United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLFISSIG UNITED STATES DISTRICT JUDGE
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
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,  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.
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.
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.
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.
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).
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
Id. (quotation marks and internal citations