Houston-Morris v. AMF Bowling Center
ORDER granting 5 defendant's Motion to Dismiss Count II of plaintiff's Complaint. Because plaintiff failed to exhaust her administrative remedies with regard to her retaliation claims, Counts V and VI are also DISMISSED. Plaintiff shall file her Amended Complaint on or before November 10, 2011. Signed on 11/3/11 by Chief District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
AMF BOWLING CENTERS, INC.,
) Case No. 11-00325-CV-W-FJG
Currently pending before the Court is defendant’s Partial Motion to Dismiss (Doc.
On December 28, 2009, plaintiff filed an Amended Charge of Discrimination with
the Equal Employment Opportunity Commission (“EEOC”) and also with the Missouri
Commission on Human Rights. On December 22, 2010, the Missouri Commission on
Human Rights (“MCHR”) issued a Notice of Right to Sue letter to plaintiff. On January
27, 2011, the EEOC issued plaintiff a Notice of Right to Sue letter. Plaintiff alleges that
she was subjected to discriminatory treatment from co-workers and management due to
her race. On March 28, 2011, plaintiff filed a six count Complaint alleging: Count I Title VII-Racial Discrimination; Count II - Missouri Human Rights Act-Racial
Discrimination; Count III - Outrageous Conduct; Count IV - Negligent Infliction of Mental
Distress; Count V - Title VII-Retaliation and Count VI - Missouri Human Rights Act Retaliation. Defendant moves pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss Counts II, V
and VI of Plaintiff’s Complaint.
To survive a motion to dismiss under 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662,129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974
(2007)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’ 550 U.S. at 555, 127 S.Ct. at 1965. Nor does
a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Iqbal, 129 S.Ct. at 1949 (quoting Twombly 550 U.S. at 557, 127 S.Ct.
at 1966). “Determining whether a claim is plausible is a ‘context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.’”
Hamilton v. Palm, 621 F.3d 816, 818 (8th Cir. 2010) (quoting Iqbal 129 S.Ct. at 1950).
Under Fed. R. Civ. P. 12(b)(6) we must accept the plaintiff’s factual allegations as true
and grant all reasonable inferences in the plaintiff’s favor. Barry v. Time Ins. Co., No.
CIV 11-4018-KES, 2011 WL 2566129, *2 (D.S.D. June 28, 2011). “The issue is not
whether the plaintiff will ultimately prevail but whether he is entitled to present evidence
to support his claims.” Richardson v. Hellmuth, Obata & Kassabaum, Inc., No.
4:11CV1227 CDP, 2011 WL 4635183, *2 (E.D.Mo. Oct. 4, 2011), (citing Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974)).
A. Defendant’s Motion to Dismiss
Defendant argues that Counts II and VI alleging racial discrimination and
retaliation under the Missouri Human Rights Act should be dismissed because they are
time barred. Secondly, defendant argues that Counts V and VI alleging federal and
state claims of retaliation should be dismissed because plaintiff failed to exhaust her
administrative remedies. In response, plaintiff admits that in her charge to the MCHR
she only identified the cause of discrimination as race and did not check the box for
retaliation. Plaintiff’s counsel therefore seeks leave to voluntarily dismiss the retaliation
claims - Counts V and VI of the initial complaint.
Thus, the only issue that the Court must consider is the timeliness of plaintiff’s
MHRA claim for race discrimination. On December 22, 2010, the MCHR sent plaintiff a
Notice of Right to Sue. The letter stated that the Commission was unable to conclude
that violations of the Act had occurred. The letter stated:
This letter indicates your right to bring a civil action within 90 days of
this notice against the respondent(s) named in the complaint. Such an
action may be brought in any circuit court in any county in which the
unlawful discriminatory practice is alleged to have occurred but it must be
brought no later than two years after the alleged cause occurred or its
reasonable discovery. Upon issuance of this notice, the MCHR is
terminating all proceedings relating to the complaint. No person may file
or reinstate a complaint with the MCHR after the issuance of a notice of
right to sue relating to the same practice or act. You are hereby notified of
your right to sue the Respondent(s) named in your complaint in state
circuit court. THIS MUST BE DONE WITHIN 90 DAYS OF THE DATE
OF THIS NOTICE OR YOUR RIGHT TO SUE IS LOST.
(Plaintiff’s Complaint, Ex. A)(emphasis in original). Plaintiff filed her action in this Court
on March 28, 2011, 96 days after the date of the Notice of Right to Sue letter.
Defendant argues that because plaintiff’s Complaint was filed after the expiration
of the 90 day deadline, the MHRA racial discrimination claim is time barred and should
be dismissed. In Hammond v. Municipal Correction Institute, 117 S.W.3d 130
(Mo.App.2003), the Court quoted Mo.Rev.Stat. § 213.111.1 which states:
Any action brought in court under [the Missouri Human Rights Act] shall
be filed within ninety days from the date of the commission’s notification
letter to the individual . . ..
Id. at 138. The Court noted:
[wh]ere the language of the statute is clear and unambiguous, courts must
give effect to the language used by the legislature. . . . Statutes of
limitation contained in the Missouri Human Rights Act have been strictly
construed. . . .It might be a better idea to provide for a period of ninety
days from receipt of the notice (letter), because of the conflict with EEOC
practice. However, we cannot do that without re-writing the statute
ourselves, something for which we have no authority.
Id. at 138-139 (internal citations and quotations omitted). Similarly, in Richardson v.
2011 WL 4635183 the Court noted the distinction between Title VII claims and MHRA
For Title VII claims, there is a rebuttable presumption that a claimant
receives an agency’s correspondence three days after it was mailed. . .
The 90-day limitation period therefore does not begin to run until three
days after the issuance date of the right to sue letter. . . The same threeday presumption does not apply to the MHRA’s statute of limitations. . .
Therefore, the 90-day limitation period for MHRA claims runs from the
date the right to sue letter was issued, and not when it was received. . . A
party cannot file a suit even one day after the 90-day statute of limitations
Id. at * 2 (internal citations and quotations omitted).
In response to defendant’s assertion that her claim was untimely filed, plaintiff
argues that the deadline should be equitably tolled because of an ambiguity as to when
the notice actually begins to run. Plaintiff’s counsel alleges that tolling is appropriate “in
light of Ms. Morris’ possibly being misled by the language of the alleged notice of rights,
as well as her unfamiliarity with handling and interpreting such notices.” (Plaintiff’s
Suggestions in Opposition, p. 4). Plaintiff also argues that federal discrimination law is
authoritative where the Missouri Supreme Court has not spoken on the issue.
Therefore, plaintiff argues that the Court should apply the EEOC interpretation, and find
that the 90 day period begins to run from receipt of the Notice of Right to Sue Letter.
However, as discussed above, the Missouri Courts have squarely addressed this
issue and have declared that the 90-day period begins to run from the date of the Notice
of Right to Sue Letter. See Hammond, 117 S.W.3d at 140 (“By the terms of the statute,
there is no provision made for time the notice spends in the mail.”). The statute also
specifically states that “[a]ny action brought in court under this section shall be filed
within ninety days from the date of the commission’s notification letter to the individual .
. .” Mo.Rev.Stat. § 213.111.
Additionally, the Court finds no basis on which to equitably toll the statute of
limitations. Plaintiffs only makes a vague reference to the fact that she might “possibly”
have been misled. In Hill v. John Chezik Imports, 869 F.2d 1122, 1124 (8th Cir. 1989),
the Court stated that “[c]ourts have generally reserved the remedy of equitable tolling for
circumstances which were truly beyond the control of the plaintiff.” The Court listed
examples of when equitable tolling might be applied, such as when a motion for
appointment of counsel is pending, where the Court might have led the plaintiff to
believe all requirements for bringing a suit were met or where defendant’s conduct
caused plaintiff not to take a necessary action. Id. at 1124, n.2 (citing Baldwin County
Welcome Center v. Brown, 466 U.S. 147, 151,104 S.Ct. 1723,1725, 80 L.Ed.2d 196
(1984)). In the instant case, the Court finds no basis on which to equitably toll the
statute of limitations. Accordingly, because plaintiff’s MHRA claim was filed after the
expiration of the 90-day deadline, the Court finds that this claim was untimely filed and
must be dismissed. Therefore, defendant’s Motion to Dismiss Count II of plaintiff’s
Complaint is hereby GRANTED (Doc. # 5). Additionally, because plaintiff failed to
exhaust her administrative remedies with regard to her retaliation claims, Counts V and
VI are also DISMISSED.
B. Plaintiff’s Motion to Amend the Complaint
In her Suggestions in Opposition to the Motion to Dismiss, plaintiff also asks for
Leave to Amend her Complaint. Plaintiff states that she requests leave to amend in
order to supplement any factual deficiencies in the initial pleading. Defendant opposes
the Motion to Amend and argues that the proposed First Amended Complaint does not
explain why it is being filed or how it is being amended from the original Complaint. The
Court has compared the two Complaints and the only noticeable difference is the
deletion of the retaliation counts in the First Amended Complaint.
Fed.R.Civ.P. 15(a)(2) states in part “a party may amend its pleading only with the
opposing party’s written consent or the court’s leave. The court should freely give leave
when justice so requires.” As no Scheduling Order has yet been entered, the Court will
grant plaintiff an opportunity to file an Amended Complaint in order to supplement any
factual information she deems necessary and also to remove those claims which the
Court has now dismissed. Plaintiff shall file her Amended Complaint on or before
November 10, 2011.
Date: November 3, 2011
Kansas City, Missouri
S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
Chief United States District Judge
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