Walker v. Easter Seals Midwest

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

STEPHANIE WALKER, )

)

Plaintiff, )

)

v. ) Case No. 4:23-cv-656 SRW

)

EASTER SEALS MIDWEST, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Self-represented Plaintiff Stephanie Walker brings this action for employment

discrimination against her employer, Easter Seals Midwest, and two of its employees. The matter

is now before the Court upon the motion of Plaintiff for leave to proceed in forma pauperis, or

without prepayment of the required filing fees and costs. ECF No. 2. Having reviewed the

motion and the financial information submitted in support, the Court will grant the motion and

waive the filing fee in this matter. See 28 U.S.C. § 1915(a)(1).

Also before the Court are three motions from Plaintiff seeking to supplement her

complaint. ECF Nos. 6-8. Attached to these motions are hundreds of pages of exhibits which

contain unredacted personal data. In a cover letter attached to the exhibits, Plaintiff seeks to add

new legal claims to her complaint, but she does not attach an amended complaint. For the

reasons explained herein, Plaintiff motions to supplement will be denied and the unredacted

exhibits will be stricken from the record.

As Plaintiff is now proceeding in forma pauperis, her complaint is subject to initial

review under 28 U.S.C. § 1915. Based on such review, Plaintiff will be directed to file an

amended complaint on a court-provided form in compliance with the instructions provided

contain personal data of non-parties to this suit.

Finally, as there is no constitutional right to appointment of counsel in civil cases and it

would be premature to grant appointment at this stage in the proceeding, the Court will deny

Plaintiff’s motion for counsel, subject to refiling at a later date. Plaintiff’s failure to comply with

this Order could result in dismissal of this action.

The Complaint

Plaintiff has been employed by defendant Easter Seals Midwest (“ESMW”) for

approximately sixteen and one-half years. ECF No. 1 at 5. For most of her time with the

company, she has been a “Community Living Instructor/Specialist.” She has held this position as

a “floater” for the past year-and-a-half. Her job requires her to work in the homes of ESMW’s

clients, for which Plaintiff states she needs adequate “behavioral” and “medical” information. Id.

Plaintiff brings this suit against her current employer, ESMW, and two of its employees,

Ryan Koons (manager) and Ashley Brown (director), under the Age Discrimination in

Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621, et seq.1 Id. at 1-2, 5. Plaintiff alleges

that she has suffered harassment and retaliation based on her age of 47 years, and that because of

the “ongoing harassment there has been minimum opportunity for advancement.” Id. at 4-5.

Plaintiff has experienced this discriminatory treatment just in the “last years of [her]

employ[ment].” Id. at 3. Plaintiff complains that she has had to do her job “with no access to

documentation nor training” while being asked “to falsify information of being trained … and

1 On the form complaint, Plaintiff checked the lines for bringing this employment discrimination lawsuit based on

the ADEA and “Other.” ECF No. 1 at 1-2. Plaintiff does not “[d]escribe” the “Other,” as specified to do on the form.

Id. at 2. As such, although it is unclear what Plaintiff means by “Other,” the Court notes that she specifically did not

check the line for seeking relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., for

employment discrimination on the basis of race, color, religion, gender, or national origin. Id. at 1. Furthermore, the

complaint contains no factual allegations of discrimination based on any of these protected classes.

off schedules, ignored and denied access to resources” by manager Koons. Id. at 5-6.

Plaintiff brought her complaints to director Brown and the human resources department.

Id. at 6. She was offered a lower paying position and “pulled from schedules.” Id. at 6-7. Plaintiff

alleges that she “knew of a younger coworker that Ryan [Koons] was more favorable of, offered

numerous shifts and overtime.” Id. at 6. Plaintiff states that her performance “began to change”

after she “received training and education outside the agency for professional development” and

that the discriminatory conduct is no longer occurring. Id. at 7-8. Plaintiff attached her Equal

Employment Opportunity Commission (“EEOC”) right-to-sue letter, dated February 16, 2023, to

her original complaint, but no such letter was attached to her charge of discrimination filed in

June of 2023. ECF Nos. 1-3, 6-8.

For relief, Plaintiff seeks additional job training; monetary damages for suffering,

emotional distress, embarrassment, and lost wages; and court costs. ECF No. 1.

Motions to Supplement the Complaint (ECF Nos. 6-8)

I. Content of Motions

About a month after case initiation, Plaintiff filed hundreds of pages of additional

documents with the Court, which she labelled as exhibits 1 through 22. See ECF Nos. 6-8. She

divided the exhibits into three groups and attached a duplicate cover page to each group which

requested that the documents be “used as exhibits to [her] complaint.” ECF Nos. 6 at 1; 7 at 1; 8

at 1. However, those cover letters also stated that Plaintiff was “writing to inform the courts of

the laws … violated” and her belief that she was subjected “to different terms and conditions of

employment, harassed, and disciplined in retaliation for engaging in protected activity, in

violation of Title VII of the Civil Rights Act of 1964, as Amended; and because of my age (47),

in violation of the Age Discrimination in Employment Act of 1967, as Amended.” Id.

human resources; documents about Plaintiff’s terms of employment with ESMW; Plaintiff’s

educational and certification qualifications; text messages with Plaintiff’s manager Koons and

numerous other ESMW employees; maps and photos of homes of ESMW clients; documents

from Plaintiff’s home visits with ESMW clients; lists of ESMW client addresses; documents

about ESMW training; and Plaintiff’s performance reviews. ECF Nos. 6-8. Many pages of these

exhibits contain personally identifying data, including social security numbers (ECF No. 6-3 at

1) and addresses of non-parties to this action (ECF Nos. 6-5, 6-6, 6-8, 6-9, 7-2, 7-4, 8-1, & 8-4

through 8-6). Since this personal information was not redacted by Plaintiff, the Court placed

these exhibits under seal.

II. Discussion

Plaintiff’s motions do not seek to simply supplement her complaint with exhibits; they

seek to add a new legal claim under Title VII of the Civil Rights Act. The Court does not accept

amendments by interlineation (i.e., by adding language to the pending complaint), because it

creates confusion in the record, especially for the responding party. See Popoalii v. Corr. Med.

Servs., 512 F.3d 488, 497 (8th Cir. 2008) (finding that it is appropriate to deny leave to amend a

complaint when a proposed amendment was not submitted with the motion); Clayton v. White

Hall Sch. Dist., 778 F.2d 457, 460 (8th Cir. 1985) (“[I]n order to preserve the right to amend the

complaint, a party must submit the proposed amendment along with its motion.”). Plaintiff did

not include a proposed amended complaint with her motions.

In addition, many of the pages of the exhibits attached to Plaintiff’s motions to

supplement contain personal data identifiers. The Court’s Local Rule 2.17(A) requires redaction

as follows:

In compliance with the policies of the Judicial Conference of the United States

and the E-Government Act of 2002, promoting electronic access to case files

refrain from including, or shall partially redact where inclusion is necessary, the

following personal identifiers from all documents filed with the Court, including

exhibits to such filings, unless otherwise ordered by the Court:

(1) Social Security Number. Only the last four digits of a Social Security

number may be listed in the filing.

(2) Names of Minor Children. Only the initials of minor children may be listed

in the filing.

(3) Dates of Birth. Only the year of birth may be listed in the filing.

(4) Financial Account Numbers. Only the last four digits of financial account

numbers may be listed in the filing.

(5) Home Addresses. The home address of a non-party should not appear in any

filing. If a home address must be included, only the city and state may be

listed.

The responsibility for redaction rests solely with the filing party – which in this case is Plaintiff.

E.D. Mo. L.R. 2.17(B).

Plaintiff failed to properly redact these exhibits as required by the Local Rule. Some of

these documents contain client addresses with alarm codes for entering homes and photos of the

inside of clients’ homes. This violates the privacy of these non-parties and the purpose of Local

Rule 2.17 – to protect personal privacy while promoting electronic access to case files. This is

not acceptable.

For these two reasons, the Court will deny Plaintiff’s motions to supplement. Because the

Court is denying Plaintiff’s motions, these exhibits will be stricken from the record. As discussed

below, Plaintiff will be directed to file an amended complaint in this matter. Plaintiff may attach

exhibits to her amended complaint but exhibits may only include personally identifying

information where “necessary” and must be properly redacted. E.D. Mo. L.R. 2.17(A). Plaintiff

must refrain from filing any exhibits containing non-party personally identifying information,

including addresses, alarm codes, and photos of ESMW clients’ homes. If Plaintiff feels these

exhibits are necessary at this early stage in the litigation, she must file a separate motion

explaining her rationale and attaching the exhibits for filing under seal. The Court warns Plaintiff

privacy of non-parties to this case, and would prefer for such documents to be handled, if and

when, this case reaches discovery.

Initial Review of Complaint under § 1915

I. Legal Standard

Under 28 U.S.C. § 1915(e)(2), the Court may dismiss a complaint filed in forma pauperis

if the action is frivolous or malicious, fails to state a claim upon which relief can be granted, or

seeks monetary relief against a defendant who is immune from such relief. When reviewing a

complaint filed by a self-represented person under 28 U.S.C. § 1915, the Court accepts the well-

pleaded facts as true, White v. Clark, 750 F.2d 721, 722 (8th Cir. 1984), and it liberally construes

the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007); 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 the claim to be

considered within the proper legal framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir.

2015). However, even self-represented plaintiffs 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) (refusing to supply additional facts or

to construct a legal theory for the self-represented plaintiff).

To state a claim for relief, a complaint must plead more than “legal conclusions” and

“[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere

conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must

demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.”

Id. at 679. “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

context-specific task that requires the reviewing court to draw on its judicial experience and

common sense. Id. at 679.

II. Deficiencies in the Complaint

Upon review of the complaint under 28 U.S.C. § 1915(e)(2), the Courts finds multiple

legal deficiencies in the pleadings. However, because Plaintiff is self-represented, she will be

allowed to amend her complaint in accordance with the instructions set forth below. See Munz v.

Parr, 758 F.2d 1254 (8th Cir. 1985) (discussing how a court should give a pro se plaintiff a

statement of the complaint’s deficiencies and a chance to amend the complaint). Plaintiff should

consider the following legal issues in filing her amended complaint.

a. Requirements of an ADEA claim

The Age Discrimination in Employment Act of 1967 (“ADEA”) prohibits employers

from discriminating against individuals who are forty years or older, because of their age. 29

U.S.C. §§ 623, 631. In order to establish a prima facie case under the ADEA, a plaintiff must

show: (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). In

addition, the ADEA prohibits retaliation against employees who oppose any practices made

unlawful by the statute, or who file charges or assert their rights under the statute. See 29 U.S.C.

§ 623(d).

Before bringing suit under the ADEA, a plaintiff must have filed a charge of

discrimination with the Equal Employment Opportunity Commission (“EEOC”). Shelton v.

Boeing Co., 399 F.3d 909, 912 (8th Cir. 2005). A plaintiff will be deemed to have exhausted

administrative remedies as to allegations that are like or reasonably related to the allegations

Cir. 2020).

In this case, Plaintiff’s complaint does not contain all the necessary allegations to state an

ADEA claim. Plaintiff mentions younger employees who are treated more favorably than

herself; however, she does not allege or provide factual allegations suggesting that these

employees are similarly situated to herself in terms of their positions and terms of employment

with ESMW. As to Plaintiff’s claim of retaliation, she states, in part, that she was retaliated

against due to her complaints about lack of access to documents and training. These are not

practices made unlawful by the statute. Plaintiff must correct these pleading deficiencies in the

filing of her amended complaint if she wants her ADEA claim to survive review. Finally,

because Plaintiff must exhaust her allegations with the EEOC, she will be directed to also file her

EEOC charge of discrimination with her amended complaint.

b. Requirements of a Title VII claim

If Plaintiff chooses to also pursue a claim under Title VII, as suggested in her motions to

supplement, her amended complaint must also contain the required pleadings to state such a

claim. Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to

discriminate against an individual on the basis of race, color, religion, sex, or national origin. 42

U.S.C. § 2000e-2(a)(1). To establish a prima facie case of Title VII discrimination, 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 Jud. Dist. Dep’t of Corr. Servs., 728 F.3d 800, 804 (8th Cir. 2013) (citation

omitted).

of the Title VII protected classes. In fact, Plaintiff never specifies her own race, color, religion,

or national origin; nor does Plaintiff allege membership in any protected class. Plaintiff never

details any disparate treatment and the complaint is void of any allegations that similarly situated

employees of a different race, color, religion, gender, or national origin were treated more

favorably. Plaintiff’s amended complaint must state a prima facie case of Title VII

discrimination in order to survive initial review under 28 U.S.C. § 1915(e)(2).

c. Proper Defendants

Title VII and the ADEA only address the conduct of employers, and they do not impose

individual liability. See Powell v. Yellow Book USA, Inc., 445 F.3d 1074, 1079 (8th Cir. 2006)

(Title VII); Drowns v. Vill. of Oakview Bd. of Trustees, No. 4:22-00317-CV-RK, 2022 WL

17489951, at *4 (W.D. Mo. Dec. 7, 2022) (concludes that there is no individual liability under

the ADEA despite the Eighth Circuit never expressly stating). Plaintiff should not name any

individuals (i.e., Ryan Koons and Ashley Brown) in her amended complaint as defendants for

these claims, only her employer.

III. Instructions for Filing an Amended Complaint

Plaintiff shall file an amended complaint, attaching her EEOC charge of discrimination

and right-to-sue letter. Plaintiff is warned that the filing of an amended complaint replaces the

original complaint and all supplements, and so it must include all claims Plaintiff wishes to

bring. E.g., In re Wireless Tele. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 928 (8th Cir.

2005).

Plaintiff must submit the amended complaint on the court-provided form. Plaintiff should

make sure to fully complete the form and provide all required information. Plaintiff should

specify all legal grounds for her employment discrimination lawsuit. Plaintiff should detail all

out her alleged claims in a simple, concise, and direct manner. She must also allege the facts

supporting her claims.

After the filing of Plaintiff’s amended complaint, the Court will review the amended

complaint pursuant to 28 U.S.C. § 1915 for frivolousness, maliciousness and/or failure to state a

claim. A claim must survive § 1915 review in order for Plaintiff to proceed in this lawsuit.

Appointment of Counsel

Finally, Plaintiff has filed a motion for appointment of counsel. ECF No. 5. The

appointment of counsel for an indigent plaintiff in a civil matter lies within the discretion of the

Court. Phillips v. Jasper Cnty. Jail, 437 F.3d 791, 794 (8th Cir. 2006). There is no constitutional

or statutory right to appointed counsel in civil cases. Nelson v. Redfield Lithograph Printing, 728

F.2d 1003, 1004 (8th Cir. 1984). Once a plaintiff has alleged a prima facie claim, the Court must

determine the plaintiff’s need for counsel to effectively litigate his claim. In re Lane, 801 F.2d

1040, 1043 (8th Cir. 1986). The standard for appointment of counsel in a civil case is whether

both the plaintiff and the Court would benefit from the assistance of counsel. Edgington v. Mo.

Dep’t of Corr., 52 F.3d 777, 780 (8th Cir. 1995), abrogated on other grounds by Doe v. Cassel,

403 F.3d 986, 989 (8th Cir. 2005). This determination involves the consideration of several

relevant criteria, including “the factual complexity of the issues, the ability of the indigent person

to investigate the facts, the existence of conflicting testimony, the ability of the indigent person

to present the claims, and the complexity of the legal arguments.” Phillips, 437 F.3d at 794

(citing Edgington, 52 F.3d at 780).

In this matter, the Court finds that appointment of counsel is not warranted at this time.

The action appears to involve straightforward questions of fact rather than complex questions of

law. Further, the request for counsel is premature, as defendants have not yet been served, and

of counsel would not be of sufficient benefit to the Court or to Plaintiff at this time, and will

deny Plaintiff’s motion for appointment of counsel, without prejudice.

Accordingly,

IT IS HEREBY ORDERED that Plaintiff’s motion for leave to proceed in forma

pauperis [ECF No. 2] is GRANTED and the filing fee is waived. See 28 U.S.C. § 1915(a)(1).

IT IS FURTHER ORDERED that the Clerk of Court shall mail to Plaintiff a blank

copy of the Court’s ‘Employment Discrimination Complaint’ form.

IT IS FURTHER ORDERED that, within thirty (30) days of the date of this Order,

Plaintiff shall file an amended complaint on the court-provided form and in compliance with the

Court’s instructions. Plaintiff shall attach her EEOC charge of discrimination and right-to-sue

letter.

IT IS FURTHER ORDERED that Plaintiff’s motions to supplement the complaint

[ECF Nos. 6-8] are DENIED. Plaintiff may re-file any exhibits as attachments to her amended

complaint that do not contain personally identifying information of non-parties and that are

properly redacted under Local Rule 2.17. The Clerk is instructed to return to Plaintiff any

exhibits filed by Plaintiff that do not comply with the instructions in this Order and Local Rule

2.17.

IT IS FURTHER ORDERED that Plaintiff’s unredacted exhibits [ECF Nos. 6-1

through 6-9, 7-1 through 7-6, and 8-1 through 8-7] are STRICKEN from the record.

IT IS FURTHER ORDERED that upon submission of the amended complaint, the

Court shall review this action pursuant to 28 U.S.C. §1915.

IT IS FINALLY ORDERED that Plaintiff's motion for appointment of counsel [ECF

No. 5] is DENIED without prejudice.

Plaintiff’s failure to timely comply with this Order shall result in the dismissal of

this action, without prejudice and without further notice.

Dated this 10th day of August, 2023.

HEN R. Y

UNITED ST#TES MAGISTRATE JUDGE

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