Gray v. The Outsource Group

Filing 30

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motion of The Outsource Group for partial dismissal or, in the alternative, to strike certain allegations of the complaint is GRANTED in part and DENIED in part as set forth above. [Doc. 12 ] Signed by Magistrate Judge Thomas C. Mummert, III on April 7, 2014. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LAWRENCE GRAY,

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Plaintiff,
vs.
THE OUTSOURCE GROUP,
Defendants.

Case No. 4:13cv2537 TCM

MEMORANDUM AND ORDER

Lawrence Gray (Plaintiff), proceeding pro se, alleges that The Outsource Group
(Defendant) has discriminated against him in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), 42 U.S.C. §§ 2000e through 2000e-17.1 Defendant moves to dismiss his
allegations of discriminatory conduct occurring before March 10, 2012, on the grounds that
such allegations were not timely presented in an administrative charge of discrimination.
[Doc. 12] Plaintiff opposes the motion.
Background
On the Employment Discrimination Complaint form, Plaintiff marked that he was
bringing his action pursuant to Title VII and was alleging he was terminated and not rehired
because of his race, color, and gender and in retaliation. (Compl. at 1, 4, 5, ECF No. 1.) In
an attached "Brief Statement: Disparate Impact (Treatment)," Plaintiff alleges he was
terminated on December 7, 2007, for correctly answering a question on an online application

1

The case is before the undersigned United States Magistrate Judge by written consent of
the parties. See 28 U.S.C. § 636(c).

form that had been changed on the paper application to read such that his answer was
incorrect. (Id. at 6.) Specifically, Plaintiff alleges that the question on the online form was
whether he had ever been convicted of a crime. (Id.) He had not been, but was then serving
a term of probation under a suspended imposition of sentence. (Id.) The paper application
included probation in the question. (Id.) Plaintiff was told by Defendant's human resources
person that he could apply to be rehired after his probation ended. (Id.) Plaintiff has
repeatedly done so between 2008 and November 12, 2012, but has not been rehired. (Id.)
Plaintiff also alleges that Defendant has retaliated against him for filing a charge of
discrimination.2 (Id.)
On January 4, 2013, Plaintiff filed his charge of discrimination with the Equal
Employment Opportunity Commission (EEOC). (Id.) Citing 42 U.S.C. § 2000e-5(e)(1),
Defendant argues that any allegations of discriminatory conduct occurring more than 300
days before January 4, 2013, are untimely. Plaintiff counters that Defendant has waived its
timeliness argument by not raising it before the EEOC or before the Missouri Commission
on Human Rights (MCHR) and that, regardless, all his allegations are timely under
continuing violation and discovery theories.
Discussion
"Title VII requires that before a plaintiff can bring suit in court to allege unlawful
discrimination, []he must file a timely charge with the EEOC or a state or local agency with
authority to seek relief." Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 850 (8th Cir.
2

In its reply in support of the motion to dismiss, Defendant has withdrawn its request that
the retaliation charge be dismissed insofar as it relates to allegations of events occurring before
March 10, 2012.
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2012) (citing § 2000e-5(e)(1)). "In Missouri, this obligation must be discharged within 300
days of the [adverse employment action]." Brooks v. Midwest Heart Group, 655 F.3d 796,
800 (8th Cir. 2011). See also Nat'l RR Passenger Corp. v. Morgan, 536 U.S. 101, 109
(2002) (300 day limit applies to charges filed in States with "entit[ies] with authority to grant
or seek relief with respect to the alleged unlawful practice").
Plaintiff alleges that he was fired in December 2007 and then repeatedly not rehired
for discriminatory reasons. He contends that these are not discrete acts subject to the 300day limitation, but are continuing violations.
A critical question to be answered when considering the application of the 300-day
period is "[w]hat constitutes an 'unlawful employment practice'" to start the period running.
See Id. at 109-10.

In Morgan, the former employee argued that all his claims of

discriminatory conduct were timely, including those occurring more than 300 days before
he filed his EEOC charge, because the word "practice" in § 2000e-5(e)(1) "connotes an
ongoing violation that can endure or recur over a period of time." Id. at 110. Noting that
42 U.S.C. § 2000e-2 "explains in great detail the sorts of actions that qualify as '[u]nlawful
employment practices,'" including "'to fail or refuse to hire or to discharge any individual,'"
the Court rejected the argument. Id. at 111 (alteration in original). The Court held that
"[t]here is simply no indication that the term 'practice' converts related discrete acts into a
single unlawful practice for the purposes of timely filing.'" Id. "[D]iscrete acts that fall
within the statutory time period do not make timely acts that fall outside the time period."
Id. at 112. And, discrete acts occur on the day they happen. Mems v. City of St. Paul,

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Dep't of Fire and Safety Servs., 327 F.3d 771, 785 (8th Cir. 2003) (citing Morgan, 536 U.S.
at 110).
Similar to Plaintiff, the former employee in Tademe v. St. Cloud State Univ., 328
F.3d 982, 987 (8th Cir. 2003), argued that his discrimination claims were not barred by his
failure to file a charge within 300 days of the challenged acts because "[a] plaintiff may
challenge incidents which occurred outside the statute of limitations period if the various acts
of discrimination constitute a continuing pattern of discrimination." (Alteration in original.)
The Eighth Circuit noted that under the holding in Morgan, 536 U.S. at 114-15, "each
occurrence starts a new clock for purposes of filing charges related to that act, and an
employee must file charges within . . . 300 days . . . of a discrete discriminatory act." Id. at
987-88. The court then held that the challenged decisions on tenure and promotion were
discrete acts occurring outside the limitations period and were untimely, regardless whether
the effects of those decisions "were felt much later." Id. at 988. In Wedow v. City of
Kansas City, Mo., 442 F.3d 661, 670 (8th Cir. 2006), the court noted the holding of
Tademe applied to "the disparate treatment context."
Applying Morgan and Eighth Circuit precedent, Plaintiff's claims relating to his
December 2007 termination are time-barred under § 2000e-5(e)(1). His claims relating to
Defendant's failure to rehire him are also time-barred when that failure occurred before
March 10, 2012. The failure was in response to discrete applications submitted by Plaintiff.3

3

The Court notes that Plaintiff alleges he was told after two years, presumably sometime in
2009 or 2010, that he was permanently in Defendant's system and was not to call anymore.
(Compl. at 6.) He further alleges, however, that he continued to apply until November 12, 2012.
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Plaintiff further argues that all his claims are timely under the discovery rule, i.e., he
did not know discrimination had occurred until a pattern established itself. (Pl.'s Resp. at 23.) Insofar as this argument is a rephrasing of his continuing violation position, it is without
merit for the reasons set forth above. It is also without merit insofar as Plaintiff argues he
did not know earlier of the basis – discrimination – for his injuries.
"In a federal question case, and in the absence of a contrary directive from Congress,
the 'discovery rule,' according to which a plaintiff's cause of action accrues when he
discovers, or with due diligence should have discovered, the injury that is the basis of the
litigation, is used to determine when a plaintiff's federal claim accrues." Union Pacific R.
Co. v. Beckham, 138 F.3d 325, 330 (8th Cir. 1998). Plaintiff knew in December 2007 he
was terminated. He also knew his later employment applications were not being accepted.
"The limitations periods begin to run even if the employee is not aware of the discriminatory
effect or the employer's discriminatory motivation in taking the adverse employment action."
Henderson v. Ford Motor Co., 403 F.3d 1026, 1032 (8th Cir. 2005). See also Wastak v.
Lehigh Valley Health Network, 342 F.3d 281, 287 (3rd Cir. 2003) (same holding) (citing
employment discrimination cases from other circuits with similar holdings).
Although Plaintiff failed to timely file his charge of discrimination on acts occurring
before March 10, 2012, the "filing of a timely charge . . . with the EEOC is not a
jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of
limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 393 (1982).

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"The doctrine of equitable estoppel applies when the employee knows []he has a
claim, but the employer affirmatively and actively takes action that causes the employee not
to timely file [his] suit." Henderson, 403 F.3d at 1033. There is no allegation that
Defendant took any such action.
The doctrine of equitable tolling "focuses on the employee's ignorance of a claim, not
on any possible misconduct by the employer, and tolls the limitations period when the
plaintiff, 'despite all due diligence is unable to obtain vital information bearing on the
existence of his claim.'" Id. (quoting Dring v. McDonnell Douglas Corp., 58 F.3d 1323,
1329 (8th Cir. 2005)). The question then "is 'whether a reasonable person in the plaintiff's
position would have been aware' that [his] rights had been violated.'" Id. (quoting Dring, 58
F.3d at 1329). In applying this doctrine, "[c]ertainity is not the standard." Id. Instead, "[t]o
determine whether a plaintiff in fact lacked vital information, a court should ask whether a
reasonable person in the plaintiff's position would have been aware that he had" been
discriminated against in violation of Title VII. Dring, 58 F.3d at 1329 (internal quotations
omitted). A plaintiff has the burden of proving entitlement to the doctrine of equitable
tolling, which should only be applied in "exceptional circumstances truly beyond the
plaintiff's control." Jenkins v. Mabus, 646 F.3d 1023, 1028-29 (8th Cir. 2011). Plaintiff
alleges only that he did not discern that there was a discriminatory motive behind the
complained-of acts until a pattern had established itself. This pattern apparently took five
years to become evident4 and is insufficient for the doctrine to apply.

4

This is the length of time between Plaintiff's termination and the filing of his charge of
discrimination.
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Plaintiff contends that Defendant waived the timeliness argument by not raising it in
the administrative proceedings. In support of his position, he cites Ramirez v. Sec'y, U.S.
Dep't of Transp., 686 F.3d 1239, 1250-51 (11th Cir. 2012), and Farrow v. St. Francis
Med. Ctr., 407 S.W.3d 579, 588 (Mo. 2013) (en banc). In the Eleventh Circuit case, the
court held that the defendant, a government agency, was bound by a decision of the EEOC
that an administrative complaint filed with the agency's EEO counselor was not untimely.
The court noted that "[s]ignificantly, the [defendant] did not challenge this ruling. Rather,
it accepted [the complaint], investigated his allegations, and denied him relief on the merits."
Id. at 1251. The court concluded that, on those facts, the defendant was bound by the
EEOC's decision. In the instant case, the EEOC marked the box on its right-to-sue letter
indicating that it "was unable to conclude that the information obtained establishes violations
of the statutes." (Pl.'s Reply Ex. A, ECF No. 27-1.) The lack of a mark by the box
indicating that the charge was not timely filed does not equate to a finding that it was,
especially given Plaintiff's allegations in his charge of a continuing violation.
Nor is Plaintiff's reliance on Farrow, supra, availing because that case was brought
under the Missouri Human Rights Act, Mo.Rev.Stat. § 213.010-.137, not Title VII.
Conclusion
Plaintiff's allegations of discriminatory conduct occurring before March 10, 2012,
whether they be of termination, failure to rehire, or retaliation, are untimely and will be
dismissed. His claims of discriminatory conduct on or after March 10, 2012, are not
dismissed. Accordingly,

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IT IS HEREBY ORDERED that the motion of The Outsource Group for partial
dismissal or, in the alternative, to strike certain allegations of the complaint is GRANTED
in part and DENIED in part as set forth above. [Doc. 12]

/s/Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE

Dated this 7th day of April, 2014.

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