Gafford v. McDonald

Filing 12

MEMORANDUM AND ORDER re 3 MOTION to Dismiss Case filed by Defendant Robert A. McDonald. The motion is GRANTED in part. Plaintiffs USERRA claim is hereby dismissed without prejudice for want of subject matter jurisdiction. Plaintiffs ADEA cl aim is dismissed without prejudice with leave for Plaintiff to file an amended complaint within twenty-one (21) days from the date of thisorder. Plaintiff is again warned that an amended complaint will completely replace the Complaint and claims that are not re-alleged in an amended complaint are deemed abandoned. A separate order of partial dismissal will accompany this memorandum and order. Signed by District Judge John A. Ross on 8/5/15. (CAR)

UNITED ST ATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TERRY GAFFORD,
Plaintiff,
vs.
ROBERT A. MCDONALD,
Secretary, United States
Department of Veterans Affairs,
Defendant.

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Case No. 4:14-cv-01603-JAR

MEMORANDUM AND ORDER

This matter is before the Court on Defendant's Motion to Dismiss (Doc. 3). The Motion
is fully briefed and ready for disposition. 1 For the following reasons, Defendant's Motion will be
GRANTED, in part.
I.

Motion to Dismiss Standard of Review

Federal Rule of Civil Procedure 8(a)(2) requires "a short and plain statement of the claim
showing that the pleader is entitled to relief." Fed. R. Civ. P. 12(b)(6) provides for a motion to
dismiss based on the "failure to state a claim upon which relief can be granted." To survive a
motion to dismiss, a complaint must show " 'that the pleader is entitled to relief,' in order to
'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.' " Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

(1957)). "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss."
Ashcroft v. Iqbal, 129 S .Ct.1937, 1950 (2009) (citing Twombly, 550 U.S. at 556). The pleading

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Plaintiffs Response appears to have been electronically filed twice, both at Document 6 and Document 7.
Because Plaintiffs Response filed at Document 7 also has several attached exhibits, whereas no exhibits were filed
in connection with Document 6, the Court treated Document 7 as Plaintiffs Response.

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standard of Rule 8 "does not require 'detailed factual allegations,' but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 1949.
Further, to survive a Rule 12(b)(6) motion, "a complaint must contain sufficient factual
matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Id. In the
complaint, a plaintiff "must include sufficient factual information to provide the 'grounds' on
which the claim rests, and to raise a right to relief above a speculative level." Schaaf v.
Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008) (citing Twombly, 550 U.S. at 555
& n. 3). This obligation requires a plaintiff to plead "more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555.
A complaint "must contain either direct or inferential allegations respecting all the material
elements necessary to sustain recovery under some viable legal theory." Id. at 562 (internal
quotation omitted). This standard "simply calls for enough fact to raise a reasonable expectation
that discovery will reveal evidence of [the claim or element]." Id. at 556.
When ruling on a motion to dismiss, this Court must take the allegations of the complaint
as true and liberally construe the complaint in a light most favorable to the plaintiff. Kottschade
v. City of Rochester, 319 F.3d 1038, 1040 (8th Cir. 2003). This is especially true when, as here, a

plaintiff is proceeding prose. Pro se pleadings are to be liberally construed and are held to less
stringent standards than those drafted by an attorney. Nickless v. Saint Gobain Containers, 2012
WL 1414849, at *4 (E.D. Mo. Apr. 24, 2012) (citing Smith v. St. Bernards Reg'! Med. Ctr., 19
F.3d 1254, 1255 (8th Cir. 1994)). See also Russell v. City of Overland Police Dept., 838 F. Supp.
1350 (E.D. Mo.1993). Nevertheless, pro se pleadings must not be conclusory and must state
sufficient facts which, when taken as true, support the claims advanced. Nickless, 2012 WL
1414849, at *4 (citing Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). The Court is "free to
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ignore legal conclusions, unsupported conclusions, unwarranted inferences and sweeping legal
conclusions cast in the form of factual allegations." Id. (citing Wiles v. Capitol Jndem. Corp., 280
F.3d 868, 870 (8th Cir.2002)).
Also, at the motion to dismiss stage, a court generally may not consider matters outside
the pleadings. Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir.1999) (citations
omitted). It may, however, consider matters of public records, materials that do not contradict the
complaint, exhibits attached to the pleadings, and materials necessarily embraced by the
complaint. Mills v. City of Grand Forks, 614 F.3d 495, 498 (8th Cir.2010). In this case, Plaintiff
has attached the Equal Employment Opportunity Commission's ("EEOC") decision he received
(Doc. 1-1 ). This decision is necessarily embraced by the complaint, and the Court may consider
it in ruling on the Motion to Dismiss.

II. Background
The facts in the light most favorable to the pro se Plaintiff are as follows. Defendant
Robert A. McDonald, Secretary, United States Department of Veterans Affairs ("Defendant"),
employed Plaintiff Terry Gafford ("Plaintiff') on probationary status at the Jefferson Barracks
Veterans Administration facility from March 2009 through October 2009 (Doc. 1 at ~l). At his
90-day performance appraisal on June 29, 2009, Plaintiffs first-level supervisor rated him "fully
successful or better" (Id. at ~6). The appraisal did not include annotations concerning any
previous conduct issues (Id.).
Plaintiff alleges that in July 2009, during a team meeting, a white female co-worker
described the involvement of their first-level supervisor in what Plaintiff labels as a "prohibitive
personnel practice" (Id. at ~2). She also stated that she was fearful of retaliation from his firstlevel supervisor (Id.). Similarly, in August 2009, another white female co-worker expressed her
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concern to Plaintiff that if the first-level supervisor found out that others knew about the practice,
"everyone would get in trouble" (Id.). Plaintiff later learned that the first-level supervisor had
hired two of her white female friends from her former place of employment (Id.). Plaintiff
describes this as the "prohibited practice" (Id.). Plaintiff discussed the practice and "the fearful
work environment" with his first-level supervisor (Id. at i!3). The first-level supervisor indicated
that she had performed an investigation into the matter, found who started the rumors, and fixed
the problem (Id.).
Plaintiffs second-level supervisor began working at the facility at the end of August
2009 (Id. at i!3). In September 2009, Plaintiffs second-level supervisor scheduled introductory
interviews with the center's staff (Id. at i!8). Between September 22, 2009 and October 22, 2009,
Plaintiffs second-level supervisor conducted 37 employee interviews (Id.). Plaintiffs secondlevel supervisor never met with Plaintiff (Id.).
On October 22, 2009, Defendant terminated Plaintiffs employment (Doc. 1 at i!4). At the
time of his termination, Plaintiff was 49 years old (Id. at i!i!l, 4). The memorandum of
termination included instances of verbal counseling by Plaintiffs first-level supervisor on five
separate occasions in 2009 (Id. at i!4). Plaintiff alleges that these instances of verbal counseling
did not occur but were fabricated by his first-level and second-level supervisors (Id.). He further
alleges that this "illegal action" represents a pretext for racial discrimination because there was
no punishment for the two other white females who created and spread the rumors of the
prohibitive personnel practice (Id.). Plaintiff also alleges that two other white males were aware
of the prohibitive personnel practice and were not punished (Id.). "One of whom the first-level
supervisor admitted during the administrative judge hearing was similarly situated to me" (Id.).

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Plaintiff filed a charge of discrimination with the Equal Employment Opportunity
Commission (EEOC) alleging discrimination based on race, age, and in reprisal for prior EEO
activity (Doc. 1-1 at 1). On June 13, 2014, the EEOC affirmed the Agency's final order finding
no discrimination (Id.).
Plaintiff thereafter filed this action pro se against Defendant, alleging that Defendant
discriminated against him because of his race, age, and veteran status and retaliated against him
because of (1) his conversations with his co-workers regarding the first-level supervisor's
"prohibitive personnel practice" of hiring two of her white female friends from her former place
of employment" (Doc. 1 at iJ2); (2) his conversation with his first-level supervisor regarding the
"prohibitive personnel practice" and the fearful work environment (Id. at iJ3).
On November 12, 2014, Defendant filed a Motion to Dismiss. In his motion, Defendant
asserts that the Court should dismiss Plaintiffs discrimination claim based on his veteran status
because Plaintiff failed to exhaust his administrative remedies with respect to this claim.
Defendant also argues that all the claims should be dismissed because Plaintiff fails to allege
sufficient facts. Specifically, Defendant asserts the following: (1) the retaliation claim does not
allege a protected activity; (2) the race and veteran status discrimination claims allege no facts
from which this Court might find that Defendant treated a probationary employee who
complained and made flippant comments to supervisors better than he treated Plaintiff; and (3)
the age discrimination claim pleads no facts that, if believed, make it more plausible that
Defendant discriminated against Plaintiff based on his age.

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III. Analysis
A. Veteran's Status Claim
Defendant asserts that the Court should dismiss Plaintiffs discrimination claim based on
his veteran status because Plaintiff failed to exhaust his administrative remedies with respect to
this claim. Enacted by Congress in 1994, USERRA prohibits employment discrimination on the
basis of military service. 38 U.S.C. § 4301 et seq. In addition to creating these substantive rights,
USERRA sets forth a detailed scheme for enforcement of rights under the Act. Under § 4323,
claims under USERRA against "States" and "private employers" may be brought in federal
district court. 38 U.S.C. § 4323. Under§ 4324, claims against "Federal executive agencies" may
be brought before the Merit Systems Protection Board ("MSPB"). 38 U.S.C. § 4324. Thus, in
contrast to the procedure established for employees of "States" or "private employers," who may
file claims in federal district court, USERRA requires that an aggrieved Department of Veteran's
Affairs employee first file a claim with the MSPB. Thereafter any appeal of the MSPB decision
on USERRA cases must be brought before the United States Court of Appeals for the Federal
Circuit. 38 U.S.C.A. § 4324(d)(l).
Because Plaintiff never presented his claim for discrimination based on his veteran status
to the MSPB, the Court must dismiss Plaintiff's USERRA claim for lack of subject matter
jurisdiction. Ziegler v. Kempthorne, 266 F. App'x 505, 506 (8th Cir. 2008). Accordingly,
Plaintiffs veteran status claim will be dismissed without prejudice.
B. Retaliation Claim
Defendant argues that Plaintiff fails to sufficiently allege a retaliation claim because he
does not allege a protected activity. To prevail on a retaliation claim under Title VII, Plaintiff
must prove (1) he engaged in protected activity; (2) he suffered a materially adverse employment
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action; and (3) the materially adverse action was causally connected to his protected activity.
Wright v. St. Vincent Health Sys., 730 F.3d 732, 737 (8th Cir. 2013). "Protected activity is 'an

informal or formal complaint about, or other opposition to, an employer's practice or act ... if
the employee reasonably believes such an act to be in violation of the statute in question."
Petersen v. ProxyMed, Inc., 617 F. Supp. 2d 835, 844 (D.S.D. 2008) (quoting Jeseritz v. Potter,

282 F.3d 542, 548 (8th Cir. 2002)).
Plaintiff identifies the following conversations as his alleged "protected activity": (1) his
conversations with his co-workers regarding the first-level supervisor's "prohibitive personnel
practice" of hiring two of her white female friends from her former place of employment" (Doc.
1 at

~2);

and (2) his conversation with his first-level supervisor regarding the "prohibitive

personnel practice" and the fearful work environment (Id. at ~3). Although Title VII does not bar
nepotism as a basis for hiring individuals, Plaintiff need only demonstrate a good faith,
reasonable belief that the underlying challenged action violated the law. Brannum v. Missouri
Dep't of Corr., 518 F.3d 542, 547 (8th Cir. 2008) ("This court has held that a plaintiff employee

need not establish that the conduct he opposed was in fact prohibited under Title VII to satisfy
the first element. Rather, at least in the opposition clause context, [Plaintiff] must simply prove
[he] had a good faith, reasonable belief that the underlying challenged conduct violated Title
VII.") (internal citations and quotations omitted). In viewing the record in the light most
favorable to this pro se non-moving party, a reasonable inference drawn from Plaintiffs
allegation that the first-level supervisor's hiring of her friends was a "prohibited practice" is that
Plaintiff had a good faith and, perhaps reasonable, belief that this activity was unlawful.
Therefore, especially in consideration of Plaintiff pro se status and the stage of the litigation, the
the Court will deny Defendant's Motion as it relates to Plaintiffs retaliation claim.
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C. Age Discrimination Claim
Defendant asserts that Plaintiffs age discrimination claim should be dismissed because
Plaintiff fails to plead any factually allegations to show that he was terminated based on age or
any facts that he was replaced by someone substantially younger. Pursuant to the Age
Discrimination in Employment Act (ADEA), it is "unlawful for an employer . . . to discharge
any individual or otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. §
623(a)(l ). To establish a prima facie case of age discrimination, Plaintiff is required to show he:
"(1) was at least forty years old, (2) suffered an adverse employment action, (3) was meeting

[his] employer's legitimate expectations at the time of the adverse employment action, and (4)
was replaced by someone substantially younger." Holmes v. Trinity Health, 729 F.3d 817, 822
(8th Cir. 2013) (internal quotations omitted).
Plaintiff checked the ADEA box on the first page of his Employment Discrimination
Complaint. However, the only allegations in the Complaint that relate to a claim of age
discrimination are: (1) his current age and birthdate which indicate that he was 49 years old at
the time of his termination (Doc. 1 at 6) and (2) his EEOC decision, which includes a note that
he alleged discrimination before that body (Doc. 1-1 at 1). Although in response to the Motion to
Dismiss, Plaintiff alleges that he was replaced by a 41-year old (Doc. 6 at 12), this allegation is
not contained in his Complaint and is not alone a sufficient allegation to establish age
discrimination. In addition to alleging that he was replaced by someone substantially younger,
Plaintiff must also allege a causal connection between his age and the adverse employment
action, in this case, his termination. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 171 (2009).
Therefore, the Court will dismiss Plaintiffs discrimination claim on the basis of age but allow
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Plaintiff to file an amended complaint, if he so chooses, to address these deficiencies. However,
Plaintiff is warned that an amended complaint will completely replace the Complaint. Thus,
claims that are not re-alleged in the amended complaint are deemed abandoned, even those the
Court has not herein otherwise dismissed. In re Wireless Telephone Federal Cost Recovery Fees

Litigation, 396 F.3d 922, 928 (8th Cir. 2005).
D. Racial Discrimination Claim
Defendant asserts that Plaintiffs racial discrimination claim should be dismissed because
Plaintiff fails to allege any facts support his claim that similarly situated employees received
better treatment. However, in his reply brief, Defendant states, "While Plaintiffs age
discrimination claim is not plausible, Plaintiffs race discrimination claim differs from his age
discrimination claim in that Plaintiff at least alleged some facts in his Complaint that may
plausibly demonstrate a racial issue based solely on his allegations" (Doc. 10 at 7). Further,
Defendant concludes, "Due to the liberal construction afforded Plaintiff as a pro se litigant, it
appears that Plaintiffs claim of race discrimination is the only claim that may have a chance of
surviving Defendant's motion to dismiss for failure to state a claim" (Doc. 10 at 8). Although
Defendant appears to have conceded his position, the Court will address the Defendant's
argument regarding Plaintiff racial discrimination.
To state a claim for race based discrimination, Plaintiff must sufficiently allege that: "(1)
he is a member of a protected class; (2) he met the legitimate expectations of his employer; (3)
he suffered an adverse employment action; and (4) similarly situated employees that were not
members of the protected class were treated differently." Philip v. Ford Motor Co., 413 F.3d
766, 768 (8th Cir.2005). Defendant does not assert that Plaintiff failed to sufficiently allege the
first three prongs of the standard, thus the Court will only address the fourth prong.
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Plaintiff alleges that Defendant did not terminate two white female co-workers who
created and spread the rumors of the prohibitive personnel practice or two white male co-workers
who were aware of the practice. Further, Plaintiff alleges that his first-level supervisor admitted
before the EEOC administrative judge that one of the white male co-workers was similarly
situated to him. Accordingly, Plaintiff has sufficiently alleged that a similarly situated employee
that was not a member of the protected class, a white male co-worker, was treated differently
from him because the white co-worker was not terminated from his position for similar conduct.
Therefore, the Court finds that Plaintiff has sufficiently alleged a claim of racial discrimination
and the Court will deny Defendant's Motion to Dismiss as it relates to this claim.

IV. Conclusion
Accordingly,
IT IS HEREBY ORDERED that Defendant's Motion to Dismiss (Doc. 3) is
GRANTED, in part. Plaintiffs USERRA claim is hereby dismissed without prejudice for want

of subject matter jurisdiction. Plaintiffs ADEA claim is dismissed without prejudice with leave
for Plaintiff to file an amended complaint within twenty-one (21) days from the date of this
order. Plaintiff is again warned that an amended complaint will completely replace the
Complaint and claims that are not re-alleged in an amended complaint are deemed abandoned.
A separate order of partial dismissal will accompany this memorandum and order.
Dated this 5th day of August, 2015.

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