Webb v. GKN Aerospace North America/Melrose LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

TERRY A. WEBB, )

)

Plaintiff, )

)

v. ) Case No. 4:21 CV 1085 CDP

)

GKN AEROSPACE NORTH )

AMERICA/MELROSE, LLC, )

)

Defendant. )

MEMORANDUM AND ORDER

Plaintiff Terry A. Webb brings this employment discrimination action

claiming that defendant GKN Aerospace North America/Melrose, LLC failed to

accommodate his disability and subjected him to sexual harassment, retaliation,

and unlawful termination. Defendant GKN has moved to dismiss the complaint or,

alternatively, for more definite statement. For the reasons that follow, I will grant

defendant’s motion for more definite statement and order Webb to file a second

amended complaint within twenty-one days. I will deny defendant’s motion to

dismiss without prejudice.

Background

Webb is a self-represented litigant who initiated this action in this Court on

August 27, 2021.1 His original complaint did not contain a caption or a title

identifying the parties, but “GKN Aerospace/Mel-Rose LLC” is identified in the

body of the complaint as the defendant and was, presumably, Webb’s employer.

The statement of the claim consisted of one long paragraph that contained several

facts giving rise to several claims. The complaint asserted federal subject-matter

jurisdiction through 28 U.S.C. § 1331 (federal question), § 1343 (civil rights), and

§ 1332 (diversity).

In the complaint, Webb alleged that he was sexually harassed at work by a

superior who sent him inappropriate texts and made inappropriate comments of a

sexual nature. When he was later written up for frivolous matters, he thought it

was in retaliation for his ignoring these sexual advances. When he complained of

the harassment to other superiors and to human resources, he was given written

reprimands and was subjected to additional harassment. He asserted in the

complaint that he filed a “complaint of harassment” with the Equal Employment

Opportunity Commission (EEOC).

Webb also asserted in this complaint that he was forced to work with

materials that he was allergic to despite his allergies being documented and there

being written medical restrictions in place. He was disciplined for refusing to

work in that environment and for complaining to his boss that he could not work

1 The signature block on this original complaint is dated August 24, 2021. The docket sheet

contains a Clerk’s Remark, however, noting that the filing date of August 27 “reflects when . . .

plaintiff’s complaint [was] received in the Clerk’s Office Self-Representing Litigants email box.”

with such materials. Finally, Webb alleged that when he returned from leave taken

under the Family Medical Leave Act (FMLA), he was harassed for taking such

leave and was ultimately terminated on November 20, 2019, for attendance issues

despite not having exhausted the leave he was granted.

In his original complaint, Webb sought $250,000 in back pay, $2 million in

front pay, and restoration of his pension and 401K. Webb attached to the

complaint an EEOC Notice of Right to Sue letter dated May 24, 2021, which

referenced EEOC Charge No. 440-2021-02818. The Notice indicated Webb’s

mailing address as “P.O. Box 36, Smithton, IL 62285.” (ECF 1-1.) No EEOC

Charge of Discrimination was attached to the complaint. Nor was a filing fee or

motion to proceed without prepayment of costs submitted with the complaint.

Webb signed the complaint, but he did not include his address, email address, or

telephone number. The docket sheet listed Webb’s address as the “P.O. Box 36”

address that was indicated on the Notice of Right to Sue.

On September 7, 2021, the Court entered a Memorandum and Order (ECF 3)

giving Webb thirty days to pay the filing fee or file a motion for leave to proceed

in forma pauperis. The Court also directed Webb to file an amended complaint on

a Court-provided employment discrimination form with instruction to complete the

form in its entirety and follow the directions contained therein. The Court also

instructed that Webb should attach a copy of his EEOC Charge of Discrimination

and a copy of his Notice of Right to Sue letter. The Clerk of Court mailed the

Memorandum and Order, a blank “Employment Discrimination Complaint” form,

and a blank “Application to Proceed Without Prepaying Fees or Costs” form to

Webb at the “P.O. Box 36” address.

On October 5, 2021, Webb filed an amended “Employment Discrimination

Complaint” and a motion to proceed without prepayment of costs on the forms

provided. In the caption of the amended complaint, Webb named “GKN

Aerospace North America Melrose LLC” as defendant. He checked off boxes in

the complaint indicating that he was bringing claims under Title VII of the Civil

Rights Act of 1964 (Title VII), as amended; and the Americans with Disabilities

Act (ADA), as amended. He also checked “Other” and stated: “I am filing on

Retaliation to me filing with Labor Board, sexual harassment. I began getting

wrote up so I reported it to HR to be sure it wasn’t [for] not engaging in sexual

relations. Forced to work in area I had restrictions from the Dr’s. Terminated for

attendance [and] wasn’t above the threshold.” (ECF 5 at header p. 2.) Although

asked in the form complaint, Webb did not provide the date or time period of the

alleged discrimination. In addition, Webb indicated that he filed an EEOC Charge

of Discrimination, but he did not include the date he filed it (id. at header p. 3) or

attach it to the amended complaint. Regarding the nature of the case, Webb

checked the following as providing the bases for his claims: termination of his

employment, failure to accommodate his disability, terms and conditions of his

employment differed from those of similar employees, retaliation, harassment, and

“other conduct” that he described as sexual harassment, retaliation for filing with

the Labor Board, and discrimination based on disability. (Id. at header p. 4.) He

checked boxes indicating that he believed he was discriminated against because of

his disability and for “other,” which he stated was his use of leave under the

FMLA. His statement of claim restated and elaborated upon the facts asserted in

his original complaint. As relief, Webb sought back pay for two years, front pay or

reinstatement, and return of pension monies. In the amended complaint, he listed

his address as “P.O. Box 35, Smithton, St. Clair, IL 62285.” (Id. at header p. 2.)

Webb attached to the amended complaint an undated letter from the EEOC

acknowledging his seeking information on job discrimination. Webb also attached

two copies of the same undated EEOC Pre-Charge Inquiry in which he claimed he

was discriminated against in July 2019 on the basis of his disability and in

retaliation for complaining about sexual harassment. One copy has a handwritten

notation at the top of the first page: “Copy for File 11/04/19.” (See ECF 5 at

header p. 16.) At the bottom of each page of the Pre-Charge Inquiry form is a

preprinted notice: “THIS PRE-CHARGE INQUIRY IS NOT A CHARGE OF

DISCRIMINATION.” (Id. at header pp. 12-19.) Webb also attached to the

amended complaint the first page of a three-page “Determination Letter” dated

October 18, 2019, indicating approval of intermittent leave under the FMLA from

May 29, 2019, through November 29, 2019. The sender of this letter is unknown.

(Id. at header p. 20.) No EEOC Charge of Discrimination or Notice of Right to

Sue letter is attached to the amended complaint.

In a Memorandum and Order dated October 15, 2021, the Court granted

Webb leave to proceed in this action without prepayment of costs and directed the

Clerk to issue process to defendant based on the amended complaint’s factual

allegations. (ECF 7.) The Clerk mailed the Memorandum and Order to Webb at

the “P.O. Box 36” address.

Defendant’s Motion to Dismiss / More Definite Statement

Defendant raises several arguments in moving to dismiss Webb’s amended

complaint: 1) that Webb failed to exhaust administrative remedies by failing to

timely file an EEOC Charge of Discrimination; 2) that he untimely filed this cause

of action; 3) that he named two entities as a single defendant, neither of which

employed him2; and 4) that the facts alleged do not state a claim upon which relief

can be granted. Alternatively, defendant moves for a more definite statement,

arguing that Webb’s failure to include relevant dates for the alleged actions, failure

to include his Charge of Discrimination, failure to identify when he received the

Notice of Right to Sue, and stream-of-consciousness method of setting out his

claims render it difficult to discern whether his allegations of discrimination are

2 Defendant avers that its proper identity is “GKN Aerospace St. Louis, LLC.”

exhausted and properly before this Court, timely, or properly pleaded.

In response, Webb admits confusion about the proper identity of the

defendant, stating that he merely took the name from his paycheck. He also avers

that the Notice of Right to Sue indicates a wrong address for him and that he was

informed by an EEOC representative that Notices were not mailed during the

Covid pandemic unless requested. He also avers that he has two charge numbers

for his EEOC Charges of Discrimination and that he has requested but has not yet

received copies of the Charges from the EEOC. Finally, his response includes

specific dates on which he alleges the specific conduct giving rise to his claims

occurred. Attached to his response are copies of handwritten and typed notes,

emails, screenshots of text messages, letters addressing his FMLA leave, medical

records, and discipline action forms. In its reply brief, defendant argues that

Webb’s newly asserted timeline, extraneous facts, and documents cannot be

considered on a motion to dismiss, and that they nevertheless fail to cure the

deficiencies in the amended complaint.

Discussion

Timely filing a Charge of Discrimination with the EEOC or with the State or

local agency is a precondition to suit under Title VII and the ADA. Richter v.

Advance Auto Parts, Inc., 686 F.3d 847, 850 (8th Cir. 2012); 42 U.S.C. § 2000e-

5(e)(1) (Title VII); 42 U.S.C. § 12117(a) (ADA has adopted Title VII’s

enforcement procedures). See also Fort Bend Cty., Tex. v. Davis, 139 S. Ct. 1843,

1846, 1850-51 (2019) (filing a charge with the EEOC, while not jurisdictional, is a

precondition that must be met before bringing Title VII suit). In Missouri, a

complainant must file a Charge of Discrimination with the EEOC within 300 days

after the alleged unlawful employment practice occurred. Niekamp v. Missouri,

No. 20-4075-CV-C-WJE, 2020 WL 5350293, at *3 (W.D. Mo. Sept. 4, 2020).

“The purpose of filing a charge with the EEOC is to provide the

Commission an opportunity to investigate and attempt a resolution of the

controversy through conciliation before permitting the aggrieved party to pursue a

lawsuit.” Cobb v. Stringer, 850 F.2d 356, 359 (8th Cir. 1988). Thus, “[a]s a

general rule, a complainant must file a charge against a party with the EEOC

before [he] can sue that party” under either Title VII or the ADA. Sedlacek v.

Hach, 752 F.2d 333, 336 (8th Cir. 1985); see also Voss v. Housing Auth. of the

City of Magnolia, Ark., 917 F.3d 618, 623 (8th Cir. 2019) (“The ADA requires a

plaintiff to file a complaint with the EEOC before filing a suit in federal court.”).

And given the notice requirement and the conciliatory purpose of the

administrative process, a complainant’s lawsuit cannot include for the first time

entirely new allegations that were not made in the Charge of Discrimination. Such

claims must be dismissed for failure to exhaust administrative remedies. Mayes v.

Reuter, No. 4:17 CV 2905 CDP, 2018 WL 2267905, at *6 (E.D. Mo. May 17,

2018) (citing Richter, 686 F.3d at 850-53).3

Webb alleges in his amended complaint and in response to defendant’s

motion that he filed a Charge of Discrimination with the EEOC. But he does not

provide the date upon which he filed the Charge or the bases of discrimination

asserted therein. And because he did not submit a copy of his EEOC Charge with

his amended complaint, I am unable to discern whether the precondition to filing

his employment discrimination claims under Title VII or the ADA has been met in

this case, including whether defendant was given notice of the claims. I will

therefore order Webb to submit a copy of his EEOC Charge of Discrimination to

this Court.

Moreover, a plaintiff bringing an employment discrimination action under

Title VII or the ADA must bring the action within ninety days from receipt of the

Notice of Right to Sue. 42 U.S.C. § 2000e-5(f); 42 U.S.C. § 12117(a). The

ninety-day period represents a limitations period that bars a suit not filed within

that time. Hales v. Casey’s Mktg. Co., 886 F.3d 730, 736 (8th Cir. 2018).

“Generally, the ninety-day filing period begins to run on the day the right to sue

letter is received at the most recent address that a plaintiff has provided the

EEOC.” Hill v. John Chezik Imps., 869 F.2d 1122, 1124 (8th Cir. 1989). The

presumption is that the plaintiff will receive notice three days after the mailing

3 The FMLA does not contain an exhaustion requirement for actions brought against private

sector employers. See Krohn v. Forsting, 11 F. Supp. 2d 1082, 1085 (E.D. Mo. 1998).

date. Hales, 886 F.3d at 736.

Here, the Notice of Right to Sue Webb submitted with his original complaint

is dated May 24, 2021.4 Presuming Webb received the Notice three days later on

May 27, he had ninety days thereafter, that is, until August 25, 2021, to bring a

federal action based on his Charge of Discrimination. Webb filed this action on

August 27. In response to defendant’s motion, Webb equivocates as to when he

actually received the Notice. He first states that the EEOC advised him that

Notices were mailed during the pandemic only upon request.5 He then states that

he requested the Notice but that additional time should be added to the period

within which to file his claims because it would have taken at least four days for

the Notice to be sent through the United States Postal Service. He then states that

the Notice included a wrong address for him, and that he should be allowed

additional time to file for that reason as well.

As stated above, the Notice indicated Webb’s address as “P.O. Box 36”

whereas Webb indicated in his amended complaint that his address is “P.O. Box

35.” Notably, at least ten separate written communications from the Court –

including time-sensitive Orders and letters from the Clerk – were mailed to Webb

4 Although the September 7 Memorandum and Order directed him to do so, Webb did not attach

a copy of his Notice of Right to Sue to the amended complaint.

5 According to the EEOC website, the EEOC resumed issuing Notices of Right to Sue by mail on

August 3, 2020. See https://www.eeoc.gov/newsroom/eeoc-resumes-issuance-charge-closure-

documents.

at the “P.O. Box 36” address, and none of them was returned to the Court as unable

to be delivered or denoting an incorrect address. And the docket sheet shows that

Webb complied with the deadlines imposed by the Orders that were mailed to him

at the “P.O. Box 36” address. It thus appears that Webb is receiving mail that is

sent to the P.O. Box 36 address. On this record, it is unclear what Webb’s mailing

address actually is and, most importantly, when Webb received the Notice of Right

to Sue. I will therefore order Webb to file with the Court a notice of his correct

mailing address. As further instructed below, I will also order Webb to include in

a second amended complaint a sworn statement of when he first received the

Notice of Right to Sue.

Finally, defendant is correct that the notes and documents attached to

Webb’s response to the instant motion as well as the new factual information

contained in the response cannot be considered on its motion to dismiss. Glick v.

Western Power Sports, Inc., 944 F.3d 714, 717 (8th Cir. 2019). But a motion for

more definite statement may be granted if “a pleading . . . is so vague or

ambiguous that a party cannot reasonably prepare a response.” Fed. R. Civ. P.

12(e). While motions under Rule 12(e) are disfavored, a defendant may

nevertheless seek a more definite statement when the complaint fails to specify the

allegations in a manner that provides sufficient notice, thereby preventing

defendant from responding to it in good faith or without prejudice to itself.

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); 5C Wright & Miller,

Federal Practice & Procedure: Civil 3d § 1376 at 311. The amended complaint

here, while it contains factual details giving rise to Webb’s claims, fails to include

information necessary to determining whether Webb can proceed on his claims in

this lawsuit and whether defendant has sufficient notice to defend them. In these

circumstances, ordering Webb to provide a more definite statement is appropriate.

Accordingly, I will provide Webb another opportunity to amend his

complaint and to comply with the Court’s instructions in the September 7

Memorandum and Order that he fill out the Court-provided complaint form in its

entirety, follow the directions contained therein, attach a copy of his EEOC Charge

of Discrimination, and attach a copy of his Notice of Right to Sue letter. I will also

order Webb to include a statement as to when he actually received the Notice of

Right to Sue letter. Finally, I will order Webb to separately file a notice clarifying

his mailing address.

Instructions on Submitting a Second Amended Complaint

Webb must prepare his second amended complaint using a Court-provided

form, and he must follow Rules 8 and 10 of the Federal Rules of Civil Procedure.

His pro se status does not excuse him from following the Federal Rules of Civil

Procedure or the Local Rules of this Court. See Ackra Direct Mktg. Corp. v.

Fingerhut Corp., 86 F.3d 852, 856-57 (8th Cir. 1996).

Rule 8 requires the plaintiff to set forth a short and plain statement of the

claim showing entitlement to relief, and it also requires that each averment be

simple, concise, and direct. Rule 8(a)(2) sets forth a “notice pleading standard”

and simply requires “a short and plain statement of the claim showing that the

pleader is entitled to relief.” “Such a statement must simply give the defendant fair

notice of what the plaintiff’s claim is and the grounds upon which it rests.”

Swierkiewicz, 534 U.S. at 512.

Rule 10(a) requires the plaintiff to name all the parties to the case in the

caption of the complaint. Accordingly, in the “Caption” section of the form

complaint, Webb should write the name of the defendant(s) he wishes to sue. Rule

10(b) requires the plaintiff to state his claims in separately numbered paragraphs,

each limited as far as practicable to a single set of circumstances. For example:

“Count I: Sexual Harassment, against defendant [name].” Each count shall then

set forth in separate, numbered paragraphs: 1) the relevant facts supporting the

claim; 2) the constitutional, statutory, or other right that defendant violated; and 3)

the relief Webb seeks for the claim (for example, money damages or equitable

relief). Webb shall follow the same format with respect to each claim. For

each claim, Webb shall not include any introductory paragraphs or facts not related

to that specific claim. Cross-referencing to other claims or other pleadings filed in

this case, or assigning different highlighter colors to different facets of a claim is

not permitted. In stating the facts of a claim, Webb must describe the conduct he

alleges is unlawful and the date(s) such conduct occurred, if known. In other

words, Webb must describe the adverse employment action(s) he believes was

taken, when it was taken, why it amounted to discrimination or other unlawful

conduct, and the basis for such discrimination or unlawful conduct, that is, gender,

age, disability, etc.

Webb must also attach a complete copy of his EEOC Charge(s) of

Discrimination and EEOC Notice(s) of Right to Sue. These documents will be

considered a part of the complaint for all purposes. Fed. R. Civ. P. 10(c). If Webb

completed only a Pre-Charge Inquiry and not a separate Charge of Discrimination,

he shall so state and attach a complete copy of his Pre-Charge Inquiry. Webb must

also include a statement in his complaint of when he received the Notice of Right

to Sue letter. Without such a statement, the Court will presume he received the

Notice three days after the EEOC issued it.

I will direct the Clerk of Court to provide Webb with another Employment

Discrimination Complaint form, and I will give Webb twenty-one days from the

date of this Memorandum and Order to file a second amended complaint on the

form provided. The second amended complaint must be signed under penalty of

perjury and completed in accordance with the instructions provided in the form as

well as the instructions provided in this Memorandum and Order. Webb is

cautioned that the filing of the second amended complaint completely replaces all

earlier filed complaints in this action. Claims that are not realleged are deemed

abandoned. E.g., In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922,

928 (8th Cir. 2005).

Finally, Webb shall separately file a notice with the Court clearly setting out

his correct mailing address. This clarified mailing address will constitute Webb’s

address of record and the docket sheet will reflect it as such.

Accordingly, for all of the foregoing reasons,

IT IS HEREBY ORDERED that defendant’s Motion to Dismiss or, in the

Alternative, for More Definite Statement [23] is GRANTED to the extent

defendant seeks a more definite statement and DENIED without prejudice to the

extent defendant seeks to dismiss the amended complaint.

IT IS FURTHER ORDERED that the Clerk of Court shall mail an

Employment Discrimination Complaint form and a copy of this Memorandum and

Order to plaintiff Terry A. Webb at the following two mailing addresses:

Terry A. Webb

P.O. Box 35

Smithton, IL 62285

Terry A. Webb

P.O. Box 36

Smithton, IL 62285.

IT IS FURTHER ORDERED that within twenty-one (21) days of the

date of this Memorandum and Order, plaintiff Terry A. Webb shall file a second

amended complaint on the Court-provided Employment Discrimination Complaint

form in accordance with the instructions set forth in that form and with the

instructions set forth in this Memorandum and Order. Failure to timely file a

second amended complaint on the form provided or failure to comply with the

instructions related to the filing of the second amended complaint may result

in the dismissal of this action without prejudice.

IT IS FURTHER ORDERED that within twenty-one (21) days of the

date of this Memorandum and Order, plaintiff Terry A. Webb shall file a

separate Notice to Court clearly setting out his correct mailing address.

IT IS FINALLY ORDERED that plaintiff's Motion for Hearing or Status

Conference [34] is denied.

CATHERINED. PERRY

UNITED STATES DISTRICT JUDGE

Dated this 12th day of April, 2022.

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