United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE
matter is before the Court upon plaintiff Bruce Weakley's
motion for leave to proceed in forma pauperis.
(Docket No. 2). Upon review and consideration of the motion
and the financial information provided therein, the Court
finds that plaintiff is financially unable to pay any portion
of the filing fee. The Court will therefore grant the motion.
Additionally, the Court will direct plaintiff to file an
amended complaint, accompanied by the documents necessary to
demonstrate that he has exhausted his administrative remedies
with respect to the claims he wishes to bring.
Standard on Initial Review
28 U.S.C. § 1915(e)(2), the Court is required to dismiss
a complaint filed in forma pauperis if it is
frivolous, malicious, or fails to state a claim upon which
relief can be granted. An action is frivolous if it
“lacks an arguable basis in either law or fact.”
Neitzke v. Williams, 490 U.S. 319, 328 (1989). An
action fails to state a claim upon which relief can be
granted if it does not plead “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Determining whether a complaint states a plausible
claim for relief is a context-specific task that requires the
reviewing court to draw upon judicial experience and common
sense. Id. at 679. The court must assume the
veracity of well-pleaded facts, but need not accept as true
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.”
Id. at 678 (citing Twombly, 550 U.S. at
se complaints must be liberally construed. Estelle
v. Gamble, 429 U.S. 97, 106 (1976). This means that
“if the essence of an allegation is discernible,
” the court should “construe the complaint in a
way that permits the layperson's claim to be considered
within the proper legal framework.” Solomon v.
Petray, 795 F.3d 777, 787 (8th Cir. 2015) (quoting
Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)).
However, even pro se complaints must allege facts
which, if true, state a claim for relief as a matter of law.
Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir.
1980). Federal courts are not required to assume facts that
are not alleged, Stone, 364 F.3d at 914-15, nor are
they required to interpret procedural rules so as to excuse
mistakes by those who proceed without counsel. See McNeil
v. United States, 508 U.S. 106, 113 (1993).
brings this action to redress employment discrimination. He
states he intends to proceed under Title VII of the Civil
Rights Act of 1964 (Title VII), the Americans with
Disabilities Act of 1990 (ADA), and the Age Discrimination in
Employment Act of 1967 (ADEA). In the complaint, he placed
check marks indicating that the allegedly wrongful conduct
included termination of his employment, failure to promote
him, retaliation, and harassment, and he also wrote:
“equal pay, constructive termination.” (Docket
No. 1 at 4). He also placed check marks indicating he
believed he suffered discrimination on the basis of his race,
color, and age. Id. at 5. He did not place a check
mark to indicate he believed he suffered discrimination on
the basis of a disability.
setting forth his allegations in support of his claims,
plaintiff alleges as follows. On July 15, 2017, plant manager
Rick Grissom assaulted an employee named Steve Love. Next,
plaintiff alleges “constant retaliation and harassment
from Rick Grissom because of statements wrote on him by me
and five other employees.” Id. Plaintiff
alleges that the statements caused Grissom to be
then describes two incidents that occurred in October of
2017. On October 11, 2017, Grissom was standing behind two
other employees. As they walked away, Grissom mimed
“having a whip in his hand like they were his slave
cracking in back to work [omitted], ” using a racial
slur. Id. at 6. The next day, plaintiff reported the
incident. On October 24, 2017, Grissom asked plaintiff to
perform a two-man job by himself, which “led to an
argument about safety, and when I said I was going to the
main office, Rick Grissom stated I don't care what
[omitted] say, ” using a racial slur. Id.
Plaintiff went to the main office and talked with the
Operations Manager, who said “what did Rick Grissom do
now.” Id. Plaintiff said he wanted Grissom to
stop harassing him. Plaintiff writes: “Rick Grissom ran
across to the main office and said I Quit. I clearly know how
to put in a resignation.” Id.
the complaint, plaintiff alleges that Grissom's actions
violated Permalok Corporation's policies on violence in
the workplace, racial gestures and words, and safety. As
relief, plaintiff seeks “return to employment, back
pay, and benefits.” Id. at 7.
complaint is subject to dismissal because it fails to state a
plausible claim for relief. Plaintiff states he intends to
bring a claim under Title VII, he states he suffered
employment discrimination on the basis of his race and color,
and he alleges that Grissom used racial slurs and
racially-charged gestures. Title VII prohibits employment
discrimination because of race, color, religion, sex or
national origin. In order to state a claim under Title VII, a
plaintiff must show either direct evidence of discrimination,
or evidence that is sufficient to create an inference of
discrimination under the McDonnell
Douglas burden shifting framework. Onyiah v.
St. Cloud State University, 684 F.3d 711, 716 (8th Cir.
2012) (citation omitted). Under that framework, a plaintiff
must show: (1) he is a member of a protected class; (2) he
was meeting his employer's legitimate job expectations;
(3) he suffered an adverse employment action; and (4)
similarly situated employees outside the protected class were
treated differently. Id. (citation omitted). Here,
plaintiff's allegations do not establish the first
element, as he neither identifies his race nor otherwise
alleges membership in a protected class. This Court cannot
assume facts that are not alleged. Stone, 364 F.3d
at 914-15. While plaintiff can arguably be said to have
alleged he suffered an adverse employment action, the
remaining elements are not readily discernible from his
also states he intends to bring a claim under the ADEA, he
indicates he suffered discrimination on the basis of his age,
and he alleges he was born in 1965. “The ADEA prohibits
employers from discriminating against any individual on the
basis of age with respect to his or her compensation, terms,
conditions, or privileges of employment.” Jankovitz
v. Des Moines Indep. Cmty. Sch. Dist., 421 F.3d 649, 652
(8th Cir. 2005). In order to succeed on an age discrimination
claim, the plaintiff must show either direct evidence of
discrimination, or evidence that is sufficient to create an
inference of discrimination under the McDonnell
Douglas1burden shifting framework. Anderson v.
Durham, D&M, L.L.C.,606 F.3d 513, 523 (8th Cir.
2010) (internal citation omitted). Under that framework, a
plaintiff must show: (1) he is over forty; (2) he was
qualified for the position; (3) he suffered an adverse
employment action; and (4) similarly-situated employees
outside the class were treated more favorably. Id.
Here, while plaintiff's allegations establish the first
element and arguably establish the third, the remaining
elements are not readily discernible from his complaint.
Finally, plaintiff states he intends ...