Mukherjee v. The Childrens Mercy Hospital

Filing 88

ORDER AND OPINION (1) GRANTING IN PART, DENYING IN PART, AND DEFERRING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AND (2) DIRECTING PARTIES TO FILE SUPPLEMENTAL BRIEFING, 70 . Signed on 3/6/18 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
BAIDEHI L. MUKHERJEE,

)
)
Plaintiff,
)
)
vs.
)
)
THE CHILDREN’S MERCY HOSPITAL, )
)
Defendant.
)

Case No. 16-01291-CV-W-ODS

ORDER AND OPINION (1) GRANTING IN PART, DENYING IN PART, AND
DEFERRING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT,
AND (2) DIRECTING PARTIES TO FILE SUPPLEMENTAL BRIEFING
Pending is Defendant’s Motion for Summary Judgment. Doc. #70. For the
following reasons, Defendant’s motion is granted in part and denied in part, and the
Court defers ruling in part.
I.

BACKGROUND

Plaintiff Baidehi L. Mukherjee is a woman of Indian national origin and Asian
descent. Plaintiff began working for Defendant The Children’s Mercy Hospital on July 9,
2012, as Director of Technology Development. Her starting biweekly pay rate was
$6,154.40. Defendant also paid Plaintiff $16,000 in relocation assistance, and paid
more than $14,000 to transfer Plaintiff’s work authorization to Defendant. In her
position, Plaintiff was responsible for activities that promoted and facilitated the
commercialization of inventions arising out of professional activities by Defendant’s
personnel. She communicated with inventors and intellectual property law attorneys
regarding inventions, and facilitated communications between them. Plaintiff also
negotiated license agreements and other related agreements to promote
commercialization of newly discovered technologies.
In August 2013, Plaintiff received her first performance evaluation from her
supervisor, Warren Dudley, then-Vice President of Market Development and Outreach.
Dudley wrote, among other things, for the Technology Development Office “to grow and
add the most value to CMH, it will be very important for Luna to develop positive

relationships both within CMH and with the supporting external groups.” Doc. #71-16,
at 5. He further stated, “[t]here are indications that Luna and her communications are
not being perceived by others in the way that Luna intends. It will be important for Luna
to work with our H[uman] R[esources] team to identify courses offered internally or
possibly externally that can support the development of communication skills.” Id.
On January 24, 2014, Plaintiff received a written warning. Therein, Dudley
indicated, among other things, Plaintiff, contrary to his instructions, was not copying him
on communications to potential licensing partners or on monthly updates with a
researcher. Doc. #71-18. He stated Plaintiff refused to follow directions and work on
certain projects. Plaintiff was advised that failure to show “immediate, significant, and
sustained improvement” could result in further counseling up to and including
termination.
On February 3, 2014, Plaintiff submitted an Employee Complaint Report to
Defendant’s Human Resources Department. Plaintiff stated, among other things, her
supervisor lodged false allegations against her, he “target[ed]” her because she is a
“highly talented minority of a different national origin,” he was “verbally abusive,” and
“created a hostile work environment.” Doc. #71-20, at 3-3. She stated her supervisor
“wrongly [sic] set idea as to the role of women, and foreign born persons. There has
always been an underlying current of bigotry but I had hoped that over time…he would
learn to appreciate talented individuals like me.” Id. at 7. Plaintiff asked for a change of
manager, or that she be allowed to work on her own. According to Defendant, Plaintiff’s
complaint was investigated, and the investigation uncovered insufficient evidence to
suggest unfair or inequitable treatment of Plaintiff. Plaintiff appealed the investigatory
findings. She was informed by the Executive Vice President and the Vice President of
Human Resources that the written warning was an appropriate measure, and Plaintiff
was treated fairly and in a manner consistent with Defendant’s policy.
On April 4, 2014, Dudley gave Plaintiff a final written warning. According to
Dudley, Plaintiff continued to refuse to do things, she did not provide monthly updates to
him, did not complete development courses, did not provide the required amount of
education and sharing necessary for her position, and her communication skills had not
improved. Dudley directed Plaintiff to provide a written development plan of how she
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planned to achieve progress related to her communication skills and repairing
relationships. Dudley also required Plaintiff to provide certain lists, reports, and
summaries to him. Plaintiff was instructed to organize an educational seminar for
Defendant’s employees to increase understanding and knowledge of intellectual
property and technology transfer. She was informed that failure to follow the plan for
improvement would result in further counseling up to and including termination.
On April 14, 2014, Plaintiff submitted another Employee Complaint Report. Her
complaint was for “discrimination, harassment, retaliation, hostile work environment,
tarnishing my reputation, making false allegations, causing professional and personal
harm.” Doc. #71-28, at 2. Plaintiff averred she was working “in a hostile work
environment and I am being attacked wrongfully [for] being a female minority foreign
born professional.” Id. She claimed Dudley had become “extremely aggressive and
vindictive towards” her in that he banged on her door, towered over her, refused to
make eye contact, and was verbally abusive. According to Defendant, Plaintiff’s
complaint was investigated, and the investigation uncovered no evidence to support her
claim of unfair or unequitable treatment. According to Defendant, Plaintiff failed to meet
performance expectations, and the final written warning would remain in her file.
Plaintiff appealed the investigatory findings. She was informed by the Executive Vice
President and the Vice President of Human Resources that the final written warning
was an appropriate measure, and Plaintiff was treated fairly and in a manner consistent
with Defendant’s policy.
According to Defendant, it chose to discharge Plaintiff because she failed to
develop collaborative relationships with researchers, failed to comply with multiple
directives from Dudley over the course of several months, and failed to make
immediate, significant, and sustained improvement in the areas identified in the written
warnings. Plaintiff’s employment with Defendant concluded on May 7, 2014.
On May 17, 2014, Plaintiff submitted another Employee Complaint Report.
Plaintiff’s complaint was for “discrimination, wrongful termination of employment,
harassment, retaliation, hostile work environment, making false allegations, professional
and personal harm.” Doc. #71-30, at 1. According to Defendant, Plaintiff’s complaint
was investigated. At the conclusion of the investigation, Plaintiff was informed her
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“refusal to meet the expectations set by your manager ultimately led to your termination.
As such, your termination will stand.” Doc. #71-32. Plaintiff appealed the investigatory
findings. She was informed by the Executive Vice President and the Vice President of
Human Resources that her discharge was an appropriate measure, and she was
treated fairly and in a manner consistent with Defendant’s policy.
In December 2016, Plaintiff initiated this matter. In her First Amended Complaint,
Plaintiff alleges Defendant discriminated against her on the basis of her race, color, sex,
religion, national origin, and ancestry under the Missouri Human Rights Act (“MHRA”),
Title VII of the Civil Rights Act of 1964 (“Title VII”), and 42 U.S.C. § 1981 (“Section
1981”). Doc. #4. Plaintiff also maintains Defendant created a hostile work environment
on the basis of her race, color, sex, religion, national origin, and ancestry under the
MHRA, Title VII, and Section 1981. She contends Defendant retaliated against her, in
violation of the MHRA, Title VII, and Section 1981, for exercising her rights under state
and federal discrimination laws. Plaintiff alleges Defendant willfully violated the Equal
Pay Act of 1963, 29 U.S.C. § 206(d). Finally, Plaintiff maintains Defendant defamed her
and appropriated her privacy and publicity. On February 13, 2018, the parties stipulated
to the dismissal of Plaintiff’s defamation and religious discrimination claims with
prejudice. Doc. #84. Defendant now seeks summary judgment on all remaining claims.
II.

STANDARD

A moving party is entitled to summary judgment on a claim only if there is a
showing that “there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Williams v. City of St. Louis, 783 F.2d 114,
115 (8th Cir. 1986). “[W]hile the materiality determination rests on the substantive law,
it is the substantive law’s identification of which facts are critical and which facts are
irrelevant that governs.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Thus, “[o]nly disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Wierman v.
Casey’s Gen. Stores, 638 F.3d 984, 993 (8th Cir. 2011) (quotation omitted). The Court
must view the evidence in the light most favorable to the non-moving party, giving that
party the benefit of all inferences that may be reasonably drawn from the evidence.
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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588-89 (1986); Tyler v.
Harper, 744 F.2d 653, 655 (8th Cir. 1984). “[A] nonmovant may not rest upon mere
denials or allegations, but must instead set forth specific facts sufficient to raise a
genuine issue for trial.” Nationwide Prop. & Cas. Ins. Co. v. Faircloth, 845 F.3d 378,
382 (8th Cir. 2016) (citations omitted).
III.

DISCUSSION

A. Plaintiff’s MHRA Claims
Defendant contends it is entitled to summary judgment on Plaintiff’s MHRA
claims because Plaintiff did not file her lawsuit within the two-year statute of limitations
period. An action brought in court under the MHRA “shall be filed…no later than two
years after the alleged cause occurred or its reasonable discovery by the alleged injured
party.” Mo. Rev. Stat. § 213.111.1 (2017).1 It is undisputed Plaintiff’s employment with
Defendant concluded on May 7, 2014, but she did not file this matter until December 13,
2016. Plaintiff argues her MHRA claims are not time-barred because of the continuing
nature of her claims. Plaintiff points to the fact she marked the “continuing action” box
on her charge of discrimination, and she claims to have “set forth facts raising genuine
disputes as to whether Defendant has recently, and on an ongoing basis, made
negative and derogatory statement[s] to third parties…” Doc. #79, at 62.
“In determining the timeliness of a claim, at one end of the spectrum are events
that can be identified individually as significant events.” Tisch v. DST Sys., Inc., 368
S.W.3d 245, 253 (Mo. Ct. App. 2012) (citation and internal quotation omitted). These
events are termed “discrete acts,” and occur at a moment in time. Id. (citing Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002)). Discrete acts include
termination, refusal to hire, failure to promote, and denial of transfer. Id. (citation
omitted). Each of these events, which constitute a separate action for unlawful
employment discrimination, start a “new clock ticking.” Id. at 254 (citing Morgan, 536
U.S. at 113-14)).

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Although the MHRA was amended in 2017, the two-year limitation period remained
unchanged.
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On the other end of the spectrum are “continuing violations that consist of
repeated conduct extending over a period of time.” Id. (quoting Morgan, 536 U.S. at
115) (internal quotations omitted). To establish a continuing violation, a plaintiff must
show “a series of closely-related similar events that occurred within the same general
time period and stemmed from the same source” that “continued into the limitations
period.” Id. (quoting Pollock v. Wetterau Food Distrib. Grp., 11 S.W.3d 754, 763
(1999)). Courts must “look for ‘day-to-day’ discriminatory events that occur on a regular
basis, which events may not be significant individually but establish a continuing
violation due to their cumulative effect.” Id. at 255 (quoting Pollock, 11 S.W.3d at 763).
For her MHRA claims to survive summary judgment, Plaintiff must establish a
continuing violation through at least December 13, 2014. Simply marking a box labeled
“continuing action” on a charge of discrimination does not make the act continuing in
nature, particularly when the charge of discrimination does not point to any specific
instances of discriminatory or retaliatory conduct occurring after Plaintiff was
discharged. Further, in response to Defendant’s summary judgment motion, Plaintiff
identified only one instance after December 13, 2014, where Defendant allegedly
retaliated against her. Plaintiff claims Defendant made derogatory statements about her
in its March 15, 2016 letter to the Equal Employment Opportunity Commission (“EEOC”)
responding to her charge of discrimination. Doc. #79, at 43-44; Doc. #79-12. But
Plaintiff does not specify which portions of the ten-page letter were derogatory. Id.
Nonetheless, beyond the one alleged instance, Plaintiff does not set forth any argument
– much less, evidence – of any other retaliatory or discriminatory acts to support her
continuing violation argument.
The Court finds Plaintiff has not established “a series of closely-related similar
events that occurred within the same general time period and stemmed from the same
source” that “continued into the limitations period.” Tisch, 368 S.W.3d at 254. And
Plaintiff failed to set forth evidence of day-to-day discriminatory events that occurred on
a regular basis at any point during the two years preceding her filing of this lawsuit.
Accordingly, Plaintiff has failed to establish a continuing violation, and her MHRA claims
are time-barred. Defendant’s motion for summary judgment on Plaintiff’s MHRA claims
is granted.
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B. Plaintiff’s Title VII and Section 1981 Claims
Under Title VII, Plaintiff alleges Defendant retaliated against her for complaining
about discrimination, she was disparately treated, unlawfully discharged, and subjected
to a hostile work environment because of her race, color, national origin, sex, and
ancestry. Title VII does not specifically include “ancestry” as a protected category, but
national origin encompasses ancestry. 42 U.S.C. § 2000e-2(a)(1); 29 C.F.R. § 1606.1
(defining national origin to include “an individual’s, or his or her ancestor’s, place of
origin…”); St. Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987) (Brennan, J.,
concurring); Espinoza v. Farah Mfg. Co., 411 U.S. 86, 88-89 (1973) (noting “national
origin on its face refers to the country where a person was born, or, more broadly, the
country from which his or her ancestors came.”) (citation omitted); Cortezano v. Salin
Bank & Trust Co., 680 F.3d 936, 940 (7th Cir. 2012). Under section 1981, Plaintiff
alleges Defendant discriminated, harassed, and retaliated against her because of her
race. The same elements and analytical framework apply to claims brought pursuant to
Title VII and section 1981. Kim v. Nash Finch Co., 123 F.3d 1046, 1056-60 (8th Cir.
1997) (citations omitted).
The Court, as it is required to do, has viewed the record before it in the light most
favorable to Plaintiff, and has given Plaintiff the benefit of all inferences that may be
reasonably drawn from the evidence. The Court finds Plaintiff has set forth sufficient
evidence to raise genuine issues for trial with regard to her claims under Title VII and
section 1981. Accordingly, Defendant’s motion for summary judgment on Plaintiff’s Title
VII and section 1981 claims is denied.
C. Plaintiff’s Equal Pay Act (“EPA”) Claim
Plaintiff claims her male predecessor, Stephen O’Neil, held the same job with the
same duties and responsibilities that she held, but he was paid more than she was
paid.2 A cause of action under the Equal Pay Act “may be commenced within two years
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In responding to the statement of facts supporting Defendant’s summary judgment
motion, Plaintiff conceded her disparate pay claim was related to Stephen O’Neil and
Marcia Molina. Doc. #79, at 38. But in the argument section of her brief, Plaintiff did
not discuss or mention Molina. It may be Plaintiff recognized Molina, who is female, did
not help her in establishing an EPA claim. Regardless, by failing to respond to
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after the cause of action accrued…except that a cause of action arising out of a willful
violation may be commenced within three years after the cause of action accrued.” 29
U.S.C. § 255(a). To establish a claim under the EPA, a plaintiff must identify a male
employee who was paid more for equal work in a job that required equal skill, effort, and
responsibility, and was performed under similar working conditions. Dindinger v.
Allsteel, Inc., 853 F.3d 414, 421-22 (8th Cir. 2017) (citation omitted). If a plaintiff
establishes a prima facie case, the burden of proof shifts to the employer to prove a
statutory affirmative defense: (1) a seniority system; (2) a merit system; (3) a system
measuring earnings by quantity or quality of production; or (4) a differential based on
any other factor other than sex. Drum v. Leeson Elec. Corp., 565 F.3d 1071, 1072 (8th
Cir. 2009) (citing 29 U.S.C. § 206(d)(1)). “[T]he defendant must prove that the pay
differential was based on a factor other than sex.” Id. (quoting Simpson v. Merchants &
Planters Bank, 441 F.3d 572, 579 (8th Cir. 2006)).
There are three issues that prevent the Court from issuing a ruling on
Defendant’s motion for summary judgment on Plaintiff’s EPA claim. First, the parties
did not raise or address the applicable statutes of limitations in their briefing, and the
record does not provide sufficient evidence for the Court to make a determination as to
whether Plaintiff’s EPA claim is timely. Second, the record is not sufficiently developed
with regard to O’Neil’s responsibilities and working conditions during the time he was a
part-time employee. Third, based upon the briefing and record, the Court cannot
ascertain if Defendant is asserting a statutory affirmative defense, and if so, which
particular affirmative defense. The Court directs the parties to file supplemental briefing
on these three issues. Each party’s brief shall be filed on or before March 16, 2018,
and shall not exceed ten pages. Responsive briefs are not necessary.
D. Plaintiff’s Appropriation of Privacy and Publicity Claim
Misappropriation of name is one of four torts falling under the invasion of privacy
umbrella. Doe v. TCI Cablevision, 110 S.W.3d 363, 368 (Mo. banc 2003) (citation

Defendant’s argument regarding her EPA claim related to Molina, Plaintiff tacitly
conceded that claim. Satcher v. Univ. of Ark. at Pine Bluff Bd. of Trs., 558 F.3d 731,
735 (8th Cir. 2009).
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omitted); Nemani v. St. Louis Univ., 33 S.W.3d 184, 185 (Mo. banc. 2000) (citation
omitted). “[D]evelopment of the misappropriation of name tort has given rise to a
separate yet similar tort termed the ‘right of publicity,’ which is said to ‘protect a person
from losing the benefit of their [sic] work in creating a publicly recognizable
persona.’” Id. (quoting Bear Foot, Inc. v. Chandler, 965 S.W.2d 386, 389 (Mo. Ct. App.
1998)). The protections for each tort are slightly different. Misappropriation of name
“protects against intrusion upon an individual’s private self-esteem and dignity, while the
right of publicity protects against commercial loss caused by appropriation of an
individual’s [identity] for commercial exploitation.” Id. (citations omitted). Despite
differences in the types of damages recoverable for the two torts, the elements of both
torts are basically the same. “To establish the misappropriation tort, the plaintiff must
prove that the defendant used the plaintiff's name without consent to obtain some
advantage.” Id. at 368. Rights of privacy do not “subvert those rights which spring from
social conditions, including business relations.” Nemani, 33 S.W.3d at 185-86.
Plaintiff contends Defendant misappropriated her name and publicity by keeping
her work email account active after her employment terminated. Doc. #71-34, at 4.
She claims “[k]eeping [her] email active gave the false impression that she was still
employed and could be reached at that address.” Id.; Doc. #79, at 74. It is undisputed
that Plaintiff’s work email account belonged to Defendant, and Defendant did not send
any message from Plaintiff’s work email account. Instead, it is Defendant’s receipt of
emails through Plaintiff’s work email account without her knowledge or permission that
forms the basis of Plaintiff’s claim.
It should come as no surprise to Plaintiff that Defendant monitored her work
email after her employment was terminated. Defendant’s Internet Use and Content
Policy notified employees that Defendant had access to employees’ authorized user
accounts, and it reserved the right to “access, examine, disclose and monitor any and
all aspects of its computer system including…reviewing e-mail sent and received.” Doc.
#71-10, at 3. The policy furthers states employees “waive any right to privacy in
anything they create, store, send, or receive on the computer.” Id. Defendant’s Code of
Conduct informed employees that Defendant had “the right to monitor and/or access”

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electronic mail. Doc. #71-40, at 5. Also, it was Defendant’s practice to leave the
employee’s email address active for a period of time to avoid disruption in the work.
As Defendant’s employee, Plaintiff impliedly, if not explicitly, consented to
Defendant’s monitoring and accessing of her work email account. And she waived any
right to privacy in messages sent from or received by her work email account. Due to
Plaintiff’s consent and waiver, her claim for appropriation of privacy and publicity based
solely upon Defendant’s receipt of email from third parties by way of an email account
owned by Defendant fails.
Regardless of whether she consented to Defendant monitoring her work email
account or whether she waived her right to privacy in her work email account, Plaintiff
failed to set forth any evidence that Defendant’s receipt of emails from third parties on
the email account Defendant provided to Plaintiff equates to “pirating” Plaintiff’s identity
for “some advantage.” In fact, there is no evidence that Defendant obtained any
advantage for keeping Plaintiff’s work email account active for a period of time after her
employment concluded. For these additional reasons, Plaintiff’s claim for appropriation
of privacy and publicity fail. Defendant’s motion for summary judgment on this claim is
granted.
IV.

CONCLUSION

For the foregoing reasons, Defendant’s motion for summary judgment is granted
with regard to Plaintiff’s Missouri Human Rights Act claims, and appropriation of privacy
and publicity claim. Defendant’s motion for summary judgment is denied with regard to
Plaintiff’s Title VII and section 1981 claims. The Court defers ruling on Defendant’s
motion for summary judgment on Plaintiff’s EPA claim, and directs the parties to file
supplemental briefing, as explained supra.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: March 6, 2018

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