Dancy v. Wireless Vision, LLC

Filing 15

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants motion to dismiss is DENIED. ECF No. 8 . Signed by District Judge Audrey G. Fleissig on 11/17/20. (KJS)

Case: 4:20-cv-00764-AGF Doc. #: 15 Filed: 11/17/20 Page: 1 of 9 PageID #: 166

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DARRELL DANCY,
Plaintiff,
vs.
WIRELESS VISION, LLC,
Defendant.

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Case No. 4:20-cv-00764

MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s motion to dismiss Plaintiff’s
complaint for failure to state a claim, pursuant to Federal Rule of Civil Procedure
12(b)(6). ECF No. 8. For the reasons set forth below, the motion will be denied.
BACKGROUND
Plaintiff Darrell Dancy, who is African American, originally filed this lawsuit in
state court alleging that Defendant Wireless Vision unlawfully discriminated against him
because of his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§2000e, et seq. ECF No. 1-1 at 2. Defendant removed the action to this Court, invoking
both federal question and diversity jurisdiction, 1 and filed the present motion to dismiss
the complaint for failure to exhaust administrative remedies. More specifically,

This Court has federal question jurisdiction under 28 U.S.C. § 1331 insofar as
Plaintiff’s complaint arises under Title VII. Though unnecessary, Defendant also submits
that the Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332 because Plaintiff is
a citizen of the state of Illinois and Defendant is a Michigan limited liability company
with no members or owners in Missouri, and the damages sought, although not specified
by Plaintiff, would exceed $75,000.
1

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Defendant contends that Plaintiff failed to file a charge of discrimination with the EEOC
within 300 days of his termination as required by Title VII. The record reflects the
following chronology.
Plaintiff was employed as a retail store manager for Defendant from March 2014
until his termination on February 19, 2016. ECF No. 1-1 at pp. 8, 16. Exactly 273 days
after his termination, on November 15, 2016, Plaintiff filed with the EEOC an initial
intake questionnaire on which he checked boxes claiming discrimination on the basis of
race, retaliation, and pregnancy. In the narrative sections, Plaintiff stated that his
termination was “put into motion” after he opted out of a trip to New York due to the
upcoming birth of his child - an event for which he had previously obtained approval for
leave under the Family Medical Leave Act. Plaintiff further asserted in this questionnaire
that Defendant’s reason for terminating him (later clarified in the charge) was “beyond
[his] control” and that “others who were involved” or “who had the exact same scenario
occur [at] their locations” were not terminated. Above his signature, Plaintiff checked
the box indicating that he wished to file a charge of discrimination and authorized the
EEOC to investigate.
On December 10, 2018, long past the 300-day deadline, Plaintiff, through counsel,
filed with the EEOC a formal charge of discrimination asserting claims of race
discrimination and retaliation. ECF 1-1 at 12. In the narrative, Plaintiff clarified that
Defendant’s stated reason for termination was that Plaintiff had failed to address
fraudulent “credit class R” transactions that had occurred at his store, though Plaintiff did
address the problem. Plaintiff further stated that Defendant falsely characterized a phone

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call as a formal coaching conversation and did not follow its own progressive discipline
policy before terminating him. Plaintiff asserted that his supervisors had “significant,
unreasonable, and irrational hostility towards [his] request for family medical leave . . .
motivated by the fact [that his] wife is white.” ECF 1-1 at 13. Plaintiff stated that
similarly situated employees who were not African American were treated more
favorably and were not disciplined as a result of fraudulent credit class R transactions.
On July 17, 2019, the EEOC issued a right-to-sue notice. ECF No. 1-1 at 14. On
October 15, 2019, Plaintiff filed a petition in state court asserting two counts of
discrimination, under Title VII and 42 U.S.C. § 1981, respectively, and one count under
Mo. Rev. Stat. § 290.140 (governing an employer’s obligation to provide a service letter
after termination). 2 ECF No. 5. In the petition, Plaintiff pleads that his supervisors were
willing to overlook the problematic transactions in his store because Plaintiff’s race was
valuable to their business objectives in New York. But then when Plaintiff opted out of
that trip for family reasons, Plaintiff was forced to write a letter of apology to his coworkers and was then terminated.
In support of its motion to dismiss, Defendant contends that Plaintiff’s claim is
time-barred because he failed to file his EEOC charge within 300 days of his termination.
In response (ECF No. 11), Plaintiff asserts that his intake questionnaire, filed within the

2

Defendant notes that Plaintiff has filed two other lawsuits relating to his
termination. ECF No. 9 at p. 2, FN 1. One previously pending in this Court was
dismissed without prejudice for failure to prosecute. Dancy v. Wireless Vision LLC, Case
No. 4:17cv2126-RLW. Another previously pending in the Circuit Court of St. Louis
County was voluntarily dismissed during discovery. Dancy v. Wireless Vision LLC, et
al., Case No. 18SL-CC03132.
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300-day period, was sufficient to place Defendant on notice of his intent to pursue a
claim; as such, he exhausted administrative remedies and his claim is timely. In reply
(ECF No. 12), Defendant maintains that the questionnaire does not contain sufficient
particulars to constitute a charge and, moreover, the facts alleged in the questionnaire
versus the complaint are too different to permit the former to preserve the latter.
DISCUSSION
Rule 12(b)(6) Standards
To survive a motion to dismiss for failure to state a claim, a plaintiff’s allegations
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) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The reviewing court accepts the plaintiff’s
factual allegations as true and draws all reasonable inferences in favor of the nonmoving
party. Torti v. Hoag, 868 F.3d 666, 671 (8th Cir. 2017). But “[c]ourts are not bound to
accept as true a legal conclusion couched as a factual allegation, and factual allegations
must be enough to raise a right to relief above the speculative level.” Id.
When considering a motion to dismiss under Rule 12(b)(6), a court may consider
material attached to the complaint and materials that are public records, do not contradict
the complaint, or are necessarily embraced by the pleadings. Porous Media Corp. v. Pall
Corp., 186 F.3d 1077, 1079 (8th Cir. 1999).
Analysis
Title VII requires that, before a plaintiff can bring a suit in court claiming
unlawful discrimination or retaliation, he must file a timely charge with the EEOC or the

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appropriate state or local agency. 42 U.S.C. § 2000e–5(e)(1); Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 109-10 (2002). In Missouri, this obligation must be discharged
within 300 days of the adverse employment action. Brooks v. Midwest Heart Group, 655
F.3d 796, 800 (8th Cir. 2011).
In support of his position that his intake questionnaire was sufficient to constitute
a timely charge, Plaintiff relies on Fed. Exp. Corp. v. Holowecki, 552 U.S. 389 (2008),
instructing that a questionnaire can constitute a charge where it contains the information
required by applicable regulation and can be reasonably construed as a request for agency
action. Defendant counters that Holowecki, an age discrimination case, involved
different regulations and a distinguishable record, including a six-page affidavit attached
to the questionnaire. Defendant further argues that Plaintiff’s questionnaire fails to
articulate facts suggesting discrimination and cannot be construed as a request for agency
action.
The applicable regulation setting forth the requirements of a charge states in
pertinent part as follows:
(a) Each charge should contain the following:
(1) The full name, address and telephone number of the person making
the charge except as provided in § 1601.7;
(2) The full name and address of the person against whom the charge is
made, if known (hereinafter referred to as the respondent);
(3) A clear and concise statement of the facts, including pertinent dates,
constituting the alleged unlawful employment practices: See
§ 1601.15(b);
(4) If known, the approximate number of employees of the respondent
employer or the approximate number of members of the respondent
labor organization, as the case may be; and

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(5) A statement disclosing whether proceedings involving the alleged
unlawful employment practice have been commenced before a State or
local agency charged with the enforcement of fair employment practice
laws and, if so, the date of such commencement and the name of the
agency.
(b) Notwithstanding the provisions of paragraph (a) of this section, a charge
is sufficient when the Commission receives from the person making the
charge a written statement sufficiently precise to identify the parties, and to
describe generally the action or practices complained of. A charge may be
amended to cure technical defects or omissions, including failure to verify
the charge, or to clarify and amplify allegations made therein. Such
amendments and amendments alleging additional acts which constitute
unlawful employment practices related to or growing out of the subject
matter of the original charge will relate back to the date the charge was
first received. A charge that has been so amended shall not be required to
be redeferred.
29 C.F.R. § 1601.12.
The Court finds that Plaintiff’s questionnaire satisfies these requirements
and, in accordance with paragraph (b), the additional particulars set forth in
Plaintiff’s formal charge relate back to the timely questionnaire. Contrary to
Defendant’s argument, the Court finds the substance of the questionnaire
sufficient insofar as Plaintiff checked the box for race discrimination and asserted
that similarly situated non-African American employees who had “the exact same
scenario occur with their locations” (referring to the problem transactions that
were Defendant’s stated reason for terminating Plaintiff) were not terminated. 3
Plaintiff’s subsequent charge further clarified and amplified the allegations, as
permitted by paragraph (b) above.

3

Defendant also checked the box for retaliation stemming from his withdrawal
from a business trip due to family leave. Plaintiff does not appear to pursue a claim of
retaliation in his complaint.
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The Court also finds that Plaintiff’s timely questionnaire can be construed
as a request for agency action, as required by Holowecki. After Holowecki was
decided, the EEOC questionnaire was modified to include check boxes above the
signature line specifying the nature of agency action requested. Plaintiff checked
Box 2 of the questionnaire authorizing the EEOC to investigate the discrimination
described therein. ECF No. 1-1 at p. 11. Other courts have recognized that this
satisfies the requirement. See e.g., Hildebrand v. Allegheny County, 757 F.3d 99,
113 (3d Cir. 2014) (“Under the revised form, an employee who completes the
Intake Questionnaire and checks Box 2 unquestionably files a charge of
discrimination.”); Patillo v. Sysco Foods of Arkansas, LLC, No. 4:16CV00722
JLH, 2018 WL 2465770, at *5 (E.D. Ark. June 1, 2018) (citing Hildebrand).
Lastly, Defendant argues that the allegations in Plaintiff’s questionnaire are too
different from those later pleaded in his complaint, such that the charge was insufficient
to constitute notice of the actual claim. Defendant’s argument relies entirely on the
content of the questionnaire without regard to the supplemental facts in the subsequent
charge, which Defendant disregards as untimely. This premise is flawed, as paragraph
(b) of the regulation makes clear. Viewing the questionnaire and charge together, the
Court does not find them defective as a basis for the complaint. Courts “do not require
that subsequently-filed lawsuits mirror the administrative charges.” Duncan v. Delta
Consol. Indus. Inc., 371 F.3d 1020, 1025 (8th Cir. 2004) (abrogated on other grounds by
Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011); Favaloro v. BJC
Healthcare, 4:14-CV-284 CAS, 2015 WL 6531867, at *3 (E.D. Mo. Oct. 28, 2015). The

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sweep of any subsequent judicial complaint may be as broad as the scope of the EEOC
investigation that could reasonably be expected to grow out of the charge. Id. (citing
Cobb v Stringer, 850 F.2d 356, 359 (8th Cir. 1988). See also, Anderson v. Block, 807
F.2d 145, 148 (8th Cir. 1986) (same), and Mayes v. Reuter, 4:17 CV 2905 CDP, 2018
WL 2267905, at *6 (E.D. Mo. May 17, 2018) (citing Anderson for the proposition that
“claims should be interpreted liberally, such that administrative remedies are deemed
exhausted as to all incidents of discrimination that are ‘like or reasonably related to the
allegations’ of the charge”).
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Further, while not the model of clarity, the questionnaire alone may fairly be read

to allege that Plaintiff was terminated from his employment after advising that he could
not go on a trip to New York due to his wife’s pregnancy, for which he had been given
FLMA leave; that this termination was racially motivated; and that others who engaged
in similar conduct (presumably referencing the grounds Defendant provided for
Plaintiff’s termination) were not terminated. His later EEOC charge and complaint allege
little more than this, except that the EEOC charge further explains that part of the racial
animus was due to the fact that Plaintiff is black and his wife is white, and specifies the
alleged reason for his termination (for which the company would have had notice), which
Plaintiff alleges was false. That the complaint states a slightly different motivation,
namely, that the termination was motivated by the fact that the company would be unable
to use Plaintiff’s race as an example during the trip, does not prevent relationback. Plaintiff is, at bottom, still alleging that his termination was racially motivated,
based on his refusal to go on the trip to New York; that the reason given for his

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termination was untrue; and others who engaged in conduct similar to that offered as the
reason for his termination were treated more favorably.
The Court concludes that Plaintiff’s timely questionnaire was sufficient to
constitute a charge, which was subsequently amended as permitted by 29 C.F.R.
1601.12(b), and that the allegations in the complaint are reasonably related thereto. Thus,
Plaintiff exhausted his administrative remedies, and his complaint therefore survives the
present motion to dismiss.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant’s motion to dismiss is DENIED.
ECF No. 8.

____________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 17th day of November 2020.

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