Ellis-Yancey v. Midwest Block & Brick/Quikrete Company

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FROSTIE ELLIS-YANCEY )
)
Plaintiff, )
)
vs. ) Case No. 4:25 CV 822 JMB
)
MIDWEST BLOCK & BRICK/QUIKRETE )
COMPANY, )
)
Defendant. )
MEMORANDUM and ORDER
Now pending before the Court is Defendant Midwest Block & Brick/Quikrete Company’s1
Motion to Dismiss or, in the alternative, for a More Definite Statement (Doc. 16). For the reasons
set forth below, the Motion to Dismiss is DENIED without prejudice and the alternative Motion
for a More Definite Statement is GRANTED.
Background
Plaintiff Frostie Ellis-Yancey, who is proceeding pro se and in forma pauperis, filed suit
on June 4, 2025 alleging that she was discriminated against on account of her race, color, gender,
and age in the summer of 2024 while working for Defendant (Doc. 1). Plaintiff alleges that she
had been employed by Defendant for 42 years. She requested a transfer to an open position located
in Houston, Texas, where she was relocating, and completed a successful interview.2 However,
she was not offered the transfer position and was allegedly forced to retire because she had already
sold her house in St. Louis and bought a house in Houston. She states in the Complaint that another
1 Defendant states that its true name is Best Block, LLC.
2 She describes the Houston position as the “same position” as the one she held in St. Louis and notes that the Houston
position opened up because the “TM” was retiring – by TM, the Court assumes Plaintiff means transportation manager.
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person was transferred “without hesitation,” that transfers were encouraged, and that she believes
her transfer was denied because of discrimination.
In an attached Charge of Discrimination, Plaintiff states that she was discriminated against
on account of her age only (Doc. 1-3). In particular, she claims that she applied for a transportation
manager position in Houston and that she was forced to resign her position in St. Louis when she
was not offered the position in Houston. She claims that she was denied the Houston position “due
to the belief I would be retiring in the near future” (Doc. 1-3, p. 2).
On January 14, 2026, District Judge Henry E. Autry reviewed Plaintiff’s complaint
pursuant to 28 U.S.C. § 1915 and found that she failed to state race, color, or gender discrimination
claims (Doc. 12). Those Title VII, 42 U.S.C. §§ 200(e), et seq., claims were accordingly dismissed
without prejudice. As such, Plaintiff is proceeding on one claim of age discrimination under the
Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.
Defendant now seeks dismissal of Plaintif’s ADEA claim or, in the alternative, a more
definite statement (Docs. 16 and 17). Defendant makes two arguments: that Plaintiff did not tie
any employment action with her age and that a lateral transfer is not an adverse employment action.
In response, Plaintiff offers additional facts (Doc. 18). She claims that the position in Houston
was offered to a much younger person, she was not offered the Houston position because
Defendant believed she would retire soon, and the failure to transfer caused a lapse in health
insurance and forced her to retire and accept Medicare (Doc. 18). Plaintiff also offers a number
of emails between herself and Corey Crawford, the hiring manager in Houston (among a few
others), discussing the interview process, setting up calls and meetings, indicating that Plaintiff
would receive an offer, and ultimately stating that no offer would be forthcoming. In reply,
Defendant concedes that Plaintiff has offered enough context to state that the position was not
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allegedly offered because of her age. However, Defendant notes that Plaintiff made no argument
as to whether the denial of a transfer is an adverse employment action. In light of this concession,
the Court will focus on the later argument.
Standard
The purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency
of the complaint. To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face’” and raise the claim for relief above a speculative level. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Schaaf v. Residential
Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008) (citing Twombly, 550 U.S. at 555 & n.3). This
obligation requires a plaintiff to plead “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
On a motion to dismiss, the Court accepts as true all of the factual allegations contained in
the complaint, even if it appears that “actual proof of those facts is improbable,” and reviews the
complaint to determine whether its allegations show that the pleader is entitled to relief. Id. at
555-56; Fed. R. Civ. P. Rule 8(a)(2). However, the principle that a court must accept as true all of
the allegations contained in a complaint does not apply to legal conclusions. Iqbal, 556 U.S. at
678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”).
“If, on a motion under Rule 12(b)(6) . . . matters outside the pleadings are presented to and
not excluded by the court, the motion must be treated as one for summary judgment under Rule
56.” Fed. R. Civ. P. 12(d). However, even “[t]hough ‘matters outside the pleadings’ may not be
considered in deciding a Rule 12 motion to dismiss, documents necessarily embraced by the
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complaint are not matters outside the pleading.” Zean v. Fairview Health Servs., 858 F.3d 520,
526 (8th Cir. 2017) (citation omitted). Materials embraced by the complaint include “documents
whose contents are alleged in a complaint and whose authenticity no party questions, but which
are not physically attached to the pleadings.” Ashanti v. City of Golden Valley, 666 F.3d 1148,
1151 (8th Cir. 2012) (quotation omitted). Stated more comprehensively, courts may consider
“matters incorporated by reference or integral to the claim, items subject to judicial notice, matters
of public record, orders, items appearing in the record of the case, and exhibits attached to the
complaint whose authenticity is unquestioned; without converting the motion into one for
summary judgment.” Zean, 858 F.3d at 526 (quoting Miller v. Redwood Toxicology Lab, Inc.,
688 F.3d 928, 931 & n.3 (8th Cir. 2012) (internal quotation and citation omitted)). Accordingly,
the Court may consider Plaintiff’s Charge of Discrimination, which is attached to the Complaint
and whose authenticity is not questioned, without converting Defendant’s motion into one for
summary judgment.
Documents filed by pro se parties are liberally construed; however, pleadings must allege
sufficient facts to support the claims asserted. Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).
In addition, this Court cannot disregard allegations and additional facts contained in Plaintiff’s
response to the Motion to Dismiss. See Anthony v. Runyon, 76 F.3d 210, 214 (8th Cir. 1996).
Accordingly, the Court will consider the allegations in both Plaintiff’s complaint and response.
Discussion
To state a claim under the ADEA, Plaintiff must allege that she was at least 40 years old,
that she suffered an adverse employment action, that she was meeting her employer’s expectations,
and that she was replaced by someone younger. Gibson v. American Greetings Corp., 670 F.3d
844, 856 (8th Cir. 2012). “An adverse employment action is a tangible change in working
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conditions that produces a material employment disadvantage.” Thomas v. Corvin, 483 F.3d 516,
529-530 (8th Cir) (quotation marks and citation omitted). Typically, this means a firing, demotion,
diminished benefits, or reduction in pay and not “[m]inor changes in duties or working conditions.”
Kerns v. Capital Graphics, Inc., 178 F.3d 1011, 1016-7 (8th Cir. 1999). And, the failure to provide
beneficial discretionary employment actions, such as a salary raise, are not adverse employment
actions. See Turner v. Gonzales, 421 F.3d 688, 696 (8th Cir. 2005) (discussing retaliation);
Tademe v. Saint Cloud State University, 328 F.3d 982, 992 (8th Cir. 2003) (same). “A transfer
constitutes an adverse employment action when the transfer results in a significant change in
working conditions or a diminution in the transferred employee's title, salary, or benefits. Fisher
v. Pharmacia & Upjohn, 225 F.3d 915, 919 (8th Cir. 2000). However, at least in the context of
retaliation, the failure to transfer an employee upon demand, with no change in salary, rank, or
material conditions of employment, is not actionable. See LePique v. Hove, 217 F.3d 1012 (8th
Cir. 2000); Spears v. Missouri Dep’t of Corrections and Human Resources, 210 F.3d 850 (8th Cir.
2000)
In this case, Plaintiff indicates that she was denied a transfer to Houston and her Complaint
and response states, or at least strongly suggests, that the transfer was a lateral move. There is no
suggestion in Plaintiff’s filings that the transfer was similar to a promotion, i.e., with an increase
in pay, title, or conditions of employment, such that the denial of the same might be considered
adverse. Bonenberger v. St. Louis Metro. Police Dep’t, 810 F.3d 1103, 1107 (8th Cir. 2016)
(“Denial of a sought-after transfer may constitute an adverse employment action if the transfer
would result in a change in pay, rank, or material working conditions.” (emphasis in original));
See Austin v. Minnesota Min. and Mfg. Co., 193 F.3d 992 (8th Cir. 1992) (discussing a failure to
promote claim). There is also no suggestion that the failure to transfer materially affected her
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future career prospects. See Bonenberger, 810 F.3d at 1108; Spears, 210 F.3d at 853 (discussing
retaliation).
As Defendant notes, Plaintiff failed to address the argument that she did not assert an
adverse employment action. Normally, the failure to respond to an argument is treated as a
concession of the merits of the argument. Muller v. Blue Diamond Growers, 683 F. Supp. 3d 933,
937 (E.D. Mo. 2023) (“Courts in the Eighth Circuit have consistently acknowledged that failure to
respond to arguments raised in a motion to dismiss constitutes an abandonment of that claim or
concession to the opposing arguments.” (quotation marks and citation omitted)). However, in
light of Plaintiff’s pro se status and active prosecution of this case, the interests of justice allow
Plaintiff the opportunity to provide a more definite statement in light of the above case authority
and findings.
Conclusion
For the foregoing reasons, Defendant Midwest Block & Brick/Quikrete Company’s Now
Motion to Dismiss is DENIED without prejudice and the alternative Motion for a More Definite
Statement is GRANTED. Plaintiff shall file a more definite statement by March 27, 2026.
Plaintiff is WARNED that the failure to do so shall result in dismissal, without prejudice, of this
lawsuit.
/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE
Dated this 5th day of March, 2026
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