Sherrard et al v. The Boeing Company

Filing 26

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiffs motion for leave to amend the complaint [Doc. # 16 ] is granted. IT IS FURTHER ORDERED that defendants motion to dismiss plaintiffs individual claims [Doc. # 11 ] is denied. Signed by District Judge Carol E. Jackson on 10/28/13. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
HULITT SHERRARD, et al.,

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Plaintiffs,
vs.
THE BOEING CO.,
Defendant.

Case No. 4:13-CV-1015 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on defendant’s motion to dismiss plaintiffs’
individual claims, and plaintiffs’ motion to amend their complaint. Both motions are
fully briefed and ready for disposition.
I.

Background

Plaintiffs Hulitt Sherrard, Tony Bailey, and Demonicel Jackson are AfricanAmericans over the age of 40. They applied for a variety of employment positions with
defendant, the Boeing Company, but were not hired. They allege that defendant filled
these positions with less qualified white applicants under the age of 40, and that they
were passed over due to their race and age. Plaintiffs bring claims of race/national
origin discrimination under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq.
(Count I); race/national origin discrimination under 42 U.S.C. § 1981 (Count II);
race/national origin discrimination under the Missouri Human Rights Act (MHRA), Mo.
Rev. Stat. § 213.010, et seq. (Count III); age discrimination in violation of the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq. (Count IV); and
race/national origin discrimination under the MHRA (Count V).1 They seek certification

1

Plaintiff’s proposed amended complaint corrects Count V to allege age discrimination
under the MHRA. [Doc. #16-1].

of two classes of individuals denied employment at defendant’s facilities in St. Louis,
Missouri due to race or age.2
II.

Legal Standard

The purpose of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure is to test the legal sufficiency of the complaint. The factual allegations
of a complaint are assumed true and are construed in favor of the plaintiff, “even if it
strikes a savvy judge that actual proof of those facts is improbable.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 556 (2007) (citing Swierkiewicz v. Sorema N.A., 534 U.S.
506, 508 n.1 (2002)); Neitzke v. Williams, 490 U.S. 319, 327 (1989) (“Rule 12(b)(6)
does not countenance . . . dismissals based on a judge’s disbelief of a complaint’s
factual allegations”); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (a well-pleaded
complaint may proceed even if it appears “that a recovery is very remote and
unlikely”). The issue is not whether the plaintiff will ultimately prevail, but whether the
plaintiff is entitled to present evidence in support of his claim. Id. A viable complaint
must include “enough facts to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp., 550 U.S. at 570. See also id. at 563 (“no set of facts” language in
Conley v. Gibson, 355 U.S. 41, 45-46 (1957), “has earned its retirement.”) “Factual
allegations must be enough to raise a right to relief above the speculative level.” Id.
at 555.
III.

Discussion

Defendant moves to dismiss plaintiffs’ claims on two bases. First, defendant
argues that plaintiffs failed to exhaust their administrative remedies with respect to
their claims of national origin discrimination. Plaintiffs now seek to withdraw these
2

Defendant’s motion to strike plaintiffs’ class claims will be addressed in a separate
Memorandum and Order.

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claims, but defendant maintains that they must be dismissed with prejudice. Second,
defendant argues that the complaint does not contain sufficient factual allegations to
survive a motion to dismiss under Rule 12(b)(6).

Plaintiffs respond that any

deficiencies of the original complaint are cured by the proposed amended complaint.
The Court will address these arguments in turn.
A.

Failure to Exhaust Claims of National Origin Discrimination

To bring suit under Title VII and the MHRA, a plaintiff must first file an
administrative charge of discrimination. See 42 U.S.C. §2000e-5(c); Mo. Rev. Stat.
§213.075. Plaintiffs filed administrative charges of race and age discrimination, but did
not allege discrimination on the basis of national origin. See Def. Exs. A, B, and C
[Docs. #10-1; 10-2; 10-3]. Defendant argues that the time period during which
plaintiffs might have brought such administrative charges has expired, and therefore
the Court should dismiss the unexhausted claims with prejudice. However, because
the Court will allow plaintiffs to file an amended complaint that omits claims of national
origin discrimination, the Court need not determine whether the omitted claims should
be dismissed with or without prejudice.
B.

The Proposed Amended Complaint

Defendant opposes plaintiffs’ motion to amend the complaint, arguing that the
proposed amendments are futile and fail to cure the deficiencies of the original
complaint. Defendant also argues that plaintiffs should not be allowed to add a claim
of age discrimination under the MHRA, because that claim was not included in the
original complaint and the 90-day right-to-sue period has since expired.
In Count IV of

the original complaint, plaintiffs asserted

claims of age

discrimination based on the ADEA. The allegations supporting the ADEA claim were

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incorporated by reference in Count V of the complaint which bore the heading “Missouri
Human Rights Act.”

However in the body of Count V, plaintiffs duplicated the

allegations of their race/national origin claims contained in Count III. This was clearly
a typographical error, and it is apparent that plaintiffs intended to invoke the MHRA as
an additional basis for their age discrimination claims.
The Court will allow plaintiffs leave to amend their complaint. As discussed
below, the proposed amendments are not futile. Further, the expiration of the rightto-sue period does not bar plaintiffs from adding a claim of age discrimination under
the MHRA, because that claim arises out of the conduct alleged in support of the ADEA
claim and therefore “relates back” to the timely-filed original complaint. Fed.R.Civ.P.
15(c)(1)(B). Finally, the defendant will not be prejudiced by the amendment.
C.

Pleading Deficiencies

The Court will consider the defendant’s motion to dismiss as directed to the
amended complaint.
Title VII of the Civil Rights Act, Section § 1981, and the MHRA forbid employers
from refusing to hire a prospective employee on the basis of race. The ADEA prohibits
employers from discriminating against applicants over the age of 40 on the basis of
age. To establish a prima facie case of discrimination under Title VII, Section 1981,
the MHRA, and the ADEA, plaintiffs must show that they (1) are members of a
protected class; (2) were qualified for the positions for which they applied; (3) were
denied the positions; and (4) that the defendant filled the positions with individuals
outside of the protected class. See, e.g., Arraleh v. County of Ramsey, 461 F.3d 967,
975 (8th Cir. 2006) (explaining the McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), burden-shifting analysis as applied to Title VII “failure to hire” cases); Flynn

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v. AT&T Yellow Pages, 780 F.Supp.2d 886, 890 (E.D. Mo. 2011) (applying the
McDonnell Douglas framework to Title VII, 42 U.S.C. § 1981, MHRA, and ADEA claims).
To survive defendant’s motion to dismiss, plaintiffs must plead sufficient “factual
content” to “allow the court to draw the reasonable inference” that defendant engaged
in discrimination on the bases of race and age. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “A complaint in an employment discrimination case need not contain specific
facts establishing a prima facie case under the evidentiary framework for such cases
to survive a motion to dismiss... [b]ut complaints alleging discrimination still must
meet the ‘plausibility standard’ of Twombly and Iqbal.” Henderson v. JP Morgan Case
Bank, N.A., 436 Fed. Appx. 935, 937 (11th Cir. 2011) (citing Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 510-11 (2002)). When evaluating the “plausibility” of a claim,
factual allegations contained in the complaint are accepted as true, while bare legal
conclusions are not entitled to any such presumption. Iqbal, 556 U.S. at 678.
In the original complaint, plaintiffs recited the elements of a prima facie case of
employment discrimination, but neglected to allege facts to raise their legal conclusions
to the level of plausibility required by Iqbal. In the amended complaint, however,
plaintiffs support their legal conclusions with factual allegations. In the amended
complaint, plaintiffs aver that they are members of protected classes, that they applied
for certain positions (listed in the complaint), that they were denied these positions
despite their qualifications and prior professional experience (the details of which are
elaborated upon in the complaint), and that less or equally qualified white and younger
applicants were hired for those positions. Defendant suggests that plaintiffs must
identify the young, white new hires by name. Plaintiff Sherrard named several of these
individuals in his intake questionnaire with the EEOC [Doc. #19-1], and plaintiffs offer

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to draft a second amended complaint incorporating the names of these individuals.
However, the level of specificity defendant demands is unnecessary, and the factual
allegations contained in the amended complaint are sufficient to survive defendant’s
motion to dismiss.

Mallory v. Express Emploment Professionals, No. 12-1645

(DWF/JJK), 2012 WL 6194404, at *6 (D. Minn. Nov. 19, 2012), report and
recommendation adopted by 2012 WL 6193340 (D. Minn. Dec. 12, 2012) (“[A]
complaint that alleges that the plaintiff belongs to a protected class, was qualified for
a particular position, and was denied the position, and that someone from outside the
protected class was hired, would be sufficient to survive a motion to dismiss.”).
***
For the reasons discussed above,
IT IS HEREBY ORDERED that plaintiffs’ motion for leave to amend the
complaint [Doc. #16] is granted.
IT IS FURTHER ORDERED that defendant’s motion to dismiss plaintiffs’
individual claims [Doc. #11] is denied.
___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 28th day of October, 2013.

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