Walton v. Pennington

Filing 35

MEMORANDUM AND ORDER -...IT IS HEREBY ORDERED that plaintiff Darrie Walton's claims against defendant Adrienne Pennginton under the Equal Pay Act, Title VII, the Americans With Disabilities Act, and the First, Fifth, and Fourteenth Ame ndments of the United States Constitution in Counts I, II, III, IV, and V are DISMISSED for failure to state a claim. IT IS FURTHER ORDERED that the Court declines to exercise supplemental jurisdiction over plaintiff's state law claims i n Counts II, VI and VII, and these claims are DISMISSED without prejudice. IT IS FURTHER ORDERED that plaintiff Darrie Walton's motion for default judgment and "Pro Se Motion to Court for Response to Plaintiff's Default Judgment Submission and/or Demand for Jury Trial" are DENIED. [Docs. 25 and 33] An Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge Charles A. Shaw on 9/14/2016. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DARRIE WALTON,
Plaintiff,
v.
ADRIENNE PENNINGTON,
Defendant.

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No. 4:14-CV-1804-CAS

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff Darrie Walton’s Motion for Default Judgment
Against Defendant. Plaintiff moves that the Court enter judgment in her favor in the amount of
$62,091.00 in damages. For the following reasons, plaintiff’s motion is denied.
I. Background
Plaintiff, who is proceeding pro se, alleges in her “Petition/Motion to Court for Judicial
Review, Award of Punitive and Compensatory Damages” (“Complaint”) that she was a former
part-time employee of Aarin’s Infants and Child Enrichment Center, I LLC (“Aarin’s”).
Plaintiff alleges that defendant Adrienne Pennington is Aarins’s director, owner, operator, and
CEO.

In her Complaint plaintiff pleads the following eight counts against defendant

Pennington:
Count I

Violations of the Equal Pay Act

Count II

Unlawful Employment Discrimination in Violation of Title VII and The
Missouri Human Rights Act

Count III

Retaliation Under Title VII

Count IV

Violation of the Americans with Disabilities Act Codified at 42 U.S.C.
§ 12101 et seq.

Count V

Violations of Plaintiff’s First, Fifth and Fourteenth Amendment Rights

Count VI

Violations of Missouri Department of Health and Senior Services Division
of Regulations and Licensure

Count VII

Tortious Interference with Employment

Count VIII

Plaintiff Demands a Jury Trial

Doc. 1 at 5-17.
At the time she filed her Complaint, plaintiff also filed a notice of intent to use a process
server. Plaintiff, however, did not timely file the return of service. On April 2, 2015, the Court
entered an order pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, directing
plaintiff to show cause why her case should not be dismissed for failure to effect service. Doc.
4. Plaintiff responded to the show cause order, stating that she “invoked service on defendant
Adrienne Pennington on the same day” that she had filed her Complaint. Doc. 5 at 1. Plaintiff
further stated that she had “requested the assistance of the St. Louis County Sheriff’s Office to
deliver the petition with the appropriate summons notification documentation,” and “[t]o the best
of [plaintiff’s] knowledge and understanding of this process, she has been appropriately served.”
Id. Plaintiff attached a copy of the signed and sealed Summons and Proof of Service. Doc. 5,
Attach. 1.
The Summons listed the defendant’s name and address as:
Aarins Infants and Child Enrichment Center I
10136 West Florissant
St. Louis, MO 63136
Id. at 3. In the Proof of Service, which was signed by “Gina Pope” and “Jim Buckles -Sheriff,”
it is indicated that on October 29, 2014, the Summons was served on an individual identified as
“Adrian Pennington,” who was designated to accept service on behalf of “Aarins Infant and
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Child Enrichment Center.” Id. at 4. The return of Proof of Service was dated November 3,
2014. Id.
On April 20, 2015, the Court entered an order directing plaintiff to file a motion for entry
of default by the Clerk of Court. Doc. 9. In the order, the Court noted that defendant Adrienne
Pennington had not filed an answer or other response to plaintiff’s Complaint and the time to do
so had passed. Id. Plaintiff timely filed a document entitled “Motion to File for Entry of
Default,” wherein she requested “entry of default by the clerk of the Court under Federal Rule of
Civil Procedure 55(a)” against the defendant. Doc. 10.
On May 8, 2015, the Clerk of Court filed a Clerk’s Denial of Default, noting that the
record reflected that “service was directed to a business entity rather than to the defendant
personally” and that there was “a discrepancy between the name of the person identified as
having received service and the name of the defendant, thus the defendant was not properly
served.” Doc. 12. It was ordered that “Plaintiff’s Motion for Entry of Clerk’s Default against
Defendant Adrienne Pennington” was denied. Id.
In an order dated May 12, 2015, plaintiff was ordered to effect service upon defendant
Adrienne Pennington not later than June 11, 2015. Doc. 13.

In its order the Court wrote,

“[p]laintiff commenced this action on October 24, 2014, naming Adrienne Pennington as the
defendant in the case. Plaintiff, however, did not obtain proper service on defendant Adrienne
Pennington pursuant to Rule 4(a) and (e) of the Federal Rules of Civil Procedure, because the
summons were directed to Aarins Infants and Child Enrichment Center I, not the individual
defendant.” Id.
On June 10, 2015, plaintiff filed an alias summons returned executed, clearly indicating
that defendant Adrienne Pennington was served on May 27, 2015. Doc. 19. On June 29, 2015,
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plaintiff moved for the entry of Clerk’s default, and on July 15, 2015, the Clerk of Court entered
the default of defendant Adrienne Pennington. Docs. 20 and 21.
II. Legal Standard
“The entry of default judgment should be a ‘rare judicial act.’” Comiskey v. JFTJ Corp.,
989 F.2d 1007, 1009 (8th Cir. 1993) (quoting Edgar v. Slaughter. 548 F.2d 770, 773 (8th Cir.
1977)). Even when a defendant is technically in default and all of the requirements for a default
judgment are satisfied, a plaintiff is not entitled to default judgment as a matter of right. 10
James Wm. Moore, et al., Moore’s Federal Practice § 55.31[1] (3d ed. 2014); see Ackra Direct
Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 856 (8th Cir. 1996) (review of order entering
default judgment is for abuse of discretion). Prior to the entry of a discretionary default
judgment, this Court must satisfy itself that the moving party is entitled to judgment, including
by reviewing the sufficiency of the complaint, and the underlying substantive merits of its claim.
10 Moore’s Federal Practice § 55.31[2].
As the Eighth Circuit has stated: “It is nearly axiomatic that when a default judgment is
entered, facts alleged in the complaint may not be later contested. However, as we stated in
Murray v. Lene, ‘it remains for the [district] court to consider whether the unchallenged facts
constitute a legitimate cause of action, since a party in default does not admit mere conclusions
of law.’” Marshall v. Baggett, 616 F.3d 849, 852 (8th Cir. 2010) (citing Murray v. Lene, 595
F.3d 868, 871 (8th Cir. 2010) (quoting 10A C. Wright, A. Miller & M. Kane, Federal Practice
and Procedure § 2688 at 63 (3d ed. 1998)). The Eighth Circuit cautions that “it is incumbent
upon the district court to ensure that the unchallenged facts constitute a legitimate cause of
action prior to entering final judgment.” Id. at 852-53 (internal quotation omitted).

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III. Discussion
A.

Identity of Defendant

As an initial matter, the Court considers the issue of the defendant’s identity. In her
Complaint, plaintiff named Adrienne Pennington as the sole defendant. Plaintiff captioned her
Complaint “Darrie Walton v. Adrienne Pennington, CEO, Owner” Doc. 1 at 1. At no time did
plaintiff name or express an intent to name Aarin’s as a defendant or to seek relief against that
entity, even when the Court made it abundantly clear that it did not view Aarin’s to be a
defendant in this case. In response to the Court’s Rule 4(m) order, instead of expressing an intent
to name Aarin’s as a defendant, plaintiff merely stated that she had “invoked service on
defendant Adrienne Pennington on the same day” that she filed her Complaint, and she believed
that defendant Pennington had been appropriately served. Doc. 5 at 1. Similarly, when the
Clerk of Court denied plaintiff’s motion for the entry of default on the basis that service was
directed to a business entity rather than to Adrienne Pennington as an individual, plaintiff
expressed no intent to proceed against the business entity, and instead she requested an alias
summons for defendant Adrienne Pennington only. Based upon the foregoing, the Court
concludes that defendant Adrienne Pennington is the only named defendant in this case.
B.

Federal Claims
1.

Count I – Violations of the Equal Pay Act

In Count I of her Complaint, plaintiff alleges that defendant Pennington violated the
Equal Pay Act (“EPA”), 29 U.S.C. §206(d). In support of her claim, plaintiff alleges that
defendant refused to provide her a “Sign In and Sign Out time sheet.” Doc. 1 at 5. She alleges
that sometime in May 2013, “a time sheet was finally inserted into the sign In/Out book for
plaintiff . . . however, from May 2013 until plaintiff’s termination March 13, 2014 Plaintiff had
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to submit many written letters to defendant about the inconsistency of her payroll calculations.”
Id. Plaintiff further alleges that the “wage dollar amount” reported on her 2013 W-2 is
“inconsistent with the honest work hours she provided to defendant’s business.” Id. Plaintiff
states that defendant has failed to forward her final paycheck to her, “which should include
wages for mandatory training conducted by defendant on the official Martin Luther King
holiday.” Id. In her motion for default judgment, plaintiff asserts that she is seeking damages in
the amount of $8,000.00 for violations of the EPA.
The EPA prohibits pay discrimination on the basis of sex. 29 U.S.C. § 206(d). To
establish a prima facie case under the EPA, a plaintiff must show that “women were paid less
than men in the same establishment for equal work requiring equal skill, effort, and
responsibility and performed under similar working conditions.” Price v. Northern States Power
Co., 664 F.3d 1186, 1191 (8th Cir. 2011). Vague, conclusory, and speculative allegations will
not save an EPA claim; a plaintiff must allege facts to support contentions that her employer
violated the EPA. See Frasier v. General Elec. Co., 930 F.2d 1004, 1007–08 (2d Cir. 1991)
(affirming “with no difficulty” the district court’s dismissal under Rule 12(b)(6) of an EPA claim
whose sole allegation was that the plaintiff “was not receiving equal pay for equal work”).
Here, plaintiff fails to allege that she was paid less than men in the same establishment
for equal work requiring equal skill, effort, and responsibility and performed under similar
working conditions. The facts alleged in plaintiff’s Complaint do not constitute a legitimate
claim under the EPA. While the Court is mindful that plaintiff is a pro se litigant, the entry of
default judgment is disfavored, and this Court will not act as counsel for plaintiff or rewrite
Count I of her Complaint to create a sustainable claim. See Giles v. Wal–Mart Dist. Ctr., 359 F.
App’x. 91, 93 (11th Cir. 2009) (“Although pro se pleadings are held to a less strict standard than
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pleadings filed by lawyers and thus are construed liberally, this liberal construction does not give
a court license to serve as de facto counsel for a party, or to rewrite an otherwise deficient
pleading in order to sustain an action”); Hyde v. United States, 85 Fed. Cl. 354, 357 (Fed. Cl. Ct.
2008) (the court has no duty to create claims that are not spelled out in a pro se plaintiff’s
pleading). Plaintiff is not entitled to default judgment in her favor as to her EPA claim, and
Count I will be dismissed. See McCoy v. Carter–Jones Timber Co., 352 F. App’x. 119, 121–22
(8th Cir. 2009) (“Though defendant ... did not file a motion to dismiss, the district court was
within its discretion to sua sponte dismiss claims against her.”); Smith v. Boyd, 945 F.2d 1041,
1043 (8th Cir. 1991) (“We now hold that a district court sua sponte may dismiss a complaint
under Rule 12(b)(6) as long as the dismissal does not precede service of process.”).
2.

Counts II and III – Unlawful Employment Discrimination and
Retaliation in Violation of Title VII1

In Count II of her Complaint, plaintiff alleges defendant Pennington violated Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. More specifically, she alleges that
defendant “unlawfully discriminated against Plaintiff regarding her compensation, terms,
conditions and privileges of employment and wrongfully discharged her based on race, and age.”
Doc. 1 at 7. Plaintiff claims that on March 10 and 12, 2014, upon her “unexpected arrival” at
work, she found a younger white woman working in her area, which was “blatant race
discrimination.” Id. at 7-8. In Count III, plaintiff claims that defendant Pennington retaliated
against her in violation of Title VII. Plaintiff alleges that defendant Pennington’s husband
touched her inappropriately and, sometime thereafter, she retaliated against plaintiff by issuing

In Count II, plaintiff also alleges defendant Pennington violated the Missouri Human
Rights Act. The Court addresses plaintiff’s state law claims below.
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“false write-ups” and eventually firing her. Id. at 10. In both counts plaintiff seeks compensatory
and punitive damages, past and future lost wages, reimbursement for mental anguish and
suffering, reimbursement for medical treatment, and attorneys’ fees.
The Court will first consider whether defendant Pennington was an “employer” within
the meaning of Title VII. Under Title VII, it is unlawful for an employer “to fail or refuse to hire
or to discharge any individual, or otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of such individual’s
race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2 (a)(1). Title VII defines the
term “employer” to mean “a person engaged in an industry affecting commerce who has fifteen
or more employees for each working day in each of twenty or more calendar weeks in the
current or preceding calendar year, and any agent of such a person . . . .” 42 U.S.C. § 2000e (b).2
An “employee” is “an individual employed by an employer . . . .” 42 U.S.C. § 2000e (f).
Plaintiff alleges in her Complaint that she was employed by “Aarin’s Infants and Child
Enrichment Center, I LLC,” not by defendant Pennington. Doc. 1 at 2. This allegation is
supported by the exhibits plaintiff submitted in support of her motion for default judgment, such
as pay stubs and copies of her W-2. Because Aarin’s was plaintiff’s employer, not defendant
Pennington, the Court finds plaintiff has sued the wrong defendant for purposes of Title VII.
Jones v. Pollard-Buckingham, 348 F.3d 1072, 1073 (8th Cir. 2003) (a plaintiff may not proceed
against an individual or entity not named as a defendant).

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The term “person” is defined by the statute to “include one or more individuals, governments,
governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations,
legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations,
trustees, trustees in cases under Title 11, or receivers.” 42 U.S.C. § 2000e(a).
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Plaintiff does allege that defendant Pennington is the “owner” of Aarin’s Infants and
Child Enrichment Center, I LLC. But even if the Court were to find that suing an “owner” of a
limited liability company amounts to suing the company for purposes of Title VII – which the
Court does not – plaintiff has not established a legitimate claim under Title VII because plaintiff
has not alleged that there were fifteen or more employees working at Aarin’s. See Arbaugh v.
Y&H Corp., 546 U.S. 500, 516 (2006) (the “[fifteen-]employee threshold is an element of a
plaintiff’s claim for relief”). The Court will not read into the Complaint factual allegations that
are not there. Plaintiff is not entitled to default judgment against defendant Pennington with
regard to any claims under Title VII because she is not an employer, and these claims will be
dismissed. McCoy, 352 F. App’x. at 121–22; Smith, 945 F.2d at 1043.
3.

Count IV - Americans with Disabilities Act

In Count IV, plaintiff alleges that she suffered injuries while employed by Aarin’s. She
complains that defendant Pennington refused to assist her in the treament of her job-related
injuries, and defendant told her that she was “no longer of any use to her in the job position she
held” because of her injuries. Doc. 1 at 11. Plaintiff asserts that this amounted to disability
discrimination in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101,
et seq. In Count IV plaintiff seeks compensatory and punitive damages, past and future lost
wages, reimbursement for mental anguish and suffering, reimbursement for medical treatment,
and attorneys’ fees.
Plaintiff’s ADA claim fails for the same reason as her claims under Title VII fail –
plaintiff’s Complaint is devoid of necessary factual allegations regarding her employer. The
ADA prohibits “covered entities” from discriminating “against a qualified individual on the
basis of disability in regard to job application procedures, the hiring, advancement, or discharge
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of employees, employee compensation, job training, and other terms, conditions, and privileges
of employment.” 42 U.S.C. § 12112(a). “Covered entity” is defined to mean “an employer,
employment agency, labor organization, or joint labor-management committee.” 42 U.S.C.
§ 12111(2). It is clear from the record that defendant Pennington is not an “employment
agency,” “labor organization,” or “joint labor-management committee.” She also does not meet
the ADA’s definition of “employer.” Like Title VII, the ADA defines “employer” to mean “a
person engaged in an industry affecting commerce who has 15 or more employees for each
working day in each of 20 or more calendar weeks in the current or preceding calendar year, and
any agent of such person . . . .” 42 U.S.C. § 12111(5)(A).3 As discussed above, there are no
allegations in the Complaint that defendant Pennington was plaintiff’s employer, and the
evidence plaintiff submitted in support of default judgment would suggest otherwise. Even if the
Court were to construe the allegations in plaintiff’s Complaint to mean that defendant
Pennington was an agent of Aarin’s, plaintiff still has not alleged facts that constitute a
legitimate cause of action under the ADA, because she had not alleged that Aarin’s had 15 or
more employees. Plaintiff has failed to state a claim under the ADA, and the Court will dismiss
Count IV. McCoy, 352 F. App’x. at 121–22; Smith, 945 F.2d at 1043.
4.

Count V – Violations of Plaintiff’s First, Fifth and Fourteenth
Amendment Rights

In Count V, plaintiff alleges that defendant Pennington violated her First, Fifth and
Fourteenth Amendment rights under the Constitution by abridging her freedom of speech
regarding employment matters, and depriving her of a property interest in her job without due

For purposes of the ADA, the term “person” is defined by 42 U.S.C. § 2000e(a). 42
U.S.C. § 12111(7). See note 1 supra.
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process of law. Rights conferred by the Constitution of the United States may be vindicated by
an action under 42 U.S.C. § 1983. See Wilson v. Spain, 209 F.3d 713, 715 (8th Cir. 2000). The
Court liberally construes Count V of plaintiff’s Complaint as asserting a claim under 42 U.S.C.
§ 1983 based on violations of plaintiff’s First, Fifth, and Fourteenth Amendment rights.
To state a claim under 42 U.S.C. § 1983, a plaintiff must establish two essential
elements: “the violation of a right secured by the Constitution and laws of the United States, and
[she] must show that the alleged deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Plaintiff’s allegations in Count V fail to state
a claim under 42 U.S.C. § 1983 because defendant Pennington is a private citizen, and plaintiff
fails to allege any facts to show that defendant was acting under color of state law. See United
Brotherhood of Carpenters Local 610 v. Scott, 463 U.S. 825, 830–32 (1983) (deprivation of
rights secured by the First Amendment requires state action); Jackson v. Metropolitan Edison
Co., 419 U.S. 345, 95 (1974) (private action is immune from the equal protection restrictions of
the Fourteenth Amendment); Junior Chamber of Commerce of Kansas City, Mo. v. Missouri
State Junior Chamber of Commerce, 508 F.2d 1031, 1033 (8th Cir. 1975) (the Constitution
“‘applies only if the private action complained of is in essence the action of the government’”)
(quoting Junior Chamber of Commerce of Rochester, Inc., Rochester, New York v. U.S. Jaycees,
Tulsa, Oklahoma, 495 F.2d 883, 886 (10th Cir. 1974)). Plaintiff is not entitled to default
judgment in her favor on these constitutional claims, and the Court will dismiss Count V.
McCoy, 352 F. App’x. at 121–22; Smith, 945 F.2d at 1043.
C.

State Law Claims and Jurisdiction

The Court now turns to plaintiff’s state law claims and this Court’s jurisdiction. Plaintiff
is proceeding in this Court on the basis of federal question jurisdiction, not diversity
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jurisdiction.4 There are no allegations in the Complaint regarding defendant Pennington’s place
of citizenship, and in her motion for default judgment, plaintiff seeks $62,091.00 in damages.
As a result, the Complaint does not contain sufficient allegations of jurisdictional facts to
establish the existence of diversity jurisdiction. As for federal question jurisdiction, federal
courts have the power to hear “cases arising under the Constitution, laws, or treaties of the
United States.” 28 U.S.C. § 1331. To constitute a claim “arising under” federal law, the
plaintiff must assert a claim either based on federal law, Louisville & N.R. Co. v. Mottley, 211
U.S. 149, 152 (1908), or based on state law but where the construction of federal law forms an
integral part of the resolution of the state law claim. Franchise Tax Bd. of State of Cal. v.
Constr. Laborers Vacation Trust for S. California, 463 U.S. 1, 9 (1983). Plaintiff attempts to
bring claims under the laws of the United States in Counts I, II, III, IV and V of her Complaint,
but as discussed above, plaintiff fails to state legally valid claims under the EPA, Title VII,
ADA, or the Constitution, and these claims are dismissed.
Plaintiff’s remaining claims arise under Missouri law. In Count II, plaintiff alleges
defendant Pennington discriminated against her in violation of the Missouri Human Rights Act;
in Count VI, she alleges violations of “Missouri Department of Health and Senior Services
Division of Regulations and Licensure”; and in Count VII, she alleges defendant Pennington

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A federal court may exercise diversity jurisdiction over a case involving questions purely of
state law where all plaintiffs in the suit hail from a different state than all defendants in the suit, and
the amount in controversy is greater than $75,000.00. 28 U.S.C. § 1332; Wisconsin Dep’t of
Corrections v. Schact, 524 U.S. 381, 388 (1998).
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tortiously interfered with plaintiff’s employment at Aarin’s – a state common law tort.5 None of
the remaining claims implicate federal law.
Under 28 U.S.C. § 1367(a), a federal court has supplemental jurisdiction “over all other
claims that are so related to claims in the action within such original jurisdiction that they form
part of the same case or controversy under Article III of the United States Constitution.” 28
U.S.C. § 1367(a). That said, it is within the discretionary authority of this Court to decline to
exercise supplemental jurisdiction over state law claims once the Court has dismissed “all claims
over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3); see Reeve v. Oliver, 41 F.3d
381, 383 (8th Cir. 1994) (per curiam); McLaurin v. Prater, 30 F.3d 982, 984-85 (8th Cir. 1994).
Here, the Court finds plaintiff has not stated legally valid claims under the EPA, Title VII, ADA
and Constitution. The only remaining claims in the Complaint are Missouri state law claims.
The Court, therefore, in its discretion declines to exercise supplemental jurisdiction over these
state law claims, and they are dismissed without prejudice.
IV. Conclusion
Plaintiff moves for the entry of default judgment against defendant Adrienne Pennington.
Plaintiff, however, is not entitled to default judgment. Plaintiff has failed to alleged facts that
constitute legitimate causes of action under the EPA, Title VII, ADA and Constitution. These
federal claims are dismissed. The remaining claims arise under Missouri law, and the Court
declines to exercise supplemental jurisdiction over these state law claims.

On page 17 of her Complaint, plaintiff labels Count VIII “Plaintiff Demands a Jury
Trial.” A jury demand does not stand alone as a claim.
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Accordingly,
IT IS HEREBY ORDERED that plaintiff Darrie Walton’s claims against defendant
Adrienne Pennginton under the Equal Pay Act, Title VII, the Americans With Disabilities Act,
and the First, Fifth, and Fourteenth Amendments of the United States Constitution in Counts I,
II, III, IV, and V are DISMISSED for failure to state a claim.
IT IS FURTHER ORDERED that the Court declines to exercise supplemental
jurisdiction over plaintiff’s state law claims in Counts II, VI and VII, and these claims are
DISMISSED without prejudice.
IT IS FURTHER ORDERED that plaintiff Darrie Walton’s motion for default
judgment and “Pro Se Motion to Court for Response to Plaintiff’s Default Judgment Submission
and/or Demand for Jury Trial” are DENIED. [Docs. 25 and 33]
An Order of Dismissal will accompany this Memorandum and Order.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this

14th

day of September, 2016.

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