United States District Court, W.D. Arkansas, Fort Smith Division
OPINION AND ORDER
HOLMES, III CHIEF U.S. DISTRICT JUDGE
December 29, 2017, a mandate issued from the United States
Court of Appeals for the Eighth Circuit following its
December 8, 2017 opinion reversing in part this Court's
dismissal of Plaintiff Emma Rush's complaint. Pursuant to
that mandate, this Court ordered Rush to amend her pleadings
to clarify and amplify her Title VII allegations, which the
Court initially ruled were inadequate under Federal Rule of
Civil Procedure 8(a). (Doc. 27). On February 5, 2018, Rush
filed an amended complaint. (Doc. 28). On February 9, 2018,
Defendant filed a motion to dismiss (Doc. 29) under Rule
12(b)(6) and a brief in support (Doc. 30), to which Rush has
filed no response. The motion will be granted.
survive dismissal, a 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) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Mere labels, conclusions, or formulaic recitations
of elements are not enough. Id. “Although pro
se pleadings are to be construed liberally, pro se litigants
are not excused from compliance with relevant rules of the
procedural and substantive law.” Schooley v.
Kennedy, 712 F.2d 372, 373 (8th Cir. 1983).
the caption, document title, and jury demand, Rush's
amended complaint cites to 42 U.S.C. § 1983 and Title
VII of the Civil Rights Act, then states “[a]ll
allegations in the complaint are true [and there is a]
reasonable expectation discovery will reveal evidence, as
notice[d] in Rule 11.” Rush appears to be trying to
supplement her complaint, rather than amending it as ordered.
The Court will construe her amended complaint (Doc. 28) as
incorporating the initially-filed complaint (Doc. 1) and the
factual allegations in EEOC Form 5, Charge of Discrimination
(Doc. 18-1, p. 6) attached to her objections to the report
Court therefore construes Rush's complaint as alleging
the following facts. Defendant hired Rush in 2006, and her
most current position was as a workplace specialist. Some
time in November of 2015, Rush applied for the position of
DWS Program Supervisor. On December 9, 2015, she was informed
that she was not selected for an interview. Rush was told the
reason she was not selected was because she failed to submit
transcripts, and so did not meet the minimum qualifications
for the position. A white male in his 30s was selected for
the position. Rush believes Defendant's stated reason for
denying her an interview is false, and that Rush was actually
denied an interview due to her sex, race, and age.
discrimination in employment on account of sex, race, or age
is prohibited. 42 U.S.C. § 2000e-2; 29 U.S.C. §
623. Where employment discrimination rises to the level of a
constitutional violation by a state actor, Rush may also
vindicate her rights pursuant to an action under 42 U.S.C.
§ 1983. Butler v. Crittenden Cty., Ark., 708
F.3d 1044, 1049 (8th Cir. 2013). “To succeed on a race
or sex discrimination claim, [Rush] must show either direct
evidence of discrimination or evidence that is sufficient to
create an inference of discrimination.” Id. at
1050. Because she alleges no facts showing direct evidence of
discrimination, Rush's complaint can only survive
dismissal if the facts alleged, and the reasonable inferences
drawn from them, make out a prima facie case under the burden
shifting framework used to analyze
inference-of-discrimination cases. Id. Under this
analysis, Rush's allegations must show “that she
(1) is a member of a protected class, (2) was qualified, (3)
suffered an adverse employment action, and (4) can provide
facts that give rise to an inference of unlawful sex or race
discrimination.” Id. An age discrimination
case uses this same analytical framework. Rahlf v.
Mo-Tech Corp., Inc., 642 F.3d 633, 637 (8th Cir. 2011).
Rush's alleged facts as true, she has shown that she is
black, a woman, and was 40 years old or older at the time she
was denied an interview. All of these facts are sufficient to
show she is a member of a protected class. Being denied an
interview for a desired position that is then given to a
white male in his 30s is enough to show an adverse employment
action that can give rise to an inference of unlawful
discrimination on the basis of race, sex, or age. Rush's
case fails, however, because the facts alleged and the
reasonable inferences drawn from those facts do not show that
she was qualified for the position. Her belief that she was
denied an interview on account of membership in a protected
class is an opinion, or a conclusion to be drawn from facts.
It is not the sort of factual allegation from which a
reasonable inference can be drawn to satisfy the minimal
pleading requirements of Rule 8(a). The only relevant fact
alleged is that Defendant said Rush was not interviewed
because she failed to demonstrate that she was qualified.
Rush's complaint as liberally construed fails to state a
claim for relief.
THEREFORE ORDERED that Defendant's motion (Doc. 29) is
GRANTED and this ...