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Johnson v. McDonald

United States District Court, E.D. Missouri, Eastern Division

July 26, 2016

EARLENE JOHNSON, Plaintiff,
v.
ROBERT MCDONALD SECRETARY DEPARTMENT OF VETERANS AFFAIR, Defendant.

          MEMORANDUM AND ORDER

          CHARLES SHAW, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on defendant Robert McDonald’s motion to dismiss plaintiff’s complaint under Rule 12(b)(6), Federal Rules of Civil Procedure, for failure to exhaust administrative remedies and for failure to state a claim upon which relief can be granted, or in the alternative for a more definite statement under Rule 12(e), Fed.R.Civ.P. Plaintiff Earlene Johnson opposes the motion and it is fully briefed. For the following reasons, the Court will grant the motion to dismiss, but will grant plaintiff the opportunity to file an amended complaint.

         I. Background

         Plaintiff, who is pro se, filed her complaint on the Court’s form Employment Discrimination Complaint. Plaintiff checked boxes indicating her complaint is brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq. (“Title VII”); the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621, et seq. (“ADEA”); the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101, et seq. (“ADA)”; and the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701, et seq. (“Rehabilitation Act”). Plaintiff also checked the box for “Other” and stated “Hostile Work Environment” and “Retaliation Harassment.” Complaint at 1-2. Under the heading titled “Nature of the Case, ” plaintiff checked boxes for (1) termination of her employment, (2) failure to accommodate her disability, (3) the terms and conditions of her employment differ from those of similar employees, (4) retaliation, (5) harassment, and (6) other conduct, for which she specified: “Treated differently from those who worked in our department. Also I complained about a Hostile Environment.” Complaint at 4.

         The complaint states the following as the facts to support plaintiff’s claims:

I was treated differently from those who was on light duty. I was terminated under false allegations. I was treated differently from those who had a disability. One employee who was on light duty was accommodated in our dept. Another that was disabled was also accommodated in our dept. I was sent to the Laundry. The Supervisor and her boss also testified that all employees are sent to the Laundry. Nor did any of these employees had to walk up and down 9 flights of stairs everyday for break and lunch. Sometimes not taking lunch. Nor did one of these employees get terminated for pulling on another male private part almost everyday. It was reported not only by myself, but other staff. It only stopped when others complained. Not when I complained. Other employees conduct was disruptive. Not mine. They were using profanity towards me and admitted this during ORM investigation. This employee was not terminated. false written statements were written against me by employees in which I was terminated. O.R.M. came in and did an investigation. These same employees changed their story or didn’t cooperate, when they told the investigator they would. There other discriminatory actions toward me also.

Complaint ¶ 12.

         II. Legal Standard

         The purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency of the complaint. To survive a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, “a complaint 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plaintiffs “must include sufficient factual information to provide the ‘grounds’ on which the claim rests, and to raise a right to relief above a speculative level.” Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008) (citing Twombly, 550 U.S. at 555 & n.3). This obligation requires plaintiffs to plead “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

         On a motion to dismiss, the Court accepts as true all of the factual allegations contained in the complaint, even if it appears that “actual proof of those facts is improbable, ” id. at 556, and reviews the complaint to determine whether its allegations show that the pleader is entitled to relief. Id. at 555-56; Fed.R.Civ.P. 8(a)(2). The principle that a court must accept as true all of the allegations contained in a complaint does not apply to legal conclusions, however. Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice”). To survive a motion to dismiss, “a civil rights complaint must contain facts which state a claim as a matter of law and must not be conclusory.” Gregory v. Dillard’s, Inc., 565 F.3d 464, 473 (8th Cir. 2009) (en banc) (quotation marks and citation omitted).

         “While courts primarily consider the allegations in the complaint in determining whether to grant a Rule 12(b)(6) motion, courts additionally consider ‘matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint whose authenticity is unquestioned;’ without converting the motion into one for summary judgment.” Miller v. Redwood Toxicology Lab, Inc., 688 F.3d 928, 931 & n.3 (8th Cir. 2012) (quoting 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2004)).

         In this regard, plaintiff’s Response to the motion to dismiss consists of eight typewritten pages and approximately 140 pages of supporting documents. Because a court is to primarily consider the allegations contained in the complaint and exhibits thereto on a motion to dismiss, see Deerbrook Pavilion, LLC v. Shalala, 235 F.3d 1100, 1102 (8th Cir. 2000), the Court disregards these documents except to the extent they are matters of public record, and therefore does not convert the motion to dismiss to one for summary judgment.

         III. Discussion

         A. Plaintiff Failed to Exhaust Her Age Discrimination Claims

         Defendant moves to dismiss plaintiff’s claims under the ADEA for failure to exhaust administrative remedies. As a former federal employee, plaintiff was required to comply with certain notice and exhaustion requirements. See Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005). United States Equal Employment Opportunity Commission (“EEOC”) regulations require that employees of federal agencies who believe they have been discriminated against must consult an EEO Counselor prior to filing a complaint in order to try to informally resolve the matter. See 29 C.F.R. ยง 1614.105(a). Failure to exhaust ...


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