United States District Court, W.D. Arkansas, Fayetteville Division
JUDITH A. HARVEY PLAINTIFF
OZARK COMMUNITY HOSPITAL OCH HEALTH SYSTEM; PAUL TAYLOR, CEO of OCH, in his official capacity only; and MARK GLOVER, Psychologist, in his official capacity only DEFENDANTS
OPINION AND ORDER
HOLMES, III CHIEF U.S. DISTRICT JUDGE
the Court is Defendants Ozarks Community Hospital,
(“OCH”), Paul Taylor, and Mark Glover's
motion to dismiss under Federal Rules of Civil Procedure
12(b)(6) and 12(b)(5). (Doc. 10). Plaintiff Judith A. Harvey
has not responded, and the time for filing a response has
passed. For the reasons set forth below, Defendants'
motion (Doc. 10) will be granted and this case dismissed with
Harvey's pro se complaint alleges a violation of the Age
Discrimination in Employment Act based on her termination
from OCH on June 11, 2015. (Doc. 1, p. 9). She appears to
have first contacted the Equal Employment Opportunity
Commission (“EEOC”) on November 12, 2015, which
is when she dated a submitted “Inquiry
Form.” (Doc. 11-2, p. 1). The form specifically
notes, however, that it is “not a charge of
discrimination” and that any such charge must be filed
“within 180 days of the actions against you if the
action took place in… Arkansas.” (Id.,
p. 2). Ms. Harvey also submitted a five-page letter to the
EEOC on November 17, 2015, in which she describes a variety
of grievances against her former employer. (Doc. 11-1). At no
point in the letter, though, does Ms. Harvey request the EEOC
take action. (Id.). On December 1, 2015, the EEOC
confirmed receipt of Ms. Harvey's correspondence and
stated that “[m]ore information is needed before we can
continue.” (Doc. 11-3). It further informs Ms. Harvey
to “[p]lease contact me as soon as possible because
charges of employment discrimination must be filed within the
time limits imposed by law.” (Id.). The
EEOC's letter concludes with an all-caps reminder that
“[i]f we have not heard from you within 30 days of this
letter, we will assume that you did not intend to file a
charge of discrimination with us.” (Id.). An
enclosure to the letter is a brochure entitled, “What
You Should Know Before You File A Charge With EEOC.”
Harvey's charge of discrimination was not received by the
EEOC until January 19, 2016. (Doc. 11-7). The charge includes
separate signatures from Ms. Harvey, one dated December 24,
2015, and a second dated January 13, 2016. Ms. Harvey's
sworn signature in the presence of a notary is dated on the
document as January 12, 2016. Based on her termination date
of June 11, 2015, 180 days later would have been December 8,
ruling on a motion to dismiss, the Court must “accept
as true all facts pleaded by the non-moving party and grant
all reasonable inferences from the pleadings in favor of the
non-moving party.” Gallagher v. City of
Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012) (quoting
United States v. Any & All Radio Station Transmission
Equip., 207 F.3d 458, 462 (8th Cir. 2000)). A pro se
plaintiff's complaint is to be liberally construed.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing
Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Nevertheless, any “complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotations
omitted). Pleadings that contain mere “labels and
conclusions” or “a formulaic recitation of the
elements of the cause of action will not do.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2009).
“Twombly and Iqbal did not abrogate
the notice pleading standard of [Federal] Rule [of Procedure]
8(a)(2). Rather, those decisions confirmed that Rule 8(a)(2)
is satisfied ‘when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for a misconduct alleged.'”
Hamilton v. Palm, 621 F.3d 816, 817 (8th Cir. 2010)
(quoting Iqbal, 556 U.S. at 678).
Eighth Circuit has interpreted “face of the
complaint” to include “public records and
materials embraced by the complaint, and materials attached
to the complaint.” C.H. Robinson Worldwide, Inc. v.
Lobrano, 695 F.3d 758, 764 (8th Cir. 2012); see also
Deerbrook Pavilion, LLC v. Shalala, 2351100, 1102 (8th
Cir. 2000) (“On a motion to dismiss, a court must
primarily consider the allegations contained in the
complaint, although matters of public and administrative
record referenced in the complaint may also be taken into
account.”). The Eighth Circuit has also found that
“an EEOC charge is a part of the public record and may
be considered on a motion to dismiss.” Blakley v.
Schlumberger Tech. Corp., 648 F.3d 921, 931 (8th Cir.
2011) (citation omitted).
complaint does not state a claim upon which relief can be
granted because she did not first file a timely EEOC charge
on the alleged act of discrimination. See 29 U.S.C.
§ 626(d)(1) (establishing the 180-day limitation period
for ADEA claims). Discrete discriminatory acts, “such
as termination, failure to promote, denial of transfer, or
refusal to hire” are not actionable if they are time
barred due to not having filed a timely EEOC charge.
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 113-114 (2002). The Court has previously found that the
operative date of an EEOC charge is the date of its original
mailing. See Frachiseur v. Graphic Packaging Int'l,
Inc., 2015 WL 4916800, at *3 (W.D. Ark. Aug. 17, 2015).
While that date has not been presented, each of the dates
attached to Ms. Harvey's signature on her charge of
discrimination occurred after the closing of the 180-day
window. The charge could not have been mailed before it was
signed. Thus, her charge of discrimination was untimely.
Ms. Harvey's previous communications with the EEOC do not
qualify as a charge of discrimination because at no point did
Plaintiff expressly request the EEOC to take an action
against any of the Defendants before her actual charge
filing. See Fed. Exp. Corp. v. Holowecki, 552 U.S.
389, 402 (2008) (“[T]he filing must be examined from
the standpoint of an objective observer to determine whether,
by a reasonable construction of its terms, the filer requests
the agency to activate its machinery and remedial processes,
that would be in accord with our conclusion.”). Also,
the Eighth Circuit has consistently held that “Intake
Questionnaires which are neither signed under oath nor
verified do not satisfy the statutory requirement for an
administrative charge.” Shempert v. Harwick Chem.
Corp., 151 F.3d 793, 796 (8th Cir. 1998). Mr.
Harvey's intake form was neither signed under oath nor
verified, and the form explicitly stated that it was not a
charge of discrimination. Finally, the EEOC's
communications to Ms. Harvey indicated that the EEOC did not
believe any charge had been filed. Ms. Harvey did not timely
file a charge of discrimination with the EEOC. Because she
failed to exhaust her administrative remedies prior to filing
the immediate lawsuit, Plaintiff's complaint does not
state a claim upon which relief can be granted.
THEREFORE ORDERED that Defendants' motion to dismiss
(Doc. 10) is GRANTED, and Plaintiff Judith A. Harvey's
complaint is DISMISSED WITH PREJUDICE.
 Defendants' motion represents that
Ozarks Community Hospital, Inc. was misnamed in
Plaintiff's complaint as “Ozark Community Hospital
(OCH) Health System.” (Doc. 10, p. 1). Because the
Court is granting Defendants' motion to dismiss, amending
the docket to reflect OCH's true identity is
 Based on the record submitted, this is
the earliest dated communication sent to the EEOC. It was
stamped as “received” on November 23, 2015. (Doc.
11-2, p. 1). Yet, the form implies prior communication from
Ms. Harvey as it states, ...