Young v. Atlas Welding Supply Co. LLC

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE

         This matter comes before the court on “Defendant Atlas Welding Supply Company, Inc.'s Renewed Motion to Dismiss, ” (doc. 18), and “Supplemental Motion to Dismiss of Atlas Welding Supply Company, Inc., ” (doc. 24).

         Defendant Atlas Welding filed its renewed motion to dismiss on August 8, 2018. (Doc. 18). On August 14, the court entered a show cause order why the court should not grant Atlas Welding's August 8th motion to dismiss. (Doc. 19). Plaintiff Kay Young responded on August 14, 2018. (Doc. 19). At that point, the court became aware of a service of process issue, which it corrected by directing the U.S. Marshal Service to serve process on Atlas Welding. (Doc. 21). That order resolved one issue raised in Atlas Welding's renewed motion to dismiss. The order directed the U.S. Marshal Service to serve process on an individual identified by Atlas Welding as able to receive process. (Id.).^[1]

         On September 25, 2018, Atlas Welding filed its supplemental motion to dismiss. (Doc. 24). The court entered a briefing schedule on the supplemental motion to dismiss on November 30, 2018. (Doc. 25). As stated in the order setting the briefing schedule, the court found the renewed motion to dismiss moot because the supplemental motion to dismiss raised the exact same issues as the renewed motion to dismiss, but did not raise the service of process issue that Atlas Welding waived in the supplemental motion. So, the supplemental motion to dismiss is not supplemental in nature, but is the main motion itself.

         Ms. Young filed a response to the supplemental motion to dismiss on January 1, 2019. (Doc. 26). On January 18, 2019, Ms. Young filed a document titled “Amended Show All, ” with medical records attached. (Doc. 27). Atlas Welding filed its reply brief on January 18, 2019. (Doc. 28). The motion is now ripe for review. (Doc. 24). For the reasons discussed below, the court will DISMISS this case WITHOUT PREJUDICE.

         I. Background

         Ms. Young, acting pro se, first filed a complaint in this court on February 2, 2018. After numerous amendments, the complaint currently before this court is the Third Amended Complaint. (Doc. 17). Ms. Young raises four categories of discriminatory conduct: (1) termination of her employment, (2) failure to promote, (3) unequal terms and conditions of her employment, and (4) excessive harassment in meetings. (Id. at 4). Ms. Young contends that she was discriminated against because of her sex-female-and her age-older than 40 years of age.

         Ms. Young worked as a sales representative for Atlas Welding. (Doc. 17 at 5). She states that she was the only sales representative not given formal training. She also was not paid in the same method as the male sales representatives. When she requested to sell other products, such as certain gases, Atlas Welding repeatedly told her “it isn't a good fit.” (Id.).

         According to Ms. Young, male sales representatives are able to sell all products to all types of businesses. On the other hand, she is restricted to certain gases on a limited customer basis. She contends that only one male sales representative is older that she; Atlas Welding has most recently hired only young males.

         Ms. Young alleges that she was traumatically harassed by two bosses-one owner and one sales manager. She notes that the harassment continued from December 2016 until Atlas Welding terminated her on May 16, 2017. Because of this harassment, Ms. Young contends that she suffers from post-traumatic stress disorder.

         On October 17, 2017, Ms. Young filed an EEOC charge.^[2] (Doc. 17 at 5). She received a right-to-sue letter from the EEOC on November 3, 2017. (Id.). She did not attach either document to the Third Amended Complaint. But Ms. Young previously filed the right-to-sue letter as a notice in this case and as part of her First Amended Complaint and Second Amended Complaint. (Doc. 3; Doc. 6 at 11; Doc. 14 at 18). Ms. Young also filed her EEOC charge as part of her Second Amended Complaint. (Doc. 14 at 17).

         II. Standard of Review

         A Rule 12(b)(6) motion to dismiss attacks the legal sufficiency of the complaint. Generally, the Federal Rules of Civil Procedure require only that the complaint provide “‘a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957) (quoting Fed.R.Civ.P. 8(a)). A plaintiff must provide the grounds of his entitlement, but Rule 8 generally does not require “detailed factual allegations.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley, 355 U.S. at 47). It does, however, “demand[ ] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pleadings that contain nothing more than “a formulaic recitation of the elements of a cause of action” do not meet Rule 8 standards nor do pleadings suffice that are based merely upon “labels or conclusions” or “naked assertions” without supporting factual allegations. Twombly, 550 U.S. at 555, 557.

         The Supreme Court explained that “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting and explaining its decision in Twombly, 550 U.S. at 570). To be plausible on its face, the claim must contain enough facts that “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Although “[t]he plausibility standard is not akin to a ‘probability requirement, '” the complaint must demonstrate “more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are merely consistent with a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Twombly, 550 U.S. at 557).

         The Supreme Court has identified “two working principles” for the district court to use in applying the facial plausibility standard. The first principle is that, in evaluating motions to dismiss, the court must assume the veracity of well-pleaded factual allegations; however, the court does not have to accept as true legal conclusions even when “couched as [] factual allegation[s]” or “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678. The second principle is that “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679. Thus, under prong one, the court determines the factual allegations that are well-pleaded and assumes their veracity, and then proceeds, under prong two, to determine the claim's plausibility given the well-pleaded facts. That task is “context-specific” and, to survive the motion, the allegations must permit the court based on its “judicial experience and common sense . . . to infer more than the mere possibility of misconduct.” Id. If the court determines that well-pleaded facts, accepted as true, do not state a claim that is plausible, the claim must be dismissed. Id.

         III. Discussion

         Atlas Welding contends that the court should dismiss Ms. Young's claims for two reasons. First, Ms. Young failed to file a timely charge with the EEOC for her ADEA claim. Second, Ms. Young failed to state a claim upon which relief can be granted for sex and age discrimination. The court will discuss each argument in turn.

         a. Failure to file a timely EEOC charge

         Atlas Welding argues that Ms. Young failed to timely file a charge with the EEOC alleging age discrimination. It maintains that Ms. Young only checked the box for sex discrimination on her EEOC charge, not age discrimination, even though she ...