Cross v. Ferriero

Filing 20

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Plaintiff's Motion for Leave to File an Amended Complaint, Doc. 15 , is DENIED. Signed by District Judge Matthew T. Schelp on 05/09/2024. (KCD)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROSALIND CROSS,

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Plaintiff,
vs.
COLLEEN SHOGAN,
Defendant.

Case No. 4:23-cv-976-MTS

MEMORANDUM AND ORDER
Before the Court is Plaintiff’s Motion for Leave to File Amended Complaint. Doc. [15].
On August 4, 2023, Plaintiff Rosalind Cross brought this action against Defendant David S.
Ferriero. Colleen Shogan was subsequently substituted as the Defendant on October 16, 2023.
Doc. [8]. The Court then entered a Case Management Order (“CMO”), Doc. [12], on November
16, 2023, and later amended the CMO, Doc. [14], on January 9, 2024. Under the Amended CMO,
any amendments to the pleadings were to be submitted by January 12, 2024, Doc. [14] ¶ 2, and on
January 12, 2024, Plaintiff requested leave to file an Amended Complaint. For the reasons that
follow, the Court will deny leave to amend.
I.

Background
Plaintiff Rosalind Cross (“Plaintiff” or “Cross”) is a former employee of the National

Archives and Records Administration (“NARA” or “the Agency”) in St. Louis County, Missouri,
where she worked in National Personnel Records Center-Military Personnel Records (“NPRCMPR”). Doc. [1-1] ¶¶ 1-2. Plaintiff worked as part of the Management System Staff for the
NPRC-MPR, and served as a Management Analyst under supervisor, Defendant Jason Hardy. Id.
¶¶ 4-5.

According to Plaintiff’s Preliminary Statement, Doc. [1-1], on January 9, 2018, Plaintiff
contacted the Equal Employment Opportunity (“EEO”) Office of the NARA with a complaint, and
later, Plaintiff filed a formal EEO Retaliation Complaint (“the Formal Complaint”) on February
22, 2018. Id. ¶¶ 19-20. In her Formal Complaint of Discrimination, Plaintiff alleged that she filed
the complaint on the basis of reprisal for prior EEO activity. Doc. [1-2] at 24. In her description
of the incident, Plaintiff alleged that the “Agency has developed a retaliation and harassment
pattern; by using disparate, humiliating,” and other “tactics” to interfere with Plaintiff’s work
performance. Doc. [1-2] at 25. Additionally, Plaintiff claimed that the Agency was “using
[Plaintiff’s] performance appraisals as a preface[] for Harassment, Disparate Treatment,
Discrimination and Retaliation,” which led to an increase in Plaintiff’s workload but decrease in
performance appraisal. Id. Following the Formal Complaint, Plaintiff’s summary rating was
reduced to “Minimal Successful,” and Plaintiff was provided with a Report of Investigation
(“ROI”). Doc. [1-1] ¶¶ 21, 25. Almost two years later, the Equal Employment Opportunity
Commission (“EEOC”) Administrative Judge issued a Decision and Order granting the Agency’s
Motion for Summary Judgment.

Id. ¶ 36.

Plaintiff’s subsequent appeal and Request for

Reconsideration were both fruitless. Id. ¶¶ 41-46.
In the EEOC’s Decision on Request for Reconsideration, the EEOC noted that Plaintiff’s
initial EEO Complaint alleged discrimination “in reprisal for prior protected EEO activity,” and
resulted from (1) Plaintiff allegedly being subjected to a “Fully Successful” rating in her
performance appraisal for the time period of October 2016 to September 2017, and the following
year Plaintiff received a summary rating below “Fully Successful.” Doc. [1-3] at 1-2. The EEOC
Administrative Judge then awarded summary judgment to the Agency finding Plaintiff was “not
subjected to reprisal as alleged,” a decision that was adopted by the Agency and affirmed in the
appellate decision. Id. at 2. On reconsideration, the EEOC “found no basis to disturb the
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Commission’s prior decision,” and determined the arguments raised by Plaintiff were proper only
for an appeal. Id. This decision exhausted the administrative appeal availability for Plaintiff and
opened the right to file a civil action in this Court. Id. As is her right, Plaintiff now brings suit.
II.

Discussion
Federal Rule of Civil Procedure 15(a) permits a party to amend its pleading once as a matter

of course within 21 days of serving the pleading or within 21 days after service of a responsive
pleading or Rule 12(b), (e), or (f) motion. Otherwise, “a party may amend its pleading only with
the opposing party’s written consent or the court’s leave,” and the rule directs courts to “freely
give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Denial of leave to amend pleadings
is appropriate only in limited circumstances, such as where “undue delay, bad faith . . ., futility of
the amendment, or unfair prejudice . . . can be demonstrated.” Hillesheim v. Myron’s Cards &
Gifts, Inc., 897 F.3d 953, 955 (8th Cir. 2018) (quoting Roberson v. Hayti Police Dep’t, 241 F.3d
992, 995 (8th Cir. 2001)).
“Under Title VII, plaintiffs must follow administrative procedures and exhaust
administrative remedies by timely filing a charge of discrimination with the EEOC before filing
suit in federal court.” See Hamilton v. Enter. Rent-A-Car, 4:04-cv-802-CAS, 2005 WL 8176817,
at *2 (E.D. Mo. Jan. 12, 2005) (quoting 42 U.S.C. § 2000e-5(e)(1)); see also Alexander v. GardnerDenver Co., 415 U.S. 36, 47 (1974). To exhaust administrative remedies, “the claimant is required
to demonstrate good faith participation in the administrative process” by making specific charges
and providing the requisite information to the charge. Briley v. Carlin, 172 F.3d 567, 571 (8th Cir.
1999). The Eighth Circuit has also stated that, when reviewing for exhaustion, “courts should not
use Title VII’s administrative procedures as a trap for unwary pro se civil-rights plaintiffs,” and
when applicable, should “construe civil-rights and discrimination claims charitably.” See Shannon
v. Ford Motor Co., 72 F.3d 678, 685 (8th Cir. 1996).
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Here, Plaintiff’s initial Complaint cited “retaliation” as the nature of the case because of
her “prior EEO complaints.” Doc. [1] ¶¶ 10-11. However, in her proposed Amended Complaint,
Plaintiff attempts to include an additional theory: race discrimination. Doc. [15-1] ¶ 11. Attached
to Plaintiff’s Complaint is the EEOC’s right-to-sue letter, Doc. [1-3]. In the letter, the EEOC noted
that Plaintiff filed a “formal EEO Complaint alleging that [NARA] discriminated against her in
reprisal for prior protected EEO activity,” and ultimately, determined Plaintiff “was not subjected
to reprisal as alleged.” Id. at 1-2. The letter contains no reference to race discrimination.
Plaintiff also included her Formal Complaint with the EEOC as an exhibit to her
Complaint. See Doc. [1-2] at 24-28. In the Formal Complaint, despite the form containing an
option for “race” as the basis for the complaint, Plaintiff only selected “reprisal.” Doc. [1-2] at 24.
Instead, when discussing the Agency behavior in more detail, she discusses ratings, appraisals, and
compensation but notably fails to mention race. Id. at 26. Plaintiff does reference “disparate
treatment” as a basis for her lowered Annual Performance Appraisal but does not include race
specifically within the Formal Complaint. Id. at 24-28. This is insufficient to provide notice of a
charge of racial discrimination. Brown v. Gen. Motors, LLC, 4:20-cv-1760-RLW, 2022 WL
343415, at *3 (E.D. Mo. Feb. 3, 2022) (explaining that sufficient notice was not provided with “a
reference to ‘stress at work’” without more detail).
Plaintiff contends that the “‘Race’ box was checked” but “became blank after submission”
and that her complaint was actually for race discrimination and retaliation. Doc. [19] at 2. Plaintiff
does include brief references to race in her Preliminary Statement and Notice of Retaliation, 1 Doc.

Plaintiff references that “[n]o NPRC, African American, Management Analyst has been competitively promoted
from 1989 prior to this Complaint.” Doc. [1-1] ¶ 8. Plaintiff also stated that “‘your race’ [was] the reason given to
[her] for why [she] could not re-locate to sit with [her] team members.” Id. ¶ 58. Additionally, within her Notice of
Retaliation, Plaintiff stated “[i]f their appraisals are not equal to or less than [her] appraisal; then [she] would consider
NPRC to be RETALIATORS and RACIST.” Doc. [1-2] at 10.
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[1-1] ¶¶ 8, 58; Doc. [1-2] at 10, but the charge alleged within the Statement cites only retaliation. 2
See Doc. [1-1] at 8. “While the Court must construe [a plaintiff’s] EEOC charge liberally, it will
not invent a claim that simply was not made.” See Brown, 2022 WL 343415, at *3; see also Parisi
v. Boeing Co., 400 F.3d 583, 585 (8th Cir. 2005).
Ultimately, “[c]laims of discrimination raised in a judicial complaint that were not
previously raised in an EEOC charge, or are not ‘like or reasonably related to’ such EEOC claims,
are deemed not to be exhausted and are thus barred from judicial review.” See Vahey v. Safe Env’t
Bus. Sols., 4:16-cv-2149-NCC, 2018 WL 11487390, at *4 (E.D. Mo. Apr. 25, 2018) (citing
Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir. 1994)). And “it is well
established that retaliation claims are not related to underlying discrimination claims.” See
Slayden v. Ctr. for Behav. Med., 533 F.4th 464, 468 (8th Cir. 2022). Therefore, amendment is
futile because Plaintiff has failed to exhaust her administrative remedies related to a race
discrimination claim. As such, the Court will deny Plaintiff’s Motion.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to File an Amended
Complaint, Doc. [15], is DENIED.
Dated this 9th day of May 2024.

MATTHEW T. SCHELP
UNITED STATES DISTRICT JUDGE

Specifically, Count I of the Preliminary Statement expressly states, “Under the EEOC guidelines, retaliation can be
displayed by: the Agency not adhering to administrative policies, task-related conflicts, giving discriminating
performance evaluations, and making the person’s work more difficult, in order to punish, deter and discourage a EEO
retaliation complaint.” Doc. [1-1] at 8.

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