriff's Department of Douglas County, Nebraska, a political subdivision of the State of Nebraska Defendant-Appellee
Submitted: November 14, 2018
from United States District Court for the District of
Nebraska - Omaha
BENTON, BEAM, and ERICKSON, Circuit Judges.
BENTON, CIRCUIT JUDGE.
sheriff's department of Douglas County decided not to
reinstate Kristin M. Jones. She sued Douglas County, alleging
retaliation and sex, pregnancy, and disability
discrimination, in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e-2 and 2000e-3; the
Americans with Disabilities Act, 42 U.S.C. §
12101-12213; and the Nebraska Fair Employment Practice Act
(NFEPA), Neb. Rev. Stat. § 48-1101 to 1126. The district
court dismissed her claims as time-barred. Jones
appeals the dismissal of her sex-discrimination claims.
Having jurisdiction under 28 U.S.C. § 1291, this court
complaint alleges the following facts. Jones was a deputy
sheriff for Douglas County. She used prescription pain
medication for migraine headaches and chronic neck and back
pain. After her health deteriorated, she failed a remedial
qualification for the Emergency Services Unit. Douglas County
tried to remove her from that unit despite retaining a male
with health issues. She later requested accommodations to
stay in the Fugitive Warrants unit. The head of that unit
denied her request, transferred her, and disciplined her for
objecting to the transfer and requesting accommodations.
Midway through pregnancy, she requested light duty and
Douglas County reassigned her to a desk position.
pregnancy exacerbated her health conditions. She struggled to
stay awake at work. At Douglas County's request, the
Nebraska State Patrol (with the Nebraska Attorney General)
investigated Jones based on her trouble staying awake. The
Patrol concluded she had acquired a controlled substance
through fraud. Charged with a felony, she pled not guilty.
Douglas County put her on administrative leave and terminated
her one month later, in July 2014. A state court found her
not guilty in July 2015.
months later, Jones learned of an open position for deputy
sheriff. Her counsel sent a letter requesting that
"Jones be reinstated with both back pay and the benefits
she was denied during her leave." Douglas County denied
her request on December 18, 2015. She filed a charge of
discrimination with the Nebraska Equal Opportunity Commission
(dual-filed with the Equal Employment Opportunity
Commission). She alleged that by denying her reinstatement
request, Douglas County retaliated and discriminated against
her. The NEOC found no reasonable cause; the EEOC adopted its
sued Douglas County. The district court dismissed. It found
that her claims were based on the facts of her termination,
and that she could not "revive her time-barred claims by
demanding reinstatement and relying on Douglas County's
refusal as a new, discrete discriminatory act."
Jones v. Douglas Cty. Sheriff's Dep't, 2017
WL 6520690, at *3 (D. Neb. Sept. 13, 2017), citing
Kaufman v. Perez, 745 F.3d 521, 530 (D.C. Cir. 2014).
She appeals the dismissal of her sex-discrimination claims,
arguing Douglas County's failure to reinstate violated
Title VII and the NFEPA.
court reviews de novo the grant of a motion to dismiss,
accepting "the allegations contained in the complaint as
true and mak[ing] all reasonable inferences in favor of the
nonmoving party." Martin v. Iowa, 752 F.3d 725,
727 (8th Cir. 2014). "[T]o survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted
as true, to state a claim for relief that is plausible on its
face." Wilson v. Arkansas Dep't of Human
Servs., 850 F.3d 368, 371 (8th Cir. 2017) (alteration in
original), quoting Ashcroft v. Iqbal, 556 U.S. 662,
had to file a charge of discrimination within 300 days after
the alleged discriminatory practice. 42 U.S.C. §
2000e-5(e)(1); Neb. Rev. Stat. § 48-1118(2);
National R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 110-11 (2002) (a party must file a timely charge
"or lose the ability to recover for it"). She filed
her charge on May 26, 2016. Her termination is not within the
300-day window. The reinstatement denial is.
complaint and charge of discrimination allege Douglas County
refused to reinstate her due to her sex. A reinstatement
denial is a discrete employment action. See Parisi v.
Boeing Co., 400 F.3d 583, 586 (8th Cir. 2005)
("[R]efusals to hire or rehire constitute discrete
employment actions."). It may be independently
discriminatory. See Morgan, 536 U.S. at 113 (Past
acts of discrimination do "not bar employees from filing
charges about related discrete acts so long as the acts are
independently discriminatory and charges addressing those
acts are themselves timely filed."); Kirklin v.
Joshen Paper & Packaging of Ark. Co., 911 F.3d 530,
535-36 (8th Cir. 2018) (analyzing failure-to-rehire claim
separate from time-barred claims related to plaintiff's
employment, including discriminatory layoff);
Kaufman, 745 F.3d at 529-30 (noting a terminated
employee cannot revive a time-barred claim "simply by
asking, 'Am I still fired?'", but might bring an
actionable failure-to-reinstate claim as "an independent
discriminatory act" where there is "uncertainty
regarding the initial adverse action" or "disparate
treatment or bias in the reinstatement process").
See generally Josephs v. Pacific Bell, 443 F.3d
1050, 1060 (9th Cir. 2006) (joining the First, Third, Fourth,
Tenth, and Eleventh circuits in "expressly recogniz[ing]
discriminatory failure to reinstate as a separately
bases her Title VII claim solely on disparate treatment. To
establish a prima facie case, she "must show that she is
a member of a protected class who was qualified for but was
denied reinstatement, while a similarly situated employee
outside of her protected class . . . was reinstated."
Jones v. Frank, 973 F.2d 673, 676 (8th Cir. 1992).
See Williams v. Ford Motor Co., 14 F.3d 1305, 1308
(8th Cir. 1994) (using Jones elements where
plaintiff "alleged discriminatory refusal to reinstate
based upon a theory of disparate treatment"). She
alleges that-on information and belief-"the open
position was filled with a male candidate." Jones did
not plead any facts showing that candidate was similarly
situated or went through a reinstatement process. Her
threadbare allegation does not survive a motion to dismiss.
See Hager v. Arkansas Dep't of Health, 735 F.3d
1009, 1015 (8th Cir. 2013) (holding plaintiff failed to state
a § 1983 claim for gender discrimination where she made
a "conclusory assertion that she was discharged under
circumstances similarly situated men were not" and
failed to "allege facts showing that similarly situated
employees were treated differently"). Her claim fails
under Title VII.
NFEPA claim, mirroring her Title VII claim, likewise fails.
See Edwards v. Hiland Roberts Dairy Co., 860 F.3d
1121, 1124 n.3 (8th Cir. 2017) ("We analyze
discrimination claims under the NFEPA by applying the same
analysis for discrimination claims under Title VII.");
Al-Zubaidy v. TEK Indus., Inc., 406 F.3d 1030, 1040
(8th Cir. 2005) (noting plaintiff "would enjoy no
greater success" with his discrimination and harassment
claims under the NFEPA where the same claims failed under
Title VII); Knapp v. Ruser, 901 N.W.2d 31, 43 (Neb.
2017) ("[T]he NFEPA is patterned after federal Title