Slack v. St. Louis County et al

Filing 17

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants Motion to Dismiss is GRANTED in part and DENIED in part. ECF No. 8. All counts brought against Defendant Steve Stenger in both his individual and official capacity are dismissed. Counts I , II, and III are also dismissed as to Defendant St. Louis County. The only remaining claim is Count IV (Retaliation) as to Defendant St. Louis County. (Steven V. Stenger (in his individual and official capacity) terminated.). Signed by District Judge Audrey G. Fleissig on 09/24/2018. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANNETTE SLACK,
Plaintiff,
vs.
SAINT LOUIS COUNTY, et al.,
Defendants.

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Case No. 4:18-CV-647 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motion (ECF No. 8) of Defendants Steven
V. Stenger (“Stenger”) and Saint Louis County (“County”) to dismiss Plaintiff’s
complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
Plaintiff opposes dismissal, arguing that her complaint meets the federal pleading
standard. For the reasons set forth below, the Court will grant Defendants’ motion in part
and deny it in part.
BACKGROUND
Plaintiff, a former employee of the County, filed this suit asserting claims under
42 U.S.C. § 1983, 42 U.S.C. § 1981, and Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., against the County and St. Louis County Executive Stenger.
Plaintiff’s complaint contains four counts, alleging employment discrimination (Counts I
and II), fourteenth amendment equal protection violation (Count III), and retaliation

(Count IV). All counts are asserted against both Defendants, including against Stenger in
both his individual and official capacities. Plaintiff seeks damages and attorney’s fees. 1
In her complaint, Plaintiff describes herself as a “Black adult female” previously
employed by the St. Louis County Executive’s Office as the Director of Community
Empowerment and Diversity Manager. ECF No. 1 ¶¶ 6, 15. It is unclear when Plaintiff
started her employment with the County, 2 but she states that she was discharged in
February 2016 for “allegedly violating St. Louis County’s prohibition for secondary
employment without permission.” ECF No. 1 ¶ 16. Prior to discharge, Plaintiff says that
she complained on numerous occasions “that minorities were being treated harshly,” that
the “diversity program was not being properly applied to help minorities,” that
“minorities within the department were treated harsher,” that minorities “were not given
the same access as non-minorities,” and that all Plaintiff’s attempts “to help minorities
[were] met with resistance.” Id. ¶¶ 17-18, 20. According to Plaintiff, she did “good”
work for the County and she was never disciplined or reprimanded under the County’s
progressive disciplinary policy before her discharge. Id. ¶¶ 15, 21.
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”) in September 2016 against the “St. Louis County Executive’s

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Plaintiff’s complaint describes this action as one for “declaratory judgment pursuant to
28 U.S.C. § 2201 to declare the rights and other legal relations between the parties,” and
for “equitable relief and injunctive relief.” ECF No. 1 ¶ 1. However, the specific counts
of the complaint only seek money damages and attorney’s fees.
2

Plaintiff’s complaint states that she began working in the Director position around April
20, 2015, but her Equal Employment Opportunity Commission charge states that she was
appointed to the position in January 2015. ECF Nos. 1 ¶ 15, 1-1 at 1.
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Office,” alleging discrimination based on race, sex, and retaliation. ECF No. 1-1. The
EEOC issued a Notice of Right to Sue to Plaintiff on March 20, 2018. ECF No. 1-2.
Plaintiff included the administrative charge and Notice of Right to Sue as exhibits to her
complaint. In the charge particulars, Plaintiff states that she supervised a group of
employees – consisting mostly of African Americans with one Caucasian individual –
and that the African American employees were allegedly “subjected to different terms
and conditions of employment” including “exclusion from events/meeting and were
confined with limited direct access to [her] where the Caucasian individual was not.”
ECF No. 1-1 at 1. At the time of her discharge, Plaintiff alleges that her supervisor Jeff
Wagner told her that if she didn’t resign her position, she would be terminated. Plaintiff
believes she was terminated in retaliation for stating her opinion that defendants were
being negligent in their “responsibilities to assist the minority community with
employment opportunities.” Id. at 2.
Both Defendants have moved to dismiss all the claims against them as
insufficiently plead under Rule 12(b)(6), Fed. R. Civ. P. Defendant Stenger also
specifically argues for dismissal of: (1) the official capacity claims brought against him
as redundant or duplicative of the claims against the County; and (2) the Title VII
individual capacity claims brought against him as invalid claims against an individual
state actor.
DISCUSSION
To survive a motion to dismiss for failure to state a claim, a plaintiff’s allegations
must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is
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plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The reviewing court accepts the plaintiff’s
factual allegations as true and draws all reasonable inferences in favor of the nonmoving
party. Torti v. Hoag, 868 F.3d 666, 671 (8th Cir. 2017). But “[c]ourts are not bound to
accept as true a legal conclusion couched as a factual allegation, and factual allegations
must be enough to raise a right to relief above the speculative level.” Id.
Official Capacity Claims against Defendant Stenger (All Counts)
Plaintiff brings all four counts of the complaint against Stenger, the St. Louis
County Executive at all times relevant, in his official capacity. But these same counts are
also brought against the County and therefore they are “functionally equivalent.” Veatch
v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010). Because a suit against a
supervisor in his or her official capacity is treated as a suit against the employer itself,
these counts will be dismissed against Stenger in his official capacity as duplicative or
redundant. See id.; Bonenberger v. City of St. Louis, No. 4:16CV788 PLC, 2016 WL
5341113, at * 2 (E.D. Mo. Sept. 23, 2016).
Title VII Claims against Both Defendants (Counts I, II, and IV)
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). Plaintiff brings three counts under Title VII: (1) Count I for employment
discrimination under Title VII’s prohibition on discharging a person based on her race
(42 U.S.C. § 2000e-2(a)(1)); (2) Count II for employment discrimination under Title
VII’s prohibition on limiting, segregating, or classifying an employee in a way that
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deprives her of employment opportunities because of her race (42 U.S.C. § 2000e2(a)(2)); and (3) Count IV for retaliation under Title VII’s prohibition on discriminating
against an employee because she has opposed an unlawful practice or made a charge of
unlawful discrimination (42 U.S.C. § 2000e-3).
Plaintiff brings her Title VII claims against Stenger in his individual capacity. “It
is well settled that Title VII provides for claims only against an individual’s ‘employer’
and that individual coworkers, supervisors and managers are not employers under the
statute.” Robinson v. N. Am. Sch. Bus, No. 4:16 CV 1576 RWS, 2017 WL 1477143, at
*3 (E.D. Mo. Apr. 24, 2017); see also Roark v. City of Hazen, Ark., 189 F.3d 758, 761
(8th Cir. 1999) (“[A] supervisor may not be held liable under Title VII.”). “Plaintiff
concedes that a supervisory official may not be held liable in his or her individual
capacity and does not seek to hold Stenger in his individual capacity under Title VII.”
ECF No. 11 at 5. However, Plaintiff goes on to argue that Stenger is an “employer”
under Title VII based on the holding of a Sixth Circuit case discussing the Americans
with Disabilities Act (“ADA”). See Satterfield v. Tenn., 295 F.3d 611, 616-17 (6th Cir.
2002) (discussing legal theories under which entities can be deemed employers under the
ADA). The Court finds this case unpersuasive and notes that it is not controlling
precedent here. Defendant Stenger is an individual supervisor and cannot be held liable
under Title VII. The Court will dismiss Plaintiff’s Title VII claims in Counts I, II, and IV
against Stenger. 3

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To the extent that Plaintiff attempts to state a claim against Stenger under § 1981 as part
of Count IV, this claim fails because “a federal action to enforce rights under § 1981
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As for the Title VII claims of racial discrimination brought in Counts I and II
against the County, Plaintiff’s complaint contains insufficient allegations to state a claim
for relief. Plaintiff never alleges that she was discharged due to her race. Plaintiff’s
EEOC charge actually states otherwise: “I believe I was terminated in retaliation.” ECF
No. 1-1 at 2. Plaintiff does question the circumstances of her discharge, asserting that the
reason given for her termination was pretextual. But she never asserts – nor does she
provide any factual allegations to support – disparate treatment due to her race. The
complaint names no instances where Plaintiff felt she was personally treated differently
due to her race. Similarly, Plaintiff never alleges any limitation, segregation, or
classification by the County that deprived her of employment opportunities. Plaintiff
does state that the African American employees that she supervised were subjected to
different terms and conditions than the Caucasian employee. However, those employees
are not a party to this suit and Plaintiff fails to make the same disparate treatment
allegations concerning her own employment. Without any specific allegations of
disparate treatment, Plaintiff’s claim fails. Wilson v. Ark. Dep’t of Human Servs., 850
F.3d 368, 371 (8th Cir. 2017). Even if the bare elements of the claim were generally
pleaded, Plaintiff provides no factual support for them in her complaint. Accepting all of

against a state actor may only be brought pursuant to § 1983.” Washington v. Brooks,
No. 406CV0883 JMM, 2006 WL 3334473, at *1 (E.D. Ark. Nov. 16, 2006); see also Jett
v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735 (1989) (“We hold that the express ‘action
at law’ provided by § 1983 for the ‘deprivation of any rights, privileges, or immunities
secured by the Constitution and laws,’ provides the exclusive federal damages remedy for
the violation of the rights guaranteed by § 1981 when the claim is pressed against a state
actor.”)
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Plaintiff’s allegations as true, there is no basis on which a reasonable inference of racial
discrimination can be drawn. Counts I and II will be dismissed as to the County as well.
In contrast, the allegations supporting Plaintiff’s Count IV claim of retaliation
against the County are minimal, but sufficient for the claim to survive dismissal. For a
prima facie case, Plaintiff must show that she engaged in statutorily protected conduct,
she suffered an adverse employment action, and that a causal connection exists between
the two. Wilson, 850 F.3d at 372. Here, Plaintiff alleges that she complained to
supervisors of unequal terms and conditions of employment including that minorities
were treated more harshly and were not given the same access as non-minorities, and that
the office was not meeting its responsibilities to assist the minority community. As a
result of those complaints, Plaintiff alleges that she was terminated. 4 Admittedly, the
details on the complaints made by Plaintiff are sparse, but Plaintiff does specify that she
complained on numerous occasions about disparate treatment of minorities and that she
specifically complained to Steve Stenger and supervisor Jeff Wagner. ECF No. 1 ¶¶ 1718, 34. She also specifically alleges that her discharge was due to the complaints she
made. Construing the complaint allegations in Plaintiff’s favor, as must be done on a
motion to dismiss, I find that there are sufficient allegations for Plaintiff’s retaliation
claim (Count IV) to survive dismissal against the County.

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To the extent that Plaintiff argues that the County retaliated against her “on account of
her filing EEO claims,” such a claim fails. ECF No. 1 ¶ 36. Plaintiff filed her charges of
discrimination with the EEOC in September 2016, seven months after her employment
was terminated with the County. Her complaint contains no allegations of any retaliatory
actions taken after the EEOC filing; therefore there is no basis for a claim of retaliation
resulting from the EEOC charge filing.
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§ 1983 Equal Protection Claim against Both Defendants (Count III)
Plaintiff also brings one claim against both defendants under § 1983 and the
Fourteenth Amendment’s right to equal protection. The Equal Protection Clause of the
Fourteenth Amendment requires that government entities treat similarly situated persons
alike. Hager v. Ark. Dep’t of Health, 735 F.3d 1009, 1014 (8th Cir. 2013) (quoting
Keevan v. Smith, 100 F.3d 644, 648 (8th Cir. 1996)). For any equal protection claim, the
plaintiff must first demonstrate that she was treated differently than others who are
similarly situated to her. See Keevan, 100 F.3d at 648.
For a public employee, like Defendant Stenger, §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) (internal quotations omitted) (citing Dossett v. First
State Bank, 399 F.3d 940, 947 (8th Cir. 2005)). “[A] public employee acts under color of
law when he exercise[s] power possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law.” Id. (citing Johnson v.
Phillips, 664 F.3d 232, 239-40 (8th Cir. 2011)). The defendant must be acting or
purporting to act “in the performance of official duties.” Id.
Here, Plaintiff alleges no specific actions taken by Defendant Stenger that
deprived her of her rights. In her EEOC charge of discrimination, Plaintiff mentions
Stenger only once as the person who appointed her to the Director position in the County
Executive office. In her complaint, the only factual allegation naming Stenger is that
Plaintiff complained to him about disparate terms and conditions of her employment. In
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describing the nature of the action, Plaintiff alleges that Stenger committed a “continuing
series of discriminatory conduct against her because of her race,” but the complaint is
devoid of any specific allegations of discrimination committed by Stenger. ECF No. 1 ¶
3. There are simply no allegations of any action taken by Stenger, in the performance of
his official duties, where he treated Plaintiff differently than others who were similarly
situated to her. 5 Count III will be dismissed as to Defendant Stenger for failure to state a
claim.
With respect to Plaintiff’s claim against the County, “[s]ection 1983 liability for a
constitutional violation may attach to a municipality if the violation resulted from (1) an
official municipal policy, (2) an unofficial custom, or (3) a deliberately indifferent failure
to train or supervise.” Corwin v. City of Independence, Mo., 829 F.3d 695, 699 (8th Cir.
2016) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); City of Canton,
Ohio v. Harris, 489 U.S. 378, 389 (1989)). A municipality may not be sued under § 1983
for injuries inflicted solely by its employees or agents. Monell, 436 U.S. at 690-91. It is
when an employee acts “under color of some official policy” and violates another’s
constitutional rights, that the government is liable. Id. at 692. An official policy involves
“a deliberate choice of a guiding principle or procedure made by the municipal official
5

Plaintiff’s only mention of a “similarly situated white employee[]” appears in the Count
IV Retaliation paragraphs of her complaint (not incorporated into the Count III Equal
Protection allegations), whereby she names a “Bonnie Kelley” as a person treated
differently who did “not file claims against [Defendants].” ECF No. 1 ¶ 36. Even if this
allegation was incorporated into the equal protection claim, there is no mention of
differential treatment of Kelley by Defendant Stenger or how Plaintiff is similarly
situated to Kelley. Plaintiff cannot allege differential treatment resulting from her EEOC
charge because the complaint contains no allegations of mistreatment that occurred after
Plaintiff’s discharge and EEOC filing.
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who has final authority regarding such matters.” Corwin, 829 F.3d at 700 (quoting
Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999)). To establish liability through
a unofficial custom of the municipality, a plaintiff must demonstrate: “(1) the existence of
a continuing, widespread, persistent pattern of unconstitutional misconduct by the
governmental entity’s employees; (2) deliberate indifference to or tacit authorization of
such conduct by the governmental entity’s policymaking officials after notice to the
officials of that misconduct; and (3) that plaintiff was injured by acts pursuant to the
governmental entity’s custom, i.e., that the custom was a moving force behind the
constitutional violation.” Id. (quoting Snider v. City of Cape Girardeau, 752 F.3d 1149,
1160 (8th Cir. 2014)). A municipality can be liable for a failure to train or supervise only
when that failure “amounts to deliberate indifference to the rights of persons with whom
the [employee] come[s] into contact.” S.M. v. Lincoln County, 874 F.3d 581, 585 (8th
Cir. 2017) (alterations in original) (quoting City of Canton, 489 U.S. at 389).
Here, Plaintiff’s complaint attempts to allege all three of these bases of municipal
liability against the County, but only in conclusory terms. Plaintiff states that
“Defendants, as a matter of custom, policy and/or practice intentionally and deliberately
failed to adequately train, supervise, discipline, or otherwise direct the supervisors
concerning retaliation and employment discrimination,” and “failed to put in place,
implement and/or establish management policies and procedures that would impact fairly
upon all its employees, regardless of their ability.” ECF No. 1 ¶ 12. These allegations
are “no more than conclusions.” Iqbal, 556 U.S. at 679. Plaintiff’s complaint does not
cite any official County policy which allegedly resulted in a constitutional violation; does
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not describe a continuing, widespread pattern of unconstitutional misconduct amounting
to a municipal custom; and does not include any factual allegations supporting a
deliberately indifferent failure to train or supervise theory.
In Plaintiff’s response in opposition to dismissal, she seems to argue that
Defendants have a policy or custom of retaliation by pretextual discharge: “Defendants
utilizing the power of the government terminated her as a result of engaging in statutorily
protected activity and used the alleged violation of policy for secondary employment as a
smokescreen to cover their discriminatory animus.” ECF No. 11 at 11. Despite this
statement, Plaintiff does not allege that anyone in the County Executive Office ever
promulgated, or even articulated, a policy of pretextual discharge when an employee
complained of racial discrimination. Nor does Plaintiff allege any pattern of retaliatory
discharge that was directed at anyone other than herself. A single act of a governmental
official may constitute a municipal policy where the official has “final policymaking
authority” and where the challenged action was “taken pursuant to a policy adopted by
the official . . . responsible under state law for making policy in that area of the city’s
business.” City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (emphasis removed)
(citing Pembaur v. Cincinnati, 475 U.S. 469, 482-83 (1986)). Again, Plaintiff has not
alleged her supervisor had final policymaking authority or that her discharge was a result
of an adopted policy.
Plaintiff’s only specific factual allegation of a deprivation of a right by defendants
is when she alleges that they failed “to provide her with a name clearing hearing.” ECF
No. 1 ¶ 32. In her response in opposition to dismissal, Plaintiff argues that the
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deprivation of a hearing violated her Fourteenth Amendment right to due process. See
ECF No. 11 at 12. The Fourteenth Amendment prohibits governments from “depriv[ing]
any person of life, liberty, or property, without due process of law.” U.S. Const. amend.
XIV, § 1. However, Plaintiff “cannot establish a due process violation because she did
not sufficiently, if at all, request a name-clearing hearing. An employee must request a
name-clearing hearing in order to be entitled to one.” Floyd-Gimon v. Univ. of Ark. for
Med. Sciences ex rel. Bd. of Trustees of the Univ. of Ark., 716 F.3d 1141, 1147 (8th Cir.
2013). Plaintiff never alleges that she requested a name-clearing hearing or that she was
denied one. Plaintiff fails to plead the necessary allegations for municipal liability under
§ 1983 and fails to provide any facts to support such a cause of action. Therefore, the
Court will dismiss Plaintiff’s § 1983 claim against both Defendants for failure to state a
claim.
CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss is GRANTED
in part and DENIED in part. ECF No. 8. All counts brought against Defendant Steve
Stenger in both his individual and official capacity are dismissed. Counts I, II, and III are
also dismissed as to Defendant St. Louis County. The only remaining claim is Count IV
(Retaliation) as to Defendant St. Louis County.
_________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 24th day of September, 2018.
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