Ousley v. New Beginning G Star

Filing 67

OPINION, MEMORANDUM, AND ORDER: IT IS HEREBY ORDERED that Defendant's Motion to Dismiss, [Doc. No. 32 ], is granted. Signed by Honorable Henry E. Autrey on 11/4/11. (TRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JERRY L. OUSLEY,
Plaintiff,
vs.
NEW BEGINNINGS C-STAR, INC.,
Defendant.

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Case No. 4:09CV1957 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion to Dismiss Plaintiff's
Retaliation Claim Alleged pursuant to 42 U.S.C. § 1981, [Doc. No. 32]. Plaintiff
has failed to file a response to the Motion. For the reasons set forth below, the
Motion is granted.
Introduction
Plaintiff’s Amended Complaint was brought pursuant to the Americans with
Disabilities Act (“ADA”), as amended, 42 U.S.C. § 12101 et seq.; the Missouri
Human Rights Act (“MHRA”), Mo. Rev. Stat. § 213.010 et seq.; and the Civil
Rights Act of 1866, 42 U.S.C. § 1981. Count I of Plaintiff’s amended complaint
alleges Defendant engaged in acts of discrimination due to Plaintiff’s disability.
Count II alleges that Defendant terminated Plaintiff’s employment in retaliation for
Plaintiff exercising his rights under § 12203 of the ADA; 42 U.S.C. § 1981; and

Mo. Rev. Stat. § 213.070.

On October 14, 2011, the Court granted Defendant's Motion for Summary
Judgment as to Plaintiff's ADA claims. The remaining claim, i.e., the § 1981
claim, is the subject of the instant motion.
Standard of Review: Motion to Dismiss
When ruling on a motion to dismiss for failure to state a claim, the Court
must take as true the alleged facts and determine whether they are sufficient to
raise more than a speculative right to relief. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555-56 (2007). The Court does not, however, accept as true any allegation
that is a legal conclusion. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009).
The complaint must have “‘a short and plain statement of the claim showing that
the [plaintiff] is entitled to relief,’ in order to ‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.’” Twombly, 550 U.S.
at 555 (quoting Fed.R.Civ.P. 8(a)(2)) and then Conley v. Gibson, 355 U.S. 41, 47
(1957), abrogated by Twombly, supra); see also Gregory v. Dillard’s Inc., 565
F.3d 464, 473 (8th Cir.) (en banc), cert. denied, 130 S.Ct. 628 (2009). While
detailed factual allegations are not necessary, a complaint that contains “labels
and conclusions,” and “a formulaic recitation of the elements of a cause of
action” is not sufficient. Twombly, 550 U.S. at 555; accord Iqbal, 129 S.Ct. at
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1949. The complaint must set forth “enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at 570; accord Iqbal, 129 S.Ct. at 1949;
C.N. v. Willmar Pub. Sch., Indep. Sch. Dist. No. 347, 591 F.3d 624, 629-30 (8th
Cir.2010); Zutz v. Nelson, 601 F.3d 842, 848 (8th Cir. 2010); Braden v. Wal-Mart
Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009). “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.”
Iqbal, 129 S.Ct. at 1949. If the claims are only conceivable, not plausible, the
complaint must be dismissed. Twombly, 550 U.S. at 570; accord Iqbal, 129 S.Ct.
at 1950. In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “the
complaint should be read as a whole, not parsed piece by piece to determine
whether each allegation, in isolation, is plausible.” Braden, 588 F.3d at 594. The
issue in considering such a motion is not whether the plaintiff will ultimately
prevail, but whether the plaintiff is entitled to present evidence in support of the
claim. See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
Discussion
Defendant moves to dismiss because Plaintiff's Amended Complaint
contains no allegations of Plaintiff's participation in any protected activity in
opposition to employment discrimination on the basis of any one or more of
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ancestry, ethnicity or race. A reading of the Amended Complaint establishes that
Defendant is correct; the Amended Complaint fails to set forth any allegations
which would set forth a claim under 42 U.S.C. § 1981. Nowhere within the
Amended Complaint does Plaintiff claim that his employment was materially
effected in retaliation for his participation in any protected activity on the basis of
race, ethnicity and/or ancestry. This complete lack of any factual allegations
renders the Amended Complaint deficient under the standards articulated above.
Conclusion
Based on the foregoing, Defendant's Motion to Dismiss is well taken.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss, [Doc.
No. 32], is granted.
Dated this 4th day of November, 2011.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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