Clayton v. Brennan et al

Filing 9

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 3 ] is GRANTED. Pursuant to 28 U.S.C. § 1915(a), the filing fee is waived. IT IS FURTHER ORDERED that plaintiff's motion for lea ve to file amended complaint [ECF No. 5 ] is GRANTED. IT IS FURTHER ORDERED that plaintiff's motion for leave to supplement the record in response to the Court's show cause order [ECF No. 8 ] is GRANTED. IT IS FURTHER ORDERED that plain tiff's motion for appointment of counsel [ECF No. 2 ] is DENIED without prejudice. IT IS FURTHER ORDERED that the Clerk shall issue process or cause process toissue upon the amended complaint as to defendant Megan J. Brennan, Postmaster General UnitedStates Postal Service, with regard to plaintiff's allegations of age discrimination, disabilitydiscrimination, and retaliation.IT IS FURTHER ORDERED that the Clerk shall issue process or cause process toissue upon the amended complaint as to defendant American Postal Worker Union AFL-CIO,with regard to plaintiff's allegations of breach of duty. (SEE ORDER FOR DETAILS). Signed by District Judge John A. Ross on 1/9/19. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROSALIND A. CLAYTON,
Plaintiff,
v.

MEGAN J. BRENNAN, et al.,
.·.

Defendants.

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No. 4:18-CV_-1039-JAR

MEMORANDUM AND ORDER
Pro se plaintiff Rosalind Clayton brought this suit under Title VII of the Civil Rights Act
of 1964 and the Age Discrimination in Employment Act of 1967 ("ADEA") for alleged
employment discrimination. On July 3, 2018, the Court ordered plaintiff to show cause as to
why this case should not be dismissed without prejudice as prematurely filed because plaintiff
had not received a right-to-sue letter from the Equal Employment Opportunity Commission
("EEOC"). Plaintifffiied a response to the Court's order on July 13, 2018. Also.pending before
the Court ar.e plaintiffs motions for leave to proceed in forma pauperis, for appointment of
counsel, for leave to file an amended complaint, and for leave to supplement the record in
response to the show cause order. ECF Nos. 2, 3, 5, 8.
Having reviewed plaintiffs motion for leave to proceed in forma pauperis and financial
affidavit, the Court has determined that plaintiff lacks sufficient funds to pay the filing fee, so
this motion will be granted and the filing fee will be waived. See 28 U.S.C. § 1915(a). For the
reasons discussed below, the Court finds plaintiffs response to the show cause order sufficient
for the case to proceed. Plaintiff will be granted. leave to file the amended complaint and
supplemental response, but she will be denied appointment of counsel at this time.

After

reviewing the amended complaint, the Court will partially dismiss some claims of the amended

complaint and will order the Clerk to issue process or cause process to be issued on the nonfrivolous portions of the amended complaint.
Show Cause Response: Time for Filing Civil Action

·Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted.
Title VII and the ADEA require certain actions be taken for redress of employee grievances
before an employee files a civil action in federal court. Plaintiff states that she filed a charge of
discrimination with the EEOC on March 8, 2017, but she has not received a right-to-sue letter.
In this case, plaintiff works for the United States Postal Service ("USPS") and is
therefore a federal government employee protected from discriminatory practices under 42
U.S.C. § 2000e-16(a). As a USPS agency employee, plaintiff may file a civil action within
ninety (90) days ofreceipt of notice of final action taken by the USPS. 42 U.S.C. § 2000e-16(c);

see also Harrell v. Donahue, 638 F.3d 975, 978 (8th Cir. 2011). Plaintiff attached the USPS's
Final Agency Decision ("FAD") in her matter, dated August 7, 2018, to her motion for leave to
supplement the record in response to the Court's show cause order. ECF No. 8-1. Fallowing the
analysis and conclusion, the FAD states plaintiff's right to appeal to the EEOC or alternatively, .
her right to file a civil action. ECF No. 8-1 at 37 ("if the complainant is dissatisfied with the
Postal Service's decision in this case, the complainant may file a civil action in an appropriate
U.S. District Court within 90 calendar days of receipt of the Postal Service's final decision.").
Although plaintiff filed this suit on June 25, 2018, approximately six w~eks before the FAD was
issued, the Eighth Circuit has found that the failure to exhaust remedies before filing suit is a
defect that can be cured after commencement of suit. See Jones v. Am. State Bank, 857 F.2d 494,
499-500 (8th Cir. 1988). Therefore, the Court finds plaintiff's response to its show cause order
sufficient for this suit to proceed.

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Legal Standard on Initial Review: 28 U.S.C. § 1915(e)
The Court is also required to review the factual and legal allegations of a complaint filed
in forma paup~ris, and dismiss the complaint if it is frivolous, malicious, or fails to state a claim
upon which relief can he granted. 28 U.S.C. § 1915(e). To state a claim for relief, a complaint
must plead more than "legal conclusions" and "[t]hreadbare recitals of the elements of a cause of
action [that are] supported by mere conclusory statements." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A plaintiff must demonstrate a plausible claim for relief, which is more than a "mere
possibility of misconduct." Id. at 679. "A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. at 678. Determining whether a complaint states a plausible
claim for relief is a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. Id. at 679.
When reviewing a prose complaint under§ 1915(e)(2), the Court must give it the benefit
of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A "liberal construction"
means that if the essence of an allegation is discernible, the district court should construe the
plaintiffs complaint in a way that permits his or her claim to be considered within the proper
legal framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, even pro se ·
complaints are required to allege facts which, if true, state a claim for relief as a matter of law.

Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980). See also Stone v. Harry, 364 F.3d
912, 914-15 (8th Cir. 2004) (stating that federal courts are not required to "assume facts that are
not alleged, just because an additional factual allegation would have formed a stronger
complaint").

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The Amended Complaint

Plaintiff brings this action for employment discrimination against the Postmaster General
of the USPS and the American Postal Worker Union AFL-CIO ("APWU"). Plaintiff alleges
discrimination based on race, gender, disability, and age. 1 She complains that defendants failed
to accommodate her disability, treated similar employees differently, retaliated against her,
harassed her, and violated her rights to due process and equal protection. 2 According to plaintiff,
both defendants have discriminated, harassed, and retaliated against her because she "engaged in
the protected activity of worker's compensation."
Plaintiff alleges in her amended complaint that she suffered ''wage discrimination" when
she received the incorrect pay from USPS on multiple occasions. According to plaintiff, her pay
checks were "short" on over twenty occasions between June 17, 2016, and ,June 29, 2018,
resulting in unpaid wages of $7,271.98. The alleged reasons for the shortages in pay include
plaintiff not receiving "Sunday premium" pay, "Night differential" pay, "level 7" pay, or
overtime pay when she should have; plaintiff receiving pay for only 32 hours when she worked
40 hours in a week; plaintiff being denied continuation of pay ("COP") after an on-the-job
injury; plaintiff being denied sick and annual leave pay; and an incorrect change in her pay
location which resulted in lower pay rates.

1

Plaintiff also checked the line for "other" discrimination on the amended complaint but she provides no details on
what other type of discrimination she alleges occurred. ECF No. 5-1 at 6.
,
2
Although plaintiff generally complains that defendants violated her due process and equal protection rights, she
does not plead a valid equal protection violation against defendants. The equal protection clause ''protects
_ 'fundamental rights,' 'suspect classifications,' and 'arbitrary and irrational state action.' " Brandt v. Davis, 191 F.3d
887, 893 (8th Cir. 1999). As discussed below, plaintiff has not asserted any facts supporting discrimination claims
based on race or sex. Although her age and disability discrimination claims survive review, she has not alleged that
she belongs to a valid suspect class or has a fundamental right at stake. See Weber v. Strippit, Inc., 186 F.3d 907,
911 (8th Cir. 1999) ("Age, unlike race or gender, is not a suspect classification subject to strict or even heightened
scrutiny under the equal protection clause."); Hansen v. Rimel, 104 F.3d 189, 190 (8th Cir. 1997) ("Although
protected by statutory enactments such as the Americans with Disabilities Act, the disabled do not constitute a
'suspect class' for purposes of equal protection analysis."). In addition, the class-of-one theory of equal protection
does not apply in the public employment context. Engquist v. Oregon Dep 't ofAgric., 553 U.S. 591 (2008).

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According to plaintiff, these maliciously intentional errors on her pay checks were done
in retaliation for a May 2016 on-the-job injury which required her to miss 63 days of work and
take workers compensation benefits. Plaintiff states that USPS also retaliated against her by.
changing her schedule to work late hours and by sending her home on one occasion to change
clothes in violation of a nonexistent dress code.
Around January 2017, plaintiff received a medical restriction limiting her work hours on
certain machines. Plaintiff alleges that the restriction was violated by some supervisors and led
to harassment from another. Plaintiff also claims that the change in schedule made ·to
accoinmodate her medical restriction deprived her of her choice in work partner and machine.
Plaintiff also alleges a supervisor used derogatory remarks towards her when she was moved off
her machine station and sent her to work in the manual unit. Two younger women were then
. assigned to plaintiffs deserted machine station. According to plaintiff, her supervisors used her
medical restriction as a pretext to move her off the machine and to repeatedly move her between
machines two to four times per shift, when really they were discriminating against her based on
her age. Plaintiff was 55 years old when she filed this case. After plaintiff complained that
supervisors treated older employees less favorably and· required them to do heavier work,
plaintiff alleges USPS retaliated against her with "short'_' pay checks. Plaintiff alleges that she
suffered another on-the-job injury to .her right knee on May 30, 2018.

However, she was

subsequently denied COP by USPS.
As to defendant APWU, plaintiff alleges union representatives failed to represent her,
failed to allow her to file a grievance, and/or failed to process her grievances on multiple
occasions.

According to plaintiff, she went to the union many times with complaints and

requests to file grievances concerning her interrupted, denied, arid delayed wages, but the union
failed to help her arid took no corrective action. Plaintiff also complained about discrimination

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concerning injured workers having to work later hours, about being sent home from work to
change clothes when no dress code policy existed, and about not being paid at the appropriate
higher "level 7" rate for Express Mail Unit work. Plaintiff attached as exhibits to her original
complaint approximately nine written grievances that she presumably filed with the union. ECF
No. 1-3. Plaintiff also claims that a union representative accused her of lying and changing a
date on a duty form.
Plaintiff states that she was a member of the APWU in good standing from Octoher 2014
until December 2017, when she "got out" of the union because it "failed to represent" her.
Plaintiff sought help from the union multiple times after December 201 7, but she claims that

a

even if she was not paying member, the union is liable under the law to represent her.
In the final paragraph of the amended complaint, plaintiff also states that she is afraid for
her safety given that her car tires have been cut three times at work. According to plaintiff, the
defendants have failed to provide a safe workplace for her and have created a "hostile
workplace" because they are "violently angry" with her.
For relief, plaintiff seeks ten million dollars in damages and injunctive relief to forbid
USPS from engaging in further wage discrimination, harassment, and retaliation.
Discussion

Plaintiffs seventy-nine paragraph amended complaint details numerous allegations
against the two defendants.

On initial review under § 1915(e), the Court finds plaintiffs

allegations of age discrimination, disability discrimination, and retaliation sufficient to survive
review as to defendant USPS. As to defendant APWU, the Court finds plaintiffs allegations
sufficient to state a claim for breach of fiduciary duty, failure to represent, and worker's
compensation retaliation. However, plaintiffs claims of discrimination based on age, disability,
race, and gender against APWU, and plaintiffs claims of discrimination based on race and

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gender against USPS, lack any factual support and will be dismissed.

See 28 U.S.C. § ·

1915(e)(2).
Defendant USPS
In order to establish a prima facie case under the Age Discrimination in Employment Act
("ADEA"), 29 U.S.C. §§ 621 et seq., a plaintiff must show: (1) she is over 40; (2) she was
qualified for the position; (3) she suffered an adverse employment action; and (4) substantially
younger, similarly situated employees were treated more favorably. Anderson v. Durham D &
· M, L.L.C., 606 F.3d 513, 523 (8th Cir. 2010). Plaintiff, who is 55 years old, describes incidents

where she alleges she was treated differently due to her age, and she states that younger
employees receive preferential treatment with lighter work.
The Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., prohibits
covered employers from discriminating against a "qualified individual" on the basis of disability.
42 U.S.C. § 12112(a). A "qualified individual" is a person ''who, with or without reasonable
accommodation, can perform the essential functions" of his or her job. 42 U.S.C. § 12111(8).
Although plaintiff did not specify that she was bringing suit under the ADA on the first page of
her amended complaint, she did check the line for alleging discrimination on the basis of
disability. Also, the details of her amended complaint describe disability discrimination and
failure to accommodate claims.
Under the ADA, prohibited discrimination includes intentional discrimination against a
qualified individual because of his or her disability, which can be shown by evidence of disparate
treatment or other proof based on the. specific facts of the case. See 42 U.S.C. § 12112(a)-(b)(l);

Young v. Warner-Jenkinson Co., Inc., 152 F.3d 1018, 1022 (8th Cir. 1998). But prohibited
discrimination under the ADA also includes "not making reasonable accommodations to the
known physical or mental limitations of an otherwise qualified individual with a disability"

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unless doing so "would impose an undue hardship on the operation of the" employer's business.
42 U.S.C. § 12112(b)(5).
Here, plaintiff sufficiently states ADA claims for intentional discrimination and failure to
accorilm.odate. Plaintiff alleges that she suffered multiple on-the-job injuries that limited her
ability to work and that USPS treated her differently due to her disability by requiring her to
work later shifts. She also alieges that USPS failed to accommodate her injuries with her job
assignments and stations, and violated her limited duty restrictions (including her allowance to
be "seated as needed").
The ADA and ADEA also prohibit, among other things, retaliation against employees
who oppose any practices made unlawful by the statues, or who file charges or assert their rights
under the statutes. See 29 U.S.C. § 623(d); 42 U.S.C. § 2000e-3(a). In order to state a claim of
retaliation under these federal anti-discrimination statutes a plaintiff must show: (1) that she
engaged in statutorily protected activity; (2) an adverse employment action was taken against
her; and (3) a causal connection exists between the two events. Stewart v. lndep. Sch. Dist. No.
196, 481F.3d1034, 1043 (8th Cir. 2007) (ADEA and ADA). An employee engages in protected

activity when she opposes an action "based on a reasonable belief that [her] employer has
engaged in discriminatory conduct." E.E.O.C. v. HBE Corp., 135 F.3d 543, 554 (8th Cir. 1998)
(citation omitted). Here, plaintiff alleges that she complained on multiple occasions about illegal
discriminatory treatment and those complaints resulted in harassment and assignment of later
work shifts.
Plaintiff also states a worker's compensation retaliation claim against USPS. According
to plaintiff, USPS retaliated against her by intentionally "shorting" ,her pay checks and by
changing her work hours because she collected worker's compensation benefits after an on-thejob injury.

Plaintiff also details allegations of. sudden shift changes, retaliatory dress code

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violations, harassment, and refusal to issue 'level 7' higher pay against her USPS supervisor
Bobo, who she claims has a "pervasive pattern of harassing employees who are on worker's
compensation." ECF No. 1-2 at 7. Having liberally construed plaintiffs allegations, the Court
concludes for purposes of initial review, that plaintiff has adequately stated claims of age
discrimination, disability discrimination, and retaliation against USPS.
However, none of plaintiffs allegations, even if accepted as true, are sufficient to state a
claim that plaintiff was discriminated against on the basis of her race or gender under Title VII of .
the Civil Rights Act. 42 U.S.C. § 2000e-2(a). Although plaintiff alleges racial discrimination
generally, the amended complaint only mentions race three times. In paragraph 1, plaintiff
describes herself as

a"black women."

In paragraphs 19 and 66, plaintiff makes the following

conclusory statements:
19.
USPS and APWU discriminated, harassed, and retaliated against me
because I engaged in a protected activity worker's compensation, based on my
age, race and sex.

am

66.
. .. I
retaliated against because of my age, race, sex, I filed a charge of·
discrimination, I engaged in worker's compensation and I oppose unlawful
deceptive discriminatory business practice.

Plaintiff never details any disparate treatment based on her race or gender.

The amended

complaint is void of allegations that similarly situated male employees or e111ployees of a
different race were treated more favorably. In fact, many of the incidents described in plaintiffs
amended complaint involve younger women getting favorable machine placement - not men.
Plaintiffs allegations of discrimination based on race and gender are merely conclusory, setting
forth only legal conclusions. The amended complaint alleges no facts suggesting plaintiff was
ever treated differently based on her race or gender.

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Defendant APWU
Plaintiffs allegations against the uniori do not sound in discrimination. As discussed
above, plaintiffs amended complaint does not allege any disparate treatment by either defendant
as to her race or gender. In addition, although plaintiff describes unfair treatment due to her
disability and age from her supervisors at USPS, she does not make similar factual allegations
regarding defendant APWU.

Plaintiff accuses APWU of failing to represent her due to

discrimination but those accusations are not supported by' any factual allegations. Plaintiffs
claims of discrimination and harassment based on her race, gender, age or disability are
conclusory statements. Liberally construing the complaint, none of plaintiffs allegations of
discrimination against defendant APWU survive review under 28 U.S.C. § 1915(e)(2)(B).
However, plaintiff does allege facts specific to claims of breach of fiduciary duty, failure
to represent, and worker's compensation retaliation against APWU.

Plaintiffs amended

complaint describes multiple occasions where she tried to file a grievance with the union and
was denied the right to do so, and where she did file a grievance with the union but no action was
taken on her behalf. Plaintiff also alleges that a union representative told her that "all injured
employees work later hours," and that this retaliatory practice was aimed at employees collecting
worker's compensation benefits. As long as these grievances are exhausted, which the Court has
no reason to believe they are not at this point, plaintiff has stated sufficient allegations to
maintain claims of breach of duty, failure to represent, and worker's compensation retaliation
against APWU.
Appointment of Counsel

Finally, the Court will deny plaintiffs motion for appointment of counsel without
prejudice. There is no constitutional or statutory right to appointed counsel in civil cases. See
Nelson v. Redfield Lithograph Printing, 728 F.2d 1003, 1004 (8th Cir. 1984). To determine

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whether to appoint counsel, the Court considers several factors, including whether:

(1) the

plaintiff has presented non-frivolous allegations supporting his or her prayer for relief; (2) the
plaintiff will substantially benefit from the appointment of counsel; (3) there is a need to further
investigate and present the facts related to the plaintiff's allegations; and (4) 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, the Court finds that
the facts and legal issues involved in plaintiff's case are not so complicated that the appointment
of courisel is warranted at this time.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF
No. 3] is GRANTED. Pursuant to 28 U.S.C. § 1915(a), the filing fee is waived.
IT IS FURTHER ORDERED that plaintiff's motion for leave to file amended
complaint [ECF No. 5] is GRANTED.
IT IS FURTHER ORDERED that plaintiff's motion for leave to supplement the record
in response to the Court's show cause order [ECF No. 8] is GRANTED.
IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [ECF
No. 2] is DENIED without prejudice.
IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to
issue upon the amended complaint as to defendant Megan J. Brennan, Postmaster General United
States Postal Service, with regard to plaintiff's allegations of age discrimination, disability
discrimination, and retaliation.
IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to
issue upon the amended complaint as to defendant American Postal Worker Union AFL-CIO,
with regard to plaintiff's allegations of breach of duty.

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IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to
issue upon the amended complaint as to defendant Megan J. Brennan, Postmaster General United
States Postal Service, for plaintiffs allegations of discrimination based on race and gender
because they are legally frivolous or fail to state a claim upon which relief can be granted, or
both. Plaintiffs discrimination claims based on race and. gender against defendant Megan J.
Brennan, Postmaster General United States Postal Service, are DISMISSED without prejudice .
. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to
issue upon the amended complaint as to defendant American Postal Worker Union AFL-CIO, for
plaintiffs allegations of discrimination based on age, disability, race, and gender because they
are legally frivolous or fail to state a claim upon which relief can be granted, or both. Plaintiffs
discrimination claims based on age, disability, race, and gender against defendant American
Postal Worker Union AFL-CIO are DISMISSED without prejudice.
An Order of Partial Dismis'sal will accompany this Memorandum and Order.
Dated this 9th day of January, 2019.

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