Gao v. Chinese Department/School of St. Louis Languauge Immersion School

Filing 120

MEMORANDUM AND ORDER re: 82 MOTION for Summary Judgment filed by Defendant Lydia Chen, Defendant St. Louis Language Immersion Schools, Inc. motion is GRANTED. An appropriate Judgment will accompany this Memorandum and Order.. Signed by Magistrate Judge Shirley P. Mensah on 12/5/14. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LIN GAO,
Plaintiff,
vs.
ST. LOUIS LANGUAGE IMMERSION
SCHOOLS, INC. and LYDIA CHEN,

Defendants.

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Case No. 4:13-CV-1956-SPM

MEMORANDUM AND ORDER
This case is before the Court on the Motion for Summary Judgment filed by Defendants
St. Louis Language Immersion Schools (“SLLIS”) and Lydia Chen (“Chen”). (Doc. 82). The
parties have consented to the jurisdiction of the undersigned United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c)(1). (Doc. 42). For the reasons stated below, Defendants’ motion
will be granted.
I.

FACTUAL BACKGROUND
SLLIS is a non-profit organization that operates charter public schools involving

language immersion programs, including The Chinese School. (Doc. 83-1, at p.2). Chen is the
Head of The Chinese School. (Chen. Aff., Doc. 83-3, ¶ 1). Most of the staff members of The
Chinese School are over the age of 40, including Chen. (Chen Aff. ¶¶ 4, 7, 9). Approximately
70% are Chinese; most of the others (including Chen) are Taiwanese. (Chen Aff. ¶¶ 4, 6, 8).
Plaintiff is a United States citizen who immigrated to the United States from mainland
China. (2d Am. Compl. ¶ 8). She has a master’s degree in physical education. (Plaintiff’s
resume, Doc. 83-5, at p. 4). She was 41 or 42 years old at the time of the events relevant to this
lawsuit. (Doc. 105-1, at p. 5).

In late 2012, and again in early 2013, Plaintiff applied for a position at The Chinese
School for the part-time position of Elementary Specialist in Physical Education (“P.E.”). (Doc.
104, ¶ 12; Doc. 105-1, at p. 6; Chen Aff. ¶ 10; Job Description, Doc. 83-6, at p. 4). On March 21,
2013, Chen hosted a school tour or group interview for those who had applied for teaching
positions at The Chinese School, including Plaintiff. (Chen. Aff. ¶ 11-12). During the tour, Chen
told the applicants that they were welcome to visit, observe, or volunteer at the school. (Chen.
Aff. ¶ 13). Later that day, Plaintiff wrote Chen an email to express her interest in the position and
to offer some ideas for the P.E. class. (Email from Lin Gao to Lydia Chen, Doc. 83-3, at p. 8).
Plaintiff emailed and called Chen to arrange a time to observe classes, and they arranged a time.
(Email from Lydia Chen to Lin Gao, Doc. 83-3, at p. 14; Chen Aff. ¶ 16).
Plaintiff observed and volunteered at classes at The Chinese School on April 12, April
19, April 26, and May 3, 2013. (Chen Aff. ¶¶ 17-18). Plaintiff alleges that at some point after the
group interview but before this volunteer work was completed, Chen promised Plaintiff, orally
and in writing, that Chen would offer Plaintiff the P.E. teacher job, at a salary of $16,000, if
Plaintiff completed the obligatory “volunteer” work. (2d Am. Compl. ¶ 11).1 To support this
allegation, Plaintiff submits a paper, undated and in Chen’s handwriting, that contains various
notes that appear to be related to job descriptions, hours, and salary amounts. (Doc. 105-1, at p.
13). For example, at the top, the paper states, “PE6FYE0.2 fte  10 hrs [Chinese
characters] $8000.” It also includes a line stating, “Morning Mosaic  MF = 6:30-10:30 0.5
fte$8000. It also includes a notation that “1 hrs = $20.” The number $16,000 also appears on
the paper, though it is unclear what words it is connected to.

1

Plaintiff makes allegations similar to those in Second Amended Complaint in her responses to
Defendants’ motion for summary judgment. For simplicity, the Court cites only to the Second
Amended Complaint when discussing allegations that are not supported by evidence in the
record.
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Plaintiff alleges that during this volunteer work, Plaintiff disclosed to Chen that she was
over 40 years old. She alleges that Chen stated that a woman over 40 who had previously had a
child did not have the physical conditioning to complete the daily rigors of the P.E. teacher
position. (2d Am. Compl. ¶¶ 15-17). However, Chen states in her affidavit that she did not know
Plaintiff’s age at any time during Plaintiff’s volunteer work and application process. (Chen Aff.
¶ 34).
On May 3, 2013, Plaintiff and Chen scheduled Plaintiff’s teaching demonstration for on
or around May 17, 2013, and she performed the demonstration. (Chen Aff. ¶¶ 19-20). It met
Chen’s expectations. (Chen Aff. ¶ 21). Plaintiff also volunteered as a Tai Chi and/or Wushu
performer at events on May 18 and June 6, 2013. (Chen Aff. ¶¶ 23-25). Plaintiff alleges that she
requested payment for these performances but was instead assured that the P.E. teacher position
would be given to her. (2d Am. Compl. ¶ 20).
Plaintiff alleges that on the car ride to the June 6, 2013 performance, Chen stated that
some SLLIS teachers were from mainland China, where the people were poor and low class. (2d
Am. Compl. ¶ 21).
On June 6, 2013, Chen and Plaintiff met to discuss the position at SLLIS. (Chen Aff.
¶ 26). The parties’ accounts of this meeting differ significantly. Plaintiff alleges that during the
meeting, Chen informed Plaintiff that the P.E. teacher position was still open to her but that its
salary would be only $6,000 annually, not the $16,000 previously promised. (2d Am. Compl.
¶ 23). Plaintiff alleges that she was astonished at the change in salary but accepted the position
anyway. (2d Am. Compl. ¶ 24). She cites evidence showing that in the 2012-2104 time frame,
she held other jobs at which she earned less than $6,000 per year. (Doc. 105-1, at p. 4; Doc. 232). In contrast, in Chen’s account of this meeting, Chen states that she “did not offer Gao a

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position at SLLIS.”2 (Chen Aff. ¶ 30). She states that she told Plaintiff that the salary for the
position was set at $6,000 annually and that the salary amount was not flexible. (Chen Aff.
¶¶ 27-29). Chen says that Plaintiff then told Chen that she could not continue to consider the
position, that the salary was too low, and that there was no way she could live off of $6,000 per
year. (Chen Aff. ¶ 30). Chen further states that Plaintiff requested that Chen stop processing her
job application at that time. (Chen Aff. ¶ 31).
Later on June 6, 2013, Chen and Plaintiff spoke by phone. (Chen Aff. ¶ 32). Plaintiff
alleges that Chen told Plaintiff that Chen had changed her mind and decided not to hire Plaintiff.
(2d Am. Compl. ¶ 25). Plaintiff alleges that when she asked why, Chen indicated that Plaintiff
was unsuitable for the P.E. teacher position and should look for other jobs because of her age.
(2d Am. Compl. ¶ 25). In contrast, Chen states in her affidavit that she reiterated in this phone
call that the salary was fixed and that there was no room for negotiation, and Plaintiff again
stated that she could not consider the job at that salary. (Chen Aff. ¶ 32). Chen states that she told
Plaintiff that she would stop processing Plaintiff’s job application, and Plaintiff agreed and told
Chen that she would recommend someone for the position. (Chen Aff. ¶ 32).
After June 6, 2013, Chen continued to seek applications for the position, indicating in
her email seeking applicants that the job was “part time work” and “paid $6000 annual salary.”
(Chen Aff. ¶ 35; Email from Lydia Chen, Doc. 83-11, at pp. 2-3). Chen states in her affidavit that
SLLIS never filled the position for the 2013-14 school year.3 (Chen Aff. ¶ 36).
2

Inexplicably, Defendants state in their Brief and Memorandum of Law in Support of Summary
Judgment that SLLIS “extended [Gao] an offer of employment,” Doc. 84, at p.5, despite the fact
that their Statement of Uncontroverted Facts and Chen’s affidavit plainly say the opposite. The
Court will treat as true the statement that is supported by the evidence.
3

Again, this evidence conflicts with a representation Defendants made in another filing. On June
27, 2014—two months before Defendants filed Chen’s affidavit—Defendants represented to the
Court in a response to Plaintiff’s Motion to Appoint Counsel that “SLLIS actually hired another
female, Chinese candidate for the position that Gao applied for, which demonstrates Defendants’
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II.

PROCEDURAL BACKGROUND

Plaintiff filed this action, pro se, on October 1, 2013, and has since filed two amended
complaints. In her Second Amended Complaint, filed on July 7, 2014, she asserts seven claims
against Defendants SLLIS and Chen: (I) age discrimination in violation of the Age
Discrimination in Employment Act, 29 U.S.C. § 621, et seq.; (II) racial discrimination in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; (III) age
discrimination in violation of the Missouri Human Rights Act, Mo. Rev. Stat. § 213.055; (IV)
racial discrimination in violation of the Missouri Human Rights Act, Mo. Rev. Stat. § 213.055;
(V) breach of contract; (VI) fraudulent inducement; and (VII) unjust enrichment. Defendants
filed an answer to the Second Amended Complaint.
On April 23, 2014, the Court appointed counsel for Plaintiff through the Court’s pro bono
volunteer lawyer program. Plaintiff’s appointed counsel met with Plaintiff and also found a
Mandarin-speaking associate from his firm to assist in his communications with Plaintiff.
However, Plaintiff soon notified the Court of various complaints about her appointed counsel,
principally related to his request that she sign his firm’s standard engagement letter. At a status
conference before the Court, it became apparent that Plaintiff did not trust her appointed counsel
and believed that he would seek payment from her for his services, despite his and the Court’s
representations to the contrary. Plaintiff’s counsel eventually moved to withdraw, and the Court
granted the motion on June 23, 2014. The Court has denied Plaintiff’s subsequent motions
seeking appointment of counsel, and Plaintiff is currently proceeding pro se.

nondiscriminatory intentions.” (Doc. 58). On August 27, 2014, Defendants stated in their Brief
and Memorandum of Law in Support of Summary Judgment, “It is undisputed that SLLIS did
not hire anyone for the position that Gao was seeking.” (Doc. 84, at p. 6). Defendants have not
attempted to explain this discrepancy, even after Plaintiff pointed it out in her response.
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On August 27, 2014, Defendants filed the instant motion for summary judgment. After
Plaintiff filed responses that did not comply with Eastern District of Missouri Local Rule 74.01(E) or with Rule 56(c) of the Federal Rules of Civil Procedure (Docs. 85, 100), the Court
entered orders informing her of her obligations under Local Rule 7-4.01 and Federal Rule of
Civil Procedure 56(c), including her obligation to support her assertions with citations to
materials in the record such affidavits, depositions, documents, stipulations, admissions,
interrogatory answers, or other materials. (Docs. 87, 102). Eventually, Plaintiff filed three
documents in opposition to Defendants’ motion: a response to Defendants’ Statement of
Uncontroverted Facts (Doc. 104); a response to Chen’s affidavit (Doc. 107); and a response to
Defendants’ Brief and Memorandum of Law (Doc. 115). In these documents, Plaintiff responds
to each of Defendants’ assertions with a combination of arguments, factual assertions supported
by documents in the record, and factual assertions unsupported by any citations to the record.
III.

DISCUSSION
a. Legal Standard for Summary Judgment
The Court shall grant a motion for summary judgment “if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “A dispute is genuine if the evidence is such that it could cause a
reasonable jury to return a verdict for either party; a fact is material if its resolution affects the
outcome of the case.” Othman v. City of Country Club Hills, 671 F.3d 672, 675 (8th Cir. 2012)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The moving party bears the
initial responsibility of informing the court of the basis of its motion and of identifying those
portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The defendant may discharge this burden by showing

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that “there is an absence of evidence to support the nonmoving party’s case.” Id. 325. If the
moving party meets this initial burden, the non-moving party must then set forth affirmative
evidence from which a jury might return a verdict in his or her favor. Anderson, 477 U.S. at 25657. “Mere allegations, unsupported by specific facts or evidence beyond the nonmoving party’s
own conclusions, are insufficient to withstand a motion for summary judgment.” Thomas v.
Corwin, 483 F.3d 516, 527 (8th Cir. 2007).
In considering a motion for summary judgment, the court must view the facts in the light
most favorable to the nonmoving party, and all justifiable inferences are to be drawn in the
nonmovant’s favor. Peebles v. Potter, 354 F.3d 761, 765 (8th Cir. 2004). The court’s function is
not to weigh the evidence, but to determine whether there is a genuine issue for trial. Anderson,
477 U.S. at 249.
b. Count I: Age Discrimination Under the ADEA
The Age Discrimination in Employment Act (“ADEA”) protects individuals aged 40 and
over by prohibiting employers from discriminating against such individuals on the basis of their
age. 29 U.S.C. § 623(a). Plaintiff asserts that Defendants discriminated against her on the basis
of her age when (1) they reduced her promised salary from $16,000 to $6,000, and (2) they
ultimately decided not to hire her at all.
To establish a claim under the ADEA, Plaintiff “‘must prove by a preponderance of the
evidence (which may be direct or circumstantial) that age was the but-for cause of the challenged
employer decision.’” Tramp v. Associated Underwriters, Inc., 768 F.3d 793, 800 (8th Cir. 2014)
(quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009)). Direct evidence is
“‘evidence showing a specific link between the alleged discriminatory animus and the challenged
decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion

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actually motivated the adverse employment action.’” Holmes v. Trinity Health, 729 F.3d 817,
821 (8th Cir. 2013) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1044 (8th Cir.
2011)). Where the plaintiff relies on indirect evidence, “the court analyzes her claim under the
burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973).” Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 515 (8th Cir. 2011).
This case arguably involves both direct and indirect evidence of discrimination, so the
Court will discuss both.
1.

Direct Evidence

Defendants argue that Plaintiff cannot show any direct evidence of discriminatory animus
motivating Chen’s decision to offer Plaintiff only a $6,000 salary or Chen’s ultimate failure to
hire Plaintiff. They point to (1) Chen’s affidavit stating that Chen herself and most of the
employees of SLLIS were as old as or older than Plaintiff; (2) Chen’s affidavit stating that Chen
was unaware of Plaintiff’s age during the relevant time frame; and (3) the lack of any evidence
of discriminatory animus in the record. In her response, Plaintiff asserts that Chen made various
negative statements about her ability to perform as a P.E. teacher at her age, including a
statement in which Chen explicitly told her that the reason Chen was not hiring her was because
of her age. (Doc. 115, at p. 23; 2d Am. Compl. ¶¶ 16-17, 25).
Chen’s alleged statement that she was not hiring Plaintiff because of her age, if supported
by evidence, would constitute direct evidence of discriminatory animus that motivated a decision
not to hire Plaintiff. However, Plaintiff cites no evidence to support this allegation, nor has she
submitted the allegation in a verified complaint.4 The unsworn and unsupported allegations made
in Plaintiff’s unverified complaint and repeated in her response to Defendants’ motion do not
4

The Eighth Circuit has held that a pro se plaintiff’s verified complaint is the equivalent of an
affidavit for summary judgment purposes. See Watson v. Jones, 980 F.2d 1165, 1166 (8th Cir.
1992); Williams v. Adams, 935 F.2d 960, 961 (8th Cir. 1991).
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constitute competent evidence that can be used to defeat a motion for summary judgment. See
Risdal v. Nixon, ---F. App’x. ----, 2014 WL 5471985, at *1 (8th Cir. Oct. 30, 2014) (holding that
the district court erred by considering a pro se plaintiff’s unsworn statements, made at a
telephone hearing, in denying the defendants’ motion for summary judgment); Tweeton v.
Frandrup, 287 F. App’x 541, 541 (8th Cir. 2008) (stating that to defeat summary judgment, the
plaintiff “was required to offer evidence countering defendants’ supporting affidavits and other
evidence” and noting that “because his complaint was unverified, it could not be considered such
evidence”); Beyer v. Firstar Bank, N.A., 447 F.3d 1106, 1108 (8th Cir. 2006) (affirming grant of
summary judgment where the plaintiff relied on an unverified complaint and did not submit an
affidavit or any evidence from which a reasonable jury could conclude that he had shown one of
the elements of his claims); Metzsh v. Avaya, Inc., 159 F. App’x 736, 737 (8th Cir. 2005) (“[The
pro se plaintiff’s] repeated references on appeal to her unverified complaint are unavailing,
because only a verified complaint is the equivalent of an affidavit for purposes of summary
judgment.”); Williams v. Donahoe, No. 4:13–CV–1150 CAS, 2014 WL 6083133, at *3 (Nov. 13,
2014) (refusing to consider plaintiff’s unsworn statements in a complaint in assessing whether
there was evidence of age discrimination for purposes of summary judgment).
Plaintiff does cite to documentary evidence that suggests that she submitted documents
revealing her age to SLLIS at some point before she was interviewed.5 However, even assuming
that this evidence establishes a factual dispute regarding whether Chen knew about Plaintiff’s
age, it is not sufficient to create a genuine issue of material fact regarding whether Chen had any
5

Plaintiff has cited an email showing that in late 2012, SLLIS informed her that her application
would not be complete and the school would not consider her for an interview until her
university transcripts had been mailed to the school. (Doc. 105-1, at p. 6). Some of Plaintiff’s
university transcripts contain her date of birth. (Doc. 105-1, at p. 5). It is unclear whether or
when those transcripts were sent to SLLIS, and it is unclear who at SLLIS saw them.
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age-related animus or whether Chen’s knowledge of Plaintiff’s age played any role in any
employment-related decisions. Moreover, evidence showing that Chen knew about Plaintiff’s
age before her interview is inconsistent with Plaintiff’s claim that Chen interviewed her, offered
her the job, and then learned her age, reduced her salary offer, and revoked her job offer.
In sum, Plaintiff has failed to present any direct evidence from which a reasonable
factfinder could conclude that discriminatory animus based on her age was a but-for cause of, or
even a factor contributing to, any adverse employment action against Plaintiff.
2. Indirect evidence
The Court will next consider whether Plaintiff can show discrimination through indirect
evidence. To establish a prima facie case of age discrimination under the ADEA, a plaintiff must
show (1) that she is over 40; (2) that she was qualified for the position; (3) that she “was not
hired” or “suffered an adverse employment action”; and (4) that a younger person was hired for
the position or was treated more favorably than the plaintiff. See Tusing, 639 F.3d at 515; Onyiah
v. St. Cloud State Univ., 684 F.3d 711, 719 (8th Cir. 2012). Once the plaintiff establishes a prima
facie case of discrimination, a presumption of unlawful discrimination arises, and the burden
shifts to the employer to “articulate a legitimate, nondiscriminatory reason for its actions.”
Johnson v. Securitas Sec. Servs. USA, Inc., 769 F.3d 605, 611 (8th Cir. 2014) “If the employer
carries its burden, the presumption is eliminated and the burden shifts back to the employee, who
must then prove the employer’s asserted reason was merely pretext for discrimination.” Id. “To
survive summary judgment, an employee must both discredit the employer’s articulated reason
and demonstrate the circumstances permit a reasonable inference of discriminatory animus.” Id.
(quotation marks omitted). “Ultimately, the employee must show that age was the ‘but-for’ cause
of the adverse employment action.” Id.

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The question of whether Plaintiff has established a prima facie case is significantly
complicated by inconsistencies in Defendants’ representations to this Court concerning whether
SLLIS offered Plaintiff the job and whether SLLIS hired anyone else to fill the job Plaintiff
applied for.6 Rather than attempting to resolve these inconsistencies, the Court will assume,
without deciding, that Plaintiff established the elements of the prima facie case and that the
burden shifted to Defendants to articulate a legitimate, non-discriminatory reason for the
complained-of employment decisions (offering Plaintiff only $6,000 instead of $16,000 and
ultimately not hiring her at all). Defendants have satisfied that burden. According to Chen’s
affidavit, the salary for the part-time P.E. teacher position was set at $6,000 and was not flexible.
That statement is supported by an email showing that Chen quoted the $6,000 salary amount
when soliciting applications from others for the position. The fact that the salary for the position
was set at $6,000 constitutes a legitimate, nondiscriminatory reason for not offering her a higher
salary. In addition, Chen states in her affidavit that when Plaintiff learned of the $6,000 salary,
Plaintiff told her that the salary was too low and asked Chen to stop processing her job
application. Plaintiff’s voluntary decision to withdraw her application based on a set salary that
was too low constitutes a legitimate, nondiscriminatory reason for Defendants’ not hiring her.

6

Defendants first argue that Plaintiff cannot establish the third element of the prima facie case
because SLLIS “extended her an offer of employment.” (Doc. 84, at p. 5). However, Defendants’
own evidence—Lydia Chen’s affidavit—shows that SLLIS did not offer Plaintiff a position.
(Chen Aff. ¶ 30). Thus, Defendants’ own evidence shows that Plaintiff “was not hired,” and thus
Plaintiff has at least arguably established this element.
Defendants also argue that Plaintiff cannot establish the fourth element of the prima facie
case, pointing to the statement in Chen’s affidavit that SLLIS did not hire anyone to fill the
position Plaintiff applied for in the 2013-2014 school year. However (as Plaintiff points out),
Defendants represented to the Court in a response to one of Plaintiff’s motions to appoint
counsel that “SLLIS actually hired another female, Chinese candidate for the position that Gao
applied for . . .” (Doc. 58, at p. 2). The age of this person was not mentioned. Defendants have
offered no explanation for the discrepancy between their prior representation and the
representation in Chen’s affidavit.
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Thus, the burden shifts to Plaintiff to produce evidence sufficient to raise genuine issues
of material fact regarding whether Defendants’ asserted reasons were mere pretext for
discrimination. This evidence must be sufficient to support a finding “that the employer’s stated
reason was false and that age discrimination was the real reason.” Tusing, 639 F.3d at 516.
Plaintiff has not met this burden. Plaintiff attempts to dispute Chen’s assertion that the salary was
fixed at $6,000 by asserting that Chen originally offered her $16,000 and then reduced it after
learning of her age. However, as discussed above, Plaintiff’s unsworn allegations do not
constitute evidence at the summary judgment stage. Plaintiff also cites a handwritten document
that includes on it the number $16,000, in addition to several other numbers and descriptions of
job duties. However, there is nothing in that document to suggest that the $16,000 number
corresponds to the job Plaintiff was applying for, or indeed to any available job.
Plaintiff also denies that she withdrew herself from consideration for the position,
claiming instead that she accepted the position at $6,000 per year, only to have Chen later
rescind the offer. In addition to her own unsworn and unsupported allegations, Plaintiff submits a
piece of paper, apparently in Chen’s handwriting, that contains various words and numbers,
including “360 minutes,” “300 minutes instructional time,” “$6000,” and “0.15.” (Doc. 105-1, p.
12). Plaintiff also cites a document written by her that states, “My goal of taking this job” and
discusses certain goals, as well as a document describing P.E. grade level expectations that she
states that Chen gave her. (Doc. 105-1, at p. 14). However, these documents are completely
consistent with Plaintiff applying for and considering a job and do not indicate that she ever
accepted one. They also do not suggest that Defendants rescinded any offer due to her age.
Finally, Plaintiff cites documents showing that Plaintiff held other jobs in the 2012-2014
timeframe that paid less than $6,000 per year. Although this provides some weak support for the

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Plaintiff’s argument that she would not have rejected a job with a $6,000 salary, it is not
sufficient for a reasonable juror to find that she accepted the job, particularly in view of the
contradictory evidence in Chen’s affidavit that addresses this question directly. For the reasons
discussed above, Plaintiff has not met her burden of showing pretext.
Plaintiff has not produced direct or indirect evidence sufficient to create a genuine issue
of material fact regarding whether her age was a but-for cause of, or even part of the motivation
for, any adverse employment action or failure to hire her. Therefore, Defendants are entitled to
summary judgment on this claim. See Johnson, 769 F.3d at 612-14 (affirming summary
judgment on ADEA claim where Defendant articulated a legitimate, non-discriminatory reason
for termination and the plaintiff failed to raise genuine issues of material fact regarding whether
the stated reason was pretextual or whether age was the but-for reason for the termination).
c.

Count III: Age Discrimination Under the Missouri Human Rights Act

Plaintiff also alleges age discrimination under the Missouri Human Rights Act, Mo. Rev.
Stat. § 213.055. The MHRA prohibits employers from discriminating against any individual
“with respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, national origin, sex, ancestry, age or disability.” Mo. Rev.
Stat. § 213.055.1(1)(a). “[T]he MHRA employs a more lenient standard than the ADEA in
determining whether an employee has been discriminated against.” Buehrle v. City of O’Fallon,
Mo., 695 F.3d 807, 812-813 (8th Cir. 2012). “To survive summary judgment on the MHRA
claim, [the plaintiff] must demonstrate that age was a ‘contributing factor’ in the decision to
promote others instead of him.” Id. “‘A contributing factor has been defined as one that
contributed a share in anything or has a part in producing the effect.’” Id. (quoting Williams v.
Trans States Airlines, Inc., 281 S.W.3d 854, 867 (Mo. Ct. App. 2009)). See also Marez v. Saint-

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Gobain Containers, Inc., 740 F.Supp.2d 1057, 1068 (E.D. Mo. 2010).
As discussed above with respect to Plaintiff’s ADEA claim, Plaintiff cites no evidence,
other than her unsworn and unsupported allegations, to suggest that age played any role in
Defendants’ employment-related decisions. Because she has no evidence that creates a genuine
issue of fact as to whether Plaintiff’s age was a contributing factor in Defendants’ decisions
about what salary to offer her or whether to hire her, Defendants are entitled to summary
judgment. See Buehrle, 695 F.3d at 813 (“Absent any showing that age of the applicants factored
into Seibert’s decision, Buehrle has failed to meet his burden under the MHRA, and summary
judgment was properly granted on this claim.”).
d. Count II: Racial Discrimination Under Title VII
“Title VII of the Civil Rights Act of 1964 makes it ‘an unlawful employment practice for
an employer’ to ‘discriminate against any individual with respect to’ the ‘terms, conditions, or
privileges of employment, because of such individual’s race, color, religion, sex, or national
origin.’” Vance v. Ball State Univ., ––– U.S. ––––, 133 S.Ct. 2434, 2440 (2013) (quoting 42
U.S.C. § 2000e-2(a)(1)). Although the nature of Plaintiff’s racial discrimination claim is
somewhat unclear, it appears that Plaintiff is alleging that because she was an immigrant from
mainland China, Defendants offered her a salary lower than the salary offered to others for
similar positions. She also suggests that Defendants’ ultimate decision not to hire her was related
to her mainland China national origin.
As with an ADEA claim, a plaintiff may establish a racial discrimination claim under
Title VII using either direct evidence or indirect evidence. E.E.O.C. v. Audrain Health Care,
Inc., 756 F.3d 1083, 1086 (8th Cir. 2014). Where the plaintiff relies on indirect evidence, the
court uses same burden-shifting test used for ADEA claims. Id.

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Plaintiff has not cited any direct or indirect evidence that suggests that her race or
national origin played any role in any employment decision made by Defendants. With respect to
direct evidence, Plaintiff offers nothing other than her own unsupported allegation that Chen on
one occasion made comments indicating that she viewed people from mainland China as poor
and low class. (2d Am. Compl. ¶ 21). As discussed above, Plaintiff cannot rely on these unsworn
and unsupported allegations to defeat summary judgment. Moreover, even if these comments
were supported by evidence in the record, they do not constitute direct evidence of
discrimination because there is no indication that they were related to any employment-related
decision made by Defendants. See Clearwater v. Indep. Sch. Dist. No. 166, 231 F.3d 1122, 1127
(8th Cir. 2000) (finding that “stray remarks” that show racial animus are not direct evidence of
discrimination if they are not sufficiently related to an adverse employment action); Arnold v. St.
Louis Metropolitan Police Dep’t Bd. Of Police Comm’rs., No. 4:11-CV-01144 CDP, 2013 WL
147843, at *5 n.2 (E.D. Mo. Jan. 14, 2013) (noting that a derogatory remark about AfricanAmericans at a roll call “would undoubtedly be offensive, but it does not constitute direct
evidence” for purposes of a Title VII claim).
With respect to indirect evidence, even assuming arguendo that Plaintiff could establish a
prima facie case of racial discrimination, Defendants have met their burden of showing a
legitimate, nondiscriminatory reason for offering her a $6,000 salary: the affidavit of Lydia Chen
stating that the salary for the position was set at $6,000 and was not flexible. Defendants have
also met their burden of showing a legitimate, nondiscriminatory reason for not hiring Plaintiff:
her withdrawal from consideration for the position due to the low salary. As discussed with
respect to Plaintiff’s ADEA claim, Plaintiff cites no competent evidence sufficient to suggest that
Defendant’s articulated reasons were false. Moreover, she offers no evidence suggesting that the

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offered salary amount or the ultimate decision not to hire Plaintiff were motivated in any way by
Plaintiff’s race or national origin. Thus, Plaintiff cannot prove that Defendants’ reason for
offering her $6,000 was a pretext for race or national origin discrimination, and Defendants are
entitled to summary judgment on this claim. See Muor v. U.S. Bank Nat’l Ass’n., 716 F.3d 1072,
1077-78 (8th Cir. 2013) (“In light of the lack of evidence showing that discriminatory animus
motivated the adverse employment decision” and the defendant’s well-documented legitimate
reason for the adverse employment action, the plaintiff had not established a material issue of
fact concerning pretext and summary judgment on the plaintiff’s Title VII claim was proper).
e. Count IV: Racial Discrimination Under the MHRA
Plaintiff also alleges racial discrimination in violation of the MHRA, Mo. Rev. Stat.
§ 213.055. As with age discrimination, to establish a racial discrimination claim under the
MHRA, the plaintiff must prove only that race was a “contributing factor” in the employer’s
decision. E.E.O.C. v. Con-Way Freight, Inc., 622 F.3d 933, 938 (8th Cir. 2010) (citing
Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 820 (Mo. 2007)).
As discussed above with respect to Plaintiff’s racial discrimination claim under Title VII,
Plaintiff has cited no evidence suggesting that Plaintiff’s race or national origin played any role
whatsoever in Defendants’ employment-related decisions. Thus, there is no genuine issue of fact
regarding whether Plaintiff’s race was a contributing factor in Defendants’ decisions about what
salary to offer her or whether to hire her, and Defendants are entitled to summary judgment on
this claim.
f. Count V: Breach of Contract
Under Missouri law, the essential elements of a breach of contract claim are “(1) the
existence and terms of a contract; (3) that plaintiff performed or tendered performance pursuant

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to the contract; (3) breach of the contract by the defendant; and (4) damages suffered by the
plaintiff.’” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 850 (8th Cir. 2014) (quoting
Keveney v. Mo. Military Acad., 304 S.W.3d 98, 104 (Mo. 2010)). “‘A valid contract contains the
essential elements of ‘offer, acceptance, and bargained for consideration.’” Id. (quoting Holmes
v. Kansas City Mo. Bd. of Police Comm’rs ex rel. Its Members, 364 S.W.3d 615, 622 (Mo. Ct.
App. 2012)). “[T]he parties’ negotiations, proposals, or preliminary steps do not constitute a
contract.” American Recreation Prods., LLC v. Tennier Indus., Inc., 11 F. Supp. 3d 959, 966
(E.D. Mo. 2014) (citing Kalivas v. Hauck, 290 S.W.2d 94, 101 (Mo. 1956)).
Plaintiff alleges in her complaint that SLLIS offered, orally and in writing, to provide her
with employment at a salary of $16,000 if she completed certain volunteer work for SLLIS, that
she did the volunteer work, and that SLLIS breached the agreement and refused to hire Plaintiff
at a salary of $16,000. In addition to her own unsworn allegations, Plaintiff relies on the
handwritten document that contains job duties as well as the number “$16,000” and other
numbers. Plaintiff also points out that in SLLIS’s Answer to Plaintiff’s First Amended
Complaint, SLLIS admitted that it told Plaintiff it would give her the P.E. teacher position if she
did certain volunteer work.7 Because that answer has been superseded by Defendants’ Answer to
Plaintiff’s Second Amended Complaint (which includes denials of similar allegations), the
statements in the earlier answer do not constitute binding judicial admissions; however, the
earlier statements can be introduced into evidence. See Missouri Housing Development Comm’n.
v. Brice, 919 F.2d 1306, 1314 (8th Cir. 1990) (“As a rule, admissions in the pleadings . . . are in
the nature of judicial admissions binding upon the parties, unless withdrawn or amended.”)
(quotation marks omitted); Sunkyong Int’l., Inc. v. Anderson Land & Livestock Co., 828 F.2d

7

This answer was filed in response to a complaint that included only employment discrimination
claims.
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1245, 1249 n.3 (8th Cir. 1987) (“A pleading abandoned or superseded through amendment no
longer serves any function in the case, but may be introduced into evidence as the admission of a
party.”).
Here, even considering SLLIS’s superseded statements as evidence, Plaintiff has failed to
cite sufficient evidence from which a reasonable jury could find in her favor on a breach of
contract claim. To the extent that Plaintiff argues that Defendants breached a contract to employ
her at a salary of $16,000, she has failed to establish the existence of such a contract. Neither the
handwritten document cited by Plaintiff nor the statement in SLLIS’s superseded answer
indicates in any way that Plaintiff was offered a job with a salary of $16,000 per year, or that
Plaintiff accepted it. Because Plaintiff has failed to cite evidence showing a genuine issue of
material fact regarding the existence or terms of a contract, Defendants are entitled to summary
judgment on this claim. See Patterson v. EFPP, LLC, No. 4:06CV556 JCH, 2007 WL 2507755,
at *6 (E.D. Mo. Aug. 30, 2007) (“[A]lthough Plaintiff repeatedly asserts he entered into a
contract with Defendant, he offers no evidence of the contract, other than his own conclusory
allegations. The non-existence of a contract is fatal to Plaintiff’s claim, and so Defendant’s
Motion for Summary Judgment on this point must be granted.”).
Even assuming that SLLIS’s superseded admission could establish that Plaintiff had
entered into a contract under which Defendants were bound to offer her employment generally
(rather than employment at a $16,000 salary), Plaintiff cannot establish that Defendants breached
such a contract. As discussed above, the evidence shows that Plaintiff withdrew herself from
consideration for the job on her last day of volunteer work. She has no competent evidence that
Defendants decided not to offer the job to her as they had allegedly promised.

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g. Count VI: Fraudulent Inducement
In Count VI, Plaintiff alleges that Defendants intentionally misrepresented to Plaintiff
that she would be given employment and paid $16,000 per year if she completed certain
volunteering requirements at The Chinese School; that Plaintiff relied on this representation
when she completed the volunteering requirements and decided to forego other employment
opportunities; that Defendants refused to hire her as represented; and that Plaintiff suffered
injuries including loss of employment, expenses incurred related to her volunteer work, and
emotional injuries.
To state a claim for fraudulent inducement under Missouri law, “plaintiff must establish
facts in support of each of the following elements: (1) that [Defendants] made certain material
representations to plaintiff; (2) such representations were false when made; (3) that [Defendants]
knew the representations were false; (4) that the representations were made with the purpose of
deceiving plaintiff; (5) that plaintiff was, in fact, deceived; (6) plaintiff reasonably relied on the
representations in [entering the agreement at issue]; and (7) plaintiff suffered damage as a
proximate result of the fraudulent misrepresentations.” Bracht v. Grushewsky, 448 F. Supp. 2d
1103, 1110 (E.D. Mo. 2006) (citing Trotter’s Corp. v. Ringleader Restaurants, Inc., 929 S.W.2d
935, 939 (1996)). Although Plaintiff’s claim is titled, “fraudulent inducement,” it appears to
correspond more closely to a claim for “fraudulent misrepresentation.” To establish a claim for
fraudulent misrepresentation, a plaintiff must prove (1) a false, material representation; (2) the
speaker’s knowledge of its falsity or his ignorance of its truth; (3) the speaker’s intent that it
should be acted upon by the hearer in a manner reasonably contemplated; (4) the hearer’s
ignorance of the falsity of the representation; (5) the hearer’s reliance on its truth; (6) the hearer’s

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right to rely thereon; and (7) the hearer’s consequent and proximately caused injury. Bohac v.
Walsh, 223 S.W.3d 858, 862-63 (Mo. Ct. App. 2007).
Whether Plaintiff’s claim is framed as one of fraudulent inducement or fraudulent
misrepresentation, Defendants are entitled to summary judgment because Plaintiff cannot
establish the first element of either claim. As discussed repeatedly above, Plaintiff has cited no
evidence from which a reasonable factfinder could find that Defendants represented to her that
they would give her employment at $16,000 per year if she volunteered at SLLIS. Moreover, to
the extent that Plaintiff’s claim is that Defendants misrepresented to her that she would be
offered employment more generally, she has failed to cite evidence from which a reasonable
factfinder could find that such a representation was false when made. As discussed above, the
evidence shows that Plaintiff withdrew herself from consideration for the job, and there is no
evidence that Defendant never intended to offer her the job.
h. Count VII: Unjust Enrichment
In her unjust enrichment claim, Plaintiff alleges that she conferred a benefit upon SLLIS
by completing certain volunteer activities for the school, and that she conferred that benefit after
being assured that she would be given employment upon completion of the volunteer work. She
alleges that in equity and good conscience she should be given restitution for her unpaid time and
effort.
“‘A claim for unjust enrichment has three elements: a benefit conferred by a plaintiff on a
defendant; the defendant’s appreciation of the fact of the benefit; and the acceptance and
retention of the benefit by the defendant in circumstances that would render that retention
inequitable.’” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 854 (8th Cir. 2014)
(quoting Hertz Corp. v. RAKS Hospitality, Inc., 196 S.W.3d 536, 543 (Mo. Ct. App. 2006)). The

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third element is the most significant and also the most difficult to establish. Executive Bd. of Mo.
Baptist Convention v. Windermere Baptist Conference Ctr., 280 S.W.3d 678, 697 (Mo. Ct. App.
2009). To determine whether a defendant accepted or retained a benefit unjustly, a court
considers “whether any wrongful conduct by the defendant contributed to the plaintiff’s
disadvantage.” S & J, Inc. v. McLoud & Co., L.L.C., 108 S.W.3d 765, 768 (Mo. Ct. App. 2003).
The Court will assume that Plaintiff conferred a benefit on Defendants when she
volunteered at SLLIS and when she did performances at SLLIS and at the Chinese Culture Day
at the Botanical Gardens, and that Defendants accepted and appreciated that benefit. However,
even Plaintiff describes this as “volunteer” work, and it cannot be inequitable for a non-profit
organization to accept and retain work done on a volunteer basis. Moreover, even assuming,
arguendo, that Defendants told Plaintiff that she would be offered employment if she completed
the volunteer work, the evidence shows that she withdrew her own application for employment
on the final day of her volunteer work. Under these circumstances, no reasonable factfinder
could conclude that it would be unjust for Defendants to retain the benefits of her volunteer
work, Defendants are entitled to summary judgment on this claim.
For the above reasons, Defendants have established that there are no genuine issues of
material fact regarding any of Plaintiff’s claims and that they are entitled to judgment as a matter
of law on each claim. Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment (Doc. 82)
is GRANTED. An appropriate Judgment will accompany this Memorandum and Order.
/s/Shirley Padmore Mensah
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 5th day of December, 2014.

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