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”
How later courts described this case
- 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”
- “The ADEA prohibits an employer from discharging any individual or otherwise discriminating against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.”
- stating that the “ADEA prohibits discrimination against employees, age 40 and over, because of their age”
- “It is well-established that an amended complaint supercedes an original complaint and renders the original complaint without legal effect”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BEVERLY ANN JACKSON-MCDONALD, )
)
Plaintiff, )
)
v. ) No. 4:20-cv-01292-SRC
)
MERS GOODWILL INDUSTRIES, et al., )
)
Defendants. )
MEMORANDUM AND ORDER
This matter comes before the Court on the motion of plaintiff Beverly Ann Jackson-
McDonald for leave to commence this civil action without prepayment of the required filing fee.
Doc. 2. Having reviewed the motion, the Court finds it should be granted. See 28 U.S.C. §
1915(a)(1).
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
Jackson-McDonald is a self-represented litigant who brings this civil action pursuant to
Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967.
Doc. 1 at 1. She names MERS Goodwill Industries and Tammy Brown as defendants.1 Doc. 1 at
2.
1 The Court notes that Jackson-McDonald has attached to her complaint EEOC Right to Sue Charging Letters from
Schnucks, Walmart, JC Penny, Sam’s Club, and Schnucks Markets. Furthermore, Jackson-McDonald has listed
Schnucks Markets as the defendant in her motion for leave to proceed in forma pauperis, motion to appoint counsel,
and civil cover sheet. However, MERS Goodwill and Tammy Brown are the only defendants listed in the case caption
of the complaint, and the only defendants identified in the form complaint. Therefore, the Court will treat MERS
Goodwill and Tammy Brown as the defendants in this action.
On her form complaint, Jackson-McDonald indicates that the nature of her case involves a
failure to hire; a failure to promote; termination of employment; different terms and conditions of
employment; retaliation; and harassment. Doc. 1 at 4. In the section for Jackson-McDonald to
specify other conduct, she states that she “refuse[d] orgy acts.” She further indicates a belief that
she was discriminated against based on her race, religion, color, gender, and age. Doc. 1 at 5.
Due to the nature of Jackson McDonald’s factual allegations, they are best presented in
full, without any corrections made to spelling or punctuation:
Same As the other employers – If I dont go Along with –
Team exquisite orgys – Friends – thieft – it’s your Job – you
will No Longer Have I Refused Team exquisite, orgys
friends, sex partners – I had no Job from it.
briefly Again I had No Job from it – they fired Me in front
of the team exquisite orgy crew. for No partakening – orgy
Acts with people or Animals cruel, People And thieft. I did
go Along – so they Fired Me each time No income Again
And Again From it for Years
Doc. 1 at 5-6. In the section of the form complaint for Jackson-McDonald to state her request for
relief, she asserts that “they took [her] employment” when she refused “to indulge” in sexual
orgies. Doc. 1 at 7.
Discussion
Jackson-McDonald is a self-represented litigant who brings this action pursuant to Title
VII and the ADEA. Having reviewed the complaint pursuant to 28 U.S.C. § 1915, the Court has
determined that it is subject to dismissal for failure to state a claim. However, because Jackson-
McDonald is proceeding pro se, she will be allowed the opportunity to file an amended complaint.
A. Defects in Complaint
As noted above, Jackson-McDonald’s complaint is subject to dismissal. To begin, she has
not presented sufficient facts to state a claim under Title VII. 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). To establish a prima facie case, a plaintiff must show that
she: (1) is a member of a protected class; (2) was meeting her employer’s legitimate job
expectations; (3) suffered an adverse employment action; and (4) was treated differently than
similarly situated employees who were not members of her protected class. Jackman v. Fifth
Judicial Dist. Dep’t of Corr. Servs., 728 F.3d 800, 804 (8th Cir. 2013) (citation omitted). A
plaintiff must show either direct evidence of discrimination, or evidence that is sufficient to create
an inference of discrimination under the McDonnell Douglas2 burden shifting framework.
Here, Jackson-McDonald’s allegations fail to meet these requirements. In particular, she
does not allege that she was discriminated against based on any of the Title VII characteristics.
Indeed, she never specifies her own race, color, religion, or sex, nor does she allege membership
in any protected class. The Court cannot assume facts that are not pleaded. Furthermore, Jackson-
McDonald does not present any facts demonstrating disparate treatment, as the complaint is void
of any allegation that similarly situated employees of a different race, color, religion, sex, or
national origin were treated more favorably.
Jackson-McDonald does broadly allege that her refusal to participate in group sexual
activities at work led to her termination. To the extent that Jackson McDonald is attempting to
state a Title VII harassment claim, she must allege that: (1) she is a member of a protected group;
(2) that there was unwelcome harassment; (3) that there was a causal nexus or connection between
the harassment and her membership in the protected group; and (4) that the harassment affected a
2 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
term, condition, or privilege of employment. See Watson v. CEVA Logistics U.S., Inc., 619 F.3d
936, 942 (8th Cir. 2010) (citation omitted). “Sexual harassment is quid pro quo if a tangible
employment action follows the employee’s refusals to submit to a supervisor’s sexual demands.”
Anderson v. Family Dollar Stores of Ark., Inc., 579 F.3d 858, 863 (8th Cir. 2009) (quoting
Henthorn v. Capitol Commc’ns, Inc., 359 F.3d 1021, 1026–27 (8th Cir. 2004).
In this case, it is not clear from the complaint who made the purported sexual demands on
Jackson McDonald. That is, she uses the term “they” without ever naming any person or persons
who made the demands. She also does not describe any person or persons as holding a supervisory
position over her. Instead, Jackson McDonald relies on a vaguely worded statement that she was
fired for not participating in “exquisite [orgies],” without providing any other supporting detail.
In order to claim quid pro quo sexual harassment, Jackson-McDonald must provide factual
allegations as to the sexual demands made of her, who made the demands, and how those demands
related to the employment actions taken by defendant. Additionally, Jackson McDonald does not
state any allegations indicating that she is a member of a protected group and therefore, her claim
of harassment fails. For all these reasons, Jackson McDonald has not stated a Title VII claim.
With regard to the ADEA, Jackson-McDonald has likewise failed to state a claim. “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); see also Rahlf v. Mo-Tech
Corp., Inc., 642 F.3d 633, 636 (8th Cir. 2011) (stating that the “ADEA prohibits discrimination
against employees, age 40 and over, because of their age”); and Kneibert v. Thomson Newspapers,
Michigan Inc., 129 F.3d 444, 451 (8th Cir. 1997) (“The ADEA prohibits an employer from
discharging any individual or otherwise discriminating against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s age.”).
To state a prima facie case under the ADEA, a plaintiff must show that : (1) she is over forty; (2)
she was qualified for the position; (3) she suffered an adverse employment action; and (4)
substantially younger, similarly situated employees were treated more favorably. Anderson v.
Durham D & M, L.L.C., 606 F.3d 513, 523 (8th Cir. 2010).
Here, Jackson-McDonald meets the first and third requirements, as she asserts that she was
born in 1960 and suffered an adverse employment action. However, she presents no allegations
regarding her qualifications for her position, or that substantially younger, similarly situated
employees were treated more favorably. To the contrary, the substance of Jackson McDonald’s
complaint has nothing whatsoever to do with her age. Rather, she states that she was fired for
failing to participate in a vaguely defined group sex act. As such, Jackson McDonald has failed to
state an ADEA claim.
As discussed above, Jackson-McDonald’s complaint is subject to dismissal. Because
Jackson McDonald is a self-represented litigant, however, the Court will direct her to file an
amended complaint according to the instructions set forth below.
B. Amendment Instructions
Jackson-McDonald should type or neatly print her amended complaint on the Court’s
employment discrimination complaint form, which will be provided to her. See E.D. Mo. L.R.
2.06(A) (“All actions brought by self-represented plaintiffs or petitioners should be filed on Court-
provided forms”). If the amended complaint is handwritten, the writing must be legible. In the
“Caption” section of the Court-provided form, Jackson-McDonald should clearly name each and
every party she is intending to sue. See Fed. R. Civ. P. 10(a) (“The title of the complaint must
name all the parties”). If there is not enough room in the caption, Jackson-McDonald may add
additional sheets of paper. However, all the defendants must be clearly listed. Jackson-McDonald
should fill out the complaint form in its entirety.
In the section of the form complaint to state her claim, Jackson-McDonald should provide
a short and plain statement of the factual allegations supporting her claim. See Fed. R. Civ. P.
8(a). Jackson-McDonald should put each claim into a numbered paragraph, and each paragraph
should be “limited as far as practicable to a single set of circumstances.” See Fed. R. Civ. P. 10(b).
The amended complaint should only include claims that arise out of the same transaction
or occurrence. In other words, Jackson-McDonald should only include claims that are related to
each other. See Fed. R. Civ. P. 20(a)(2). Alternatively, Jackson-McDonald may choose a single
defendant and set forth as many claims as he has against that defendant. See Fed. R. Civ. P. 18(a).
Jackson-McDonald should specify all legal grounds for her employment discrimination
lawsuit, and provide all required information regarding the defendant or defendants. She should
detail all facts regarding the specific conduct she believes is discriminatory. Jackson-McDonald
is required to set out her alleged claims in a simple, concise, and direct manner, and to also present
the facts supporting her claims as to the named defendant or defendants. The Court emphasizes
that Jackson-McDonald is required to provide more than “labels and conclusions or a formulaic
recitation of the elements of a cause of action.” See Neubauer v. FedEx Corp., 849 F.3d 400, 404
(8th Cir. 2017). Moreover, she must present factual allegations that are “enough to raise a right to
relief above the speculative level.” Torti v. Hoag, 868 F.3d 666, 671 (8th Cir. 2017).
Jackson-McDonald is warned that the filing of an amended complaint completely replaces
the original complaint. This means that claims that are not re-alleged in the amended complaint
will be deemed abandoned. See In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922,
928 (8th Cir. 2005) (“It is well-established that an amended complaint supercedes an original
complaint and renders the original complaint without legal effect”).
After receiving the amended complaint, the Court will review it pursuant to 28 U.S.C. §
1915. If Jackson-McDonald fails to file an amended complaint on a Court-provided form within
thirty days in accordance with the instructions set forth herein, the Court will dismiss this action
without prejudice and without further notice to Jackson-McDonald.
C. Motion to Appoint Counsel
Jackson-McDonald has filed a motion to appoint counsel. Doc. 3. In civil cases, a pro se
litigant does not have a constitutional or statutory right to appointed counsel. Ward v. Smith, 721
F.3d 940, 942 (8th Cir. 2013). Rather, 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. In particular, the Court is not convinced that Jackson McDonald has stated
a non-frivolous claim, or that she or the Court will benefit from the assistance of counsel. The
Court will entertain future motions for appointment of counsel as the case progresses, if
appropriate.
Accordingly, the Court grants Jackson-McDonald’s motion for leave to proceed in forma
pauperis. The Court denies Jackson-McDonald’s motion for appointment of counsel. The Court
further orders that the Clerk of Court shall send to Jackson-McDonald a copy of the Court’s
employment discrimination complaint form. The Court orders Jackson-McDonald to file an
amended complaint on the Court-provided form within thirty (30) days of the date of this order,
in accordance with the instructions set forth above. If Jackson-McDonald fails to file an amended
complaint on the Court-provided form within thirty (30) days of the date of this order, this action
will be dismissed without prejudice and without further notice. Upon receipt of the amended
complaint, the Court will review it pursuant to 28 U.S.C. § 1915.
So Ordered this 18th day of February 2021.
eee □□ C1 Le
STEPHENR.CLARK sis
UNITED STATES DISTRICT JUDGE