United States District Court, W.D. Arkansas, Fort Smith Division
HOLMES, III CHIEF U.S. DISTRICT JUDGE
the Court is Defendants ABB Inc. (“ABB”) and
Jason Green's motion (Doc. 6) and memorandum brief (Doc.
7) seeking partial dismissal of Plaintiff Francis Mach's
complaint. Mach filed a response (Doc. 17) in opposition.
Defendants seek dismissal of Mach's retaliation claims
asserted under Title VII of the Civil Rights Act
(“Title VII”) and the Age Discrimination in
Employment Act (“ADEA”); Plaintiff's age
discrimination and related retaliation claims under the
Arkansas Civil Rights Act (“ARCA”); and all
claims against Jason Green. (Doc. 7, p. 1). Plaintiff
concedes that his age discrimination and related retaliation
claims under the ARCA and all claims against Jason Green
should be dismissed. (Doc. 17, p. 1). Thus, the only issue
for the Court to resolve is whether dismissal of
Plaintiff's retaliation claims alleged under Title VII
and the ADEA is warranted. For the following reasons,
Defendants' motion will be granted.
Mach is a 50-year-old Vietnamese man who was employed by ABB
in its Fort Smith, Arkansas facility as a technician. (Doc.
1, p. 2). Mach alleges that during his employment with ABB,
he experienced disparate treatment because of his age and
race and that ABB retaliated against him when he complained
of the discriminatory treatment. (Doc. 1, p. 3). Mach
specifically alleges that ABB awarded him an HVAC technician
position, when they knew that the position would be
outsourced in a matter of months. (Doc. 1, pp. 3-4).
ABB's choice to outsource the position led to Mach losing
his job. (Doc. 1, p. 4). Mach was then asked to
“bid” for other positions, while “white and
younger” individuals were simply transferred to regular
maintenance positions. Id. Mach alleges that he
complained to Merrill Bradley, a human resource specialist at
ABB, about the disparate treatment. Id.
Nevertheless, Mach placed a bid on five jobs at ABB and
claims that he was qualified for three of them. Id.
However, Mach was notified by ABB that he was no longer
employed with the company due to a lack of jobs. Id.
Mach alleges that ABB hired “many young
employees” after terminating his employment due to a
lack of jobs. Id. As a result, Mach filed a charge
of discrimination on April 2, 2018 as required by Title VII
and the ADEA. (Doc. 7-1, p. 2). In the charge, Mach
identifies the date of discrimination as January 19, 2018.
Id. On the charging document, Mach identifies the
bases of the discrimination charge he is filing as race and
age discrimination. Id. Mach did not however, check
the retaliation box. Id. Mach described the
discrimination charges he was bringing in the narrative
portion of the charging document by stating:
I was employed in 1991 and worked most recently as an HVAC
maintenance technician. In Sept. 2017, I bid on the HVAC
position and was awarded it; however, the company didnt
inform me the position was to be eliminated via a service
contract in 2018. I was discharged on or about Jan. 19th,
2018. I was told I was discharged due to the positions being
converted to contract positions. I believe I was discharged
because of my age (57) in violation of the Age Discrimination
in Employment Act of 1967, as amended; and, due to my Race
(Asian) in violation of Title VII of the Civil Rights Act of
1964, as amended.
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)). The Court
may also consider “materials embraced by the pleadings
and materials that are part of the public record.”
In re K-Tel Int'l, Inc. Sec. Litig., 300 F.3d
881, 889 (8th Cir. 2002) (internal quotations omitted).
“[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) (internal quotations omitted). However,
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).
filed the instant partial motion to dismiss asserting that
Mach's retaliation claims under Title VII and the ADEA
fail as a matter of law because Mach did not timely exhaust
the required administrative remedies. A plaintiff bringing a
Title VII or ADEA claim must first file a timely EEOC charge
on the alleged acts of discrimination. See 42 U.S.C.
§ 2000e-5(e)(1) (establishing a 180-day limitation
period for filing an EEOC charge for acts of discrimination
predicated on Title VII); 29 U.S.C. § 626(d)(1)
(establishing the 180-day limitation period for ADEA claims).
A plaintiff “may 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.” Dorsey v. Pinnacle Automation Co.,
278 F.3d 830, 838 (8th Cir. 2002). However, “it is well
established that retaliation claims are not reasonably
related to underlying discrimination claims, ” unless
the claim alleges that the Defendant retaliated against the
Plaintiff for filing an EEOC charge alleging discrimination.
Wallin v. Minnesota Dept. of Corrections, 153 F.3d
681, 688 (8th Cir. 1998).
correctly argue that Mach did not identify retaliation on the
EEOC charging document as a basis for his discrimination
claims. Additionally, Mach is not alleging that ABB
retaliated against him for filing the EEOC charge. Mach's
stated date of discrimination is months before his charging
document was filed. This is not a case where Mach's
retaliation claim would be found reasonably related to the
underlying discrimination claims because ABB retaliated
against Mach for filing a claim.
180-day time period for Mach to file an EEOC charge alleging
retaliation has elapsed and this is not a case where the
Court could find that Mach's retaliation claims are
reasonably related to his underlying discrimination claims.
Therefore, Mach's retaliation claims under Title VII and
the ADEA will be dismissed with prejudice for failure to
exhaust the required administrative remedies to bring a Title
VII or an ADEA action for retaliation.
THEREFORE ORDERED that Defendants' partial motion to
dismiss (Doc. 6) is GRANTED. Plaintiff's retaliation
claims asserted under Title VII of the Civil Rights Act and
the Age Discrimination in Employment Act; Plaintiff's age
discrimination and related retaliation claims under the
Arkansas Civil Rights Act and all claims against Jason Green
are DISMISSED WITH PREJUDICE. Mach's claims against ABB
Inc. for race and national ...