Johnson v. Supervalu

Filing 26

OPINION, MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants Motion to Dismiss, [Doc. No. 12 ], is GRANTED. IT IS FURTHER ORDERED that Plaintiff is given 14 days from the date of this order to file an Amended Complaint.( Response to Court due by 11/12/2018.). Signed by District Judge Henry Edward Autrey on 10/29/2018. (AAS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANTUALISA JOHNSON,
Plaintiff,
v.
SUPERVALU, INC.,
Defendant,

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CASE NO. 4:17CV2918 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion to Dismiss [Doc. No.
12]. Plaintiff opposes the Motion. For the reasons set forth below, the Motion is
granted.
Facts and Background1
Plaintiff’s pro se Complaint alleges Defendant, Plaintiff’s employer,
discriminated against her based on her sex, race, color, and in retaliation.
Defendant moves to dismiss Plaintiff’s Complaint.
Plaintiff has been an employee of Defendant since September 2015.
Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity
Commission (“EEOC”) on September 6, 2017. This charge alleged race and sex
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The recitation of the facts is taken from Plaintiff’s Complaint and is set forth for the purposes
of this motion only. It in no way relieves the parties of the necessary proof of the facts in later
proceedings.

discrimination and retaliation. No other types of discrimination were checked on
the EEOC Charge form.
Within the Particulars section of her Charge, Plaintiff claimed that a white
male employee struck her in the head with a frozen bottle of water, and she filed a
complaint against him. As a result, the white male employee was fired. Plaintiff
claimed that since the white male employee was terminated, she has been subjected
to harassment by white members of management. Plaintiff stated that she believed
the harassment was in retaliation for filing the complaint against the white male
employee. Plaintiff identified the dates of discrimination to be October 5, 2015 as
the earliest date and July 31, 2017 as the latest, with the “continuing action” box
checked as well. A right to sue letter was issued on September 25, 2017.
Plaintiff filed this action on December 21, 2017. For the essential facts of
her claim, Plaintiff attached a “Timeline of Workplace Retaliation,” which alleges
the following “Incidents of Retaliation due to the male employee being fired:”
 2015: Plaintiff was at the self-check register when a female customer
service checker “forced” Plaintiff to be a witness to a suspected
shoplifter’s interrogation. The female customer service checker said
“They need a girl to watch upstairs, I am not available. You [Plaintiff]
have to go. Plaintiff was walked to the store director’s office; she was
“unsure of what [was] going on.” There was a security office with a
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shoplifter; the shoplifter had not come through Plaintiff’s checkout
lane.
 1/26/2016: A male assistant store director grabbed Plaintiff from
behind, around her shoulders, leaned on Plaintiff and whispered “Did
she pay for that cake?” in her ear.
 10/22/0216: A written disciplinary action was filed with the Union
Local 655 UFCW for tardiness and absenteeism between July 2016
and September 2016. Plaintiff “never received an oral disciplinary
action; a 90 day probationary period, which the Store Director has
never followed up.” Plaintiff also seems to plead that in one incident
of an early departure from work, a customer service employee asked if
Plaintiff would like to leave early. Plaintiff says that “customer
service asks all employees at times if they would like to leave early.”
Plaintiff seems to also plead that some absences were due to her being
sick. Plaintiff filed a grievance letter with the Union.
 11/5/2016: Plaintiff was given a “written oral discipline letter” from
the store director because she greeted a customer then said “This is 15
items or less.” Plaintiff filed a grievance with the Union.

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 11/15/2016: The store director and assistant store director had a
meeting with Plaintiff because a customer complained about Plaintiff
saying “This is 15 items or less.”
 12/26/2016: Curtis, an “office checker/cashier” and friend of the white
male employee who was terminated for hitting Plaintiff, called
Plaintiff a “B***h” because Plaintiff told him she would not purchase
items she left at the counter. Plaintiff filed complaints with both the
Union and the store director.
 1/14/2017: The store director told Plaintiff “That will never happen
again,” referring to Curtis calling Plaintiff a “b***h.” This statement
was made in passing; as Plaintiff states it was “an impromptu
unannounced statement made on the run.” Curtis is still “in minor
authority.”
 1/30/2017: Plaintiff’s hours were reduced to 5 hours per week.
Plaintiff filed a grievance with the Union.
 3/12/2017: Plaintiff was sitting on a bagging station while talking to
another employee. Plaintiff was working the self-check lane at the
time and “wasn’t waiting on a customer.” The female store director
touched Plaintiff’s shoulder, “lean[ed] into” Plaintiff and said “Please

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don’t talk to associates when you have a customer.” Plaintiff asked
for forgiveness and the store director said “That’s okay.”
 Unknown date: In a meeting, the store director gave Plaintiff a written
disciplinary action for the March 12 incident. She also gave Plaintiff
a hand written letter regarding her rebuttal to a complaint2 Plaintiff
filed. Plaintiff filed another complaint with the Union.
 3/26/2017: Plaintiff hand delivered her written availability to work for
the week of April 1- 9. For the weeks of April 2 – 9 and April 9 – 15,
Plaintiff was scheduled for 5 hours, and offered additional hours by
the front office checker.
 4/4/2017: Plaintiff called the St. Ann store at 12:15 p.m. requesting
hours to work if a shift became available. Plaintiff was told no hours
were available and Plaintiff asked to be kept in mind if any hours
came available. At 2:15 p.m. Plaintiff went to the St. Ann store and
saw an employee working who was not on the original schedule, and
over whom Plaintiff has seniority.
 4/7/2017: Plaintiff filed a grievance with the Union regarding the
“violation of seniority.”

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It is unclear to which complaint Plaintiff refers.
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4/13/2017: Plaintiff filed a grievance with the Union for “restitution
of lost wages.”

In her complaint, Plaintiff also alleges that the “response from Union Local
655 UFCW has been demeaning, unresolved actions, and disregard of my
complaints and grievances.” The Union is not a party to this lawsuit. These
allegations are immaterial.
Plaintiff alleges claims under Title VII of the Civil Rights Act of 1964,
employment discrimination on the basis of race, color, and sex. Additionally,
Plaintiff claims retaliation.
Standard of Review
To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain
“enough facts to state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678, (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). A complaint is plausible if its “factual content allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Braden v. Wal–Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)
(quoting Iqbal, 556 U.S. at 678). A court must “‘draw on its judicial experience
and common sense,’” and consider the plausibility of the plaintiff's claim as a
whole, not the plausibility of each individual allegation. Zoltek Corp. v. Structural
Polymer Group, 592 F.3d 893, 896 n. 4 (8th Cir. 2010) (quoting Iqbal, 556 U.S. at
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679).
A pro se litigant is obligated to comply with relevant procedural and
substantive law. Faretta v. California, 422 U.S. 806, 834. While it is true that pro
se pleadings are to be construed liberally, a pro se plaintiff “still must allege
sufficient facts to support the claim advanced.” Stone v. Harry, 364 F.3d 912, 914
(8th Cir. 2004).
Discussion
Title VII prohibits employers from discriminating “against any individual
with respect to [her] 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).
Color Discrimination
As a preliminary matter, Defendant argues that Plaintiff failed to exhaust
administrative remedies with respect to her claim of color discrimination. Plaintiff
did not check the color discrimination box on her Charge form, and specifically
stated “I believe I have been discriminated against due to my race, Black and my
sex, female…” (Emphasis added). Regardless of the exhaustion issue, Plaintiff’s
color discrimination claim would fail. “Color discrimination arises when the
particular hue of the plaintiff's skin is the cause of the discrimination, such as in the
case where a dark-colored African–American individual is discriminated against in
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favor of a light-colored African–American individual.” Laws v. Norfolk S. Corp.,
No. 4:15-CV-924-CEJ, 2015 WL 5886069, at *3 (E.D. Mo. Oct. 8, 2015) (citing
Bryant v. Bell Atl. Maryland, Inc., 288 F.3d 124, 135 (4th Cir.2002); Williams v.
Wendler, 530 F.3d 584, 587 (7th Cir.2008)). The hue of Plaintiff's skin is not
described in the Complaint nor is it referenced as a factor in any of the incidents of
alleged harassment. Plaintiff’s claims regarding color discrimination will be
dismissed.
Retaliation
“To make a prima facie case of retaliation against an employer, a plaintiff
must show (1) [she] engaged in protected conduct, (2) a reasonable employee
would have found the challenged retaliatory action materially adverse, and (3) the
materially adverse action was causally linked to the protected conduct.” Carpenter
v. Con-Way Cent. Express, Inc., 481 F.3d 611, 618 (8th Cir. 2007) (citing
Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); Higgins v.
Gonzales, 481 F.3d 578, 589 (8th Cir. 2007).
The first necessary showing in any Title VII retaliation case is that the
Plaintiff engaged in protected conduct. Under Title VII, an employee engages in
protected conduct when she (1) opposes any practice made an unlawful
employment practice by Title VII, or (2) makes a charge, testifies, assists, or
participates in any manner in an investigation, proceeding, or hearing under Title
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VII. 42 U.S.C. § 2000e–3(a). Plaintiff claims that the retaliatory
actions/harassment taken against her result from one “Incident,” namely, her
reporting the white male employee who hit her in the head. Thus, that report is the
purported “protected conduct.”
Title VII does not protect all verbal or physical harassment in the workplace.
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81 (1998). Plaintiff
does not allege that the employee who hit her in the head with a frozen water bottle
was doing so because of her sex or race.3 Because Plaintiff pleads no facts that
indicate the white male employee’s assault was based on her sex or race, the
assault, and Plaintiff’s reporting thereof, do not implicate Title VII. Plaintiff
therefore fails to show that she engaged in protected conduct to support a Title VII
retaliation claim. Her retaliation claim will be dismissed.
Conclusion
Based upon the foregoing analysis, Plaintiff’s Complaint fails to state a
viable claim for Title VII retaliation based on sex and race. Defendant’s Motion to
Dismiss is granted. Plaintiff will be given leave to file an Amended Complaint in
accordance with this opinion.

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In her opposition to Defendant’s Motion to Dismiss, Plaintiff alleges that “Women, black
women are able to be verbally and physically assaulted without discipline to the perpetrator.”
Plaintiff’s own Complaint refutes this statement, as Plaintiff pleaded that the white male who hit
her in the head was, indeed, fired for that assault.
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Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss, [Doc.
No. 12], is GRANTED.
IT IS FURTHER ORDERED that Plaintiff is given 14 days from the date
of this order to file an Amended Complaint.
Dated this 29th day of October, 2018.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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