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Horton v. Midwest Geriatric Management, LLC

United States District Court, E.D. Missouri, Eastern Division

December 21, 2017

MARK HORTON, Plaintiff,



         This 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 disposition.


         Plaintiff 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).

         In 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).[2] 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).

         After 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).

         On May 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).

         On May 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 back.” (Id.).

         On May 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).[3] 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., ¶ 41).

         Plaintiff 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).

         Plaintiff 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 ...

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