Harvey v. Ozark Community Hospital (OCH) Health System et al

Filing 17

OPINION AND ORDER granting 10 Motion to Dismiss for Failure to State a Claim. Plaintiff's complaint is DISMISSED WITH PREJUDICE. Signed by Honorable P. K. Holmes, III on May 30, 2017. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
JUDITH A. HARVEY
v.

PLAINTIFF
Case No. 5:16-CV-5314

OZARK COMMUNITY HOSPITAL (OCH)
HEALTH SYSTEM; PAUL TAYLOR, CEO
of OCH, in his official capacity only; and
MARK GLOVER, Psychologist, in his official
capacity only

DEFENDANTS

OPINION AND ORDER
Before the Court is Defendants Ozarks Community Hospital, Inc. 1 (“OCH”), Paul Taylor,
and Mark Glover’s motion to dismiss under Federal Rules of Civil Procedure 12(b)(6) and
12(b)(5). (Doc. 10). Plaintiff Judith A. Harvey has not responded, and the time for filing a
response has passed. For the reasons set forth below, Defendants’ motion (Doc. 10) will be granted
and this case dismissed with prejudice.
Ms. Harvey’s pro se complaint alleges a violation of the Age Discrimination in
Employment Act based on her termination from OCH on June 11, 2015. (Doc. 1, p. 9). She
appears to have first contacted the Equal Employment Opportunity Commission (“EEOC”) on
November 12, 2015, which is when she dated a submitted “Inquiry Form.” 2 (Doc. 11-2, p. 1). The
form specifically notes, however, that it is “not a charge of discrimination” and that any such
charge must be filed “within 180 days of the actions against you if the action took place in…

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Defendants’ motion represents that Ozarks Community Hospital, Inc. was misnamed in
Plaintiff’s complaint as “Ozark Community Hospital (OCH) Health System.” (Doc. 10, p. 1).
Because the Court is granting Defendants’ motion to dismiss, amending the docket to reflect
OCH’s true identity is unnecessary.
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Based on the record submitted, this is the earliest dated communication sent to the EEOC.
It was stamped as “received” on November 23, 2015. (Doc. 11-2, p. 1). Yet, the form implies
prior communication from Ms. Harvey as it states, “[t]hank you for contacting the [EEOC].” (Id.).

Arkansas.” (Id., p. 2). Ms. Harvey also submitted a five-page letter to the EEOC on November
17, 2015, in which she describes a variety of grievances against her former employer. (Doc. 111). At no point in the letter, though, does Ms. Harvey request the EEOC take action. (Id.). On
December 1, 2015, the EEOC confirmed receipt of Ms. Harvey’s correspondence and stated that
“[m]ore information is needed before we can continue.” (Doc. 11-3). It further informs Ms.
Harvey to “[p]lease contact me as soon as possible because charges of employment discrimination
must be filed within the time limits imposed by law.” (Id.). The EEOC’s letter concludes with an
all-caps reminder that “[i]f we have not heard from you within 30 days of this letter, we will assume
that you did not intend to file a charge of discrimination with us.” (Id.). An enclosure to the letter
is a brochure entitled, “What You Should Know Before You File A Charge With EEOC.” (Id.).
Ms. Harvey’s charge of discrimination was not received by the EEOC until January 19,
2016. (Doc. 11-7). The charge includes separate signatures from Ms. Harvey, one dated December
24, 2015, and a second dated January 13, 2016. Ms. Harvey’s sworn signature in the presence of
a notary is dated on the document as January 12, 2016. Based on her termination date of June 11,
2015, 180 days later would have been December 8, 2015.
In ruling on a motion to dismiss, the Court must “accept as true all facts pleaded by the
non-moving party and grant all reasonable inferences from the pleadings in favor of the nonmoving party.” Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012) (quoting United
States v. Any & All Radio Station Transmission Equip., 207 F.3d 458, 462 (8th Cir. 2000)). A pro
se plaintiff’s complaint is to be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, any “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) (internal quotations omitted). Pleadings that contain

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mere “labels and conclusions” or “a formulaic recitation of the elements of the cause of action will
not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2009). “Twombly and Iqbal did not
abrogate the notice pleading standard of [Federal] Rule [of Procedure] 8(a)(2). Rather, those
decisions confirmed that Rule 8(a)(2) is satisfied ‘when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for a misconduct
alleged.’” Hamilton v. Palm, 621 F.3d 816, 817 (8th Cir. 2010) (quoting Iqbal, 556 U.S. at 678).
The Eighth Circuit has interpreted “face of the complaint” to include “public records and
materials embraced by the complaint, and materials attached to the complaint.” C.H. Robinson
Worldwide, Inc. v. Lobrano, 695 F.3d 758, 764 (8th Cir. 2012); see also Deerbrook Pavilion, LLC
v. Shalala, 235 1100, 1102 (8th Cir. 2000) (“On a motion to dismiss, a court must primarily
consider the allegations contained in the complaint, although matters of public and administrative
record referenced in the complaint may also be taken into account.”). The Eighth Circuit has also
found that “an EEOC charge is a part of the public record and may be considered on a motion to
dismiss.” Blakley v. Schlumberger Tech. Corp., 648 F.3d 921, 931 (8th Cir. 2011) (citation
omitted).
Plaintiff’s complaint does not state a claim upon which relief can be granted because she
did not first file a timely EEOC charge on the alleged act of discrimination.

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29 U.S.C. § 626(d)(1) (establishing the 180-day limitation period for ADEA claims). Discrete
discriminatory acts, “such as termination, failure to promote, denial of transfer, or refusal to hire”
are not actionable if they are time barred due to not having filed a timely EEOC charge. Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113-114 (2002). The Court has previously found that
the operative date of an EEOC charge is the date of its original mailing. See Frachiseur v. Graphic
Packaging Int’l, Inc., 2015 WL 4916800, at *3 (W.D. Ark. Aug. 17, 2015). While that date has

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not been presented, each of the dates attached to Ms. Harvey’s signature on her charge of
discrimination occurred after the closing of the 180-day window. The charge could not have been
mailed before it was signed. Thus, her charge of discrimination was untimely.
Furthermore, Ms. Harvey’s previous communications with the EEOC do not qualify as a
charge of discrimination because at no point did Plaintiff expressly request the EEOC to take an
action against any of the Defendants before her actual charge filing. See Fed. Exp. Corp. v.
Holowecki, 552 U.S. 389, 402 (2008) (“[T]he filing must be examined from the standpoint of an
objective observer to determine whether, by a reasonable construction of its terms, the filer
requests the agency to activate its machinery and remedial processes, that would be in accord with
our conclusion.”). Also, the Eighth Circuit has consistently held that “Intake Questionnaires which
are neither signed under oath nor verified do not satisfy the statutory requirement for an
administrative charge.” Shempert v. Harwick Chem. Corp., 151 F.3d 793, 796 (8th Cir. 1998).
Mr. Harvey’s intake form was neither signed under oath nor verified, and the form explicitly stated
that it was not a charge of discrimination. Finally, the EEOC’s communications to Ms. Harvey
indicated that the EEOC did not believe any charge had been filed. Ms. Harvey did not timely file
a charge of discrimination with the EEOC. Because she failed to exhaust her administrative
remedies prior to filing the immediate lawsuit, Plaintiff’s complaint does not state a claim upon
which relief can be granted.
IT IS THEREFORE ORDERED that Defendants’ motion to dismiss (Doc. 10) is
GRANTED, and Plaintiff Judith A. Harvey’s complaint is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED this 30th day of May, 2017.

/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE
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