United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Drury Southwest,
Inc.'s Motion to Dismiss Count II of Plaintiff s First
Amended Complaint (ECF No. 25). The motion is briefed and
ready for disposition.
case stems from Plaintiffs termination from employment with
Defendant Drury of Southwest, Inc. ("Drury").
Plaintiff was employed by Drury as a Renovations Specialist.
(First Am. Compl. ["FAC"] ¶ 8, ECF No. 23)
Plaintiff has cerebral palsy, which causes her to walk on her
tip toes. (FAC ¶¶ 12-13) Plaintiff s job required
her to travel to different hotels throughout the United
States. (FAC ¶ 14) According to her First Amended
Complaint, an unknown supervisor in Paducah, Kentucky asked
Plaintiff if she was walking on her tip toes, and Plaintiff
replied, "yes." (FAC ¶ 15) The supervisor then
contacted Plaintiffs direct supervisor, Ken Julius, about
Plaintiffs condition. (FAC ¶ 16) Plaintiff alleges that
the following day, Mr. Julius told Plaintiff she was going to
be laid off because "she was a worker's comp case
waiting to happen." (FAC ¶ 17) Plaintiff was
terminated on September 1, 2014. (FAC ¶ 18)
First Amended Complaint, filed on April 27, 2017, Plaintiff
alleges claims of Violation of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12102,
et seq. (Count I) and Violation of Mo. Rev. Stat.
§ 287.780 (Count II). Specifically in Count II,
Plaintiff contends that she was terminated in retaliation for
exercising her workers' compensation rights. In response,
Defendant has filed a Motion to Dismiss Count II, arguing
that Plaintiff has failed to state a claim under Mo. Rev.
Stat. § 287.780 because she has not alleged facts
indicating that she suffered a work-related injury or
attempted to exercise her rights under the Missouri
Workers' Compensation Law.
regard to motions to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6), a complaint
must be dismissed if it fails to plead "enough facts to
state a claim to relief that is plausible on its face."
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007) (abrogating the "no set of facts" standard
set forth in Conley v. Gibson, 355 U.S. 41, 45-46
(1957)). While the Supreme Court cautioned that the holding
does not require a heightened fact pleading of specifics,
"a plaintiffs obligation to provide the
'grounds' of his ' entitle[ment] to relief
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do." Id. at 555. In other words,
"[f]actual allegations must be enough to raise a right
to relief above the speculative level. .. ."
must liberally construe the complaint in the light most
favorable to the plaintiff and accept the factual allegations
as true. Id.; see also Schaafv. Residential Funding
Corp., 517 F.3d 544, 549 (8th Cir. 2008) (stating that
in a motion to dismiss, courts accept as true all factual
allegations in the complaint); Eckert v. Titan Tire
Corp., 514 F.3d 801, 806 (8th Cir. 2008) (explaining
that courts should liberally construe the complaint in the
light most favorable to the plaintiff). Further a court
should not dismiss the complaint simply because the court is
doubtful that the plaintiff will be able to prove all of the
necessary factual allegations. Twombly, 550 U.S. at
556. However, "[w]here the allegations show on the face
of the complaint there is some insuperable bar to relief,
dismissal under Rule 12(b)(6) is appropriate."
Benton v. Merrill Lynch & Co., 524 F.3d 866, 870
(8th Cir. 2008) (citation omitted).
Motion to Dismiss, Drury contends that Count II of Plaintiffs
First Amended Complaint should be dismissed under
Fed.R.Civ.P. 12(b)(6) for failure to state a claim because
she has failed to allege facts indicating that she suffered a
work-related injury or attempted to exercise her rights under
the Missouri Workers' Compensation Law as required by Mo.
Rev. Stat. § 287.780. Plaintiff, on the other hand,
asserts that Missouri law does not require Plaintiff to show
that she was employed by Drury before her workplace injury
occurred and that terminating an employee based on an
expectation that she will file a workers' compensation
claim should be prohibited under Mo. Rev. Stat. §
Section 287.780 of the Missouri Revised Statutes, "[n]o
employer or agent shall discharge or discriminate against any
employee for exercising any of his or her rights under [the
Workers' Compensation Law] when exercising such rights is
the motivating factor in the discharge or
discrimination." Mo. Rev. Stat. § 287.780. Further,
the statute defines "motivating factor" to mean
"that the employee's exercise of his or her rights
under this chapter actually played a role in the discharge or
discrimination and had a determinative influence on the
discharge or discrimination." Id. Under the
statute, an employee may bring a civil action for damages
against her employer if she has been discharged for
exercising her rights under the Workers' Compensation
Law. Welker v. Partem Bread Co., No. 4:10CV2192 FRB,
2011 WL 1327427, at *2 (E.D. Mo. Apr. 6, 2011).
prevail in an action for retaliatory discharge under Mo. Rev.
Stat. § 287.780, the aggrieved employee must prove: 1)
[her] status as an employee of the defendant prior to the
injury; 2) [her] exercise of a right granted by the
Workers' Compensation Law; 3) the employer's
discharge of plaintiff; and 4) an exclusive causal
relationship between plaintiffs action and defendant's
action." Id. (citing Stephenson v. Raskas
Dairy, Inc., 26 S.W.3d 209, 212 (Mo.Ct.App. 2000)).
Where a plaintiff is unable to establish an element of a
claim for retaliatory discharge, the claim must be dismissed
for failure to make a submissible case under Mo. Rev. Stat.
§ 287.780. Id.
Defendant Drury asserts that plaintiff has failed to allege
that she suffered a work-related injury or that she exercised
any right under the Missouri Workers' Compensation Law,
and thus has failed to satisfy the first and second
requirements for retaliatory discharge. The Court agrees with
Defendant. Nowhere in her First Amended Complaint does
Plaintiff state that she suffered any workplace injury.
Indeed, Plaintiff alleges that she has cerebral palsy, a
qualifying disability under the ADA, and that Defendant
expressed concerned over this disability, not an injury. (FAC
¶¶ 12, 30)
addition, Plaintiffs First Amended Complaint fails to allege
that she exercised her rights under the Missouri Workers'
Compensation Law. Instead, Plaintiff states that she had the
right to pursue a workers' compensation claim and that
Defendant Drury terminated her employment because Drury
feared that Plaintiff would exercise those rights. (FAC
¶¶ 28-30) However, "[t]he plain language of
section 287.780 provides . . . that 'no employer' can
discharge any employee for exercising any of his or her
rights under the workers' compensation law."
Hayes v. Show Me Believers, Inc.,192 S.W.3d 706,
707 (Mo. 2006). Plaintiff makes no claim that she took any
affirmative action to exercise her rights under the
Workers' Compensation Law. Because Plaintiff has failed
to allege that ...