Flournoy v. Construction Careers Found.

Background

Denisha Flournoy participated in the Building Minnesota Apprenticeship Program, which was co-sponsored by Construction Careers Foundation (CCF) and the Minneapolis Building and Construction Trades Council (the Council). The opinion states that Donna Kusske was identified by the defendants as the program’s director and Vicki Sandberg as its coordinator. Flournoy’s complaint alleged differential treatment after she complained about harassment, discrimination, and a layoff. It asserted race- and disability-discrimination claims, retaliation, and a claim concerning an alleged failure to provide at least 144 hours of training under 29 C.F.R. § 29.

Flournoy filed an administrative discrimination charge with the Equal Employment Opportunity Commission, cross-filed with the Minnesota Department of Human Rights, in August 2018. The charge named CCF and the Council, but not the individual defendants, and alleged disability discrimination and retaliation—not race discrimination. Both agencies later issued notices allowing her to sue. Defendants removed Flournoy’s state-court lawsuit to federal court and moved to dismiss. Flournoy did not file a written response, although she appeared at the hearing and requested more time and a stay while a related state-court lawsuit proceeded.

Court’s Analysis

The court applied the Rule 12(b)(6) standard, which asks whether a complaint alleges enough facts to make a claim legally plausible. It construed Flournoy’s pro se complaint liberally but explained that a self-represented litigant still must allege facts supporting the claims.

The court held that the race-discrimination claim was unexhausted because it was not included in the administrative charge. It therefore had to be dismissed without prejudice.

The court also held that CCF and the Council were not shown to be Flournoy’s employers. The opinion states that the Building Minnesota apprenticeship program was apparently her employer, and that CCF’s and the Council’s appointment of members to the program’s governing committee did not by itself establish that they were liable as joint actors or agents. The court separately found that the complaint did not allege facts showing that Flournoy was disabled or otherwise qualified under the Americans with Disabilities Act. It also found that the retaliation allegations did not identify when the alleged adverse action occurred, who made the decision, or what conduct constituted retaliation.

The court ruled that the Title VII and Americans with Disabilities Act claims could not be brought against the individual defendants because those laws impose liability on employers, not individual employees. It also ruled that 29 C.F.R. § 29 did not provide a private right of action, meaning that Flournoy could not enforce the regulation’s requirements through a civil lawsuit. The regulation instead includes an administrative complaint procedure for certain discrimination claims involving apprenticeship programs.

Disposition

The court denied Flournoy’s request for more time to respond and declined to stay the litigation. It granted the Council’s motion to dismiss and granted CCF, Sandberg, and Kusske’s motion to dismiss. The claims against the individual defendants and the claims under 29 C.F.R. § 29 were dismissed with prejudice. The remaining claims were dismissed without prejudice. The court ordered judgment entered accordingly.