Harden v. Wilkie

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ERIC L. HARDEN, )

)

Plaintiff, )

)

v. ) No. 4:20-cv-00378-SEP

)

ROBERT WILKIE, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter comes before the Court on Plaintiff Eric L. Harden’s Motion for Leave to

Proceed In Forma Pauperis. Doc. [2]. Having reviewed the Motion, the Court finds that it

should be granted. See 28 U.S.C. § 1915(a)(1). Additionally, for the reasons discussed below,

the Court will direct Plaintiff to file an amended complaint.

Legal Standard on Initial Review

Under 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.

To state a claim, a plaintiff must demonstrate a plausible claim for relief, which is more than a

“mere possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “A 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.” Id. at 678.

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 “accept as true the facts alleged, but not legal conclusions or threadbare recitals

of the elements of a cause of action, supported by mere conclusory statements.” Barton v. Taber,

820 F.3d 958, 964 (8th Cir. 2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371,

372-73 (8th Cir. 2016) (stating that court must accept factual allegations in complaint as true but

is not required to “accept as true any legal conclusion couched as a factual allegation”).

When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the benefit

of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal construction”

means that if the essence of an allegation is discernible, the district court should construe the

plaintiff’s complaint in a way that permits his or her claim to be considered within the proper

legal framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, even pro se

complaints are required to 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). See also Stone v. Harry, 364 F.3d

912, 914-15 (8th Cir. 2004) (stating that federal courts are not required to “assume facts that are

not alleged, just because an additional factual allegation would have formed a stronger

complaint”). In addition, affording a pro se complaint the benefit of a liberal construction does

not mean that procedural rules in ordinary civil litigation must be interpreted so as to excuse

mistakes by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113

(1993).

The Complaint

Plaintiff is a self-represented litigant who brings this civil action pursuant to Title VII of

the Civil Rights Act of 1964 (Title VII), and the Americans with Disabilities Act of 1990 (ADA).

He names the following defendants: Secretary of Veterans Affairs Robert Wilkie; the

Department of Veterans Affairs; Shawn Cook; and Jeremy Leporin. The complaint is

typewritten on a Court-provided form and includes a right-to-sue letter from the United States

Equal Employment Opportunity Commission (EEOC).

According to the complaint, Plaintiff was employed as a housekeeper at a Veterans

Administration facility in St. Louis, Missouri. Plaintiff alleges that Defendant Cook “talked

down to [him], made threatening gestures towards [him] and belittled [him].” Doc. [1] at 5. He

further states that Cook called him “a racial epithet.” Plaintiff further alleges that Defendant

Leporin retaliated against him by refusing him a different work assignment, and by denying him

“the right to park in handicap parking spaces” even though he has a state-issued placard. Doc.

[1] at 5-6. Plaintiff asserts that he had no choice but to quit because of this alleged race-based

and disability-based harassment. Doc. [1] at 6.

Plaintiff states that he filed a charge of discrimination with the EEOC on February 8,

2019. Doc. [1] at 3. He made out a formal complaint on April 15, 2019, asserting discrimination

based on his race and disability. Doc. [1-1] at 24. The EEOC issued a decision on December 18,

2019, dismissing Plaintiff’s complaint. Doc. [1-1] at 44. The decision advised Plaintiff of his

right to sue within ninety days. Doc. [1-1] at 45.

Plaintiff filed the instant action on March 9, 2020, eighty-two days after receiving the

right-to-sue letter.

Discussion

Plaintiff is a self-represented litigant who has filed an employment discrimination action.

In the form complaint, he indicates that he is bringing this lawsuit pursuant to Title VII and the

ADA. For the reasons discussed below, it appears that Plaintiff’s Title VII claim is timely filed

and exhausted. However, the claims against Defendants Cook and Leporin are subject to

dismissal, as is Plaintiff’s ADA claim. Rather than dismissing outright, however, the Court will

give Plaintiff the opportunity to file an amended complaint.

A. Title VII Claim

The purpose of Title VII is to ensure a workplace environment free of discrimination.

Ricci v. DeStefano, 557 U.S. 557, 580 (2009). The act prohibits “employer discrimination on the

basis of race, color, religion, sex, or national origin, in hiring, firing, salary structure, promotion

and the like.” Winfrey v. City of Forrest City, Ark., 882 F.3d 757, 758 (8th Cir. 2018). Before

filing an action under Title VII in federal court, a plaintiff must first exhaust his or her

administrative remedies. Lindeman v. Saint Luke’s Hosp. of Kansas City, 899 F.3d 603, 608 (8th

Cir. 2018); see also Brooks v. Midwest Heart Grp., 655 F.3d 796, 800 (8th Cir. 2011) (stating

that “Title VII establishes an administrative procedure which a complaining employee must

follow before filing a lawsuit in federal court”). A Title VII claimant is required to demonstrate

good faith participation in the administrative process in order to exhaust his or her administrative

remedies. Briley v. Carlin, 172 F.3d 567, 571 (8th Cir. 1999). “To exhaust administrative

remedies an individual must: (1) timely file a charge of discrimination with the EEOC setting

forth the facts and nature of the charge and (2) receive notice of the right to sue.” Rush v. State

of Arkansas DWS, 876 F.3d 1123, 1125 (8th Cir. 2017). A plaintiff who has received notice of

the right to sue then has ninety days to file a civil action. 42 U.S.C. § 2000e-5(f)(1).

Here, Plaintiff has alleged employment discrimination on the basis of race. He has filed a

charge of discrimination with the EEOC and received notice of the right to sue. The right-to-sue

letter was issued on December 18, 2019, and gave Plaintiff ninety days to file a civil action.

Plaintiff filed the instant case eighty-two days later. It therefore appears that Plaintiff’s Title VII

claim is timely and exhausted and sufficient for purposes of initial review.

B. Claims Against Defendants Cook and Leporin

Plaintiff’s claims against Defendants Cook and Leporin, however, are subject to

dismissal. Title VII addresses only the conduct of employers, and does not impose individual

liability. See Powell v. Yellow Book USA, Inc., 445 F.3d 1074, 1079 (8th Cir. 2006); Smith v. St.

Bernards Regional Medical Center, 19 F.3d 1254, 1255 (8th Cir. 1994). Likewise, there is no

individual liability under the ADA. See Kirkman v. Faurecia Emissions Control Technologies,

Inc., 2020 WL 1275618, at *3 (E.D. Mo. Mar. 17, 2020) (compiling cases). The same is true if

Plaintiff intends to file a claim under the Rehabilitation Act of 1973. Id. Plaintiff should file an

amended complaint bringing claims against his employer only. Claims against individuals will

be subject to dismissal.

C. ADA Claim

“The ADA bars private employers from discriminating against a qualified individual on

the basis of disability.” Faidley v. United Parcel Serv. of America, Inc., 889 F.3d 933, 940 (8th

Cir. 2018). Similarly, the Rehabilitation Act of 1973 (RA) is meant to ensure that individuals

with disabilities would not be denied benefits from or be subjected to discrimination under any

program or activity that receives federal funding. Argenyi v. Creighton Univ., 703 F.3d 441, 448

(8th Cir. 2013).

In his complaint, Plaintiff indicated that he is bringing this action pursuant to the ADA.

However, as a former federal employee, Plaintiff is not allowed to recover separately under the

ADA. Rather, any disability claim must be brought pursuant to the RA. See Loos v. Napolitano,

665 F.Supp.2d 1054, 1058 (D. Neb. 2009) (stating that plaintiff’s remedy for disability

discrimination in her federal employment is the RA, and that claims under the ADA must be

dismissed for failure to state a claim); Jones v. Potter, 488 F.3d 397, 403 (6th Cir. 2007) (stating

that the RA, not the ADA, “constitutes the exclusive remedy for a federal employee alleging

disability-based discrimination”); and Mannie v. Potter, 394 F.3d 977, 982 (7th Cir. 2005)

(stating that postal employee had no remedy for employment discrimination under ADA because

she was a federal employee; rather, her claims had to be evaluated under the RA).

Because Plaintiff cannot recover under the ADA, this claim is subject to dismissal.

However, Plaintiff will be allowed to file an amended complaint to bring a claim under the RA if

he should so choose.

D. Order to Amend

As discussed above, Plaintiff’s Title VII claim appears to be timely filed and exhausted.

However, his claims against defendants Cook and Leporin are subject to dismissal, because a

Title VII claim must be made against an employer, not an individual. Furthermore, Plaintiff’s

ADA claim is subject to dismissal because the exclusive remedy for a federal employee alleging

disability-based discrimination is the RA.

Rather than summarily dismiss these claims, the Court will give Plaintiff an opportunity

to file an amended complaint on a form that will be provided to him by the Court. In the

amended complaint, he should indicate whether he wishes to pursue a claim under the RA. He is

also advised that he can only bring claims against his employer and cannot assert individual

liability under Title VII or the RA. If Plaintiff decides to file an amended complaint, he is

advised to reallege his Title VII claim so that it will not be deemed abandoned.

Plaintiff will be given thirty days to file his amended complaint. Failure to respond to

this Order will result in the dismissal of his ADA claim as well as the claims against Cook and

Leporin. Upon receipt of the amended complaint, the Court will review it pursuant to 28 U.S.C.

§ 1915(e).

E. Motion to Appoint Counsel

Plaintiff has filed a Motion to Appoint Counsel. Doc. [3]. “A pro se litigant has no

statutory or constitutional right to have counsel appointed in a civil case.” Stevens v. Redwing,

146 F.3d 538, 546 (8th Cir. 1998). A district court may appoint counsel in a civil case if the

court is “convinced that an indigent plaintiff has stated a non-frivolous claim . . . and where the

nature of the litigation is such that plaintiff as well as the court will benefit from the assistance of

counsel.” Patterson v. Kelley, 902 F.3d 845, 850 (8th Cir. 2018). When determining whether to

appoint counsel for an indigent litigant, a court considers relevant factors such as the complexity

of the case, the ability of the pro se litigant to investigate the facts, the existence of conflicting

testimony, and the ability of the pro se litigant to present his or her claim. Phillips v. Jasper Cty.

Jail, 437 F.3d 791, 794 (8th Cir. 2006).

After reviewing these factors, the Court finds that the appointment of counsel is not

warranted at this time. Plaintiff has demonstrated, at this point, that he can adequately present

his claims to the Court. The Court will entertain future motions for appointment of counsel as

the case progresses, and if appropriate.

Accordingly,

IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to Proceed In Forma

Pauperis, Doc. [2], is GRANTED.

IT IS FURTHER ORDERED that Plaintiff’s Motion to Appoint Counsel, Doc. [3], is

DENIED at this time.

IT IS FURTHER ORDERED that the Clerk of Court will be directed to provide Plaintiff

with a copy of the Court’s employment discrimination complaint form.

IT IS FURTHER ORDERED that Plaintiff shall file an amended complaint on the Court-

provided form, in accordance with the instructions set forth above, within thirty (30) days from

the date of this order.

IT IS FURTHER ORDERED that if Plaintiff does not comply with this order, his claim

under the Americans with Disabilities Act as well as his claims against Defendants Shawn Cook

and Jeremy Leporin will be dismissed without prejudice and without further notice.

IT IS FINALLY ORDERED that upon the filing of the amended complaint, the Court

will review it pursuant to 28 U.S.C. § 1915.

Dated this 17th day of July 2020.

bok C be

SARAHE.PITLYK

UNITED STATES DISTRICT JUDGE