Harrison v. SSM Audrain Health Care, Inc
MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED Defendant's Motion to Dismiss Count II 19 is GRANTED. Count II of Plaintiffs first amended complaint 16 is dismissed without prejudice. IT IS FURTHER ORDERED Plaintiffs Motion for Leave to File Second Amended Complaint 33 is DENIED. Signed by District Judge E. Richard Webber on 10/3/17. (EAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
MARY J. HARRISON
SSM AUDRAIN HEALTH CARE, INC.
MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff’s Motion for Leave to File a Second
Amended Complaint  and Defendant’s Motion to Dismiss Count II of Plaintiff’s Second
Amended Complaint .
Plaintiff Mary J. Harrison filed a charge of discrimination with the EEOC on November
25, 2016, alleging Defendant SSM Audrain Health Care, Inc, violated the Age Discrimination in
Employment Act (ADEA) by terminating Plaintiff so it could replace her with a younger
employee. On March 10, 2017, she filed her original Complaint  with this Court. She filed her
first amended complaint on July 12, 2017, erroneously titling it her Second Amended Complaint
, and included a “Public Policy Wrongful Discharge Claim” as Count II. Under Count II,
Plaintiff alleged Defendant terminated Plaintiff “in retaliation for her complaints about
discrimination in violation of the ADEA and/or her reporting of ethical and legal violations in
the workplace.” Defendant filed an Answer to Second Amended Complaint  and a Motion to
Dismiss Count II of Plaintiff’s Second Amended Complaint  on July 26, 2017, arguing
Plaintiff failed to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure.
Plaintiff amended her complaint for a second time and filed it on August 11, 2017,
erroneously titling it her Third Amended Complaint . In this amended complaint, Plaintiff
clarifies Count II, asserting “Defendant terminated Plaintiff in retaliation for her complaints
about age discrimination in violation of the ADEA and her reports of inadequately maintained
equipment and hazards to patient safety in violation of 42 CFR 482.41.” Plaintiff also filed a
Memorandum in Opposition to Defendant’s Motion to Dismiss Count II of Plaintiff’s Second
Amended Complaint  on August 15, 2017, stating only, “Plaintiff believes that all issues
raised in Defendant’s Motion to Dismiss relating to the sufficiency of her pleadings in
demonstrating a Clear Mandate of Public Policy have been addressed and resolved by plaintiff’s
Third Amended Complaint.”
In its Reply in Support of its Motion to Dismiss , Defendant argued this Court should
not consider Plaintiff’s Third Amended Complaint because it was not properly before the Court
and “does not cure the deficiencies in the Second Amended Complaint.” On August 31, 2017,
this Court found Plaintiff’s Third Amended Complaint did not properly adhere to the
requirements of Rule 15(a)(2) of the Federal Rules of Civil Procedure, which requires Plaintiff to
obtain the Court’s leave or consent from Defendant in order to file a complaint for a second time.
The Court ordered Plaintiff file a motion for leave to file an amended complaint . Plaintiff
filed her Motion for Leave to file Second Amended Complaint  on September 8, 2017,
acknowledging she previously erred in titling her first and second amended complaints and
requesting leave from this Court to file the amended complaint she had originally labeled her
“Third Amended Complaint” as her “Second Amended Complaint.” Defendant opposes
Plaintiff’s Motion for Leave to file Second Amended Complaint , arguing the proposed
amendment is futile because it could not survive a motion to dismiss and reiterating it has
already moved to dismiss Count II of Plaintiff’s first amended complaint.
“[D]enial of leave to amend pleadings is appropriate only in those limited circumstances
in which undue delay, bad faith on the part of the moving partly, futility of the amendment, or
unfair prejudice to the non-moving party can be demonstrated.” Roberson v. Hayti Police Dept.,
241 F.3d 992, 995 (8th Cir. 2001). The standard for denying a motion to amend because of
futility is stringent. Gross v. Se. Hosp. Ass’n, 1:15-cv-00181 (AGF), 2016 WL 7033753, at *1
(E.D. Mo. Dec. 2, 2016). “[A] party’s motion to amend should be dismissed on the merits only if
it asserts clearly frivolous claims or defenses.” Id.
Federal Rule of Civil Procedure 15 allows a party to “amend its pleading only with the
opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15(a)(2). The “court should
freely give leave when justice so requires.” Id. Though leave to amend should generally be freely
granted, it should be denied when the amendment would be futile. See Moses.com Sec., Inc. v.
Comprehensive Software Sys., Inc., 406 F.3d 1052, 1065 (8th Cir.2005). “In the context of a
motion to amend, ‘futility’ means the inability to withstand a motion to dismiss for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6).” Halsne v. Avera Health, No. 12–
cv–2409 (SRN/JJG), 2013 WL 3088588, at *5 (D. Minn. June 18, 2013) (citing Cornelia I.
Crowell GST Trust v. Possis Med., Inc., 519 F.3d 778, 782 (8th Cir.2008)). In order to withstand
a Rule 12(b)(6) motion, a complaint must contain sufficient factual matter, which, if accepted as
true, states “a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted).
Here, Defendant argues Count II of Plaintiff’s first amended complaint  should be
dismissed and Plaintiff should not be permitted leave to file her second amended complaint 
which solely amends Count II because she failed to exhaust her administrative remedies with
respect to that claim and is not permitted to include it in this lawsuit. “Exhaustion of
administrative remedies is a condition precedent to the filing of an action under the ADEA.”
Anderson v. Durham D&M, LLC, 606 F.3d 513, 523 (8th Cir. 2010). To satisfy this exhaustion
requirement, “[t]he information given in a [ ] ... charge [of discrimination] must be sufficient to
give the employer notice of the subject matter of the charge and identify generally the basis for a
claim, but it need not specifically articulate the precise claim or set forth all the evidence an
employee may choose to later present in court.” Wallace v. DTG Operations, Inc., 442 F.3d
1112, 1123 (8th Cir.2006). However, “there is a difference between liberally reading a claim
which lacks specificity, and inventing, ex nihilo, a claim which simply was not made.” Cottrill v.
MFA, Inc., 443 F.3d 629, 634 (8th Cir.2006) (internal quotation marks and citation omitted).
Allegations outside the scope of those included in the EEOC charge cannot be later pursued in a
party’s federal lawsuit. Robertson v. Budrovich Excavating, Inc., No. 4:05-cv-616 (ERW), 2006
WL 2460794, at *5 (E.D. Mo. Aug. 23, 2006).
This Court agrees Plaintiff failed to exhaust her administrative remedies with respect to
Count II of both her first amended complaint  and her proposed second amended complaint
. Though purported as a claim for “Public Policy Wrongful Discharge,” Count II is clearly an
attempt by Plaintiff to assert a claim of retaliation not included in her original charge with the
EEOC. In her EEOC charge, Plaintiff checked “discrimination” and did not check the box
labeled “retaliation” when noting which charges she was bringing before the EEOC. In the
particulars of her charge, Plaintiff only alleged she was fired so Defendant could replace her with
a younger employee. Thus, because Plaintiff’s charge included only allegations of age
discrimination and did not allude to any retaliation by Defendant, Plaintiff’s claim of retaliation
is foreclosed because she failed to exhaust her administrative remedies. See Richter v. Advance
Auto Parts, Inc., 686 F.3d 847, 851 (8th Cir. 2012) (“Each incident of discrimination and each
retaliatory adverse employment decision constitutes a separate actionable ‘unlawful employment
practice.”) (quoting, Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002).
IT IS HEREBY ORDERED Defendant’s Motion to Dismiss Count II  is
GRANTED. Count II of Plaintiff’s first amended complaint  is dismissed without prejudice.
IT IS FURTHER ORDERED Plaintiff’s Motion for Leave to File Second Amended
Complaint  is DENIED.
So Ordered this 3rd day of October, 2017.
E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE
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