United States District Court, D. Minnesota
BEREKET T. KASSU, Plaintiff,
FAIRVIEW HEALTH SERVICES, Defendant.
Chinedu Nwaneri, NWANERI LAW FIRM, PLLC, for plaintiff.
E. Lindsay, FELHABER LARSON, for defendant.
Patrick J. Schiltz United States District Judge
Bereket Kassu was employed as a custodian by defendant
Fairview Health Services ("Fairview") for 16 years.
On July 14, 2015, Kassu was fired after he was accused of
stealing a cell phone from a women's restroom. Almost
exactly four years later, Kassu filed this lawsuit alleging
that he was fired on the basis of his race. This case is now
before the Court on Fairview's motion to dismiss under
Fed.R.Civ.P. 12(b)(6). For the reasons that follow, that
motion is granted.
survive a motion to dismiss under Rule 12(b)(6), "a
complaint must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on
its face.'" Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell AH. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). "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."
Id. While the complaint need not include detailed
factual allegations, it must present "more than a sheer
possibility that a defendant has acted unlawfully."
only count clearly pleaded in the complaint is Kassu's
claim under Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq. But "Title VII
requires that before a plaintiff can bring suit in court to
allege unlawful discrimination, [he] must file a timely
charge with the EEOC or a state or local agency with
authority to seek relief." Richter v. Advance Auto
Parts, Inc., 686 F.3d 847, 850 (8th Cir. 2012)
(citations omitted). Such a claim must be filed within 300
days of the allegedly unlawful employment practice.
See 42 U.S.C. § 2000e-5(e)(1). Kassu did not
file a claim with the EEOC or a state or local agency within
300 days of being fired, and therefore his Title VII claim
must be dismissed.
complaint is not well drafted, and thus the Court cannot tell
whether Kassu intends to assert any other claims. Kassu
alleges that this Court has jurisdiction under 42
U.S.C. § 1981, ECF No. 1 ¶ 3, but he never actually
makes a claim under § 1981. Even if he had made
such a claim, the Court would dismiss it. The complaint
alleges that Kassu was fired "because of his race, and
poor/limited English language skills." ECF No. 1 ¶
19. But firing someone because of his "poor/limited
English language skills" does not violate § 1981.
Firing someone because of his "race" would violate
§ 1981, but Kassu has not plead facts that make
plausible his allegation of race discrimination. It is not
enough to plead that Kassu is not white and that he was
fired; Kassu must plead sufficient facts to make plausible
his claim that he was fired because he was not
does allege that "Fairview has never terminated an
American born and or white employee in such manner." ECF
No. 1 ¶ 20. But there are several problems with this
the Court is confused about what Kassu intends to say. The
previous sentence is "Kassu avers that Fairview
summarily and or recklessly terminated his employment,
without good cause or due process, because of his race, and
poor/limited English language skills." ECF No. 1 ¶
19. So what does Kassu mean when he alleges that
"Fairview has never terminated an American born and or
white employee in such manner"? That Fairview has never
terminated a white employee "summarily"?
"Recklessly"? "Without good cause"?
"Without due process"? "Because of his
race"? "Because of his poor/limited English
language skills"? It would be a good thing if
Fairview never terminated a white employee "[b]ecause of
his race"; such a termination would violate the law.
Kassu could not possibly know whether Fairview-which operates
dozens of hospitals and clinics and employs tens of thousands
of people-has ever terminated a white employee
"summarily/' "recklessly," "without
good cause/' and so on. Kassu pleads no facts that make
plausible this facially implausible allegation.
none of these allegations even support-much less make
plausible-the contention that Fairview fired Kassu because of
his race. Kassu needs to support his allegation either by
alleging facts that would directly prove discrimination (such
as derogatory comments made about his race by someone
involved in the decision to fire him) or facts that would
indirectly prove discrimination (such as a white employee who
was not terminated even though Fairview believed that he had
stolen something from a patient). See Bearden v.
Int'l Paper Co., 529 F.3d 828, 831 (8th Cir. 2008)
("An employee may establish unlawful employment
discrimination through direct or indirect evidence").
Kassu has not pleaded any such facts, and thus does not
adequately plead a claim under § 1981.
complaint also pleads that "he did not steal or
attempt to steal the cellular phone" and that he
"puts Fairview to the strictest proof thereof." ECF
No. 1 ¶ 13. But Fairview does not have to prove
anything; Kassu is the plaintiff, and he bears the burden of
proof. More importantly, it is not illegal for Fairview to
mistakenly conclude that an employee committed misconduct and
then fire that employee based on that mistaken belief. If
Fairview sincerely believed that Kassu stole the phone-and
Fairview fired him for that reason-then Fairview acted
lawfully. It simply does not matter whether Fairview's
conclusion was correct.
complaint also alleges that "Fairview wrongfully failed
to follow or comply with the collective bargaining agreement
between Fairview and the Union in terminating his
employment." ECF No. 1 ¶ 15. But Kassu does not
clearly make a claim for breach of the collective bargaining
agreement ("CBA"), much less clarify whether he is
making such a claim under state law or federal law. Nor does
Kassu indicate why a state claim would not be preempted under
§ 301 of the Labor Management Relations Act, 29 U.S.C.
§ 185. See Conrad v. Xcel Energy, Inc., No.
12-CV-2819 (PJS/FLN), 2013 WL 1395877, at *3 (D. Minn. Apr.
5, 2013) ("§ 301 completely preempts any state-law
claim for breach of a collective-bargaining agreement").
Nor does Kassu suggest why a federal claim would not be
barred by the statute of limitations. See 29 U.S.C.
§ 160(b). Nor does Kassu indicate whether the CBA
required him to arbitrate any claim that the agreement was
breached-and, if so, whether he attempted to do so. Vaca
v. Sipes, 386 U.S. 171, 184 (1967) (holding that
"the employee must at least attempt to exhaust exclusive
grievance and arbitration procedures established by the
bargaining agreement" before suing an employer for
breach of that agreement).
Kassu's complaint mentions in passing that Fairview's
termination of his employment "unjustly embarrassed,
disparaged and libeled Kassu amongst his co-workers and the
public." ECF No. 1 ¶ 12. If Kassu intended to plead
a claim for libel, he fell far short. A claim for libel must
be pleaded with specificity; "[a]t a minimum, the
plaintiff must allege who made the allegedly libelous
statements, to whom they were made, and where." Pope
v. ESA Servs., Inc.,406 F.3d 1001, 1011 (8th Cir. 2005)
(citation and quotation marks omitted). Kassu has not
alleged-specifically or otherwise-that Fairview made
any statement about him to anyone. Instead,
he alleges that Fairview defamed him by terminating his
employment. But "Minnesota has never recognized
defamation by conduct alone." Bolton v. Dep't of
Human Servs.,540 N.W.2d 523, 525 (Minn. 1995); see
also Franzwa v. City of Hackensack,567 F.Supp.2d 1097,
1114 n.8 (D. Minn. 2008) ...