Halilovic v. AT&T et al

Filing 24

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants motion to dismiss is GRANTED with respect to Plaintiffs racial harassment claim, and DENIED in all other respects. (Doc. No. 22.) Signed by District Judge Audrey G. Fleissig on 11/9/12. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ALPHEA MARECIA HALILOVIC,
Plaintiff,
v.
SOUTHWESTERN BELL TELEPHONE
CO.,
Defendant.

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No. 4:12CV000978 AGF

MEMORANDUM AND ORDER
This employment discrimination case is before the Court on Defendant
Southwestern Bell Telephone Co.’s motion to dismiss certain claims in Plaintiff Alphea
Marecia Halilovic’s amended complaint. For the reasons set forth below, the motion
shall be granted in part and denied in part.
BACKGROUND
Plaintiff, a black American of Jamaican descent, filed her two-count amended
complaint under the Family Medical leave Act (“FMLA”), and Title VII of the Civil
Rights Act of 1964, as amended, respectively. She alleges that she was employed by
Defendant in July 2004 as a service representative and terminated on November 25, 2009.
In Count I she alleges that in 2008 she needed time off from work for a serious health
condition and was granted leave under the FMLA, including intermittent leave. She
alleges that when she returned from FMLA leave on July 30, 2009, she was initially
offered the choice to either resign or be terminated, and that she was terminated “less
than ten (10) days after she returned from FMLA leave.” She further alleges that

Defendant “knew or showed reckless disregard that its conduct was prohibited by” the
FMLA and that Defendant’s interference with her rights under the Act was “in willful
violation of the FMLA.”
In Count II Plaintiff alleges that while in Defendant’s employ, she was subjected
to racial discrimination by her supervisor, Nicholas Sardinas, which prevented her
advancement in her employment with Defendant. She alleges that in early 2008,
Sardinas circulated an email to Plaintiff and her co-workers with disparaging remarks
concerning Plaintiff’s race, referring to her as a “Monkey.” This racial slur caused
Plaintiff severe emotional distress.
She also alleges that she was subjected to sexual harassment, namely, unwanted
sexual comments, from her supervisor, Kraig Stiles. She reported the sexual advances to
Defendant’s Equal Employment Office on April 13, 2009, but was not removed from his
team until July 2009. In August 2009, she was informed, in Stiles’ presence, that she
was being suspended for selling homemade jewelry to a co-worker on company time, an
assertion that the co-worker disputes. On November 29, 2009, Plaintiff was terminated
for the purported reasons of poor performance and for selling jewelry on company time.
Plaintiff claims that these reasons were mere pretext and that, in fact, she was terminated
in retaliation for her sexual harassment complaints, and in retaliation for taking medical
leave under the FMLA, and that she was harassed and terminated because of her sex and
race.
On February 8, 2012, Plaintiff filed an administrative charge, part of which has
been submitted by Defendant as an exhibit to its motion to dismiss. In the charge,
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Plaintiff checked boxes for discrimination based on sex, disability, and retaliation. The
facts she relayed in the charge are not quite consistent with those alleged in her
complaint. In the charge she asserted as follows: Plaintiff came under Stiles’ supervision
in December 2008. In January 2009, she told him that she wanted his sexual comments
to her to stop. She went on short term disability immediately thereafter and returned to
work on March 16, 2009, on a part-time basis. On April 13, 2009, she filed an internal
harassment complaint due to Stiles’ conduct and no action was taken. On July 10, 2009,
she was given a poor performance evaluation; on July 31, 2009, she was told that she had
exhausted all her FMLA rights and should resign or take a leave of absence; on August
11, 2009, she was told that she was being suspended for violating company policy by
selling her jewelry to a co-worker; on November 24, 2009, she had a hearing and was
told she was being suspended for poor performance and for selling her jewelry on
company time; and on November 25, 2009, she was terminated. (Doc. No. 22-1.)
Defendant acknowledges that in paragraph III of the charge, Plaintiff references her belief
that she was “discriminated against because of [her] race.” (Doc. No. 22 at 10.)1
On February 28, 2012, the Equal Employment Opportunity Commission
(“EEOC”) issued a notice of right to sue. The present action was initiated by Plaintiff pro
se on May 23, 2012. The amended complaint was filed with the assistance of retained
counsel.

1

Defendant did not provide to the Court this part of Plaintiff’s charge.
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Defendant argues that Plaintiff’s FMLA retaliation claim should be dismissed
under the applicable two-year statute of limitations, because Plaintiff’s allegations are
insufficient to invoke the three-year limitations period for willful violations of the Act.
Defendant argues that Plaintiff’s Title VII racial harassment claim based on the
circulation of an email in early 2008 should be dismissed for failure to file an
administrative charge with respect to that claim within 300 days of the occurrence, and
further, that Plaintiff failed to include the occurrence in her administrative charge of
February 8, 2010.
Lastly, Defendant maintains that to the extent the amended complaint is read to
include a claim of wrongful termination based on race, such a claim should be dismissed
for failure to allege sufficient facts to support it. Plaintiff has not filed a response to
Defendant’s motion to dismiss.
DISCUSSION
To withstand a motion to dismiss, a complaint must contain enough facts to “state
a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “[C]onclusory statements” and “naked assertion[s] devoid of further
factual enhancement” are insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks and citation omitted). Courts must accept a plaintiff’s
factual allegations as true but need not accept a plaintiff’s legal conclusions. Id.;
Retro Television Network, Inc. v. Luken Comm’cns, LLC, ___ F.3d ___, 2012 WL
4899683, at *2 (8th Cir. Oct. 17, 2012).

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Here, Plaintiff’s allegations that Defendant knew or showed reckless disregard
that its conduct was prohibited by [the FMLA], and that her termination “was a willful
violation of the FMLA” are sufficient, at this stage in the case, to invoke the three-year
statute of limitations of 29 U.S.C. § 2617(c)(2) for lawsuits alleging a willful violation of
the Act.
The Court agrees with Defendant that Plaintiff’s racial harassment claim is
subject to dismissal for her failure to exhaust her administrative remedies by not filing a
charge of discrimination within 300 days of the alleged racial slur, as required by 42
U.S.C. § 2000e-5(e)(1).2 Although this time limit is subject to the doctrines of waiver,
estoppel, and tolling, here Plaintiff has presented no basis for application of any of those
doctrines. Nor did she allege any act of racial harassment within the 300-day period to
establish a continuing violation. ‘[D]iscrete acts that fall within the statutory time period
do not make timely acts that fall outside the time period,” and the act of termination does
not count as part of a “continuing violation” of harassment. Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 112, 114 (2002). Thus, the claim of racial harassment based
upon Sardinas’s alleged racial slur in early 2008 shall be dismissed.

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The 300-day period applies, as opposed to a-180 day period because Plaintiff’s
charge was filed with the Missouri Commission on Human Rights. See 42 U.S.C. § 2000e5(e)(1).

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The Court does believe that the amended complaint asserts a claim of illegal
termination based on race, and although the factual allegations in support of this claim are
sparse, the Court is not inclined to dismiss the claim at this stage of the case.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant’s motion to dismiss is GRANTED
with respect to Plaintiff’s racial harassment claim, and DENIED in all other respects.
(Doc. No. 22.)

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 9th day of November, 2012.

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