Webb v. GKN Aerospace et al
Filing
44
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that defendant GKN Aerospace NorthAmerica/Melrose, LLC's Motion to Dismiss Second Amended Complaint 43 isGRANTED IN PART AND DENIED IN PART. IT IS FURTHER ORDERED that plaintiff Terry A. Webb's c laims brought under Title VII and the ADA are dismissed with prejudice as untimely filed. Plaintiffs claim brought under the FMLA is permitted to proceed. Defendant is reminded of its obligation to answer the FMLA claim within the time set by the rules. Signed by District Judge Catherine D. Perry on 9/19/2022. (KEK)
Case: 4:21-cv-01085-CDP Doc. #: 44 Filed: 09/19/22 Page: 1 of 9 PageID #: 323
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TERRY A. WEBB,
Plaintiff,
v.
GKN AEROSPACE NORTH
AMERICA/MELROSE, LLC,
Defendant.
)
)
)
)
)
)
)
)
)
)
Case No. 4:21 CV 1085 CDP
MEMORANDUM AND ORDER
Plaintiff Terry A. Webb brings this employment discrimination action
claiming that defendant GKN Aerospace North America/Melrose, LLC failed to
accommodate his disability and subjected him to sexual harassment, retaliation,
and unlawful termination. In his second amended complaint (SAC), he brings his
claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§
2000e, et seq. (Title VII); the Americans with Disabilities Act of 1990, as
amended, 42 U.S.C. §§ 12101, et seq. (ADA); and the Family and Medical Leave
Act, 29 U.S.C. §§ 2601, et seq. (FMLA). Because Webb’s claims brought under
Title VII and the ADA are untimely, I will grant GKN’s motion to dismiss those
claims from this lawsuit. Webb has stated a plausible claim for relief under the
FMLA, however, so I will deny GKN’s motion to dismiss that claim.
Case: 4:21-cv-01085-CDP Doc. #: 44 Filed: 09/19/22 Page: 2 of 9 PageID #: 324
Relevant Background1
Webb was terminated from his employment at GKN on November 22, 2019.
He completed an EEOC Pre-Charge Inquiry on November 7, 2019, claiming
retaliation and that he was subjected to differing terms and conditions of
employment. That file was closed on December 2, 2019. No Notice of Right to
Sue issued. Webb filed a formal Charge of Discrimination on April 28, 2021,
alleging that GKN discriminated against him on account of his sex and in
retaliation for engaging in protected activity. The EEOC issued a Notice of Right
to Sue on this Charge on May 24, 2021. Webb does not indicate in his SAC when
he received the Notice.2
Webb proceeds in this action pro se. He filed his original complaint on
August 27, 2021, and an amended “Employment Discrimination Complaint” on
October 5, 2021. After I granted GKN’s motion for more definite statement, Webb
filed his SAC on May 27, 2022.
1
The facts set out here are those alleged in the SAC, which I must assume are true for purposes
of the motion to dismiss.
2
In a separate unsworn statement filed three weeks before filing his SAC, Webb avers that he
received the Notice on August 3, 2021. (See ECF 38.) In my Order granting GKN’s motion for
more definite statement, however, I directed Webb to file a second amended complaint signed
under penalty of perjury and to include therein a statement of when he received the Notice of
Right to Sue. (Memo. & Order, ECF 35, filed April 12, 2022, at p. 14.) I cautioned that without
such a statement, I would presume Webb received the Notice three days after the EEOC issued
it. (Id.) Because Webb’s unsworn statement does not comply with my April 12 Order, is not
included in the SAC, nor is a document necessarily embraced by the pleading, I do not consider
it on GKN’s motion to dismiss. Cf. Demarais v. Gurstel Chargo, P.A., 869 F.3d 685, 697 n.2
(8th Cir. 2017) (statements raising new facts not alleged in the pleadings constitute matters
outside the pleadings, which may not be considered on a Rule 12(b)(6) motion to dismiss).
-2-
Case: 4:21-cv-01085-CDP Doc. #: 44 Filed: 09/19/22 Page: 3 of 9 PageID #: 325
In his SAC, Webb checked off boxes indicating that he was bringing claims
under Title VII and the ADA. He also checked “Other,” describing his claims as
“sexual harassment by a manager of GKN”; “refused to accommodate disability”;
“treatment was different than of that others had”; “terminated and I wasn’t above
threshold.” (ECF 40 at p. 2.) Regarding the nature of the case, Webb checked the
following as providing the bases for his claims: termination of his employment,
failure to accommodate his disability, terms and conditions of his employment
differed from those of similar employees, retaliation, and harassment. (Id. at p. 4.)
He checked the box indicating that he believed he was discriminated against
because of his disability. He delineated five counts for relief: 1) Sexual
harassment; 2) Failure to accommodate disability; 3) Terms and conditions
different from others; 4) Retaliation for filing harassment complaint with Human
Resources; and 5) Harassment/Termination in violation of the terms of his
approved FMLA leave. (Id. at pp. 5-8.) As relief, Webb seeks reinstatement with
seniority and insurance; $400,000 representing three years’ salary and overtime
pay; recovery of his pension and 401K monies; an additional $400,000 for pain
and suffering; and an additional $3 million for medical issues arising from
chemical exposure. (Id. at p. 9.)
GKN moves to dismiss the SAC in its entirety under Rule 12(b)(6), Federal
Rules of Civil Procedure. GKN argues that Webb’s Title VII and ADA claims are
-3-
Case: 4:21-cv-01085-CDP Doc. #: 44 Filed: 09/19/22 Page: 4 of 9 PageID #: 326
untimely filed and must be dismissed. GKN also argues that Webb’s FMLA claim
fails to allege sufficient facts demonstrating that relief can be granted on the claim.
Webb has not responded to the motion.
Legal Standard
The purpose of a Rule 12(b)(6) motion to dismiss is to test the legal
sufficiency of the complaint. When reviewing a Rule 12(b)(6) motion, I assume
the factual allegations of the complaint are true and construe them in plaintiff’s
favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). To survive
dismissal, a complaint must contain “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Id.; accord
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). It must contain sufficient factual
matter, accepted as true, to state a claim for relief “that is plausible on its face.”
Iqbal, 556 U.S. at 678. It need not contain “detailed factual allegations,” but it
must contain facts with enough specificity “to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. The issue in determining a Rule
12(b)(6) motion is not whether the plaintiff will ultimately prevail, but whether he
is entitled to present evidence in support of the claim. See Skinner v. Switzer, 562
U.S. 521, 529-30 (2011) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
A plaintiff’s employment discrimination claims may be dismissed under Rule
12(b)(6) if he failed to exhaust administrative remedies in pursuing them. See
-4-
Case: 4:21-cv-01085-CDP Doc. #: 44 Filed: 09/19/22 Page: 5 of 9 PageID #: 327
Hales v. Casey’s Mktg. Co., 886 F.3d 730 (8th Cir. 2018); Davis v. Lohr Distrib.
Co., Inc., No. 4:18CV1437 HEA, 2019 WL 2053848 (E.D. Mo. May 9, 2019).
I give Webb’s pro se complaint liberal construction. Solomon v. Petray, 795
F.3d 777, 787 (8th Cir. 2015). “When we say that a pro se complaint should be
given liberal construction, we mean that if the essence of an allegation is
discernible . . . then the district court should construe the complaint in a way that
permits the layperson’s claim to be considered within the proper legal framework.”
Id. (internal quotation marks and citation omitted).
Discussion
Timely filing a Charge of Discrimination with the EEOC or with the State or
local agency is a precondition to suit under Title VII and the ADA. Richter v.
Advance Auto Parts, Inc., 686 F.3d 847, 850 (8th Cir. 2012); 42 U.S.C. § 2000e5(e)(1) (Title VII); 42 U.S.C. § 12117(a) (ADA has adopted Title VII’s
enforcement procedures). See also Fort Bend Cty., Tex. v. Davis, 139 S. Ct. 1843,
1846, 1850-51 (2019) (filing a charge with the EEOC, while not jurisdictional, is a
precondition that must be met before bringing Title VII suit). In Missouri, a
complainant must file a Charge of Discrimination with the EEOC within 300 days
after the alleged unlawful employment practice occurred. Niekamp v. Missouri,
No. 20-4075-CV-C-WJE, 2020 WL 5350293, at *3 (W.D. Mo. Sept. 4, 2020).
Moreover, a plaintiff bringing an employment discrimination action under
-5-
Case: 4:21-cv-01085-CDP Doc. #: 44 Filed: 09/19/22 Page: 6 of 9 PageID #: 328
Title VII or the ADA must bring the action within ninety days from receipt of the
Notice of Right to Sue. 42 U.S.C. § 2000e-5(f); 42 U.S.C. § 12117(a). The
ninety-day period represents a limitations period that bars a suit not filed within
that time. Hales, 886 F.3d at 736. “Generally, the ninety-day filing period begins
to run on the day the right to sue letter is received at the most recent address that a
plaintiff has provided the EEOC.” Hill v. John Chezik Imps., 869 F.2d 1122, 1124
(8th Cir. 1989). The presumption is that the plaintiff will receive notice three days
after the mailing date. Hales, 886 F.3d at 736.
Webb’s Charge of Discrimination of April 28, 2021, is well outside the 300day requirement, being seventeen months from when he was terminated, and is
therefore untimely. Nothing in Webb’s SAC shows that equitable tolling applies.
Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); Miller v. Runyon, 32
F.3d 386, 389 (8th Cir. 1994).
Even if Webb’s November 2019 Pre-Charge Inquiry may be considered
sufficient to constitute a Charge, and his April 2021 Charge of Discrimination and
May 2021 Notice of Right to Sue considered to relate back to the date of the
Inquiry, see Donnelly v. St. John’s Mercy Med. Ctr., 635 F. Supp. 2d 970, 990-91
(E.D. Mo. 2009), Webb nevertheless filed this lawsuit more than ninety days after
he is presumed to have received the Notice of Right to Sue letter. The Notice of
Right to Sue Webb submitted with his SAC is dated May 24, 2021. Presuming
-6-
Case: 4:21-cv-01085-CDP Doc. #: 44 Filed: 09/19/22 Page: 7 of 9 PageID #: 329
Webb received the Notice three days later on May 27,3 he had ninety days
therefrom, that is, until August 25, 2021, to bring a federal action based on his
Charge of Discrimination. Webb filed this action on August 27. Accordingly, if I
were to consider Webb’s Charge of Discrimination as timely filed, this lawsuit is
not. I will therefore dismiss Webb’s Title VII and ADA claims from this action.
The FMLA, however, does not contain an exhaustion requirement for
actions brought against private sector employers. See Krohn v. Forsting, 11 F.
Supp. 2d 1082, 1085 (E.D. Mo. 1998). The FMLA entitles eligible employees of
covered employers to twelve workweeks of unpaid leave during any twelve-month
period under certain enumerated circumstances, including when the employee
suffers from “a serious health condition that makes the employee unable to
perform the functions” of his position. 29 U.S.C. § 2612(a)(1)(D). The FMLA
prohibits an employer from interfering with, restraining, or denying an employee’s
exercise of or attempt to exercise rights afforded to the employee by the statute. 29
U.S.C. § 2615(a)(1). See Walker v. Trinity Marine Prod., Inc., 721 F.3d 542, 544
(8th Cir. 2013) (citing Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996,
1005 (8th Cir. 2012)).
GKN argues that dismissal is appropriate because the SAC is unclear as to
whether Webb brings an “entitlement” claim, a “discrimination” claim, or a
3
See supra note 2.
-7-
Case: 4:21-cv-01085-CDP Doc. #: 44 Filed: 09/19/22 Page: 8 of 9 PageID #: 330
“retaliation” claim under the FMLA. I note that in advocating for Rule 12(b)(6)
dismissal on this basis, GKN cites cases decided on evidence submitted to the
Court after completion of discovery. See Sisk v. Picture People, Inc., 669 F.3d
896, 898 (8th Cir. 2012) (judgment as a matter of law); Pulczinski v. Trinity
Structural Towers, Inc., 691 F.3d 996 (8th Cir. 2012) (summary judgment). But on
a Rule 12(b)(6) motion to dismiss, I look only to the complaint to see if a claim is
plausible on its face. Liberally construing Webb’s pro se complaint here, I
conclude that Webb’s allegation of an FMLA violation is discernible, brought
within the proper legal framework, and is plausible on its face.
In his SAC, Webb claims that GKN forced him to work in an area where he
had medical restrictions. He claims that he suffered medical issues from chemical
exposure and has facial scars. He claims that he was approved for leave under the
FMLA and that his bosses “refused to accept it,” wrote him up for refusing to work
in the restricted area, and continued to “charge [him] attendance points.” He
claims that he was terminated for attendance issues despite his FMLA threshold
having not been met. He further contends that “Careworks,” a third-party
company, reported that his FMLA leave was mismanaged and mistakes were
made. (See ECF 40 at pp. 2, 5-7, 9.) On these facts, Webb has plausibly alleged
that GKN interfered with, restrained, or denied his exercise of or attempt to
exercise his rights under the FMLA and indeed terminated him in violation of his
-8-
Case: 4:21-cv-01085-CDP Doc. #: 44 Filed: 09/19/22 Page: 9 of 9 PageID #: 331
FMLA rights. I will deny GKN’s motion to dismiss Webb’s FMLA claim.
Accordingly,
IT IS HEREBY ORDERED that defendant GKN Aerospace North
America/Melrose, LLC’s Motion to Dismiss Second Amended Complaint [43] is
GRANTED IN PART AND DENIED IN PART.
IT IS FURTHER ORDERED that plaintiff Terry A. Webb’s claims
brought under Title VII and the ADA are dismissed with prejudice as untimely
filed. Plaintiff’s claim brought under the FMLA is permitted to proceed.
Defendant is reminded of its obligation to answer the FMLA claim within the time
set by the rules.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 19th day of September, 2022.
-9-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?