United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, Jr., District Judge.
Plaintiff Patricia Taylor filed this employment discrimination matter against her former employer. Defendant has moved to dismiss, or, in the alternative, for summary judgment (#21) on May 22, 2014. Plaintiff filed a "Motion to Add Doctor Information and Motion to Request Reconsideration from Court for Additional Time and/or Request for Pro Bono Attorney (#25) on May 30, 2014. Plaintiff also filed a "Memorandum to the Court and Attorney Shaw with Questions Questions and More Questions" (#27) on May 30. Finally, plaintiff also filed a "Motion for Clarification of Pro Se Status and Motion that Case Not Be Dismissed Because of Pro Se Status" (#26) on May 30.
According to the complaint, plaintiff was fired after she asked for and was denied time off to receive medical treatment. She also alleges that her immediate supervisor made fun of her and refused to accommodate her disability. She states that she complained to his supervisor and "requested to go to the union" but that she was "told as a probationary employee [that she] had no right to union representation." (#1 at 5.) Plaintiff does not identify her disability in her complaint, but she states that she had 20 hours of sick leave time available to her, but that she was still terminated from her job.
Plaintiff filed her discrimination lawsuit against Jacob Lew as Secretary of the Department of the Treasury under (1) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq., for employment discrimination on the basis of race, (2) Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621, et seq. ("ADEA"), for employment discrimination on the basis of age, (3) American with Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12101, et seq. ("ADA"), for employment discrimination on the basis of disability, and (4) Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701, et seq., for employment discrimination on the basis of a disability by an employer which constitutes a program or activity receiving federal financial assistance.
The defendant's motion, which attaches the documents related to plaintiff's termination and administrative discrimination charges, indicates that plaintiff worked for the Internal Revenue Service ("IRS") in St. Louis. Her start date was October 1, 2009, and she was terminated by letter on April 14, 2010. The letter stated that she was fired because she failed to perform at an acceptable level in her customer service position and that she had 71.2 hours of "absence without leave" ("AWOL") between March 12 and April 9, 2010.
Plaintiff filed a complaint of discrimination with the Department of the Treasury on May 21, 2010. On June 17, 2010 defendant sent plaintiff a letter accepting and summarizing its understanding of her May 21, 2010 complaint. On June 29, 2010, defendant sent a second letter to plaintiff revising its June 17, 2010 letter consistent with plaintiff's comments and revisions expressed during telephone conversations and an email from plaintiff dated June 29, 2010. Plaintiff's complaints at that stage were as follows:
1. Was Plaintiff discriminated against on the basis of disability and retaliation for filing a union grievance when, on or about February 26, 2010, she was allegedly denied reasonable accommodations of time off to attend therapy sessions despite submitting the required documents?
2. Was Plaintiff subjected to a hostile work environment on the basis of disability and retaliation for filing a union grievance? In support of this claim, plaintiff alleged (a) her requests for additional training and a different instructor were denied, (b) she was noted as AWOL despite allegedly providing requisite forms and doctor statements, (c) she was required to complete forms for reasonable accomodations to take her desk fan to her work area when other employees were not required to do so, (d) she was written up for breaching security when a contractor spontaneously offered to adjust her chair, (e) she received a negative performance review at her desk while speaking with taxpayers, was pressured to sign, and was denied the opportunity to discuss it, (f) she was denied immediate medical attention despite documentation that her blood pressure was elevated, and (g) she was terminated from her position.
Defendant issued its Final Agency Decision ("FAD") on November 4, 2010, finding that no discrimination or retaliation had occurred. The FAD was mailed by certified mail to plaintiff, and she received it in November 2010 - the date stamp on the certified mail receipt is hard to read, but it clearly says "NOV" as the month, and it appears to state "NOV 27." The "27" is written over in handwritten pen.
Plaintiff filed a Notice of Appeal ("NOA") with the United States Equal Employment Opportunity Commission ("EEOC"). She faxed the NOA with a cover sheet that stated the date was January 1, 2011, but the NOA was actually faxed on January 2. Plaintiff mailed a copy of the NOA on January 3.
Plaintiff filed her complaint in this Court on December 11, 2013. She indicated she sought relief for racial discrimination under the Civil Rights Act, for age discrimination under the ADEA, and for disability discrimination under the ADA and Rehabilitation Act. She also indicates that she was discriminated against because of her religion. Defendant has moved to dismiss or in the alternative for summary judgment pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 56.
II. Motion to Dismiss Standard
The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to test the legal sufficiency of a complaint so as to eliminate those actions "which are fatally flawed in their legal premises and deigned to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity." Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001) (citing Neitzke v. Williams, 490 U.S. 319, 326-27 (1989)). "To survive a motion to dismiss, a claim must be facially plausible, meaning that the factual content... allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Cole v. Homier Dist. Co., Inc., 599 F.3d 856, 861 (8th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Court must "accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party." ...