Gross v. Southeast Hospital Association

Filing 26

MEMORANDUM AND ORDER re: 12 MOTION to Dismiss Case (Partial) filed by Defendant Southeast Hospital Association motion is GRANTED. Plaintiff's claims are dismissed to the extent they allege discrimination or retaliation described i n EEOC Charge No. 560-2014-01084, dated May 22, 2014, or EEOC Charge No. 560-2014-0143, dated September 15, 2014. Plaintiff's only surviving claims are those predicated on events first alleged in EEOC Charge No.560-2015-00453, dated December 11, 2014.. Signed by District Judge Audrey G. Fleissig on 5/12/16. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI

MARGIE ELAINE GROSS,
Plaintiff,
v.
SOUTHEAST HOSPITAL
ASSOCIATION,
Defendant.

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No. 1:15-CV-181-AGF

MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s motion for partial dismissal (Doc.
No. 12). Plaintiff, appearing pro se, submitted a response to the motion (Doc. No. 20).
For the reasons stated herein, Defendant’s motion will be granted.
BACKGROUND
Plaintiff, a former employee of Defendant Southeast Hospital Association, filed
the instant employment discrimination case against Defendant alleging discrimination
based on race, color, disability, and age in violation of Title VII of the Civil Rights Act of
1964 (“Title VII”) and the Age Discrimination in Employment Act (“ADEA”). Plaintiff
also alleges retaliation.
Plaintiff worked for Defendant from 1978 until her termination in 2014. She was
employed as a nurse assistant, and later became a physical therapy technician. Plaintiff
alleges that, beginning in mid-2013, a new supervisor began engaging in discriminatory
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behavior against Plaintiff.

Among other incidents, Plaintiff alleges “bullying” and

mistreatment during a performance evaluation with a different supervisor.

Plaintiff

alleges that discrimination was based on her race (African American), age (Plaintiff
alleges she was 57 years old at the outset of the discrimination), and purported disability,
which Plaintiff describes only as “an increase in my heart rate, blood pressure, and
anxiety.” (Doc. No. 1 at 10.) Ultimately, Plaintiff began a medical leave of absence for
her disability, described as “[increased] heart rate, blood pressure, and anxiety,” on
March 7, 2014. (Doc. No. 14-1.) She remained on leave through the date of her
termination, October 3, 2014.
Plaintiff appears to have filed three separate charges of discrimination. The first,
EEOC Charge No. 560-2014-01084, is dated May 22, 2014 (“May Charge”), and checks
boxes for race and age discrimination. The second, EEOC Charge No. 560-2014-0143, is
dated September 15, 2014 (“September Charge”), and checks boxes for race, age, and
disability discrimination, as well as retaliation. Finally, the third charge, EEOC Charge
No. 560-2015-00453, is dated December 11, 2014 (“December Charge”), and also checks
boxes for race, age, and disability discrimination, as well as retaliation.
The May Charge alleges November 14, 2013, through May 14, 2014, as the
“date(s) discrimination took place.” Generally, the May Charge asserts that Defendant
discriminated against Plaintiff by denying her requested leave of absence for December
30, 2013, through January 10, 2014; docking her leave for “unofficial time off”; as well
as purported discrimination during her performance evaluation of March 5, 2014. (Doc.
No. 1-1.) The September Charge reiterates these same incidents and allegations. It
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alleges November 14, 2013 (the same start date as the May Charge), through September
11, 2014, as the “date(s) discrimination took place,” and further asserts that the actions
were in retaliation for complaining about race discrimination. (Doc. No. 14.)
The December Charge again asserts many of the same instances of purported
discrimination. In addition, it alleges that Plaintiff was discharged in retaliation for filing
her previous charges of discrimination, and that Defendant violated the law by failing to
engage in a legally required process regarding Plaintiff’s need for an accommodation. It
alleges March 5, 2014, through “present” (December 11, 2014) as the “date(s)
discrimination took place.” Plaintiff began a medical leave of absence on March 7, 2014,
and remained on leave through October 3, 2014, when Defendant sent a letter terminating
her employment. Thus, the period covered by Plaintiff’s December Charge is limited to
her final few days of actual work for Defendant, through the date of her termination.
Plaintiff alleges in her complaint that she received a Right to Sue letter, but she
attached only a Notice of Right to Sue dated July 15, 2015, which corresponds to the
December Charge. Defendant points out that in fact, a Right to Sue letter corresponding
to the May Charge was also issued by the EEOC on June 6, 2014, and a Right to Sue
letter corresponding to the September Charge was issued on September 25, 2014. As
such, Defendant contends in the instant motion that Plaintiff’s claims are time-barred to
the extent they are based on events or incidents invoked in the May Charge or the
September Charge, because Plaintiff’s lawsuit was not brought within 90 days of the
Right to Sue letters corresponding with those charges.

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Plaintiff did not initially respond to Defendant’s motion to dismiss, but did so after
the Court issued an order to show cause why the complaint should not be dismissed.
(Doc. No. 20.) However, while Plaintiff reiterates numerous allegations of unfair and
discriminatory treatment, she makes no response to Defendant’s arguments regarding the
right to sue letters.
LEGAL STANDARD
To survive a motion to dismiss for failure to state a claim, a plaintiff’s allegations
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, 570 (2007)). While the court must accept the plaintiff’s
factual allegations as true and construe them in the plaintiff’s favor, it is not required to
accept the legal conclusions the plaintiff draws from the facts alleged. Iqbal, 556 U.S. at
678; Retro Television Network, Inc. v. Luken Commc’ns, LLC, 696 F.3d 766, 768-69 (8th
Cir. 2012). A complaint “must contain either direct or inferential allegations respecting
all the material elements necessary to sustain recovery under some viable legal theory.”
Twombly, 550 U.S. at 562 (internal quotation omitted).
Pro se pleadings are to be liberally construed and are held to less stringent
standards than those drafted by an attorney. Nickless v. Saint Gobain Containers, No.
4:11CV1514 CAS, 2012 WL 1414849, at *4 (E.D. Mo. Apr. 24, 2012) (citing Smith v. St.
Bernards Reg’l Med. Ctr., 19 F.3d 1254, 1255 (8th Cir. 1994)). See also Russell v. City
of Overland Police Dept., 838 F. Supp. 1350 (E.D. Mo. 1993). Nevertheless, “pro se
pleadings must not be conclusory and must state sufficient facts which, when taken as
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true, support the claims advanced.” Nickless, 2012 WL 1414849, at *4 (citing Stone v.
Harry, 364 F.3d 912, 914 (8th Cir. 2004)).
DISCUSSION
Defendant argues that Plaintiff’s claims under Title VII and the ADA are
untimely. Before a plaintiff is allowed to proceed in federal court under Title VII, she
must exhaust her administrative remedies. 42 U.S.C. § 2000e–5(b), (c), (e). To exhaust
administrative remedies, the plaintiff “must timely file her charges with the EEOC and
receive, from the EEOC, a ‘right to sue’ letter.” Shannon v. Ford Motor Co., 72 F.3d
678, 684 (8th Cir. 1996). Upon receipt of the right-to-sue letter from the EEOC, the
plaintiff has 90 days to file suit in court. See 42 U.S.C. § 2000e–5(f)(1); Thomas v.
KATV Channel 7, 692 F.2d 548, 550 (8th Cir. 1982) (“within ninety days after the EEOC
provides notice to ‘the person aggrieved’ suit may be filed in federal district court”).
This statutory 90–day filing period generally “begins to run on the day the right to sue
letter is received” by the aggrieved person. Hill v. John Chezik Imports, 869 F.2d 1122,
1124 (8th Cir. 1989); see also 29 C.F.R. § 1601.28(e) (providing that a right-to-sue letter
includes notice of the right to bring a civil action “within 90 days from receipt” of
notice).
The Eighth Circuit has explained that if a lawsuit is not brought within the
statutory filing period, a subsequent charge of discrimination based on the same
purported discrimination will not extend the time to bring a lawsuit. Spears v. Mo. Dep’t
of Corr. & Human Res., 210 F.3d 850 (8th Cir. 2000). In Spears, the Court explained:

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It is undisputed that Spears did not file suit within 90 days of
receiving a right to sue letter on her 1992 charge. Spears is
therefore barred from asserting a claim of retaliation based
upon the acts asserted in this charge. See Williams v. Little
Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir. 1994)
(plaintiff who timely filed suit on second EEOC charge was
barred from asserting claims based on events which formed
basis of prior EEOC charge that was not timely sued upon).
Furthermore, the fact that Spears’s January 1993 EEOC
charge and the ensuing right to sue letter reiterated these acts
does not remove this bar. See Soso Liang Lo v. Pan Am.
World Airways, Inc., 787 F.2d 827, 828 (2nd Cir. 1986) (per
curiam) (where plaintiff failed to timely bring suit after
receiving right to sue letter on first EEOC charge, subsequent
charge and right to sue letter did not revive claims asserted in
first charge).
Id. at 853. Additionally, in Williams, the Eighth Circuit explained that a subsequentlyfiled charge of discrimination is to encompass only those claims expressly alleged in it; it
is not to be read so broadly as to encompass previously-asserted claims. Williams, 21
F.3d at 223 (“The [subsequent] charge does not even hint of a claim of race
discrimination . . . the only claim properly addressed by EEOC administrative processes
was that of retaliation.”).
Thus, in the instant matter, Plaintiff is barred from asserting claims based on the
allegations included in the first two charges of discrimination. Such claims include the
allegations related to the denial of Plaintiff’s requested leave of absence in December
2013, the “unofficial time off” assessment, and the purported discrimination during
Plaintiff’s performance evaluation of March 5, 2014.
dismissed to the extent it relies upon these incidents.

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Plaintiff’s complaint will be

However, Plaintiff’s complaint will survive to the extent it alleges discriminatory
action occurring after September 11, 2014 (the end-date expressed in the September
Charge), or to the extent it relies upon alleged discrimination not fairly described in the
May Charge or September Charge. Most notably, Plaintiff’s actual termination was dated
October 3, 2014; therefore, her ability to assert a claim of retaliatory discharge is not
compromised by the earlier-issued Right to Sue letters.

The claims contained in

Paragraphs 24-29 of the attachment to Plaintiff’s complaint also, generally, are not
barred. These include claims premised on Defendant’s alleged failure to accommodate
Plaintiff’s medical condition, and retaliation related to Plaintiff’s request for
unemployment benefits.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Partial Motion to Dismiss (Doc.
No. 12) is GRANTED.

Plaintiff’s claims are dismissed to the extent they allege

discrimination or retaliation described in EEOC Charge No. 560-2014-01084, dated May
22, 2014, or EEOC Charge No. 560-2014-0143, dated September 15, 2014. Plaintiff’s
only surviving claims are those predicated on events first alleged in EEOC Charge No.
560-2015-00453, dated December 11, 2014.
Dated this 12th day of May, 2016.
________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

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