Almoghrabi v. Gojet Airlines, LLC et al

Filing 47

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that Defendant GoJet Airlines LLCs motion to dismiss is GRANTED in part and DENIED in part. (Doc. No. 24 .) The motion is GRANTED with respect to Count III of Plaintiffs complaint. Count III is DISMISSED. The motion is DENIED with respect to Plaintiffs claims of race and color discrimination in Count I. Signed by District Judge Audrey G. Fleissig on 3/11/2015. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ALAA ALMOGHRABI,
Plaintiff,
v.
GOJET AIRLINES, LLC, et al.,
Defendants.

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No. 4:14-CV-00507-AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Defendant GoJet Airlines, LLC
(“GoJet”) to dismiss in part Plaintiff’s complaint. Plaintiff Alaa Almoghrabi, a
Jordanian Muslim, filed suit against his former employer, GoJet, alleging that he was
illegally terminated based on Plaintiff’s race, color, religion, and national origin, in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., and the
Missouri Human Rights Act (“MHRA”), Mo. Rev. Stat. §§ 213.010, et seq. GoJet argues
that Plaintiff’s MHRA claim is untimely, and Plaintiff’s discrimination claims based on
race and color have not been administratively exhausted. For the reasons set forth
below, GoJet’s motion shall be granted in part and denied in part.
BACKGROUND
Viewing the facts in the light most favorable to Plaintiff, the record establishes the
following. Plaintiff was employed as a pilot by GoJet from November 2007 until his
termination in October 2012. Plaintiff was terminated following an altercation with a copilot who made fun of Plaintiff’s Arabic language and accent.

On January 18, 2013, Plaintiff filed charges of discrimination with the Missouri
Commission on Human Rights (“MCHR”) and the Equal Employment Opportunity
Commission (“EEOC”) claiming discrimination based on the October 2012 termination.
(Doc. No. 25-1 at 1-3.)1 In his charges, Plaintiff only checked the boxes for
discrimination based on religion and national origin. However, in the description section
of his charges, plaintiff further stated that the co-pilot “made fun of my accent by
imitating my Arabic in a phone conversation to a taxi driver.” Id. at 3. Plaintiff also
stated that, whereas he was terminated for allegedly pushing the co-pilot, GoJet “did not
take similar action against a Caucasian employee of American origin who was arrested
for allegedly harassing and chasing a female to her house.” Id.
The MCHR issued its right-to-sue on December 8, 2013. (Doc. No. 25-2 at 1.)
That letter stated that Plaintiff “[had] a right to bring a civil action within 90 days of the
date of this letter . . . .” Id. The letter also reemphasized, in bold and capitalized print:
“IF YOU DO NOT FILE A CIVIL ACTION . . . RELATING TO THE MATTERS
ALLEGED IN YOUR COMPLAINT WITHIN 90 DAYS OF THE DATE OF THIS
NOTICE . . . , YOUR RIGHT TO SUE IS LOST.” Id.
The EEOC issued its right-to-sue on December 17, 2013. (Doc. No. 40-2 at 1.)
That letter stated that Plaintiff must file his lawsuit “WITHIN 90 DAYS of [his] receipt
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Plaintiff’s complaint states only that “Plaintiff timely filed a written complaint of
discrimination with Missouri Commission on Human Rights (MCHR) and Equal
Employment Opportunity Commission (EEOC).” (Doc. No. 1 at 7.) The complaint
neither describes the contents of the MCHR and EEOC charges, nor attaches copies of
these charges. However, the parties have both attached copies of the administrative
charges and right-to-sue letters to their briefs on GoJet’s motion to dismiss. (See Doc.
Nos. 25-1, 25-2, 40-1, & 40-2.)
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of this notice” and further provided that “[t]he time limit for filing suit based on a claim
under state law may be different.” Id.
Plaintiff commenced this lawsuit, pro se, on March 19, 2014. Although the
complaint states “comes now, plaintiff … by and through his attorney,” counsel did not
formally appear in this case on behalf of Plaintiff until August 22, 2014. (Doc. Nos. 1 &
6.) Count I of Plaintiff’s complaint asserts discrimination by GoJet based on race, color,
religion, and national origin, in violation of Title VII. Count III asserts discrimination by
GoJet based on race, color, religion, and national origin, in violation of the MHRA.2
GoJet filed its motion to dismiss on November 5, 2014, and contemporaneously
filed an answer to Plaintiff’s complaint. GoJet answered all counts of Plaintiff’s
complaint.
In its motion to dismiss, GoJet argues that Count III of Plaintiff’s complaint
should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of
subject-matter jurisdiction and, alternatively, pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can be granted. GoJet argues that
Count III of Plaintiff’s complaint is time-barred under the MHRA because it was not filed
within 90 days of the MCHR issuing its right-to-sue notice. GoJet asserts that because
Plaintiff filed his complaint 101 days after the right-to-sue notice was issued, Plaintiff’s
MHRA claims fail as a matter of law. Therefore, GoJet argues that Count III fails for

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The remaining counts are asserted against Plaintiff’s union, International
Brotherhood of Teamsters – Local 618.
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lack of subject matter jurisdiction and fails to state a claim upon which relief can be
granted.
Additionally, GoJet asserts that Plaintiff has failed to exhaust his administrative
remedies for his claims of discrimination on the basis of race and color, under both the
MHRA and Title VII, by failing to include these claims in his charges of discrimination
with the MCHR and EEOC. Therefore, GoJet argues Plaintiff’s race and color
discrimination claims in Counts I and III must be dismissed.
With respect to Count III, Plaintiff admits that he filed his MHRA claim more than
90 days after the date of his right-to-sue letter from the MCHR, but Plaintiff argues that
equitable tolling should apply because the delay was the result of excusable neglect.
Specifically, Plaintiff argues that, as a pro se litigant, he confused the deadlines for filing
a Title VII claim and an MHRA claim. Plaintiff argues that he received the right-to-sue
letters from the EEOC and MCHR around the same time, and that because the EEOC
letter stated he had to file a lawsuit within 90 days of receipt of the letter, he thought the
same rule applied to his MHRA claim.
With respect to his race and color discrimination allegations in Counts I and III,
Plaintiff argues that his complaint is adequate. Plaintiff asserts that his Title VII and
MHRA claims need only be “reasonably related” to the factual allegations of his
administrative charges. Plaintiff contends that GoJet is not prejudiced by the inclusion of
race and color discrimination in the complaint, especially in light of the fact that Plaintiff
alleges discrimination based on national origin in his administrative charges. Plaintiff
argues that allegations of discrimination based on “national origin” and “race and color”
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are interrelated, and GoJet was therefore adequately apprised of the nature of Plaintiff’s
claims against it.
DISCUSSION
Motion to Dismiss Standard
A motion to dismiss for lack of subject matter jurisdiction, pursuant to Rule
12(b)(1), may challenge the plaintiff's complaint either on its face or on the factual
truthfulness of its averments. See Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993);
Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). In a facial challenge to
jurisdiction, the court affords the non-moving party the same protections that it would
receive under a Rule 12(b)(6) motion to dismiss. See Osborn, 918 F.2d at 729 n.6. In
both types of motions, the court presumes that all of the factual allegations in the
complaint are true and will not dismiss the claims unless the plaintiff fails to allege an
essential element to establish subject matter jurisdiction or fails to state a claim for relief
that is “plausible” on its face. See Titus, 4 F.3d at 593 (discussing 12(b)(1) standard);
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (discussing 12(b)(6) standard).
In this case, GoJet filed its motion to dismiss contemporaneously with its answer,
contrary to the terms of Rule 12(b). Fed. R. Civ. P. 12(b) (“A motion asserting any of
these defenses must be made before pleading if a responsive pleading is allowed.”).
Nevertheless, the Court finds authority to consider GoJet’s challenges regarding both lack
of subject matter jurisdiction and failure to state a claim. See Bueford v. Resolution Trust
Corp., 991 F.2d 481, 485 (8th Cir. 1993) (stating that the lack of subject matter
jurisdiction cannot be waived and may be raised at any time by a party to an action);
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Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990) (treating a 12(b)(6)
motion for failure to state a claim “as if it had been styled a 12(c) motion”); Fed. R. Civ.
P. 12(h)(2)(B) (“Failure to state a claim upon which relief can be granted . . . may be
raised . . . by motion under rule 12(c).”).
When considering a motion regarding the sufficiency of the pleadings, such as
this one, “the court generally must ignore materials outside the pleadings, but it may
consider some materials that are part of the public record or do not contradict the
complaint, as well as materials that are necessarily embraced by the pleadings.” Faibisch
v. Univ. of Minn., 304 F.3d 797, 802 (8th Cir. 2002) (finding that motion for judgment on
the pleadings was not converted to summary judgment by attachment of a copy of the
EEOC charge, which was part of public record). As Plaintiff specifically referenced the
written complaint of discrimination he filed with the MCHR and the EEOC in his
compliant in this Court, and both parties have cited to and attached Plaintiff’s
administrative charges and right-to-sue notices, the Court will consider these materials in
resolving GoJet’s motion to dismiss.
MHRA Claims (Count III)
The MHRA requires an aggrieved party to file a complaint within 90 days of the
date of the notice of right-to-sue, and if he fails to do so, the right to sue is lost. See Mo.
Rev. Stat. § 213.111.1 (“[T]he commission shall issue to the person claiming to be
aggrieved a letter indicating his or her right to bring a civil action within ninety days of
such notice against the respondent named in the complaint.”); State, ex rel. Martin–Erb v.
Mo. Comm’n on Human Rights, 77 S.W.3d 600, 604 (Mo. 2002) (“The complainant must
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file any civil action against the person or entity allegedly committing the discrimination
within 90 days of the date of the MCHR’s letter . . . .”); Hammond v. Mun. Corr. Inst.,
117 S.W.3d 130, 139 (Mo. Ct. App. 2003) (“[A]ny suit under the Missouri Human Rights
Act filed beyond ninety days after the date of the right-to-sue letter is not timely.”).
Plaintiff concedes his MHRA claims were not filed within the ninety-day period
prescribed by § 213.111.1, but he argues that equitable tolling should apply because of
his confusion arising from the different deadline set by the EEOC notice. The Court
rejects this argument. Both the MHRA and the MCHR’s right-to-sue notice clearly set
forth the ninety-day deadline, and Plaintiff’s pro se status did not excuse him from
complying with this statutory requirement. See Hammond, 117 S.W.3d at 139 (reasoning
that “[a]lthough the practitioner must carefully read the statute concerning the deadline
for filing, the statute is sufficiently clear to avoid due process problems. Also, the ninety
day requirement would be no surprise to a layperson, because that specific language was
included twice in the letter to sue.”); see also Houston-Morris v. AMF Bowling Ctrs.,
Inc., No. 11–00325–CV–W–FJG, 2011 WL 5325646, at *3 (W.D. Mo. Nov. 3, 2011)
(rejecting Plaintiff’s request to equitably toll the statute of limitations for an MHRA
claim because she was “misled by the language” of the MCHR and EEOC right-to-sue
notices, and was “unfamiliar[] with handling and interpreting such notices”); Muth v.
Cobro Corp., 895 F. Supp. 254, 256 (E.D. Mo. 1995) (finding no legal basis for plaintiff's
argument that “the ninety (90) day limitation runs equally from either the EEOC or the
MCHR ‘Right–to–Sue’ letter” and holding that plaintiff's EEOC claim was untimely).
Therefore, the Court will dismiss Count III as time-barred.
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Title VII Race and Color Discrimination Claims (Count I)
A plaintiff alleging discrimination under Title VII must exhaust administrative
remedies before filing in federal court. Wilkie v. Dep’t of Health & Human Servs., 638
F.3d 944, 949 (8th Cir. 2011). Exhaustion of administrative remedies under Title VII
requires a claimant to give notice of all claims of discrimination in the initial
administrative charge. Stuart v. General Motors Corp., 217 F.3d 621, 630-31 (8th Cir.
2000); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513-15 (2002) (holding that
to state claim under Title VII, a plaintiff must provide fair notice of the claim and the
grounds upon which it rests).
While the Eighth Circuit has stated that a subsequently filed lawsuit need not
mirror the administrative charges, the complaint can only sweep as broad as the scope of
the EEOC investigation which could reasonably be expected to grow out of the charge
filed. Wedow v. City of Kansas City, Mo., 442 F.3d 661, 674 (8th Cir. 2006); see also,
Nichols v. Am. Nat’l Ins. Co., 154 F.3d 875, 886-87 (8th Cir. 1998) (“In determining
whether an alleged discriminatory act falls within the scope of a Title VII claim, the
administrative complaint must be construed liberally in order not to frustrate the remedial
purposes of Title VII, and the plaintiff may seek relief for any discrimination that grows
out of or is like or reasonably related to the substance of the allegations in the
administrative charge.”); Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222
(8th Cir. 1994) (“A plaintiff will be deemed to have exhausted administrative remedies as
to allegations contained in a judicial complaint that are like or reasonably related to the
substance of charges timely brought before the EEOC.”).
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To determine whether the allegations of a complaint are reasonably related to
claims of discrimination in an administrative charge, courts customarily look to the
substance of the administrative charge. For example, in Lin Gao v. YMCA of Greater St.
Louis, the plaintiff’s complaint alleged discrimination on the basis of race, color, gender,
age, and national origin. No. 4:14CV01221 ERW, 2014 WL 5166931, at *2 (E.D. Mo.
Oct. 14, 2014). Although the plaintiff only checked the box for race discrimination on
her EEOC charge, the court nevertheless concluded it had jurisdiction to consider the
national origin discrimination claim because the plaintiff included that allegation in her
description of the charge, which was included on the EEOC form. Id.
Other circuits also focus on “the factual allegations made in the EEOC charge
itself, describing the discrimination conduct about which a plaintiff is grieving.” Deravin
v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003). In Deravin, the Second Circuit concluded
that a plaintiff’s race discrimination claim was reasonably related to his EEOC charge of
national origin discrimination because, “read liberally, allegations by an AfricanAmerican employee that employees of Irish descent are receiving preferential treatment
implicitly suggests some form of potential racial discrimination in addition to an
illegitimate preference premised on national origin.” Id. at 202.
The court also noted that, although “an assertion of racial bias is conceptually
distinct from a claim of discrimination on the basis of national origin,” the two claims
“may substantially overlap or even be indistinguishable depending on the specific facts of
a case.” Id. at 201; see also Sinai v. New England Tel. and Tel. Co., 3 F.3d 471, 475 (1st
Cir. 1993) (“[R]ace and national origin discrimination may present identical factual
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issues when a victim is ‘born in a nation whose primary stock is one’s own ethnic group’
. . . [and thus] in certain circumstances . . . national origin and race discrimination may
overlap”); Bullard v. OMI Georgia, Inc., 640 F.2d 632, 634 (5th Cir. Unit B 1981) (“In
some contexts, national origin discrimination is so closely related to racial discrimination
as to be indistinguishable”) (internal quotation marks and citation omitted)). The court
thus declined to “draw overly fine distinctions between race and national origin claims as
part of the threshold exhaustion inquiry prior to the full development of a plaintiff’s
claims, given the potential overlap between the two forms of discrimination.” Deravin,
335 F.3d at 202.
Likewise, courts have held that claims for discrimination based on color may be
reasonably inferred from the facts alleged in an administrative charge, notwithstanding a
plaintiff’s failure to check the box for color discrimination. In Gul-E-Rana Mirza v.
Neiman Marcus Group, Inc., 649 F. Supp. 2d 837, 854 (N.D. Ill. 2009), the plaintiff
stated in her administrative charge of discrimination that she was discriminated against
“because of [her] race, Pakistani, and [her] religion, Muslim.” Id. The court reasoned
that “it [was] hardly obvious how allegations of discrimination based on race and national
origin would throw the EEOC’s investigators off the scent of a claim of discrimination
based on color” simply because of “a missed checkbox and the omission of the word
‘color.’” Id. at 856. Thus, the court denied the defendant’s motion for summary
judgment with respect to the plaintiff’s claim of discrimination based on color. Id.
Here, Plaintiff's race and color claims are “reasonably related” to the national
origin and religion claims addressed in his EEOC charge, as they are based on the same
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factual predicate. Compare Doc. No. 1 (complaint), with Doc. No. 25–1 (EEOC Charge).
In his EEOC charge, Plaintiff stated that he was discharged “due to [his] national origin,
Jordanian, and my religion, Muslim.” (Doc. No. 25-1 at 3.) Moreover, Plaintiff's charge
specifically referenced an incident in which a co-pilot “made fun of [his] accent by
imitating [his] Arabic,” and further asserts that GoJet “did not take similar action against
a Caucasian employee.” (Doc. 25–1 at 3.) Read liberally, this suggests some form of
potential race and color discrimination. See Saint Francis Coll. v. Al-Khazraji, 481 U.S.
604, 613 (1987) (holding that a claim of racial discrimination pursuant to 42 U.S.C. §
1981 could be based on a showing that discrimination resulted from Arab ethnicity);
Ghane v. West, 148 F.3d 979, 981 n.2 (8th Cir. 1998) (concluding that an Iranian
plaintiff’s claims of discrimination based upon both national origin and race could, for
purposes of a summary judgment analysis, be treated as essentially the same claim).
In sum, considering the specific facts of this case, the Court concludes that the
absence of an explicit reference to race and color discrimination in Plaintiff's EEOC
charge is not dispositive. Because a claim of race and color discrimination could
reasonably be expected to grow out of Plaintiff's EEOC charge, the Court will deny
GoJet’s motion to the extent it is based on Plaintiff’s alleged failure to exhaust his race
and color discrimination claims in Count I.
CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that Defendant GoJet Airlines LLC’s motion to
dismiss is GRANTED in part and DENIED in part. (Doc. No. 24.) The motion is
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GRANTED with respect to Count III of Plaintiff’s complaint. Count III is
DISMISSED. The motion is DENIED with respect to Plaintiff’s claims of race and
color discrimination in Count I.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 11th day of March, 2015.

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