Gao v. YMCA of Greater St. Louis

Filing 18

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that Defendant YMCA of Greater St. Louis's Motion to Dismiss, or in the Alternative, Motion for More Definite Statement [ECF No. 8 ] is GRANTED. IT IS FURTHER ORDERED that Plaintiff Lin Gao's Employment Discrimination Complaint [ECF No. 1 ] is DISMISSED, without prejudice. Signed by District Judge E. Richard Webber on 10/14/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LIN GAO,
Plaintiff,
v.
YMCA OF GREATER ST. LOUIS,
Defendant.

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No. 4:14CV01221 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Defendant YMCA of Greater St. Louis’s Motion
to Dismiss or, in the Alternative, Motion for More Definite Statement [ECF No. 8].
I.

BACKGROUND
On July 7, 2014, Plaintiff Lin Gao (“Plaintiff”) filed an Employment Discrimination

Complaint pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§
2000e, et seq., and the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§
621, et seq., naming YMCA of Greater St. Louis as defendant [ECF No. 1]. Plaintiff claims
discrimination and harassment on the basis of race, color, gender, age and national origin.
Plaintiff brought this action after filing a complaint with the Missouri Commission on Human
Rights (“MCHR”) and the U.S. Equal Employment Opportunity Commission (“EEOC”) [ECF
Nos. 1-1, 17]. Plaintiff received Notice of Right to Sue from MCHR and EEOC on April 14,
2014, and May 8, 2014, respectively.
Defendant moves to dismiss the complaint for failure to exhaust administrative remedies
in regards to Plaintiff’s claims of harassment and discrimination based on age, gender and color,
and failure to state a claim for which relief can be granted for unlawful harassment. In the

alternative, Defendant moves for Plaintiff to be required to file a More Definite Statement of her
claims.
II.

STANDARD
Under Federal Rule of Civil Procedure (“FRCP”) 12(b)(6), a party may move to dismiss

a claim for “failure to state a claim upon which relief can be granted.” The notice pleading
standard of FRCP 8(a)(2) requires a plaintiff to give “a short and plain statement showing that
the pleader is entitled to relief.” To meet this standard and to survive a FRCP 12(b)(6) motion to
dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotations and citation omitted). This requirement of facial plausibility means the factual
content of the plaintiff’s allegations must “allow[] the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Cole v. Homier Distrib. Co., 599 F.3d 856,
861 (8th Cir. 2010) (quoting Iqbal, 556 U.S. at 678). The Court must grant all reasonable
inferences in favor of the nonmoving party. Lustgraaf v. Behrens, 619 F.3d 867, 872-73 (8th
Cir. 2010). Ordinarily, only the facts alleged in the complaint are considered for purposes of a
motion to dismiss; however, materials attached to the complaint may also be considered in
construing its sufficiency. Reynolds v. Dormire, 636, F.3d 976, 979 (8th Cir. 2011).
When ruling on a motion to dismiss, a court Amust liberally construe a complaint in favor
of the plaintiff[.]@ Huggins v. FedEx Ground Package Sys., Inc., 592 F.3d 853, 862 (8th Cir.
2010). However, if a claim fails to allege one of the elements necessary to recovery on a legal
theory, that claim must be dismissed for failure to state a claim upon which relief can be granted.
Crest Constr. II, Inc. v. Doe, 660 F.3d 346, 355 (8th Cir. 2011). AThreadbare recitals of a cause
of action, supported by mere conclusory statements, do not suffice.@ Iqbal, 556 U.S. at 678; Bell

Atlantic v. Twombly, 550 U.S. 544, 555 (2007). Although courts must accept all factual
allegations as true, they are not bound to take as true Aa legal conclusion couched as a factual
allegation.@ Twombly, 550 U.S. at 555 (internal quotations and citation omitted); Iqbal, 556 U.S.
at 677-78.
III.

DISCUSSION
In its Motion, Defendant argues Plaintiff’s Complaint should be dismissed for two main

reasons. First, Defendant argues Plaintiff failed to exhaust administrative remedies for the
claims of discrimination based on age, gender and color and her claim of harassment because
these claims were not raised before the MCHR and EEOC. Second, Defendant contends
Plaintiff’s remaining claim of harassment and discrimination should be dismissed for failure to
state a claim upon which relief can be granted.
For purposes of this discussion, the Court accepts the following well-pleaded facts, as
alleged in the Complaint [ECF No. 1], as true.
Plaintiff worked as a Tai Chi instructor for the YMCA for four years prior to the incident
culminating in her complaint. On October 16, 2013, Plaintiff’s Tai Chi class was scheduled to
begin around 7:20 pm. The previous karate class was scheduled to end at 7:10 pm but had not
yet finished. The karate class had run late several times in the previous months. Plaintiff had
previously notified her superiors of the situation and they informed her the next time it should
occur Plaintiff should enter the classroom and inform the karate instructor that it was time for the
next class. On this date, Plaintiff did as told and informed the karate instructor that he was late.
The karate instructor refused to leave and confronted Plaintiff holding a sword. He complained
that Plaintiff’s actions caused him embarrassment. He told Plaintiff that he would let his sword
take her to see God. Plaintiff was frightened and told the instructor that he could complain to her

superior if he wished, Plaintiff was just following instructions. The karate instructor then left the
room. Plaintiff informed her superior and made a police report about the incident. Plaintiff’s
superiors informed Plaintiff this was an isolated incident, it would not happen again, and the
sword the instructor was holding was made of foam and consequently, not dangerous. Since the
date of the incident, Plaintiff has experienced head pains and dizziness. Plaintiff quit her job and
Defendant subsequently listed her as “not rehireable” at all YMCAs. As a consequence of these
occurrences, Plaintiff has lost her job, other YMCA employment and her social reputation as a
Tai Chi instructor.
A.

Failure to Exhaust Administrative Remedies

First, Defendant argues the Complaint should be dismissed for failure to exhaust
administrative remedies as required in both Title VII and the ADEA. A plaintiff alleging
discrimination under either Title VII or the ADEA must exhaust administrative remedies before
filing in federal court. 42 U.S.C. §2000e-5(e)(1); 29 U.S.C. § 626(c)-(d). See, Richter v.
Advance Auto Parts, Inc., 686 F.3d 847, 850 (8th Cir. 2012). Plaintiff must allege each charge of
discrimination with the EEOC, or a related state agency, and receive a right to sue letter. Shelton
v. Boeing Co., 399 F.3d 909, 912 (8th Cir. 2005). Here, Plaintiff checked the box for race
discrimination on her EEOC Charge of Discrimination form [ECF No. 1-1]. No other boxes for
other protected classes such as gender, age, color, or national origin were checked. The
description of her complaint, included on the EEOC form, states she was constructively
discharged because of her race and national origin. Nowhere in the complaint does Plaintiff refer
to discrimination on the basis of age, gender, or color. Neither Plaintiff’s complaint before this
court, nor any of the additional documentation she provided contains information that Plaintiff’s
charges of discrimination on the basis of age, gender or color were exhausted administratively

prior to her filing in federal court. Therefore, this Court is without jurisdiction to hear those
claims and they will be dismissed.
B.

Failure to State a Claim upon which Relief can be Granted

Defendant argues that Plaintiff’s claim of harassment and remaining discrimination
claims should be dismissed for failure to state a claim upon which relief can be granted. To
establish a prima facie case for harassment, Plaintiff must show she: “(1) is a member of a
protected class; (2) unwelcome harassment occurred; (3) there is a casual nexus between the
harassment and her protected-group status; (4) the harassment affected a term, condition, or
privilege of her employment; and (5) [the employer] knew or should have known of the
harassment and failed to take prompt and effective remedial action.” Jackman v. Fifth Judicial
Dist. Dep’t of Corr. Serv., 728 F.3d 800, 805-06 (8th Cir. 2013) (quoting Robinson v. Valmont
Ind., 238 F.3d 1045, 1047 (8th Cir. 2001). Defendant argues that Plaintiff failed to allege her
harassment was based upon any protected classification. Plaintiff has alleged she is a member of
a protected class as she is Chinese, a female, and over the age of 40. She has also alleged the
harassment was based on her national origin, race, gender and age. However, simply stating the
harassment was based on a protected classification is a legal conclusion. A plaintiff must allege
facts supporting her conclusion. Twombly, 550 U.S. at 555 (internal quotations and citation
omitted); Iqbal, 556 U.S. at 677-78. The only fact Plaintiff alleges to show that the harassment
is based on a protected classification is that she is of one race and gender while the karate
instructor is of another. This is not enough. For these reasons, the Court must dismiss Plaintiff’s
harassment claims.
For the same reasons as discussed, Plaintiff’s claims of discrimination on the basis of
race and national origin must also be dismissed. To establish a prima facie case of

discrimination, Plaintiff must show that she: “(1) is a member of a protected class; (2) was
meeting her employer’s legitimate job expectations; (3) suffered an adverse employment action;
and (4) was treated differently than similarly situated employees who were not members of her
protected class. Jackman, 728 F.3d at 804. Plaintiff has not alleged that she was treated
differently than similarly situated employees who were not members of her protected class
beyond conclusory statements that the discrimination as on the basis of her race or national
origin. For these reasons, the Court will dismiss Plaintiff’s claims of discrimination on the basis
of race and national origin.
IT IS HEREBY ORDERED that Defendant YMCA of Greater St. Louis’s Motion to
Dismiss, or in the Alternative, Motion for More Definite Statement [ECF No. 8] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff Lin Gao’s Employment Discrimination
Complaint [ECF No. 1] is DISMISSED, without prejudice.
Dated this 14th Day of October, 2014.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE