Brown v. Express Scripts

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant's Partial Motion to Dismiss, [Doc. No. 10]. Plaintiff opposes the Motion. For the reasons set forth below, the Motion is granted.

         Facts and Background ^[1]

         Plaintiff's pro se Complaint alleges Defendant, Plaintiff's former employer, discriminated against her based on her sex and in retaliation. Plaintiff also alleges various other claims, including, criminal claims, discrimination based on sexual orientation or gender identity, race, black listing, and gang stalking. Defendant moves to dismiss certain of Plaintiff's claims.

         Plaintiff was an employee of Defendant from October 2013 to December 2015. Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) on December 23, 2015. This charge alleged sex discrimination and retaliation. No other types of discrimination were checked on the EEOC Charge form.

         Within the Particulars section of her charge, Plaintiff claimed that she was harassed by employees and management and that she complained of sexual harassment and harassment based on gender stereotyping. Plaintiff claimed that she was orally attacked by another employee, and was suspended and terminated for alleged terrorist threats, although the other employee was not disciplined or terminated. No claims of racial discrimination were detailed, nor were the race or color boxes checked on the Charge form. Plaintiff likewise did not check the “other” box with regard to her claims of sexual orientation or that she was transgender. Plaintiff identified the dates of discrimination to be February 2, 2015 as the earliest dated and October 22, 2015 as the latest. A right to sue letter was issued on March 2, 2017.

         Plaintiff filed this action on March 9, 2017. Plaintiff alleges claims under Title VII of the Civil Rights Act of 1964, employment discrimination on the basis of race, color, sex, and sexual orientation. Additionally, Plaintiff claims retaliation and sexual harassment. Plaintiff also states claims under 18 U.S.C. §§ 241, 242, 249, 1513(b), 1519, and 2340 for conspiracy; deprivation of rights under color of law; retaliation against a witness, victim, or informant; destruction, alteration or falsification of records in federal investigations; intentional tort crimes, war crimes, and hate crimes. Plaintiff further refers to defamation, “black listing, ” and “gang stalking.”

         Standard of Review

         To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint is plausible if its “factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). A court must “‘draw on its judicial experience and common sense, ' ” and consider the plausibility of the plaintiff's claim as a whole, not the plausibility of each individual allegation. Zoltek Corp. v. Structural Polymer Group, 592 F.3d 893, 896 n. 4 (8th Cir. 2010) (quoting Iqbal, 556 U.S. at 679).

         Discussion

          Defendant's motion to dismiss centers on Plaintiff's failure to exhaust administrative remedies. Defendant seeks the dismissal of Plaintiff's claims that were not timely asserted or included in her charge of discrimination. Defendant argues that Plaintiff's complaint alleges significantly more violations than were contained in her charge of discrimination and also includes allegations that occurred more than 300 days prior to the date Plaintiff filed her charge of discrimination, thereby rendering those claims untimely.

         Title VII “establishes an administrative procedure which a complaining employee must follow before filing a lawsuit in federal court.” Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir. 1994). In order to exhaust administrative remedies, a claimant must file a timely charge of discrimination with the EEOC. Brooks v. Midwest Heart Grp., 655 F.3d 796, 800 (8th Cir. 2011) (citing Worthington v. Union Pac. R.R., 948 F.2d 477, 479 (8th Cir. 1991)). Title 42 U.S.C. § 2000e-5(e)(1) is a charge filing provision that “specifies with precision” the prerequisites that a plaintiff must satisfy before filing suit. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002). An individual must file a charge within the statutory time period and serve notice upon the person against whom the charge is made. Id.

         The scope of a plaintiff's civil action is not necessarily limited to the specific allegations in the EEOC charge of discrimination. EEOC v. Delight Wholesale Co., 973 F.2d 664, 668 (8th Cir. 1992). In determining whether an alleged discriminatory act falls within the scope of a Title VII claim, the administrative complaint must be construed liberally “in order not to frustrate the remedial purposes of Title VII, ” Cobb v. Stringer, 850 F.2d 356, 359 (8th Cir. 1988), and the plaintiff may seek relief for any discrimination that grows out of or is like or reasonably related to the substance of the allegations in the administrative charge. Philipp v. ANR Freight Sys., Inc., 61 F.3d 669, 676 (8th Cir. 1995). Courts will liberally construe discrimination claims made by pro se litigants. Shannon v. Ford Motor Co., 72 F.3d 678, 685 (8th Cir. 1996). However, there is a great difference between “liberally reading a claim which ‘lacks specificity'...and inventing, ex nihilo, a claim which simply was not made” by the plaintiff. Id. (internal citation omitted).

         Plaintiff's Charge is devoid of any claims of race or color discrimination. She only claims retaliation and sex discrimination and/or harassment. Nor does Plaintiff claim any other type of discrimination in her Charge. As such, Plaintiff's claims of race, color, sexual orientation and gender identity are likewise subject to dismissal. Additionally, as Defendant argues, sexual orientation and gender identity discrimination are not protected classes under Title VII. See Manlove ...