Jones v. Manor Care Health Services

Filing 18

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Clerk shall issue process or cause process to be issued as to defendant Manor Care Health Services on plaintiff's amended complaint. (SEE ORDER FOR DETAILS). Signed by District Judge John A. Ross on 9/29/2017. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MAKEYTA RENEA JONES,
Plaintiff,

v.

)
)
)
)

)

No. 4:17-CV-1398 NAB

)
MANOR CARE HEAL TH SERVICES, et al., )
)
Defendants.
)
MEMORANDUM AND ORDER

This matter is before the Court on the filing of plaintiffs amended complaint, as well as
various motions filed by plaintiff. Because plaintiff is proceeding in forma pauperis in this
matter, the Court is required to conduct an initial review of the amended complaint and dismiss it
if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks
monetary relief from a person immune to such relief. 28 U.S.C. § 1915(e). Upon review of the
amended complaint, the Court finds that plaintiffs claims against the individual defendants, as
well as all business entities and governmental entities other than plaintiffs prior employer
(Manor Care) should be dismissed. Plaintiffs claims that are not mentioned in her charge of
discrimination are also subject to dismissal. The Clerk will be ordered to issue process or cause
process to be issued on Manor Care Health Services as to the remaining claims in plaintiffs
amended complaint.
Background

Plaintiff brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e, et seq., as well as under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101,

et seq (the "ADA"). Plaintiff also appears to allege a state law claim for retaliatory discharge
under the Missouri Workers' Compensation Act, Mo.Rev.Stat.§ 287.780.

Plaintiffs amended complaint is difficult to read, however, it appears that she is alleging
claims of race, gender, color, religion, national origin and ADA/disability discrimination
(retaliatory discharge and failure to provide accommodations). Plaintiff also appears to be
alleging state ''tort liability from state and federal officials."
Plaintiff brings this action against the following individuals and entities: Manor Care
Health Services (her former employer); Corporate Administrator Linda Mundaman;
Administrator Anita Martinez; Director of Nursing LaShanda Hill; Director of Nursing Loretta
Lovelace; Human Resource Manager Carol Joette; Claims Administrator Janet Nanto; Workers'
Compensation Department; Tasha Allen, LPN; Cassandra Blair, LPN; Administrator Kristin
Nesser; Workers' Compensation Manager Robin Bowen; Insurance Co. of the State of Penn.;
Broadspire Services, Inc.;

Six Separate Claims Adjusters at Broadspire Services, Inc.; Missouri

Department of Labor and Industrial Relations; Various Managers, Directors, Administrators,
Supervisors at the Missouri Dept. of Labor and Industrial Relations; Missouri Division of
Workers' Compensation and various Commissioners and Judges and workers and legal counsel
at the Division of Workers' Compensation (including court reporters and mediators); United
States Occupational Safety and Health Administration ("OSHA") and various workers at OSHA;
U.S. Department of Labor and various workers at the U.S. Department of Labor; plaintiffs
former private attorneys (and staff members) and medical doctors.
Plaintiff attached a right to sue letter to her original complaint from the Equal
Employment Opportunity Commission ("EEOC") dated January 27, 2017. Plaintiff has
additionally attached her charge of discrimination to her original complaint, which contains
background information relative to her claims. See Fed.R.Civ.P.IO(c). The Court incorporates
these documents, by reference, into plaintiffs amended complaint.
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In her charge of discrimination, plaintiff checks the boxes for race, disability and
retaliation. She asserts that she is an African American female, hired by Manor Care Health
Systems as a Certified Nurse's Aide on October 27, 2010 and discharged on October 27, 2011.
Plaintiff claims she was injured on the job on August 8, 2011 and is now disabled as a result of
that injury. Plaintiff asserts that she was terminated in retaliation for filing a workers'
compensation claim, and as a result of her absences from work which were purportedly caused
by her injury. She claims that after her discharge the retaliation continued when she was denied
access to work records that she needed for her workers' compensation claim. Plaintiff also
asserts that her employer submitted fraudulent documents related to her workers' compensation
claim. Plaintiff additionally claims that she was discriminated against by being discharged and
being denied access to her employee records on the basis of her race and on the basis of
retaliation and her disability in violation of both Title VII and the ADA.

Discussion
As noted above, because plaintiff is proceeding in forma pauperis in this action, the Court
is obligated to review her pleadings for frivolousness, maliciousness and for failure to state a
claim upon which relief may be granted. See 28 U.S.C. § 1915. The Court is required to dismiss
any claims or defendants where jurisdiction is lacking or relief cannot be had.
There is no individual liability for supervisors under Title VII or Title I of the ADA. See

Walsh v. Nevada Dept. of Human Resources, 471 F.3d 1033, 1037-38 (9th Cir. 2006) (collecting
cases); see also Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n. 8 (8th Cir. 1999);

Bonomolo-Hagen v. Clay Central-Everly Community School District, 121 F.3d 446, 447 (8th
Cir. 1997) (citing Spencer v. Ripley County State Bank, 123 F.3d 690, 691-92 (8th Cir. 1997)
(per curiam)); see Bales v. Wal-Mart Stores Inc., 143 F.3d 1103, 1111 (8th Cir. 1998). As a

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result, all supervisors, management, and administrators named in this action as defendants cannot
be held personally liable for violations of Title VII and the ADA, and the Court will dismiss
these defendants from the amended complaint.
Plaintiff has not alleged how these individuals, managers or administrators purportedly
engaged in "tort" activity or fraudulent activity against her. Her conclusory allegations against
these individuals are not entitled to an assumption of truth and do not state a plausible claim for
relief. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009). Thus, to the extent she has brought any
state law claims for garden variety "fraud" or "tort" against these individuals, her claims are
subject to dismissal at this time. 1 Id.
The Court will next turn to plaintiff's charge of discrimination and examme her
allegations in her amended complaint against those alleged in her charge. The Eighth Circuit has
established that:
The purpose of filing a charge with the EEOC is to provide the Commission an
opportunity to investigate and attempt a resolution of the controversy through
conciliation before permitting the aggrieved party to pursue a lawsuit.. ..
Accordingly, the sweep of any subsequent judicial complaint may be as broad as
the scope of the EEOC "investigation which could reasonably be expected to
grow out of the charge of discrimination."
Cobb v. Stringer, 850 F.2d 356, 359 (8th Cir.1988) (quoting Griffin v. Carlin, 755 F.2d

1516, 1522 (11th Cir.1985)). Any allegations that exceed the scope of the plaintiffs EEOC
charge "circumscribe the EEOC's investigatory and conciliatory role, and for that reason are not
allowed." Kells v. Sinclair Buick-GMC Truck, Inc., 201 F.3d 827, 836 (8th Cir.2000). Failure to
include each type of discrimination asserted in an EEOC charge is equivalent to a failure to
Plaintiff lists her workers' compensation attorneys (and staff members), as well as her workers'
compensation doctors as defendants in this action. However, she has not made any allegations
against these defendants. These defendants will be dismissed from this action for the same reasons
as those listed above. See Iqbal, 129 S.Ct. at 1950-51.
1

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exhaust administrative remedies with respect to those types of discrimination omitted. See
Habib-Stevens v. Trans States Airlines, Inc., 229 F.Supp.2d 945, 946-48 (E.D.Mo.2002).

Because plaintiff did not raise her gender, color, religion, or national ongm
discrimination claims in her EEOC Charge of Discrimination, the Court finds that she did not
exhaust her administrative remedies with respect to those claims, and they are not allowed.
Accordingly, plaintiffs claims for discrimination and/or retaliation as a result of gender, color,
religion, and national origin are subject to dismissal.
Additionally, plaintiffs claims brought pursuant to the Occupational Health and Safety
Act and against the United States Occupational Safety and Health Administration will also be
dismissed. The Occupational Safety and Health Act "creates no private right of action for an
injured employee against his employer." B&B Insulation, Inc. v. Occupational Safety and Health
Review Comm n, 583 F.2d 1364, 1371 n. 11 (5th Cir. 1978). Further, to bring an action under the

Federal Torts Claims Act ("FTCA") against a federal agency, 28 U.S.C. § 1346, a plaintiff must
first present his or her claim to the appropriate federal agency pursuant to 28 U.S.C. § 2675(a).
Non-compliance with § 2675(a) operates as a jurisdictional bar to proceeding in federal court.
McCoy v. United States, 264 F.3d 792, 795 (8th Cir. 2001) ("A litigant may not base any part of

his tort action against the United States on claims that were not first presented to the proper
administrative agency."). Plaintiff has not alleged that she has exhausted her OSHA claims.
Thus, these claims are also subject to dismissal.
Similarly, plaintiff cannot bring an action against the U.S. Department of Labor or its
employees. Under 5 U.S.C. § 8128(b), the decision of the Secretary of Labor to grant or deny
workers' compensation is final and is not subject to review by this Court. Brumley v. US. Dept.
of Labor, 28 F.3d 746, 747 (8th Cir. 1994).
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As to plaintiffs claims under the Missouri Workers' Compensation Act relating to her
workplace injury at Manor Care, the Missouri's Workers Compensation Act provides the
exclusive rights and remedies for claims involving workplace injuries sustained by a worker in
the course and scope of her employment. See Wright v. St. Louis Produce Market, 43 S.W.3d
404, 414 (Mo. Ct.App.2001); Mo.Rev.Stat. § 287.120.1. And the Labor and Industrial Relations
Commission has the exclusive jurisdiction to determine whether an employee's injuries occurred
as a result of the employee's employment. See Hannah v. Mallinckrodt, Inc., 633 S.W.2d 723
(Mo. Banc 1982). Thus, this Court has no power to overrule the decision of the Labor and
Industrial Relations Commission, and plaintiffs claims against the Commission and the Division
of Workers' Compensation and its workers are subject to dismissal.
Plaintiff has not fully articulated her claims against Broadspire and/or the insurance
company servicing her workers' compensation injuries (the Insurance Company of the State of
Pennsylvania). Nonetheless, these claims are also preempted by the Missouri Workers'
Compensation Act and must be handled through the Labor and Industrial Relations Commission.
In conclusion, plaintiffs remaining claims in this lawsuit are against Manor Care,
pursuant to Title VII and the ADA. Plaintiff alleges race discrimination and retaliatory discharge
in violation of Title VII. She further claims that Manor Care failed to accommodate her
purported disability and retaliated against her in violation of the ADA. Plaintiff additionally
claims retaliatory discharge under the Missouri Workers' Compensation Act, Mo.Rev.Stat. §
287.780. The Clerk will be ordered to issue process on these claims as to plaintiffs amended
complaint.
Plaintiff's Pending Motions

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Plaintiff requests appointment of counsel in this employment discrimination matter. The
Court will deny plaintiffs motion for appointment of counsel at this time. There is no
constitutional or statutory right to appointed counsel in civil cases. Nelson v. Redfield Lithograph

Printing, 728 F.2d 1003, 1004 (8th Cir. 1984). In determining whether to appoint counsel, the
Court considers several factors, including (1) whether the plaintiff has presented non-frivolous
allegations supporting his or her prayer for relief; (2) whether the plaintiff will substantially
benefit from the appointment of counsel; (3) whether there is a need to further investigate and
present the facts related to the plaintiffs allegations; and (4) whether the factual and legal issues
presented by the action are complex. See Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th Cir.
1986); Nelson, 728 F.2d at 1005.
After considering these factors and the factual allegations in the case at hand, the Court
finds that the facts and legal issues involved are not so complicated that the appointment of
counsel is warranted at this time. [Doc. #2]
Next plaintiff requests additional time to file an amended complaint with the assistance of
counsel. As the Court has denied plaintiff appointed counsel, her requests for additional time will
be denied as moot. [Doc. #13 and #15]
Plaintiff has filed a two-page motion asking the Court to "accept jurisdiction of her
employment discrimination complaint." Plaintiff requests the grounds under which she is
bringing her Title VII action against defendant Manor Care, some of which the Court has
dismissed above as a result of plaintiffs failure to allege these grounds in her charge of
discrimination. As such, the Court will deny plaintiffs motion without prejudice. [Doc. #16]
Last, plaintiff requests leave to file documentation relating to "service she was denied by
the EEOC." The Court will deny plaintiffs request. [Doc. #17]

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Accordingly,

IT IS HEREBY ORDERED that the Clerk shall issue process or cause process to be
issued as to defendant Manor Care Health Services on plaintiff's amended complaint.

IT IS FURTHER ORDERED that that all claims against all individual defendants,
"supervisors", "management", "administrators" and "directors" named in plaintiff's amended
complaint are DISMISSED as frivolous or for failure to state a claim upon which relief may be
granted. See 28 U.S.C. § 1915(e)(2)(B).

IT IS FURTHER ORDERED that plaintiff's Title VII claims for discrimination and/or
retaliation as a result of gender, color, religion, and national origin are DISMISSED because
these claims were not alleged in plaintiff's charge of discrimination. See 28 U.S.C. §
1915(e)(2)(B).

IT IS FURTHER ORDERED that plaintiff's claims brought pursuant to the
Occupational Safety and Health Act and against the United States Occupational Safety and
Health Administration are DISMISSED. See 28 U.S.C. § 1915(e)(2)(B).

IT IS FURTHER ORDERED that plaintiff's claims against Broadspire, Inc., the
Insurance Co. of the State of Pennsylvania, the Missouri Department of Labor and Industrial
Relations, the Missouri Division of Workers' Compensation and the U.S. Department of Labor
are DISMISSED as the Court has no jurisdiction over workers' compensation claims and
decisions regarding workers' compensation claims are not reviewable by this Court.

IT IS FURTHER ORDERED that plaintiff's claims against her former workers'
compensation attorneys and medical doctors are DISMISSED. See 28 U.S.C.§ 1915(e)(2)(B).

IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [Doc.
#2] is DENIED at this time.
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IT IS FURTHER ORDERED that plaintiffs motions for additional time to file an
amended complaint [Doc. #13 and #15] are DENIED AS MOOT.
IT IS FURTHER ORDERED that plaintiffs motion to accept jurisdiction of her
employment jurisdiction complaint [Doc. #16] is DENIED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that plaintiffs motion to submit documentation of denial
of service by the EEOC [Doc. #17] is DENIED.
A separate Order of Partial Dismissal shall accompany this Memorandum and Order.
Dated this

~y of September, 2017.

~-ROSS

ED STATES DISTRICT JUDGE

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