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Brown v. Saul

United States District Court, W.D. Missouri, Western Division

October 2, 2019

SANDRA KAY BROWN, Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, Defendant.

          ORDER GRANTING PARTIAL MOTION TO DISMISS

          GREG KAYS, UNITED STATES DISTRICT COURT JUDGE

         This case arises from Defendant, Social Security Administration's failure to promote pro se Plaintiff Sandra Kay Brown. Plaintiff alleges that the Agency's failure to promote her violated Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq.

         Now before the Court is the Agency's unopposed Partial Motion to Dismiss (Doc. 12) under Federal Rule of Civil Procedure 12(b)(6). Because Plaintiff failed to exhaust her administrative remedies for all but her 2014 claims of age discrimination and retaliation, Defendant's motion is GRANTED.

         Background

         Plaintiff worked at the Social Security Administration as a Lead Contact Representative in the Kansas City Teleservice Center. During her tenure with the Agency, Plaintiff requested equal employment opportunity (“EEO”) counseling[1] on three separate occasions.

         In July 2012, she requested counseling for alleged discrimination based on age and race after she was not selected for a claims representative position with the Agency. She voluntarily withdrew that complaint, in August 2012, and no further action on this complaint was taken.

         In July 2014, she applied for a promotion as a Teleservice Supervisor but was not selected for the position. She then filed a request for EEO Counseling alleging discrimination based on age and reprisal[2]. The Agency investigated her complaint and concluded that she had not been discriminated against for the Teleservice Supervisor vacancy. The Equal Employment Opportunity Commission (“EEOC”) affirmed the Agency's determination.

         In December 2016, Plaintiff again requested EEO counseling after she was not selected for a different promotion, again alleging retaliation. In March 2017, she voluntarily withdrew her request for counseling before a report was completed, and the investigation was terminated. That same month, Plaintiff resigned from the Agency.

         Plaintiff filed the present complaint on August 13, 2018, alleging Title VII and ADEA race, color, sex, and age discrimination, as well as retaliation. She also alleged a hostile work environment and harassment. Defendant then filed the instant motion, contending Plaintiff failed to exhaust her administrative remedies for all claims other than age discrimination and retaliation. Plaintiff did not respond to the motion.

         Standard

         A complaint may be dismissed if it fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To avoid dismissal, a complaint must include “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In reviewing the complaint, the court construes it liberally and draws all reasonable inferences from the facts in the plaintiff's favor. Monson v. Drug Enforcement Admin., 589 F.3d 952, 961 (8th Cir. 2009).

         Discussion

         Before bringing a claim under Title VII, a plaintiff must first exhaust her administrative remedies by “giv[ing] notice of all claims of discrimination in the administrative [charge]” with the EEOC. Stuart v. Gen. Motors Corp., 217 F.3d 621, 630 (8th Cir. 2000). Likewise, the ADEA requires a plaintiff to exhaust administrative remedies by filing a charge of discrimination with the EEOC as a condition precedent to filing suit. Sellers v. Deere & Co., 791 F.3d 938, 943 (8th Cir. 2015); 29 U.S.C. § 626(d)(1). Exhaustion allows the EEOC an initial opportunity to investigate the discrimination and obtain voluntary compliance. Shannon v. Ford Motor Co., 72 F.3d 678, 684 (8th Cir. 1996). Courts are not to use administrative procedures “as a trap for unwary pro se civil-rights plaintiffs” and should construe discrimination claims “charitably” when appropriate. Id. at 685.

         A difference exists, however, between “liberally reading a claim which lacks specificity, and inventing, ex nihilo, a claim which simply was not made.” Id. (internal marks omitted). Thus, while the judicial complaint need not mirror the administrative charge, “the sweep of any subsequent judicial complaint” must be “no broader than the scope of the EEOC investigation which could reasonably be expected to grow out of the charge filed in the ...


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