United States District Court, W.D. Missouri, Western Division
SARA L. LYONS-BELISLE, Plaintiff,
AMERICAN WHOLESALE FLORISTS OF KANSAS CITY, INC., d/b/a DWF WHOLESALE FLORISTS, and GEORGE D. ENGLAND, Defendants.
Fernando J. Gaitan, Jr. United States District Judge.
before the Court is defendants’ partial motion to
dismiss (Doc. No. 3).
filed her state-court Petition on June 8, 2016, and filed an
Amended Petition on June 9, 2016. The Amended Petition
contains the following claims: Count I - Sex
Discrimination/Sexual Harassment in violation of the MHRA;
Count II - Age Discrimination in Violation of the MHRA; Count
III - Disability Discrimination in Violation of the MHRA;
Count IV - Retaliation in Violation of the MHRA; Count V -
Hostile Work Environment in Violation of the MHRA; Count VI -
Assault; Count VII - Retaliatory Discharge Under the
Workers’ Compensation Law Pursuant to § 287.780.1
RSMo.; Count VIII - Wrongful Discharge Based on Public
Policy; and Count IX - Claims under Title VII, the Americans
with Disabilities Act (ADA), the Genetic Information
Nondiscrimination Act (GINA), and the Age Discrimination in
Employment Act (ADEA).
timely removed this action on July 8, 2016, and filed their
motion for partial dismissal on the same day. Defendants
assert that plaintiff’s MHRA claims (Counts I through
V) are untimely, as they were filed one day too late.
Defendants also assert that Count VI should be dismissed
because plaintiff failed to allege an essential element of
her claim for assault. Defendants assert that
plaintiff’s GINA claim in Count IX must be dismissed
because plaintiff has alleged no facts regarding genetic
information discrimination. Finally, defendants assert that
plaintiff’s claims in Count IX must be dismissed as to
defendant England, as individuals are not considered
“covered employers” under Title VII, the ADA, and
the ADEA. The Court considers these issues below.
deciding a motion to dismiss under Rule 12(b)(6), the Court
must accept the plaintiff’s factual allegations as
true, construing them in the light most favorable to the
plaintiff. Patterson Oil Co. v. VeriFone, Inc., No.
2:15-cv-4089, 2015 U.S. Dist. LEXIS 141635, at *9 (W.D. Mo.
Oct. 19, 2015) (citing Schaaf v. Residential Funding
Corp., 517 F.3d 544, 549 (8th Cir. 2008)). Fed.R.Civ.P.
8(a)(2) states that a pleading must contain a “short
and plain statement of the claim showing that the pleader is
entitled to relief.” “The pleading standard Rule
8 announces does not require ‘detailed factual
allegations, ’ but it demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 677-678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555, (2007)). In order for a claim to survive a motion
to dismiss, “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, 677-678 (2009).
note that plaintiff’s right-to-sue letter received from
the Missouri Commission on Human Rights was dated March 9,
2016, and states “You are hereby notified that you have
the right to bring a civil action within 90 days of the date
of this letter against the respondent(s) named in the
complaint.” Doc. No. 4, Ex. 1. Plaintiff filed her
original petition on June 8, 2016, which is 91 days after the
date of the letter. Under RSMo § 231.111.1, any MHRA
action must be “filed within 90 days from the date of
the commission’s notification letter to the individual
. . . .” This Court has previously found that the
90-day period begins to run as of the date of the letter.
Houston-Morris v. AMF Bowling Centers, Inc., No.
11-00325-CV-W-FJG, 2011 WL 5325646, at *3 (W.D. Mo. Nov. 3,
2011) (dismissing MHRA claims filed 96 days after the date of
the right-to-sue letter).
respect to the MHRA claims, plaintiff argues, in full,
“that the Missouri Commission Rights [sic] Right to Sue
Letter was dated March 9, 2016, and the Federal Right to Sue
Letter was dated March 31, 2016, Plaintiff’s claims
were filed within that time frame.” Doc. No. 9, p. 2.
However, as explained in defendants’ opening brief, the
fact that plaintiff timely filed her EEOC claims does not
cure the lateness of the filing of her MRHA claims. As
discussed by defendants, plaintiff’s MHRA claims in
Counts I through V are untimely, and must be dismissed.
Count VI - Assault
argue that plaintiff has failed to plead facts supporting one
of the elements of assault under Missouri law. To plead such
a claim, plaintiff must allege: “(1) defendant’s
intent to cause bodily harm or offensive contact, or
apprehension of either; (2) conduct of the defendant
indicating such intent, and (3) apprehension of bodily harm
or offensive contact on the part of the plaintiff caused by
defendant’s conduct.” Devitre v. Orthopedic
Ctr. of St. Louis, LLC, 349 S.W.3d 327, 335 (Mo. 2011).
Here, defendants argue that plaintiff has failed to plead the
first element, the intent to cause bodily harm, offensive
contact, or apprehension of either. Although plaintiff has
pled that defendant England aimed a karate kick at her, and
on a separate occasion pointed a gun at her head, defendants
argue that there are no allegations that England had the
intent necessary to state a claim.
response, plaintiff argues she has set forth sufficient
allegations in her Amended Petition, which provide the
essential elements of the claim and give notice to defendants
of that claim. Defendants, in reply, argue that