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Shikapwashya v. Urban League of Metropolitan St. Louis

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

March 8, 2018

HERTA MARTHA SHIKAPWASHYA, Plaintiff,
v.
URBAN LEAGUE OF METROPOLITAN ST. LOUIS, Defendant.

          MEMORANDUM AND ORDER

          AUDREY G. FLFISSIG UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the motion of Defendant Urban League of Metropolitan St. Louis to dismiss Plaintiff Herta Martha Shikapwashya's complaint. For the reasons set forth below, the motion will be granted in part and denied in part.

         BACKGROUND

         Plaintiff, proceeding pro se, alleges in her complaint that she was subjected to employment discrimination by Defendant in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq., on the basis of national origin, color, and sex, as well as harassment and retaliation. Plaintiff, an African-American female of African origin, [1] was employed by Defendant from January 10, 2000, until she was terminated on September 13, 2016. She was promoted five times, most recently to the position of Vice President of workforce development programs. She contends that between August 2015 and September 2016, her supervisor, the president and chief executive officer of Defendant, engaged in progressively discriminatory, harassing, and retaliatory behaviors toward Plaintiff. Plaintiff claims that her supervisor began demonstrating favoritism toward male subordinates and lighter-skinned African-American employees. In her complaint, Plaintiff details numerous examples of the alleged discriminatory conduct, including cyber stalking and home invasion by her supervisor and other former employees of Defendant. After Plaintiff was terminated in September 2016, she claims that Defendant placed a mugshot of Plaintiff on the doors of Defendant's Jennings office, and that the mugshot was posted during a job fair open to the general public.

         After her termination, Plaintiff claims she sent a certified service letter requesting the reason for her termination to Defendant's human resources director, which was returned. She then sent a second service letter, to which Defendant responded, indicating that the reason for Plaintiffs termination was her failure to contact the representative of the St. Louis Agency on Training and Employment, which resulted in a loss of funding. Plaintiff contends this was inaccurate, false, and untrue.

         On April 4, 2017, Plaintiff filed a charge of discrimination with the Missouri Commission of Human Rights ("MCHR") and the Equal Employment Opportunity Commission ("EEOC"). In her charge of discrimination, Plaintiff contends that since December 2014, her supervisor would sexually harass her every six months. She reported that during the summer of 2015, she was not selected for the female employee of the year award and, in December 2015, she was not allowed to hire the individuals she believed were the best candidates for her program. She also claimed that since December 2015, Plaintiff's supervisor continued to harass her by invading her home, declining to answer budget questions, delegating her responsibilities to her subordinates, placing listening devices in her office, denying her the ability to have a company laptop, and damaging her personal laptop. Since her discharge, Plaintiff claims her supervisor has continued to retaliate against and harass her. Plaintiff checked boxes on the charge of discrimination indicating that she was discriminated against on the basis of her race, color, sex, national origin, and age, as well as retaliation.

         Plaintiff obtained a right to sue letter on April 14, 2017, and she filed this lawsuit on July 12, 2017. Plaintiff does not separate her complaint into separate counts, but she alleges violations of Missouri's service letter statute, Mo. Rev. Stat. § 290.140; mail fraud; and discrimination, harassment, and retaliation on the basis of national origin, sex, and color in violation of Title VII of the Civil Rights Act of 1964. Defendant now moves to dismiss claims contained in the complaint that it contends are not related to those set forth in the charge of discrimination, as well as claims that were untimely filed. In addition, Defendant seeks to dismiss Plaintiffs claims for mail fraud and service letter violations, as well as allegations of conduct based on factors other than those protected under Title VII.

         LEGAL STANDARD

         To survive a motion to dismiss for failure to state a claim, a plaintiffs allegations 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 BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The reviewing court must accept the plaintiffs factual allegations as true and construe them in plaintiff's favor, but it is not required to accept the legal conclusions the plaintiff draws from the facts alleged. Id. at 678; Retro Television Network, Inc. v. Luken Commc 'ns, LLC, 696 F.3d 766, 768-69 (8th Cir. 2012). A court must "draw on its judicial experience and common sense, " and consider the plausibility of the plaintiffs claim as a whole, not the plausibility of each individual allegation. Zoltek Corp. v. Structural Polymer Grp., 592 F.3d 893, 896 n.4 (8th Cir. 2010) (quoting Iqbal, 556 U.S. at 679). Within this context, a complaint filed pro se must also be liberally construed. Topchian v. J.P. Morgan Chase Bank, N.A., 760 F.3d 843, 849 (8th Cir. 2014).

         The elements of a prima facie case are relevant to a plausibility determination. VonBokel v. McHugh, No. 4:13-CV-2517 CAS, 2015 WL 357081, at *6 (E.D. Mo. Jan. 27, 2015). The Eighth Circuit has stated that 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. Dillards, Inc., 565 F.3d 464, 473 (8th Cir. 2009) (en banc) (quotation marks and citation omitted).

[A] plaintiff must assert facts that affirmatively and plausibly suggest that the pleader has the right he claims rather than facts that are merely consistent with such a right. While a plaintiff need not set forth detailed factual allegations or specific facts that describe the evidence to be presented, the complaint must include sufficient factual allegations to provide the grounds on which the claim rests. A district court, therefore, is not required to divine the litigant's intent and create claims that are not clearly raised, and it need not conjure up unpled allegations to save a complaint.

Id. (quotation marks and internal citations omitted).

         DISCUSSION

         Service ...


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