Nwinee v. St. Louis Developmental Disabilities Treatment Centers et al

Filing 110

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that defendants' motion for summary judgment [Doc. # 97 ] is granted. A judgment in accordance with this Memorandum and Order will be separately entered. Signed by Magistrate Judge John M. Bodenhausen on 01/07/2021. (ANP)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

PIUS BARIKPOA NWINEE,
Plaintiff,
vs.
ST. LOUIS DEVELOPMENTAL
DISABILITIES TREATMENT CENTERS,
et al.,
Defendants.

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Case No. 4:18 CV 1460 (JMB)

MEMORANDUM AND ORDER
This matter is before the Court on the motion of defendants St. Louis Developmental
Disabilities Treatment Centers and Melissa Theis for summary judgment, pursuant to Rule 56,
Fed.R.Civ.P. Plaintiff Pius Barikpoa Nwinee, who is self-represented, has filed a response in
opposition and the issues are fully briefed. The parties consented to the jurisdiction of the
undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
Plaintiff Pius Barikpoa Nwinee is employed by the defendant St. Louis Developmental
Disabilities Treatment Centers. He alleges that he was improperly denied a promotion in October
2017 in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e, et seq., and the Missouri
Human Rights Act (MHRA), Mo. Rev. Stat. §§ 213.010 et seq.1 On July 17, 2018, he filed suit
against defendants St. Louis Developmental Disabilities Treatment Centers and Melissa Theis,

Plaintiff alleged that defendants violated his rights under Title VII and the “Missouri Civil Rights Act,”
which the Court construes as a claim under the MHRA. Petition at ¶ 7 [Doc. # 7].
1

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acting deputy director for the Division of Personnel, Office of Administration. 2 Defendants move
for summary judgment, arguing that plaintiff failed to timely file his Title VII claim, failed to
obtain a right–to–sue notice as required by the MHRA, and that he was denied promotion because
he lacked the necessary qualifications.
I.

Background3

Plaintiff has been employed since June 2012 as a Developmental Assistant I by defendant
St. Louis Developmental Disabilities Treatment Center, a facility operating under the purview of
the Missouri Department of Health. SUMF at ¶¶ 1–2 [Doc. # 99]. He holds two bachelor’s degrees
in philosophy and criminology and criminal justice and a master’s degree in legal studies. See
Diplomas [Doc. # 102–3 at 1–5]. On October 13, 2017, plaintiff applied online for the position of
Unit Program Supervisor and was automatically placed on the register4 for that position based on
a self–assessment of his experience and education. SUMF at ¶ 8. On November 1, 2017, plaintiff

2

Ms. Theis was acting deputy director from October 24, 2017 to January 8, 2018. Melissa Theis Affidavit
at ¶ 2 [Doc. # 99–1].
3

Plaintiff has not filed, either with his opposition memorandum or his surreply, a response to defendants’
Statement of Uncontroverted Material Facts (SUMF) as required by this district’s local rules. See E.D. Mo.
L.R. 4.01(E) (“Every memorandum in opposition [to a motion for summary judgment] must be
accompanied by a document titled Response to Statement of Material Facts.”). As a consequence, the facts
set forth in defendants’ SUMF are deemed admitted. Id. (“All matters set forth in the moving party’s
Statement of Uncontroverted Material Facts shall be deemed admitted for purposes of summary judgment
unless specifically controverted by the opposing party.”).
4

A register is a list of applicants who have been found eligible for a specific job description. SUMF at ¶
14. An individual’s name must be included on the register to be considered for employment within a merit
system agency. Id. Applicants are automatically placed on a register if their responses to a self–assessment
indicate that they have the necessary qualifications. See Transcript Excerpts [Doc. # 102–1 at 9] (testimony
by Mindy Allen, personnel analyst with the Missouri Office of Administration, Division of Personnel). The
hiring agency completes an initial assessment of the applicants’ education and experience. If the agency
determines that an applicant is not eligible for the particular register, the agency does not have the authority
to remove the applicant from the register but must refer the applicant to the Division of Personnel, where
the applicant’s eligibility is evaluated by a personnel analyst and the analyst’s supervisor. Id. at 10. If it is
determined that the applicant is not eligible for a particular register, the individual is removed from the
register. The individual can appeal to the director of the Division of Personnel and then seek a hearing
before the Administrative Hearing Commission. Id. at 11–12.
2

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was asked by a personnel analyst with the Division of Personnel to provide more information
regarding his work experience and education. SUMF at ¶ 9; Sarah Zayumba email (“[W]e are
requesting additional information to help us determine your eligibility.”) [Doc. # 99–2];
Application Note (“After reviewing applicant’s information, it appear[s] that applicant does not
meet the minimum qualification requirements.”) [Doc. # 99–3]. On November 15, 2017, Sandra
Baskette, a senior analyst with the Division of Personnel, informed plaintiff that his name was
removed from the register for the Unit Program Supervisor because he did not have the required
three

years

of

“professional

experience

working

with

persons

with

mental

retardation/developmental disabilities and/or mental illness.” SUMF at ¶ 10; Baskette Memo
(emphasis in original) [Doc. # 99–4]. Plaintiff appealed and, on December 14, 2017, Guy Krause,
acting director of the Division of Personnel, upheld the decision. SUMF at ¶ 11. Noting that the
Unit Program Supervisor position required three years of professional experience,5 Mr. Krause
explained that plaintiff’s current position as a Developmental Assistant I was classified as a “direct
care” and not “professional level” position. Krause Letter [Doc. # 99–5]. In response to plaintiff’s
assertion that his current job duties were the same as those performed by others in different
classifications, Mr. Krause invited plaintiff to request reclassification of his position if he believed
that was warranted. Id. Plaintiff then sought review from the Administrative Hearing Commission
(AHC), which held a hearing on March 5, 2018. See Transcript Excerpts [Docs. # 99–7, 102–1].
He apparently terminated this proceeding before receiving a decision. See Pl. Opp. at 9 (stating
he “withdrew the complaint” from the AHC “into state court on July 17, 2018” because he was
“unsatisfied with defendants’ unethical conduct.” ).

The Unit Program Supervisor “supervise[s] a professional and direct care staff in the development and
implementation of rehabilitation plans adapted to the needs of the clients, who are mentally handicapped.”
See Transcript Excerpts at 14.
5

3

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On February 14, 2018, plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission (EEOC) and the Missouri Commission on Human Rights.6
[Doc. # 99–6]. He wrote in his charge that, in the summer of 2017, he sent a letter to the “Division
Director Department” regarding the “misuse of fund, time and disparate treatment in the
workplace.” He alleged that his October 2017 application for Unit Program Supervisor was denied
“because of [his] national origin, Nigerian,” and in retaliation for his earlier report of wrongdoing
in the workplace. On February 27, 2018, the EEOC issued a right–to–sue notice, informing
plaintiff that he had 90 days to file suit on any federal claims. SUMF at ¶ 20; EEOC Notice [Doc.
# 99–6]. On March 16, 2018, the MCHR notified plaintiff that it had adopted the EEOC’s decision
and terminated its proceedings. SUMF at ¶ 20; MCHR Notice [Doc. # 99–6]. Plaintiff filed this
action on July 17, 2018, in the circuit court of St. Louis County, asserting claims under Title VII
and the MHRA. SUMF at ¶ 22. Defendants timely removed the matter to this Court, invoking
federal–question jurisdiction under 28 U.S.C. § 1331.
Additional facts will be included as necessary to address the issues.
II.

Legal Standard

Summary judgment is appropriate where “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Under Rule
56, a party moving for summary judgment bears the burden of demonstrating that no genuine issue
exists as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A dispute
is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving

6

Plaintiff also filed a charge of discrimination against the Missouri Office of Administration in June 2018.
See Pl. Opp. at 19. On June 25, 2018, the EEOC issued a right–to–sue notice and, on July 11, 2018, the
MHRA adopted the EEOC’s findings and terminated its proceedings. See Doc. # 102–3 at 7 and 9. Plaintiff
asks the Court to add the Office of Administration as a defendant in this case. Pl. Opp. at 19–20. The Court
cannot address new claims or parties at this stage of the litigation.
4

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party,” and a fact is material if it “might affect the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Once the moving party discharges this burden, the non-moving party must set forth specific
facts demonstrating that there is a dispute as to a genuine issue of material fact, not the “mere
existence of some alleged factual dispute.” Anderson, 477 U.S. at 247. The non-moving party
may not rest upon mere allegations or denials in the pleadings. Id. at 256. “Factual disputes that
are irrelevant or unnecessary” will not preclude summary judgment. Id. at 248. The Court must
construe all facts and evidence in the light most favorable to the non-movant, must refrain from
making credibility determinations and weighing the evidence, and must draw all legitimate
inferences in favor of the non-movant. Id. at 255.
III.

Discussion
A.

Compliance with Administrative Requirements

Defendants argue that plaintiff failed to timely file his claims and, furthermore, that he
never obtained a right–to–sue notice from the MHRC.
1.

Title VII

The EEOC issued plaintiff’s right–to–sue notice on February 27, 2018. Under Title VII, a
plaintiff alleging discrimination or retaliation must file suit within ninety days of the issuance of a
right–to–sue letter. 42 U.S.C. § 2000e–5(f)(1) (aggrieved party may file “civil action” within
ninety days of receiving notice of agency action). Under rare circumstances, the time limits that
apply to claims under Title VII can be saved by the doctrine of equitable tolling. See Hill v. John
Chezik Imports, 869 F.2d 1122, 1123 (8th Cir. 1989) (Title VII’s 90–day limitation period is
subject to equitable tolling in appropriate cases). “As a general rule, equitable tolling is a remedy

5

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reserved for circumstances that are truly beyond the control of the plaintiff.” Shempert v. Harwich
Chem. Corp., 151 F.3d 793, 797-98 (8th Cir. 1998) (internal quotations and citation omitted).
Here, plaintiff argues that any delay in filing his lawsuit should be forgiven because he was
“compelled” to file a complaint with the AHC, which he did on February 16, 2018. Pl. Opp. at 9.
Plaintiff cites no law to support his assertion that he was required to proceed before the AHC
before filing suit on his Title VII claim. And, because he terminated the process before it was
completed, he will not have satisfied any such condition if it truly exists. Alternatively, plaintiff
suggests, without citing any support, that the filing of an action with the AHC constitutes a timely
filing of a “civil action” within the requirements of § 2000e–5(f)(1). Id. The Court disagrees.
“Civil action” refers to the initiation of litigation in a court, not the pursuit of review within a state
administrative process. The Court agrees with defendants that plaintiff’s Title VII claim was not
timely filed, as required by 42 U.S.C. § 2000e–5(f)(1).
2.

The MHRA

In order to sue under the MHRA, a potential plaintiff first must file a complaint with the
MCHR. Mo. Rev. Stat. § 213.075 (“As a jurisdictional condition precedent to filing a civil action
under this chapter, any person claiming to be aggrieved by an unlawful discriminatory practice
shall make, sign and file with the commission a verified complaint in writing.”). The potential
plaintiff then must obtain a right-to-sue letter from the MCHR before filing suit. Mo. Rev. Stat. §
213.111.1 (“If, after one hundred eighty days from the filing of a complaint alleging an unlawful
discriminatory practice . . . the commission has not completed its administrative processing and
the person aggrieved so requests in writing, the commission shall issue to the person claiming to
be aggrieved a letter indicating his or her right to bring a civil action within ninety days of such
notice against the respondent named in the complaint.”). The complainant must file any civil

6

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action against the person or entity allegedly committing the discrimination within 90 days of the
date of the MCHR’s letter, but in no event later than two years after the alleged discrimination
occurred or was discovered. State, ex rel. Martin-Erb v. Missouri Comm’n on Human Rights, 77
S.W.3d 600, 604 (Mo. 2002).
Here, on March 16, 2018, the MCHR informed plaintiff that, “[b]ased on a review EEOC’s
investigation summary, the MCHR has decided to adopt the EEOC’s findings and terminate its
proceedings in this case.” MCHR Notice [Doc. # 99–6]. The communication also stated, “If you
are aggrieved by this decision of the MCHR, then you may appeal it by filing a petition under §
536.1507 [Mo. Rev. Stat.] in state circuit court. Any such petition must be filed in the circuit court
of Cole County.” Id. This document does not constitute a right–to–sue notice under § 213.111
and there is no evidence that plaintiff ever asked the MCHR to issue such a notice. Thus, he has
not satisfied a condition precedent to bringing suit on his claims under the MHRA. See Bonvicino
v. Sec. Servs. of Am., L.L.C., No. 4:07CV78 JCH, 2007 WL 1138843, at *4 (E.D. Mo. Apr. 17,
2007) (dismissing MHRA claim where plaintiff received notice from MCHR that it was
administratively closing plaintiff’s case); Lehman v. United Parcel Serv., Inc., 443 F. Supp. 2d
1146, 1152 (W.D. Mo. 2006) (same).
In summary, the Court determines that plaintiff has not satisfied the administrative
prerequisites for proceeding on his claims in this Court and defendants are entitled to summary

7

Section 536.150 states:
When any administrative officer . . . shall have rendered a decision which is not subject to
administrative review, determining the legal rights, duties or privileges of any person, . . .
and there is no other provision for judicial inquiry into or review of such decision, such
decision may be reviewed by suit for injunction, certiorari, mandamus, prohibition or other
appropriate action.
7

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judgment on that basis. In the alternative, and as addressed below, defendants are entitled to
summary judgment on the merits of plaintiff’s claims.
B.

The Merits of Plaintiff’s Discrimination Claims

Plaintiff alleges that he was removed from the register for the Unit Program Supervisor
position on the basis of his race and national origin and in retaliation for his 2017 accusation of
misconduct in the workplace. He also asserts that he was subjected to a hostile environment, but
he did not include such a claim in his charge of discrimination, nor is such a claim like or
reasonably related to the reasonably related to the discrimination allegations in that charge. See
Dorsey v. Pinnacle Automation Co., 278 F.3d 830, 838 (8th Cir. 2002) (“A plaintiff may seek
relief for any discrimination that grows out of or is like or reasonably related to the substance of
the allegations in the administrative charge.”). Accordingly, plaintiff has not exhausted his
administrative remedies with respect to his hostile–environment claim and it will not be addressed.
To survive a motion for summary judgment under either Title VII or the MHRA, a plaintiff
must show either direct evidence of a Title VII violation or create an inference of discrimination
or retaliation under the McDonnell Douglas burden-shifting framework. Shirrell v. St. Francis
Med. Ctr., 793 F.3d 881, 887 (8th Cir. 2015) (Title VII claim); Schierhoff v. GlaxoSmithKline
Consumer Healthcare, L.P., 444 F.3d 961, 965 (8th Cir. 2006) (MHRA claim). Plaintiff argues
that he has direct evidence of national–origin discrimination.
“Direct evidence provides a strong causal link between the alleged discriminatory bias and
the adverse employment decision.” Massey-Diez v. Univ. of Iowa Cmty. Med. Servs., Inc., 826
F.3d 1149, 1160 (8th Cir. 2016) (citation omitted). Direct evidence may be circumstantial if the
inferred causal link is strong enough. Id. The bias, however, must be that of the decision maker
and must relate to the decisional process. Id. Here, plaintiff relies on a statement by Michelle

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Stach, the assistant superintendent of the St. Louis Developmental Disabilities Treatment Center,
on November 20, 2017,8 that plaintiff was not eligible for the Unit Program Supervisor position
because he had not worked as a “habilitation officer” and he had an accent. Amended Complaint
at ¶¶ 28, 30; see also Pl. Dep. at 91 (testifying that Michelle Stach told him he had an accent) [Doc.
# 99–8 at 11]. There is no evidence in the record before this Court that Ms. Stach played any role
in the decision to remove plaintiff from the register for the Unit Program Supervisor position. And,
according to testimony before the AHC, Ms. Stach had no authority to remove plaintiff from the
register. Thus, her comment –– whether indicating bias or not –– does not constitute direct
evidence of improper discrimination.
The Court thus analyzes plaintiff’s claims under the McDonnell Douglas burden–shifting
framework, which requires the plaintiff to first carry the burden of making a prima facie case of
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the plaintiff
meets this burden, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory or non-retaliatory reason for its decision. Id. at 802–03. If the employer meets its
burden, the burden then shifts back to the plaintiff to show the employer’s reason was pretextual.
Id. at 804.
To establish a prima facie case of discrimination, a plaintiff must show: (1) he “is a member
of a protected class,” (2) he met his “employer’s legitimate expectations,” (3) he “suffered an
adverse employment action,” and (4) “the circumstances give rise to an inference of discrimination
(for example, similarly situated employees outside the protected class were treated differently).”
Carter v. Pulaski Cty. Special Sch. Dist., 956 F.3d 1055, 1058 (8th Cir. 2020) (addressing Title
VII claim) (citation omitted); see also Lampley v. Missouri Comm’n on Human Rights, 570

8

This comment occurred after the decision was made to remove plaintiff from the register.
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S.W.3d 16, 24 (Mo. 2019) (addressing MHRA claim)). When deciding a case under the MHRA,
courts are guided by Missouri law and federal employment discrimination case law consistent with
Missouri law. Shirrell v. St. Francis Med. Ctr., 793 F.3d 881, 886 (8th Cir. 2015) (citing Daugherty
v. City of Md. Heights, 231 S.W.3d 814, 818 (Mo.2007) (en banc)).
Defendants contend that plaintiff cannot establish the second element of his prima facie
case because he did not meet the requirements for the Unit Program Supervisor position. It is
undisputed that the position required three years of “professional level” experience. It is also
undisputed that plaintiff’s role as a Developmental Assistant I was not deemed to be “professional
level.” Plaintiff argues that his educational accomplishments, in combination with his work
experience, satisfied the three–year requirement. According to testimony presented at the AHC
hearing, education in certain fields can substitute for one year and time as a registered nurse can
substitute for two years of the required experience. Transcript Excerpts at 15. Assuming for the
purposes of the present dispute that plaintiff’s education is in the designated fields, such education
substitutes for no more than one year of experience and there is no evidence that he is a registered
nurse. Thus, the uncontroverted evidence establishes that plaintiff did not meet the requirements
for the position.
Plaintiff’s retaliation claim fares no better. The claim is based on his contention that in
2017 he sent a letter to Valerie Huhn –– an employee of the Department of Mental Health –– in
which he complained that he and other employees were getting paid leave time when they had not
earned it. SUMF at ¶ 3; Pl. Dep at 89–91. He believes that he was removed from the register for
the Unit Program Supervisor in retaliation for this complaint. To establish a prima facie case of
retaliation, plaintiff must show: (1) he engaged in protected activity; (2) he suffered an adverse
employment action; and (3) a causal connection exists between his protected activity and the

10

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adverse employment action. Gipson v. Dassault Falcon Jet Corp, --- F.3d ---, 2020 WL 7510580,
at *3 (8th Cir. Dec. 22, 2020). Here, there is no evidence of a causal connection between plaintiff’s
letter to Valerie Huhn and the determination by employees in the Division of Personnel that
plaintiff did not have the required experience for the Unit Program Supervisor position.
Finally, even if the Court assumes that plaintiff carried his burden of establishing a prima
facie case, he presents no evidence to show that defendants’ legitimate, nondiscriminatory reason
for removing him from the register –– his lack of the required experience –– is a pretext for
discrimination.9
Accordingly,
IT IS HEREBY ORDERED that defendants’ motion for summary judgment [Doc. # 97]
is granted.
A judgment in accordance with this Memorandum and Order will be separately entered.

/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE
Dated this 7th day of January, 2021.

9

In his surreply, plaintiff argues that defendants routinely hired other people with similar experience
without a degree, citing in support testimony from another employee of the St. Louis Developmental
Disabilities Treatment Centers. Surreply at 17–18 [Doc. # 107]; Shannon Childress Dep. [Doc. # 102–2].
In response to questions from plaintiff, Ms. Childress testified that she has held positions as “CAT, DA I,
DA II, and DA III.” Id. at 6. In this latter position she supervises a multi–ward facility. She was also
interviewed for a “Habilitation I” position, but did not get the position. She does not have an associate,
bachelor’s, or masters degree. Id. at 7–9. To the extent that plaintiff suggests that Ms. Childress received
more favorable treatment than he did, he presents no evidence that these positions required three years of
professional experience or, further, that Ms. Childress lacked that experience.
11