June Macon, plaintiff v. Big Bend Woods Healthcare, defendant

Filing 49

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that defendant Cedarcroft Health Services, Inc.s Motion for Judgment on the Pleadings is GRANTED, and plaintiffs claims under Title VII, Sections 102 and 103 of the Civil Rights Act of 1991, the ADA, GINA and the Equal Pay Act are DISMISSED. [Doc. 29]IT IS FURTHER ORDERED that plaintiff is granted leave to file a Third AmendedComplaint, within twenty-one (21) days of the date of this Order. Any claims not alleged or realleged in the Third Amended Complai nt will be deemed waived and abandoned. None of the claims dismissed by this Memorandum and Order, as listed in the preceding paragraph, shall be included in any Third Amended Complaint. If plaintiff does not timely file a Third Amended Complaint, t he Second Amended Complaint will remain in effect and the only claim that will remain pending in this action is plaintiffs Family and Medical Leave Act claim. An appropriate partial judgment will accompany this memorandum and order.( Response to Court due by 4/17/2013.) Signed by District Judge Charles A. Shaw on 3/27/13. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JUNE MACON,

)
)
Plaintiff,
)
)
v.
)
)
CEDARCROFT HEALTH SERVICES, INC., )
)
Defendant.
)

No. 4:12-CV-1481 CAS

MEMORANDUM AND ORDER
This matter is before the Court on a Motion for Judgment on the Pleadings under Rule 12(c)
of the Federal Rules of Civil Procedure, filed by defendant Cedarcroft Health Services, Inc., d/b/a
Big Bend Woods Healthcare (“defendant”). Pro se plaintiff June Macon (“plaintiff”) opposes the
motion and it is fully briefed.1 For the following reasons, the motion will be granted in all respects.
Background
Plaintiff June Macon was employed as a Registered Charge Nurse at defendant’s Big Bend
Woods Healthcare Center. On July 20, 2012, plaintiff filed a Petition for Damages in the Circuit
Court of St. Louis County, Missouri, alleging that defendant violated the Missouri Human Rights
Act, Mo. Rev. Stat. §§ 213.010, et seq. (2000) (“MHRA”); Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e, et seq. (“Title VII”), and Title I of the Americans with Disabilities Act, 42

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On February 7, 2013, plaintiff filed a response in opposition (titled “Memorandum for
Clerk”) to the defendant’s motion for judgment on the pleadings (Doc. 34). On February 25, 2013,
plaintiff filed another document titled “Memorandum for Clerk” (Doc. 42) in opposition to
defendant’s motion to compel. In Document 42, plaintiff offered additional reasons why the motion
for judgment on the pleadings should not be granted. Although only one response to a motion is
allowed, see E.D. Mo. Local Rule 4.01(B), the Court in this instance has also considered Document
42 as plaintiff’s opposition to the motion for judgment on the pleadings. In the future, plaintiff must
comply with the Local Rule and limit herself to one response to any motion.

U.S.C. § 12112 (“ADA”). Plaintiff did not attach either the Equal Employment Opportunity
Commission (“EEOC”) or the Missouri Commission on Human Rights (“MCHR”) Notice of Right
to Sue to her Petition and did not make any allegation in her Petition that she received either Notice.
Defendant removed the case to this Court based on federal question jurisdiction, 28 U.S.C. § 1331,
and moved to dismiss the Petition under Rule 12(b)(6), Fed. R. Civ. P.
In response to the motion to dismiss, plaintiff moved for leave to amend her Complaint. The
Court granted plaintiff’s motion and accepted her amended complaint, which was titled “Amended
Petition for Damages.” The amended complaint omitted any reference to the MHRA, but asserted
claims under Title VII and the ADA and added claims under Sections 102 and 103 of the Civil
Rights Act of 1991, the Family and Medical Leave Act, 29 U.S.C. §§ 2601, et seq. (“FMLA”), the
Genetic Information Nondisclosure Act of 2008, 42 U.S.C. § 2000ff (“GINA”), and the Equal Pay
Act of 1963, 29 U.S.C. § 206(d) (“EPA”).
The amended complaint did not include any allegations that plaintiff received either the
EEOC or MCHR Notice, and neither Notice was attached to the amended complaint. In an Order
denying defendant’s motion to dismiss as moot based on the filing of the amended complaint, the
Court stated, “The amended complaint supersedes the original complaint and renders it without legal
effect.” Order of Oct. 18, 2012 at 1 (Doc. 12).
On October 30, 2012, defendant answered the amended complaint and asserted various
affirmative defenses including failure to state a claim upon which relief could be granted, failure to
comply with statutory and regulatory requirements to bring the claims, failure to exhaust
administrative remedies, and failure to file suit within the statute of limitations. The Court on its
own motion then ordered plaintiff to amend her complaint again, to properly name the defendant.
Order of Dec. 13, 2012 at 1 (Doc. 21). The Court explicitly cautioned plaintiff that “the new
amended complaint will completely replace the existing Amended Complaint, and therefore she

must completely restate all of her claims and allegations in the new amended complaint.” Id. at 1.
On January 15, 2013, plaintiff timely moved for leave to file a second amended complaint. On
January 18, 2013, the Court granted plaintiff’s motion and plaintiff’s Second Amended Complaint
was filed. The Second Amended Complaint asserted claims under Title VII, the ADA, Sections 102
and 103 of the Civil Rights Act of 1991, the FMLA, GINA, and the EPA, but not the MHRA. The
Second Amended Complaint does not contain any allegations concerning plaintiff’s receipt of
Notices of Right to Sue from the EEOC or the MCHR, and does not attach either Notice as an
exhibit.
Pursuant to the Case Management Order of December 12, 2012, all motions to amend the
pleadings were required to be filed by January 15, 2013. Defendant now moves for judgment on the
pleadings on plaintiff’s claims in the Second Amended Complaint under Title VII, Sections 102 and
103 of the Civil Rights Act of 1991, the ADA, GINA, and the EPA.
Legal Standard
Rule 12(c) of the Federal Rules of Civil Procedure provides that after the pleadings are
closed, a party may move for judgment on the pleadings. A motion under Rule 12(c) is determined
by the same standards that are applied to a motion under Rule 12(b)(6). Ginsburg v. InBev NV/SA,
623 F.3d 1229, 1233 n.3 (8th Cir. 2010). To survive a motion to dismiss pursuant to Rule 12(b)(6)
for failure to state a claim upon which relief can be granted, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A plaintiff need not provide specific facts in support of her allegations, Erickson v. Pardus,
551 U.S. 89, 93 (2007) (per curiam), but “must include sufficient factual information to provide the
‘grounds’ on which the claim rests, and to raise a right to relief above a speculative level.” Schaaf
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v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008) (citing Twombly, 550 U.S. at 555
& n.3). This obligation requires a plaintiff to plead “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.
A complaint “must contain either direct or inferential allegations respecting all the material elements
necessary to sustain recovery under some viable legal theory.” Id. at 562 (quoted case omitted).
This standard “simply calls for enough fact to raise a reasonable expectation that discovery will
reveal evidence of [the claim or element].” Id. at 556.
On a motion to dismiss, the Court accepts as true all of the factual allegations contained in
the complaint, even if it appears that “actual proof of those facts is improbable,” id. at 556, and
reviews the complaint to determine whether its allegations show that the pleader is entitled to relief.
Twombly, 550 U.S. at 555-56; Fed. R. Civ. P. 8(a)(2). The principle that a court must accept as true
all of the allegations contained in a complaint is inapplicable to legal conclusions, however. Iqbal,
129 S. Ct. at 1949-50 (stating “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice”). Although legal conclusions can provide the
framework for a complaint, they must be supported by factual allegations. Id. at 1950. The
plausibility of the plaintiff’s claim is reviewed “as a whole, not the plausibility of each individual
allegation.” Zoltek Corp. v. Structural Polymer Grp., 592 F.3d 893, 896 n.4 (8th Cir. 2010).
In addition, the Court must liberally construe a pro se complaint, which is “held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94 (quoted case
omitted). Nevertheless, pro se pleadings must not be conclusory and must state sufficient facts
which, when taken as true, support the claims advanced. Stone v. Harry, 364 F.3d 912, 914 (8th Cir.
2004). The Court “will not supply additional facts, nor will [it] construct a legal theory for plaintiff
that assumes facts that have not been pleaded.” Id. (quoted case omitted).
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In considering a Rule 12(c) motion, the Court may consider the pleadings themselves,
materials embraced by the pleadings, exhibits attached to the pleadings, and matters of public record.
Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999); see also Faibisch v.
University of Minnesota, 304 F.3d 797, 802-03 (8th Cir. 2002) (court may take judicial notice of
EEOC charge of discrimination as a public record).
Discussion
A. Title VII, ADA and Sections 102 and 103 of the Civil Rights Act of 1991 Claims
Defendant moves for judgment on plaintiff’s Title VII and ADA claims on the grounds that
these claims are time barred because plaintiff did not file suit within ninety days of receiving notice
of the EEOC’s determination. See 42 U.S.C. § 2000e-5(f)(1) (Title VII); 42 U.S.C.§ 12117(a)
(ADA). Defendant submits copies of plaintiff’s EEOC Notice of Right to Sue, dated February 15,
2012, and MCHR Notice of Right to Sue, dated April 23, 2012, as well as plaintiff’s EEOC Charge
of Discrimination. The Court takes judicial notice of these documents as public records, without
converting the instant motion to a motion for summary judgment. See Faibisch, 304 F.3d at 802-03.
Defendant states that plaintiff filed her original Petition in state court 155 days after the date of the
EEOC Notice, and contends as a result that her Title VII and ADA claims are time barred.
Plaintiff responds that her Petition was timely filed in state court because it was filed within
ninety days of her receipt of the Notice of Right to Sue from the Missouri Commission on Human
Rights. Plaintiff also responds that her Complaint states it is brought under “any other applicable
law” and that “[o]ne of the ‘applicable laws’ that cover [her] claims is 42 USC 1981.” Pl.’s
Response at 1 (Doc. 34).
Defendant replies that although plaintiff’s state court Petition was timely filed under the
MHRA as she filed it within ninety days of receiving the MCHR Notice of Right to Sue, plaintiff
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abandoned her MHRA claims when she filed the amended complaints, despite the Court’s warning
that she must restate and include all of her claims in the amended pleadings. Defendant asserts that
the timely-filed state Petition does not provide refuge for plaintiff’s untimely filed Title VII and
ADA claims, because when an EEOC charge of discrimination is dismissed, the aggrieved person
must file her lawsuit within ninety days after receiving notice of the EEOC’s determination, citing
42 U.S.C. § 2000e-5(f)(1) (establishing ninety-day period for filing suit under Title VII ), 42 U.S.C.
§ 12117(a) (adopting Title VII’s procedures and remedies for use in the ADA), and Hill v. John
Chezik Imports, 869 F.2d 1122, 1124 (8th Cir. 1989). Defendant also notes that the EEOC’s Notice
expressly states that:
Your lawsuit under Title VII, the ADA or GINA must be filed in federal or state
court WITHIN 90 DAYS of your receipt of this notice; or your right to sue based
on this charge will be lost. (The time limit for filing suit based on a claim under state
law may be different).
(emphasis in original). Defendant asserts that as a result, the Court must dismiss plaintiff’s Title VII
and ADA claims as untimely.
In addition, defendant urges the Court to reject plaintiff’s request to construe the language
“any other applicable law” in her Complaint to include a claim under 42 U.S.C. § 1981, on the
grounds that (1) the time for amending the pleadings has passed, and (2) the phrase “any other
applicable law” cannot even remotely be construed to have put defendant on notice that plaintiff was
asserting a § 1981 claim, as the phrase “any other applicable law” does not comport with the
pleading principles of Twombly/Iqbal, and therefore the argument that the Complaint states a claim
on its face under § 1981 is without merit.
As an threshold matter, defendant is correct that as a general rule, any claim included in the
original complaint is deemed waived or abandoned if it is not also included in a first amended

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complaint. See, e.g., Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012); Austin v. Ford
Models, Inc., 149 F.3d 148, 155 (2d Cir. 1998), abrogated on other grounds by Swierkiewicz v.
Sorema N.A., 534 U.S. 506 (2002). This Court has recognized, however, that a pro se party may
not fully understand the superseding effect of the second pleading. See Witte v. Culton, 2012 WL
5258789, at *3 (E.D. Mo. Oct. 24, 2012) (allowing pro se plaintiff to amend complaint in order to
re-allege claims deemed abandoned by filing of amended complaint). The Court notes that plaintiff
filed her first amended complaint, which omitted the MHRA claims, prior to receiving any caution
from the Court that the amended complaint would completely replace and supersede her original
Petition. The Court will therefore grant plaintiff leave to file a Third Amended Complaint to reallege her MHRA claims.2
The Court agrees with defendant that plaintiff’s Title VII and ADA claims are time barred.
It is undisputed that plaintiff’s state court Petition was filed well more than ninety days after she
received the EEOC Notice of Right to Sue. The plain language of Title VII and the ADA requires

2

Plaintiff argues in her second Memorandum to Clerk (Doc. 42) that she “was instructed by
the Court to properly restate all of [her] claims and allegations in the amended complaint” and that
defendant’s “motion . . . leads the court to believe that I changed something in my wording or that
I somehow have lost my rights by obeying the Court. My failure to comply with the Court could
have caused a dismissal of my case.” Id. Plaintiff’s argument appears to misunderstand the basis
of defendant’s motion, and the record in this case.
Plaintiff’s state-court Petition begins with the statement, “Race and disability discrimination
in violation of the Missouri Human Rights Act, R.S. Mo. Section 213.010 et seq.” Petition at 1
(Doc. 6). Plaintiff requested and was granted leave to amend her Petition after defendant filed its
motion to dismiss. The amended complaint (Doc. 13) contains no reference to the Missouri Human
Rights Act. As stated above, under the general rules of pleading, this omission would constitute
abandonment or waiver of plaintiff’s MHRA claim. Plaintiff’s Second Amended Complaint, filed
at the Court’s instruction to properly name the defendant, also contains no reference to the MHRA.
The Court’s order directing plaintiff to amend her complaint to properly name the defendant had no
effect on plaintiff’s assertion of MHRA claims, as plaintiff had already omitted any reference to the
MHRA from her amended complaint.
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that suit be filed within ninety days of a plaintiff’s EEOC Notice of Right to Sue. See 42 U.S.C.
§ 2000e-5(f)(1) (Title VII); 42 U.S.C. § 12117(a) (ADA). This limitation period is not a
jurisdictional prerequisite to federal suit and is subject to equitable tolling in appropriate
circumstances. Hill, 869 F.2d at 1124. Courts have generally reserved the remedy of equitable
tolling for circumstances that were beyond the control of the plaintiff. Id. 1124. The Supreme Court
has held that equitable tolling is justified where, among other things, the notice from the EEOC is
inadequate, where a court has led the plaintiff to believe all statutory requirements for bringing a suit
have been satisfied, or where the defendant’s conduct lulls the plaintiff into inaction. Baldwin
County Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam) (citations omitted).
In this case, plaintiff has not presented the Court with any recognized justification to
equitably toll the limitations period. There is no provision in Title VII or the ADA for tolling the
ninety-day period to file suit based on a plaintiff’s subsequent receipt of a later-dated state human
rights commission notice of right to sue. In a case that was procedurally similar to the present one,
this Court held that a complaint filed more than ninety days after the plaintiff received an EEOC
Notice of Right to Sue was untimely as to federal Title VII and Age Discrimination in Employment
Act claims, even though the complaint was filed within ninety days of the plaintiff’s receipt of an
MCHR Notice of Right to Sue. The Court explained,
There is no legal basis for establishing federal jurisdiction on a state statute of
limitations where an applicable federal statute of limitations exists. Neither Title VII
nor the ADA provide for federal jurisdiction based upon a state “Right-to-Sue” letter.
§ 2000e–5(f)(1) explicitly states that the 90 days limitation period runs from receipt
of the EEOC “Right-to-Sue” letter only, not from a letter received by the EEOC or
any applicable state agency.
Muth v. Cobro Corp., 895 F. Supp. 254, 256 (E.D. Mo. 1995). The same result is proper here.

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A recent Eighth Circuit Court of Appeals opinion also supports the conclusion that plaintiff’s
Title VII and ADA claims are time barred. In Hohn v. BNSF Railway Co., 707 F.3d 995, 999 (8th
Cir. 2013), the plaintiff filed a charge of discrimination and retaliation with the Nebraska Equal
Opportunity Commission and received notice of the Commission’s “no reasonable cause” decision
on August 4, 2005. The EEOC issued a right-to-sue letter on September 21, 2005. Id. The plaintiff
filed suit in federal court on December 20, 2005, within ninety days of receiving the EEOC notice,
but more than ninety days after he received the state Commission’s notice. Id. The Eighth Circuit
held that the plaintiff’s state-law claim should have been dismissed as untimely, because the state
Commission’s “no reasonable cause” decision was its last action on his complaint, and he did not
file suit within ninety days from the decision, as required by state law. Id. at 1000-01. The Eighth
Circuit rejected the plaintiff’s argument that the state law claim was timely and the statute of
limitations should run from the date he received the EEOC’s right to sue letter because the EEOC
and the state Commission work together under a work-sharing agreement. The Eighth Circuit stated
that such an interpretation would contradict the plain language of the Nebraska statute requiring that
suit be filed within ninety days of the last action on the state charge. Id. at 1001.
Although the plaintiff in Hohn was attempting to use a timely federal filing to save an
untimely state filing, and plaintiff Macon is attempting to do the opposite in this case, the same
result is proper because the plain language of the federal statutes similarly requires that suit be filed
within ninety days of receipt of the EEOC Notice of Right to Sue. For these reasons, plaintiff’s Title
VII and ADA claims are time barred and will be dismissed.
Because plaintiff’s Title VII and ADA claims will be dismissed, her allegations regarding
sections 102 and 103 of the Civil Rights Act of 1991 must also be dismissed. Sections 102 and 103
of the Civil Rights Act of 1991 do not provide discrimination plaintiffs with a separate cause of
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action, but rather provide that an individual may seek compensatory and punitive damages and
demand a jury trial for violations of Title VII and the ADA. See 42 U.S.C. § 1981a.
In addition, the Court agrees with defendant that plaintiff’s use of the catch-all phrase “any
other applicable law” in her Complaint is wholly insufficient to state a claim under 42 U.S.C.
§ 1981, or to put defendant or the Court on notice that she was asserting a § 1981 claim, even when
given the liberal construction afforded to a pro se complaint. A complaint must provide notice to
the defendant and the Court as to the claims the plaintiff is asserting, and the use of general language
such as “any other applicable law” fails to provide such notice. If the Court were to construe the
Complaint’s “any other applicable law” language as stating a § 1981 claim, this would be the
substantial equivalent of allowing amendment of plaintiff’s complaint by her opposition to the
motion to dismiss, which is prohibited. Morgan Distrib. Co., Inc. v. Unidynamic Corp., 868 F.2d
992, 995 (8th Cir.1989) (“[I]t is axiomatic that a complaint may not be amended by the briefs in
opposition to a motion to dismiss. To hold otherwise would mean that a party could unilaterally
amend a complaint at will, even without filing an amendment, . . . simply by raising a point in a
brief.”) (internal citations omitted).
The Court will, however, grant plaintiff leave to file a Third Amended Complaint to assert
a race discrimination claim pursuant to 42 U.S.C. § 1981, given that dispositive motions are not due
until August 15, 2013 under the Case Management Order, and defendant will not be unfairly
prejudiced as it has been on notice that plaintiff was asserting a race discrimination claim.
B. GINA Claim
Defendant moves for judgment on plaintiff’s claim under the Genetic Information
Nondisclosure Act on the grounds that (1) plaintiff failed to exhaust her administrative remedies

10

with respect to her GINA claim, and (2) plaintiff’s Complaint fails to state a claim under GINA.
Plaintiff did not respond to these arguments. The Court agrees with defendant on both points.
To the extent plaintiff attempts to bring a claim under GINA, she must first have exhausted
her administrative remedies. See 29 C.F.R. § 1635.10 (new regulation adopted for GINA claims,
incorporating, by reference, administrative remedy requirement from other discrimination statutes);
Regulations Under the Genetic Information Nondiscrimination Act of 2008, 75 Fed.Reg. 68912–01
(Nov. 9, 2010) (codified at 29 C.F.R. § 1635) (full text of final rules implementing Title II of
GINA). Exhaustion of administrative remedies requires that the complainant file a timely charge
with the EEOC, thereby allowing the agency time to investigate the charge. See 42 U.S.C.
§ 2000ff–6; Parisi v. Boeing Co., 400 F.3d 583, 585 (8th Cir. 2012). Only after the charge is filed,
and either the EEOC’s attempts at conciliation have failed or the EEOC determines that there is no
reasonable cause to believe discrimination occurred, may the plaintiff file suit in federal court.
Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 851 (8th Cir. 2012), cert. dismissed, __ S. Ct.
__, 2013 WL 140297 (Mar. 1, 2013).
Plaintiff did not check the box marked “Genetic Information” on the EEOC charge form.
Plaintiff’s EEOC charge of discrimination contained only allegations of Title VII race discrimination
and ADA disability discrimination claims. The charge does not directly allege, or even allude to,
any possibility of a claim under GINA. Plaintiff failed to follow the proper administrative
procedures and therefore the Court must dismiss this claim. See Richter, 686 F.3d at 854.
In addition, the Court concludes that plaintiff’s Complaint fails to state a claim under GINA.
GINA provides that an employer may not “discriminate against any employee with respect to the
compensation, terms, conditions, or privileges of employment of the employee, because of genetic
information with respect to the employee.” 42 U.S.C. § 2000ff–1(a)(1). GINA defines “genetic
11

information” as (1) an individual’s genetic tests; (2) the genetic tests of the individual’s family
members; (3) the manifestation of a disease or disorder of the individual’s family members; (4) an
individual’s request for, or receipt of, genetic services, or the participation in clinical research that
includes genetic services by the individual or the individual’s family member; and (5) the genetic
information of a fetus. See 42 U.S.C. § 2000ff(4)(A); see also 29 C.F.R. § 1635.3(c).
In light of this definition of genetic information, the Court finds that plaintiff has not pleaded
any facts indicating that defendant requested or obtained plaintiff's “genetic information” and
discriminated against her on the basis of such “genetic information.” Instead, plaintiff alleges that
defendant discriminated against her on the basis of race, did not accommodate her disability, and
allowed co-workers to see her W-2, which included her Social Security Number, address and pay
information. This information is not “genetic information” under GINA. As a result, plaintiff has
failed to state plausibly a claim for genetic information discrimination under GINA, and the claim
must be dismissed.
C. Equal Pay Act Claim
Defendant moves for judgment on plaintiff’s Equal Pay Act, on the grounds that plaintiff
fails to allege any facts to show that defendant discriminated against her on the basis of sex by
paying different wages to employees of the opposition sex for performing equal work. Plaintiff does
not respond to this argument.
“To establish a prima facie case of wage discrimination a woman must provide ‘sufficient
evidence’ that her ‘employer paid different salaries to men and women for equal work performed
under similar conditions.’” Price v. Northern States Power Co., 664 F.3d 1186, 1192 (8th Cir. 2011)
(quoting Tenkku v. Normandy Bank, 348 F.3d 737, 741 n.2 (8th Cir. 2003)). “Equal pay for equal
work is what the EPA requires, and those elements are the focus of the prima facie case.” Id. at
12

1192-93 (citing Drum v. Lesson Elec. Corp., 565 F.3d 1071, 1072 (8th Cir. 2009)). Plaintiff has not
made any allegations that she was paid different wages because of her sex or was discriminated
against in any manner because of her sex. Rather, she alleges pay discrimination and discrimination
based on race, specifically that she did not timely receive performance evaluations and a resulting
pay increase, and that she was denied a promotion. Therefore plaintiff has not stated a claim under
the EPA and this claim must be dismissed.
Conclusion
For the foregoing reasons, the Court will grant defendant’s motion for judgment on the
pleadings on plaintiff’s claims under Title VII, the ADA, Sections 102 and 103 of the Civil Rights
Act of 1991, GINA, and the Equal Pay Act. Plaintiff will be granted leave of Court to file a Third
Amended Complaint that may include claims under the MHRA and 42 U.S.C. § 1981 if she chooses,
but any claims not alleged or re-alleged in the Third Amended Complaint will be deemed waived
and abandoned. Plaintiff may not include claims in the Third Amended Complaint that were
dismissed by this Order, specifically claims under Title VII, Sections 102 and 103 of the Civil
Rights Act of 1991, the ADA, GINA and the Equal Pay Act.
Accordingly,
IT IS HEREBY ORDERED that defendant Cedarcroft Health Services, Inc.’s Motion for
Judgment on the Pleadings is GRANTED, and plaintiff’s claims under Title VII, Sections 102 and
103 of the Civil Rights Act of 1991, the ADA, GINA and the Equal Pay Act are DISMISSED.
[Doc. 29]
IT IS FURTHER ORDERED that plaintiff is granted leave to file a Third Amended
Complaint, within twenty-one (21) days of the date of this Order. Any claims not alleged or realleged in the Third Amended Complaint will be deemed waived and abandoned. None of the
13

claims dismissed by this Memorandum and Order, as listed in the preceding paragraph, shall be
included in any Third Amended Complaint. If plaintiff does not timely file a Third Amended
Complaint, the Second Amended Complaint will remain in effect and the only claim that will remain
pending in this action is plaintiff’s Family and Medical Leave Act claim.
An appropriate partial judgment will accompany this memorandum and order.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 27th day of March, 2013.

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