United States District Court, W.D. Missouri, Western Division
ORDER GRANTING PARTIAL MOTION TO DISMISS
KAYS, UNITED STATES DISTRICT COURT JUDGE
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
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
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 on three separate occasions.
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.
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. 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
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.
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
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).
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.
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 ...