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Passley v. Missouri Department of Social Services

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

March 5, 2019




         This matter comes before the Court on defendant's motion to dismiss the first amended complaint against it (#26). Also pending is defendant's motion to dismiss the original complaint (#11), plaintiff's motion to vacate this Court's order granting defendant leave to file a response to plaintiff's original complaint out of time (#13), plaintiff's motion for default judgment (#14), which appears predicated on the motion to vacate being granted, a motion to strike by defendant targeting plaintiff's sur-reply to the motion to dismiss (#33), and, finally, plaintiff's motion for leave to file the sur-reply that is subject to the motion to strike (#35).

         The motion to dismiss the original complaint (#11), motion to vacate (#13), and motion for default judgment (#14) are DENIED AS MOOT pursuant to the Eighth Circuit's recognition that an amended complaint nullifies the original complaint. See Thomas v. United Steelworkers Local 1938, 743 F.3d 1134, 1139 (8th Cir. 2014). Because all three motions were predicated on a now-nullified pleading, they are likewise null themselves.

         The motion to strike (#33) is GRANTED and plaintiff's sur-reply (#32) is hereby STRICKEN. Plaintiff's motion for leave (#35), coming only after a sur-reply was inappropriately filed without leave under Local Rule 7-4.01(C), is DENIED. Pro se litigants are expected to understand local rules and this Court will not grant a special privilege to ignore them or, else, ask forgiveness after-the-fact. See Bunch v. Univ. of Ark. Bd. of Trs., 863 F.3d 1062, 1067 (8th Cir. 2017).

         The motion to dismiss (#26) the first amended complaint is GRANTED IN PART and DENIED IN PART for the reasons set forth below.

         I. BACKGROUND

         Plaintiff, Martin Anthony Passley, proceeds pro se against defendant Missouri Department of Social Services on the basis of several claims under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. In his first amended complaint, plaintiff alleged defendant denied him employment after learning of plaintiff's criminal conviction record. Plaintiff explains:

Defendant offered the Plaintiff employment by phone [on] July 27, 2017[, ] pending results of a criminal background check … Defendant contacted Plaintiff on August 7, 2017, and notified him via email and an attached letter dated August 7, 2017, of its intention to withdraw the offer of employment, citing convictions reported in Plaintiff[']s criminal history record.

(Doc. #25, pp. 2-3). According to plaintiff, defendant wrongfully discriminated against him due to a disability (bi-polar disorder) because “each incident listed in the criminal history record was a direct result, or caused by the opportunistic exploitation, of the untreated symptomology's (sic) and/or effective treatment of my disability.” In other words, plaintiff states his mental disability should excuse his criminal convictions, and that defendant should not be permitted to rely on them, because “employers … should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals [with[ protected characteristic[s] … such as bi-polar manic depression[.]” The complaint makes clear plaintiff only mentioned his alleged disability, and its alleged connection to his criminal history, after being denied employment.

         The complaint does not clearly list specific counts against defendant. However, it appears plaintiff moves under two theories: failure to accommodate and retaliation. The failure to accommodate claim is a variant of a failure to hire claim, which alleges in essence that defendant, in making a hiring decision, should have permitted plaintiff an accommodation to explain why he was not a “direct threat” to defendant's customers and employees despite having a criminal record. Plaintiff cites 29 C.F.R. § 1630(2)(r) in support, which defines “direct threat” in relation to an employer's lawful decision to impose certain job qualifications in order to protect the public from direct threats to health or safety under 29 C.F.R. 16.3015(b)(2), see also 42 U.S.C. §§ 12113(a), (b).[1]

         Plaintiff's retaliation claim, meanwhile, is predicated on the fact that, “after exhausting all interagency complaint venues” related to his employment efforts, defendant purportedly began harassing him as a client. Plaintiff states that defendant “began to systematically harassment (sic) Plaintiff via preemptive and repeated investigations and reviews ... demanding duplicate verifications in concert with improper use of child support enforcement authority to preemptively garnish Plaintiff's poverty level income.” Plaintiff further states that his food stamp and healthcare benefits were “inappropriately cancelled twice, ” which he suggests was because of defendant's retaliatory animus.

         II. ANALYSIS

         1. Plaintiff's Failure to Hire / Failure to Accommodate Claim

         Defendant moves to dismiss plaintiff's failure to hire / failure to accommodate claim on the basis that it has the right to choose not to hire someone with a criminal record. Defendant goes on to explain that, to the extent plaintiff suggests a causal link between his disability and his criminal convictions, any decision to refuse employment ...

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