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"). In July
2015, Kassu was fired after he was accused of stealing a cell
phone that had been left in a women's restroom. Almost
four years later, Kassu filed this lawsuit alleging that he
was fired on account of his race. In an order dated November
7, 2019, this Court granted Fairview's motion to dismiss,
but gave Kassu leave to file a motion to amend his complaint.
ECF No. 16.
matter is now before the Court on Kassu's motion to amend
pursuant to Fed.R.Civ.P. 15(a)(2) and Local Rule 15.1. The
proposed amended complaint alleges a single count of
termination on the basis of race in violation of 42 U.S.C.
§ 1981. For the reasons that follow, Kassu's motion
to amend is denied.
leave to amend shall be given freely when justice so
requires, a district court properly denies leave when a
proposed amendment would be futile." Lansing v.
Wells Fargo Bank, N.A., 894 F.3d 967, 973-74 (8th Cir.
2018) (internal citations omitted). A proposed amendment
would be futile when an "amended claim could not
withstand a motion to dismiss under Rule 12(b)(6)."
Hillesheim v. Myron's Cards & Gifts, Inc.,
897 F.3d 953, 955 (8th Cir. 2018) (citation and quotation
survive a motion to dismiss, 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Although the factual allegations need not be
detailed, the plaintiff must present "more than a sheer
possibility that a defendant has acted unlawfully."
Id. And as the Eighth Circuit has specifically
instructed in the context of § 1981 litigation, courts
"need not conjure up unpled allegations to save a
complaint." Gregory v. Dillard's, Inc., 565
F.3d 464, 473 (8th Cir. 2009) (citation and quotation marks
proposed amended complaint alleges that Fairview
discriminated against him on the basis of race in violation
of 42 U.S.C. § 1981. As this Court explained in its
November 7 order, "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)."
ECF No. 16 at 4 (citing Bearden v. Int'l Paper
Co., 529 F.3d 828, 831 (8th Cir. 2008)).
evidence is evidence showing a specific link between the
alleged discriminatory animus and the challenged decision,
sufficient to support a finding by a reasonable fact finder
that an illegitimate criterion actually motivated the adverse
employment action." Torgerson v. City of
Rochester, 643 F.3d 1031, 1044 (8th Cir. 2011) (citation
and quotation marks omitted). Direct evidence typically, but
not always, takes the form of derogatory comments about race
or another protected characteristic made by someone involved
in the decision to take adverse action against the plaintiff.
"Direct evidence does not include stray remarks in the
workplace, statements by nondecisionmakers, or statements by
decisionmakers unrelated to the decisional process
itself." Twymon v. Wells Fargo & Co., 462
F.3d 925, 933 (8th Cir. 2006) (citation and quotation marks
in Kassu's proposed amended complaint plausibly suggests
racial animus on the part of Fairview, much less provides a
"specific link" between any such animus and
Kassu's termination. The two pages of new factual
allegations that Kassu proposes to add to his original
complaint mostly describe the rocky relationship between
Kassu and a new supervisor who was hired two or three months
before Kassu was fired. Kassu alleges that this supervisor
"was quite younger than Kassu," "called Kassu
an old man," and "told Kassu 'see your grey
hair.'" ECF No. 25-1 ¶ 16. Obviously, these
allegations have nothing to do with race
discrimination; if anything, they undermine Kassu's case
by suggesting that his supervisor was motivated by age-based
also alleges that his new supervisor was "born in the
United States" and "mocked Kassu for his poor
English." Id. The Court will assume that this
is an allegation of animus based on race-as opposed to
animus based on national origin, which is not prohibited by
§ 1981. See Torgerson, 643 F.3d at 1053
("Because Torgerson alleges he was discriminated against
based on national origin, not race, his § 1981 claim
fails."). This allegation nevertheless falls short of
alleging direct evidence that Kassu was fired on account of
problem is that, to constitute direct evidence of race
discrimination, a derogatory remark must be connected to the
decision to fire Kassu-either because it was made by the
decisionmaker or because it related in some other way to the
decisional process. See Twymon, 462 F.3d at 933. But
Kassu has not alleged that his supervisor had anything to do
with Fairview's decision to terminate him, nor has Kassu
alleged that he was "mocked . . . for his poor
English" in connection with the decisional process that
culminated in his termination. See Id. at 934
(finding no direct evidence of discrimination where
"none of the statements . . . were made during the
decisional process accompanying Wells Fargo's termination
of Twymon"); Canady v. Wal-Mart Stores, Inc.,
440 F.3d 1031, 1034 (8th Cir. 2006) ("[a]bsent a causal
link between the racial comments and the adverse employment
action/' supervisor's comments were not direct
evidence of discrimination). Kassu alleges only that he was
wrongfully accused of stealing a cell phone while cleaning a
women's restroom, and was fired the next day based on
that accusation. ECF No. 25-1 ¶¶ 7-11. Kassu does
not identify the person who accused him of stealing the
phone, nor does he identify the person or persons who were
involved in the decision to fire him.
that the proposed amended complaint does not allege that the
supervisor who mocked Kassu for his poor English-language
skills either accused him of stealing the cell phone or was
involved in any way in the decision to fire Kassu, the
proposed amended complaint ...