The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge
Presently before the Court are Defendant's Motion to Dismiss (Docket No. 38) and Defendant's Motions to Compel Discovery (Docket Nos. 33 and 45).
In its motion, Defendant argues that Plaintiff's Amended Complaint should be dismissed in its entirety because Plaintiff failed to comply with Local Rule 5.5(e). Alternatively, Defendant requests that Plaintiff's claims relating to her termination be dismissed because they are time barred. The Court will address each argument in turn.
When ruling on a motion to dismiss, the court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005). A complaint shall not be dismissed for its failure to state a claim upon which relief can be granted unless it appears beyond a reasonable doubt that plaintiff can prove no set of facts in support of a claim entitling him to relief. Young v. City of St. Charles, Mo., 244 F.3d 623, 627 (8th Cir. 2001). Nevertheless, dismissal under Rule 12(b)(6) serves to eliminate actions which are fatally flawed in their legal premises and deigned to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity. Id. (citing Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)). To avoid dismissal, a complaint must allege facts sufficient to state a claim as a matter of law and not merely legal conclusions. Id.
B. Failure to Comply with Local Rule 5.5(e)
Defendant asserts that Plaintiff's Amended Complaint did not comply with Local Rule 5.5(e), and therefore should be dismissed in its entirety as untimely. On May 23, 2007, the Court granted Plaintiff leave to file an amended complaint, but Plaintiff did not file it until June 6, 2007. Local Rule 5.5(e) provides that "[t]he party amending shall file the original of the amended pleading within five (5) days of the entry of the order granting leave to amend unless otherwise ordered by the Court."
Plaintiff responds by requesting that the Court allow the filing of the Amended Complaint on June 6, 2007, pursuant to the discretion that is clearly anticipated by the language in Rule 5.5(e) that permits the Court to "otherwise order," as the acts of the Plaintiff in this regard have not caused delay, nor have they caused prejudice to the Defendant, who received the Amended Complaint on May 2, 2007. This Court "has discretion whether to accept or reject such untimely filed materials." African American Voting Rights Legal Defense Fund, Inc. v. Villa, 54 F.3d 1345, 1350 (8th Cir. 1995). "A district court's refusal to accept untimely filed materials will not be reversed for abuse of discretion unless the proponent of the materials has made an affirmative showing of excusable neglect." Id. Defendant asserts that Plaintiff has made no showing of excusable neglect, and provides no explanation for her noncompliance.
The Court declines to strike Plaintiff's Amended Complaint on this basis. The Court grants Plaintiff's belated request for an extension of time to file her Amended Complaint. As a copy of Plaintiff's Amended Complaint was attached to her Motion for Leave to File Amended and Substitute Complaint, Defendant suffered no prejudice from the late filing.*fn1
Defendant asserts that Plaintiff's Amended Complaint, which was amended to include new claims of retaliation and discrimination under Title VII of the Civil Rights Act of 1964 relating to the termination of her employment, was not filed within 90 days of Plaintiff's receipt of a right-to-sue notice from the EEOC. Thus, Defendant argues that Plaintiff's claims relating to her termination are time-barred and should be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff argues that her Amended Complaint is not time barred because it relates back to the original Complaint and filing the Motion for Leave to Amend the Complaint tolled the statute of limitations.
"Before the federal courts may hear a discrimination claim, an employee must fully exhaust her administrative remedies." Burkett v. Glickman, 327 F.3d 658, 660 (8th Cir. 2003)). "To exhaust administrative remedies an individual must: (1) timely file a charge of discrimination with the EEOC setting forth the facts and nature of the charge and (2) receive notice of the right to sue." Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir. 1994) (citing 42 U.S.C. § 2000e-5(b), (c), (e)). Once an individual receives notice of the right to sue, she has 90 days in which to file suit. Id. (citing 42 U.S.C. § 2000e-5(f)(1)).
"If the EEOC gives the individual a right-to-sue letter following the EEOC investigation, the charge limits the scope of the subsequent civil action because 'the plaintiff may [only] seek relief for any discrimination that grows out of or is like or reasonably related to the substance of the allegations in the administrative charge.'" Id. (citing Nichols, 154 F.3d at 887). "Permitting claims to be brought in court which are outside the scope of the EEOC charge would circumscribe the EEOC's investigatory and conciliatory role and deprive the charged party of notice of the charge." Id. (citing Kells v. Sinclair Buick-GMC Truck, Inc., 210 F.3d 827, 836 (8th Cir. 2000); Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 223 (8th Cir. 1994)).
Although the Court will "liberally construe an administrative charge for exhaustion of remedies purposes, [the Court] also recognize[s] that 'there is a difference between liberally reading a claim which lacks specificity, and inventing, ex nihilo, a claim which simply was not made.'" Id. at 635 (citing Parisi v. Boeing Co., 400 F.3d 583, 585 (8th Cir. 2005) (quoting Shannon v. Ford Motor Co., 72 F.3d 678, 685 (8th Cir. 1996))). Additionally, the Eighth Circuit has "considerably narrowed [its] view of what is 'like or reasonably related' to the originally filed EEOC allegations." Wedow v. City of Kansas City, Mo., 442 F.3d 661, 672 (8th Cir. 2006). However, the Eighth Circuit does "not require that subsequently-filed lawsuits mirror the administrative charges as long as the sweep of any subsequent judicial complaint is no broader than the scope of the EEOC investigation which could reasonably be expected to grow out of the charge filed in the EEOC complaint. Id. at 674 (internal quotations omitted).
"[I]t is well established that retaliation claims are not reasonably related to underlying discrimination claims. Russell v. TG Missouri Corp., 340 F.3d 735, 748 (8th Cir. 2003) (quoting Wallin v. Minn. Dep't of Corrections, 153 F.3d 681, 688 (8th Cir. 1998)). Furthermore, "[d]iscrete acts such as termination, . . . are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable unlawful employment practice." Parisi v. Boeing Co., 400 F.3d 583, 585 (8th Cir. 2005) (quoting National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-15, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)). See also Kells v. Sinclair Buick-GMC Truck, Inc., 210 F.3d 827 (8th Cir. 2000) (holding that the plaintiff failed to exhaust administrative remedies with regard to his claim that he was unlawfully subjected to verbal harassment because such a claim was not reasonably related to his claims of discriminatory demotion and termination); Williams, 21 F.3d at 223 (finding that plaintiff's claims of race discrimination were separate and distinct from her claims of retaliation).
"[T]he ninety-day limitation period of 42 U.S.C. § 2000e-5(f)(1) is not a jurisdictional prerequisite to federal suit and is, therefore, subject to equitable tolling in appropriate circumstances." Hill v. John Chezik Imports, 869 F.2d 1122, 1124 (8th Cir. 1989). "Courts have generally reserved the remedy of equitable tolling for circumstances which were truly beyond the control of the plaintiff." Id. For example, "[t]he Supreme Court has held that equitable tolling is justified where the notice from the EEOC is inadequate, where motion for appointment of counsel is pending, where the court has led the plaintiff to believe all statutory requirements for bringing a suit have been satisfied, or where the defendant's conduct lulls the plaintiff into inaction." Id. at n.2 (citing cases).
On July 20, 2006, Plaintiff filed charges of discrimination against Defendant with the Equal Employment Opportunity Commission ("EEOC"), alleging a hostile work environment and gender based discrimination from April 3, 2006 until July 20, 2006. Specifically, she stated:
I was hired on March 23, 2000 as a transport driver. On or about April 3, 2006, I began to notice a difference in how my supervisor treated male and female employees. I and other female employees were yelled at and told by the supervisor that he would not hire more females and that he did not like strong women.
I was told by the senior security officer that she was instructed to write-up a number of females for frivolous incidents and she refused.
I believe [I] was intimidated because of my sex, female, in violation of VII of the Civil Rights Act of 1964, as amended.
She states that she was terminated on July 21, 2006. On July 27, 2006, the EEOC issued a "Dismissal and Notice of Rights" letter to Plaintiff. Plaintiff filed her original Complaint in this action on October 18, 2006. Plaintiff's original Complaint asserted that because of her sex, the Defendant terminated her employment. It also states:
On or about April 3, 2006, I began to notice a difference in how my supervisor treated male and female employees and other females were yelled at and told by the supervisor that he would not hire ...