Barber v. Drury Inn Convention Center
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant's Motion to Dismiss (Docket No. 12 ) is GRANTED. Signed by Magistrate Judge Terry I. Adelman on 4/17/14. (KKS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
DRURY INN CONVENTION CENTER,
No. 4:14CV319 TIA
MEMORANDUM AND ORDER
This matter is before the Court on Defendant Drury Development Corporation’s Motion to
Dismiss (Docket No. 12). The parties consented to the jurisdiction of the undersigned pursuant to
28 U.S.C. § 636(c).
On February 20, 2014, Plaintiff Reginald Barber, acting pro se, filed this action under Title
VII of the Civil Rights Act of 1964 and the Age Discrimination Employment Act of 1967 (“ADEA”)
against Defendant Drury Inn Convention Center1 alleging that another employee slapped his buttocks.
The case is now before the Court on Defendant’s motion to dismiss his age discrimination claim for
lack of subject matter jurisdiction inasmuch as Plaintiff failed to exhaust his administrative remedies
as to this claim. The motion is fully briefed, and upon consideration of the administrative charge, the
complaint, the parties arguments, and the applicable law, the Court will grant the motion to dismiss.
The Court sua sponte is correcting the name of the named party Defendant to Drury
Development Corporation inasmuch as Plaintiff has named an improper party, Defendant Drury
Inn Convention Center, as noted by Defendant in the Motion to Dismiss.
Plaintiff, a former employee of Express Temporary Services working at Drury Inn Convention
Center, alleges that on April 1, 2013, another employee slapped him on the buttocks.
On August 7, 2013, Plaintiff filed a Charge with the Missouri Human Rights Commission and
Equal Opportunity Employment Commission alleging sex discrimination/harassment as his only claim.
On the administrative charge form, Plaintiff checked the box for “sex,” and indicated that the
discrimination began on February 28, 2013 and continued through April 2, 2013 and summarized his
claim as an incident involving inappropriate touching of Plaintiff by another employee and sexual
In the instant Complaint, Plaintiff alleges age discrimination and sex harassment.
The EEOC issued Plaintiff a Dismissal and Notice of Rights letter on November 21, 2013, and
he filed this action on February 20, 2014. In addition to the allegations set forth above, Plaintiff
alleges that he was discriminated against due to his age. Defendant moves to dismiss any and all
portion(s) of Plaintiff’s Complaint alleging age discrimination.
Standard of Review
The purpose of a Federal Rule of Civil Procedure 12(b)(1) motion is to allow the court to
address the threshold question of jurisdiction, as “judicial economy demands that the issue be decided
at the outset rather than deferring it until trial.” Osborn v. United States, 918 F.2d 724, 729 (8th Cir.
1990). For a court to dismiss a complaint for lack of subject-matter jurisdiction, under Rule 12(b)(1),
a defendant must successfully challenge the complaint either “on its face or on the factual truthfulness
of its averments.” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). In a facial challenge, as here,
all factual allegations relating to jurisdiction are presumed true, and the motion may only succeed if
the plaintiff has failed to allege an element necessary for subject-matter jurisdiction. Id. Dismissal
for lack of subject matter jurisdiction will not be granted lightly. Wheeler v. St. Louis SW Ry. Co.,
90 F.3d 327, 329 (8th Cir. 1996).
A party seeking redress under either Title VII or the ADEA is required “to give notice of all
claims of discrimination in the administrative complaint.” Stuart v. Gen. Motors, 217 F.3d 621, 630
(8th Cir. 2000); see Forest v. Barnes Jewish Hosp., 2009 WL 877716, at *7-8 (E.D. Mo. Mar. 30,
2009). The pursuit of administrative remedies affords the EEOC the opportunity to investigate claims
of employment discrimination and to work toward voluntary compliance and conciliation. Parisi v.
Boeing Co., 400 F.3d 583, 585 (8th Cir. 2005).
Once administrative remedies are exhausted, the plaintiff can bring his or her “employmentdiscrimination claim, along with allegations that are like or reasonably related to that claim.” Id.
(citation omitted). Entirely new allegations not found in the plaintiff’s charge of discrimination that
appear for the first time in the district court complaint should be dismissed for failure to exhaust
administrative remedies if the administrative charge does not provide notice that such charges would
be raised. See Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 851-52 ((8th Cir. 2012) (citing
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 108-09 (2002)).
Plaintiff’s allegations regarding age discrimination are not included in his charge of
discrimination, and appear for the first time in his Complaint. Plaintiff’s allegation that Defendant
discriminated against him based on his age is not like or reasonably related to the sex discrimination
claim alleged in the Charge. As such, the Court finds that Plaintiff has failed to exhaust his
administrative remedies with respect to any allegations relating to age discrimination, and any
allegations of age discrimination must be dismissed for lack of subject matter jurisdiction. See Brooks
v. Midwest Heart Group, 655 F.3d 796, 801 (8th Cir. 2011) (holding that “[a]n employee may not
bring allegations in a Title VII action if they go beyond those that could reasonably be expected to
grow out of the charge of discrimination filed with the EEOC.”).
Therefore, for the foregoing reasons,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss (Docket No. 12) is
/s/ Terry I. Adelman
UNITED STATES MAGISTRATE JUDGE
Dated this 17th
day of April, 2014.
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