United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. HAMILTON UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant MGM's Motion to
Dismiss Plaintiff's Complaint, filed September 26, 2017.
(ECF No. 6). The motion is fully briefed and ready for
Mark Horton is a homosexual male who has been legally married
under the laws of the State of Illinois to his male partner
since November 14, 2014. (Compl., ¶ 8). Until on or
about May 4, 2016, Plaintiff was employed as Vice President
of Sales & Marketing with one of Defendant Midwest
Geriatric Management, LLC's (“MGM”)
competitors, Celtic Healthcare (“Celtic”).
(Id., ¶¶ 9, 25-26).
February, 2016, while still employed by Celtic, Plaintiff
received an unsolicited e-mail from MGM's authorized
agent, an executive search firm called “Jobplex,
” who represented it had been exclusively retained to
identify a Vice President of Sales and Marketing for MGM.
(Compl., ¶ 11). Plaintiff agreed to undergo the
application process, including one or more interviews with
MGM's President and C.E.O., Judah Bienstock, and his
wife, Faigie Bienstock (“Faye”). (Id.,
¶ 13). On April 21, 2016, after completing a
detailed assessment and interview process, the Bienstocks
sent Plaintiff a written job offer on behalf of MGM.
(Id., ¶ 16 and attached Exh. 3). The offer
stated in relevant part as follows:
We are pleased to offer you the position of VP of Sales and
Marketing at MGM Healthcare. This letter confirms an offer of
employment with MGM Healthcare….
This offer is also contingent upon successful completion of
background checks and references….
We look forward to developing our relationship with you and
hope you view this opportunity as a chance to have a long
term positive impact on our business. Nonetheless, please
understand that MGM Healthcare is an at-will employer. That
means that either you or MGM are free to end the employment
relationship at any time, with or without notice or cause.
(Compl., attached Exh. 3).
Plaintiff received the job offer, he was informed that a
company named “HireRight” had been retained on
behalf of MGM to perform the required background check.
(Compl., ¶ 18). On or about April 21, 2016, Plaintiff
was informed that HireRight was experiencing difficulty
verifying Plaintiff's education with two colleges.
(Id., ¶ 19). After investigating the issue,
Plaintiff determined that one of the colleges he had attended
had been sold to another university, and as a result, the
name had changed and the request for verification needed to
be sent to the new entity. (Id., ¶ 20).
Plaintiff further determined that the second college did not
have computerized records, and therefore needed additional
time to locate and copy Plaintiff's records.
(Id., ¶ 21). Plaintiff conveyed this
information to Jobplex, HireRight, and MGM, and indicated
that it could take four to six weeks to obtain the requested
information. (Id., ¶ 22). According to
Plaintiff, neither Jobplex, HireRight, nor MGM voiced any
concern over the potential delay. (Id., ¶ 23).
4, 2016, Plaintiff signed the written job offer accepting the
position of Vice President of Sales and Marketing with MGM,
and transmitted the signed document via e-mail to Faye and
Jobplex. (Compl., ¶ 24). Plaintiff maintains Faye
responded that same day on behalf of MGM, stating:
“Wonderful! Congratulations! We are so excited!
When will be your anticipated start date?”
(Id., ¶ 25). Based on this exchange, Plaintiff
gave notice to Celtic that he was resigning his employment,
and on May 10, 2016, Plaintiff advised Faye via e-mail that
Celtic had agreed to release him from his employment early.
(Id., ¶¶ 26-27). Faye again responded on
behalf of MGM, stating, “We are ready for you
whenever works for you!” (Id., ¶
28). On May 12, 2016, Faye sent Plaintiff another email,
stating, “Let's just meet Monday [May 16, 2016
at] 9:00 am to get everything started!”
(Id., ¶ 29).
13, 2016, Faye sent Plaintiff an e-mail informing him that he
needed to complete the documentation regarding his education,
and complete a pre-hire assessment before attending
orientation the following week. (Compl., ¶ 31). Faye
indicated that after completion of those two items, MGM and
Plaintiff could pick a new start date. (Id.).
Plaintiff successfully completed the pre-hire assessment.
(Id., ¶ 34). On May 17, 2016, Plaintiff sent
Faye an e-mail in which he updated her on the status of
obtaining his educational records. (Id., ¶ 35).
Plaintiff disclosed his homosexual relationship in the
e-mail, by stating: “My partner has been on me
about [my MBA] since he completed his PHD a while
20, 2016, Plaintiff received an e-mail from Faye, in which
she stated, “Are you able to come this afternoon?
We would like to discuss the status of your
employment.” (Compl., ¶ 38). Plaintiff
responded that he was out of town at the time, but would be
available on a different date. (Id., ¶ 39). On
May 22, 2016, Faye sent Plaintiff another e-mail on behalf of
MGM, stating as follows: “Mark-I regret to inform
you that due to the incompletion of the background check of
supportive documentation-we have to withdraw our offer letter
for employment at MGM. We wish you much luck in your future
endeavors. Judah and Faye.” (Id., ¶
eventually obtained the requested college records. (Compl.,
¶ 43). On June 21, 2016, upon learning that the Vice
President of Sales and Marketing position with MGM was still
open, Plaintiff sent the Bienstocks an e-mail stating in
relevant part, “I would like to meet this week to
discuss moving forward with the VP of Sales role with
MGM.” (Id.., ¶ 44). Faye responded
on MGM's behalf, stating: “Thank you Mark for
your communication. At this time- we are considering other
candidates. We appreciate your continued interest in MGM-and
will contact you if we wish to pursue a
relationship.” (Id., ¶ 45).
filed a Charge of Discrimination with the Equal Employment
Opportunity Commission (“EEOC”) on November 29,
2016, indicating that MGM discriminated against him on the
bases of sex, religion, and sexual orientation. (Compl.,
attached Exh. 1). The EEOC issued ...