Dunbar v. Johnson et al

Filing 13

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Clerk of Court shall provide to plaintiff, along with a copy of this Memorandum and Order, a Court form Employment Discrimination Complaint. IT IS FURTHER ORDERED that plaintiff shall file a second amended complaint, in accordance with the instructions set forth above, no later than fourteen (14) days from the date of this Memorandum and Order. IT IS FURTHER ORDERED that if plaintiff fails to timely file an amended complaint or fails to comply with the instructions set forth above relating to the filing of the amended complaint, the Court shall dismiss this action without prejudice. (cc: plaintiff a copy of this Memorandum and Order and a Court form Employment Discrimination Complaint.). Signed by Magistrate Judge Nannette A. Baker on 02/08/2018. (AAS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LATONYA DUNBAR,
Plaintiff,
v.
MONICA JOHNSON and HILTON HOTEL,
Defendants.

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No. 4:17-CV-2649 NAB

MEMORANDUM AND ORDER
This matter is before the Court upon review of the file after plaintiff’s filing of an amended
complaint. For the following reasons, the Court will allow plaintiff to file a second amended
complaint to allege with specificity the protected activity in which she engaged and for which she
was unlawfully retaliated against under Title VII.
Background
On December 14, 2017, the Court conducted an initial review of plaintiff’s complaint
under 28 U.S.C. § 1915(e). The Court found that plaintiff had not alleged a prima facie case of
retaliation against her employer under Title VII because she had not alleged that she engaged in
statutorily protected activity. Plaintiff did not allege her race, religion, national origin, color,
gender, disability or age, and the Court had no facts from which it could draw any inference that
plaintiff engaged in any activity protected under Title VII and was retaliated against. See ECF
No. 11 at 3. Because plaintiff was proceeding pro se, the Court provided her an opportunity to
amend her allegations to allege she was retaliated against for engaging in a statutorily protected
activity. Id.
(1)

Discussion
On January 2, 2018, plaintiff filed her amended complaint. Again, she brings this action
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., for retaliation. As to
why she believes she was discriminated against, she checked the box on the form complaint
marked “other,” but did not elaborate. She did not check the box for race, religion, national
origin, color, gender, disability, or age.
In her statement of the claim, plaintiff states that she filed an Informal Resolution Request
(“IRR”) against her supervisor at Hilton Hotel, Ms. Monica Johnson. Ever since plaintiff filed
this IRR, she states she has been subject to a series of abuses, including having to perform other
employees’ duties, her hours have been reduced, she has been denied a raise, and Ms. Johnson
caused a confrontation with plaintiff, a friend, and three other employees. Plaintiff states Ms.
Johnson wrote plaintiff a written violation for failing to perform her duties, which was later
dismissed.

Plaintiff states that she feels “abused, discriminated against, verbally abused,

harassed, and intimidated.”
As the Court stated in its Order dated December 14, 2017, plaintiff has not alleged that she
was retaliated against because she engaged in a protected activity. “Title VII prohibits employers
from retaliating against an employee who is engaged in a protected activity, which can be either
opposing an act of discrimination made unlawful by Title VII . . . or participating in an
investigation under Title VII.” Hunt v. Nebraska Pub. Power Dist., 282 F.3d 1021, 1028 (8th Cir.
2002) (finding plaintiff “failed to present sufficient evidence that she opposed an unlawful
employment practice prior to her termination”) (emphasis in original).

(2)

Here, plaintiff states she was retaliated against for filing an IRR. The Court has no
information, however, regarding the substance of plaintiff’s IRR. If plaintiff’s IRR opposed an
employment action made unlawful by Title VII, her employer would be prohibited from retaliating
against her for filing the IRR. See Hunt, 282 F.3d at 1028-29. For example, if plaintiff’s IRR
stated that Ms. Johnson was discriminating against plaintiff based on her race, the filing of the IRR
would be a protected activity under Title VII. In this example, it would be unlawful under Title
VII to retaliate against plaintiff for filing this IRR.
If, however, plaintiff stated in her IRR that Ms. Johnson was nit-picking her work and
assigning her extra duties, the filing of the IRR would not necessarily be a protected activity under
Title VII. In this example, plaintiff would simply be complaining about her supervisor’s conduct,
not any discriminatory or unlawful conduct. Again, although plaintiff’s working conditions may
be unacceptable, she has not alleged she was retaliated against for engaging in statutorily protected
activity.
Because plaintiff’s claims are serious in nature, the Court will provide plaintiff another
opportunity to amend her allegations. Accordingly, plaintiff will be required to file a second
amended complaint, on a court form.

To bring a claim for retaliation under Title VII, plaintiff

shall state with specificity the protected activity she engaged in, and for which she was retaliated
against.

If plaintiff alleges the filing of the IRR was her protected activity, she must state with

specificity what she complained about in the IRR.
Plaintiff shall have fourteen (14) days from the date of this Order to file her amended
complaint. Plaintiff is warned that the filing of the amended complaint completely replaces the
original and any supplemental complaints, and claims that are not re-alleged are deemed

(3)

abandoned. E.g., In re Wireless Tele. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 928 (8th Cir.
2005). If plaintiff fails to file her amended complaint within fourteen (14) days, the Court will
dismiss this action without prejudice.
Accordingly,
IT IS HEREBY ORDERED that the Clerk of Court shall provide to plaintiff, along with
a copy of this Memorandum and Order, a Court form Employment Discrimination Complaint.
IT IS FURTHER ORDERED that plaintiff shall file a second amended complaint, in
accordance with the instructions set forth above, no later than fourteen (14) days from the date of
this Memorandum and Order.
IT IS FURTHER ORDERED that if plaintiff fails to timely file an amended complaint
or fails to comply with the instructions set forth above relating to the filing of the amended
complaint, the Court shall dismiss this action without prejudice.

NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
Dated this 8th day of February, 2018.

(4)