Bergsieker v. McDonald's Corporation et al

Filing 22

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs Motion to Remand (ECF No. 10) is GRANTED. This matter shall be remanded to the Circuit Court of the Eleventh Judicial Circuit, State of Missouri for further proceedings. An order of remand accompanies this Order. Signed by District Judge Ronnie L. White on 11/21/14. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TERRY BERGSIEKER,
Plaintiff,
v.
MCDONALD'S CORPORATION, et al.,
Defendants.

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No. 4:14-CV-1213 RLW

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs Motion to Remand (ECF No. 10). This
matter is fully briefed and ready for disposition.

LEGAL STANDARD
Removal statutes are strictly construed, and any doubts about the correctness of removal
are resolved in favor of state court jurisdiction and remand. See Shamrock Oil & Gas Corp. v.

Sheets, 313 U.S . 100, 108-09 (1941); In re Bus. Men 's Assurance Co. ofArn., 992 F.2d 181 , 183
(8th Cir. 1993); Manning v. Wal-Mart Stores East, Inc., 304 F. Supp. 2d 1146, 1148 (E.D. Mo.
2004) (citing Transit Cas. Co. v. Certain Underwriters at Lloyd's of London, 119 F.3d 619, 625
(8th Cir. 1997)). The party seeking removal and opposing remand has the burden of establishing
jurisdiction. Cent. Iowa Power Coop. v. Midwest lndep. Transmission Sys. Operator, 561 F.3d
904, 912 (8th Cir. 2009); City of Univ. City, Missouri v. AT & T Wireless Services, Inc., 229 F.
Supp. 2d 927, 929 (E.D. Mo. 2002).
A civil action brought in state court may be removed to the proper district court if the
district court has original jurisdiction of the action. 28 U.S .C. § 1441 (a). Federal district courts

have original jurisdiction in all civil actions between citizens of different states if the amount in
controversy exceeds $75 ,000.00, exclusive of interest and costs. Manning, 304 F.Supp.2d at
1148 (citing 28 U.S.C. § 1332(a)(l)).

BACKGROUND
On June 3, 2014, Terry Bergsieker ("Bergsieker") filed this action in the Circuit Court of
the Eleventh Judicial Circuit, State of Missouri, alleging a claim for violation of the Missouri
Human Rights Act ("MHRA") for hostile work environment. (Petition for Damages-Hostile
Work Environment in Violation of the Missouri Human Rights Act (hereinafter "Complaint,"
ECF No. 3). Bergsieker named McDonald' s Corporation ("McDonald's"), Anthony McVean,
and Cornelius Ruffin as defendants in her Complaint.

Bergsieker alleges that Mc Vean and

Ruffin are Missouri residents.
Defendant McDonald' s removed this action to this Court on July 7, 2014, asserting
diversity jurisdiction pursuant to 28 U.S.C. §§1332, 1446. (Notice of Removal, ECF No. 1). In
the Notice of Removal, McDonald' s maintains that this action is between citizens of different
states and the amount in controversy exceeds $75,000, exclusive of interests and costs.
McDonald' s states that that Bergsieker has alleged actual damages in excess of $25,000, punitive
damages, compensatory damages for her depression, interest, cost of suit, and attorney' s fees.
(Notice of Removal, if3).

Based upon these allegations, McDonald's also argues that the

Complaint seeks in excess of $75,000. (Notice of Removal, if4). McDonald' s suggests that
individual defendants Mc Vean and Ruffin were fraudulently joined to this suit as co-defendants
because Bergsieker failed to exhaust her administrative remedies with respect to them.
McDonald' s maintains that the citizenship of McVean and Ruffin should not be considered for
purposes of determining diversity jurisdiction.

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DISCUSSION

In the Motion to Remand, Bergsieker contends that McDonald's has not demonstrated
that the amount in controversy exceeds $75,000 or that there is complete diversity of the parties.
Because the issue of diversity is dispositive, the Court addresses only, that issue.
In the Notice of Removal, McDonald's claims that there is complete diversity because
McVean and Ruffin are fraudulently joined to this action. McDonald's maintains that Bergsieker
did not name Mc Vean and Ruffin as parties or respondents in her Charge of Discrimination with
the Missouri Commission on Human Rights ("MCHR") and, therefore, Bergsieker did not
exhaust her claims against them and they must be dismissed as parties.
Bergsieker filed her original Charge of Discrimination with the MCHR on August 28,
2012. (ECF No. 14-2). Bergsieker only named McDonald's in her Charge of Discrimination. In
the Charge particulars, Bergsieker states that she was sexually harassed by two managers. She
states that she complained to her store manager (who was McVean in 2012, but who is not
identified by name). Bergsieker does not mention Ruffin (area supervisor) by name or title in
her Charge. Bergsieker states that the last date that discrimination took place was on August 6,
2012, but marks that this is a "continuing violation."
She filed an amended Charge of Discrimination on July 21 , 2014.

In her amended

Charge of Discrimination she named McDonald's, Anthony Mc Vean, and Cornelius Ruffin.
(ECF No. 14-5). The amended Right to Sue letter was issued on July 31 , 2014, and Bergsieker
filed a new lawsuit in the Circuit Court of St. Charles County against McDonald ' s, Mc Vean, and
Ruffin. (ECF No. 14-6). That lawsuit has also been removed to this Court. See Bergsieker v.
McDonald's, 4:14cv1419 (E.D. Mo.).

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In her Complaint, Plaintiff alleges that McVean, as Plaintiff's supervisor and store
manager, and Ruffin, as McDonald's area supervisor, "did in fact participate and/or cause or
contribute to cause the illegal discrimination described herein." (Complaint, ilil3-4).
In support of her Motion to Remand, Bergsieker asserts that Mc Vean and Ruffin were not
fraudulently joined. She states that Mc Vean and Ruffin are personally liable because they failed
to respond to her requests for remedial action. (ECF No. 21 at 9). She claims that McVean and
Ruffin's interests are aligned with McDonald' s. (ECF No. 21 at 10). Further, Bergsieker argues
that Mc Vean and Ruffin were involved (or should have been involved) in the MCHR
proceedings such that they have not been prejudiced. (ECF No. 21 at 11). In fact, Bergsieker
notes that Mc Vean offered his apology during the conciliation process. (ECF No. 21 at 11 ). In
the alternative, Bergsieker argues that her cause of action is still "colorable" under state law
because received a Right to Sue letter on or around August 3, 2014 in response to her amended
Charge of Discrimination letter that cured her alleged failure to exhaust her administrative
remedies. (ECF No. 21 at 6).
In response, McDonald' s claims that Bergsieker was required to name Mc Vean and
Ruffin as respondents in the Charge of Discrimination in order for them to be named as
defendants in this litigation. (ECF No. 14 at 8-9 (citing Hill v. Ford Motor Co., 277 S.W. 3d
659, 669 (Mo. 2009)). McDonald' s claims that Bergsieker' s failure to name McVean and Ruffin
provided them with no notice that they were being accused individually of discrimination and
that they were actually prejudiced by not being able to respond to the Charge of Discrimination
and could not participate in the conciliation process. (ECF No. 14 at 8-9). Finally, McDonald ' s
claims that the amended Charge of Discrimination does not cure Bergsieker' s failure to exhaust
her claims.

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"Fraudulent joinder does not exist where 'there is arguably a reasonable basis for
predicting that the state law might impose liability based upon the facts involved."' Block v.
Toyota Motor Corp. , 665 F.3d 944, 948 (8th Cir. 2011) (quoting Junk v. Terminix Int'! Co., 628

F.3d 439, 446 (8th Cir. 2010)). "[I]n situations where the sufficiency of the complaint against the
non-diverse defendant is questionable, 'the better practice is for the federal court not to decide
the doubtful question in connection with a motion to remand but simply to remand the case and
leave the question for the state courts to decide."' Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 811
(8th Cir.2003) (quoting Iowa Pub. Serv. Co. v. Med. Bow Coal Co., 556 F.2d 400, 406 (8th Cir.
1977)).
As noted in Bock v. Liberty Rest. Grp. , L.P. , 4: 13CV0781 AGF, 2013 WL 4504375 (E.D.
Mo. Aug. 23 , 2013), under Missouri law, "' [t]he MHRA permits suit to be brought against
supervisory employees .. . not just against the company itself, and the failure to make [a
supervisory employee] a party at the administrative action before the .. . MHRC will bar suit
against [a supervisory employee] only if it resulted in prejudice." Id. , at *2 (quoting Hill, 277
S.W.3d at 662). McDonald' s encourages the Court to utilize the Hill Court' s four factor test to
determine if the failure of a plaintiff to name a defendant in the administrative charge is fatal to a
later judicial claim against that defendant:
1) whether the role of the unnamed party could through reasonable effort by the
complainant be ascertained at the time of the filing of the EEOC complaint; 2)
whether, under the circumstances, the interests of a named are so similar as the
unnamed party's that for the purpose of obtaining voluntary conciliation and
compliance it would be unnecessary to include the unnamed party in the EEOC
proceedings; 3) whether its absence from the EEOC proceedings resulted in actual
prejudice to the interests of the unnamed party; 4) whether the unnamed party has
in some way represented to the complainant that its relationship with the
complainant is to be through the named party.

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Hill, 277 S.W.3d at 669-70 (citing Gius v. G.C. Murphy Co., 562 F.2d 880, 888 (3rd Cir. 1977)).
McDonald's urges this Court to apply this four factor test and analyze whether there is a
"substantial identity of interest" between the parties sued and those actually named in the
administrative charge in order to determine whether joinder was proper. (ECF No. 14 at 10); see

Borders v. Trinity Marine Prods., Inc., No. l:lOCV 146 HEA, 2010 WL 5139343, *2-3 (E.D.
Mo. Dec. 9, 2010) (finding no identity of interest and denying remand based upon a finding of
fraudulent joinder). However, several courts in this district have declined to adopt the fourfactor "substantial identity of interest" test because "the Eighth Circuit in Filla mandated that the
Court's inquiry is limited only to determining whether there is arguably a reasonable basis for
predicting that the state law might impose liability based upon the facts involved, not to
definitively settle the ambiguous question of state law." Jones v. Valspar Corp., 4:1 l-CV00379-NKL, 2011WL3358141, at *3 (W.D. Mo. Aug. 3, 2011).
Applying the Eighth Circuit's charge in Filla, the Court holds that "there is arguably a
reasonable basis for predicting that the state law might impose liability" on Mc Vean in this case.

Bock, 2013 WL 4504375, at *3 (citing Block, 665 F.3d at 948). The Court finds that McVean,
the store manager, was identified in the Charge of Discrimination as someone to whom
Bergsieker complained but who failed to take any action. (ECF No. 14-2). The Court holds that
this evidence provides an arguably reasonable basis for predicting that the state courts would find
that Bergsieker sufficiently exhausted her claims against McVean. See Hill, 277 S.W.3d at 670
(emphasis in original)(quoting Gius, 562 F.2d at 888)("equally important is the availability of
complete redress of legitimate grievances without undue encumbrance by procedural
requirements especially when demanding full and technical compliance would have no relation

to the purposes for requiring those procedures in the first instance."); Jones, 2011 WL 3358141,

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at *3 (quoting Cobb v. Stringer, 850 F.2d 356, 359 (8th Cir. 1988)("'[b]ecause persons filing
charges with the [administrative agencies] typically lack legal training, those charges must be
interpreted with the utmost liberality in order not to frustrate the remedial purposes of [the
statute]."'). Thus, the Court follows the clear precedent in this district that the issue of whether
Bergsieker' s claim against Mc Vean and Ruffin can proceed is better left for review by the state
court. See Bock, 2013 WL 4504375, at *3; Junk, 628 F.3d at 446; Filla, 336 F.3d at 811.
Fernandez v. GMRL Inc., 4:11CV00244 AGF, 2011 WL 6884797, at *3 (E.D. Mo. Dec. 29,

2011); Jameson v. Gough, 4:09CV2021RWS, 2010 WL 716107, at *4 (E.D. Mo. Feb. 24, 2010).
Because complete diversity does not exist between the parties, the Court remands this action to
the Circuit Court of the Eleventh Judicial Circuit, State of Missouri.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs Motion to Remand (ECF No. 10) is
GRANTED. This matter shall be remanded to the Circuit Court of the Eleventh Judicial Circuit,

State of Missouri for further proceedings. An order of remand accompanies this Order.
Dated this 21st day of November, 2014.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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