Parmeley v. Regions Bank

Filing 14

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that defendants motion to dismiss [Doc. # 9 ] is denied. IT IS FURTHER ORDERED that plaintiff shall have until March 1, 2013, to file a right-to-sue notice issued with respect to the charge of discrimination plaintiff filed with the Equal Employment Opportunity Commission on September 1, 2008. ( Response to Court due by 3/1/2013.). Signed by District Judge Carol E. Jackson on 2/1/13. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BETH PARMELEY,
Plaintiff,
vs.
REGIONS BANK doing business as
Regions Mortgage,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 4:12-CV-1910 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on defendant’s motion to dismiss, pursuant to
Rule 12(b), Fed.R.Civ.P., for lack of jurisdiction and for failure to state a claim for relief.
Plaintiff, who proceeds pro se, has not filed a response in opposition to the motion and
the time allowed for doing so has elapsed.
Plaintiff brings this action against her former employer under the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621 et seq. In
her complaint, plaintiff states that she filed a charge of discrimination with the Equal
Employment Opportunity Commission (EEOC) on September 1, 2008. She also states,
however, that she did not receive a right-to-sue letter.

Defendant asserts that

plaintiff failed to exhaust her administrative remedies prior to filing suit and moves to
dismiss the complaint for lack of jurisdiction and for failure to state a claim. See. Fed.
R. Civ. P. 12(b)(1) and 12(b)(6).
Defendant argues that receipt of a right-to-sue letter is jurisdictional and that
plaintiff’s failure to obtain one mandates dismissal of claim. The receipt of a right-tosue letter is not a jurisdictional prerequisite to maintaining an employment action, but
rather is a condition precedent. Hill v. John Chezik Imports, 869 F.2d 1122, 1123-24

(8th Cir. 1989). The failure to complete this exhaustion requirement before filing suit
can be corrected after the action has commenced provided the plaintiff promptly takes
measures to cure the defect. Jones v. American State Bank, 857 F.2d 494, 499-500
(8th Cir. 1988); see also Christopher v. Clean Country, Inc., 8:07CV273, 2007 WL
3203114, at *2 (D. Neb. Oct. 29, 2007) (giving plaintiff the opportunity to file
amended complaint curing deficiencies).
Dismissal of the action for failure to exhaust administrative remedies is not
appropriate at this time. Instead, the Court will give the plaintiff the opportunity to
obtain and file a right-to-sue notice from the EEOC. Defendant will not be required to
file an answer to the complaint until after the notice is filed.
Accordingly,
IT IS HEREBY ORDERED that defendant’s motion to dismiss [Doc. #9] is
denied.
IT IS FURTHER ORDERED that plaintiff shall have until March 1, 2013, to file
a right-to-sue notice issued with respect to the charge of discrimination plaintiff filed
with the Equal Employment Opportunity Commission on September 1, 2008.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 1st day of February, 2013.

-2-