Dumas v. Kroger Limited Partnership I

Filing 16

ORDER denying 9 Motion to Dismiss; granting 13 Motion to Amend/Correct Complaint. The new complaint is due by 8/21/12. Signed by Judge D. P. Marshall Jr. on 8/14/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
PLAINTIFF

SHARON DUMAS

v.

No. 4:12-cv-206-DPM

KROGER LIMITED PARTNERSHIP I
dfb/a KROGER

DEFENDANT

ORDER
Dumas filed this employment discrimination lawsuit earlier this year.
Kroger moves to dismiss Dumas's complaint. Document No.9. In response,
Dumas moves to amend her complaint. Document No. 13. Through the back
and forth between the parties, several issues have resolved themselves. For
one, Kroger withdrew its motion to dismiss Dumas's retaliation claim. And
Dumas acknowledged that she failed to exhaust her administrative remedies
on her sex-discrimination claims. Her proposed amended complaint omits all
these claims. This leaves, as the Court sees it, two issues for resolution: (1)
whether Dumas has pleaded sufficient facts to state a disabilitydiscrimination claim; and (2) whether Dumas's age-discrimination claim is
timely.
1. Disability-Discrimination Claim. Federal Rule of Civil Procedure
8 does not require detailed fact pleading, "but it demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to dismiss, a complaint
must contain enough facts, accepted as true, to state a facially plausible claim.

Ibid.

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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." Ibid.
Dumas's proposed amended complaint contains enough facts to cross

Iqbal's plausibility threshold on disability discrimination. Could she have
pleaded these claims with greater factual detail? Unquestionably. But, again,
detailed fact pleading is not required. Dumas has stated facially plausible
claims. Kroger's motion to dismiss Dumas's disability-discrimination claims
is therefore denied.
2.

Timeliness of Age-Discrimination Claim.

Dumas filed her
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discrimination charge with the EEOC on 29 June 2011. In the discrimination
based on" section, she marked race, disability, and retaliation. She did not
mark age. She also wrote that the earliest date of discrimination was 21 June
2011 and that the latest was 29 June 2011-the day she filed the charge. She
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did not check the continuing action" box. A few months later, in January

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2012, Dumas amended her discrimination charge. In the "discrimination
based on" section she added age. She left the discrimination dates the same,
but marked the u continuing action" box. She also added more details about
the nature of her claims. Kroger argues that Dumas's age-discrimination
claim is untimely because she filed it just more than 180 days after the alleged
discrimination took place. 29 U.S.C. § 626(d)(1)(A).
The EEOC's regulation about amending a charge provides guidance
here:
A charge may be amended to cure technical defects or omissions,
including failure to verify the charge, or to clarify and amplify
allegations made therein. Such amendments and amendments
alleging additional acts which constitute unlawful employment
practices related to or growing out of the subject matter of the
original charge will relate back to the date the charge was first
received.
29 C.F.R. § 1601.12(b). In a strikingly similar case, the Eighth Circuit added
that "procedural requirements should not be applied with an unrealistic or
technical stringency to proceedings initiated by uncounselled complainants."
Washington v. Kroger Co., 671 F.2d 1072, 1076 (8th Cir. 1982). And though
some Courts of Appeals have taken the view that an amendment will not
relate back if it advances a new theory of recovery, that is not the Eighth

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Circuit's view. Compare, e.g., Washington, 671 F.2d at 1076, and Sanchez v.
Standard Brands, Inc., 431 F.2d 455, 463-64 (5th Cir. 1970), with Simms v.
Oklahoma ex rel. Dep't of Mental Health and Substance Abuse Servs., 165 F.3d

1321,1327 (lOth Cir. 1999), and Evans v. Technologies Applications & Service Co.,
80 F.3d 954, 963-64 (4th Cir. 1996).
Accepting as true all the allegations in Dumas's complaint, Dumas's
claims are all connected- her claims overlap and involve the same cast of
characters and factual backdrop. The Court concludes that Dumas's addition
of her age-discrimination claim fits squarely within § 1601.12(b):

her

amendment" clarif[ied] and amplif[ied] allegations made" in her initial charge
and" alleg[ed] additional acts ... growing out of the subject matter of the
original charge[.]" Thus, her age claim relates back to her initial, timely
charge. Washington, 671 F.2d at 1076. Kroger's motion to dismiss on this
point is therefore denied.

*

*

*

Motion to dismiss, Document No. 9, denied. Motion for leave to file first
amended complaint, Document No. 13, granted. New complaint due by 21

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August 2012. Kroger should answer; and with the viable allegations clarified,
the parties must now move the case forward.
So Ordered.

D.P. Marshall Jr. j
United States District Judge

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