United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY, UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant AT&T's
Partial Motion to Dismiss, [Doc. No. 13]. Plaintiff opposes
the Motion. For the reasons set forth below, the Motion is
filed a Charge of Discrimination on August 25, 2015 with the
EEOC. In her Charge, plaintiff checked the boxes for
discrimination based on age and disability. Within the body
of the charge, Plaintiff stated that she believed she was
discriminated against due to her age (63), and because of her
disability in violation of the Age Discrimination in
Employment Act (ADEA) and the Americans with Disability Act
(ADA). She identified the earliest and latest dates that the
discrimination took place as February 11, 2015.
pro se Complaint, Plaintiff checked the boxes
indicating that her action is based on Title VII, the ADEA,
the ADA, and “Other-Retaliation by AT&T against me
for use of FMLA and Short-Term Disability benefits and for
filing 2 Work Comp Cases.” Plaintiff also checked the
boxes indicating that she was discriminated against because
of her race, color, gender, disability, age, and
“other” for “filing 2 work comp cases for
use of FMLA and short-term disability.” Plaintiff's
Complaint also alleges that an AT&T employee terminated
her for using FMLA and short-term disability for neck and
hand surgeries. There are no allegations regarding any title
VII protected classes, such as race, color, or gender.
February 3, 2017, the EEOC issued a Dismissal and Notice of
Right to Sue letter. The letter stated that the EEOC was
unable to conclude that the information obtained established
a violation of the statute and that no finding is made as to
any other issues that might be construed as having been
raised by this charge. The letter goes on to state:
Title VII, the Americans with Disabilities Act, the
Genetic Information Nondiscrimination Act, or the Age
Discrimination in Employment Act: This will be the
only notice of dismissal and of your right to sue that we
will send you. You may file a lawsuit against the
respondent(s) under federal law based on this charge in
federal or state court. Your lawsuit must be filed
WITHIN 90 DAYS of your receipt of this
notice; or your right to sue based on this charge
will be lost. (The time limit for filing suit based on a
claim under state law may be different).
filed her motion for leave to proceed in forma pauperis in
this Court on May 1, 2017. Plaintiff was granted leave to
proceed in forma pauperis on May 2, 2017. In her Complaint,
plaintiff marked that her lawsuit was based on Title VII, the
Americans with Disabilities Act and the ADEA and retaliation.
In response to the question in the Employment Discrimination
Complaint form which asked her to explain why she believes
she was terminated, plaintiff checked the boxes for: race,
color, gender, disability, age, and other-belief that of
which is retaliation.
has moved pursuant to Fed.R.Civ.P. 12(b)(6) to partially
dismiss plaintiff's Complaint as untimely filed and
because she failed to exhaust her administrative remedies.
survive a motion to dismiss under 12(b)(6), a complaint must
contain sufficient factual matter, accepted as true, to state
a claim for relief that is plausible on its face.
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A pleading that merely pleads labels and conclusions
or a formulaic recitation of the elements of a cause of
action, or naked assertions devoid of further factual
enhancement will not suffice. Id. (quoting
Twombly). Determining whether a complaint states a
plausible claim for relief will ... be a context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense. Id. at 1950.
Under Fed.R.Civ.P. 12(b)(6), the Court must accept
plaintiff's factual allegations as true and grant all
reasonable inferences in the plaintiff's favor.
Phipps v. FDIC, 417 F.3d 1006, 1010 (8th Cir. 2005).
states that any claims for discrimination under Title VII,
the ADA,, or ADEA occurring prior to October 28, 2014-300
days prior to the filing of her Charge with the EEOC on
August 24, 2015-are untimely and must be dismissed.
did not initially respond to defendant's Motion to
Dismiss. However, after the Court issued an Order to Show
Cause, plaintiff filed a response to the Motion to Dismiss.
In her response, with regard to the exhaustion arguments,
plaintiff states that she did not intend to seek recovery for