White v. Ameren

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

TENISHA WHITE, )

)

Plaintiff, )

)

v. ) No. 4:22-CV-1120 SPM

)

AMEREN and ADAM KASHYAP, )

)

Defendants. )

OPINION, MEMORANDUM AND ORDER

This matter comes before the Court on plaintiff’s motion for leave to commence this

employment discrimination action without prepayment of the required filing fee. ECF No. 2. Upon

consideration of the financial information provided with the application, the Court finds plaintiff

is financially unable to pay the filing fee. Therefore, plaintiff will be granted leave to proceed in

forma pauperis. Additionally, under 28 U.S.C. § 1915, the Court is required to review the

complaint and dismiss any part of it that is frivolous, malicious, or fails to state a claim upon which

relief can be granted. Upon such review, the Court will dismiss plaintiff’s claims against defendant

Adam Kashyap.

I. 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 self-represented 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

self-represented 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 self-represented 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).

II. Discussion

Plaintiff brings this action under Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. §§ 2000e, et seq. (“Title VII”) and the Age Discrimination in Employment Act, as

amended, 29 U.S.C. §§ 621, et seq. (“ADEA”), for employment discrimination and retaliation on

the basis of race, color, gender, and age. ECF No. 1. Named as defendants are Ameren and Adam

Kashyap. Plaintiff provided a copy of the Charge of Discrimination she filed with the Equal

Employment Opportunity Commission against Ameren, ECF No. 1-3, and Notice of Right to Sue,

ECF No. 1-4. The Notice of Right to Sue is dated August 23, 2022. It therefore appears plaintiff

has timely brought this action.

Within the complaint, plaintiff describes herself as a “41-year old, light skinned African

American female.” ECF No. 1 at 5. She states she applied for the “position of Paralegal via the

internet,” and was interviewed by defendant Kashyap. Id. She asserts she was offered the position

on March 28, 2022, but did not hear back from defendants after the offer was given. Id. Attached

to her complaint is e-mail correspondence between plaintiff and defendant Kashyap evidencing

she applied for the position and followed up regarding her application. ECF No. 1-5. It appears

from the attachments that defendant Kashyap was an employee of a staffing company, ICONMA,

not Ameren. Id. Plaintiff alleges defendants’ failure to follow up with her after an offer was given

was the result of race, color, age, and sex discrimination.

Title VII provides a remedy only against an “employer.” The term “employer” under Title

VII means a “person engaged in an industry affecting commerce who has fifteen or more

employees[.]” The Eighth Circuit has squarely held that individuals, including supervisors, may

not be held individually liable under Title VII. Bonomolo-Hagen v. Clay Central-Everly

Community School District, 121 F.3d 446, 447 (8th Cir. 1997) (per curiam) (citing Spencer v.

Ripley County State Bank, 123 F.3d 690, 691-92 (8th Cir. 1997) (per curiam)); see Bales v. Wal-

Mart Stores Inc., 143 F.3d 1103, 1111 (8th Cir. 1998).

Most courts who have examined the issue have similarly determined that there is no

individual liability under the ADEA. See, e.g., Lyons-Belisle v. American Wholesale Florists of

Kansas City, Inc., 2016 WL 4443186, at *3 (W.D. Mo. Aug. 19, 2016); Bartunek v. eFrame, LLC,

2016 WL 5854215, at *1 (D. Neb. Oct. 6, 2016); Smith v. Bankers Life and Cas. Co., 519 F. Supp.

2d 964, 967 (S.D. Iowa 2007); Wortham v. American Family Ins. Co., 2002 WL 31128057, at *4

(N.D. Iowa Sept. 17, 2002) (“While the Eighth Circuit has not explicitly decided the issue, relevant

case law strongly suggests that it would conclude that there is no individual liability under the

ADEA”); and Kelleher v. Aerospace Community Credit Union, 927 F. Supp. 361, 363 (E.D. Mo.

1996) (“[T]he Court reaffirms its previous decisions that individuals cannot be held liable under

the ADEA”). See, e.g., Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 686 (5th Cir. 2001); Stults

v. Conoco, Inc., 76 F.3d 651, 655 (5th Cir. 1996); Csoka v. U.S. Government, 1996 WL 467654,

at *5 (7th Cir. 1996) (“The ADEA, like Title VII, does not authorize individual liability

claims”); Smith v. Lomax, 45 F.3d 402, 403 n. 4 (11th Cir. 1995); Birkbeck v. Marvel Lighting

Corp., 30 F.3d 507, 510 (4th Cir. 1994); and Miller v. Maxwell's Int'l, 991 F.2d 583, 587 (9th Cir.

1993) (stating that “[i]f Congress decided to protect small entities with limited resources from

liability, it is inconceivable that Congress intended to allow civil liability to run against individual

employees”).

As a result, plaintiff’s claims against Adam Kashyap, as an individual employer,

supervisor, or hiring manager, fails to state a claim upon which relief can be granted.

Consequently, the Court will dismiss him from this action under 28 U.S.C. § 1915.

−4−

Motion for Appointment of Counsel

Plaintiff has filed a motion to appoint counsel in addition to her complaint in this action.

In civil cases, a self-represented litigant does not have a constitutional or statutory right to

appointed counsel. Ward v. Smith, 721 F.3d 940, 942 (8th Cir. 2013). See also Stevens v. Redwing,

146 F.3d 538, 546 (8th Cir. 1998) (stating that “[a] pro se litigant has no statutory or constitutional

right to have counsel appointed in a civil case”). 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 self-represented litigant to investigate the facts, the

existence of conflicting testimony, and the ability of the self-represented litigant to present his or

her claim. Phillips v. Jasper Cty. Jail, 437 F.3d 791, 794 (8th Cir. 2006).

After considering these factors, the Court finds that the appointment of counsel is

unwarranted at this time. Plaintiff has demonstrated, at this point, that she can adequately present

her claims to the Court. Additionally, neither the factual nor the legal issues in this case appear to

be unduly complex. Thus, the Court will deny plaintiff’s motion for appointment of counsel but

will entertain future motions for appointment of counsel as the case progresses.

Accordingly,

IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis [ECF

No. 2] is GRANTED.

−5−

IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel [ECF

No. 3] is DENIED without prejudice.

IT IS FURTHER ORDERED that plaintiff’s claims against defendant Adam Kashyap

are DISMISSED.

IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to issue

as to defendant Ameren at the address provided by plaintiff: 1901 Chouteau, St. Louis, Missouri

63103.

An Order of Partial Dismissal will accompany this Order.

Dated this 3" day of November, 2022.

UNITED STATES DISTRICT JUDGE

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