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Lyons-Belisle v. American Wholesale Florists of Kansas City, Inc.

United States District Court, W.D. Missouri, Western Division

August 19, 2016

SARA L. LYONS-BELISLE, Plaintiff,
v.
AMERICAN WHOLESALE FLORISTS OF KANSAS CITY, INC., d/b/a DWF WHOLESALE FLORISTS, and GEORGE D. ENGLAND, Defendants.

          ORDER

          Fernando J. Gaitan, Jr. United States District Judge.

         Pending before the Court is defendants’ partial motion to dismiss (Doc. No. 3).

         I. Background

         Plaintiff 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).

         Defendants 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.

         II. Standard

         When 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, the-defendant-unlawfully-harmed-me accusation.” 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).

         III. Discussion[1]

         A. MHRA Claims

         Defendants 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).

         With 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.

         B. Count VI - Assault

         Defendants 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.

         In 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 plaintiff’s ...


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