United States District Court, E.D. Missouri, Eastern Division
For Cedric Gillespie, Plaintiff: Megen I. Hoffman, Richard Andrew Barry, III, LEAD ATTORNEYS, LAW OFFICES OF RICK BARRY, P.C., St. Louis, MO.
For Charter Communications, LLC, Defendant: Krissa P. Lubben, Roy N. Williams, LEAD ATTORNEYS, THOMPSON COBURN, LLP, St. Louis, MO.
MEMORANDUM AND ORDER
AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE.
Plaintiff Cedric Gillespie brings this action under the Missouri Human Rights Act, Mo. Rev. Stat. § 213 (" MHRA" ) (Counts I and II), and the Uniformed Services Employment and Reemployment Act (" USERRA" ) (Count III). Plaintiff alleges that his employer, Defendant Charter Communications, LLC (" Charter" ), and his former and current supervisors, Defendants Robert Sewell and Richard Sturck, respectively, discriminated against him on the basis of race (Count I) and retaliated against him for reporting discrimination on the basis of race (Count II). The case is now before the Court on the motion of Charter to dismiss certain allegations in Plaintiff's complaint for failure to state a claim upon which relief may be granted. In support of its motion, Charter argues that Plaintiff has not exhausted his remedies with respect to the alleged denials of promotion that occurred prior to December 23, 2012, and, with respect to Count III, asserts that neither punitive damages nor damages for emotional distress are available under USERRA. The motion is fully briefed, and upon consideration of the administrative charge, the complaint, the parties' arguments, and the applicable law, the Court will grant the motion to dismiss.
Plaintiff is currently and has been employed by Charter as a maintenance technician for 19 years. Plaintiff alleges that he applied for and was denied numerous promotions between 2009 and 2013. Plaintiff claims that each time he applied for a promotion, another " less qualified Caucasian employee" was given the promotion. Doc. No. 5 at ¶ 13. In March 2013, Plaintiff applied for two promotions, but alleges that in each instance less qualified Caucasian employees received the promotion.
Following the denial of each promotion, Plaintiff lodged a complaint of racial discrimination with Charter's Human Resources Department. Id. at ¶ ¶ 14-18.
Plaintiff further alleges that Defendant Sewell, his former supervisor, made racially discriminatory remarks towards Plaintiff and other African-Americans. When Plaintiff and other employees complained about Sewell's remarks, Charter demoted Sewell, but did not terminate his employment.
On June 21, 2013, Plaintiff filed a charge of discrimination with the Missouri Commission on Human Rights (" MCHR" ) and United States Equal Employment Opportunity Commission (" EEOC" ). Doc. No. 9-1. In the charge, Plaintiff asserts continuing discrimination on the basis of race and retaliation beginning in January 2009. Plaintiff alleges the following in support of his charge: (1) Plaintiff applied for and was denied numerous promotions in favor of less qualified Caucasian employees; (2) Charter has engaged in ongoing discrimination, including permitting Caucasian employees to choose their work schedules before African-American employees, paying Caucasian employees higher wages, and tolerating racially offensive remarks made by Sewell; and (3) after Plaintiff reported Sewell's conduct to Human Resources, he was denied promotions due to making the reports. In this motion, Defendant Charter challenges only those allegations related to denials of promotion before December 23, 2012. The MCHR issued Plaintiff a Right to Sue Letter on November 13, 2013. Plaintiff has not filed other charges against Defendants. This lawsuit followed.
II. Arguments of the Parties
Charter moves to dismiss the allegations in Counts I and II regarding the denial of promotions occurring before December 23, 2012. Citing to the statute of limitations provision of the MHRA, Charter notes that Plaintiff's charge cannot cover any promotion denied before that date, and therefore asserts that all allegations related to such conduct are time-barred and not actionable. See Mo. Rev. Stat. § 213.075. Charter also moves to dismiss Plaintiff's request for punitive damages and damages for emotional distress in Count III, noting that such relief is unavailable under USERRA.
In response, Plaintiff acknowledges that any person claiming to be aggrieved by unlawful discriminatory practice must file a written verified complaint with the MCHR within 180 days of the alleged act of discrimination. However, Plaintiff notes that where a continuing violation is asserted, the 180-day requirement does not apply to each violation alleged. Plaintiff contends that because he has alleged at least one discriminatory act within the required time period and pleaded conduct that goes ...