United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
Shayna Dement filed this lawsuit against her defendant
employer, Fred's Stores of Tennessee, Inc.,
(“Fred's”) and others employed by Fred's.
Defendants removed this matter from the Circuit Court of New
Madrid County, Missouri, citing this Court's federal
question jurisdiction under 28 U.S.C. § 1331. In
particular, defendants contend plaintiff's claims arise
under federal employment discrimination laws. Plaintiff
denies that her complaint raises a federal question and moves
to remand (#11).
complaint includes four counts: Count I for racial
discrimination; Count II for disability discrimination; Count
III for gender discrimination; and Count IV for wrongful
discharge in violation of public policy. She alleges, among
other things, that she was denied promotions and pay raises
due to her race, that she was denied accommodation for her
factor XI deficiency-hemophilia, that she was denied a
private and clean space to pump breastmilk when she returned
from maternity leave, and that she was wrongfully discharged
as a result of her complaints about the above matters and for
reporting to her superiors an act of sexual harassment
against another employee.
pursuant to 28 U.S.C. § 1331 is improper unless a
federal question appears on the face of plaintiff's
complaint. See Franchise Tax Bd. of State of Cal. v.
Constr. Laborers Vacation Trust for S.
California, 463 U.S. 1, 8-10 (1983). Defendants cite
three paragraphs of plaintiff's complaint in support of
their contention that she asserts a claim for violations of
federal law: Paragraphs 59, 62, and 109. Those paragraphs are
59. Plaintiff is a person aggrieved by an unlawful
discriminatory practice who has requested relief in writing
from the Missouri Department of Labor and Industrial
Relations, Missouri Commission on Human Rights, and the
United States Equal Employment Opportunity Commission.
62. On or about December 17, 2015, Plaintiff jointly filed a
Charge of Discrimination with the Missouri Department of
Labor and Industrial Relations, Missouri Commission on Human
Rights, and the United States Equal Employment Opportunity
Commission alleging that Defendants had committed the
unlawful employment practices against Plaintiff, and more
than 180 days has passed since that filing.
109. Plaintiff believed the sexual harassment suffered by the
employee to be against state and federal law.
suggest that plaintiff's references to the U.S. Equal
Employment Opportunity Commission (“EEOC”) and to
“federal law” show that she intends to assert a
claim for violations of federal law. They state
“[f]ederal law for these types of claims are under
Title VII of the Civil Rights Act of 1964, which is governed
under the laws of the United States, namely, 42 U.S.C. §
2000e et seq.” (#1 at 2.)
denies she brings her lawsuit under any federal laws. She
explains that she brings her claims for violations of the
Missouri Human Rights Act, § 213.010, et seq.
RSMo. Indeed, her complaint states that the “conduct of
Defendants, as set forth herein, constitutes unlawful
discrimination against Plaintiff under Mo. Rev. Stat.
§§ 213.055 and 213.070” and “Defendants
committed unlawful discriminatory practices in violation of
Mo. Rev. Stat. § 213.010 et seq.” (#4 at
¶¶ 58, 60.) Plaintiff's only mention of federal
law is in Paragraph 109, which refers to “federal
law” in the context of her claim for wrongful discharge
based on the Missouri public policy exception to the Missouri
at-will-employment doctrine; that is, an “at-will
employee may not be terminated … for reporting
wrongdoing or violations of law to superiors or public
authorities.” Fleshner v. Pepose Vision Inst.,
P.C., 304 S.W.3d 81, 92 (Mo. banc 2010). Plaintiff's
Paragraph 108 states that plaintiff had reported an incident
of employee-employee sexual harassment, and Paragraph 109
states that she believed that other employee's
harassment had been in violation of “state and federal
law.” Despite defendants' suggestion that plaintiff
“specifically asserts in Paragraph 109 of her Complaint
that these claims arise under federal and state law”
(#13 at 3), the allegation and its context do not suggest
that plaintiff seeks a remedy under federal law for herself.
her references to the EEOC, plaintiff explains that her
Paragraphs 59 and 62 serve to allege that she has exhausted
her administrative remedies as required by § 213.111
RSMo. That section also allows a plaintiff to “opt out
of the commission's proceedings by asking for a letter
indicating that she has a right to bring a civil action
(commonly referred to as a “right to sue”
letter)…after 180 days from the filing of her
complaint with the commission….”. State ex
rel. Diehl v. O'Malley, 95 S.W.3d 82, 90 (Mo. banc
2003). Thus, plaintiff's allegations went to explaining
her procedural position. Plaintiff might have chosen to
pursue federal-law remedies in the wake of her EEOC filings,
but she chose to pursue state-law remedies exclusively.
“Under the ‘well-pleaded complaint' doctrine,
the plaintiff is the master of [her] claim and may avoid
federal removal jurisdiction by exclusive reliance on state
law.” Miller v. Metropolitan Sewer Dist., No.
4:10cv363-JCH, 2010 WL 2399553, at *1 (E.D. Mo. June 10,
2010) (quoting Horner v. Lee Summit, Mo.,
No. 09-00820, 2009 WL 5214901 (W.D. Mo. Dec. 29, 2009 (citing
Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987)). In Miller, for example, the plaintiff
alleged that her employer failed to give her the FMLA leave
she had been promised and gave her a poor performance
evaluation after she filed a charge of discrimination with
the EEOC and the Missouri Commission on Human Rights. She
brought a claim of retaliation and a claim for race
discrimination under state law; although her complaint
mentioned certain federal laws, she was not bringing a claim
under those laws, choosing instead to pursue her state law
remedies. Id. This Court remanded plaintiffs case to
state court as a result. Id. Here, plaintiffs claims
are likewise not dependent on her establishing violations of
any federal law. She explicitly refers to violations of state
discrimination laws, and her reference to federal law and
federal agencies do not form the basis for her claims.
Plaintiffs complaint will be remanded to the Circuit Court
for New Madrid County.
has asked for her attorneys' fees under 28 U.S.C. §
1774(c) because she states defendants did not have an
“objectively reasonable basis” ...