Opinion
4:00CV3083
June 6, 2000
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS
This case comes before me on the defendant's Motion to Dismiss, filing 3, aimed at the plaintiff's claim of unlawful employment discrimination — hostile work environment and disparate treatment — under the Nebraska Fair Employment Practices Act. After careful consideration, I shall grant the motion.
The Nebraska Fair Employment Practices Act, hereinafter "act," does not expressly provide for a private judicial right of action for those individuals claiming to be aggrieved by an employer's unlawful employment practices under the Act. See Miller v. Union Pacific R. Co., 539 F. Supp. 134, 137 (D.Neb. 1982). Instead, the act
sets forth a detailed administrative hearing process in which claims brought under that act are to be resolved by the Nebraska Equal Opportunity Commission ("NEOC"), which is required to make findings of fact and conclusions of law and to issue orders on such claims. Neb. Rev. Stat. § 48-1119 (Michie 1995). The act further provides that appeals from such NEOC decisions are to be taken in accordance with Nebraska's Administrative Procedure Act ("NAPA"). Neb. Rev. Stat. § 48-1120 (Michie 1995). The NAPA, in turn, requires that appeals from administrative decisions be lodged in state district court and, subsequently, in the state appellate court system. Neb. Rev. Stat. §§ 84-917 84-918 (Michie 1995 Supp. 1998).
The [act] provides that the only way a complainant may avoid exhausting the full administrative process described above is through [§ ] 48-1119(4), which states, "A complainant who has suffered physical, emotional, or financial harm as a result of a violation of section 48-1104 may, 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." Thus, even when a complainant elects to proceed under this provision, such relief must be sought in the applicable state district court after administrative proceedings have already begun.Lampman v. McCook Public Schools, 54 F. Supp.2d 945, 946 (D.Neb. 1999).
Nonetheless, an individual may claim a private right of action under the act so long as the alleged violation of the act is asserted not as the sole cause of action, but as the basis for a claim under Neb. Rev. Stat. § 20-148 (Michie 1999), which creates a civil cause of action for the violation of rights secured by the constitution and laws of the State of Nebraska. See Goolsby v. Anderson, 250 Neb. 306, 313, 549 N.W.2d 153, 157-58 (1996) ("[§ ] 20-148 was enacted so that plaintiffs who seek to vindicate rights already existing under constitutional or statutory law could avoid the review procedures of agencies like NEOC."). In other words, § 20-148 provides the civil avenue of recovery for violations of constitutional and state statutory rights.
However, in the employment discrimination context, section 20-148 only applies to private acts of discrimination by private employers. Sinn v. City of Seward, 3 Neb. App. 59, 76, 523 N.W.2d 39, 50 (1994) (allegations of discrimination against individuals acting in their capacities as public officials properly dismissed under section 20-148 because such statute only reaches private acts of discrimination by private employers). Indeed, the plain language of section 20-148 exempts political subdivisions.Lampman, 54 F. Supp.2d at 947. It cannot be disputed that the defendant Lincoln Public Schools is a political subdivision of the State of Nebraska. See Neb. Rev. Stat. §§ 13-903(1) 13-1612 (Michie 1995 Supp. 1998) (political subdivisions include school districts and all other units of local government). Therefore, the plaintiff cannot bring his claim of unlawful employment discrimination under the applicable provisions under the act pursuant to the procedural vehicle, Neb. Rev. Stat. § 20-148, either.
IT IS THEREFORE ORDERED that the defendant's Motion to Dismiss, filing 3, is granted and count III of the complaint is dismissed without prejudice.