Harrison v. SSM Audrain Health Care, Inc, 2:17-cv-00014

Mary J. Harrison filed an EEOC charge alleging age discrimination (fired to be replaced by a younger employee) on November 25, 2016, and later sued under the ADEA in federal court.
Harrison’s pleadings were procedurally confused: she filed multiple amended complaints with incorrect numbering and attempted to add a Count II alleging ‘‘Public Policy Wrongful Discharge’’/retaliation and reports of patient-safety violations (42 C.F.R. 482.41).
Defendant SSM Audrain moved to dismiss Count II for failure to state a claim and argued the proposed amendment was futile; defendant noted Harrison’s EEOC charge checked ‘‘discrimination’’ but not ‘‘retaliation.’'
The court required Harrison to seek leave to amend because her second attempt to amend violated Fed. R. Civ. P. 15(a)(2).
The court examined whether Count II (retaliation/public-policy claim) was exhausted administratively and whether amendment would survive a Rule 12(b)(6) challenge.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Count II (retaliation/public-policy wrongful discharge) is properly before the court / whether amendment is futile because plaintiff failed to exhaust administrative remedies	Harrison argued her later amended complaint cured pleading defects by alleging retaliation for ADEA complaints and reports of safety violations	SSM argued Harrison’s EEOC charge alleged only age discrimination (not retaliation), so she failed to exhaust and the proposed amendment is futile	Court granted dismissal of Count II without prejudice and denied leave to amend (amendment futile for failure to exhaust administrative remedies)

Roberson v. Hayti Police Dept., 241 F.3d 992 (8th Cir. 2001) (standards for denying leave to amend)
Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052 (8th Cir. 2005) (futility standard for amendments)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for pleadings)
Anderson v. Durham D&M, LLC, 606 F.3d 513 (8th Cir. 2010) (administrative exhaustion is a condition precedent under the ADEA)
Wallace v. DTG Operations, Inc., 442 F.3d 1112 (8th Cir. 2006) (scope of EEOC charge must give employer notice of the claim)
Cottrill v. MFA, Inc., 443 F.3d 629 (8th Cir. 2006) (courts should not invent claims beyond EEOC charge)
Cornelia I. Crowell GST Trust v. Possis Med., Inc., 519 F.3d 778 (8th Cir. 2008) (futility means inability to survive a Rule 12(b)(6) motion)
Richter v. Advance Auto Parts, Inc., 686 F.3d 847 (8th Cir. 2012) (each discriminatory or retaliatory act is a separate actionable practice)
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (separate incidents are separate claims under discrimination statutes)