Krone v. City of Pine Lawn

Filing 24

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that Defendant City of Pine Lawn's Motion to Dismiss (ECF No. 15 ) is GRANTED as to Count XII. Count XII is DISMISSED with prejudice. IT IS FURTHER ORDERED that Defendant's Motion for a More De finite Statement is GRANTED as to Counts V, VI, VII, VIII. Plaintiff is granted ten (10) days from the date of this order to file an Amended Complaint. IT IS FINALLY ORDERED that Defendant City of Pine Lawn's Motion to Dismiss, or in the Alternative, for More Definite Statement is (ECF No. 15 ) is DENIED for Counts I, II, III, IV, IX, X, XI, and XIII. Signed by District Judge Ronnie L. White on 4/20/2017. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAVID KRONE,
Plaintiff,
v.
THE CITY OF PINE LAWN,
Defendant.

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No. 4:16CV1801 RLW

MEMORANDUM AND ORDER
This matter is before the court on Defendant City of Pine Lawn's Motion to Dismiss, or
in the Alternative for More Definite Statement. (ECF No. 15). This matter is fully briefed and
ready for disposition.

BACKGROUND
Plaintiff David Krone filed claims against Defendant City of Pine Lawn pursuant to Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"), the Missouri Human Rights
Act ("MHRA"), RSMo. 213.055, the Americans with Disabilities Act, 42 U.S.C. § 12101
("ADA"), The Missouri Sunshine Act, RSMO §610 ("Sunshine Law"), and the Fourteenth
Amendment of the U.S. Constitution, 42 U.S.C. §1983, 1981 ("Due Process" or "Equal
Protection"). (Complaint (or "Compl."), ECF No. 4, iii! 7, 8, 4, 14, 19.) In Counts I and II,
Plaintiff alleges racial discrimination and retaliation in violation of Title VII. (Complaint p. 1, 3).
In Counts III and IV, Plaintiff alleges racial discrimination and retaliation under the MHRA.
(Complaint p. 5, 7). In Counts V and VI, Plaintiff alleges a hostile work environment,
discrimination, wrongful termination, and retaliation based on his disability under the ADA.

(Complaint p. 9, 11 ). In Counts VII and VIII, Plaintiff alleges disability discrimination and
retaliation under the MHRA. (Complaint p. 13, 15). In Count IX, Plaintiff alleges a violation of
the Missouri Sunshine Act. (Complaint p. 17). In Counts X, XI, and XII, Plaintiff alleges
violations of the U.S . Constitution's Due Process and Equal Protection clauses. (Complaint p.
19-20). Lastly, in Count XIII, Plaintiff pursues a worker's compensation claim. (Complaint p.
23).
I.

Motion to Dismiss
A. Standard of Review

In order to survive a motion to dismiss, a complaint must contain "enough facts to state a
claim to relief that is plausible on its face. " Bell At!. Corp. v. Twombly, 550 U.S. 544, 570
(2007). While a complaint under Rule 12(b)(6) attack does not require detailed factual
allegations, a plaintiffs responsibility to establish grounds of his entitlement to relief "requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do." Twombly, 550 U.S . at 55; Huang v. Gateway Hotel Holdings, 520 F.Supp. 2d 1137,
1140 (E.D. Mo. 2007). Under Fed. R. Civ. P. 8(a)(2), the complaint "must contain: ... a short
and plain statement of the claim showing that the pleader is entitled to relief .. ."Fed. R. Civ. P.
8(a)(2). In reviewing a motion to dismiss, the Court must view all allegations within the
complaint liberally in the light most favorable to the plaintiff. Eckert v. Titan Tire Corp., 514
F3d 801 , 806 (8th Cir. 2008) (citing Luney v. SGS Auto Servs ., 432 F.3d 866, 867 (8th Cir.
2005)).

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B. Discussion
1. Counts I, II, III, and IV

Defendant moves to dismiss Counts I and III because the Complaint fails to allege
sufficient facts for a racial discrimination claim under Title VII or MHRA. (Complaint at Count I
and III). To sufficiently state a claim of discrimination under Title VII or the MHRA, Plaintiff
must allege he: (1) is a member of a protected class; (2) was meeting his employer' s legitimate
job expectations; (3) suffered an adverse employment action; and (4) was treated differently than
similarly situation employees who were not members of his protected class. Jackman v. Fifth

Judicial Dist. Dept. of Corr. Serv. , 728 F.3d 800, 804 (8th Cir. 2013); Burrow v. Boeing Co.,
2011 WL 1594937 at *8 (E.D. Mo. April 27, 2011). Plaintiff alleges membership within a
protected class and describes himself as Caucasian. (Complaint p.1 , if6). Plaintiff also asserts
that he was "performing his job according to his employer' s legitimate expectations."
(Complaint p. 2, if9). Plaintiff alleges he was terminated from employment, an adverse
employment action, and other employees remained employed by Defendant. (Complaint p. 2, if8;
p.1 , if4). Plaintiffs Complaint does not need to include "specific facts", Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007), but only "sufficient factual information to provide the
'grounds' on which the claim rests, and to raise a right to relief above a speculative level."

Schaafv. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008) (citing Twombly, 550
U.S . at 555). Here, Plaintiffs allegations regarding his Caucasian race, performance level, and
employment termination are sufficient to overcome a 12(b)(6) motion. Under the MHRA,
Plaintiff does not need to prove he was treated differently than a similarly situated employee, but
such proof is one way to show race or national origin contributed to his termination. Jain v. CVS

Pharmacy, Inc., 779 F.3d 753 , 759 (8th Cir. 2015). At this early stage of the litigation,

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Plaintiffs allegation that Defendant retained other employees after Plaintiffs termination
provides 'grounds' for relief under both Title VII and MHRA. Marez v. Saint-Gobain
Containers, Inc., 740 F.Supp.2d 1057, 1067 (E.D. Mo. 2010). The Court denies Defendant's

12(b)( 6) Motion to Dismiss regarding the Title VII discrimination claims, and denies
Defendant's motion in the alternative for a More Definite Statement.
Defendant also moves to dismiss Counts II and IV because the Complaint fails to allege
sufficient facts for a retaliation claim under Title VII and the MHRA. (Complaint at Count II and
IV). Under Title VII and the MHRA, Plaintiff must allege a prima facie case of retaliation by
showing: " (1) he engaged in protected conduct; (2) he suffered a materially adverse employment
action; and (3) the adverse action was casually linked to the protected conduct. " Pye v. Nu Aire,
Inc., 641F.3d1011, 1021 (8th Cir. 2011) (citing Fercello v. County of Ramsey, 612 F.3d 1068,

1077-78 (8th Cir. 2010)); Finley v. Empiregas, Inc. of Potosi, 975 F.2d 467, 473 (8th Cir. 1992).
Protected conduct under Title VII includes any employee opposition to "any practice made
unlawful by Title VII, or ' made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing' under the statute. " Hervey v. County of Koochiching, 527
F.3d 711, 722 (8th Cir. 2008) (citing 42 U.S.C. § 2000e- 3(a)). Temporal connection between
the statutorily protected behavior and the adverse employment action can be sufficient to
establish the causal connection needed for a retaliation claim. Sisk v. Picture People, Inc. , 669
F.3d 896, 900-01 (8th Cir. 2012) (citing Hite v. Vermeer Mfg. Co., 446 F.3d 858, 866 (8th Cir.
2006)). In the instant case, Plaintiff alleges that he informed Defendant of the alleged
discrimination and filed Charges of Discrimination with both the Missouri Commission on
Human Rights ("MCHR") and the Equal Employment Opportunity Commission ("EEOC").
(Complaint p. 3, if8; p. 4, if12). Also, Plaintiff alleges he suffered an adverse an employment

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action, specifically termination of employment, and states his termination resulted from his
report of discrimination and filing with the MCHR and EEOC. (Complaint p. 3, ~ 10). Lastly,
Plaintiff alleges harassment and termination of his employment occurred subsequent to his filing
the complaints with the MCHR and EEOC. (Complaint p.3, ~ 10). At this early stage of the
litigation, Plaintiffs allegations of filing the complaints with the MCHR and EEOC, and
subsequent termination are sufficient to overcome Defendant's Motion to Dismiss. Reifsteck v.

Paco Bldg. Supply Co., No. 4:04CV742 RWS , 2005 WL 2674941 at *6-7 (E.D. Mo. Oct. 20,
2005). The Court denies Defendant's Motion to Dismiss Plaintiffs Retaliation claims under
Title VII and MHRA in Counts II and IV and Defendant' s Motion in the alternative for a More
Definite Statement.

2. Counts V, VI, VII, and VIII
Defendant moves to dismiss Counts V, VI, VII, and VIII because the Complaint does not
allege sufficient facts to result in liability under the American with Disabilities Act ("ADA"), 42
U.S.C. § 12102(2) or the MHRA. In Counts V and VII, Plaintiff alleges a hostile work
environment, discrimination, and wrongful termination under the ADA and the MHRA. In
Counts VI and VIII, Plaintiff alleges retaliation under both the ADA and MHRA.
In order to establish a prima facie case of disability discrimination under the ADA and
MHRA, Plaintiff must show: " [h]e is disabled as defined in 42 U.S.C. § 12102(2); (2) [h]e is
qualified to perform the essential functions of the job, with or without reasonable
accommodation; and (3) [h]e has suffered an adverse employment action because of [his]
disability." Alexander v. Northland Inn , 321 F.3d 723 , 726 (8th Cir. 2003) (citing Benson v.

Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995)); Young v. Warner-Jenkinson Co.,

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152 F3d 1018, 1021 (8th Cir. 1998). To establish a prima facie case ofretaliation under the
ADA and the MHRA, Plaintiff must establish "(1) that he or she engaged in statutorily protected
activity; (2) an adverse employment action was taken against him or her; (3) a causal connection
exists between the two events." Lars v. Dean, 746 F.3d 857, 867 (8th Cir. 2014) (quoting Green
v. Franklin Nat'! Bank of Minneapolis, 459 F.3d 903, 914 (8th Cir. 2006)); Floyd v. State of
Missouri Dept. of Social Services, Div. of Family Services, 188 F.3d 932, 938 (8th Cir.
1999)(using the same standard as the ADA). "A retaliation claim under the ADA requires a butfor causal connection between the employee's assertion of her [or his] ADA rights and an
adverse action by the employer." Oehmke v. Medtronic, Inc., 844 F.3d 748, 758 (8th Cir. 2016)
(citing Univ. ofTex. Sw. Med. Ctr. V Nassar, 133 S.Ct. 2517, 186 L.Ed.2d 502 (2013)). "Proof
of a retaliation claim is not the same as a direct claim of disability discrimination." Foster v.
Time Warner Entertainment Co., L.P., 250 F.3d 1189, 1195 (8th Cir. 2001). Rather, to prevail
on a retaliation claim, Plaintiff "need not establish the conduct which [he] opposed was in fact
discriminatory but rather must demonstrate a good faith, reasonable belief that the underlying
conduct violated the law." Id. (quoting Buettner v. Arch Coal Sales, Co., Inc. , 216 F.3d 707, 714
(8th Cir. 2000)). In this case, Plaintiff alleges he has "disabilities" protected under the ADA, 42
U.S.C. §12102(2). (Complaint p. 9, if8; p.11, ifl). However, Plaintiff fails to name or describe the
disabilities in any way, which is insufficient to provide fair notice to Defendant. Harris v.
Missouri Dept. of Mental Health, No. 4:08-CV-1247 CAS, 2009 WL 152105 at *4 (E.D. Mo.
Jan. 21, 2009). Based upon this deficiency, this Court denies Defendant's Motion to Dismiss
and grants Defendant's Motion for a More Definite Statement for Counts V, VI, VII, and VII.
Plaintiff is granted ten (10) days to file an amended Complaint that corrects this pleading
deficiency.

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3. Count IX
Defendant moves to dismiss Count IX for failure to state a claim for which relief can be
granted under Missouri Sunshine Law§ 610.020. RSMo. Section 610.020 requires notice,
including time, date, and place, of each governmental bodies' meeting "to advise the public of
the matters to be considered." RSMo. Section 610.020.1. However, § 610.021.3 excepts those
meetings which relate to " [h]iring, firing disciplining or promoting of particular employees by a
public governmental body when personal information about the employee is discussed . .. "
RSMo. Section 610.021.3 . Section 610.021 provides "any vote on a final decision, when taken
by a public governmental body, to hire, fire, promote or discipline an employee of a
governmental body shall be made available with a record of how each member voted to the
public within seventy-two hours of the close of the meeting where such action occurs .. ." Id.
While specificity is not required, Plaintiffs pleading contains possible inconsistencies regarding
"the Board' s" alleged meetings pertaining to Plaintiffs employment. In his pleadings, Plaintiff
alleges "meetings" may have taken place regarding Plaintiffs employment, explicitly stating his
uncertainty in whether such meetings existed. (Complaint p. 17-18, i!i!9-11). Plaintiff then
alleges board members conducted a meeting without any notice to the public. (Complaint p. 18, i!
12). While the Plaintiff demonstrates uncertainty as to whether such meetings occurred, and his
pleadings could be more detailed, Plaintiff is not required to allege "specific facts" at this stage.
Twombly, 550 U.S. at 555 . Accordingly, the Court denies Defendant's Motion to Dismiss, and

Defendant' s Motion for a More Definite Statement regarding Count IX, the alleged violation of
the Missouri Sunshine Law, RSMo. Section 610.020.

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4. Counts X and XI
Defendant moves to dismiss Plaintiffs Counts X and XI for failure to state a claim for
relief in Plaintiffs Due Process and Equal Protection claims under §1983. "To state a claim
under §1983, a plaintiff must allege the violation of a right secured by the Constitution and laws
of the United States, and must show that the alleged deprivation was committed by a person
acting under color of state law." Roe v. Humke, 128 F.3d 1213, 1215 (8th Cir. 1997). "To
establish a procedural due process violation, a plaintiff must demonstrate that he has a protected
property or liberty interest at stake and that he was deprived of that interest without due process
oflaw." Hopkins v. Saunders, 199F.3d 968, 975 (8th Cir. 1999). For an employee to obtain a
property interest in employment, the interest can "be created by ordinance, or by an implied
contract." Bishop v. Wood, 426 U.S. 341 , 344 (1976). Furthermore, "a plaintiff has a protected
property interest in his employment if can show 'that he could have been fired only for good
cause. "' Id. (quoting Spitzmiller v. Hawkins, 183 F.3d 912, 916 (8th Cir. 1999)). "Whether such
a guarantee has been given can be determined only by an examination of the particular statute or
ordinance in question." Id. at 345. In Missouri, § 84.120 R.S.Mo. 2000 states police officers are
"subject to removal only for cause after a hearing by the boards."
The Equal Protection Clause requires the government to treat similarly situated
individuals alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).
"Absent evidence of direct discrimination, courts apply the McDonnell Douglas burden-shifting
analysis to claims of employment discrimination under the Equal Protection Clause." Hager v.
Arkansas Dept. of Health, 735 F.3d 1009, 1014 (8th Cir. 2013) (citing Lockridge v. Board ofTrs.
of Univ. ofArksas, 315 F.3d 1005, 1010 (8th Cir. 2003)). The McDonnell Douglas analysis

requires plaintiffs to prove: "(1) membership in a protected group; (2) qualification for the job in
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question; (3) an adverse employment action; and (4) circumstances that support an inference of
discrimination." Id. (citing Swierkiewicz v. Sorema N A., 534 U.S . 506, 510 (2002)). "Under
Swierkiewicz, a plaintiff need not plead facts establishing a prima facie case of discrimination
under McDonnell Douglas in order to defeat a motion to dismiss." Id. (citing Swierkiewicz, 534
U.S. at 510-11)).
At this early stage in the litigation, Plaintiff sufficiently pleaded a claim for a Due
Process violation based upon his expectancy of continued employment and recognition of the
for-cause removal provision in Missouri§ 84.120 RS Mo. 2000. Likewise, the Court holds
Plaintiff sufficiently pleaded a claim of Equal Protection violations based upon his termination
compared to other employees' continued employment. Therefore, this Court denies Defendant' s
Motion to Dismiss Plaintiffs §1983 claims and Defendant's Motion for a More Definite
Statement.

5. Count XII
Defendant moves to dismiss Count XII of Plaintiffs pleadings, an alleged violation of 42
U.S .C. §1981. Under 42 U.S.C. §1981 , " [a]ll persons within the jurisdiction of the United States
shall have the same right in every State and Territory to make and enforce contracts .. .. " 42
U.S .C. §1981. As defined in the statute, "make and enforce contracts' includes the making,
performance, modification, and termination of contract, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship." Id. To prevail in a §1981
claim, Plaintiff must show Defendant's custom or policy caused the violation of Plaintiffs "right
to make contracts." Jett v. Dallas Indep endent School Dist. , 491 U.S. 701 , 702 (1989).
Conversely, a government entity cannot be liable under the theory ofrespondeat superior. Artis

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v. Francis Howell North Band Booster Ass 'n, Inc. , 161F.3d1178, 1181 (8th Cir. 1998). The
"express action at law" provided by §1983 for the "deprivation of rights .. .secured by the
Constitution and laws" provides the exclusive federal damages remedy for the violation of rights
guaranteed by §1981 when the claim is pressed against a state actor." Id. (citing Brown v. GSA,
425 U. S. 820 (1976)).
As previously discussed, Plaintiff has previously and sufficiently alleged a § 1983
violation; therefore, § 1983 provides the remedy for Plaintiffs § 1981 claim. The Court grants
Defendant' s Motion to Dismiss Count XII.

6. Count XIII
Defendant moves to remand the case to state court if this Court dismisses the preceding
claims for which this Court has original jurisdiction. Because claims remain over which this
Court has original jurisdiction, this Court denies the Motion to Dismiss Plaintiffs worker' s
compensation claim based upon the Court' s supplemental jurisdiction.
According!y,
IT IS HEREBY ORDERED that Defendant City of Pine Lawn' s Motion to Dismiss
(ECF No. 15) is GRANTED as to Count XII. Count XII is DISMISSED with prejudice.
IT IS FURTHER ORDERED that Defendant's Motion for a More Definite Statement is
GRANTED as to Counts V, VI, VII, VIII. Plaintiff is granted ten (10) days from the date of this
order to file an Amended Complaint.

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IT IS FINALLY ORDERED that Defendant City of Pine Lawn's Motion to Dismiss, or
in the Alternative, for More Definite Statement is (ECF No. 15) is DENIED for Counts I, II, III,
IV, IX, X, XI, and XIII.
Dated this 20th day of April 2017.

~L~

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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