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”
- reasoning “disability must be a motivating factor 1 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2 To establish a prima facie case of retaliation under Title VII, an employee must show that: “(1) he or she engaged in statutorily protected activity, (2
- reasoning direct evidence of disability discrimination must “support an inference that discriminatory attitude more likely than not was a motivating factor” (quoting Schierhoff v. GlaxoSmithKline Consumer Healthcare, L.P., 444 F.3d 961, 966 (8th Cir. 2006)
- noting the EEOC letter “plainly” said the plaintiff would lose his right to a cause of action if one was not filed within 90 days
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JOHNEAN ALEXIS SMITH, )
)
Plaintiff, )
)
v. ) No. 1:22-CV-118 ACL
)
ALORICA HEALTHCARE, )
)
Defendant. )
OPINION, MEMORANDUM AND ORDER
This matter comes before the Court on the motion of plaintiff Johnean Smith for leave to
commence this civil action without prepayment of the required filing fee. [ECF No. 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
Plaintiff is a self-represented litigant who brings this civil action pursuant to Title VII of
the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e, et seq., and the Americans with
Disabilities Act (ADA), 42 U.S.C. §§ 12101, et seq. She names Alorica Healthcare as the
defendant in this action.
On her form complaint, plaintiff indicates that the nature of her case involves a failure to
hire by defendant Alorica Healthcare. Plaintiff indicates a belief that she was discriminated against
and retaliated against based on her race, color, gender and disability.
In the section for plaintiff to specify the essential elements of her claim, she states the
following:
In May I applied for a customer service position and
completed an assessment. I received an email from
respondent congratulating me for being a good match the
same day I was interviewed by Noe Antipuerto and he
informed that next steps would be a virtual interview and that
I would receive a link for the interview in which I never
received. I then received a rejection letter by email. I made
several attempts to reach out asking for the link and no one
ever responded. The day after I filed the charge I received an
invitation from Alorica Healthcare to complete an
assessment in which I had already completed and then again
a few days later I received another invitation to complete an
assessment. I did not respond to either communication as I
feel it was only sent because I had filed a charge of
discrimination. I was told I was a good match and what the
company was looking for only to be told the same week that
I wasn’t a good match.
Plaintiff asserts that she would like compensation for “emotional and financial strain.”
Attached to plaintiff’s complaint is a notice of right to sue issued by the Equal Employment
Opportunity Commission (EEOC) on September 2, 2022. Plaintiff, however, has failed to file a
copy of her charge of discrimination with the Court.
Discussion
Plaintiff is a self-represented litigant who brings this action pursuant to Title VII and the
ADA. Having reviewed plaintiff’s 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 plaintiff is
proceeding pro se, she will be allowed the opportunity to file an amended complaint, along with a
copy of her charge of discrimination.
A. Defects in Complaint
As noted above, plaintiff’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 of discriminatory failure to hire, a plaintiff must plead that
(1) she belongs to a protected class; (2) she applied and was qualified for a job for which the
defendant was seeking applicants; (3) defendant rejected plaintiff; and (4) after rejecting plaintiff,
defendant continued to seek applicants with her qualifications.” E.E.O.C. v. Audrain Health Care,
Inc., 756 F.3d 1083, 1087 (8th Cir.2014) (citing Hunter v. United Parcel Serv., Inc., 697 F.3d 697,
703 (8th Cir.2012)). A plaintiff must show either direct evidence of discrimination, or evidence
that is sufficient to create an inference of discrimination under the McDonnell Douglas1 burden
shifting framework.2
The ADA makes it unlawful to discriminate against a qualified individual “on the basis of
disability,” including by failing to hire an applicant. 42 U.S.C. § 12112(a); see Chalfant v. Titan
Distrib., Inc., 475 F.3d 982, 991 (8th Cir. 2007) (reasoning “disability must be a motivating factor
1 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
2 To establish a prima facie case of retaliation under Title VII, an employee must show that: “(1) he or she
engaged in statutorily protected activity, (2) the employer took adverse action against him or her, and (3) a
connection exists between the two occurrences.” Tademe v. Saint Cloud State Univ., 328 F.3d 982, 991-92
(8th Cir. 2003). A “connection, or “causal link,” between the two occurrences “requires evidence that
‘retaliatory motive played a part in the adverse employment action.’” Duncan v. LaSalle (Mgmt.) Grp., Ltd.,
No. 09-1574 (DSD/JJG), 2010 WL 276242 at *3, (D. Minn. Jan. 15, 2010) (quoting Kipp v. Mo. Highway
& Transp. Comm'n, 280 F.3d 893, 897 (8th Cir. 2002)).
in the employer's” adverse employment action); see also Lipp v. Cargill Meat Sols. Corp., 911
F.3d 537, 543 (8th Cir. 2018) (reasoning direct evidence of disability discrimination must “support
an inference that discriminatory attitude more likely than not was a motivating factor” (quoting
Schierhoff v. GlaxoSmithKline Consumer Healthcare, L.P., 444 F.3d 961, 966 (8th Cir. 2006)).
Like other forms of employment discrimination, a plaintiff may prove disability
discrimination claim premised on failure-to-hire either by offering direct evidence of
discrimination or by creating an inference of discrimination under the McDonnell Douglas burden-
shifting framework. See Oehmke v. Medtronic, Inc., 844 F.3d 748, 755 (8th Cir. 2016). To establish
a prima facie case of disability discrimination, a plaintiff must show that she: 1) is disabled within
the meaning of the ADA;3 2) is qualified to perform the essential functions of the job with or
without reasonable accommodation; and 3) has suffered an adverse employment action based on
the disability. Knutson v. Schwan's Home Serv., Inc., 711 F.3d 911, 914 (8th Cir. 2013).
Here, plaintiff’s allegations fail to meet these requirements. Although plaintiff alleges that
she received an email rejection, she also asserts that she received several emails requesting that
she fill out an “assessment” so that she could proceed to the next step in the interview process.
Moreover, plaintiff fails to allege that she was discriminated against based on any of the Title VII
characteristics, i.e., race, color or gender, or because she was disabled based on a qualified
disability under the ADA. Indeed, she never specifies in her complaint her own race, color, or
alleged disability, nor does she allege membership in any protected class. The Court cannot assume
3The ADA defines disability in the following three ways: “(A) a physical or mental impairment that
substantially limits one or more of the major life activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2); Webner v. Titan
Distribution, Inc., 267 F.3d 828, 833 (8th Cir.2001). A person is regarded as disabled if “(1) the employer
mistakenly believes that the employee has an impairment (which would substantially limit one or more
major life activity), or (2) the employer mistakenly believes that an actual impairment substantially limits
one or more major life activity.” Wenzel v. Missouri-American Water Co., 404 F.3d 1038, 1041 (8th Cir.
2005).
facts that are not pleaded. Furthermore, plaintiff 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 or perceived disability were treated more favorably. Plaintiff has also failed to allege
any conduct relating to alleged retaliatory behavior by defendant, either under the ADA or Title
VII.
As discussed above, plaintiff’s complaint is subject to dismissal. Because plaintiff is a self-
represented litigant, however, the Court will direct her to file an amended complaint according to
the instructions set forth below. Plaintiff will also be required to submit a copy of her charge of
discrimination along with her amended complaint so that the Court may ascertain whether she has
fully exhausted her administrative remedies.
B. Exhaustion of Administrative Remedies
A plaintiff bringing an employment discrimination action under Title VII or the ADA must
bring the action within ninety (90) days from receipt of the notice of right to sue letter. 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).
Failure to file suit within ninety (90) days after receipt of a notice from the EEOC renders a
plaintiff’s action untimely. See Brooks v. Ferguson-Florissant Sch. Dist., 113 F.3d 903, 905 (8th
Cir. 1997) (noting the EEOC letter “plainly” said the plaintiff would lose his right to a cause of
action if one was not filed within 90 days).
Plaintiff filed the instant action on September 13, 2022. Although it appears that plaintiff
has filed this action within the ninety-day time period, the Court is unable to ascertain if plaintiff
has administratively exhausted the claims in the instant lawsuit with the EEOC without reviewing
a copy of the charge of discrimination.
Both Title VII and the ADA require an administrative claim be filed and resolved prior to
bringing a judicial action on the same claim. See 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). In other words, the claims plaintiff asserts in the
instant federal complaint must be like or reasonably related to the claims outlined in her charge of
discrimination, or they will be subject to dismissal for failure to exhaust administrative remedies.
See Duncan v. Delta Consolidated Indus., Inc., 371 F.3d 1020, 1024 (8th Cir. 2004).
In consideration of plaintiff’s self-represented status, the Court will provide her with an
opportunity to submit a complete copy of her EEOC charge of discrimination so that the Court
may ascertain whether she has fully exhausted her administrative remedies with respect to her
claims.
C. Amendment Instructions
Plaintiff 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, plaintiff 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, plaintiff may add additional sheets of paper. However,
all the defendants must be clearly listed. Plaintiff should fill out the complaint form in its entirety.
In the section of the form complaint to state her claim, plaintiff should provide a short and
plain statement of the factual allegations supporting her claim. See Fed. R. Civ. P. 8(a). Plaintiff
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, plaintiff should only include claims that are related to each other.
See Fed. R. Civ. P. 20(a)(2). Alternatively, plaintiff may choose a single defendant and set forth
as many claims as he has against that defendant. See Fed. R. Civ. P. 18(a).
Plaintiff 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. Plaintiff 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 plaintiff 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).
Plaintiff 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”).
As noted above, plaintiff is required to submit a copy of the charge of discrimination she
submitted to the EEOC as an attachment to the amended complaint. Her failure to do so may result
in a dismissal of this action, without prejudice.
After receiving the amended complaint, the Court will review it pursuant to 28 U.S.C. §
1915. If plaintiff fails to file an amended complaint on a Court-provided form within thirty (30)
days in accordance with the instructions set forth herein, the Court will dismiss this action without
prejudice and without further notice to plaintiff.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma pauperis
[ECF No. 2] is GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court shall send to plaintiff 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 within thirty (30) days of the date of this order, in accordance with the instructions
set forth above.
IT IS FURTHER ORDERED that plaintiff shall attach to her amended complaint a copy
of her charge of discrimination, filed with the Equal Employment Opportunity Commission.
IT IS FURTHER ORDERED that if plaintiff fails to file an amended complaint on the
Court-provided form within thirty (30) days of the date of this order or if she fails to file a copy
of her charge of discrimination with the Court, this action will be dismissed without prejudice and
without further notice.
IT IS FURTHER ORDERED that upon receipt of the amended complaint and the charge
of discrimination, the Court will review it pursuant to 28 U.S.C. § 1915.
Dated this 16™ day of September, 2022.
Kors EDWARD fa REY
UNITED STATES DISTRICT JUDGE
10