Perkins v. Myrtle Hilliard Davis

Filing 45

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant Inez Lampkin's Motion to Dismiss (Doc. 26 ) is GRANTED. Signed by Magistrate Judge Shirley P. Mensah on 6/5/15. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JERRY PERKINS,

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Plaintiff,
vs.
MYRTLE HILLIARD DAVIS
d/b/a FLORENCE HILL,
and INEZ LAMPKIN,
Defendants.

Case No. 4:14-CV-01755-SPM

MEMORANDUM AND ORDER
This matter is before the Court on the Motion to Dismiss filed by Defendant Inez
Lampkin. (Doc. 26). The parties have consented to the jurisdiction of the undersigned United
States Magistrate Judge pursuant to 28 U.S.C. § 636. (Doc. 28). For the reasons stated below, the
Court will grant Defendant Lampkin’s motion.
I.

FACTUAL AND PROCEDURAL BACKGROUND
Jerry Perkins (“Plaintiff”), acting pro se, brings this action against both Myrtle Hilliard

Davis Comprehensive Health Centers, Inc. (“MHD”), his employer, and Inez Lampkin
(“Lampkin”), his supervisor. He alleges claims of gender discrimination, retaliation, and
disparate treatment based on race pursuant to both Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. (“Title VII”), and the Missouri Human Rights Act, Mo. Rev. Stat. §
213.055 et seq. (“MHRA”). In his gender discrimination claim, Plaintiff alleges that Lampkin
called him and told him that he was being suspended without pay due to an incident in which he
inappropriately took a smoking break. He alleges that a female coworker who joined him on that
break was not suspended and claims that Lampkin intervened on behalf of the female coworker

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to forestall her punishment, but took no such action on Plaintiff’s behalf because of his gender.
In Plaintiff’s retaliation claim, Plaintiff alleges that another MHD employee, Mrs. Shabazz, took
various actions against him after he filed an EEOC complaint based on gender discrimination;
the allegations in that claim do not mention Lampkin. In his race discrimination claim, Plaintiff
alleges that African American employees were required to work in urgent care but that a
particular white employee was not. The sole allegation against Lampkin in connection with this
claim was that she “shared in the illegal actions against the Plaintiff.” (Doc. 17, ¶ 28).
Before filing the instant action, Plaintiff filed a Charge of Discrimination (the “Charge”)
with the Equal Employment Opportunity Commission (“EEOC”) on January 21, 2014. In the
Charge, Plaintiff named only MHD as the discriminating party and alleged discrimination only
on the basis of sex. The only mentions of Lampkin in the Charge were that she was Plaintiff’s
immediate supervisor and that she informed Plaintiff of his suspension via telephone. After the
EEOC issued Plaintiff a right-to-sue letter, Plaintiff initiated the instant action against both MHD
and Lampkin. 1 (Doc. 17).
On February 10, 2015, Lampkin filed the instant Motion to Dismiss. She argues that the
Court should (1) dismiss Plaintiff’s Title VII claims against her because individuals are not
subject to liability under that statute; (2) dismiss Plaintiff’s MHRA claims against her for failure
to exhaust his administrative remedies; and (3) in the alternative, dismiss Plaintiff’s MHRA
claims against her for failure to allege facts sufficient to state a claim.

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Plaintiff’s initial Complaint, filed on October 16, 2014, named only MHD as a defendant. (Doc.
1). Lampkin was added as a defendant in the Amended Complaint, filed December 23, 2014.
(Doc. 17).
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II.

LEGAL STANDARD
When ruling on a Rule 12(b)(6) motion to dismiss, the court must accept as true all of the

factual allegations in the complaint, but it need not accept legal conclusions. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id.
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies the plausibility
standard “when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S.,
at 556).
“In evaluating whether a pro se plaintiff has asserted sufficient facts to state a claim, [the
court] hold[s] ‘a pro se complaint, however inartfully pleaded, . . . to less stringent standards
than formal pleadings drafted by lawyers.’” Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014)
(quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)); see also Whitson v. Stone Cnty. Jail, 602
F.3d 920, 922 n. 1 (8th Cir. 2010) (“[P]ro se litigants are held to a lesser pleading standard than
other parties . . . .’”) (quoting Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008)).
III.

DISCUSSION
A. Title VII Claims
Lampkin moves to dismiss Plaintiff’s Title VII claims against her on the ground that

individuals are not subject to liability under that statute. It is well-settled in the Eighth Circuit
that Title VII “does not provide for an action against an individual supervisor.” Van Horn v. Best
Buy Stores, L.P., 526 F.3d 1144, 1147 (8th Cir. 2008) (affirming summary judgment for
individual defendant on a Title VII claim). See also Ebersole v. Novo Nordisk, Inc., No. 1:11CV-25 SNLJ, 2011 WL 6115655, at *1 (E.D. Mo. Dec. 8, 2011) (“It is well-settled in the Eighth

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Circuit that individuals are not subject to individual liability under Title VII of the Civil Rights
Act of 1964.”). Accordingly, Plaintiff’s Title VII claims against Lampkin will be dismissed.
B. MHRA Claims
Unlike Title VII, the MHRA permits claims against individual supervisors. Hill v. Ford
Motor Co., 277 S.W.3d 659, 669 (Mo. 2009). However, Lampkin argues that the Court should
dismiss the MHRA claims against her because Plaintiff failed to exhaust his administrative
remedies. The Court agrees.
Under the MHRA, a plaintiff must exhaust his or her administrative remedies before
initiating a civil action. Tart v. Hill Benham Lumber Co., 31 F.3d 668, 671 (8th Cir. 1994); Reed
v. McDonald’s Corp., 363 S.W.3d 134, 143 (Mo. Ct. App. 2012); Coleman v. Mo. Sec’y of State,
313 S.W.3d 148, 153-54 (Mo. Ct. App. 2010). In order to exhaust administrative remedies for a
claim under the MHRA, “a party must timely file an administrative complaint with [the Missouri
Commission on Human Rights (“MCHR”)] and either adjudicate the claim through MCHR or
obtain a right-to-sue letter.” Stuart v. Gen. Motors Corp., 217 F.3d 621, 630 (8th Cir. 2000)
(citing Mo. Rev. Stat. § 213.111(1)).
Lampkin contends that: (1) as to all MHRA claims against her, Plaintiff failed to exhaust
his administrative remedies by not naming Lampkin as a respondent in his Charge of
Discrimination; and (2) as to the race and retaliation claims against Lampkin, Plaintiff failed to
exhaust his administrative remedies for the additional reason that neither of these claims was
included in the Charge. The Court will address each contention in turn.

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1. Failure to Name Lampkin in the Charge of Discrimination
Lampkin first argues that the claims against her should be dismissed because Plaintiff did
not name Lampkin as a respondent in his Charge of Discrimination. The MHRA provides, in
relevant part:
Any person claiming to be aggrieved by an unlawful discriminatory practice may
make, sign and file with the commission a verified complaint in writing . . . 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 commission . . .
Mo. Rev. Stat. § 213.075(1) (2014) (emphasis added). The Missouri Supreme Court has
suggested that this requirement serves two purposes: providing notice to the charged party, and
affording the charged party an opportunity to achieve voluntary compliance through conciliation
while avoiding litigation. Hill, 277 S.W.3d at 669.
When a plaintiff fails to identify a particular individual in his administrative charge, the
Court should generally dismiss any subsequent MHRA claims against that individual pursuant to
Rule 12(b)(6) for failure to exhaust administrative remedies. See Thomas v. Nash, No. 4:14-CV1993 ERW, 2015 WL 1222396, at *2 (Mar. 17, 2015) (citing Hill, 277 S.W.3d at 669-70);
Jackson v. Mills Props., No. 4:11CV419SNLJ, 2011 WL 3607920, at *4 (E.D. Mo. Aug. 12,
2011). However, if permitting suit would not frustrate the purposes behind the exhaustion
requirement, then the failure to name an individual in the administrative charge does not require
dismissal. Hill, 277 S.W.3d at 669. Thus, a suit may still proceed against an individual not
named in an administrative charge if there is a “sufficient identity of interest” between the named
and unnamed parties. Id.; Thomas, 2015 WL 1222396, at *2. In Hill, the Missouri Supreme
Court stated that whether such identity of interest exists depends on a balancing of four factors:
“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)
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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.”
Hill, 277 S.W.3d at 669-70 (quoting Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir.
1977)).
Since it is undisputed that Plaintiff did not name Lampkin as a respondent in his Charge
of Discrimination, the question is whether a sufficient identity of interest existed between
Lampkin, the unnamed party, and MHD, the named party. Applying the four Hill factors, the
Court concludes that a sufficient identity of interest did not exist.
First, Plaintiff could plainly have ascertained Lampkin’s role at the time he filed his
Charge of Discrimination. Because Lampkin was Plaintiff’s direct supervisor, her role in the
adverse employment action against him would have been apparent to him. Indeed, Plaintiff
mentioned Lampkin in the “Particulars” section of his Charge as his supervisor and as the person
who notified him of his suspension. 2 Consequently, the first factor favors dismissal. See Thomas,
2015 WL 1222396, at *2-*3 (the fact that Plaintiff knew about his direct supervisor’s role at the
time of filing the MCHR charge weighed in favor of dismissal); Jackson, 2011 WL 3607920, at
*2 (same).
The second factor addresses whether Lampkin and MHD have such similar interests that
it would have been unnecessary to include Lampkin in the EEOC proceedings. An employer2

The mere fact that Plaintiff mentioned in the narrative portion of the Charge that Lampkin was
his supervisor and informed him of the discipline against him is insufficient to satisfy the
MHRA’s exhaustion requirement as to claims against her. See Jackson, 2011 WL 3607920, at *2
(applying the Hill factors and dismissing claims against individual defendants not named as
respondents despite the fact that the plaintiff had mentioned them in the substantive portion of
the EEOC charge).
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employee relationship, standing alone, cannot create such similarity of interests. See Borders v.
Trinity Marine Prods., Inc., No. 1:10-CV-146 HEA, 2010 WL 5139343, at *3 (E.D. Mo. Dec. 9,
2010) (“The risk of each individual being personally sued is far different than a suit against their
employer.”). See also Thomas, 2015 WL 1222396, at *4; Jackson, 2011 WL 3607920, at *3.
This is because an employee may approach an administrative investigation very differently when
her employer faces potential liability than when she is at risk personally. See Thomas, 2015 WL
1222396, at *4 (“An individual with personal assets at stake has a stronger interest in the
conciliation process when exposed to personal liability.”). Because there is no other indication in
the pleadings that Lampkin’s interests are similar to MHD’s, this factor also weighs in favor of
dismissal.
In addressing the third factor, the Court considers whether Lampkin was prejudiced by
the inability to respond to the MCHR investigation or engage in conciliation. Thomas, 2015 WL
1222396, at *4. The pleadings in this case do not reveal whether conciliation was in fact
attempted by the MCHR. Thus, it is unclear whether Lampkin was prejudiced, and this factor
weighs in neither party’s favor. See id. (finding this factor weighed in neither party’s favor where
there was no indication of whether conciliation with the named respondent was ever attempted or
offered).
In addressing the fourth factor, the Court considers whether Lampkin in some way
represented to Plaintiff that Lampkin’s relationship with Plaintiff was to be through MHD—i.e.,
whether Lampkin represented herself to Plaintiff as a “virtual alter ego” of MHD. See Borders,
2010 WL 5139343, at *3; Thomas, 2015 WL 1222396, at *4. Courts have refused to find an
individual supervisor to be an alter ego of her employer merely based on the employment
relationship, noting that to do so “would make every employee of every corporate defendant

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subject to a discrimination lawsuit even when he or she is unnamed in the Charge.” Thomas,
2015 WL 1222396, at *4; see also Jackson, 2011 WL 3607920, at *3. Because there is no other
indication in the pleadings that Lampkin represented herself to Plaintiff as MHD’s alter ego, this
factor favors dismissal.
In sum, the Hill factors applicable here all weigh against a finding of a substantial
identity of interests between Lampkin and MHD. Therefore, each of Plaintiff’s MHRA claims
against Lampkin will be dismissed for failure to exhaust administrative remedies.
2. Failure to Include Retaliation and Race Discrimination Claims in the Charge
Lampkin also argues that, even if she had been named in the Charge of Discrimination,
Plaintiff still failed to exhaust his administrative remedies with respect to his retaliation and race
discrimination claims against her by not including them in the Charge. The Court agrees.
“In order to exhaust all administrative remedies, the claimant must give notice of all
claims in his administrative complaint.” Reed, 363 S.W.3d at 143. See also Russell v.
Bellefontaine Habilitation Ctr., Nos. 4:12CV01849 AGF, 4:13CV00334 AGF, 2013 WL
3092293, at *2 (E.D. Mo. June 18, 2013) (“The principle of exhaustion requires a claimant to
give notice of all claims of discrimination in the administrative complaint.”) (quotation marks
omitted). Generally, this means that all MHRA claims contained in a lawsuit must also have
been included in a prior administrative charge, because “[a]llowing a complaint to encompass
allegations outside the ambit of the predicate . . . charge . . . deprive[s] the charged party of
notice of the charge.” Russell, 2013 WL 3092293, at *2 (quoting Williams v. Little Rock Mun.
Water Works, 21 F.3d 218, 223 (8th Cir. 1994)). However, since “administrative complaints are
interpreted liberally in an effort to further the remedial purposes of legislation that prohibits
unlawful employment practices,” Reed, 363 S.W.3d at 143 (quotation marks omitted),

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“administrative remedies are deemed exhausted as to all incidents of discrimination that are like
or reasonably related to the allegations of the administrative charge.” Alhalabi v. Mo. Dep’t. of
Natural Res., 300 S.W.3d 518, 525 (Mo. Ct. App. 2009). Furthermore, “the scope of the civil suit
may be as broad as the scope of the administrative investigation which could reasonably be
expected to grow out of the charge of discrimination.” Reed, 363 S.W. at 143-44 (quoting
Alhalabi, 300 S.W.3d at 525).
With respect to his retaliation claims against Lampkin, Plaintiff did not exhaust his
administrative remedies. Plaintiff alleged the incidents of retaliation to have been perpetrated by
another MHD employee, not Lampkin. In fact, Lampkin’s name is not even mentioned in the
retaliation count, making it probable that a retaliation claim against her would fail even if
deemed exhausted. Even so, Plaintiff could not have exhausted his retaliation claim simply by
alleging sex discrimination in the Charge, because his retaliation claim was neither like nor
reasonably related to the sex discrimination claim. Plaintiff’s Charge listed sex discrimination
occurring on only a single date. The alleged retaliatory incidents, by contrast, took place over the
course of several months following the alleged sex discrimination. An MCHR investigation into
the events surrounding Plaintiff’s sex discrimination claim on a discrete date thus would likely
not have touched on any subsequent retaliation occurring over the succeeding months. See
Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 854 (8th Cir. 2012) (applying Missouri law to
an MHRA claim and holding retaliation claim to be neither like nor reasonably related to sex and
race discrimination claims which were alleged to have taken place on a single date)
Nor was Plaintiff’s race discrimination claim like or reasonably related to his sex
discrimination claim. The race discrimination claim dealt with the scheduling of MHD
employees working urgent care. An administrative investigation into a discrete incident of

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alleged sex discrimination resulting from a smoking break could not be reasonably expected to
grow into an investigation of whether the urgent care schedule was made in a racially
discriminatory fashion. If Plaintiff meant for the MCHR investigation to cover all of this ground,
then he was obligated to increase the breadth of his Charge allegations.
Therefore, even if Lampkin had been named in the Charge of Discrimination, Plaintiff’s
retaliation and race discrimination MHRA claims against her would still be dismissed for failure
to exhaust administrative remedies.
Because all of Plaintiff’s MHRA claims will be dismissed for failure to exhaust
administrative remedies, the Court finds it unnecessary to address Lampkin’s alternative
argument that Plaintiff has failed to allege facts sufficient to state a claim under the MHRA.
CONCLUSION

IV.

For all of the above reasons, Plaintiff has failed to state a claim against Lampkin under
either Title VII or the MHRA. Accordingly, Defendant Lampkin’s Motion to Dismiss will be
granted.
IT IS HEREBY ORDERED that Defendant Inez Lampkin’s Motion to Dismiss (Doc.
26) is GRANTED.

/s/Shirley Padmore Mensah
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE

Dated: June 5, 2015.

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