Mayes v. Reuter et al

Filing 24

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that defendants Katrina Lingenfelter and Ashley Scrivner's Motion to Dismiss [#8] is GRANTED. IT IS FURTHER ORDERED that defendant Michael Reuter's Motion to Dismiss [#11] is GRANTED. IT IS FINA LLY ORDERED that defendant State of Missouris Motion to Dismiss [#16] is GRANTED as to Counts V and VII. The only remaining claims in this case are Counts IV and VI against defendant State of Missouri. This case will be set for a Rule 16 Scheduling Conference by separate order. Signed by District Judge Catherine D. Perry on May 17, 2018. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROCHELLE MARIE MAYES,
Plaintiff,
vs.
MICHAEL REUTER, et al.,
Defendants.

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Case No. 4:17 CV 2905 CDP

MEMORANDUM AND ORDER
In November 2014, defendant Michael Reuter was elected Clerk of the Circuit
Court of Jefferson County, Missouri in a partisan election. At the time of the
election, plaintiff Rochelle Marie Mayes was working at the court as a courtroom
clerk to Judge Darrell Missey. Reuter ran as a Republican; Mayes had supported her
coworker and Reuter’s Democratic competitor, Jeanette McKee, in McKee’s failed
run for Clerk of Court.
Two years later, Mayes, who is African-American, was replaced as courtroom
clerk for Judge Missey by a Caucasian woman. Mayes alleges that during the ten
months following, coworkers Katrina Lingenfelter and Ashley Scrivner filed false
workplace reports about her, she was passed over for promotion, and eventually she
was terminated by Reuter in October 2017. Mayes brings this action against
Lingenfelter, Scrivner, Reuter, and the State of Missouri under 42 U.S.C. § 1983, the
Missouri Human Rights Act, Mo. Rev. Stat. § 213.010 et seq., and Title VII of the

Civil Rights Act, 42 U.S.C. § 2000e, et seq. for political and racial discrimination and
retaliation.
Now pending before me are motions to dismiss filed by all defendants, seeking
dismissal under Rule 12(b)(6), Fed. R. Civ. P., of all counts against them. Because I
find that Mayes’s complaint contains insufficient factual support for most of its
allegations, defendants’ motions to dismiss will be granted, except as to the racial
discrimination claims brought against the State of Missouri.1
I.

Background
Plaintiff Rochelle Mayes began her employment as a Deputy Clerk with the

Circuit Court in Jefferson County, Missouri in 2000. She was promoted to a level III
Deputy Clerk and assigned to Judge Darrell Missey’s courtroom in 2007. Mayes was
the first African-American clerk to work at the court.
In November 2014, Republican Michael Reuter defeated Democrat Jeanette
McKee for the elected position of Clerk of the Jefferson County Circuit Court.2

1

Defendant State of Missouri seeks dismissal of Mayes’s entire complaint, but its motion only
includes arguments on why the retaliation counts brought against the State should be dismissed.
There are sufficient facts alleged for Mayes’s Title VII and MHRA racial discrimination claims
against the State to survive dismissal under Federal Rule 12(b)(6).
2

Jeanette McKee, along with Deputy Clerk Sharon Rebecca Hickman, are plaintiffs in a different
lawsuit currently pending before this court against Reuter and another defendant. See McKee v.
Reuter, No. 4:16 CV 207 CDP (E.D. Mo. filed Feb. 16, 2016). Nearly seven pages of Mayes’s
complaint contain the allegations and details of that other case. Mayes can only assert her own
legal rights and interests, and cannot rely on the legal rights or interests of third parties in her claims

2

Democrat Mayes had publicly supported her coworker, Deputy Clerk McKee, in her
failed campaign for Clerk of Court.
When Reuter took office in January 2015, Mayes was still working as the
courtroom clerk for Judge Missey. Mayes alleges that she had a very good
relationship with Judge Missey until September 2016 when Missey was elected to be
the Presiding Judge of the court for the term starting January 1, 2017. Traditionally,
when a judge was elected as Presiding Judge, his courtroom clerk would become the
Secretary to the Presiding Judge and receive a $200 per month pay increase.
However, after being elected, Judge Missey informed Mayes that he might move her
to a different courtroom clerk position for another judge. But when the other judge
requested to meet with Mayes about the position, Mayes refused because of a health
problem she was experiencing at work that day.
On November 30, 2016, Judge Missey confronted Mayes about her refusal to
meet with the other judge. At that meeting, Mayes told Missey that she believed he
was replacing her as his courtroom clerk because she is African-American.
Following the meeting, fellow Deputy Clerk and defendant, Ashley Scrivner,
submitted a complaint about Mayes to Reuter. Although Scrivner was not in the
meeting with Missey and Mayes, she claimed that she was nearby and had heard

for relief. U.S. Dept. of Labor v. Triplett, 494 U.S. 715, 720 (1990). Only factual allegations
specifically relating to plaintiff Mayes and the claims she raises in this suit are relevant here.

3

Mayes yelling and cursing at Judge Missey. Mayes denies raising her voice in the
meeting and alleges Scrivner’s report is false.
On December 1, 2016, the day after the meeting with Missey, Mayes was
informed by Reuter and her supervisor that she had been removed as courtroom clerk
for Judge Missey. She was reassigned to a pool of Deputy Clerks in the juvenile
division. Mayes filed a grievance concerning her removal as courtroom clerk.
Reuter denied the grievance based on a state law that permits judges to select their
own courtroom clerks. Around the same time as the grievance denial, Reuter
demoted Mayes from Deputy Clerk level III to level II, stating that she no longer
qualified as level III because she was not a courtroom clerk. Mayes alleges that this
is false.
Defendant Katrina Lingenfelter was appointed by Judge Missey as his new
courtroom clerk and Secretary to the Presiding Judge. Mayes and Lingenfelter had a
friendly relationship until Lingenfelter was appointed as Missey’s courtroom clerk.
Mayes alleges that Lingenfelter “is Caucasian, slim, blonde and younger than
[Mayes], but is not as efficient, experienced or competent.” ECF No. 1 at ¶ 77.
On December 26, 2016, Mayes filed a charge of discrimination with the Equal
Employment Opportunity Commission (EEOC). Her charge was brought against
Judge Missey and Reuter, claiming discrimination based on “1. OBESITY, 2.
4

DISABILITY - (OSETO-ARTHRITIS), 3. RACE & 4. AGE.” ECF No. 1-1 at 3. In
her letter to the EEOC, Mayes described the events leading up to her demotion from
Missey’s courtroom clerk and from a Deputy Clerk level III to II. On September 29,
2017, the EEOC issued her a right-to-sue letter.
On April 25, 2017, Mayes filed a complaint with the Missouri Commission on
Human Rights (MCHR). On the charge document, she checked the boxes for
discrimination based on race, retaliation, age, and disability. The MCHR charge
contains the same narrative of facts as the EEOC charge, naming both Missey and
Reuter. On November 20, 2017, the Missouri Commission issued Mayes a right-tosue letter.
Between December 2016 and October 2017, Mayes continued to work at the
court in the pool of juvenile division Deputy Clerks. She alleges that she was mostly
ignored by her coworkers. Courtroom clerk and backup courtroom clerk positions
opened up during this period, but Mayes was not considered for the positions and
less-experienced clerks were appointed to them.
In August, September, and October 2017, Mayes alleges that Lingenfelter
submitted three false reports about Mayes’s workplace behavior. In two of the
reports, Lingenfelter accused Mayes of calling her a “bitch.” In the third report,

5

Lingenfelter claims Mayes hit the back of her knee with her lunchbox and then
elbowed her in the back. Two of these three false reports were submitted to Reuter.
On October 6, 2017, Reuter issued Mayes a notice of “Intent to Terminate”
employment because of “recent actions taken by [Mayes] toward other coworkers as
well as your supervisor.” Because Mayes’s request for a pre-termination hearing was
not postmarked by the effective date of the dismissal, Reuter issued a “Final Letter of
Termination” on October 16, 2017. Mayes’s appeals of the termination to Judge
Missey and the Circuit Court Budget Committee were denied. There is no allegation
that Mayes filed second charges with the EEOC or MCHR regarding her
termination.3
Mayes’s complaint seeks relief on seven counts: three 42 U.S.C. § 1983 counts
for political discrimination, retaliation for political activity, and equal protection
based on race; two Missouri Human Rights Act counts for racial discrimination and
retaliation; and two Title VII counts for racial discrimination and retaliation. All
seven counts are brought against the three individual defendants: Lingenfelter,
Scrivner, and Reuter. The MHRA and Title VII counts are also brought against the
State of Missouri.
3

Despite Mayes’s termination occurring after the filing of the EEOC and MCHR charges,
defendants make no argument on her failure to file subsequent charges after the termination.
Because no party has argued this, this Order does not examine Mayes’s failure to exhaust
administrative remedies as to her termination claim or any of her other claims arising after her
charges with the EEOC or MCHR.

6

Defendants seek dismissal under Rule 12(b)(6), Fed. R. Civ. P., of all counts.
Defendants argue Mayes has failed to exhaust her administrative remedies because
the charges she filed did not encompass all the claims made in the lawsuit, failed to
plead sufficient facts of their personal involvement, and failed to state sufficient
allegations to support her claims for relief, including a conspiracy claim. Defendants
also claim they are protected by qualified immunity, quasi-judicial immunity, and
official immunity. Mayes concedes that the four MHRA and Title VII claims should
be dismissed against defendants Lingenfelter and Scrivner, but she opposes dismissal
of the other claims.
II.

Motion to Dismiss Standard
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal

sufficiency of the complaint. Fed. R. Civ. P. 12(b)(6). When considering a 12(b)(6)
motion, the court assumes the factual allegations of a complaint are true and
construes them in favor of the plaintiff. Neitzke v. Williams, 490 U.S. 319, 326–27
(1989). However, the court need not accept as true merely conclusory allegations,
Hanten v. Sch. Dist. of Riverview Gardens, 183 F.3d 799, 805 (8th Cir. 1999), or
legal conclusions drawn by the plaintiff from the facts pled. Westcott v. City of
Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990).

7

Rule 8(a)(2), Fed. R. Civ. P., provides that a complaint must contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” In Bell
Atlantic Corp. v. Twombly, the Supreme Court clarified that Rule 8(a)(2) requires
complaints to contain “more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action.” 550 U.S. 544, 555 (2007); accord Ashcroft v.
Iqbal, 556 U.S. 662, 678–79 (2009). Specifically, to survive a motion to dismiss, a
complaint must contain enough factual allegations, accepted as true, to state a claim
for relief “that is plausible on its face.” Twombly, 550 U.S. at 570.
III.

Counts I & II: §1983 Political Discrimination and Retaliation
For a public employee, §1983 “imposes liability for certain actions taken

‘under color of’ law that deprive a person ‘of a right secured by the Constitution and
laws of the United States.’ ” Magee v. Trustees of Hamline Univ., Minn., 747 F.3d
532, 535 (8th Cir. 2014) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 931
(1982)). A claim of political discrimination is based on an employee’s status or
affiliation, while a claim of political retaliation is based on her speech or conduct.
Wagner v. Jones, 664 F.3d 259, 269 (8th Cir. 2011). The tests for each claim are
similar in that both require a plaintiff to make a prima facie showing that she suffered
an adverse employment action and that the plaintiff’s political beliefs or affiliation (in
a political discrimination claim), or activity (in a retaliation claim), was a substantial
8

or motivating factor in the employer’s decision to take the adverse employment
action. Id. at 270. Substantial or motivating factors can be shown through either
direct or indirect evidence. Id. at 271.
Mayes alleges that the three individual defendants conspired together to
discriminate against her based on her political affiliation as a Democrat and in
retaliation for her support of Democrat McKee in the 2014 election for Clerk of
Court. Mayes’s complaint does not allege that Lingenfelter or Scrivner are politically
adverse to Mayes, that they were aware that Mayes supported a Democrat in the 2014
election, or that they themselves did not also support Democrat McKee in that
election. Mayes alleges that the political animosity started with the November 2014
election but she admits that she had a good relationship with Lingenfelter for the two
years following the election, until Lingenfelter was appointed to replace her. Neither
fellow Deputy Clerk Lingenfelter nor Scrivner had the authority or power to make
any adverse employment decision affecting Mayes’s employment. Her only factual
accusations against Lingenfelter and Scrivner involve the filing of false reports.
However, the complaint contains no facts that could support a finding that political
affiliation or retaliation was a substantial or motivating factor in the filing of the false
reports. The workplace reports simply indicate personal problems between

9

coworkers, especially in light of the fact that Mayes admits she also filed a report
complaining about Lingenfelter. ECF No. 1-5.
Mayes alleges Reuter violated her rights because of her political affiliation and
in political retaliation by taking the adverse actions of demoting her from Deputy
Clerk level III to II, failing to re-promote her, and terminating her employment.4
Mayes asserts that the loss of her courtroom clerk position should not have required a
demotion to a Deputy Clerk level II position. She also claims Reuter used the false
reports filed by coworkers Lingenfelter and Scrivner as a pretext for her termination.
Again, the complaint contains no facts to support a finding that political affiliation or
activity was a substantial or motivating factor in any of Reuter’s adverse employment
decisions. Although Mayes asserts that she was one of the “most avid and visible”
supporters of McKee in the 2014 election, Reuter was not employed at the clerk’s
office at that time and there is no evidence to suggest that Mayes’s support of McKee
was visible to Reuter. ECF No. 1 at ¶ 18. Mayes alleges that Reuter used the false
reports from her coworkers as pretext to terminate her, but she never alleges that
Reuter knew the reports to be false. Likewise, there is no evidence that Reuter ever
made any political comments to Mayes or gave preferential treatment to Republicans

4

Mayes also alleges that Reuter failed to reappoint her to a courtroom clerk position. See ECF No.
1 at ¶ 107, 111, & 120. However, Mayes acknowledges that the selection of a courtroom clerk is
made by the Judge that the clerk would work for, and therefore, Reuter would not have the authority
to make such an appointment.

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in the office. See Charleston v. McCarthy, 175 F.Supp.3d 1115, 1125 (S.D. Iowa
2016) (discussing cases where causation was adequately plead for political
discrimination claims).
In addition, almost three years passed between Reuter’s November 2014
election and Mayes’s October 2017 termination. Just as close temporal proximity
between a protected activity and an adverse employment action can contribute to
establishing a case of retaliation, a lengthy time period between the activity and the
adverse action can suggest no causal link. See Davison v. City of Minneapolis, Minn.,
490 F.3d 648, 657 (8th Cir. 2007) (only a couple of months between protected
activity and adverse employment action contributes to establishing retaliation);
Hudson v. Norris, 227 F.3d 1047, 1051 (8th Cir. 2000) (four months between activity
and action sufficient to infer causal link).
The complaint contains no factual allegations from which one could construe
that any adverse employment action taken against Mayes was based on her status as a
Democrat or her support of a Democratic candidate in the 2014 election. Mayes’s
complaint states merely conclusory allegations regarding political discrimination and
retaliation. Counts I and II will be dismissed.

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IV.

Count 3: §1983 Equal Protection based on Race
The Equal Protection Clause of the Fourteenth Amendment requires that

government entities treat similarly situated persons alike. Hager v. Arkansas Dep’t of
Health, 735 F.3d 1009, 1014 (8th Cir. 2013) (citations omitted). For any equal
protection claim, the plaintiff must first demonstrate that she was treated differently
than others who are similarly situated to her. Keevan v. Smith, 100 F.3d 644, 648
(8th Cir. 1996). Eventually, the plaintiff will also have to prove circumstances that
support an inference of discrimination. Hager, 735 F.3d at 1014.
In the third count of her complaint, Mayes claims that the three individual
defendants discriminated against her on the basis of her race as an African-American
by demoting her, refusing to re-promote her, filing false reports about her, and
terminating her employment. However, the only factual allegation in the complaint
that could be construed as discriminatory treatment is that between December 2016
and October 2017, while Mayes was working as a Deputy Clerk II in the pool of
juvenile division clerks:
a number of positions opened up for Courtroom Clerks and for backup
Courtroom Clerks. On each occasion neither Reuter nor any of the
Judges even considered [Mayes] for appointment as a Courtroom Clerk
or backup Courtroom Clerk. Instead, less experienced Deputy Clerks
were appointed to those positions.
ECF No. 1 at ¶ 82.
12

Mayes asserts that she was treated differently than other employees applying
for courtroom clerk positions. However, there are no allegations that the employees
who were appointed were similarly situated to Mayes in terms of experience or
workplace performance. Also, Mayes acknowledges in her complaint that
appointment to these positions is at the discretion of the judge for which the
courtroom clerk would serve. Because none of the three individual defendants are
judges, they cannot be responsible for Mayes not getting appointed.
Mayes concludes that she was the victim of false reports, demoted, passed over
for promotion, and terminated because of her race; but this legal conclusion lacks
factual support. Mayes fails to identify any other similarly situated employee who
was treated differently. She fails to state any facts that suggest defendants had a
discriminatory intent. There are no facts alleged to show that Lingenfelter and
Scrivner filed false reports about Mayes because of her race. Nor are there any facts
from which one could infer that Reuter considered her race in his employment
decisions. For this § 1983 equal protection claim Mayes merely makes the
conclusory statement that she received poor treatment from the defendants because of
her race, with no factual support. Count III will be dismissed.

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V.

General Conspiracy Claim
Although the complaint lists no specific conspiracy count, it contains multiple

references to the individual defendants “acting in concert.” Mayes argues in her brief
to the court that her complaint alleges sufficient facts to establish a conspiracy
between defendants to deprive her of her constitutional rights. See ECF No. 1 at ¶¶
103, 110, & 116; ECF No. 20 at 13.
A complaint setting forth only vague, conclusory, or general allegations that
the defendants engaged in a conspiracy cannot withstand a Rule 12(b)(6) motion to
dismiss. See Gometz v. Culwell, 850 F.2d 461, 464 (8th Cir. 1988). A plaintiff must
allege with “sufficient particularity” and demonstrate with “specific material facts”
that the parties reached some agreement and conspired together to deprive plaintiff of
a federal right. Id. (quoting Chicarelli v. Plymouth Garden Apartments, 551 F. Supp.
532, 539 (E.D. Pa. 1982)).
There are absolutely no facts plead with particularity in Mayes’s complaint
demonstrating that Lingenfelter, Scrivner, and Reuter conspired against her. There
are fifty-three Deputy Clerks at the court, yet Mayes does not allege that Lingenfelter
and Scrivner even knew each other. There is no evidence that Lingenfelter and
Scrivner were aware that they had both filed reports about Mayes’s workplace
behavior. In fact, the lengthy period of time between the filing of the false reports –
14

Scrivner’s report was filed in November 2016 and Lingenfelter’s first report was filed
in August 2017 – suggests that Lingenfelter and Scrivner were not acting in concert.
Mayes does not allege that Reuter even knew the reports from Lingenfelter and
Scrivner were false. Nothing in the complaint indicates any mutual understanding or
meeting of the minds between Lingenfelter, Scrivner, and Reuter as to intent to
deprive Mayes of her employment. Any conspiracy claim that Mayes attempts to
plead in her complaint does not survive dismissal under Federal Rule 12(b)(6).
VI.

Counts IV through VII: MHRA and Title VII Liability

A. Failure to Exhaust Administrative Remedies5
Reuter argues that Mayes has failed to exhaust administrative remedies for her
four racial discrimination and retaliation claims brought under the Missouri Human
Rights Act and Title VII against him. The State of Missouri only argues failure to
exhaust as to the retaliation claim brought against it under Title VII.6
The Missouri Human Rights Act makes it unlawful for employers to
discriminate on certain bases, including race. Mo. Rev. Stat. § 213.010 et seq. To

5

Defendants also argue that Mayes’s § 1983 claims in Counts I, II, and III should be dismissed for
failure to exhaust administrative remedies. Mayes is correct that she need not exhaust state
remedies before bringing her claims under § 1983. See Charleston v. McCarthy, 175 F.Supp.3d
1115, 1120 (S.D. Iowa 2016) (stating the “general rule” that “a plaintiff need not exhaust state
remedies before bringing an action under § 1983” except for limited procedural due process claims).
6

Mayes concedes in her response brief that counts IV, V, VI, and VII, for racial discrimination and
retaliation under the MHRA and Title VII, should be dismissed as to defendants Lingenfelter and
Scrivner. See ECF No. 20 at 21.

15

pursue a claim under the MHRA, the statute requires that any person claiming to be
aggrieved by an unlawful discriminatory practice must file a charge of discrimination
stating the name and address of the person alleged to have committed the unlawful
discriminatory practice and setting forth the particulars thereof. Mo. Rev. Stat. §
213.075(1). In addition, a “claimant must exhaust administrative remedies by timely
filing an administrative complaint and either adjudicating the claim through the
MCHR or obtaining a right-to-sue letter.” Tart v. Hill Behan Lumber Co., 31 F.3d
668, 671 (8th Cir. 1994). The exhaustion requirement provides notice of all claims of
discrimination. Claims should be interpreted liberally, such that administrative
remedies are deemed exhausted as to all incidents of discrimination that are “like or
reasonably related to the allegations of the [administrative] charge.” Id. (quoting
Anderson v. Block, 807 F.2d 145, 148 (8th Cir. 1986) (alteration in original)).
Title VII of the Civil Rights Act imposes liability on an employer who engages
in certain discriminatory practices, including discrimination based on race. 42 U.S.C.
§ 2000e-2(a). Under Title VII, an aggrieved party must file a timely charge of
discrimination with the EEOC before she is permitted to bring suit in federal court.
42 U.S.C. § 2000e-5(b), (c), (e). Similar to a MHCR charge, “[t]he permissible scope
of an EEOC lawsuit is not confined to the specific allegations in the charge; rather, it
may extend to any discrimination like or related to the substance of the allegations in
16

the charge and which reasonably can be expected to grow out of the investigation
triggered by the charge.” E.E.O.C. v. Delight Wholesale Co., 973 F.2d 664, 668 (8th
Cir. 1992). However, each discrete act of alleged discrimination is a different
unlawful employment practice for which a separate charge is required. Richter v.
Advance Auto Parts, Inc ., 686 F.3d 847, 851 (8th Cir. 2012) (citing Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002)). Entirely new allegations that
appear for the first time in the federal-court complaint should be dismissed for failure
to exhaust administrative remedies if the EEOC charge did not provide notice that
they would be raised. Id. at 850-53.
Counts IV & VI: Racial Discrimination Claims
In Count IV of the complaint brought for racial discrimination under the
MHRA, Mayes asserts that she was discriminated against because of her race “by
demoting her, by failing to re-promote her to a Level III Clerk, by failing to appoint
her as a Courtroom Clerk, and by using false pretextual statements against her to
provide grounds for terminating her, and by then terminating her employment as a
Deputy Clerk.” ECF No. 1 at ¶ 125. In Count VI of the complaint brought for racial
discrimination under Title VII, Mayes asserts defendants treated other clerks who are
not African-American more favorably “by promoting … Caucasian clerks who had
less experience and who were less qualified than [Mayes].” ECF No. 1 at ¶ 137.
17

The EEOC and MCHR charges provide sufficient particulars involving Reuter
to put him on notice and to constitute exhaustion of Mayes’s racial discrimination
claim. Both charges specifically name Reuter and racial discrimination. Although at
the time of filing of the EEOC charge Mayes had only recently been demoted, the
particulars provide the basis for racial discriminatory employer practices by Reuter
that are like or related to the substance of the allegations in the complaint relating to
her demotion, and could reasonably be expected to grow out of an investigation
triggered by the charge.
Counts V & VII: Retaliation Claims
In Counts V and VII of the complaint for retaliation under the MHRA and Title
VII, Mayes alleges defendants retaliated against her “because she filed a grievance
relating to her removal as the Courtroom Clerk for Judge Missey, because she filed a
complaint with the Equal Employment Opportunity Commission and because she
filed a complaint with the Missouri Human Rights Commission.” ECF No. 1 at ¶¶
130, 143. She alleges that they took the following adverse employment actions in
retaliation: “failing to reappoint her as a Courtroom Clerk, by demoting her from a
Level III to a Level II Deputy Clerk and then refusing to re-promote her and by
terminating her employment.” Id. Mayes’s December 2016 and April 2017 EEOC
and MCHR charges state that she filed a grievance against Judge Missey, that Reuter
18

rejected the grievance upon the direction of Judge Missey, and that Judge Missey was
mad about the grievance filing so he instructed Reuter to demote Mayes from Deputy
Clerk III to Deputy Clerk II. ECF Nos. 1-1 at 2, 1-2 at 2. There are sufficient
particulars in the charge documents to exhaust administrative remedies as to a claim
that the State and Reuter retaliated against her for filing the grievance against
Missey.7
Retaliation claims arising from a charge filed with the EEOC or the MCHR
must also meet statutory exhaustion requirements – meaning a second charge alleging
retaliation based on the filing of the first charge must also be filed. Richter, 686 F.3d
at 851, 854. In this case, there is no evidence before me that Mayes filed a second
EEOC or MCHR charge alleging that her termination was in retaliation for the filing
of the first charges. However, no defendant has made this argument and it is
unnecessary to decide because Mayes’s retaliation claims fail on other grounds.

7

Mayes could not have exhausted the termination claim in the EEOC and MCHR charges that she
filed because she had not yet been terminated when she filed the charges. But, again, since
defendants did not make this argument, it will not be addressed here.

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B. Sufficiency of the factual allegations
Counts IV & VI: Racial Discrimination Claims 8
Reuter argues that Mayes’s racial discrimination claims, brought under both
the MHRA and Title VII, should be dismissed against him because she fails to allege
any facts sufficient to create an inference that Reuter took any action against her
based on her race. I agree. Just as Mayes’s claim of equal protection based on race
lacks any factual support, so do these claims.
Under the MHRA, a case of racial discrimination in the employment context
requires a plaintiff to demonstrate that race was a contributing factor in her
employer’s decision. Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 81920 (Mo. banc 2007) (citing Mo. Rev. Stat. § 213.010(5) (1998)).9 Under Title VII, an

8

The State of Missouri seeks dismissal of all four claims brought against it but makes no argument
in support of the dismissal of the racial discrimination claims, only mentioning race as something
Mayes did not complain to her supervisors or anyone other than Judge Missey about.
9

Effective August 28, 2017, provisions of the MHRA were amended. The parties mention the
amendments of the MHRA but do not affirmatively state which version of the MHRA should apply
here. This case was filed after the amendments in December 2017, but many of the allegations of
the complaint involve events that occurred before the amendments. Recent Missouri cases have
held that the MHRA amendments do not apply retrospectively. See Hurley v. Vendtech-SGI, LLC,
No. 16-01222-CV-W-ODS, 2018 WL 736057, at *3-4 (W.D. Mo. Feb. 6, 2018) (agreeing with
most Missouri courts that have considered the issue and found no retrospective application of the
new MHRA causation standard for a case filed in November 2016); Woodruff v. Jefferson City Area
Young Men’s Christian Ass’n, No. 17-4244-CV-C-WJE, 2018 WL 576857, at *3 (W.D. Mo. Jan.
27, 2018) (finding that the change in MHRA definition of “employer” involves a substantive right
and cannot apply retroactively to a case filed October 2017 but involving an employee terminated in
July 2016).
One of the August 2017 amendments changes the MHRA causation standard from “contributing
factor” to “motivating factor.” Hurley, 2018 WL 736057, at *3 (citing Mo. Rev. Stat. §§ 213.101.4,

20

unlawful employment practice requires a plaintiff to demonstrate that race was “a
motivating factor for any employment practice, even though other factors also
motivated the practice.” 42 U.S.C. § 2000e-2(m).
Mayes’s complaint contains no factual allegations to support either of these
causation standards. Mayes points to no direct or circumstantial evidence that race
was a contributing or motivating factor in Reuter’s adverse employment actions.
Mayes is the only African-American Deputy Clerk at the court, but that alone is not
enough to support an accusation of racial discrimination. She states that Lingenfelter,
who replaced her as courtroom clerk for Judge Missey, is Caucasian and had less
experience in the Clerk’s office than Mayes. However, there is no allegation that
Reuter participated in the decision to appoint Lingenfelter as Missey’s courtroom
clerk. Mayes names no similarly situated employee who was treated differently by
Reuter. The complaint simply does not contain any factual allegations, that when
accepted as true, state a claim for relief “that is plausible on its face.” Twombly, 550
U.S. at 570. Counts IV and VI will be dismissed as to defendant Reuter.
Counts V & VII: Retaliation Claims
213.111.5, 213.010(2) (2017)). The contributing factor standard is less rigorous than the motivating
factor standard, which is applied in Title VII discrimination cases. Denn v. CSL Plasma, Inc., 816
F.3d 1027, 1033 (8th Cir. 2016).
In light of the Missouri cases prohibiting retrospective application and because the new causation
standard is the same as the Title VII standard, the court will use the pre-Amendment version of the
MHRA here; Mayes’s claims fail under both standards.

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Reuter and the State of Missouri both argue that Mayes fails to allege sufficient
facts to support her MHRA and Title VII retaliation claims against them. To
establish a prima facie case of retaliation under the MHRA, Mayes must demonstrate
that she complained of discrimination, that her employer took adverse action against
her, and that a causal relationship existed between her complaint and the adverse
action. See McCrainey v. Kansas City Mo. Sch. Dist., 337 S.W.3d 746, 753 (Mo. Ct.
App. 2011). Similarly, for a prima facie case of Title VII retaliation, Mayes must
demonstrate that she engaged in protected conduct, she suffered a materially adverse
employment action, and the adverse action was causally linked to the protected
conduct. Id. at n.3.
Mayes has not provided the court with a copy of the grievance she filed after
her removal as courtroom clerk or Reuter’s written response to her grievance. See
ECF No. 1 at ¶¶ 70-71. Although Mayes alleges that she directly accused Judge
Missey of racial discrimination, 10 there is no allegation that Reuter was himself
aware of her complaint of racial discrimination. There are also no allegations that
Reuter was aware of Mayes’s EEOC and MCHR charges. Even construing the
complaint allegations in Mayes’s favor and assuming Reuter was aware of Mayes’s
10

Mayes only verbally expressed her allegation of racial discrimination to Judge Missey:
During the meeting with Judge Missey on about November 30, 2016, [Mayes]
responded that she believed Judge Missey was replacing her as his Courtroom Clerk,
and therefore as Secretary to the Presiding Judge, because she is black.
ECF No. 1 at ¶ 68.

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protests of racial discrimination, there are no facts to support a causal link between
Mayes’s three filings and any adverse employment action taken against her. Mayes
points to no references, comments, or complaints by Reuter that suggest that her
accusations of discrimination were considered in his decisions to demote her from
level III to level II clerk, his failure to re-promote her, or his termination of her
employment. Her grievance and EEOC charge were filed in December 2016. Her
MCHR charge was filed in April 2017. She was terminated in October 2017. The
lengthy period between complaints and termination diminishes the possible inference
of casual nexus. See Denn v. CSL Plasma, Inc., 816 F.3d 1027, 1036-37 (8th Cir.
2016) (weakens inference of retaliation when more than seven weeks passed between
complaint and termination); Jain v. CVS Pharmacy, Inc., 779 F.3d 753, 760 (8th Cir.
2015) (weakens causal link for retaliation where almost one year passed between
complaints and termination). There are no facts to support an inference that Mayes’s
complaints about discrimination affected Reuter’s employment decisions.
As for the allegation of failure to reappoint or re-promote Mayes to a
courtroom clerk position (which can only be directed at the State because it has been
established that Reuter did not have the authority to make such an appointment),
Mayes provides no facts of a causal link to any of her filings alleging discrimination.
Mayes names no specific courtroom clerk opening that she was not considered for by
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an appointing Judge because of her grievance or statutory charges. She does not even
allege that the other Judges of the court were aware of the filings. There are no facts
to support a retaliation claim against Reuter or the State of Missouri. Counts V and
VII will be dismissed.
VII. Conclusion
Assuming the allegations of the complaint are true and construing them in the
light most favorable to Mayes – as I must on a motion to dismiss – there is simply no
factual basis for the legal conclusions that defendants Lingenfelter, Scrivner, or
Reuter discriminated or took adverse employment actions against Mayes based on her
political affiliation, in retaliation for her support of a Democratic candidate, in
retaliation for her complaints of discrimination, or because of her race. Nor are there
sufficient factual allegations plead with particularity to indicate a meeting of the
minds of the three individual defendants, as required for a conspiracy claim.
Defendants Lingenfelter, Scrivner, and Reuter’s motions to dismiss are granted and
they are dismissed from this case. Defendant State of Missouri’s motion to dismiss
will be granted in part. Mayes’s Title VII and MHRA retaliation claims against the
State are dismissed for failure to state a claim but her statutory racial discrimination
claims remain.11

11

Mayes’s response in opposition to defendants’ motions to dismiss alternatively requests leave to
file an amended complaint “to correct any deficiencies, if any, that are correctable.” ECF No. 20 at

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Based on the foregoing,
IT IS HEREBY ORDERED that defendants Katrina Lingenfelter and Ashley
Scrivner’s Motion to Dismiss [#8] is GRANTED.
IT IS FURTHER ORDERED that defendant Michael Reuter’s Motion to
Dismiss [#11] is GRANTED.
IT IS FINALLY ORDERED that defendant State of Missouri’s Motion to
Dismiss [#16] is GRANTED as to Counts V and VII. The only remaining claims in
this case are Counts IV and VI against defendant State of Missouri.
This case will be set for a Rule 16 Scheduling Conference by separate order.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 17th day of May, 2018.

27. Although the court recognizes its duty to freely grant leave to amend when justice so requires,
Fed. R. Civ. P. 15(a)(2), there is no evidence here to indicate that Mayes’s complaint can be cured
of its factual deficiencies with an amended filing. Leave to amend will not be granted.

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