United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court upon the motion of plaintiff Errol
Otis Peyton, Jr., for leave to proceed herein in forma
pauperis. (Docket No. 2). Upon consideration of the
financial information provided with the motion, the Court
finds that plaintiff is financially unable to pay any portion
of the filing fee. The motion will therefore be granted.
filed a complaint in this Court on January 23, 2017, alleging
employment discrimination on the basis of age in violation of
the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621-634. Named
as defendants are The Home Depot, Shawn Scott, and Greg
Stevens. Attached to the complaint is a copy of a right to
sue letter from the Equal Employment Opportunity Commission
(“EEOC”) dated October 24, 2016, a copy of a
notice of right to sue from the Missouri Commission on Human
Rights (“MCHR”) dated December 15, 2016, and a
copy of plaintiff's charge of discrimination form.
Plaintiff alleges that the discriminatory conduct took place
on February 24, 2016. He alleges that he was terminated for
tardiness but younger employees were not terminated or
disciplined for tardiness, and that he was passed over for
full time employment in favor of younger employees. He also
checked boxes indicating that the terms and conditions of his
employment differed from those of similar employees, and that
he was subject to harassment.
complaint, plaintiff names his former employer, The Home
Depot, and two individuals: Shawn Scott and Greg Stevens. The
individual defendants' names appear only in the caption
of the complaint. However, in his charge of discrimination
form, plaintiff stated that “Sean Scott” was his
immediate supervisor. For relief, plaintiff states that he
feels he should be compensated.
Standard on Initial Review
to 28 U.S.C. § 1915(e)(2)(B), the Court shall
dismiss a complaint filed in forma pauperis if the action is
frivolous, malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief from a
defendant who is immune from such relief. An action is
frivolous if it “lacks an arguable basis in either law
or fact.” Neitzke v. Williams, 490 U.S. 319,
328 (1989); Denton v. Hernandez, 504 U.S. 25, 31
(1992). A complaint fails to state a claim if it does not
plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). An action is
malicious if it is undertaken for the purpose of harassing
the named defendants and not for the purpose of vindicating a
cognizable right. Spencer v. Rhodes, 656 F.Supp.
458, 461-63 (E.D. N.C. 1987), aff=d 826 F.2d 1059
(4th Cir. 1987).
reviewing a pro se complaint under § 1915(e)(2), the
Court must give the complaint the benefit of a liberal
construction. Haines v. Kerner, 404 U.S. 519, 520
(1972). However, this rule does not mean that procedural
rules in ordinary civil litigation must be interpreted so as
to excuse mistakes by those who proceed without counsel.
See McNeil v. U.S., 508 U.S. 106, 113 (1993). In
addition, pro se complaints must allege sufficient facts to
support the claims advanced. Stone v. Harry, 364
F.3d 912, 914 (8th Cir. 2004).
ADEA makes it “unlawful for an employer...to discharge
any individual or otherwise discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's age.” 29 U.S.C. § 623(a). Persons
aged forty and over are protected by the ADEA. 29 U.S.C.
reviewed the complaint and the written documents submitted as
exhibits thereto, Fed.R.Civ.P. 10(c), the Court determines
that plaintiff has stated a claim against The Home Depot, and
such claims will be allowed to go forward. However,
plaintiff's claims against Scott and Stevens will be
dismissed. Plaintiff fails to allege that either of them
personally engaged in any conduct that would violate the
ADEA. In the charge of discrimination form, plaintiff
identifies Scott as his supervisor, but he does not allege
that Scott actually did anything to discriminate against him.
In the complaint, the only place Scott's name appears is
in the caption of the complaint. Plaintiff refers generally
to his “supervisor” and states that he was called
into the office, and the later alleges that he “was let
go that day 2-24-2016.” (Docket No. 1 at 5-6). Even
assuming that supervisor was Scott, plaintiff's
allegations that he was called into the office and his later
allegation that he “was let go that day” fail to
state sufficient facts allowing the conclusion that the
supervisor directly participated in his termination.
Stevens, the only place his name appears is in the caption of
the complaint. Merely listing a defendant in a case caption
is insufficient to support a claim against the defendant.
Krych v. Hass, 83 Fed.Appx. 854, 855 (8th Cir. 2003)
(citing Potter v. Clark, 497 F.2d 1206, 1207 (7th
Cir. 1974) (per curiam) (noting that court properly
dismissed pro se complaint that was silent as to defendant
except for his name appearing in caption)).
completed his complaint on a court-provided form, which
specifically states that he is required to specifically
describe the conduct he believed was discriminatory, and to
describe how each defendant was involved in such conduct. The
facts alleged simply do not give rise to a “plausible
entitlement to relief” against Scott or Stevens under
the ADEA, Twombly, 127 S.Ct. at 1967, and they will
therefore be dismissed from this cause of action.
plaintiff did allege sufficient facts against Scott, his
claims against him are subject to dismissal because, as an
individual, Scott cannot be held personally liable under the
ADEA. Only “employers” are prohibited from
discriminating against an employee on the basis of age. 29
U.S.C. § 623(a). Therefore, to state facts necessary to
a potential finding of liability against a defendant, a
plaintiff must assert that the defendant was an employer. The
ADEA defines an employer as “a person engaged in an
industry affecting commerce who has twenty or more employees