Nichols v. First Data Corporation
8:19-cv-00035
D. Neb.Aug 20, 2019Background
- Nichols, employed by JLL as an administrative secretary, worked onsite at First Data under a JLL placement; her husband Rodney worked for First Data and filed an OHRRD discrimination charge on June 29, 2016.
- After Rodney’s charge, Nichols alleges supervisors treated her more abruptly and her next performance review declined; she was terminated on May 1, 2017, allegedly at First Data’s instruction.
- Nichols filed charges with NEOC and EEOC and received Notices of Right to Sue; she sued JLL and First Data alleging retaliation under Title VII and the Nebraska Fair Employment Practice Act.
- JLL moved to dismiss Nichols’s amended complaint under Rule 12(b)(6), arguing Nichols cannot state a third-party reprisal claim because her husband worked for a different employer (First Data).
- The district court found Nichols’s pleading insufficient to show JLL and First Data were a single or joint employer or that Nichols and Rodney were coworkers at the same employer, but granted leave to amend within 14 days rather than dismissing with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nichols can recover for retaliation based on her spouse’s protected activity (third-party reprisal) | Nichols contends she was retaliated against because Rodney’s discrimination charge prompted First Data to instruct JLL to terminate her; she points to the contractual/client relationship between JLL and First Data | JLL argues Nichols cannot bring a third-party reprisal claim because Nichols and Rodney worked for different employers (JLL vs. First Data); thus no employer-employee nexus for third-party protection | Court: Dismissal at this stage; Nichols failed to plausibly plead that JLL and First Data were joint employers or that she and Rodney were coworkers; granted leave to amend |
| Whether the amended complaint plausibly alleges joint-employer/integrated-enterprise facts | Nichols relied on the parties’ contractual relationship but did not plead facts on interrelation of operations, common management, centralized labor control, or financial control | JLL emphasized absence of factual allegations showing the Baker factors are met | Court: Pleading insufficient under Baker test; needs factual allegations addressing the four factors |
| Whether Nichols sufficiently pleaded that Rodney’s charge constituted protected activity | Nichols alleged Rodney filed a discrimination charge but did not plead the basis of the charge | JLL noted the amended complaint fails to identify the nature of Rodney’s protected activity | Court: Expressed doubt Nichols has sufficiently alleged protected conduct by Rodney; this is a deficiency Nichols must address |
| Procedural remedy for pleading defects | Nichols requested to proceed on her amended complaint | JLL moved to dismiss entirely | Court: Denied motion to dismiss subject to reassertion and ordered Nichols to file a second amended complaint curing deficiencies within 14 days or face dismissal with prejudice |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must state a plausible claim)
- Ashcroft v. Iqbal, 556 U.S. 662 (plausibility standard and rejecting legal conclusions)
- Thompson v. North Am. Stainless, LP, 562 U.S. 170 (third-party reprisal may support Title VII claim for close family member)
- Tovar v. Essentia Health, 857 F.3d 771 (8th Cir. rule: third-party reprisal requires both parties be employed by same employer)
- Davis v. Ricketts, 765 F.3d 823 (joint-employer/integrated-enterprise inquiry may apply under Title VII)
- Baker v. Stuart Broadcasting Co., 560 F.2d 389 (four-factor test for integrated enterprise/joint employer)
- Burlington N. & S.F. Ry. Co. v. White, 548 U.S. 53 (antiretaliation scope: conduct that might dissuade a reasonable worker)
- Erickson v. Pardus, 551 U.S. 89 (Rule 8 notice-pleading standard)
- Ash v. Anderson Merch., LLC, 799 F.3d 957 (8th Cir. application of plausibility standard)