Kovach v. MFA, Incorporated

Filing 38

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant MFA, Incorporated's Motion to Dismiss Plaintiff's First Amended Petition (Doc. 4 ) is GRANTED in part and DENIED in part. The Motion is GRANTED to the extent it seeks to dismiss cla ims arising from Plaintiff's alleged 2016 sexual assault and Defendant's alleged failure to discipline the perpetrator of that assault. The Motion is DENIED as to claims arising from her allegations of verbal harassment and differential treatment with respect to work assignments and breaks. Signed by District Judge Sarah E. Pitlyk on 09/09/2021. (ANP)

Case: 2:21-cv-00013-SEP Doc. #: 38 Filed: 09/09/21 Page: 1 of 8 PageID #: 384

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

STEPHANIE KOVACH,

)
)

Plaintiff,

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)

vs.

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Case No. 2:21-cv-00013-SEP

)
MFA, INCORPORATED,

)
)

Defendant.

)
MEMORANDUM AND ORDER

Before the Court is Defendant MFA, Incorporated’s Partial Motion to Dismiss Plaintiff’s
First Amended Petition. Doc. [4]. The Motion has been fully briefed. For the reasons set forth
below, the Court will grant the Motion in part.
FACTS AND BACKGROUND 1
Plaintiff Stephanie Kovach is a former employee of Defendant MFA, Incorporated from
2014 to 2019. Plaintiff alleges that, while employed by Defendant, she was repeatedly sexually
harassed and was retaliated against for reporting the harassment. Doc. [10]. Beginning in late
2016, a co-worker, Eric Rudd, started making inappropriate sexual comments at work and sent
her vulgar messages via social media. Id. ¶ 8. Rudd then sexually assaulted Plaintiff, which she
reported to Defendant’s assistant manager Josh Merz within a day of the assault. 2 Id. ¶¶ 9-10.
After reporting the assault, Plaintiff alleges that various male coworkers, including Rudd, made
derogatory sexual jokes and comments, which Merz did nothing to stop. Id. ¶¶ 13, 16-18. When
Plaintiff attempted to stop the unwanted comments, Merz reprimanded her. Id.¶ 17. Both before

The facts contained herein are taken from the allegations set out in Plaintiff’s First Amended Petition.
Doc. [10]. The Court assumes their truth for the purposes of this Memorandum and Order. See Ashcroft
v. Iqbal, 556 U.S. 662, 678-79 (2009); Neitzke v. Williams, 490 U.S. 319, 326-27 (1989).

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Plaintiff first reported the alleged sexual assault to the plant manager, who told Plaintiff to instead report
it to Merz. Doc. [10] ¶ 10.

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and after the alleged assault, Plaintiff claims, Rudd engaged in inappropriate sexual contact with
Plaintiff, including “look[ing] down her shirt” and “slap[ping] her butt at work.” Id. ¶¶ 14-15.
After reporting the assault, Plaintiff was tasked with more physically demanding job
duties and was treated differently than her male co-workers. Id. ¶ 22. For example, she had to
load and unload trucks and complete paperwork—tasks not typically required of her—while her
male co-workers were given extended breaks. Id. ¶¶ 22-23. Plaintiff continued reporting the
harassment over the next couple months, but Defendant took no action. Id. ¶¶ 23-29.
In January 2019, after reporting to her union representative Defendant’s inaction with
respect to Rudd’s initial Facebook messages, the sexual assault, and the derogatory comments
and jokes by her male co-workers, Defendant’s Vice President of Corporate Services, Amanda
Cooper, visited the work site to talk to Plaintiff and several employees. Id. ¶¶ 45-46. Later that
month Cooper informed Plaintiff that Defendant had conducted an investigation that had neither
proved nor disproved Plaintiff’s allegations. Id. ¶ 48. Plaintiff was terminated on August 27,
2019. Id. ¶ 49. She asserts that her termination was retaliation for continuing to “make an issue”
of her sexual assault and treatment at work, and that the reasons Defendant provided for her
termination were “regular behaviors” of her male co-workers. Id. ¶¶ 50-51.
Plaintiff filed a Charge of Discrimination with the Missouri Human Rights Commission
on October 9, 2019. See Docs. [4-1], [18] at 2. Her First Amended Petition included four
counts, but Plaintiff voluntarily dismissed two counts brought under the Family and Medical
Leave Act. See Docs. [10], [21], [33], [34]. The remaining counts both arise under the Missouri
Human Rights Act (MHRA): (I) Sexual Harassment and Hostile Work Environment, and
(II) Retaliation. Doc. [10] at 10, 12. Defendant filed a Partial Motion to Dismiss Plaintiff’s First
Amended Petition on February 26, 2021, claiming Plaintiff failed to exhaust her administrative
remedies. Doc. [4].
LEGAL STANDARD
The purpose of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is to
test the legal sufficiency of a complaint. When considering a Rule 12(b)(6) motion, the Court
assumes all of a complaint’s factual allegations to be true and makes all reasonable inferences in
favor of the nonmoving party. See Neitzke, 490 U.S. at 326-27.
Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” To survive a

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motion to dismiss, the complaint must allege facts supporting each element of the plaintiff’s
claims, and the claims cannot rest on mere speculation. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). Specifically, the complaint “must allege more than ‘[t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements’” and instead must
“allege sufficient facts that, taken as true, ‘state a claim to relief that is plausible on its face.’”
K.T. v. Culver-Stockton Coll., 865 F.3d 1054, 1057 (8th Cir. 2017) (quoting Iqbal, 556 U.S. at
678). The Court “need not accept as true plaintiff’s conclusory allegations or legal conclusions
drawn from the facts.” Glick v. W. Power Sports, Inc., 944 F.3d 714, 717 (8th Cir. 2019). The
issue in considering such a motion is not whether the plaintiff will ultimately prevail, but
whether the plaintiff is entitled to present evidence in support of the claim. See Twombly, 550
U.S. at 556.
DISCUSSION
To bring an action under the MHRA, a plaintiff must first exhaust her administrative
remedies by filing a Charge of Discrimination with the Missouri Human Rights Counsel
(MHRC) within 180 days of the alleged discriminatory act. Mo. Rev. Stat. § 213.075.1; see
Wiedner v. Ferrellgas, Inc., 607 S.W.3d 231, 239 (Mo. Ct. App. 2020). Failure to timely file a
charge of discrimination is a “complete defense,” requiring dismissal of the allegations related to
that charge. Mo. Rev. Stat. § 213.075.1; see Gillespie v. Charter Commc’ns, 31 F. Supp. 3d
1030, 1033 (E.D. Mo. 2014) (citing Holland v. Sam’s Club, 487 F.3d 641, 644 (8th Cir. 2007)).
“Any act of discrimination occurring outside this 180-day period is considered ‘merely an
unfortunate event in history which has no present legal consequences.’” Pollock v. Wetterau
Food Distrib. Grp., 11 S.W.3d 754, 763 (Mo. Ct. App. 1999) (quoting United Air Lines, Inc. v.
Evans, 431 U.S. 553, 557 (1977)).
The MHRA’s 180-day statute of limitations is subject to equitable exceptions, including
the continuing violation doctrine. Gillespie, 31 F. Supp. 3d. at 1033 (citing Rowe v. Hussmann
Corp., 381 F.3d 775, 782 (8th Cir. 2004)). A continuing violation is “a series of closely-related,
similar events that occurred within the same general time period and stemmed from the same
source.” Pollock, 11 S.W.3d at 763. The doctrine recognizes that some claims “cannot be said
to occur on any particular day,” but “occur over a series of days or perhaps years.” Giandinoto
v. Chemir Analytical Servs., Inc., 545 F. Supp. 2d 952, 957 (E.D. Mo. 2007) (quoting Jensen v.
Henderson, 315 F.3d 854, 859 (8th Cir. 2002)). The continuing violation doctrine permits a

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plaintiff to recover for a discriminatory act occurring prior to the 180-day filing period if the
plaintiff can demonstrate that “the act is part of an ongoing practice or pattern of discrimination
by her employer.” See Muhammad v. City of St. Louis, 2019 WL 4576885, at *2 (E.D. Mo. Sept.
20, 2019) (quoting Plengemeier v. Thermadyne Indus., Inc., 409 S.W.3d 395, 401 (Mo. Ct. App.
2013)).
To successfully plead a continuing violation, a plaintiff must satisfy a two-part test.
Tisch v. DST Sys., Inc., 368 S.W.3d 245, 252 (Mo. Ct. App. 2012). The plaintiff must first
“demonstrate that at least one act occurred within the filing period” and, second, must “show that
the current claim of discrimination is part of ‘a series of interrelated events, rather than isolated
or sporadic acts of intentional discrimination.’” Id. (quoting Pollock, 11 S.W.3d at 763). Courts
applying the test look for “‘day-to-day’ discriminatory events that occur on a regular basis,
which . . . may not be significant individually but establish a continuing violation due to their
cumulative effect.” Id. (citing Pollock, 11 S.W.3d at 763). If the plaintiff satisfies both parts of
the test, “the 180-day filing period becomes irrelevant” and she “may then offer evidence of the
entire continuing violation.” Muhammad, 2019 WL 4576885, at *2 (quoting Tisch, 368 S.W.3d
at 252). Continuing violations are most commonly found when plaintiffs assert hostile work
environment claims, which involve repeated conduct and cannot be pinpointed to a precise
moment. See Cooper v. KSHB-TV 41, No. 17-0041-CV-W-BP, 2018 WL 8131234, at *4 (W.D.
Mo. Apr. 2, 2018) (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002)); see
also Tisch, 368 S.W.3d at 254 (quoting Morgan, 536 U.S. at 115).
An isolated event, even one with continuing impact, does not constitute a continuing
violation. Herrero v. St. Louis Univ. Hosp., 109 F.3d 481, 486 (8th Cir. 1997) (citation omitted).
“Discrete acts,” occurring at a particular moment in time, are not actionable if time barred, even
when they relate to acts alleged in timely filed charges. Tisch, 368 S.W.3d at 253-54 (quoting
Morgan, 536 U.S. at 110, 113-14); see also Frey v. Fed. Rsrv. Bank of St. Louis, 2015 WL
4526963, at *3 (E.D. Mo. July 27, 2015) (citation omitted). Prior acts may nevertheless be used
as background evidence in support of timely claims. Tisch, 368 S.W.3d at 254 (citing Morgan,
536 U.S. at 113); see also Williams v. Lender Processing Servs., Inc., 2013 WL 5739059, at *1
(E.D. Mo. Oct. 22, 2013) (citation omitted). Following federal law, Missouri courts apply
equitable doctrines “sparingly” in determining whether a Charge of Discrimination was timely
filed. Tisch, 368 S.W.3d at 252 (quoting Morgan, 536 U.S. at 113).

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Plaintiff filed her Charge of Discrimination with the MHRC on October 9, 2019, Doc.
[4-1], and has thus exhausted her administrative remedies for discriminatory acts that occurred
after April 12, 2019. Defendant moves to dismiss all allegations occurring prior to April 12,
2019, for failure to exhaust, and claims that Plaintiff’s First Amended Petition does not allege
any actions—other than her termination—that occurred within the 180-day filing period. Doc.
[4] ¶ 11. In response, Plaintiff invokes the continuing violation doctrine, arguing that
Defendant’s alleged discriminatory and retaliatory actions continued until her termination. See
Doc. [18] at 2-7.
I.

Plaintiff establishes that at least one act occurred within the filing period.

To establish a continuing violation, a plaintiff must first demonstrate that at least one
discriminatory act occurred within the 180-day filing period. Rowe, 381 F.3d at 782. Defendant
is correct that the First Amended Petition, which is largely devoid of temporal references, does
not allege that the discriminatory acts described continued into the 180-day filing period.
However, Plaintiff’s Charge of Discrimination alleges that “[t]he treatment I have outlined above
continued until the time of my termination.” 3 Doc. [4-1] at 1. That “treatment” included the
sexual assault in 2016, sexual harassment, derogatory jokes and comments following her report
of the assault, a change in job duties, and difficulty reporting her experiences to management.
Id. The Court interprets Plaintiff’s MHRC filing liberally, see Reed v. McDonald’s Corp., 363
S.W.3d 134, 143 (Mo. Ct. App. 2012), and finds that Plaintiff sufficiently alleges that
discriminatory activity occurred within the 180-day filing period. See Plengemeier, 409 S.W.3d
at 401 (plaintiff sufficiently pleaded discriminatory conduct within the filing period by alleging
that it “continued through” the filing period).
II.

Some of Plaintiff’s allegations qualify as continuing violations.

In order for her claims that originated before the filing period to survive the Motion to
Dismiss, Plaintiff must establish that they qualify as continuing violations. Rowe, 381 F.3d at
782. Discriminatory acts span a spectrum from discrete acts, which are “events that can be

The Court properly considers the Charge of Discrimination because it is “incorporated by reference”
into the pleadings, Dittmer Props., LP v. FDIC, 708 F.3d 1011, 1021 (8th Cir. 2013) (quotation omitted),
and it is a public record, Faisbich v. Univ. of Minn., 304 F.3d 797, 802-03 (8th Cir. 2002) (citation
omitted) (concluding that “an EEOC charge is part of the public record”). See also Rutledge v. ISG Tech.,
LLC, 2018 WL 1121507, at *1 (E.D. Mo. Mar. 1, 2018) (discussing plaintiff’s MHRC form); Doc. [10]
¶ 2 (referencing the Charge of Discrimination).
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identified individually as significant events,” Tisch, 368 S.W.3d at 253 (internal quotation marks
and citation omitted), to continuing violations, which “consist of repeated conduct extending
over a period of time,” id. at 254 (quoting Morgan, 536 U.S. at 115). Discrete acts preceding the
filing period are not actionable, regardless of their relation to acts in timely filed charges.
Morgan, 536 U.S. at 113. 4
Defendant argues that Plaintiff has alleged discrete acts because they do not constitute a
“series of similar events within the same general time period.” Doc. [5] at 6. Plaintiff responds
that many of her claims should survive Defendant’s Motion because they qualify as continuing
violations, including the 2016 assault, the verbal harassment and differential treatment she
suffered thereafter, and Defendant’s failure to discipline Rudd. Doc. [18] at 4-5. The Court
finds that Plaintiff successfully pleads continuous violations in the form of verbal harassment
and differential treatment with respect to work assignments and breaks, but that her claims based
on the 2016 assault and Defendant’s failure to discipline the alleged perpetrator must be
dismissed as untimely.
Construing Plaintiff’s Amended Petition and MHRC Charge of Discrimination liberally,
she successfully alleges a continuing violation for sexual harassment based upon repeated
inappropriate sexual comments and jokes by her co-workers. See, e.g., Docs. [10] ¶¶ 13, 16-21;
[4-1] at 1. Courts have recognized that repeated verbal harassment constitutes a continuing
violation under the MHRA. See, e.g., Rowe, 381 F.3d at 781. Further, Plaintiff alleges that the
verbal harassment was from the “same harasser . . . committing the same harassing acts.” Id.
Because Plaintiff alleges that this discrimination continued until her termination, Doc. [4-1], she
sufficiently alleges a continuing violation.
Likewise, Plaintiff's First Amended Petition alleges continuing violations with respect to
how she was treated at work. Specifically, Plaintiff submits she received more physically
demanding job duties and was “treated differently than male employees when given work
assignments” after reporting the assault and harassment. Doc. [10] ¶ 22. Those changes
constitute continuing violations, she argues, because there was “no end date for the change in her
duties.” Doc. [18] at 4. Similarly, she notes that “the different treatment to Plaintiff during work
breaks . . . also does not have a stated end date.” Id.
Courts look to “both Missouri law and any federal employment discrimination (i.e., Title VII) case law
that is consistent with Missouri law.” Tisch, 368 S.W.3d at 252 n.4.

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Drawing all reasonable inferences in Plaintiff’s favor, her allegation that the changes in
how she was treated “continued until the time of [her] termination” is sufficient to support her
claim that those changes constituted continuing violations. Doc. [4-1] at 1; see Neitzke, 490 U.S.
at 326-27. Plaintiff does not allege “isolated” or “sporadic” asymmetries in how she was treated
relative to her male co-workers. Tisch, 368 S.W.3d at 252 (quoting Pollock, 11 S.W.3d at 763).
Rather, Plaintiff submits that she was treated differently “regularly,” Doc. 10 ¶ 22, with the
series of repeated discriminatory acts beginning after her reporting of the assault and continuing
“until the time of [her] termination.” Doc. [4-1] at 1. Each demand that she perform a more
difficult task or take a shorter break may have been isolated in a sense, but her claims that the
differential treatment occurred regularly until her termination makes those individual acts “part
of a series of closely-related, similar events.” Id. Therefore, Plaintiff has successfully alleged
continuing violations in the form of more onerous work assignments and less generous breaks
than her male colleagues.
The alleged 2016 sexual assault, by contrast, is not part of a continuing violation because
it can be “identified individually as [a] significant event.” Tisch, 368 S.W.3d at 253 (quotation
marks and citation omitted); cf. Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009)
(applying Morgan and finding assault of a prisoner not subject to continuing violation doctrine).
Plaintiff does not allege any similar or repeated conduct. Compare Rowe, 381 F.3d 781
(repeated assaults along with inappropriate sexual comments constituted continuing violation),
with Nygren v. Ashcroft, 109 F. App’x 816, 819 (8th Cir. 2004) (events following a single
assault, including comments from the assaulter and employer’s inadequate response, did not
form part of a “single, actionable hostile work environment”). Therefore, Plaintiff did not timely
file her Petition with respect to the 2016 assault, and all claims arising from that assault are
dismissed for failure to exhaust.
Finally, Plaintiff alleges that Defendant’s failure to discipline Rudd and forcing her to
work near him constitutes a continuing violation because “the lack of action by Defendant has no
end.” Doc. [18] at 4. As discussed above, to properly plead a continuing violation, Plaintiff
must “show that the current claim of discrimination is part of ‘a series of interrelated events,
rather than isolated or sporadic acts of intentional discrimination.’” Tisch, 368 S.W.3d at 252
(emphasis added) (quoting Pollock, 11 S.W.3d at 763). Plaintiff provides no authority
suggesting that continuous inaction untethered to any particular event—never mind a series of

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events—can be a continuing violation. 5 Moreover, to find a continuing violation in such a
circumstance would undermine § 213.075.1’s 180-day statute of limitations by making it
impossible to determine a time at which such a claim expires.
For the foregoing reasons, the alleged sexual assault and failure to discipline Rudd cannot
form the basis for Plaintiff’s hostile work environment or retaliation claims. They can, however,
be used as background evidence to support her surviving claims. See McKinney v. City of Kan.
City, 576 S.W.3d 194, 199 (Mo. Ct. App. 2019) (“Discrete events are not actionable because
they occurred outside the statutory time limit, [but] ‘prior acts may be used as background
evidence in support of a timely claim.’” (citing Tisch, 386 S.W.3d at 254)); see also Morgan,
536 U.S. at 113.
Accordingly,
IT IS HEREBY ORDERED that Defendant MFA, Incorporated’s Motion to Dismiss
Plaintiff’s First Amended Petition (Doc. [4]) is GRANTED in part and DENIED in part. The
Motion is GRANTED to the extent it seeks to dismiss claims arising from Plaintiff’s alleged
2016 sexual assault and Defendant’s alleged failure to discipline the perpetrator of that assault.
The Motion is DENIED as to claims arising from her allegations of verbal harassment and
differential treatment with respect to work assignments and breaks.
Dated this 9th day of September, 2021.

SARAH E. PITLYK
UNITED STATES DISTRICT JUDGE

To the extent Plaintiff intends to cite Defendant’s investigation as a basis for this claim, it does not help
because that investigation was completed in late January 2019, more than 180 days before her filing of the
Charge of Discrimination in October. Doc. [10] ¶ 48.

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