Wiggins v. Sports Services

Filing 19

MEMORANDUM AND ORDER re: 14 3 ORDERED that Plaintiff Marshall E. Wiggins's Motion to Appoint Counsel [ECF No. 3] is DENIED. FURTHER ORDERED that Defendant Sports Services's Motion to Dismiss [ECF No. 14] is GRANTED. Signed by District Judge Henry E. Autrey on 3/29/13. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARSHALL E. WIGGINS,
Plaintiff,
v.
SPORTS SERVICES,
Defendant.

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No. 4:12CV01114 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Marshall E. Wiggins’s Motion to
Appoint Counsel [ECF No. 3]. Additionally Defendant Sports Services1 filed a
Motion to Dismiss [ECF No. 14]. Plaintiff filed an opposition to the motion [ECF
No. 17], to which Defendant replied [ECF No. 18].
Plaintiff’s Motion to Appoint Counsel
On June 21, 2012, Plaintiff filed an Employment Discrimination Complaint
(“Complaint”). The Complaint alleged Title VII violations based on race, color and
religious discrimination and retaliation. See ECF No. 1. Also on June 21, 2012,
Plaintiff filed a Motion to Appoint Counsel [ECF No. 3], in which Plaintiff
contends that he is in poverty and cannot afford to hire an attorney. The Court notes

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Plaintiff’s Complaint names “Sports Services” as defendant; however, as
Defendant points out, the correct name of Plaintiff’s employer–and of defendant herein–is
“Missouri Sports Services, LLC.”

that there is no constitutional or statutory right to the appointment of counsel in a
civil case. Phillips v. Jasper County Jail 437 F.3d 791, 794 -795 (8th Cir. 2006).
The relevant criteria for determining whether counsel should be appointed include
the factual complexity of the issues, the ability of the indigent person to investigate
the facts, the existence of conflicting testimony, the ability of the indigent person to
present the claims, and the complexity of the legal arguments. Edgington v.
Missouri Dep't of Corr., 52 F.3d 777, 780 (8th Cir.1995), abrogated on other
grounds, Doe v. Cassel, 403 F.3d 986, 989 (8th Cir.2005). In considering a motion
to appoint counsel for an indigent plaintiff, the court should “determine whether the
nature of the litigation is such that plaintiff as well as the court will benefit from the
assistance of counsel.” Nelson v. Redfield Lithograph Printing, 728 F.2d 1003,
1005 (8th Cir. 1984).
Plaintiff’s Complaint sets forth the facts upon which these claims are based,
and Plaintiff has set forth the grounds upon which he claims his rights have been
violated. This case does not appear to be so complex that Plaintiff is unable to
pursue this action without the assistance of counsel. Having considered the factual
complexity of the case, the basis upon which Plaintiff’s claims rest, the ability of
Petitioner to present his claim, and the complexity of the legal issues involved in
this case, see Johnson v. Williams, 788 F.2d 1319, 1323 (8th Cir. 1986), the Court

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concludes that appointment of counsel is not warranted at this time. Thus, Plaintiff’s
motions for appointment of counsel are denied.
Defendant’s Motion to Dismiss
On August 15, 2013, Defendant filed a Motion to Dismiss [ECF No. 14],
alleging that Plaintiff has failed to state a claim upon which relief can be granted.
The notice pleading standard of Federal Rule of Civil Procedure 8(a)(2) requires a
plaintiff to give a short and plain statement “plausibly suggesting . . . that the
pleader is entitled to relief.” Bell Atlantic v. Twombly, 550 U.S. 544, 557 (2007).
Under this standard, a claim is facially plausible where “the pleaded factual content
allows the court to draw a reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1940
(2009) (internal citations omitted). “Specific facts are not necessary; the statement
need only ‘give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007). That said,
“[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitlement to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555 (internal alterations and citations omitted). Thus, application of this standard

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suggests a two-step analysis under which the Court may first determine (1) whether
there are factual allegations in the complaint sufficient to entitle the plaintiff to “the
assumption of truth,” and if so, (2) “a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 129 S.
Ct. 1937, 1950; Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009).
When ruling on a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss
for failure to state a claim, the Court must therefore take as true the alleged facts and
determine whether they are sufficient to raise more than a speculative right to relief.
Twombly, 550 U.S. at 555-56. The Court does not, however, accept as true any
allegation that is a legal conclusion. Iqbal, 129 S.Ct. at 1949-50. 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). “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.

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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. Id.; Nusku v. Williams, 490 U.S. 319, 327
(1989).
Defendant’s Motion to Dismiss alleges that Plaintiff’s race and color
discrimination claims must be dismissed for failure to exhaust administrative
remedies. It is well settled that under Title VII, a plaintiff must exhaust his
administrative remedies prior to filing suit. See 42 U.S.C. § 2000e–5(e); Hogans v.
Old Warson Country Club WL 5222660, 1 -2 (8th Cir.,2011); Malone v. Ameren
UE,646 F.3d 512, 516 (8th Cir.Mo.2011)(citing Alexander v. Gardner–Denver Co.,
415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974)). Allowing a complaint to
encompass allegations outside the ambit of the predicate EEOC charge would
circumscribe the EEOC's investigatory and conciliatory role, as well as deprive the
charged party of notice of the charge, as surely as would an initial failure to file a
timely EEOC charge. Dorsey v. Pinnacle Automation Co., 278 F.3d 830, 838 (8th
Cir. 2002) (quotations and citation omitted). Therefore, the breadth of the civil suit

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is as broad as the scope of any investigation that reasonably could have been
expected to result from the initial charge of discrimination. Id. Upon review of
Plaintiff’s April 6, 2012 Charge of Discrimination that he filed with the Equal
Employment Opportunity Commission (“EEOC”), he only checked the boxes for
“retaliation” and “religion.”See ECF No. 1, Exh. 1 at 2. As such, Plaintiff failed to
exhaust his administrative remedies with regard to his race and color discrimination
claims; therefore, they are dismissed.
Defendant’s Motion to Dismiss also alleges Plaintiff’s retaliation claim must
be dismissed for failure to allege any protected activity, and because it is timebarred. The prima facie elements of a Title VII retaliation claim are: 1) the plaintiff
engaged in protected activity, 2) an adverse employment action was taken against
the plaintiff, and 3) a causal connection exists between the two. Barker v. Missouri
Department of Corrections, 513 F.3d 831, 835 (8th Cir. 2008). There are two types
of cognizable protected activity: making a Title VII charge, or testifying, assisting,
or participant in the investigation, proceeding, or hearing of a charge (the
“participation” component); or opposing any employment practice which is unlawful
under Title VII (“the “opposition” component). 42 U.S.C. §2000e-3; Id. at 834.
Defendant contends that Plaintiff’s allegations regarding his “union
complaint” (see ECF No. 1, ¶1), his “complaints about being denied seniority rights”

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(see ECF No. 1, Exh. 1 at 2) and “a suggestion [Plaintiff] thought would build a
better relationship between [he and his supervisor]” (see ECF No. 15, Exh. A at 2).
Plaintiff’s EEOC charge also alleges that he was retaliated against for saying “Lord
Jesus” to himself in the presence of his supervisor. See ECF No. 1, Exh 1 at 2. The
Court has carefully reviewed Plaintiff’s claims in his Complaint and finds there are
no allegations that he engaged in statutorily protected activity under Title VII. Even
viewing Plaintiff’s Complaint in the most favorable light to him, he has failed to
state a claim of retaliation under Title VII. Simply put, Plaintiff is not claiming
Defendant took adverse action against him based on protected activity under Title
VII. See Barker, 513 F. 3d at 835; 42 U.S.C. §2000e-3. As such, Defendant’s
Motion to Dismiss is granted with regard to its dismissal request of Plaintiff’s Title
VII claims of retaliation. Because Plaintiff’s retaliation claim is dismissed on these
grounds, the Court need not address Defendant’s time-barred argument.2

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To bring a claim under Title VII, the charge must be filed within 300 days of the
occurrence. Burrow v. Boeing Co., No. 4:09cv2073. 2011 U.S. Dist. LEXIS 45439, at
*29–30,2011 WL 1594937 (E.D.Mo. Apr. 27, 2011)(citing 42 U.S.C. § 2000e–5(e)(1)). In
Plaintiff’s Memorandum to Explain Complaints [ECF No. 5], he cites incidents of retaliation
dating back to 2005. As Defendant argues in its Motion to Dismiss, and as Plaintiff concedes in
his Memorandum (see ECF No. 5 at 3), these claims are time-barred, as they were not filed
within 300 days of the occurrence. Additionally, Plaintiff first raised these claims in his
Memorandum to Explain Complaints; not in his original complaint. As such, the Court need not
address these allegations.

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Next, Defendant contends that any allegations by Plaintiff claiming that there
was a breach of the collective bargaining agreement, or the duty of fair
representation, fail to state a claim because such allegations are untimely and
otherwise fail to satisfy the requirements of a §301 hybrid claim. Under §301 of the
Labor Management Relations Act (“LMRA”), before an employee may bring suit
against his or her employer for breach of a collective bargaining agreement, the
employee must “at least attempt to exhaust exclusive grievance procedures
established by the collective bargaining agreement.” Vaca v. Sipes, 386 U.S. 171,
184 (1967). Plaintiff asserts a vague allegation by stating “I feel that the Union
failed to represent me.” See ECF No. 1, ¶12. This allegation, and his other assertions
that there were violations of the collective bargaining agreement, all fasl outside the
scope of a Title VII claim. Additionally, Plaintiff has failed to attempt to exhaust his
administrative remedies by initiating the dispute resolution process as required by
the collective bargaining agreement. Plaintiff does not dispute this. As such, Plaintiff
has failed to raise a proper §301 hybrid claim due to his failure to exhaust and his
claims regarding the violation of the collection bargaining agreement are dismissed.
Defendant’s final argument is that Plaintiff’s religious discrimination claim
must be dismissed because the alleged circumstances of the incident demonstrate
that Plaintiff cannot make a prima facie case or show that Defendant’s stated reason

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was pretextual. Additionally, Defendant argues that even if Plaintiff could make a
prima facie case, he did not suffer any adverse material action. Plaintiff’s Complaint
alleges that he believes he was discriminated against because of his religion (see
ECF No. 1 at 5); however, it alleges nothing more than that. In his Charge of
Discrimination, Plaintiff contends “I believe I was discriminated against due to my
religion on 11/23/11, in that I was sent home from work after saying the phrase,
“Lord Jesus”, in the presence of my supervisor.” ECF No. 1, Exh. 1 at 2.
Title VII prohibits an employer from discharging or discriminating against
any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s religion. 42 U.S.C. §2000e(a)(1); Jones v.
TEK Industries, Inc., 319 F.3d 355, 358-359 (8th Cir.2003). To establish a prima
facie case of religious discrimination under Title VII, Plaintiff must show that they
had a bona fide religious belief that conflicts with an employment requirement; that
they informed their employer of the this belief; and that they were disciplined for
failing to comply with a conflicting requirement of employment. Id.; Ansonia Bd. Of
Educ. v. Philbrook, 479 U.S. 60, 65-66, 107 S.Ct. 367, 93, L.Ed.2d 305 (1986). The
incident that Plaintiff raises in his Charge of Discrimination does not amount to an
incident of discrimination under Title VII and the authoritative case law. Plaintiff
merely uttered an exclamation out of dismay. Defendant’s actions to send Plaintiff

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home were in no way based on Plaintiff or Defendant’s religious orientation. In fact,
Plaintiff offers no evidence that he had a bona fide religious belief, or that his
employer was ever aware of his religious orientation. As such, Plaintiff’s Title VII
religious discrimination claim fails and will be dismissed.
Conclusion
For the reasons outlined above, Plaintiff’s Motion to Appoint Counsel is
denied. Additionally, Defendant’s Motion to Dismiss is granted.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff Marshall E. Wiggins’s Motion to
Appoint Counsel [ECF No. 3] is DENIED.
IT IS FURTHER ORDERED that Defendant Sports Services’s Motion to
Dismiss [ECF No. 14] is GRANTED.
Dated this 29th day of March, 2013.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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