Moore v. Helget Gas Products, Inc. et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that defendants motion for partial summary judgment [Doc. #15] is granted. A judgment in accordance with this memorandum and order will be entered at the conclusion of the case. Signed by District Judge Carol E. Jackson on 4/6/2015. (KMS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
HERBERT L. MOORE,
HELGET GAS PRODUCTS, INC.,
No. 4:14-CV-1292 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court on defendants’ motion for partial summary
Plaintiff has filed a response in opposition and the issues are fully
Plaintiff Herbert L. Moore brings this action under the Missouri Human Rights
Act (MHRA), Mo.Rev.Stat. §§ 213.110 et seq. (Count I) and the Missouri’s Workers’
Compensation Act (WCA), § 287.780 (Count II), claiming that he was discharged
from his employment because of his race and color and in retaliation for filing a
workers’ compensation claim. The defendants are his former employer Helget Gas
Products, Inc. and managers Steve Blassingame and Jack Mertens.
Plaintiff began working for Helget as a customer service route driver on
March 27, 2013. In July 2013, he sustained a work-related injury to his back. In
In support of its motion for partial summary judgment, defendant has submitted a
copy of the administrative agency’s file. Exhibit A. Plaintiff objects Exhibit A on
grounds of hearsay and lack of authentication. [Doc. #29 at p. 3, ¶ 8]. Elsewhere,
plaintiff cites Exhibit A in support of his opposition. [Id. at p. 10, ¶¶ 14-20].
Plaintiff cannot simultaneously rely on and object to documents in the agency file.
October 2013, plaintiff injured his finger at work. He filed worker’s compensation
claims after each injury.
Plaintiff alleges that in September or October 2013, heard defendant Mertens
use the “N word” and make a derogatory comment about African-American
employees in a conversation with defendant Blassingame.
Plaintiff states that he
complained to Blassingame who refused to do anything and told plaintiff to “leave it
alone.” [Doc. #1 at ¶21].
Plaintiff was terminated on December 4, 2013.
On December 6, 2013, plaintiff filled out an intake questionnaire provided by
the Equal Employment Opportunity Commission (EEOC).
On January 14, 2014, the
EEOC notified Helget that a charge of discrimination had been filed against it, but
that it was not required to take action at that time.
The notice stated that
“[a]perfected charge (EEOC Form 5)” would be mailed to Helget once it was
received from plaintiff. [Doc. # 16-1, p. 13].
On February 4, 2014, EEOC investigator Damian Rodriguez conducted a
phone interview with plaintiff.
Id. at 46-49. Mr. Rodriguez’s notes state that
plaintiff wanted to withdraw the charge2 and, following the interview, Mr. Rodriguez
mailed plaintiff a form titled “Request for Withdrawal of Charge of Discrimination.”
Id. at 50-51. In the accompanying cover letter, he informed plaintiff that it was
illegal for anyone to coerce or force someone into withdrawing a charge of
discrimination, and asked him to complete and return the form if he still wished to
withdraw his charge.
On February 5, 2014, plaintiff completed the form, stating
that he wished to withdraw the charge because:
Mr. Rodriguez also counseled plaintiff that, in order to protect his rights under the
state law, he was required to file a charge of discrimination within 180 days of the
Based on he say she say, not enough evidence based on information
that was stated by Herbert L. Moore, so therefor, upon this letter and
discussion that Herbert Moore had with Damian Rodriguez on Tuesday,
Feb. 4, 2014, I as of this date and day Feb. 5, 2014, Wednesday . . .
withdraw my complaint against Helget Gas Products.
Id. at 11. Plaintiff’s request to withdraw was approved on February 10, 2014. Id.
On February 13, 2014, the EEOC notified plaintiff and Helget that the charge had
Id. at 9-10. On March 4, 2014, the Missouri Commission on
Human Rights (MCHR) issued plaintiff a notice of right to sue.
Plaintiff initiated this action on May 30, 2014.
Defendant Helget removed the action to this court, invoking jurisdiction
based on diversity of citizenship.
28 U.S.C. § 1332.
In its notice of removal,
Helget asserted that Mertens and Blassingame had been fraudulently joined.
Plaintiff filed a motion to remand which, after full briefing by the parties, was
denied. [Doc. # 25].
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary
judgment shall be entered if the moving party shows “that there is no genuine
dispute as to any material fact and the movant is entitled to a judgment as a
matter of law.” In ruling on a motion for summary judgment the court is required to
view the facts in the light most favorable to the non-moving party and must give
that party the benefit of all reasonable inferences to be drawn from the underlying
facts. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving
party bears the burden of showing both the absence of a genuine issue of material
fact and its entitlement to judgment as a matter of law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242 (1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986). Once the moving party has met its burden, the nonmoving party may not rest on the allegations of his pleadings but must set forth
specific facts, by affidavit or other evidence, showing that a genuine issue of
material fact exists. United of Omaha Life Ins. Co. v. Honea, 458 F.3d 788, 791
(8th Cir. 2006) (quoting Fed. R. Civ. P. 56(e)). Rule 56 “mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden
of proof at trial.” Celotex Corporation v. Catrett, 477 U.S. 317, 322 (1986).
Defendants Mertens and Blassingame
In denying the motion to remand, the court agreed that Mertens and
Blassingame had been fraudulently joined.
The court found that plaintiff’s MHRA
claims against the individual defendants failed because he did not name them in his
charge of discrimination as required by the MHRA. [Doc. # 25, pp. 3-6]. Plaintiff
does not challenge that determination.
Therefore, summary judgment will be
granted in favor of these defendants on plaintiff’s MHRA claim.
The court also found that Mertens and Blassingame were not employers
within the meaning of the WCA, citing Wyman v. Missouri Dep’t of Mental Health,
376 S.W.3d 16, 25 (Mo. Ct. App. 2012) (fellow employee cannot be an “employer”
under the Act, because a “co-employee would not fall within this statutory definition
of an employer as a person . . . using the service of another for pay and hav[ing]
five or more employees”). Plaintiff acknowledges the holding in Wyman, but asserts
that “‘an Erie-educated guess’ would indicate that the Missouri Supreme Court
would include supervisor liability based upon the expansive definition of ‘employer’
in the Missouri Workers Compensation Act.” In support of this argument, plaintiff
points to the WCA definition of “employer” as “[e]very person . . . using the service
of another for pay.” Mo.Rev.Stat. § 287.030.1.
Under plaintiff’s reading of this
definition, Mertens and Blassingame were his employer.
Plaintiff’s argument rests
on an unreasonable interpretation of the statute. Plaintiff was paid by Helget, not
by Mertens and Blassingame, and Helget was his employer for the purposes of the
WCA. Accordingly, defendants Mertens and Blassingame are entitled to summary
judgment on plaintiff’s WCA claim.
Defendant Helget argues that plaintiff’s MHRA claim fails as a matter of law
because he did not file a proper charge of discrimination with the EEOC or MCHR.
The Missouri Human Rights Act requires an aggrieved party to file a verified
Mo.Rev.Stat. § 213.075.1 provides:
Any person claiming to be aggrieved by an unlawful discriminatory
practice may make, sign and file with the [MCHR] a verified
complaint in writing, within one hundred eighty days of the alleged
act of discrimination, which shall state the name and address of the
person alleged to have committed the unlawful discriminatory practice
and which shall set forth the particulars thereof and such other
information as may be required by the [MCHR].
See also Mo. Code Regs. Ann. tit. 8, § 60-2.025 (“Every
complaint shall be in writing, signed and verified by being sworn to before a notary
public . . . or by being supported by an affirmation or declaration in writing under
penalty of perjury.”)
Plaintiff here submitted an unverified intake questionnaire,
which is not sufficient to meet the requirement of a verified charge. See Hill v. St.
Louis Univ., 920 F. Supp 124, 127 (E.D. Mo. 1996).
Plaintiff argues that his failure to file a verified charge does not prevent him
from maintaining this action against Helget. He relies on Farrow v. St. Francis Med.
Ctr., 407 S.W.3d 579 (Mo. 2013) (en banc), to support his argument. In Farrow,
the Missouri Supreme Court rejected an argument that a plaintiff’s failure to file a
charge of discrimination within the 180-day time limit imposed by § 213.075.1
created a jurisdictional barrier to a subsequent court action. Id. at 591. The court
noted that the statutory prerequisites to filing suit were that: (1) an employee file a
charge with the MCHR prior to filing a state court action; (2) the MCHR issue a right
to sue letter; and (3) the state court action be filed within ninety days of the
issuance of the right to sue letter but no later than two years after the alleged
cause occurred or its reasonable discovery by the alleged injured party. Id. (citing §
213.1113). The statute did not specify that the complaint to the MCHR had to be
timely in order for a right-to-sue letter to issue and the court declined to read that
requirement into the statute.
The Farrow court also stated:
Section 213.111 states:
If, after one hundred eighty days from the filing of a complaint . . .,
the commission has not completed its administrative processing and
the person aggrieved so requests in writing, the commission shall
issue to the person claiming to be aggrieved a letter indicating his or
her right to bring a civil action within ninety days of such notice
against the respondent named in the complaint. . . . Any action
brought in court under this section shall be filed within ninety days
from the date of the commission’s notification letter to the individual
but no later than two years after the alleged cause occurred or its
reasonable discovery by the alleged injured party.
[T]he Commission was required to determine its own jurisdiction even
if it did not make a decision on the merits of Farrow’s claim. Had the
Commission determined Farrow’s claim was untimely, it would lack the
authority to issue the right to sue letter. The Commission’s only option
would be to close the complaint for lack of jurisdiction or the absence
of any remedy. The Commission did not close or dismiss Farrow’s
complaint for want of jurisdiction; rather, it exercised its authority to
issue the right to sue letter, thus implicitly finding Farrow’s claim was
Id. at 589.
Plaintiff relies on this language in Farrow to argue that his claim can proceed,
even though he did not file a verified charge of discrimination, because the MCHR
issued a right-to-sue notice to him. Plaintiff’s reliance is misplaced. Defendant is
not claiming that the MCHR or this court lacks jurisdiction to hear plaintiff’s claim.
Rather, it asserts that plaintiff failed to satisfy a statutory prerequisite to filing suit.
Pursuant to Farrow and § 213.111, an employee must file an administrative charge
as a prerequisite to filing suit. Id. at 591;see also Alhalabi v. Missouri Dep’t of
Natural Res., 300 S.W.3d 518, 524 (Mo. Ct. App. 2009) (“Before initiating a civil
action under the MHRA, a claimant must exhaust administrative remedies by timely
filing an administrative complaint and either adjudicating the claim through the
MCHR or obtaining a right-to-sue letter.”)
Plaintiff argues that § 213.111 requires only that a complainant file a
“charge,” and that there is no statutory requirement for a “verified” charge.
However, plaintiff never filed a charge of any kind. Plaintiff argues that the intake
questionnaire satisfies the requirement of a “charge.” Assuming for the sake of
argument that plaintiff is correct, he still cannot prevail because he withdrew that
“charge.” As a consequence, Helget was denied the opportunity to engage in
conciliation, one of the principal reasons for the administrative process. See
Waldermeyer v. ITT Consumer Financial Corp., 767 F. Supp. 989, 993 (E.D. Mo.
1997) (purpose of administrative proceedings is to notify the charged party of the
alleged violation and to secure voluntary compliance with the law).
concludes that Helget is entitled to judgment as a matter of law with respect to on
Count I of the complaint.
For the reasons discussed above,
IT IS HEREBY ORDERED that defendants’ motion for partial summary
judgment [Doc. #15] is granted.
A judgment in accordance with this memorandum and order will be entered
at the conclusion of the case.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 6th day of April, 2015.
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