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