United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
NANNETTE A. BAKER UNITED STATES MAGISTRATE JUDGE
matter is before the Court upon review of the file after
plaintiff's filing of an amended complaint. For the
following reasons, the Court will allow plaintiff to file a
second amended complaint to allege with specificity the
protected activity in which she engaged and for which she was
unlawfully retaliated against under Title VII.
December 14, 2017, the Court conducted an initial review of
plaintiff's complaint under 28 U.S.C. § 1915(e). The
Court found that plaintiff had not alleged a prima facie case
of retaliation against her employer under Title VII because
she had not alleged that she engaged in statutorily protected
activity. Plaintiff did not allege her race, religion,
national origin, color, gender, disability or age, and the
Court had no facts from which it could draw any inference
that plaintiff engaged in any activity protected under Title
VII and was retaliated against. See ECF No. 11 at 3.
Because plaintiff was proceeding pro se, the Court provided
her an opportunity to amend her allegations to allege she was
retaliated against for engaging in a statutorily protected
January 2, 2018, plaintiff filed her amended complaint.
Again, she brings this action under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e, et
seq., for retaliation. As to why she believes she was
discriminated against, she checked the box on the form
complaint marked “other, ” but did not elaborate.
She did not check the box for race, religion, national
origin, color, gender, disability, or age.
statement of the claim, plaintiff states that she filed an
Informal Resolution Request (“IRR”) against her
supervisor at Hilton Hotel, Ms. Monica Johnson. Ever since
plaintiff filed this IRR, she states she has been subject to
a series of abuses, including having to perform other
employees' duties, her hours have been reduced, she has
been denied a raise, and Ms. Johnson caused a confrontation
with plaintiff, a friend, and three other employees.
Plaintiff states Ms. Johnson wrote plaintiff a written
violation for failing to perform her duties, which was later
dismissed. Plaintiff states that she feels “abused,
discriminated against, verbally abused, harassed, and
Court stated in its Order dated December 14, 2017, plaintiff
has not alleged that she was retaliated against because she
engaged in a protected activity. “Title VII prohibits
employers from retaliating against an employee who is engaged
in a protected activity, which can be either opposing an act
of discrimination made unlawful by Title VII . . . or
participating in an investigation under Title VII.”
Hunt v. Nebraska Pub. Power Dist., 282 F.3d 1021,
1028 (8th Cir. 2002) (finding plaintiff “failed to
present sufficient evidence that she opposed an
unlawful employment practice prior to her
termination”) (emphasis in original).
plaintiff states she was retaliated against for filing an
IRR. The Court has no information, however, regarding the
substance of plaintiff's IRR. If plaintiff's IRR
opposed an employment action made unlawful by Title VII, her
employer would be prohibited from retaliating against her for
filing the IRR. See Hunt, 282 F.3d at 1028-29. For
example, if plaintiff's IRR stated that Ms. Johnson was
discriminating against plaintiff based on her race, the
filing of the IRR would be a protected activity under Title
VII. In this example, it would be unlawful under Title VII to
retaliate against plaintiff for filing this IRR.
however, plaintiff stated in her IRR that Ms. Johnson was
nit-picking her work and assigning her extra duties, the
filing of the IRR would not necessarily be a protected
activity under Title VII. In this example, plaintiff would
simply be complaining about her supervisor's conduct, not
any discriminatory or unlawful conduct. Again, although
plaintiff's working conditions may be unacceptable, she
has not alleged she was retaliated against for engaging in
statutorily protected activity.
plaintiff's claims are serious in nature, the Court will
provide plaintiff another opportunity to amend her
allegations. Accordingly, plaintiff will be required to file
a second amended complaint, on a court form. To bring a claim
for retaliation under Title VII, plaintiff shall state with
specificity the protected activity she engaged in, and for
which she was retaliated against. If plaintiff alleges the
filing of the IRR was her protected activity, she must state
with specificity what she complained about in the IRR.
shall have fourteen (14) days from the date of this Order to
file her amended complaint. Plaintiff is warned that the
filing of the amended complaint completely replaces
the original and any supplemental complaints, and claims that
are not re-alleged are deemed abandoned. E.g., In re
Wireless Tele. Fed. Cost Recovery Fees Litig., 396 F.3d
922, 928 (8th Cir. 2005). If plaintiff fails to file her
amended complaint within fourteen (14) days, the Court will
dismiss this action without prejudice.
IT IS HEREBY ORDERED that the Clerk of Court
shall provide to plaintiff, along with a copy of this
Memorandum and Order, a Court form Employment Discrimination
IS FURTHER ORDERED that plaintiff shall file a
second amended complaint, in accordance with the instructions
set forth above, no later than fourteen (14) ...