McGuire v. St. Louis County Missouri et al

Filing 70

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that plaintiff's motion to remand 13 is denied. IT IS FURTHER ORDERED that defendant Judge Thea A. Sherry's motion to dismiss 10 is granted and the claims against Judge Sh erry are dismissed with prejudice. IT IS FURTHER ORDERED that the motion to dismiss 14 filed by St. Louis County, Cliff Faddis, Sue Daniels, Cheryl Campbell, Marshall Day, Ben Burkemper and Lacy Rakestraw is granted only to the following extent, and is otherwise denied: All claims based on the Age Discrimination in Employment Act are dismissed with prejudice for failure to exhaust administrative remedies; All claims against defendants Sue Daniels and Lacy Rakestraw are dismissed with prejud ice; All claims against the individual defendants based on Title VII are dismissed with prejudice; and All claims based on acts occurring before August 15, 2016 are dismissed with prejudice. IT IS FURTHER ORDERED that plaintiffs motions for an emerg ency injunction [ 35 , 58 , 63 ] are denied. IT IS FURTHER ORDERED that plaintiff's motions to add party and to consolidate cases [ 32 , 36 , 42 , 56 , 61 , 64 ] are denied. IT IS FURTHER ORDERED that all discovery remains stayed as s et out in my December 12, 2017 Order [ECF Doc. 29 ] pending the Rule 16 scheduling conference. IT IS FINALLY ORDERED that all other pending motions are denied either as moot or as being without merit. A separate Order setting a Rule 16 Scheduling Conference is entered this same date. Signed by District Judge Catherine D. Perry on 2/5/2018. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DR. PATT MCGUIRE,
Plaintiff,
vs.
ST. LOUIS COUNTY, MISSOURI,
et al.,
Defendants.

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Case No. 4:17 CV 2818 CDP

MEMORANDUM AND ORDER
Plaintiff Dr. Patt McGuire, Ph.D., acting pro se, originally filed this case in
state court in August of 2017. At that time she alleged employment discrimination
in violation of state law. Defendants removed the case to federal court after
plaintiff filed an “Amended Petition (Complaint) and Exhibits – Permission
Granted by The Judge Kristine Allen Kerr,” which added claims under federal law.
Plaintiff alleges that she is a full-time employee of St. Louis County, Missouri.
She alleges that defendants failed to promote her on the basis of her race, gender
and age and that defendants retaliated against her when she complained about the
discrimination.
The Amended Complaint alleges that defendants violated the Missouri
Human Rights Act (MHRA), Mo. Rev. Stat. § 213.111, and Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §2003(e), et seq. A “Memorandum of Law in
Support of Amended Complaint” filed by plaintiff along with the Amended

Complaint added claims under the Age Discrimination in Employment Act, 29
U.S.C. § 621 et seq. Plaintiff also attached a declaration and more than 450 pages
of exhibits. Plaintiff seeks compensatory damages of $4 million, punitive damages
of $10.5 million, plus $500,000 or $350 per hour (whichever is greater) as
attorneys’ fees for her pro se work on the case. ECF Doc. 4 at ¶ 23.
In the approximately two months the case has been pending in this Court,
plaintiff has filed over fifty additional motions and other documents. Many of the
documents are either copies of documents she has already filed, or repeat the same
arguments made in her other filings. Most add allegations of what she considers
continuing improper treatment by defendants and others with whom she works.
She also filed an additional state-court lawsuit, which has now been removed and
is pending before another judge of this Court. Dr. Patt McGuire vs. Jerry Edwards
and St. Louis County, Case No. 4:18CV71 CAS.
Plaintiff’s Motions to Remand
Plaintiff has filed several documents arguing that this case should be
returned to state court. See ECF Docs. 13, 17, 18, 19, 28, 31, 34, 41. Defendants
removed the case pursuant to 28 U.S.C. § 1441(a), on the basis of federal question
jurisdiction under 28 U.S.C. § 1331. The face of the Amended Complaint shows
that plaintiff is claiming that she is entitled to relief under federal law, and so
federal-question jurisdiction exists. Removal was timely and otherwise
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procedurally proper. Plaintiff does not actually argue, in any of her many filings,
that this Court lacks jurisdiction; instead she simply argues that the state court
would be better suited to hear the case. This is not a reason to remand the case.
Jurisdiction is proper in this Court and so I will deny the motions to remand.
Defendants’ Motions to Dismiss
All defendants have filed motions to dismiss the Amended Complaint under
Rule 12(b)(6), Federal Rules of Civil Procedure, and plaintiff has filed multiple
responses to each motion. When considering a Rule 12(b)(6) motion, I assume the
factual allegations of the complaint to be true and construe them in favor of the
plaintiff. Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). Although pro se
complaints “are to be construed liberally, see Estelle v. Gamble, 429 U.S. 97, 106,
97 S.Ct. 285, 50 L.Ed.2d 251 (1976), they still must allege sufficient facts to
support the claims advanced.” Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).
To survive dismissal, a complaint must contain “more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); accord Ashcroft v. Iqbal, 556
U.S. 662, 678-79 (2009).
All defendants argue that the Amended Complaint fails to allege sufficient
facts to state a claim for employment discrimination or retaliation. I agree as to
three of the individual defendants. The Amended Complaint makes no allegations
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against Defendants Judge Thea A. Sherry or Sue Daniels. In one of her responses,
plaintiff asserts that Judge Sherry is a proper defendant because she “is working in
a capacity that gives her and when the violation occurred gave her the authority to
issues remedies to address the acts of discrimination, retaliation act, and
harassment against the Plaintiff.” ECF Doc. 22 at p. 2. The only allegation against
defendant Lacy Rakestraw is: “The plaintiff has reason to believe Lacy Rakesfraw
[sic] actions on August 28, 2017 were encouraged by outside forces.” ECF Doc. 4
at ¶ 5. The complaint does not allege sufficient facts to support a claim against
these defendants under any of the statutes on which plaintiff relies, and I will grant
the motions to dismiss as to defendants Judge Sherry, Sue Daniels, and Lacy
Rakestraw in their entirety.
Defendant St. Louis County and the remaining individual defendants, Cliff
Faddis, Cheryl Campbell, Marshall Day and Ben Burkemper, also argue that the
factual allegations against them are insufficient. Plaintiff has alleged, however,
that each of these defendants was involved somehow in the decisions not to
promote her or in acts of retaliation. She has also alleged that defendants promoted
less qualified and younger white males to the positions she sought. Liberally
construed, as is required for this pro se plaintiff, these factual allegations are
sufficient for the claims against these defendants to proceed. These defendants

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have other arguments, however, for why the claims should be dismissed, and some
of those arguments are correct.
The remaining individual defendants argue that the definitions of
“employer” in Title VII, the ADEA, and the MHRA do not include individual
supervisors or co-workers and so they cannot be held liable under those acts. They
are correct with respect to any claims under Title VII and the ADEA, see
Bonomolo-Hagen v. Clay Cent.-Everly Comm. Sch. Dist., 121 F.3d 446, 447 (8th
Cir.1997) (Title VII); Kelleher v. Aerospace Comm. Credit Union, 927 F.Supp.
361, 363 (E.D. Mo.1996) (ADEA). I will therefore grant the motion to dismiss the
Title VII and ADEA claims against the remaining individual defendants and those
claims may only proceed against St. Louis County. But the issue is much more
complicated with respect to the Missouri Human Rights Act.
Until last year, individuals such as these defendants could be held liable
under the MHRA. The state law was amended, however, and the amendment was
effective on August 28, 2017, the same day that plaintiff filed her lawsuit in state
court. The amendment changed the definition of “Employer” under the Act to
exclude individuals such as the individual defendants here. See Mo. Rev. Stat. §
213.010.1(8). Plaintiff is alleging actions that took place before the amendment
was effective, and she filed her charges of discrimination before the effective date.

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Defendants argue that the change in the law was merely a “procedural” and
“remedial” change and therefore the new provision is retroactive.
I have found only one reported case considering this issue, Woodruff v.
Jefferson City Area YMCA, No. 17-4244-CV-C-WJE, 2018 WL 576857 (W. D.
Mo. Jan. 27, 2018). This federal decision held that the changes to § 213.010(8)
were not retroactive, and did not apply to a MHRA claim based on acts occurring
before the effective date of the change in the law, even though the lawsuit was not
filed until after the amendment’s effective date. Id. at * 3. The Court reasoned
that if the law were retroactive it would remove the cause of action plaintiff would
otherwise have had against the individual defendants, and that therefore it must be
substantive, and not merely procedural. Id. The Court also noted that if the law
applied to conduct that had occurred before its effective date it would violate the
Missouri Constitution’s ban on ex post facto laws. Id.
The reasoning of the Woodruff court appears correct to me, although I
recognize that this is an important issue of Missouri law that has not yet been
decided by the Missouri courts. I will deny the motion to dismiss on this basis at
this time, although defendants may, of course, re-raise the issue if Missouri courts
should reach a different conclusion while this case is pending.
Defendants also move to dismiss certain claims contained in the Amended
Complaint because plaintiff did not exhaust her administrative remedies under the
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MHRA, Title VII or the ADEA. Plaintiff attached two EEOC/MCHR charges and
two Right to Sue letters to her Amended Complaint. ECF Doc. 4-4 at p.p., 118,
122, 124, 125. The first charge was filed on Feb 15, 2017, and checked the boxes
for discrimination based on race and sex. It alleged that she learned in August and
September 2016 that she “had not been hired in the Supervisor or the Program
Specialist roles,” and that instead “less experienced and less qualified Caucasian
males were hired.” ECF Doc. 4-4 at p. 118. The Right to Sue letter related to this
charge was sent on August 25, 2017. ECF Doc. 4-4 at p. 125. The second charge
was filed on June 28, 2017, and checked the boxes for retaliation and continuing
action. It alleged that since filing her February 2017 charge she had “been denied
promotional opportunities and been subjected to unfair criticism” and that she
“applied for two positions for which [she] was qualified – Detention Supervisor
and Exchange Center Coordinator – and was not selected.” She also alleged that
“as recently June 27, 2017” she was wrongly reported for not acknowledging the
shift supervisor when she left work, and that this was retaliatory. The right to sue
letter on this charge was issued on September 5, 2017. ECF Doc. 124.
Defendants are correct that plaintiff failed to allege age discrimination in her
charges of discrimination, and so her claims of age discrimination must be
dismissed. Defendants also argue that because she only named the St. Louis
County Family Court as her employer, she has failed to exhaust as to the
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individuals. It is not appropriate to dismiss on that basis at this time, however, as
the record before me does not allow me to determine whether the remaining
individual defendants had the substantial identity of interests with St. Louis County
to subject them to individual liability under the tests adopted by the Missouri
Courts in Hill v. Ford Motor Co., 277 S.W.3d 659, 669-70 (Mo. 2009)(adopting
test set out in Glus v. G.C Murphy, 562 F.2d 880, 888 (3rd Cir. 1997)).
Finally, defendants are correct in arguing that plaintiff may not bring claims
for any acts that occurred earlier than 180 days before her MCHR/EEOC charge.
The first of those charges was filed on February 15, 2017, so plaintiff may not
bring any claims for acts that occurred before August 15, 2016.
To summarize, my rulings on defendants’ motions to dismiss result in only
the following claims remaining: Plaintiff’s claims for race and gender
discrimination and retaliation against St. Louis County under Title VII and the
MHRA for acts occurring after August 15, 2016 that are like or reasonably related
to the acts alleged in the charge of discrimination, and plaintiff’s claims against
individual defendants Cliff Faddis, Cheryl Campbell, Marshall Day and Ben
Burkemper for race and gender discrimination and retaliation under the MHRA for
acts occurring after August 15, 2016 that are like or reasonably related to the acts
alleged in the charge of discrimination.

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Plaintiff’s Motions to Add Party and Consolidate Cases
Plaintiff has filed several motions and other documents regarding actions
allegedly taken by non-party Jerry Edwards after she filed this suit. In some of
those documents she asks that he be added as a party, and in others she asks that
this case and the new state-court case she filed against Edwards be consolidated.
There is no legal basis or mechanism for consolidating state and federal cases.
Although the new case to which she refers has now been removed to this federal
court, plaintiff has not complied with the Local Rule regarding Motions to
Consolidate, nor has she shown that there are valid reasons to consolidate the two
cases. The motions related to Jerry Edwards will be denied.
Plaintiff’s Motions for Emergency Injunctive Relief
Plaintiff has filed several motions seeking emergency injunctive relief.
None of the motions are directly related to her underlying claims framed by the
Amended Complaint. Instead, it appears that whenever anything happens to her on
the job that she does not agree with, she asks for a Court order. Federal courts “do
not sit as a super-personnel department” that can reexamine every business
decision made by an employer. Torlowei v. Target, 401 F.3d 933, 935 (8th Cir.
2005) (citing Wilking v. County of Ramsey, 153 F.3d 869, 873 (8th Cir. 1998)).
In any event, nothing in plaintiff’s papers shows any likelihood that she could meet
the very heavy burden to obtain emergency equitable relief.
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Injunctive relief is “an extraordinary remedy that may only be awarded upon
a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 22 (2008). “A plaintiff seeking a preliminary
injunction must establish that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public interest.” Id. at 20.
In the Eighth Circuit, these four factors are known as the “Dataphase ” factors,
based upon the 1981 en banc case, Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d
109, 113 (8th Cir. 1981). The party requesting injunctive relief bears the
“complete burden” of proving that an injunction should be granted. Gelco Corp. v.
Coniston Partners, 811 F.2d 414, 418 (8th Cir. 1987).
Plaintiff has not met her burden of showing any of the Dataphase factors.
First, this is a garden-variety employment discrimination case and money damages
would be sufficient to remedy any violation that plaintiff might prove. Nothing in
the thousands of pages that plaintiff has filed is there any indication that she is
likely to suffer irreparable harm if an injunction is not granted. Similarly, nothing
in those thousands of pages indicates that she is likely to succeed on the merits of
the case. She is continuing to work for St. Louis County while this case proceeds,
and the Court cannot sit as a super-personnel department to review her treatment at

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work on a daily basis, which appears to be what she seeks. I will deny the motions
for injunctive relief.
Conclusion
As set out above, some of plaintiff’s claims against some defendants have
survived the motions to dismiss. Those defendants must therefore answer the
Amended Complaint within the time set by the Federal Rules of Civil Procedure. I
will separately set this case for a Rule 16 Scheduling Conference, and I will
maintain the stay of discovery previously entered until after that conference. I will
deny all the miscellaneous motions related to discovery, and at the Rule 16
conference will discuss with plaintiff and counsel for the remaining defendants an
orderly schedule for taking any discovery that is necessary in this case.
Finally, the Court must caution plaintiff that even though she is representing
herself in this matter, she is required to comply with the Federal Rules of Civil
Procedure, the Federal Rules of Evidence, and the Local Rules of this Court. See
Bunch v. University of Ark. Bd. of Trustees, 863 F.3d 1062, 1067 (8th Cir. 2017);
Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 856 (8th Cir. 1996). A
pro se litigant is not excused from complying with court orders or substantive and
procedural law. Bennett v. Dr. Pepper/Seven Up, Inc., 295 F.3d 805, 808 (8th Cir.
2002). The vast majority of the filings plaintiff has made since her case was
removed here fail to comply with the rules. Additionally, many of them make
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statements that are directly contrary to the law (such as her arguments that the case
must be remanded to state court because “State Court specializes in civil cases.”
ECF Doc. 31 at p. 3). Plaintiff’s pro se status is not an excuse for making
frivolous arguments or failing to follow the rules. Plaintiff is cautioned to comply
with the Rules and with all Court Orders, including the Order Setting Rule 16
Conference that will be entered separately.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to remand [13] is
denied.
IT IS FURTHER ORDERED that defendant Judge Thea A. Sherry’s
motion to dismiss [10] is granted and the claims against Judge Sherry are
dismissed with prejudice.
IT IS FURTHER ORDERED that the motion to dismiss [14] filed by St.
Louis County, Cliff Faddis, Sue Daniels, Cheryl Campbell, Marshall Day, Ben
Burkemper and Lacy Rakestraw is granted only to the following extent, and is
otherwise denied:
All claims based on the Age Discrimination in Employment Act are
dismissed with prejudice for failure to exhaust administrative remedies;
All claims against defendants Sue Daniels and Lacy Rakestraw are
dismissed with prejudice;
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All claims against the individual defendants based on Title VII are dismissed
with prejudice; and
All claims based on acts occurring before August 15, 2016 are dismissed
with prejudice.
IT IS FURTHER ORDERED that plaintiff’s motions for an emergency
injunction [35, 58, 63] are denied.
IT IS FURTHER ORDERED that plaintiff’s motions to add party and to
consolidate cases [32, 36, 42, 56, 61, 64] are denied.
IT IS FURTHER ORDERED that all discovery remains stayed as set out
in my December 12, 2017 Order [ECF Doc. 29] pending the Rule 16 scheduling
conference.
IT IS FINALLY ORDERED that all other pending motions are denied
either as moot or as being without merit.
A separate Order setting a Rule 16 Scheduling Conference is entered this
same date.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 5th day of February, 2018.

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