Smith v. Grifols USA, LLC

Filing 49

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendant Grifols USA, LLC's Motion to Dismiss Plaintiff's Amended Complaint, and/or to Strike Certain Allegations [ECF No. 26] is GRANTED, in part, and DENIED, in part. IT IS FURTHER ORDER ED that Defendant Grifols, Inc.s Motion to Dismiss Plaintiff's Amended Complaint and/or to Strike Certain Allegations [ECF No. 31] is GRANTED, in part, and DENIED, in part. IT IS FURTHER ORDERED that Plaintiff's Request to Strike Statutory Reference to 42 U.S.C. § 1981 from Pleading [ECF No. 37] is GRANTED. Signed by District Judge E. Richard Webber on March 8, 2016. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JENNA SMITH,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
GRIFOLS USA, LLC, et al.,
Defendants.

No. 4:15CV00431 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Defendant Grifols USA, LLC’s Motion to Dismiss
Plaintiff’s Amended Complaint, and/or to Strike Certain Allegations [ECF No. 26], and
Defendant Grifols, Inc.’s Motion to Dismiss Plaintiff’s Amended Complaint and/or to Strike
Certain Allegations [ECF No. 31].
I.

BACKGROUND
Plaintiff Jenna Smith (“Plaintiff”) initiated this lawsuit by filing a petition in the Circuit

Court of St. Louis County, Missouri on January 26, 2015, claiming gender discrimination and
termination based on gender under the Missouri Human Rights Act (“MHRA”), against
Defendant Grifols USA, LLC (“GUSA”). On January 29, 2015, Plaintiff filed an amended
petition asserting similar MHRA claims. On March 9, 2015, GUSA removed the action to the
United States District Court for the Eastern District of Missouri. On July 22, 2015, Plaintiff filed
an Amended Complaint asserting claims pursuant to Title VII, 42 U.S.C. § 2000e et seq, adding
Grifols Shared Services North America, Inc. (“GSSNA”)1, and Grifols Therapeutics Inc.
(“GTI”)2 as Defendants. On September 1, 2015, GUSA filed their pending Motion to Dismiss

1
2

Improperly identified in Plaintiff’s complaint as Grifols, Inc.
Improperly identified in Plaintiff’s complaint as Grifols Therapeutics, Inc.

1

for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil
Procedure (“FRCP”) 12(b)(6). On September 28, 2015, GSSNA and GTI also filed a motion to
dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of
Civil Procedure (“FRCP”) 12(b)(6). For the purposes of these Motions, the Court accepts as true
the following facts alleged in Plaintiff’s complaint. Great Rivers Habitat Alliance v. Fed.
Emergency Mgmt. Agency, 615 F.3d 958, 988 (8th Cir. 2010).
Plaintiff started working as a medical sales representative for Defendants on August 17,
2009. Defendants are affiliates of Grifols, S.A., a Spain-based company which sells
pharmaceutical-related products. Among other activities, GSSNA provides support services for
the collection, manufacture, and distribution of plasma related products, GUSA sells plasma
related products, and GTI manufactures plasma related products.
In 2009, Plaintiff was subjected to intimidation, ridicule, and insults by supervisory
employees. These actions included shouting at Plaintiff, calling Plaintiff’s suggestions stupid
and dismissing these suggestions, but accepting the same suggestions from male employees,
writing up Plaintiff but not male employees for the same alleged improper activity, singling out
Plaintiff at sales meetings to ridicule, insult, or intimidate Plaintiff, and making sexually
suggestive comments to Plaintiff.
In 2010, similar behavior continued. Plaintiff’s supervisors singled out and degraded
Plaintiff and other female employees but not male employees, publicly demeaned Plaintiff and
other female employees’ work product but not male employees, made sexually related comments
regarding Plaintiff’s clothing, the size of Plaintiff’s breasts, and that Plaintiff’s sales success was
due to the size of Plaintiff’s breasts.

2

In 2011, the behavior exhibited in 2009, and 2010, continued. In 2012, Plaintiff’s
supervisor shouted at Plaintiff in public, physically grabbed Plaintiff’s arm causing Plaintiff to
cry in front of her coworkers, denounced single moms, and refused to make reasonable
accommodations for single parents. In 2013, Plaintiff’s supervisors made sexual innuendos
about Plaintiff, had females, but not males, dress up as sports team mascots, accused Plaintiff of
improper conduct, failed to pay Plaintiff bonuses, and falsified Plaintiff’s documents.
In 2014, Plaintiff’s supervisors singled out Plaintiff during a company meeting, accused
her of improper behavior, and accused her of falsifying documents. Defendants terminated
Plaintiff on February 6, 2014. However, Defendants did not tell Plaintiff of the termination or
the reasons until after February 6, 2014, failed to pay Plaintiff bonuses, and did not provide
Plaintiff’s final paycheck until 2015. Throughout the term of employment, Defendant did not
provide Plaintiff with customer leads regarding customers in Plaintiff’s territory, took customers
in Plaintiff’s territory away from Plaintiff, assigned these customers to other sales representatives
outside of Plaintiff’s territory, failed to promote or advance Plaintiff, promoted or advanced less
qualified male employees, and required Plaintiff to provide sales documentation Defendants did
not require from male employees. During this time, Plaintiff continuously complained to
supervisory employees who were removed from the questioned conduct towards Plaintiff and to
Defendants’ human resources department about her concerns of being subjected to a hostile work
environment, gender discrimination, and disparate treatment by supervisory employees.
Defendants took no action to address or stop the conduct in question.
In October 2013, Plaintiff filed a Charge of Discrimination with the Missouri
Commission on Human Rights (“MCHR”) and the Equal Employment Opportunity Commission

3

(“EEOC”).3 “Grifols Therapeutics Inc. Bio-HQ” was listed as the employer. In this charge,
Plaintiff indicated she was discriminated based on race and sex from August 1, 2009, until
August 1, 2013. Plaintiff alleged her direct supervisor, Jeff Bourgeois, subjected Plaintiff to
intimidation, harassment, and sexual harassment. Specifically, Plaintiff alleged she met and
exceeded goals yet received lower evaluations than males who did not meet goals, she had to
work while on vacation in March 2013, information was withheld from her regarding a referral
in 2013, Bourgeois gave assignments to males to promote their careers, in February 2013, males
were named as trainers over her and other women who performed just as well or better, she was
yelled at and spoken to in a derogatory matter, Bourgeois spoke about her to others in a
derogatory manner, and finally, she complained to human resources but no action was taken.
The charge attached to Plaintiff’s complaint is not signed, nor is it dated.
In December 2013, Plaintiff filed a similar Charge with the MCHR and the EEOC.4 This
Charge lists the same employer and essentially the same allegations. However, this Charge also
claims Bourgeois retaliated against Plaintiff because of Plaintiff’s complaints about the work
environment. This charge is signed but not dated. On October 24, 2014, the EEOC issued a
Notice of Right to Sue for Charge Number 560-2014-00075, which is the charge number for both
the October and December charge.5
The current Amended Complaint asserts three counts against GUSA, GSSNA, and GTI.6
In Count I, Plaintiff asserts Defendants discriminated against Plaintiff based on gender. In Count
II, Plaintiff asserts Defendants retaliated against Plaintiff for her complaints. In Count III,
3

In her reply, Plaintiff states Plaintiff’s October Charge of Discrimination was filed with the EEOC and she
requested dual filing with the MCHR. It is unknown to Plaintiff whether the Charge was actually dual filed with the
MCHR.
4
In Plaintiff’s reply to Grifols USA, LLC’s Motion to Dismiss, Plaintiff states she filed the December Charge of
Discrimination with the MCHR and delivery of the charge to the EEOC was confirmed by a coversheet for the
charge sent by a paralegal from Cantor & Burger, LLC, dated January 24, 2014.
5
It is unknown when Plaintiff received this Notice of Right to Sue.
6
All claims against GTI have been voluntarily dismissed by Plaintiff.

4

Plaintiff asserts Defendants maintained a hostile work environment. Defendants now seek to
dismiss Plaintiff’s 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

5

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
Defendants assert each count should be dismissed for failure to exhaust administrative

remedies, failure to plead facts sufficient to state a claim for relief, and because the claims are
time-barred by the statute of limitations.
A.

Statute of Limitations for Title VII

Defendants assert two arguments in support of their assertion Plaintiff has not met the
statute of limitations. First, Defendants assert Plaintiff did not file her suit within ninety days of
receiving notice of a right to sue from the EEOC. Second, Defendants argue certain
discriminatory acts alleged are time barred because Plaintiff did not file a charge with the EEOC
or MCHR within either 180 days or 300 days of when the discriminatory act occurred.
1. Filing Suit in Court
Title VII has strict time requirements for filing a suit. Once the EEOC notifies a
complainant of her right to sue, the complainant has ninety days to bring a civil action. 42
U.S.C. § 2000e-5(f)(1); see also Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 851 (8th Cir.
2012). The ninety days begins on the date the complainant receives notice from the EEOC.
Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir. 1994). Defendants assert
all of Plaintiff’s Title VII claims, and specifically Plaintiff’s retaliation claim, are time-barred
against all Defendants because these claims were first asserted in Plaintiff’s Amended
Complaint, which was filed well after the allowed ninety-day period. Additionally, GSSNA

6

argues any claims against it are time-barred because it was first added as a defendant in
Plaintiff’s Amended Complaint.
It is unknown when Plaintiff received her Notice of Right to Sue. The letter, attached to
Plaintiff’s Amended Complaint, states it was mailed on October 24, 2014. The presumed date of
Plaintiff’s receipt of the notice is three days after its mailing. Rich v. Bob Downes Chrysler
Plymouth, Inc., 831 F.Supp. 733, 735 (E.D. Mo. 1993) (citing Ballwin Cty. Welcome Ctr. V.
Brown, 466 U.S. 147, 148 n.1 (1984)). Ninety days from the presumed date of receipt, October
27, 2014, is January 25, 2015. This was a Sunday; thus, Plaintiff’s suit must have been filed by
January 26, 2015. See Fed. R. Civ. Pro. 6(a)(1)(c). Plaintiff’s first petition, in state court, was
filed on January 26, 2015. This petition only asserted claims pursuant to the MHRA and did not
assert any Title VII claims. Because Plaintiff’s claims in her Amended Complaint are pursuant
to Title VII and not the MHRA, the issue is what claims, if any, asserted in Plaintiff’s Amended
Complaint relate back to Plaintiff’s state court petition as to be considered timely filed.
An amendment to a pleading relates back to the date of the original pleading when the
amendment “asserts a claim or defense that arose out of the conduct, transaction, or occurrence
set out – or attempted to be set out – in the original pleading.” Fed. R. Civ. Pro. 15(c)(1)(B).7
Relation back of amendments “relaxes, but does not obliterate, the statute of limitations.” Mayle
v. Felix, 545 U.S. 644, 659 (2005). A “common core of operative facts” between the original
and new claims must exist. Id.
In Mayle v. Felix, the Supreme Court, in determining the scope of Rule 15, analyzed
several cases from various circuits that had appropriately applied Rule 15. Id. at 657-58. In
cases where the legal theory changed, but the incident or occurrence which was the basis of the

7

FRCP 81 provides, in actions removed to federal court, the FRCP apply after removal. The Court will apply the
federal rules of relation back because it concerns the Amended Federal Complaint.

7

lawsuit did not, relation back was allowed. Id. The well-pleaded facts, not the legal theories or
legal conclusions, are what determine if Rule 15 is satisfied. Maegdlin v. Int’l Ass’n of
Machinists & Aerospace Workers, Dist. 949, 309 F.3d 1051, 1053 (8th Cir. 2002). Relation back
will be allowed where the defendant is given fair notice of the general fact situation a plaintiff is
pursuing. Glover v. Fed. Deposit Ins. Corp., 698 F.3d 139, 146 (3d Cir. 2012). “[A]mendments
that significantly alter the nature of a proceeding by injecting new and unanticipated claims are
treated far more cautiously.” Id.
For the purposes of relation back, it does not matter that Plaintiff pled her claims pursuant
to the MHRA in her first petition and has pled her claims pursuant to Title VII in her Amended
Complaint. It is the facts underlying each claim which determine if relation back applies. See
Thompson v. IP Network Sol., Inc., No. 4:14CV1239 RLW, 2014 WL 5761127 (E.D. Mo. 2014)
(Relation-back was permitted where Plaintiff filed state court petition asserting MHRA claims
and after removal to federal court, amended her petition to include Title VII claims). The Court
has listed the allegations pled in Plaintiff’s Amended Complaint supra. The following are the
facts as alleged in Plaintiff’s first state court petition.
Plaintiff became employed by GUSA on August 17, 2009, as a medical sales
representative. In exchange for Plaintiff’s services, GUSA paid Plaintiff a base salary and
quarterly bonuses based on Plaintiff’s sales results. Plaintiff qualified for and should have
received a bonus for the fourth quarter of 2013 and the first quarter of 2014, but she was not paid
a bonus. Plaintiff was terminated in December 2014. During Plaintiff’s employment, she was
subject to discriminatory remarks, conduct, and actions by Defendant. Plaintiff filed a charge of
gender discrimination with the MCHR. Plaintiff attached two documents to her original petition.
The first is a letter from the EEOC which stated Plaintiff had made a charge under Title VII and

8

included information for Plaintiff as to the next steps that were going to be taken in the process.
The second document was the notice of right to sue letter from the EEOC. Although Plaintiff
claims in her original petition she received a right to sue letter from the MHRA, no such letter
was attached to the petition. Plaintiff also references in her original petition the charge she filed
with the MHRA which also was not attached to the original petition.
If Plaintiff’s facts in her original petition are similar to the facts in the Amended
Complaint, then Defendants had notice of the underlying Title VII claims. See Bradley v.
Commerce Bank, N.A., No. 09-1084-CV-W-FJG, 2010 WL 1994707 at *6 (W.D. Mo. May 14,
2010) (citing Baker v. John Morrell & Co., 266 F.Supp.2d 909, 929 n.3 (N.D. Iowa 2003)). The
problem in the present case is the original state court petition lacks any specificity. There are no
facts identifying what discriminatory behavior is at issue in the lawsuit. The petition references a
MHRA charge, but it is not attached. The Court has no way of determining if the current
Amended Complaint relates back to the original petition because the original petition included
no allegations of any discriminatory conduct.
This result seems harsh particularly when it is clear Plaintiff realized her mistake in not
attaching the EEOC charge to her original petition. Plaintiff referenced the EEOC charge in her
original petition, and within three days she filed an amended petition attaching the EEOC
charge.8 FRCP Rule 15(c) states relation back of an amendment is allowed when “the
amendment asserts a claim or defense that arouse out of the conduct, transaction, or occurrence
set out – or attempted to be set out – in the original pleading.” It is evident Plaintiff attempted to
set out a claim based on the conduct contained in the EEOC charge in her original petition.
Therefore, the Court shall determine whether the facts in Plaintiff’s Amended Complaint relate

8

Plaintiff filed her original petition on January 26, 2015, and her amended petition on January 29, 2015.

9

back to the facts contained in the EEOC charge which was intended to be attached to the original
petition.
The Eighth Circuit has stated the purpose of Rule 15(c) is “to permit cases to be decided
on their merits . . . and it has been liberally construed.” Alpern v. UtiliCorp United, Inc., 84 F.3d
1525, 1543 (8th Cir. 1996). Plaintiff’s Amended Complaint is an expansion of the facts included
in her original petition. She originally alleged she suffered gender discrimination in the form of
intimidation, harassment, derogatory remarks, and failure to promote. All of the new allegations
in Plaintiff’s Amended Complaint will relate back to the original petition except for the
following: Plaintiff’s allegations single moms were denounced and Defendants refused to
accommodate single parents, and Plaintiff’s documents were falsified and she was accused of
falsifying document. These allegations do not appear to the Court to relate in any way to the
discrimination originally alleged by Plaintiff. The connection between these events and the
original conduct is too far attenuated to allow relation back. The Court must also dismiss Count
II, Retaliation, for failure to be timely filed because it cannot relate back to the original petition.
Retaliation claims cannot relate back to discrimination claims which contain no suggestion of
retaliatory conduct. Maegdlin, 309 F.3d at 1053. Plaintiff’s original petition and EEOC charge
do not suggest retaliatory conduct. Therefore, Count II for Retaliation must be dismissed.
Next, Defendant GSSNA asserts Plaintiff’s suit is time barred as to GSSNA because it
was not included as a defendant within the ninety days allowed by Title VII. Plaintiff asserts
Defendant GSSNA had sufficient notice of the lawsuit and an opportunity for conciliation
through the EEOC because GSSNA wholly owns GUSA. Further, Plaintiff claims the EEOC
mishandled the identity of GSSNA on the charge, not Plaintiff. Lastly, Plaintiff argues equitable
estoppel should be applied because GSSNA misled the MHRA as to the number of employees

10

GSSNA employed; therefore, the Court should use the EEOC filing date of January 24, 2015.
Plaintiff appears to be confusing the statute of limitations argument with a failure to exhaust
administrative remedies argument. Whether the EEOC included the proper party on the charge
is not relevant to whether Plaintiff complied with the statute of limitations for filing suit against a
party. The focus for relation back is on whether Defendant GSSNA received notice of the suit,
and if it knew or should have known of the action but did not because of a mistake concerning
the proper party’s identity.
The statute of limitations defense is an affirmative defense which must be plead and
proved by a defendant. Goodman v. Praxair, Inc., 494 F.3d 458, 465-66 (4th Cir. 2007). A
plaintiff is not required to plead facts in her complaint that might be responsive to an affirmative
defense. Id. at 466. Therefore, only if the face of the complaint alleges facts “sufficiently clear
to conclude that the statute of limitations had run,” should a court dismiss the complaint under
Rule 12(b)(6). Id. This applies equally when a court is applying Rule 15(c) to determine if an
amended complaint relates back to the filing of the original pleading. Lindley v. City of
Birmingham, Ala., 515 Fed. App’x 813, 816 (11th Cir. 2013) (“Nothing ‘on the face of the
complaint’ demonstrated that the complaint was filed at a date too late to have the potential to
relate back.”). The Court must determine if, analyzing the face of the complaint, beyond a
doubt, no set of facts can be proven to toll the statute. Id.
Rule 15(c)(1)(C) has three requirements for relation back to apply when a party has
changed or added a party to a pleading: (1) the claim must arise out of the conduct, transaction ,
or occurrence set out, or attempted to be set out, in the original pleading, (2) the new party must
have received notice of the action within the time period allowed by FRCP 4(m) so as not to be
prejudiced in its defense, and (3) the new party knew or should have known the action would

11

have been brought against it, but for a mistake concerning its identity. Morel v. Daimlerchrysler
AG, 565 F.3d 20, 26 (1st Cir. 2009) (citing FRCP 15(c)(1)(C)). The Court has already
determined the first condition of Rule 15(c)(1)(C) has been satisfied. As to the remaining
requirements, the allegations in Plaintiff’s complaint do not preclude the possibility she can meet
the requirements for relation back.9 She has alleged facts to suggest Defendants have some
relation to one another so as to allow for notice of the suit and knowledge of a mistake
concerning its identity. The Court will deny this portion of Defendant GSSNA’s Motion to
Dismiss at this stage of the litigation, without prejudice to its right to reassert the argument on
summary judgment.
2. Filing Charges with the EEOC or MCHR
Defendants argue Plaintiff’s claims as to specific instances of discrimination are time
barred because they were not filed within 180 or 300 days of the date of the incident. According
to Defendants, all incidents in 2009, 2010, 2011, and part of 2012 must be dismissed because
they were untimely. Plaintiff asserts she filed a charge on the instances of discrimination at issue
within the required time period and the hostile work environment claim encompasses all acts
between August 2009 and February 2014.
Before addressing the parties’ arguments, the Court will address Plaintiff’s reference to a
September 2013 letter she wrote to the EEOC, a notice of charge of discrimination she received
from the EEOC, her intake questionnaire, and a fax cover sheet. None of these documents are
attached or included in the Amended Complaint; therefore, the Court cannot consider these
documents in making a decision. See Stuckstede v. NJVC LLC, No. 4:09CV00663JCH, 2009
WL 2231674 at *3 (E.D. Mo. Jul. 24, 2009) (refusing to consider intake questionnaire attached
9

Plaintiff asserts there is sufficient identity of interest between Defendants as to satisfy the requirements of relation
back. However, Plaintiff makes her argument by including facts and attaching documents not included in the
Amended Federal Complaint. Therefore, the Court cannot consider these facts at this stage of the litigation.

12

to response to motion to dismiss because it was not included or attached to the complaint.). Only
the facts alleged in the complaint and materials attached to the complaint as exhibits may be
considered in construing the sufficiency of a complaint. Morton v. Becker, 793 F.2d 185, 187
(8th Cir. 1986).
Title VII requires a plaintiff file a charge with the EEOC either 180 or 300 days after the
alleged unlawful employment practice has occurred. Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 104-05 (2002). A plaintiff is permitted to file a charge with the EEOC within 300
days, if she has initially instituted proceedings with a state or local agency with authority to
address the situation. 42 U.S.C. § 2000e-5(e)(1). Plaintiff’s Amended Complaint states she filed
a charge with the MCHR and EEOC in October 2013. The charge she references, and attaches to
her Amended Complaint, is an EEOC form for filing a charge which states “I want this charge
filed with both the EEOC and the State or local Agency, if any. Because Plaintiff dual filed a
charge with the EEOC and MCHR, 300-day limitation will apply. Mohasco Corp v. Silver, 447
U.S. 807, 815-17 (1980).
Plaintiff’s Amended Complaint does not include a specific date as to when her EEOC
charge was filed. She alleges it was filed in October 2013. Applying the 300 day limitation, all
allegations included in her Amended Complaint prior to December 2012 must be dismissed as
untimely. Plaintiff argues the date of her first charge should relate back to a letter she sent in
September 2013 to the EEOC. However, as discussed supra, this letter was not included in the
Amended Complaint and cannot be considered by the Court. Plaintiff further asserts all of her
allegations should be considered timely because they constitute an ongoing hostile work
environment claim.

13

The United States Supreme Court held Title VII precludes recovery for discrete acts of
discrimination which occur outside of the statute of limitations. Although a discrete
discriminatory act is not actionable if untimely, even if it is related to other timely filed charges,
the statute does not bar an employee from using prior acts as background evidence. Id. at 113.
Discrete acts include “termination, failure to promote, denial of transfer, or refusal to hire.” Id.
at 114. However, acts outside of the statutory time period are permissible for assessing liability
for a hostile work environment claim as long as one act contributing to the hostile environment is
timely. Nat’l R.R. Passenger Corp., 536 U.S. at 105. Hostile work environment claims occur
over a series of days or years and are based on the “cumulative effect of individual acts.” Id. at
115.
Plaintiff includes allegations from 2009 to 2014, but the allegations at issue are those
from 2009 to 2011.10 The following incidents from 2009 to 2011, as alleged in Plaintiff’s
Amended Complaint, will be considered part of Plaintiff’s hostile work environment claim:11
Plaintiff was the target of shouting; she was exposed to conduct designed to intimidate female
employees but not male employees; her suggestions were called stupid and dismissed while the
same suggestions from male employees were accepted; she was singled out at sales meetings and
was ridiculed, insulted, and intimidated; sexually suggestive comments were made about her;
Plaintiff’s work product and efforts, along with other female employees’ work product and
efforts, was demeaned publicly while male employees were not subjected to the same conduct; a
supervisor shouted at Plaintiff in public and physically grabbed her harm causing her to cry in
front of co-workers; and comments were made about Plaintiff’s clothing, the size of her breasts,

10

Some of the acts in 2012 may also be untimely, but the complaint does not give specific dates for the
discriminatory incidents. On the face of the complaint, the actions which are listed for 2012 may be timely as there
are no facts to foreclose timeliness. Therefore, the Court will consider them timely at this stage of the litigation.
11
The Court will address Defendants’ argument Plaintiff has failed to state a hostile environment claim infra.

14

and that her sales success was due to the size of her breasts. These allegations relate to and are
part of the same hostile work environment claim as the following allegations, which occurred in
2012 to 2014: a supervisor shouted at Plaintiff in public and physically grabbed her arm causing
her to cry, sexual innuendos were made about Plaintiff, females were forced to dress up as a
sports team mascot while males were not, and she was accused of improper conduct. Because
some of the allegations are timely, and the untimely allegations relate to the timely allegations,
all of these allegations are actionable and may be used to form a claim for liability for a hostile
work environment. See Nat’l R.R. Passenger Corp., 536 U.S. at 120 (finding plaintiff’s claim
which included incidents involving racial jokes, racially derogatory acts, negative comments
about blacks, and racial epithets were actionable as part of the same hostile work environment
claim). The only remaining untimely allegation is Plaintiff’s allegation she was written up while
male employees involved in the same alleged improper activity were not. This is a discrete
discriminatory act. Because this incident occurred in 2009, well outside of the 300 day
limitation, it is not actionable and will be dismissed.
B.

Failure to Exhaust Administrative Remedies

The next issue Defendants raise in their Motions to Dismiss is Plaintiff’s failure to
exhaust administrative requirements as to several allegations contained in Plaintiff’s Amended
Complaint. Defendants assert all discriminatory acts which occurred after December 2013,
certain acts before December 2013, and any claims against Defendant GSSNA must be
dismissed for failure to exhaust because they were not included in any charge.
Title VII requires a plaintiff to exhaust her administrative remedies prior to filing suit
because it allows the EEOC the opportunity to investigate, obtain voluntary compliance, and
promote conciliatory efforts. Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th

15

Cir. 1994). “To exhaust administrative remedies an individual must: (1) timely file a charge of
discrimination with the EEOC setting forth the facts and nature of the charge . . .” Id.
“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.” Id. An employee may not assert allegations that go beyond
those reasonably expected to grow out of the charge of discrimination. Brooks v. Midwest Heart
Group, 655 F.3d 796, 801 (8th Cir. 2011). Failure to exhaust administrative remedies is an
affirmative defense a defendant must prove. Miles v. Bellfontaine Habilitation Center, 481 F.3d
1106, 1107 (8th Cir. 2007). Similarly, to determining if an act was timely, discrete acts must
have been included in a charge to be exhausted. Bass v. Univ. of Ark. at Pine Bluff, No. 5:12CV-00286-KGB, 2014 WL 4630459 *13 (E.D. Ark. Sept. 16, 2014) (citing Nat’l RR Passenger
Corp. v. Morgan, 536 U.S. 101, 110-115 (2002)).
For Plaintiff’s allegations of discriminatory conduct that occurred prior to 2012, Plaintiff
has exhausted her administrative remedies because they were included in her charges, are part of
her hostile work environment claim, or are reasonably related to the acts she included in her two
charges. The following discrete acts which are alleged to have occurred from 2012 to 2014,
must be dismissed for failure to exhaust because they were not included in a charge: failure to
pay Plaintiff bonuses, termination, failure to provide a final paycheck until 2015, taking
customers away and assigning them to sales representatives in other territories, and failing to
promote Plaintiff in 2014. The remaining allegations from 2012 to 2014 are either contained in a
charge or reasonably related to allegations contained in a charge so as to go forward at this stage
of litigation.

16

Defendants’ remaining argument is any claims against Defendant GSSNA must be
dismissed because Defendant GSSNA was not named in any charge. A plaintiff must file a
charge against a defendant with the EEOC before she can sue under Title VII. Sedlacek v. Hach,
752 F.2d 333, 336 (8th Cir. 1985). An exception is when there is a substantial identity between
the parties before the EEOC and before the court. Id. To determine if parties have substantial
identity so as to constitute a single employer under Title VII, courts consider the following: “(1)
interrelation of operations; (2) common management; (3) centralized control of labor relations;
and (4) common ownership or financial control.” Wickenhauser v. Edward D. Jones & Co., 953
F. Supp. 286, 289 (E.D. Mo. 1996) (citing Baker v. Stuart Broad. Co., 560 F.2d 389, 392 (8th
Cir. 1977)). Although the Court is unable to determine with the facts before it whether
Defendants do constitute a single employer, Plaintiff has alleged sufficient facts they are a single
employer to survive a motion to dismiss. Plaintiff has included allegations Defendants are
affiliates, related entities, subsidiaries and are owned or operated by Grifols, S.A. and that the
entities all sell plasma derivatives and related products. “A claim may not be dismissed under
Rule 12(b)(6) or Rule 56 where questions of material fact exist as to the timeliness of the
complainant’s efforts to exhaust it.” Brooks, 655 F.3d at 800. Any doubt must be resolved in
Plaintiff’s favor. Williams v. Target Stores, 479 Fed. App’x 26, 28 (8th Cir. 2012). The Court
will not dismiss for failure to exhaust at this stage of the litigation.
C.

Failure to Plead Sufficient Facts to State a Claim for Relief

Defendants’ last argument is Plaintiff has failed to plead sufficient facts to state a claim
for relief. According to Defendants, Plaintiff’s Amended Complaint contains no information as
to which acts relate to which charges or to which claims are being asserted against each
defendant. Additionally, Defendants argue Plaintiff has asserted her hostile work environment

17

claim pursuant to 42 U.S.C. § 1981 which allows claims only for race discrimination.
Defendants also assert Plaintiff’s allegations do not establish the harassment was severe and
pervasive enough to alter the terms or conditions of Plaintiff’s employment as required by Title
VII.
A complaint must “simply give the defendant fair notice of what the plaintiff’s claim is
and the grounds upon which it rests.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).
Plaintiff’s Amended Complaint gives Defendants fair notice of Plaintiff’s claims and the grounds
upon which they rest. She is asserting three claims, all of which involve discrimination based on
gender. There are two remaining defendants, whose relationship to one another is unclear
without further discovery. Plaintiff’s claims asserted against both Defendants are not so vague
or numerous so as to fail to state a claim. The Court will not dismiss Plaintiff’s claims on the
basis she did not adequately link her allegations or claims to specific defendants.
Further, the Court will also not dismiss Plaintiff’s hostile work environment claim.
Although Plaintiff incorrectly pled her claim under 42 U.S.C. § 1981, which only allows for
claims of race discrimination, it is not fatal to her hostile environment claim. “A complaint
should not be dismissed merely because a plaintiff’s allegations do not support the particular
legal theory [s]he advances, for the court is under a duty to examine the complaint and determine
if the allegations provide for relief on any possible theory.” Ailshire v. Darnell, 508 F.2d 526,
528 (8th Cir. 1974) (quoting Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1974)). Plaintiff’s
claim will be allowed to proceed as a hostile work environment claim pursuant to Title VII.12
To establish a claim for a hostile work environment, Plaintiff must include allegations
showing “(1) [she] belongs to a protected group, (2) [she] was subjected to unwelcome
12

Plaintiff has filed a Request to Strike Statutory Reference from Pleading [ECF No. 37] which asks the Court to
strike any reference to 42 U.S.C. § 1981 in her Amended Complaint. Pursuant to the Court’s decision to allow
Plaintiff’s hostile work environment claim to proceed under Title VII, Plaintiff’s Request to Strike will be granted.

18

harassment based on [] sex, (3) the harassment affected a term, condition, or privilege of [her]
employment; (4) [her] employer knew or should have known of the harassment; and (5) the
employer failed to take proper action.” Rickard v. Swedish Match N. Am., Inc., 773 F.3d 181,
184 (8th Cir. 2014) (quoting Devin v. Schwan’s Home Serv., Inc., 491 F.3d 778, 788 (8th Cir.
2007)). Sex-based harassment can be established by showing the acts at issue “were motivated
by sexual desire,” the employer had a general hostility towards females, or similarly situated
individuals were treated more favorably. Id. at 185. The conduct at issue must be “sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
Plaintiff has included sufficient allegations in her Amended Complaint as to plead a
claim for hostile work environment. Shouting at female employees, making comments about
Plaintiff’s breasts and that her sales success is due to the size of her breasts is severe and
pervasive enough to survive a motion to dismiss. The Court will not dismiss Plaintiff’s claims
on this basis.

19

Accordingly,
IT IS HEREBY ORDERED that Defendant Grifols USA, LLC’s Motion to Dismiss
Plaintiff’s Amended Complaint, and/or to Strike Certain Allegations [ECF No. 26] is
GRANTED, in part, and DENIED, in part.
IT IS FURTHER ORDERED that Defendant Grifols, Inc.’s Motion to Dismiss
Plaintiff’s Amended Complaint and/or to Strike Certain Allegations [ECF No. 31] is
GRANTED, in part, and DENIED, in part.
IT IS FURTHER ORDERED that Plaintiff’s Request to Strike Statutory Reference to
42 U.S.C. § 1981 from Pleading [ECF No. 37] is GRANTED.
Dated this 8th Day of March, 2016.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

20