Starks v. Harris Company, Inc. et al

Filing 49

MEMORANDUM AND ORDER; IT IS HEREBY ORDERED that the oral motion of plaintiff Cindy R. Starks to dismiss her sexual harassment claims is sustained. IT IS FURTHER ORDERED that the motion of defendants Harris Co., Inc. and Prince A. Harris for judgment on the pleadings (Doc. 40 ) with respect to plaintiff's sex discrimination claims under Title VII is sustained. IT IS FURTHER ORDERED that the motion of defendants' for judgment on the pleadings with respect to plaintiff's Title VII claims against defendant Prince A. Harris (Doc. 40) is denied as moot. Signed by Magistrate Judge David D. Noce on 12/20/2012; (DJO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CINDY R. STARKS,
Plaintiff,
v.
HARRIS COMPANY, INC., et al.,
Defendants.

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No. 4:12 CV 473 DDN

MEMORANDUM AND ORDER
This action is before the court on the partial motion of defendants Harris Company,
Inc. and Prince A. Harris for judgment on the pleadings.

(Doc. 40.)

The parties have

consented to the exercise of plenary authority by the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c). (Doc. 36.) Oral argument was heard on December
7, 2012.
I. BACKGROUND
Plaintiff Cindy R. Starks commenced this action pro se against defendants Harris
Company, Inc. (“Harris Company”), her former employer, and Prince A. Harris. (Doc. 1.)
The court appointed counsel for plaintiff, and on August 9, 2012, plaintiff filed her second
amended complaint. (Docs. 9, 16.)
In her second amended complaint, plaintiff alleges claims against defendant Harris
Company under (1) Title VII of the Civil Rights Act of 1964 (“Title VII”) for (a) race
discrimination, (b) sex discrimination, (c) sexual harassment, and (d) retaliation; (2) the
Equal Pay Act; and (3) the Fair Labor Standards Act;1 and alleges claims against both
defendants under (4) the Electronic Communications Privacy Act; (5) the Missouri Wiretap
Act; and (6) Missouri common law for (a) unjust enrichment, (b) quantum meruit, and (c)
intrusion into seclusion. (Doc. 16.) On October 26, 2012, defendants moved for judgment

1 Although defendants do not address the Equal Pay Act and Fair Labor Standards Act
claims in their motion, the undersigned notes that the Equal Pay Act is an amendment to
the Fair Labor Standards Act and that the Fair Labor Standards Act is separate and
distinct from Title VII. Corning Glass Works v. Brennan, 417 U.S. 188, 190 (1974); 29
U.S.C. § 201, et seq.; 42 U.S.C. § 2000e, et seq. Significantly, unlike Title VII, Fair Labor
Standards Act does not mandate the exhaustion of administrative remedies as a
prerequisite for filing suit. Compare 29 U.S.C.A. § 216 with 42 U.S.C.A. § 2000e-5.

on the pleadings regarding plaintiff’s claims of sex discrimination and sexual harassment
under Title VII and all claims under Title VII against Defendant Prince Harris. (Doc. 40.)
On December 7, 2012, plaintiff orally moved to dismiss her sexual harassment claim.
According to the second amended complaint, the following occurred. Plaintiff is an
African-American female and at all relevant times defendant Harris Company employed
plaintiff as an office manager. (Doc. 16 at ¶¶ 6,7.) Defendant Harris was at all relevant
times the president of Harris Company and plaintiff’s direct supervisor.

(Id. at ¶ 10.)

Harris Company paid plaintiff substantially less than a white male employee with
substantially similar responsibilities. (Id. at ¶¶ 12, 14.)
In 2010, plaintiff and defendant Harris entered into a consensual sexual
relationship. (Id. at ¶ 16.) After the relationship ended, plaintiff refused defendant Prince
Harris’ requests to continue the relationship. (Id.) As a result, defendant Harris began to
yell at plaintiff, call her names, and kick and throw things.

(Id.)

Defendants treated

plaintiff differently after the relationship than before the relationship ended and also
treated plaintiff differently than they treated other employees. (Id.) For instance, after the
relationship, defendants docked pay when plaintiff conducted personal business during
the workday, which they did not do before the relationship ended nor did they dock the
pay of other employers for similar conduct.

(Id.)

Defendant Harris also described his

sexual relationship to other employees, which then became a topic of workplace
discussion. (Id. at ¶ 17.)
Plaintiff complained to defendant Harris about her treatment as she perceived it.
(Id. at ¶ 19.) Afterwards, defendant Harris sent text messages to plaintiff threatening her
reputation, tapped her personal cellphone, closely monitored her work, and assigned her
additional time-consuming work. (Id. at ¶¶ 19-22.) Also, defendant Harris’ sister falsely
accused plaintiff of using company funds for personal use and taking the documents of
title for company vehicles. (Id. at ¶ 24.) As a result of defendant Harris’ conduct, plaintiff
resigned. (Id.)
Although plaintiff often worked over forty hours in a week, defendants never
compensated her for more than forty hours of work for any week.

(Id. at ¶ 26.)

Defendants promised plaintiff that he would “take care of her and her children” if she
helped him build his business, assuring her that she would be paid if business was
profitable. (Id. at ¶ 28.) Relying on this promise, plaintiff refrained from seeking a higher
paying position elsewhere and worked over forty hours per week despite receiving
compensation for only forty hours per week. (Id.) Defendants failed to honor their promise
to her, despite honoring similar promises to other employees. (Id.)

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Defendant Harris installed a device or program on plaintiff’s cell phone to intercept
her phone conversations and informed plaintiff that he knew the contents of her
conversations. (Id. at ¶ 30.) The device or program also enabled defendant Harris to turn
her phone into a listening device.

(Id.)

He also installed a GPS device on plaintiff’s

personal vehicle. (Id. at ¶ 32.)
II. MOTION FOR JUDGMENT ON THE PLEADINGS
Defendants Harris Company and Harris move for judgment on the pleadings under
F.R.Civ.P. 12(c) on plaintiff’s claims of sex discrimination, and defendant Prince A. Harris
moves for judgment on all of plaintiff’s Title VII claims.
Defendants argue that plaintiff’s second amended complaint alleges claims (1)
under Title VII for (a) disparate treatment based on sex, (b) sexual harassment, (c) racial
discrimination, and (d) retaliation; (2) under the Equal Pay Act; (3) under the Fair Labor
Standards Act; (4) under the Electronic Communications Privacy Act; and (5) under the
Missouri Wiretap Act and common law.
Defendants argue that plaintiff failed to allege sex discrimination claims in her
charge

of

discrimination

filed

with

the

federal

Equal

Employment

Opportunity

Commission, thereby failing to comply with the statutory requirement that she exhaust
her administrative remedies before seeking judicial relief.
Defendant Prince A. Harris argues that all of plaintiff’s claims against him under
Title VII must be dismissed for failure to state a claim, because she alleges he was her
supervisor, and individual supervisors may not be sued under Title VII, invoking
Bonomolo-Hagan v. City Central-Everly Community School Dist., 121 F.3d 446 (8th Cir.
1997).
Plaintiff argues that, giving her administrative charge before the EEOC the required
liberal construction, Dorsey v. Pinnacle Automation Co., 278 F.3d 830, 838 (8th Cir.
2002), the court must consider whether her judicial allegations of discrimination based on
sex are like, reasonably related to, or grow out of her allegations in the administrative
charge.
In her response to the defendants’ motion, plaintiff states that she makes no claim
under Title VII against defendant Prince A. Harris. (Doc. 44 at 5.)

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III. MOTION FOR JUDGMENT ON THE PLEADINGS STANDARD
When considering motions for judgment on the pleadings under Rule 12(c), courts
must accept as true all factual allegations set out in the complaint and construe the
complaint in the light most favorable to the plaintiff, drawing all inferences in her favor.
Wishnatsky v. Rovner, 433 F.3d 608, 610 (8th Cir. 2006). “Judgment on the pleadings is
appropriate only when there is no dispute as to any material facts and the moving party is
entitled to judgment as a matter of law,” the same standard used to address a motion to
dismiss for failure to state a claim under Rule 12(b)(6). Ashley County, Ark. v. Pfizer, Inc.,
552 F.3d 659, 665 (8th Cir. 2009).
IV. DISCUSSION
A. Failure to exhaust administrative remedies
Defendants argue that plaintiff failed to exhaust her administrative remedies for
her claims of sex discrimination under Title VII. The court agrees.
If a plaintiff fails to exhaust her administrative remedies with respect to a claim
under Title VII, that claim is subject to dismissal. Richter v. Advance Auto Parts, Inc., 686
F.3d 847, 852 (8th Cir. 2012). A plaintiff must exhaust his administrative remedies for
each separate alleged unlawful employment practice.

Id.

“To allow otherwise would

frustrate the EEOC’s investigatory and conciliatory roles, and deprive the charged party of
notice.” Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 223 (8th Cir. 1994).
In Richter, an employee filed a complaint in federal court, alleging race and sex
discrimination, and retaliation. 686 F.3d at 854. To determine whether the employee had
exhausted her administrative remedies with respect to her retaliation claim, the Eighth
Circuit looked to whether the employee had checked the box marked “retaliation” and to
the narrative portion of her charge. Id. Because the employee failed to check the box and
set forth no retaliatory actions, the court determined that the employee failed to exhaust
her administrative remedies. Id.
In her judicial complaint, plaintiff alleges that defendants discriminated against her
on account of her sex by paying her substantially less than they paid a male employee
with substantially similar responsibilities. (Doc. 16 at ¶ 12.) In her administrative charge,
plaintiff alleged that on account of her race defendants denied her wages for time spent at
doctor’s appointments while paying other employees for time spent at their doctors’
appointments. However, she did not mention the wage disparity alleged in her complaint
nor did she allege that sex discrimination caused any wage disparity.

(Doc. 40-1.)

Further, plaintiff did not check the box on the charge marked “sex”. (Id.) Accordingly,

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plaintiff failed to exhaust administrative remedies with respect to her claim of sex
discrimination under Title VII.
B. Individual liability
Defendants argue that plaintiff’s complaint fails to identify specifically the
defendants for each individual claim and argues that plaintiff cannot bring a Title VII claim
against defendant Harris because supervisors are not liable under Title VII.

Plaintiff

replies that she has brought no claims under Title VII against defendant Harris.
Accordingly, defendants’ argument that defendant Harris cannot be liable under Title VII
due to his status as a supervisor is moot.
V. CONCLUSION
For the reasons stated above,
IT IS HEREBY ORDERED that the oral motion of plaintiff Cindy R. Starks to
dismiss her sexual harassment claims is sustained.
IT IS FURTHER ORDERED that the motion of defendants Harris Co., Inc. and
Prince A. Harris for judgment on the pleadings (Doc. 40.) with respect to plaintiff’s sex
discrimination claims under Title VII is sustained.
IT IS FURTHER ORDERED that the motion of defendants’ for judgment on the
pleadings with respect to plaintiff’s Title VII claims against defendant Prince A. Harris
(Doc. 40) is denied as moot.

/S/ David D. Noce__________
UNITED STATES MAGISTRATE JUDGE
Signed on December 20, 2012.

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