United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE
Patillo commenced this action against her former employer,
Sysco Foods of Arkansas, LLC, on October 6, 2016, alleging
race discrimination and retaliation in violation of Title
VII. Patillo, who is black, alleges that she was
constructively discharged because of her race and in
retaliation for complaining about discriminatory actions.
Sysco has filed a motion to dismiss pursuant to Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6). For the following
reasons, the motion is granted.
to the complaint, Patillo filed a Charge of Discrimination
against Sysco with the Equal Employment Opportunity
Commission on June 13, 2016. She complained that, starting in
May 2015, Sysco reduced her hours from 40 hours per week to
30 hours per week. Patillo resigned on October 20, 2015, due
to stressful working conditions.
Rule of Civil Procedure 12(b)(1) allows a party to move for
dismissal based upon a lack of subject-matter jurisdiction.
To prevail on such a motion, the challenging party must
successfully attack the complaint, either on its face or on
the factual truthfulness of its averments. Titus v.
Sullivan, 4 F.3d 590, 593 (8th Cir. 1993); Osborn v.
United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). If
a plaintiff fails to allege an element necessary for a
finding of subject-matter jurisdiction, the complaint should
be dismissed. Titus, 4 F.3d at 593. Sysco asserts
that the Court lacks subject-matter jurisdiction over this
action because Patillo failed to file a charge of
discrimination within 180 days of the alleged discrimination,
as required by Title VII..
filing a lawsuit in federal court, Title VII requires
aggrieved individuals to “(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) (citation
omitted). Title VII's enforcement provisions require that
a charge be filed with the EEOC within 180 days after the
alleged unlawful employment practice occurred and that a
civil action be brought by the complaining party within 90
days after the EEOC gives notice of the right to sue. 42
U.S.C. § 2000e-5(e)(1), (f)(1).
has filed two charges with the EEOC, the first on September
1, 2015, and the second on June 13, 2016. The second charge
underlies this action. Document #20-3 at 2. In that charge,
Patillo complained that Sysco reduced her hours in May 2015,
provided her an unqualified assistant at an unspecified time,
forced her to resign because of her race and in retaliation
for filing the 2015 charge. Id. Patillo stated that
the date of her resignation-October 20, 2015-was the last
date that discrimination took place, but she did not file the
2016 charge within 180 days after the alleged discrimination
as required by 42 U.S.C. § 2000e-5(e)(1).
argues that the June 2016 charge was timely because she filed
a charge in September 2015, alleging certain discriminatory
actions, those actions “continued under an ongoing
basis, ” and she updated those charges in March 2016
when she submitted an intake questionnaire to the EEOC.
Patillo complained in the September 2015 charge that Sysco
failed to promote her on two occasions, and reduced her hours
because of her race and in retaliation for complaints about
discrimination. Document #18 at 8. The EEOC issued Patillo a
notice of her right to sue on September 8, 2015, but she did
not bring suit within 90 days. Document #20-2. Therefore, any
action based upon the allegations of discrimination in the
September 2015 charge is time-barred. See Spears v. Mo.
Dept. of Corr. and Human Res., 210 F.3d 850, 853 (8th
Cir. 2000). “[D]iscrete, discriminatory acts are not
actionable if time barred . . . . Each discrete
discriminatory act starts a new clock for filing charges
alleging that act.” Nat'l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2016, 2072, 153
L.Ed.2d 106 (2002).
argues that the discriminatory acts alleged in the September
2015 charge continued on an ongoing basis and that she
“updated” the allegations in an intake
questionnaire submitted to the EEOC in March 2016. Document
#19 at 4. Though Patillo maintains that the discriminatory
acts continued “on an ongoing basis, ” she makes
no allegation in either the charges or the intake
questionnaire from which the Court could find that any
alleged violations consisted of “an ongoing pattern or
practice of discrimination, rather than an amalgamation of
discrete, isolated instances.” Kline v. Kansas
City, Miss., Fire Dept., 175 F.3d 660, 665 (8th Cir.
1999) (internal quotations and citations omitted). Patillo
submitted the March 2016 intake questionnaire within 180 days
of her constructive discharge. However, intake questionnaires
are not typically viewed as EEOC “charges” within
the meaning of 42 U.S.C. § 2000e-5 because they are not
verified. See Schlueter v. Anheuser- Busch,
Inc., 132 F.3d 455, 458 (8th Cir. 1998); see also
Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1318 (11th
Cir. 2001) (explaining that Title VII mandates that a charge
be verified). The intake questionnaire Patillo submitted is
no exception. See Document #18 at 11-14. Moreover,
even if the intake questionnaire were considered a charge and
even if Patillo did “update” the allegations made
in the September 2015 charge,  the time-bar is not removed; No
action can be based on the allegations in the September 2015
charge. See Spears, 210 F.3d at 853.
only new allegations in the complaint and the charge
underlying the complaint are the allegations that Patillo was
constructively discharged because of her race and in
retaliation for complaining about prior acts of
discrimination. But because Patillo failed to comply with
Title VII's enforcement provisions requiring that an EEOC
charge be filed within 180 days of the alleged discriminatory
action prior to bringing suit, the Court is without
jurisdiction to hear the merits of her claims.
foregoing reasons, Sysco's motion to dismiss is GRANTED.
Document #15. This action is dismissed with prejudice.