Mounsey v. St. Louis Irish Arts, Inc., et al.
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' motion for summary judgment is GRANTED. (Doc. No. 38 .) All claims against all parties having been resolved, a separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on August 3, 2016. (BRP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
ST. LOUIS IRISH ARTS INC., et al.,
Case No. 4:14-CV-01633-AGF
MEMORANDUM AND ORDER
This matter is before the Court on the motion of Defendants St. Louis Irish Arts,
Inc. (“SLIA”) and its president, Helen Gannon, for summary judgment. Plaintiff James
Mounsey, a white male, alleges that Defendants discriminated against him because his
romantic partner was a black male, and retaliated against him for complaining of
discrimination. Plaintiff, who is proceeding pro se,1 asserts discrimination and retaliation
claims under 42 U.S.C. § 1981 and the Missouri Human Rights Act (“MHRA”), Mo.
Rev. Stat. §§ 213.010-213.137. For the reasons set forth below, the Court will grant
Defendants’ motion for summary judgment.
Viewing the facts and all reasonable inferences in the light most favorable to
Plaintiff was initially represented by counsel, but on October 14, 2015, the Court
granted Plaintiff’s counsel’s unopposed motion to withdraw, and at Plaintiff’s request,
stayed this case for 30 days to allow Plaintiff time to retain new counsel. Plaintiff did not
retain new counsel within that time frame and has since proceeded pro se.
Plaintiff, for purposes of this summary judgment motion, the record establishes the
following. SLIA is the local branch of the Comhaltas Ceoltoiri Eireann (“CCE”), an
organization seeking to preserve and promote traditional Irish music, dance, and culture.
Gannon, a white female, is the president of SLIA and owner of St. Louis Irish Arts
School (the “School”), an Irish dance school operated by SLIA. Gannon runs the School
with help from a group of unpaid volunteers.
In the spring of 2012, Defendants agreed to sponsor Plaintiff on an H-1B worker
visa to teach at the School. Plaintiff was already in the United States, working as a
lecturer at the University of Missouri-St. Louis (“UMSL”), under a J-1 visa that was due
to expire soon. Under the H-1B visa sponsored by SLIA, Plaintiff could continue to
lecture at UMSL and other institutions as a representative of SLIA, while also teaching at
the School. SLIA, by its attorneys, submitted Plaintiff’s visa application in May 2012.
Plaintiff asserts in his unverified complaint that SLIA required him to work far
greater hours than those represented in his visa application and that he was not paid for
the additional hours worked, and for that reason, Plaintiff filed a wage-and-hour
complaint with the Department of Labor (the “DOL”). It is unclear from the record when
the DOL complaint was filed, but the DOL completed its investigation on or about June
27, 2014, and found that SLIA owed Plaintiff back wages in the amount of $9,464.25, for
the period covering April 7, 2012, to February 22, 2014.
The parties dispute how many employees SLIA employed while Plaintiff worked
there (from 2012 to 2013). On May 15, 2012, Gannon signed, under penalty of perjury
and as part of her visa application for Plaintiff, a petition indicating that SLIA had six
current employees in the United States. However, in an affidavit in this case, Gannon
states that SLIA paid only five teachers, including Plaintiff, at any given time in 2012 and
2013. Gannon also states in her affidavit that SLIA’s teachers were independent
contractors rather than employees. In support of this statement, Gannon asserts that,
when the DOL investigated Plaintiff’s wage-and-hour complaint, the DOL concluded that
all of SLIA’s teachers except Plaintiff were independent contractors rather than
In June 2012, Gannon learned that Plaintiff was in a romantic relationship with
Napoleon Owens, a black male unaffiliated with SLIA. Plaintiff emailed Gannon on
June 23, 2012, asking Gannon to keep her knowledge of Plaintiff’s relationship with
Owens private and thanked Gannon for her discretion.
On July 3, 2012, Gannon sent an email to Plaintiff stating that she was “upset” that
Plaintiff brought Owens to a rehearsal for a concert that had taken place the night before.
Gannon stated that Owens “had no business being there” and that Gannon had “never
accepted teachers bringing their date to work.” (Doc. No. 39-4 at 11.) Gannon further
stated that the director of the concert hall had asked her if the “black kid” (referring to
Owens) sitting in the lobby was part of her group. Gannon asked that Plaintiff keep his
“personal life outside [her] school” and stated:
Defendants insist that Plaintiff is an independent contractor, too, but state that for
purposes of this motion, they accept the DOL’s finding that Plaintiff was an employee.
Your relationship with Napoleon is causing a distraction in your work and
in the school. I am having second thoughts on your future involvement
with the school for many reasons. This is a new situation for me. I have a
lot of home schooled families who are very conservative and may want to
explain sexually [sic] when they are ready and not because they see or hear
something around the school.
You have made some grave decisions very very quickly which will affect
every aspect of your life. Flaunting them and forcing us to accept them will
have consequences out of your control. We love you dearly like a son and
that gives me the liberty of telling you how I feel.
Over the next few months, SLIA finished the visa process on Plaintiff’s behalf,
and Plaintiff’s H-1B visa was issued on September 28, 2012, with an expiration date of
September 30, 2015. (Doc. No. 45-1.)
On March 21, 2013, Plaintiff sent an email to Gannon complaining of two
incidents that occurred in his Irish dance class. The first was that before class, he heard
one student “sniggering to [her friend] about a black kid who was walking down the
street outside SLIA,” and the second was that, during class, another student shouted
“Napoleon!” as an example for the letter “N” while practicing the Irish alphabet. (Doc.
No. 39-3 at 18.) Gannon responded: “This is so sad. I had hoped your private life would
remain private. I am not sure how to deal with it but I will find a way. Napolean [sic]
has become familiar to the school which I wanted to avoid and take it slowly. We will
work it out but I am grateful you told me about it.” Id. at 17-18. In a further email
exchange the same day, Gannon asked that Plaintiff let her deal with the students and
agreed that what went on in the class was “totally unacceptable.” Id. at 17. Plaintiff
responded the next day, thanking Gannon for “all the support and acceptance” and
agreeing to let Gannon know about and handle any similar behavior in the future. Id.
On April 2, 2013, Plaintiff sent an email to Gannon describing another incident
with his students. Plaintiff stated that he reprimanded the students’ use of cell phones
during class, which he found disruptive and rude. Plaintiff yelled at the students and
ultimately confiscated the students’ cell phones. Gannon responded that, although she
agreed Plaintiff must be respected as a teacher, one of the students was very upset about
the incident and Plaintiff should have come to Gannon sooner with the issue. Gannon
stated that she did “not understand why [Plaintiff] chose to handle whatever happened
without consulting [Gannon]” and that the incident “reflect[ed] very badly on the
school.” (Doc. No. 39-3 at 19.)
On September 15, 2013, Plaintiff sent Gannon a letter addressed to the SLIA
board regarding Plaintiff’s role with the School during the upcoming fall semester. In the
letter, Plaintiff stated that he wanted to update the board on the changes in his
“circumstances and working capacity” for the fall semester, and specifically that his
“situation personally, professionally, medically and financially [had] all changed
dramatically.” (Doc. No. 39-4 at 6.) Plaintiff stated that his “family in Ireland [had]
undergone huge personal difficulties” in the past year; that he “had to put [his] PhD on
hold as [he was] unable to deal with all of the stresses that full time study demands along
with the other difficulties faced”; that his salary at UMSL remained at $6,000 a year, on
which he could not live, and did not include health benefits; that he felt that his “working
role at SLIA went above and beyond the role of ‘teacher,’” and he could no longer assist
with things like “websites, paperwork, presentations, grant applications, publications”;
and that he could not return to teaching the group dance classes, which he described as a
“negative classroom environment,” because the “level of resentment, undermining and
lack of support in dealing with discipline and personal issues ha[d] made it far too
upsetting for [him].” Id. With regard to the group dance classes, he stated:
I feel it unfair to be corrected and demeaned in front of these wonderful
students. My personal life is to remain outside the classroom and the
school. I will not have my personal life commented on or viewed as a
“negative” impact on the school. I have a right as an employee, a person
and an individual to not be judged on my sexual orientation.
Id. He ended the letter by stating that he wished to continue to teach Irish language,
private dance lessons, and harp ensemble if the SLIA board desired. Id.
On September 26, 2013, Gannon offered Plaintiff the opportunity to teach an Irish
language class at SLIA for the fall 2013 semester, which would allow Plaintiff to
continue working for SLIA and to maintain his visa. Gannon stated that the class would
be held on Mondays at 7 p.m. and that Plaintiff would be paid $50 per class night. But
Gannon stated that if the attendance numbers dropped “too low,” SLIA may need to
reevaluate whether to continue the language class. (Doc. No. 39-3 at 21.) Gannon asked
Plaintiff to keep her informed of cancellations and to keep attendance each night. Id.
In early October 2013, Plaintiff took a set of Irish drums from the School without
permission for use at a kindergarten class he taught at another facility. Plaintiff returned
most, if not all, of the drums approximately one month later, upon Gannon’s request; the
parties dispute whether one of the drums was missing.
On October 24, 2013, Joel Glassman, Director of UMSL’s International Studies
and Programs, emailed Gannon to ask whether Plaintiff still worked for SLIA because he
had heard “indirectly” that Plaintiff did not, which would mean that Plaintiff was no
longer permitted to work for UMSL. Gannon responded that, while Plaintiff was not
teaching the Irish dance class, he was teaching other programs at SLIA, including an Irish
language class. Glassman replied to this email on October 28, 2013, thanking Gannon
for her update and stating that he met with Plaintiff a few days prior, at Plaintiff’s
request, and had received an update from Plaintiff as well. Gannon emailed Plaintiff the
same day asking him to communicate with her and inquiring about what he told
Glassman about his relationship with SLIA. According to Defendants, Plaintiff never
informed them what he told Glassman about his relationship with SLIA or how he
portrayed SLIA to the institutions at which he taught as a SLIA representative.
Defendants assert that Plaintiff canceled several of the six scheduled Irish
language classes he was supposed to teach in the fall 2013 semester, and that he canceled
at least one class without notice to Gannon or the students. In support of this allegation,
Gannon provides her affidavit, stating that Plaintiff never gave her any information on the
Irish language classes he held or canceled, and that Plaintiff never provided a list of
enrolled students. Defendants also cite an email Gannon sent to Plaintiff on October 28,
2013, asking Plaintiff to inform Gannon ahead of time of class cancellations because a
student named Jennifer did not know the last week’s class was canceled and had waited
in a hallway for 30 minutes for class to start. (Doc. No. 39-4 at 15.) Plaintiff generally
denies these allegations and cites two emails in support of his denial. The first is an
email he sent to Gannon and a student named Randy on November 11, 2013, stating that
there would not be any language class that night on account of a holiday. The second is
an email he sent to Gannon the next day, November 12, 2013, stating that he did not
inform the whole class of the November 11 cancellation because he believed the other
students were not able to attend that class in any event. In this email, Plaintiff also
provided Gannon a list of the four students enrolled in the Irish language class. (Doc.
On December 2, 2013, SLIA asked Plaintiff to sign a Memorandum of
Understanding, which Defendants assert was necessary because of Plaintiff’s ongoing
lack of communication with them. This Memorandum stated that it would “clarify and
detail” Plaintiff’s relation and obligations to SLIA. The Memorandum stated that SLIA
would continue to support Plaintiff’s employment and visa sponsorship until May 31,
2014, in return for Plaintiff agreeing to the following stipulations:
1) you will fulfill your obligations with [UMSL and two other institutions
at which Plaintiff taught through his affiliation with SLIA];
2) as the holder of a visa sponsored by SLIA, you agree to represent SLIA,
CCE, their leadership and board members, in the best possible terms at
3) you will not discuss this agreement or any aspect of your relationship
with SLIA, its president, or any of its board members with anyone,
either in the US, Ireland, or elsewhere;
4) you will not post or write anything which may appear in any form of
printed or social media or the internet either as a result of direct action
by you or as a result of an action by a third party, whether on your
behalf of not.
(Doc. No. 39-4 at 25.) The Memorandum stated that Plaintiff’s failure to comply with
any of the foregoing would result in the immediate termination of this agreement and of
SLIA’s commitment to sponsor Plaintiff’s visa. Id. Plaintiff did not sign the
On December 6, 2013, Plaintiff filed a charge of discrimination with the Missouri
Commission on Human Rights (“MCHR”) and the Equal Employment Opportunity
Commission (“EEOC”), alleging discrimination based on race by association and sex.3
Plaintiff also alleged retaliation based on his September 15, 2013 letter to Defendants,
which he described as a complaint about the “hostile work environment created by the
response to [him] dating a black man.” (Doc. No. 39-3 at 16.)
On December 15, 2013, Gannon emailed another teacher at the School, Shannon
Flecke, and copied the attorney who is representing Defendants in this lawsuit. In the
email, Gannon informed Flecke that she was “free to send any emails directly to [the
lawyer] to help us clear up this Mess.” (Doc. No. 39-4 at 39.) It is unclear from the
record what “Mess” Gannon was referencing, and Gannon does not address or provide
context for this email in her affidavit. Flecke responded the next day, copying the
lawyer, and stating that Plaintiff used “offensive racial slurs” and had engaged in
Plaintiff has not asserted a claim of discrimination on the basis of sex in this
inappropriate communications on social media with a female former SLIA student, who
was a teenager at the time. Flecke also attached screenshots of the social media messages
between Plaintiff and the former student. Id. In the social media messages,4 Plaintiff
stated that he was “picking up the black talk” and stated “yeaa nigger ‘ooh noo yu
diddennn,” to which the student replied “um no,” and later, “haha.” Id. at 40-41. In
response to the student’s comments that one of her teachers favored her, Plaintiff stated
“no wonder you got good grades!!! Lol one word …… SLUT” and added a smiley face.
The student responded “haha hey now! I mean he is gay so it won’t do me much now.
lol.” Id. at 42.
On December 17, 2013, Defendants sent a letter to UMSL and two other
institutions at which Plaintiff taught through SLIA, stating that SLIA was no longer
affiliated with Plaintiff and would revoke its sponsorship of his visa.
On February 20, 2014, Defendants notified Plaintiff by letter that they were
terminating their relationship with him and revoking his visa sponsorship. Defendants
assert that they delayed this formal termination for a couple of months because Plaintiff’s
wage-and-hour complaint with the DOL was still pending at the time.
In their termination letter, signed by Gannon, Defendants stated, in relevant part:
As you know, we repeatedly attempted to communicate with you about
your duties for [SLIA] for the Fall 2013 and Spring 2014 semesters. You
failed to communicate your intentions with respect to your involvement
with the organization. You also failed to deliver the class registration list
These messages appear to be dated in the year 2013, but the screenshot is not clear
enough for the Court to identify the month or date.
for the Fall Irish Language class as requested and failed to provide the
requested documentation showing which students attended the class on
Finally, you failed to sign the Memorandum of
Understanding about your behavior and conduct while acting on behalf of
SLIA. We therefore consider you to have abandoned your relationship with
SLIA effective December 2013. Despite our efforts to contact you, we
heard nothing further from you, so we took no steps to schedule you for any
activities or classes for the Spring 2014 semester.
Furthermore, since our last direct communications, the Board of Directors
has been informed that you have had inappropriate communications with
students and former students, both verbally on school premises and via
Facebook. We have completed our investigation of those incidents in
sufficient detail to allow us to conclude that, given SLIA’s trusted role in
the lives of its students, we simply cannot allow the potential for our
students to be exposed to such conduct by anyone associated with the
organization. Therefore, [SLIA] will have no relationship with you for any
future programs or associate with you in any manner in the future. In light
of your job abandonment, however, this development would seem to be of
no consequence as you have no ongoing relationship with SLIA.
Please be advised that SLIA is in the process of notifying the appropriate
government officials that it no longer wishes to sponsor your H1-B Visa
due to your decision to discontinue your job duties.
(Doc. No. 39-4 at 8.)
Plaintiff received a right-to-sue letter on June 6, 2014, and filed this lawsuit in
state court on August 8, 2014. Plaintiff alleges race discrimination and retaliation claims
under § 1981 and the MHRA. In his complaint, Plaintiff alleges that his romantic
association with a black man and his complaint of discrimination, both in his September
15, 2013 letter and in his charge of discrimination, were motivating factors in the
following adverse actions: SLIA’s failing to pay him full wages, asking him to sign the
Memorandum of Understanding, and ultimately terminating him and revoking his visa
sponsorship. Defendants removed the case to this Court on September 19, 2014.
ARGUMENTS OF THE PARTIES
In their motion for summary judgment, Defendants argue, first, that SLIA is not an
“employer” under the MHRA because it employs fewer than six employees, and as such,
Plaintiff’s MHRA discrimination and retaliation claims fail as a matter of law. Next,
Defendants argue that all of Plaintiff’s claims fail on the merits because Plaintiff has
provided neither direct evidence of intentional discrimination nor evidence creating a
reasonable inference of discrimination.
Defendants argue that, with respect to the first alleged adverse action, paying
Plaintiff less than full wages, Plaintiff’s compensation structure was set up before
Defendants were aware of Plaintiff’s relationship with Owens, so the compensation terms
could not have been motivated by discriminatory animus.
Likewise, Defendants argue that the record lacks direct or indirect evidence that
Plaintiff’s partner’s race motivated the remaining adverse actions—Defendants’ decisions
to present Plaintiff with the Memorandum of Understanding and to later terminate
Plaintiff and revoke his visa sponsorship. Defendants argue that these decisions were
motivated by legitimate reasons unrelated to Plaintiff’s partner’s race, namely: Plaintiff
voluntarily limited his job duties and refused to accept assignments; had difficulty
interacting with SLIA students; improperly handled student disciplinary incidents;
canceled several dates of the single class he agreed to teach during the fall of 2013;
would not communicate with SLIA regarding representations made to outside entities
regarding SLIA; took property from SLIA without permission; and participated in
inappropriate communications with a former SLIA student on social media, which
Defendants assert violated child protection policies by which SLIA was bound as a
member of CCE.
Further, Defendants argue that Plaintiff cannot prove the elements of his
retaliation claims. Defendants argue that the only statutorily protected activity Plaintiff
engaged in was his December 6, 2013 charge of discrimination. Defendants dispute
Plaintiff’s assertion that his September 15, 2013 letter to Defendants qualified as a
protected activity because the letter contains no reference to Plaintiff’s partner’s race.
Defendants argue that Plaintiff cannot show any causal connection between his
protected activity—his charge of discrimination—and the alleged adverse employment
actions of failing to pay Plaintiff his full wages, presenting Plaintiff with the
Memorandum of Understanding, and ultimately terminating Plaintiff and revoking his
visa sponsorship. Defendants note that they set up Plaintiff’s compensation structure and
presented him with the Memorandum of Understanding before Plaintiff filed his charge
of discrimination, thus precluding any causal connection between these actions and the
charge. Defendants further argue that they warned Plaintiff in the Memorandum of
Understanding itself that they would terminate him and revoke his visa sponsorship if he
failed to agree and comply with the Memorandum, which demonstrates that the
(conditional) decision to carry out these actions, too, was made before Plaintiff filed his
charge of discrimination.
Finally, Defendants argue that even if Plaintiff’s September 15, 2013 letter
constituted protected activity, Defendants’ later actions were not causally connected to
any complaint of discrimination contained in the letter but instead flowed from Plaintiff’s
history of problematic behavior and lack of communication as discussed above.
Plaintiff has not submitted a brief in response to Defendants’ motion, but instead
relies on a response to Defendants’ statement of facts, a statement of additional facts, and
documentary exhibits which are largely duplicative of the exhibits submitted by
In his response to Defendants’ statement of facts and in his own statement of
additional facts, both of which are unsworn and unattested, Plaintiff asserts that, apart
from the emails between Gannon and him discussed above, Gannon also “blackmailed,
harassed and demeaned plaintiff due to the race of his partner; utilized Plaintiff’s
“association with Owens and [Owens’s] race as a factor in [an] explanation given” for
refusing to provide Plaintiff with proof of employment; and, on various occasions,
referred to particular students as a “little bit of color” and made derogatory statements
about black taxi drivers and medical professionals. (Doc. No. 41 at 6, 10, 11.) Plaintiff
does not cite any evidence in support of these assertions.
Plaintiff further contends that he was at various times “reprimanded due to the
race of his partner and was told that he would not be accepted in the school or by its
parents and board,” that he was “referred to as the ‘fallen man’” in reference to his
“relationship with a black man,” and that “[r]acial slurs and references to ‘nigger brown’
and ‘gollywog’” were used in front of Owens. Id. at 7, 11. Plaintiff does not identify
who made these comments and does not cite any evidence in support of these assertions.
Plaintiff also argues (again, without citing evidence) that he sent the September
15, 2013 letter to Defendants because of the threatening environment at SLIA and
because he was being “benched” following disciplinary conversations with Gannon
“where the race of Plaintiffs [sic] partner was referenced.” (Doc. No. 41 at 7.) He argues
that other SLIA teachers’ partners were welcomed and celebrated in the School. As an
example, Plaintiff cites an email invitation to a bridal shower for a teacher hosted by
SLIA on June 2, 2013. Finally, Plaintiff asserts that it has been difficult to prove his
allegations because, shortly after December 2013, his CCE email account was shut down
and made inaccessible to him.
In reply, Defendants generally argue that Plaintiff’s response is based solely on
unsworn allegations rather than admissible evidence. Defendants admit that they hosted
a bridal shower for an employee and that “SLIA generally welcomed and celebrated the
partners of its teachers, including Plaintiff’s partner.” (Doc. No. 51 at 5.) However,
Defendants argue that Plaintiff has not provided evidence that Defendants allowed any
teacher to bring his or her partner or date to work or otherwise treated any similarly
situated teacher differently than Plaintiff. Defendants also deny that they (rather than
CCE) had any control over Plaintiff’s CCE email account, and Defendants note that
Plaintiff provided no evidentiary support for his unsworn assertion that Defendants shut
down the email account.
“Summary judgment is appropriate when, viewing the facts in the light most
favorable to the non-movant, there are no genuine issues of material fact and the movant
is entitled to judgment as a matter of law.” Metro. Prop. & Cas. Ins. Co. v. Calvin, 802
F.3d 933, 937 (8th Cir. 2015) (citation omitted). In opposing summary judgment, a
plaintiff may not “simply point to allegations” in the complaint, Howard v. Columbia
Pub. Sch. Dist., 363 F.3d 797, 800 (8th Cir. 2004), or “rest on the hope of discrediting the
movant’s evidence at trial,” Matter of Citizens Loan & Sav. Co., 621 F.2d 911, 913 (8th
Cir. 1980). Rather, the plaintiff “must identify and provide evidence of specific facts
creating a triable controversy.” Howard, 363 F.3d at 800 (citation omitted). “‘Where the
record taken as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial.’” Torgerson v. City of Rochester, 643 F.3d
1031, 1042 (8th Cir. 2011) (en banc) (quoting Ricci v. DeStefano, 557 U.S. 557, 586
Defendants Status as “Employers” Under the MHRA
As an initial matter, the Court finds that questions of fact preclude it from
determining, on summary judgment, whether Defendants are “employers” as that term is
defined under the MHRA. See Mo. Rev. Stat. § 213.010(7) (defining “employer” as
including “any person employing six or more persons within the state, and any person
directly acting in the interest of an employer”). Even accepting Gannon’s assertion in her
affidavit that the DOL found that almost all of SLIA’s teachers were independent
contractors, Defendants have not cited, and the Court has not found, authority suggesting
that the DOL’s finding would be binding on the Court in interpreting the MHRA.
Indeed, Missouri courts interpret the word “employee” more broadly under the MHRA
than in other contexts. See Howard v. City of Kansas City, 332 S.W.3d 772, 780-81 (Mo.
2011) (refusing to apply a common-law agency approach to interpreting “employee”
under the MHRA and instead applying a “dictionary definition” of “employee” as “any
worker who is under wages or salary to an employer and who is not excluded by
agreement from consideration as such a worker”). The parties have not submitted
evidence as to the wages, salary, or employment agreements (if any) of SLIA’s teachers
other than Plaintiff.
And as to Defendants’ assertion that, in any event, SLIA paid only five teachers at
any one time in 2012 and 2013, in light of Gannon’s prior sworn statement in her 2012
visa application that SLIA had six employees at the time, the Court finds there is a
question of fact as to whether SLIA employed six or more persons (not limited to
teachers), during the relevant time periods. Therefore, the Court will turn to the merits of
Plaintiff’s MHRA and § 1981 claims.
Section 1981 and MHRA Race Discrimination Claim (Counts II and III)
Section 1981 “affords a federal remedy against discrimination in private
employment on the basis of race.” Johnson v. Ry. Exp. Agency, Inc., 421 U.S. 454, 460,
(1975). Likewise, the MHRA makes it an unlawful employment practice for an employer
to (a) “discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s race.” Mo. Rev. Stat. § 213.055.1(1).
Defendants do not dispute that § 1981 and the MHRA encompass race
discrimination claims of the type alleged by Plaintiff here, based on the race of Plaintiff’s
romantic partner who was not employed by Defendants. Although the parties have not
cited, and the Court has not found, Eighth Circuit or Missouri precedent on this specific
issue, the Court, too, will assume that such claims are cognizable under § 1981 and the
MHRA as associational race discrimination claims. See Rosenblatt v. Bivona & Cohen,
P.C., 946 F. Supp. 298, 300 (S.D.N.Y. 1996) (“It is well-settled that a claim of
discrimination based on an interracial relationship or association is cognizable under
Section 1981.”) (citing cases from other circuit courts of appeal); Chandler v. Fast Lane,
Inc., 868 F. Supp. 1138, 1143–44 (E.D. Ark. 1994) (“A white person’s right to associate
with African–Americans is protected by § 1981.”) (citing cases from other jurisdictions);
Mo. Rev. Stat. § 213.070(4) (making it an unlawful employment practice to “discriminate
in any manner against any other person because of such person’s association with any
person protected by this chapter”).
To survive a motion for summary judgment on a § 1981 race discrimination claim,
“a plaintiff must either present admissible evidence directly indicating unlawful
discrimination, or create an inference of unlawful discrimination under the burdenshifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Macklin v. FMC Transp., Inc., 815 F.3d 425, 427
(8th Cir. 2016) (citations omitted).
“To prove intentional discrimination through direct proof [under § 1981], a
plaintiff must establish 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 actually motivated the employer’s decision.” Young v. Builders
Steel Co., 754 F.3d 573, 577 (8th Cir. 2014) (citation and quotations omitted). Absent
such direct evidence, the McDonnell Douglas framework applies. Under this framework,
a plaintiff must establish a prima facie case, showing that (1) he is a member of a
protected class; (2) he was qualified to perform his duties; (3) he suffered an adverse
employment action; and (4) circumstances give rise to an inference of discrimination, for
example because similarly situated employees, who are not members of the protected
group, were treated more favorably. Young v. Builders Steel Co., 754 F.3d 573, 577 (8th
“Once a plaintiff successfully establishes a prima facie case, the burden then shifts
to the employer to articulate a legitimate, non-discriminatory reason for the adverse
employment action.” Id. at 577-78. “If the employer meets its burden, the presumption
of discrimination disappears, and plaintiff is required to prove the proffered justification
is merely a pretext for discrimination.” Id.
With respect to this burden-shifting framework, “an employer has the right to
assign work, to change an employee’s duties, to refuse to assign a particular job, and to
discharge—for good reason, bad reason, or no reason at all, absent intentional
discrimination.” McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 512 (8th Cir.
1995) (citation omitted). Thus, “[t]he showing of pretext necessary to survive summary
judgment requires more than merely discrediting an employer’s asserted reasoning for
terminating an employee.” Roeben v. BG Excelsior Ltd. P’ship, 545 F.3d 639, 643 (8th
Cir. 2008). “A plaintiff must also demonstrate that the circumstances permit a reasonable
inference of discriminatory animus.” Id. “Put another way, [an employee] is required to
show that racial discrimination, not [the employer’s] stated reasons, ‘actually motivated’
[the employer] to terminate his employment.” Smith v. United Parcel Serv., No. 15-1487,
2016 WL 3726032, at *3 (8th Cir. July 12, 2016) (citation omitted).
The McDonnell Douglas framework does not apply to an MHRA claim, which
requires only that a plaintiff demonstrate (1) he suffered an adverse employment action;
(2) race was a contributing factor in that adverse action, and (3) he incurred damages as a
direct result. Denn v. CSL Plasma, Inc., 816 F.3d 1027, 1032-33 (8th Cir. 2016) (citing
Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 820 (Mo. 2007)). While the
MHRA’s “contributing factor” standard is “less rigorous than the ‘motivating factor’
standard employed in federal discrimination cases,” id., it still requires a showing that
race “contribut[ed] a share in” or “ha[d] a part in producing the effect” of the adverse
action, Lomax v. DaimlerChrysler Corp., 243 S.W.3d 474, 482 (Mo. Ct. App. 2007).
Plaintiff has failed to present evidence that would support a reasonable inference
that the race of his romantic partner contributed in any way to the adverse actions taken
against him here. Thus, both his federal and state law discrimination claims fail as a
matter of law.
With respect to Defendants’ first adverse action, paying Plaintiff less than full
wages, although it is unclear when Plaintiff first complained about his wages, the DOL
investigation concluded he was underpaid beginning, at the latest, in April 2012. There is
no evidence that Defendants even knew of Plaintiff’s relationship with Owens at that
time. Rather, the record establishes that Defendants did not learn of Plaintiff’s
relationship with Owens until June 2012. Therefore, there can be no link between
Plaintiff’s wage structure and any discriminatory animus on the basis of Owens’s race.
The remaining adverse actions—presenting Plaintiff with the Memorandum of
Understanding and later terminating Plaintiff and revoking his visa sponsorship—were
made more than a year and a half after Gannon learned of Plaintiff’s relationship with
Owens. And Plaintiff has not offered any admissible direct or circumstantial evidence
linking these actions to any prohibited race discrimination under § 1981 or the MHRA.
Indeed, the only evidence in the record of references to Plaintiff’s partner’s race are
references made by non-parties, including a concert hall director and a student in
Plaintiff’s class. There is no evidence that Gannon or any other SLIA decisionmaker
made or adopted any remarks about Plaintiff’s partner’s race. Gannon’s emails may
allude to Plaintiff’s sexual orientation, but not the race of Plaintiff’s partner.
Some of Plaintiff’s allegations in his response to Defendants’ statement of facts
and in his own statement of additional facts might have supplied evidence of
discrimination, such as Plaintiff’s allegations that Gannon “blackmailed, harassed and
demeaned plaintiff due to the race of his partner,” and “benched” him following
disciplinary conversations “where the race of [his] partner was referenced.” (Doc. No. 41
at 6, 7.) But the Court cannot consider these unworn and unattested statements because
they do not constitute competent evidence that can be used to defeat a motion for
summary judgment. See Banks v. John Deere and Co., No. 15-2058, 2016 WL 3769553,
at *5 (8th Cir. July 14, 2016) (refusing to consider on summary judgment a plaintiff’s
statements regarding the race-based harassment he suffered because the statements were
not contained in a sworn affidavit or signed and dated declaration certified as true and
correct “under penalty of perjury” as required under Federal Rule of Civil Procedure 56);
Beyer v. Firstar Bank, N.A., 447 F.3d 1106, 1108 (8th Cir. 2006) (holding that a
defendant was entitled to summary judgment where the plaintiff relied on an unverified
complaint and did not submit a sworn affidavit or other admissible evidence from which
a reasonable jury could conclude that he had shown one of the elements of his claims).
Even crediting Plaintiff’s assertion that his CCE email account was made
inaccessible to him, Plaintiff could have submitted a sworn affidavit, a declaration
certified as true and correct under penalty of perjury, a verified complaint, or other
admissible evidence in support of his allegations. While pro se pleadings are to be
construed liberally, a pro se litigant is not excused from complying with the federal rules.
Bennett v. Dr Pepper/Seven Up, Inc., 295 F.3d 805, 808 (8th Cir. 2002). And Plaintiff at
no time sought relief from the Court regarding any inability to obtain discovery.
Excluding Plaintiff’s unsupported allegations, the evidence of record does not give
rise to an inference of discrimination, even under the lower “contributing factor” standard
of the MHRA. Plaintiff has not identified, for example, any similarly situated employee
who was treated differently5 or otherwise demonstrated a connection between
Defendants’ actions and any animus whatsoever based on Plaintiff’s partner’s race.
Indeed, after first learning of Plaintiff’s relationship with Owens, Defendants
completed the process to sponsor Plaintiff for a visa and employed him for another eight
months without apparent incident. When Plaintiff eventually complained to Gannon
about his students’ racial comments in March 2013, Gannon agreed the students’
behavior was unacceptable, Plaintiff complimented Gannon’s response, and Plaintiff
continued to be employed by Defendants for many more months without adverse action.
Even after Plaintiff sent his September 15, 2013 letter regarding his desire to reduce his
work responsibilities, Defendants accommodated Plaintiff’s request and allowed him to
remain employed and keep his visa active by teaching an Irish language class.
Defendants did not take any adverse action until December 2, 2013, when they
asked Plaintiff to sign the Memorandum of Understanding just a little over a month after
Plaintiff’s evidence that Defendants once held a bridal shower for an employee,
alone, does not show that Defendants treated a similarly situated employee differently.
Chappell v. Bilco Co., 675 F.3d 1110, 1119 (8th Cir. 2012) (holding that, to give rise to a
prima facie inference of discrimination, similarly situated employees must be “similarly
situated in all relevant respects,” considering “the conduct of the employees and any
disparity in their discipline”).
Plaintiff failed to respond to Gannon’s email inquiring about how Plaintiff was
representing his relationship with SLIA to UMSL. There is no evidence that this action
was in any way linked to a discriminatory animus based on Owens’s race.
The record is instead replete with evidence that Defendants presented Plaintiff
with the Memorandum of Understanding, and after Plaintiff refused to sign it, terminated
Plaintiff and revoked his visa sponsorship, because of Plaintiff’s failure to respond to
Defendants’ inquiries regarding how he represented SLIA to the institutions where he
taught as a SLIA representative; his failure to regularly and timely communicate
regarding the Irish language class; and his other problematic behaviors, such as
inappropriately (in the view of Defendants) disciplining students and taking Defendants’
property off the premises without permission. These actions constitute legitimate, nondiscriminatory reasons for requiring Plaintiff to agree, by way of the Memorandum of
Understanding, to fulfill his obligations with SLIA and represent SLIA in the best light
possible, and for terminating Plaintiff and revoking his visa sponsorship when Plaintiff
failed to do so. See Smith, 2016 WL 3726032, at *4 (recognizing that legitimate, nondiscriminatory reasons for adverse employment actions may include an employee’s
“history” of problematic behavior at a company and his “unwilling[ness] to acknowledge
those problems and commit to change”).
The Memorandum of Understanding may have gone further than necessary (for
example, by prohibiting Plaintiff from discussing any aspect of his relationship with
SLIA with anyone and from posting anything on social media or the internet), but for
purposes of his race discrimination claim, Plaintiff must show that Defendants’ decision
to present him with the Memorandum, and to terminate him and revoke his visa
sponsorship after he failed to sign the Memorandum, was not merely a bad decision but
was a decision connected in some way to racial animus. See Smith, 2016 WL 3726032,
at *4 (“Smith’s behavior might not be viewed by some employers as a basis for
termination. But Smith does not provide evidence to show these reasons were merely
rationalizations to cover for racial discrimination.”).
As discussed above, the record is devoid of evidence that the race of Plaintiff’s
partner played any role in Defendants’ actions for purposes of a prima facie § 1981 claim
or an MHRA claim. And even if the Court assumed Plaintiff could establish a prima
facie case under § 1981, Plaintiff has failed to show pretext. Therefore, the Court will
grant Defendants’ motion for summary judgment on Plaintiff’s § 1981 and MHRA race
Section 1981 and MHRA Retaliation Claims (Counts I and IV)
Section 1981 retaliation claims are analyzed under the same framework as
discrimination claims. A plaintiff must either present direct evidence of retaliation or
create an inference of retaliation under the McDonnell Douglas framework. Pye v. Nu
Aire, Inc., 641 F.3d 1011, 1020 (8th Cir. 2011). “Direct evidence of retaliation is
evidence that demonstrates a specific link between a materially adverse action and the
protected conduct, sufficient to support a finding by a reasonable fact finder that the
harmful adverse action was in retaliation for the protected conduct.” Id. (citation
Absent direct evidence, a plaintiff must establish a prima facie case of retaliation,
which “requires a showing that (1) the plaintiff engaged in statutorily protected activity,
(2) an adverse employment action was taken against him, and (3) there is a causal
connection between the two events.” Keefe v. City of Minneapolis, 785 F.3d 1216, 122425 (8th Cir. 2015). “[I]f the plaintiff is able to establish a prima facie retaliation case, the
defendant must provide a legitimate, nondiscriminatory reason for its decisions. If the
defendant is able to do so, the burden shifts back to the plaintiff to show that the
proffered reason was merely a pretext for discrimination.” Id. In short, “[t]he plaintiff in
a retaliation case must present sufficient evidence for a reasonable jury to conclude that
her protected conduct was a determinative factor in a materially adverse employment
action taken by the employer.” Hervey v. Cty. of Koochiching, 527 F.3d 711, 722 (8th
Similarly, “[t]o establish a prima facie case of retaliation under the MHRA, a
plaintiff must prove (1) he complained of discrimination; (2) the employer took adverse
action against him; and (3) a causal relationship existed between the complaint and the
adverse action.” Denn, 816 F.3d at 1036 (citing McCrainey v. Kansas City Mo. Sch.
Dist., 337 S.W.3d 746, 753 (Mo. Ct. App. 2011)). A “causal relationship” exists under
the MHRA “when retaliation was a contributing factor to the adverse action.” Id.
Here, Plaintiff has presented neither direct evidence of retaliation nor sufficient
evidence to establish a causal relationship between Defendants’ challenged actions and
any protected activity. As an initial matter, the Court agrees with Defendants that
Plaintiff’s September 15, 2013 letter was not a protected complaint of race
discrimination. The letter did not reference discrimination based on the race of Plaintiff’s
partner—in fact, Plaintiff did not even mention the race of his partner in the letter. See
Hunt v. Neb. Pub. Power Dist., 282 F.3d 1021, 1028-29 (8th Cir. 2002) (finding that the
plaintiff did not engage in protected activity for the purpose of her federal retaliation
claim where she complained that her employer failed to give her a raise or a promotion,
but did not attribute this failure to sex discrimination); Shore v. Children’s Mercy Hosp.,
477 S.W.3d 727, 735 (Mo. Ct. App. 2015) (holding that an employment complaint that
did not reference a type of prohibited discrimination could not give rise to an MHRA
Rather, the record reflects that Plaintiff’s first complaint of discrimination based
on the race of his partner was in his charge of discrimination filed with the MCHR and
the EEOC. That charge was not filed until December 6, 2013, and the only adverse
employment actions that Defendants took against Plaintiff after that time were, on
December 17, 2013, to send letters to UMSL and the other institutions where Plaintiff
taught as a SLIA representative, informing them that SLIA was no longer affiliated with
Plaintiff and would revoke his visa sponsorship,6 and, on February 20, 2014, to formally
terminate Plaintiff and revoke his visa sponsorship.
Although Defendants sent their letters to UMSL and the other institutions very
shortly after Plaintiff filed his charge of discrimination, “[g]enerally, more than a
temporal connection between the protected conduct and the adverse employment action is
required to present a genuine factual issue on retaliation.” Kiel v. Select Artificials, Inc.,
169 F.3d 1131, 1136 (8th Cir. 1999); see also Williams v. Trans States Airlines, Inc., 281
S.W.3d 854, 869 (Mo. Ct. App. 2009) (same under MHRA).
The wisdom of this rule is evident in a case . . . where the employee was
accused of insubordination before she notified the employer of her
protected activity. Insubordinate employees may not insulate themselves
from discipline by announcing an intention to claim discrimination just
before the employer takes action. Evidence that the employer had been
concerned about a problem before the employee engaged in the protected
activity undercuts the significance of the temporal proximity.
Hervey, 527 F.3d at 723; see also Denn, 816 F.3d at 1036 (holding that where an
employer had sought approval to deliver a warning to an employee nearly a month
before, because of the employee’s history of performance issues, the employee’s “receipt
of a final warning days after his complaint was a ‘mere coincidence of timing’ that
fail[ed] to give rise to a factual issue [under the MHRA] regarding whether the complaint
was a factor contributing to the delivery of this warning”).
The Court is assuming, for purposes of Plaintiff’s motion, that the delivery of
letters to these institutions constitutes an adverse employment action under § 1981 and
That is precisely the case here. Defendants presented Plaintiff with the
Memorandum of Understanding, warning him that failure to comply would result in
termination and revocation of his visa sponsorship, before Plaintiff filed his charge of
discrimination and based on Plaintiff’s prior behavior. The mere fact that Plaintiff
immediately thereafter filed his charge of discrimination—before Defendants had a
chance to send the letters announcing their decision to terminate him or to formally
terminate him—did not insulate him from termination and is insufficient to create a
reasonable inference of retaliation.7 Hervey, 527 F.3d at 724; Denn, 816 F.3d at 1036.
Because Plaintiff has failed to produce sufficient evidence to support a reasonable
inference that his charge of discrimination was a factor contributing to the adverse
actions alleged here, he has failed to show a genuine dispute for trial. Moreover, even if
the Court assumed that Plaintiff could establish a prima facie case of retaliation under §
1981, he has failed to show pretext. Therefore, the Court will grant Defendants’ motion
for summary judgment on Plaintiff’s § 1981 and MHRA retaliation claims.
The Court notes that, in addition to referencing Plaintiff’s history of problematic
behavior, Defendants’ February 20, 2014 termination letter also mentions the allegedly
inappropriate social media messages that Defendants sought out and discovered only
after Plaintiff filed his charge of discrimination. However, Defendants’ termination
letter states that they considered the messages “of no consequence” in light of Plaintiff’s
prior abandonment of his job duties. The Court does not find this reference sufficient to
create a reasonable inference of a retaliatory motive.
For the reasons set forth above,
IT IS HEREBY ORDERED that Defendants’ motion for summary judgment is
GRANTED. (Doc. No. 38.)
All claims against all parties having been resolved, a separate Judgment shall
accompany this Memorandum and Order
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 3rd day of August, 2016.
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