Busse v. Daiichi Sankyo Pharmaceutical

Filing 24

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion for leave to file a third amended complaint [Doc. #19] is granted. IT IS FURTHER ORDERED that defendants motion to dismiss [Doc. #7] is granted with respect to plaintiffs claims that she was denied promotions and terminated from her employment and denied in all other respects. Signed by District Judge Carol E. Jackson on 4/23/2013. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHELLE SMITH BUSSE,
Plaintiff,
vs.
DAIICHI SANKYO, INC.,
Defendant.

)
)
)
)
)
)
)
)
)

Case No. 4:13-CV-98 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on defendant’s motion to dismiss plaintiff’s
second amended complaint for failure to state a claim, pursuant to Fed.R.Civ.P.
12(b)(6). Plaintiff has filed a response in opposition to the motion and the issues are
fully briefed.

Plaintiff has also filed a motion for leave to file a third amended

complaint. The Court will grant the requested leave and deem the motion to dismiss
to be directed to the third amended complaint.
Plaintiff Michelle Smith Busse, an African-American woman, was employed as a
sales representative by defendant Daiichi Sankyo, Inc., from August 1, 2004, to May
31, 2011. She alleges that she was subjected to disparate treatment and a hostile
work environment based on her race and that defendant retaliated against her when
she complained about discriminatory treatment.

She asserts claims of race

discrimination (Count I) and retaliation (Count II) under the Missouri Human Rights Act
(MHRA), Mo. Rev. Stat. §§ 213.010 et seq. Defendant moves for dismissal, asserting
that plaintiff failed to exhaust her administrative remedies and has not met the
pleading standards set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
and Ashcroft v. Iqbal, 556 U.S. 662 (2009).

I.

Legal Standard

The purpose of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure is to test the legal sufficiency of the complaint. The factual allegations
of a complaint are assumed true and construed in favor of the plaintiff, “even if it
strikes a savvy judge that actual proof of those facts is improbable.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 556 (2007) (citing Swierkiewicz v. Sorema N.A., 534 U.S.
506, 508 n.1 (2002)); Neitzke v. Williams, 490 U.S. 319, 327 (1989) (“Rule 12(b)(6)
does not countenance . . . dismissals based on a judge’s disbelief of a complaint’s
factual allegations”); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (a well-pleaded
complaint may proceed even if it appears “that a recovery is very remote and
unlikely”). The issue is not whether the plaintiff will ultimately prevail, but whether the
plaintiff is entitled to present evidence in support of his claim. Id. A viable complaint
must include “enough facts to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp., 550 U.S. at 570. See also id. at 563 (“no set of facts” language in
Conley v. Gibson, 355 U.S. 41, 45-46 (1957), “has earned its retirement.”) “Factual
allegations must be enough to raise a right to relief above the speculative level.” Id.
at 555.
II.

Background
A.

Administrative proceedings

On January 3, 2011, plaintiff filed a charge of discrimination with the Missouri
Human Rights Commission. On the form, she checked the box for “race” as the basis
of her charge. In the narrative portion, plaintiff stated that her manager, Lisa Tucker,
subjected her to intimidation by constantly yelling at her. In addition, Tucker required
plaintiff to complete specific pre-call planning procedures that white sales

-2-

representatives were not required to complete. Plaintiff stated that she was placed on
an informal Performance Improvement Plan (PIP) that was supposed to apply to all
members of her team but was applied only to her. She was subsequently placed on
a formal improvement plan. Plaintiff stated that she believed she was discriminated
against based on her race.
On April 22, 2011, plaintiff submitted an amended charge of discrimination. She
checked the boxes for “race” and “retaliation” as the bases for the amended charge.
In the narrative she stated that, after she filed the original charge, she was subjected
to further write-ups, placed on final warning, had a “platinum bonus of $5,000 taken
away,” and lost a trip to Hawaii, even though she had ranked number four in her
region and within the top 50 nationwide.
B.

Allegations in the Third Amended Complaint

In the third amended complaint, plaintiff alleges generally that she was
subjected to a racially-hostile environment, denied employment opportunities,
including promotions and bonuses, and disciplined more harshly than her Caucasian
co-workers. More specifically, plaintiff alleges that her supervisors constantly yelled
at her without good cause in a manner that was belittling, demeaning, intimidating,
and hostile, while being respectful of and deferential to her Caucasian co-workers. In
addition, she was issued warning letters for failing to meet territory sales goals and
was required to improve her sales performance even though the territory was shared
with two Caucasian sales representatives, neither of whom received warning letters.
She further alleges that Tucker cancelled “field rides” designed to improve plaintiff’s
performance but did not cancel field rides scheduled with plaintiff’s Caucasian coworkers. Tucker told plaintiff not to ask questions on conference calls because her

-3-

questions made her sound incompetent, while Caucasian co-workers were encouraged
to ask questions. Tucker yelled at plaintiff in the presence of others but did not yell
at the Caucasian sales representatives. Plaintiff’s budget was subjected to additional
scrutiny after she and two other employees were falsely accused of having a “black
girls’ night out” with her field cash. Plaintiff alleges that immediately after she filed her
original charge of discrimination, Tucker “continued to harass plaintiff for unjustified
reasons.” For instance, Tucker called plaintiff while she was on medical leave and
“bombard[ed] her with unnecessary and irrelevant questions.” In addition, defendant
removed the $5,000 bonus and Hawaiian trip that plaintiff had earned.
III.

Discussion
A.

Failure to Exhaust Administrative Remedies

Defendant argues that plaintiff failed to exhaust her administrative remedies
with respect to her claims for denial of promotions, termination, and harassment.
The MHRA requires plaintiffs to exhaust all administrative remedies before
petitioning the courts for relief. Reed v. McDonald’s Corp., 363 S.W.3d 134, 143 (Mo.
Ct. App. 2012) (citation omitted). In order to exhaust administrative remedies, the
claimant must give notice of all claims in the administrative complaint. Id.; see also
Mo. Rev. Stat., § 213.075.1 (a charge filed with the MCHR shall “set forth the
particulars” of the unlawful discriminatory practice).

However, “administrative

complaints are interpreted liberally in an effort to further the remedial purposes of
legislation that prohibits unlawful employment practices.” Reed, 363 S.W.3d at 143
(quoting Alhalabi v. Missouri Department of Natural Resources, 300 S.W.3d 518, 524
(Mo. Ct. App. 2009)). Accordingly, administrative remedies will be exhausted as to all
incidents that are “like or reasonably related” to the allegations contained in the

-4-

charges filed with the MCHR. Id. Furthermore, “the scope of the civil suit may be as
broad as the scope of the administrative investigation which could reasonably be
expected to grow out of the charge of discrimination.” Id. at 143-44.
Plaintiff alleges in her third amended complaint that she was denied promotions
on the basis of her race, but she did not make any allegations about promotions in her
administrative charges. Plaintiff does allege that she lost bonuses and incentives she
was entitled to, but these actions were taken in retaliation for her first charge of
discrimination, not because of her race.

Even applying the liberal-interpretation

standard, the Court concludes that plaintiff’s bonus and incentive allegations are not
sufficiently “like or reasonably related to” her promotion claims and that an
administrative investigation into plaintiff’s retaliation claim was unlikely to encompass
a claim that plaintiff was denied promotions because of her race.

See Richter v.

Advance Auto Parts, Inc., 686 F.3d 847, 854 (8th Cir. 2012) (examining MHRA
language requiring a charge to “set forth the particulars” and concluding that claim for
retaliation not “like or reasonably related to” race- and sex-based allegations raised in
administrative charge); Reed, 363 S.W.3d at 144 (constructive discharge claim not
exhausted where administrative charge alleged sexual harassment but did not mention
“any facts or particulars relating to intolerable working conditions causing her to quit
working”). To the extent that plaintiff asserts a claim of discriminatory or retaliatory
termination,1 her administrative charges were filed before she left her employment and
thus are necessarily silent with respect to any termination claim. Thus, defendant’s

1

Plaintiff does not explicitly allege that she was unlawfully terminated from her
employment. However, in her prayer for relief, she seeks back pay, front pay, and
restitution for lost benefits, all remedies consistent with a claim for improper
termination.
-5-

motion to dismiss will be granted with respect to plaintiff’s claims that she was denied
promotions or unlawfully terminated.
Defendant also argues that plaintiff failed to administratively exhaust her claim
for harassment because she did not describe “severe or pervasive conduct” in her
charges of discrimination. Plaintiff stated that her supervisor constantly yelled at and
intimidated her, and that this conduct was motivated by plaintiff’s race.

These

allegations are “like or reasonably related to” the harassment claim as alleged in the
complaint and defendant’s motion to dismiss the harassment claim will be denied.
B.

Failure to State a Claim for Relief

Defendant argues that plaintiff’s claims of discrimination and retaliation must be
dismissed because she failed to plead facts sufficient to show that defendant acted with
discriminatory intent.

The Court believes that the allegations of plaintiff’s third

amended complaint provide sufficient factual support for the elements of her
discrimination and retaliation claims. Defendant’s motion to dismiss for failure to state
a claim for relief will be denied.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for leave to file a third
amended complaint [Doc. #19] is granted.
IT IS FURTHER ORDERED that defendant’s motion to dismiss [Doc. #7] is
granted with respect to plaintiff’s claims that she was denied promotions and
terminated from her employment and denied in all other respects.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 23rd day of April, 2013.
-6-