Thomas v. Ashley Stewart, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

LESLIE M. THOMAS, )

)

Plaintiff, )

)

v. ) No. 4:22-cv-01228-AGF

)

ASHLEY STEWART, INC., )

)

Defendant. )

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Leslie M. Thomas for leave

to commence this civil action without prepayment of the required filing fee. (Docket No. 2).

Having reviewed the motion, the Court finds that it should be granted. See 28 U.S.C. § 1915(a)(1).

Additionally, the Court will dismiss plaintiff’s claims under Title VII and the Age Discrimination

in Employment Act without prejudice. See 28 U.S.C. § 1915(e)(2)(B). However, the Court will

direct the Clerk of Court to issue process on defendant Ashley Stewart, Inc. on plaintiff’s claim

under the Americans with Disabilities Act.

Legal Standard on Initial Review

Under 28 U.S.C. § 1915(e)(2), the Court is required to undertake a review of a complaint

filed in forma pauperis. Following this review, the Court must dismiss the action if it is frivolous,

malicious, or fails to state a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B).

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 28 U.S.C. § 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 has filed a civil action pursuant to Title VII of

the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act of 1967

(ADEA), and the Americans with Disabilities Act of 1990 (ADA). (Docket No. 1 at 1). The

complaint is on a Court-provided employment discrimination form, and names Ashley Stewart,

Inc. as the defendant. (Docket No. 1 at 2).

In the section of the form complaint for describing the “Nature of the Case,” plaintiff has

checked the boxes for termination of employment, failure to promote, failure to accommodate her

disability, different terms and conditions of employment, retaliation, and harassment. (Docket No.

1 at 4). She also asserts that a store manager brought a gun into the workplace and “flashed it at

[her],” and that this individual has a “personal relationship with other managers in [the] store to

[harass her],” leading her to get a restraining order.

With regard to the specific types of discrimination she faced, plaintiff has checked the

boxes for religion, disability, and age. (Docket No. 1 at 5). As to her actual claim, plaintiff states

that she was hired on February 19, 2020, and told her supervisor that she had a disability and

needed an accommodation. In particular, she needed to be able to wear comfortable shoes, have

small breaks, and avoid excessive lifting. Plaintiff alleges that she never received the

accommodations she needed, and that she was “thrust into heavier lifting” and “[ladder] climbing,”

and that she received “no breaks.”

Concerning the exhaustion of administrative remedies, plaintiff has checked the boxes

indicating that she filed a charge of discrimination with the Missouri Commission on Human

Rights, and the Equal Employment Opportunity Commission (EEOC). (Docket No. 1 at 3). She

also asserts that she has received a right-to-sue letter.

Attached to the complaint are a number of exhibits, which the Court has reviewed and will

treat as part of the pleadings.1 The first exhibit is a doctor’s note explaining that plaintiff has

“multiple medical” issues, including knee arthritis, and that she should be allowed “to wear

comfortable shoes” at work, and to have a less stressful “work environment, especially in regards

to co-workers.” (Docket No. 1-1 at 1).

The second exhibit consists of a number of state court filings involving plaintiff, including

a protection order and judgment, a notice of hearing on a full order of protection, a petition for

order of protection, and a judgment of the full order of protection. (Docket No. 1-1 at 3-16). In the

petition seeking the protection order, plaintiff explains that a coworker took things out of her

hands, shoved her, and tampered with her cash register causing her to be $15.00 short. (Docket

No. 1-1 at 8-9). This coworker also allegedly brought a gun to plaintiff’s work to intimidate her,

and openly harasses her to make her work difficult. (Docket No. 1-1 at 9).

The third exhibit is a typewritten “outline of constant harassment” regarding plaintiff’s

employment at Ashley Stewart. (Docket No. 1-1 at 17). In this “outline,” she states that she began

working at Ashley Stewart as a salesperson, with no training in management. Nevertheless, due to

her “numbers,” she was given a position as manager. Following this promotion, plaintiff states that

three of her coworkers “began conspiring together.” According to plaintiff, they were rude to her

and talked about her in front of customers; her “workload became extra and more strenuous;” an

individual brought a gun to the workplace and threatened her “openly in front of customers;” an

individual took items from her hands; and an individual took money from her register.

1 See Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is part of the pleading for

all purposes”). See also Reynolds v. Dormire, 636 F.3d 976, 979 (8th Cir. 2011) (stating that “while ordinarily, only

the facts alleged in the complaint are considered in determining whether it states a claim, materials attached to the

complaint as exhibits may be considered in construing the sufficiency of the complaint”); and Pratt v. Corrections

Corp. of America, 124 Fed. Appx. 465, 466 (8th Cir. 2005) (explaining that “the district court was required to consider

the allegations not only in [plaintiff’s] pro se complaint, but also in his motion to amend, his response to defendants’

motion to dismiss, and the attachments to those pleadings”).

The fourth exhibit is an Ashley Stewart document titled “Progressive Discipline

Documentation,” which indicates that plaintiff was being terminated for “failing to set up

promotional campaign materials,” and for failing “to complete the nightly closing and banking

process.” (Docket No. 1-1 at 19).

The fifth exhibit is a “Severance and Release of All Claims Agreement” between plaintiff

and Ashley Stewart. (Docket No. 1-1 at 20).

Finally, the sixth exhibit is a notice of right to sue issued by the EEOC on plaintiff’s

request. (Docket No. 1-2). The notice is dated October 14, 2022, and gives plaintiff ninety days to

file suit in state or federal court.

On December 12, 2022, plaintiff submitted a number of additional documents to the Court

to supplement her complaint. (Docket No. 4). Most of these documents consist of email printouts

between plaintiff, an EEOC investigator, a work incentives planning and assistance manager from

Paraquad, and an attorney representing Ashley Stewart.

Also included in this supplement is plaintiff’s EEOC charge of discrimination, in which

she alleges discrimination based on disability only. (Docket No. 4 at 21). In the charge of

discrimination, plaintiff states that she was hired by Ashley Stewart and promoted to assistant

manager. She further states that she suffers “from disabilities and [has] requested reasonable

accommodations which have been denied.” Those accommodations included not exceeding a

certain number of work hours, and being able to wear comfortable shoes. Plaintiff alleges that

other employees were allowed to wear the comfortable shoes she required, and that when she made

the request for set hours, she was demoted. Regardless, plaintiff kept working at Ashley Stewart,

and was offered a store to manage. (Docket No. 4 at 22). In response, plaintiff’s coworkers mocked

her, instructed other managers to keep her away from the cash registers, instructed others to treat

her badly, subjected her to bullying and harassment, and would not let her wear the comfortable

shoes others were allowed to wear. Based on these facts, plaintiff believes that she is “being

discriminated against because of [her] disabilities and need for reasonable accommodations, in

violation of [t]he Americans with Disabilities Act.”

On December 20, 2022, plaintiff submitted to the Court a copy of her EEOC pre-charge

inquiry. (Docket No. 5). In the inquiry, plaintiff has checked the boxes asserting that she was

discriminated against on the basis of her age and disability. (Docket No. 5 at 2). She further alleges

that she was employed with Ashley Stewart from February 19, 2020 to October 12, 2022 as a

parttime assistant manager. (Docket No. 5 at 5). Plaintiff asserts that she is “an individual with a

disability,” and that her employer was aware of this disability. She also asserts that since filing her

charge of discrimination with the EEOC, she believes that she has been retaliated against, and that

she was terminated for the actions of another individual. Plaintiff concludes by stating her belief

that she has been discriminated against on the basis of her disability and her age, in violation of

the ADA and the ADEA. (Docket No. 5 at 6).

Discussion

Plaintiff is a self-represented litigant who has sued her former employer for employment

discrimination under Title VII, the ADEA, and the ADA. Because she is proceeding in forma

pauperis, the Court has reviewed her complaint under 28 U.S.C. § 1915. Based on that review, the

Court will dismiss plaintiff’s claims under Title VII and the ADEA, as she has presented no factual

allegations to support them. However, the Court will direct the Clerk of Court to issue process on

defendant Ashley Stewart, Inc. on plaintiff’s claim under the ADA.

A. Claims Under Title VII and the ADEA

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). Meanwhile, “[t]he

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”).

In this case, plaintiff has indicated that she is suing Ashley Stewart, Inc. under Title VII

and the ADEA by marking the appropriate boxes on the form complaint. She has also checked

boxes corresponding to her belief that she has been discriminated against on the basis of her

religion and age. In a pre-charge inquiry filed with the EEOC after submitting the instant

complaint, plaintiff specifically states that her age is 61, and that she believes an ADEA violation

has occurred. None of this is sufficient to state a plausible claim for relief.

Aside from the check-boxes, plaintiff presents no facts in her complaint implicating either

Title VII or the ADEA. That is, her facts do not suggest that she was discriminated against due to

either her religion or her age, or on the basis of race, color, sex, or national origin. Instead,

plaintiff’s only factual allegations state that she has a disability, that her employer knew about the

disability, and that the employer did not accommodate her disability. There is nothing in plaintiff’s

brief factual recitation implying that discrimination against her occurred on any other basis.

The Court has also reviewed all of plaintiff’s exhibits, including her charge of

discrimination. The Court notes that plaintiff’s EEOC charge is based solely on the ADA, and

makes no mention of Title VII, the ADEA, or discrimination based on race, color, religion, sex,

national origin, or age. In the charge of discrimination, plaintiff presents a far more thorough and

detailed account of her experiences than in the complaint. Despite the greater detail, there are no

allegations whatsoever that plaintiff’s discrimination was based on anything other than her

disability.2 Likewise, even though plaintiff mentions her age and the ADEA in a pre-charge inquiry

form, plaintiff does not provide a single fact in support of the proposition that the workplace

harassment and discrimination she purportedly suffered was based on her age.

The Court must accept the allegations contained in the complaint as true and make all

reasonable inferences in plaintiff’s favor. See Jones v. Douglas Cty. Sheriff’s Dep’t, 915 F.3d 498,

499 (8th Cir. 2019). On the other hand, the Court “is free to ignore legal conclusions, unsupported

conclusions, unwarranted inferences and sweeping legal conclusions cast in the form of factual

allegations.” Wiles v. Capitol Indem. Corp., 280 F.3d 868, 870 (8th Cir. 2002). In other words, “[a]

pleading that merely pleads labels and conclusions, or a formulaic recitation of the elements of a

2 The Court notes that both Title VII and the ADEA require exhaustion of administrative remedies prior to filing suit.

See 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”); and

Shelton v. Boeing Co., 399 F.3d 909, 912 (8th Cir. 2005) (“Exhaustion of administrative remedies is a condition

precedent to the filing of an action under the ADEA in federal court”). “The proper exhaustion of administrative

remedies gives the plaintiff a green light to bring her employment-discrimination claim, along with allegations that

are like or reasonably related to that claim, in federal court.” Shannon v Ford Motor Co., 72 F.3d 678, 684 (8th Cir.

1996). In this case, plaintiff has alleged that she has exhausted her ADA claims by providing her charge of

discrimination and a right-to-sue letter. There is no indication that she has exhausted or attempted to exhaust any

allegations regarding Title VII or the ADEA, meaning that she has arguably failed to exhaust such claims before

bringing them before the Court. In any event, the Court need not reach the issue of exhaustion, as plaintiff has simply

failed to state a claim for relief under Title VII and the ADEA.

cause of action, or naked assertions devoid of factual enhancement will not suffice.” Hamilton v.

Palm, 621 F.3d 816, 817-18 (8th Cir. 2010).

Here, as discussed above, there are no factual allegations to support a claim under Title VII

or the ADEA. Simply checking boxes in a form complaint, mentioning one’s age, or naming a

federal statute is not sufficient, without more, to state a plausible claim for relief. Therefore,

plaintiff’s claims under Title VII and the ADEA will be dismissed.

B. 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). Discrimination includes an employer not making a reasonable accommodation to the known

physical or mental limitations of an otherwise qualified individual with a disability. Kallail v.

Alliant Energy Corp. Servs., Inc., 691 F.3d 925, 930 (8th Cir. 2012). In order to establish a prima

facie case of discrimination under the ADA, “an employee must show that she (1) is disabled

within the meaning of the ADA, (2) is a qualified individual under the ADA, and (3) has suffered

an adverse employment action because of her disability.” Hill v. Walker, 737 F.3d 1209, 1216 (8th

Cir. 2013). See also Wood v. Crown Redi-Mix, Inc., 339 F.3d 682, 684 (8th Cir. 2003). To establish

a disability, an ADA claimant must show a physical or mental impairment substantially limiting a

major life activity, a record of such impairment, and that the claimant is regarded as having such

impairment. Duty v. Norton-Alcoa Proppants, 293 F.3d 481, 490-91 (8th Cir. 2002).

In this case, plaintiff has alleged that she has a disability, and that she requires workplace

accommodations. She has also attached a doctor’s letter as an exhibit, to support that proposal.

Further, plaintiff asserts that her employer has discriminated against her by not making reasonable

accommodations, despite being made aware of her disability. As to exhaustion, plaintiff states that

she has submitted a charge of discrimination to the EEOC, and has received a right-to-sue letter,

which has been attached to the complaint. The right-to-sue letter is dated October 14, 2022, and

gives plaintiff ninety days to file suit in state or federal court. Plaintiff filed the instant action on

November 17, 2022, within that ninety-day period.

For purposes of initial review, the Court must accept these allegations as true, and make

all reasonable inferences in plaintiff’s favor. See Jones, 915 F.3d at 499. The Court will therefore

direct the Clerk of Court to issue process on defendant Ashley Stewart with regard to plaintiff’s

claim under the ADA. The Court cautions plaintiff that this is only a preliminary determination

based solely on the allegations contained in the complaint. This is not a determination of the merits

of her claim or potential defenses thereto.

C. Motion to Appoint Counsel

Plaintiff has filed a motion for the appointment of counsel. (Docket No. 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. Plaintiff has demonstrated, at this point, that she can adequately present her

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

progresses.

Accordingly,

IT IS HEREBY ORDERED that plaintiffs motion for leave to proceed in forma pauperis

(Docket No. 2) is GRANTED.

IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel (Docket

No. 3) is DENIED at this time.

IT IS FURTHER ORDERED that plaintiff's claims under Title VII and the Age

Discrimination in Employment Act are DISMISSED without prejudice for failure to state a claim.

See 28 U.S.C. § 1915(e)(2)(B). A separate order of partial dismissal will be entered herewith.

IT IS FURTHER ORDERED that an appeal from this order of partial dismissal would

not be taken in good faith.

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

to issue on defendant Ashley Stewart, Inc. as to plaintiff's claim under the Americans with

Disabilities Act, by serving its registered agent: CSC-Lawyers Incorporating Service Company,

221 Bolivar Street, Jefferson City, MO 65101.

Dated this 3rd day of March, 2023.

AUDREY G. tithe ( \

UNITED STATES DISTRICT JOUPGE

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