United States Court of Appeals

For the Eighth Circuit

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No. 13-2809

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Keith Jones

lllllllllllllllllllll Plaintiff - Appellant

v.

City of St. Louis, Missouri, a Municipal Corporation and a political subdivision of

the State of Missouri

lllllllllllllllllllll Defendant - Appellee

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 Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: May 9, 2014

 Filed: May 23, 2014

[Unpublished]

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Before WOLLMAN, BOWMAN, and KELLY, Circuit Judges.

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PER CURIAM.

Keith Jones, an African-American electrician employed by the Facilities

Management Division of the City of St. Louis (City), brought a suit in 2012 against

the City under 42 U.S.C. § 1983 and Title VII, claiming that he suffered race-based

harassment, race discrimination, and retaliation. The district court dismissed the
complaint for failure to state a claim, and Jones appeals. For the following reasons,

we affirm in part, reverse in part, and remand for further proceedings.

We review de novo the district court’s dismissal of the complaint for failure to

state a claim. See Bradley v. Timberland Resources v. Bradley Lumber Co., 712 F.3d

401, 406 (8th Cir. 2013) (standard of review). Although a complaint must contain

sufficient factual allegations to state a plausible claim, see Ashcroft v. Iqbal, 556 U.S.

662, 677-78 (2009), an employment-discrimination complaint need not contain

specific facts establishing a prima facie case to survive a motion to dismiss for failure

to state a claim, see Swierkiewicz v. Sorema, 534 U.S. 506, 510-12 (2002) (prima

facie model is evidentiary standard, not pleading requirement). Rather, Jones needed

only to assert facts that affirmatively and plausibly suggested that he had the right that

he claimed, “rather than facts that [were] merely consistent with such a right.” See

Gregory v. Dillards, Inc., 565 F.3d 464, 473 (8th Cir. 2009) (en banc).

Jones noted in his complaint that he had filed a charge of discrimination with

the Missouri Commission on Human Rights and the Equal Opportunity Commission

in July 2009. In support of his claims, he made the following allegations, among

others. 

In January 2009, Jones was charged with falsifying a time record, failing to

respond to an emergency call, and receiving overtime pay for work not performed. 

The City sought to terminate his employment based on the charges, but the Board of

Public Service determined the charges to be unfounded. Jones suffered emotional

distress, and missed four months of work. When he returned, he gave the City a

release from his health-care provider, but his supervisor refused to accept it. Then,

for the period ending June 2009, Jones received annual-review ratings of

“unsuccessful” and was placed on an improvement plan for 13 weeks with a 10%

reduction in salary. The following year, in July 2010, Jones briefly passed out from

heat exhaustion while operating a City-owned vehicle. His supervisor rejected a

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physician’s health release for Jones and ordered Jones to submit to a fit-for-duty

examination. He also restricted Jones’s duties, reassigned him to the warehouse, and

required himto submit to a second fit-for-duty examination. The City’s Civil Service

Commission eventually returned Jones to his electrician job, but only after he spent

six months in the warehouse, during which time he suffered a loss of overtime pay.

Jones claimed that he was treated “unlike” and “unequal” to similarly situated

white individuals. He alleged that white individuals who were on call for

emergencies were not subjected to the same level of scrutiny and review as he had

been regarding responses to emergency calls, and although his supervisor would not

accept the health release that Jones tendered upon his four-month absence, the City

accepted physician’s statements from white electricians. With respect to the

performance evaluation, Jones alleged that he had been treated unlike similarly

situated white individuals--and in retaliation for complaining of the City’s

discriminatory conduct--in that he had received no prior feedback, warnings, or

counseling, and no evidence or supporting facts regarding his performance were

cited. With respect to the incident where he passed out, he alleged that the City

treated him unlike similarly situated white individuals--and again, in retaliation for

his discrimination complaints--because white individuals who had been in accidents

in City-owned vehicles, and white individuals in Jones’s division who were unable

to perform the essential functions of electrician, were not required by the City to

undergo fit-for-duty examinations. 

We conclude thatJones failed to state a section 1983 claim, because he did not

allege that the acts at issue occurred as a result of a City policy or custom. See

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978) (local government body

may be held liable under § 1983 only if alleged unconstitutional conduct implements

official policy or custom). We also find that he failed to state a Title VII claim for

harassment, because the alleged facts do not indicate that Jones was subjected to

severe or pervasive acts. See Iqbal, 556 U.S. at 678 (complaint must contain

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sufficient factual matter to state claim plausible on its face); cf. Eliserio v. United

Steelworkers of Am. Local 310, 398 F.3d 1071, 1076 (8th Cir. 2005) (employer

violates Title VII based on hostile work environment if workplace is permeated with

discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to

alter employment conditions and create abusive working environment).

We conclude, however, that Jones stated a Title VII claim for discrimination. 

He alleged that he suffered adverse employment actions with tangible negative

consequences and that similarly situated white individuals were treated more

favorably than he regarding overtime pay, emergency calls, physicians’ statements,

performance reviews, and fit-for-duty examinations. We also conclude that Jones

sufficiently stated a Title VII claim for retaliation, because he alleged that the City

gave him negative performance ratings and a temporary pay cut and forced him to

undergo fit-for-duty examinations and work in a less desirable warehouse assignment,

this in retaliation against him for his opposition to the City’s discriminatory actions,

which he had expressed in his July 2009 charge of discrimination. See 42 U.S.C.

§ 2000e-3(a).

Accordingly, we reverse and remand for further proceedings on Jones’s Title

VII claims of race discrimination and retaliation. In all other respects, the judgment

is affirmed.

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