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Barnes v. Sentry Management, Inc.

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

March 30, 2018

DEWAYNE C. BARNES, Plaintiff,
v.
SENTRY MANAGEMENT, INC., et al., Defendants.

          MEMORANDUM AND ORDER

          JEAN C. HAMILTON, UNITED STATES DISTRICT JUDGE

         Before the Court are the Motion to Dismiss Plaintiff's Complaint filed by Defendant Sentry Management, Inc., (Sentry) (ECF 8) and the Motion to Dismiss filed by Defendant St. Regis Apartments, Inc., (St. Regis) (ECF 13). The matter is fully briefed and ready for disposition.

         BACKGROUND

         On June 7, 2017, Plaintiff filed a Complaint in Case No. 4:17CV1629JCH (Barnes I), alleging employment discrimination based on race, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., and naming only St. Regis as Defendant.[1] (Barnes I, ECF 1). Plaintiff alleged, in the Barnes I Complaint, that St. Regis terminated his employment, retaliated against him, harassed him, and imposed different terms and conditions of employment on him than it imposed on other employees based on Plaintiff's race. (Barnes I, ECF 1 at 4). To his Complaint, Plaintiff attached a copy of a March 9, 2017 right-to-sue letter from the Equal Opportunity Employment Commission (EEOC), in regard to Plaintiff's charge of discrimination against St. Regis. (Barnes I, ECF 1.2).

         On July 7, 2017, Plaintiff commenced an action, pursuant to Title VII, against Sentry, in the Circuit Court of St. Louis County, in which Plaintiff alleged employment discrimination based on race.[2] Plaintiff alleged, in his State court case, that he was hired by “Defendants Westend/Sentry management” as an office monitor for St. Regis; that he “believed[d] [he] was harassed, discriminated, and retaliated against due to [his] race, African American”; that while working at St. Regis he “was subjected to a hostile work environment by a [C]aucasian coworker due to [his] race”; that he was treated “differently in terms and conditions of employment” due to his race; that he complained to St. Regis Board members and was referred to his supervisor “who would do nothing”; that the St. Regis Board President told Plaintiff that if he continued to complain “of harassment, discrimination, and the wrong doings and unfairness of [his] co[-]worker” he would be fired; that he was treated “differently in terms and conditions of employment due to [his] race” and “in retaliation for opposing discrimination”; that Defendants allowed Plaintiff's Caucasian co-worker “to work on contracts while still on the clock, essentially earning double pay”; that, when Plaintiff complained about this, he was told by the St. Regis Board President and his Sentry supervisor that he should not bring it up again or he would be terminated; that, on April 7, 2017, Plaintiff was “fired, ” and was told by his supervisor that “the Board chose to go in a different direction and that they were using the Family [and] Medical Leave Act to replace [Plaintiff] with a[n] unqu[a]lified overnight employee”; and that Plaintiff “believe[d] he was fired because of complaints regarding discrimination.” (Barnes II, ECF 1.1 at 1-3). Plaintiff attached, to his State court complaint, a copy of an April 5, 2017 right-to-sue letter from the Missouri Commission on Human Rights (MCHR), in the matter of “Dewayne Barnes v. Sentry Management, Inc.” (Barnes II, ECF 1.1 at 4). The April 5, 2017 right-to-sue letter notified Plaintiff that he had ninety days from the date of the notice to file, in State court, a civil action against Sentry “relating to the matters asserted” in the charge Plaintiff filed with the MCHR. (Barnes II, 1.1 at 4) (emphasis added).

         Plaintiff did not attach a copy of a June 20, 2017 right-to-sue letter he received from the EEOC stating that, within ninety days of his receipt of the notice, he could file a civil action against Sentry in State or federal court based on the charge he filed with the EEOC, and that the EEOC was adopting the findings of the State agency. (Barnes I, ECF 27).

         On November 9, 2017, in Barnes I, Plaintiff filed a Motion for Leave to File Amended Complaint, in which Plaintiff sought to add Sentry as a defendant. (Barnes I, ECF 24, 24.1). In his proposed amended complaint, Plaintiff alleged that he was supplementing his original Complaint and adding Sentry as a defendant; that St. Regis “colluded and conspired with Sentry management to allow a discrep[a]ncy in pay scale based on race, by allowing overtime or denying overtime based on race, by allowing racial discrimination from a white employee to a black employee based on race, by allowing harassment based on race, and by allowing non-video monitoring based on race”; and that Sentry and St. Regis “colluded and conspired to use the [FMLA] to discriminate and fire [Plaintiff].” (Barnes I, ECF 24.1 at 4).

         On November 15, 2017, the Court denied Plaintiff's Motion for Leave to File Amended Complaint based on futility. Specifically, the Court held that Plaintiff's Motion was filed “well past” the 90-day period Plaintiff had to file a lawsuit against Sentry after the EEOC issued its June 20, 2017 right-to-sue letter. (Barnes I, ECF 28) (citing 42 U.S.C.A. § 2000e-5(f)(1)). The Motion was also filed well past the filing deadline of the MCHR's April 5, 2017 right-to sue letter. (Barnes II, ECF 8.2).

         On November 17, 2017, the Court granted St. Regis's Motion to Dismiss Plaintiff's Complaint in Barnes I (ECF 29). Specifically, the Court held that St. Regis was not an employer within the meaning of Title VII, 42 U.S.C. § 2000e(b) (“The term ‘employer' means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person.”) (emphasis added), and that, as such, Plaintiff had failed to state a claim upon which relief could be granted. Notably, in support of its Motion to Dismiss, St. Regis had filed an affidavit from the Vice President of its Board of Directors attesting to the following: St. Regis contracts with Sentry to provide maintenance services, and St. Regis does not employ any persons. (Barnes I, ECF 23.1). The Court, therefore, dismissed Plaintiff's Complaint pursuant to Rule 12(b)(6) of the Rules of Federal Procedure. (Barnes I, ECF 29).

         On November 17, 2017, the same day the Court dismissed Barnes I, Plaintiff filed a Motion to Amend the Complaint in his State court action; Plaintiff sought to add St. Regis as a defendant. (Barnes II, ECF 1.1 at 32). The State court granted Plaintiff's Motion for Leave to Amend, on December 3, 2017.[3] The First Amended Complaint states that Plaintiff was adding St. Regis to his cause of action, and alleged that Plaintiff was employed by Sentry “for employment services on the premises of the St. Regis Apartments”; that, while working at St. Regis, Plaintiff was “harassed by multiple St. Regis Residents and by a co-worker”; that Plaintiff reported the alleged harassment to the St. Regis Board and his Sentry supervisor; that Plaintiff was told by the President of the St. Regis Board that he would be fired for “whistle blowing” if he continued to complain of racial discrimination; that Sentry and St. Regis “colluded and conspired to use the Family Medical Leave Act to fire [him] in retaliation for opposing racial discrimination”; and that Sentry and St. Regis “colluded and conspired to allow racial discrimination and harassment” and to fire Plaintiff for whistleblowing. (Barnes II, ECF 1.1 at 32-33).

         On January 31, 2018, Sentry removed Plaintiff's State Court's cause of action against Sentry and St. Regis to federal court based on federal question jurisdiction. (Barnes II, ECF 1) (citing 28 U.S.C. § 1331).

         On February 7, 2018, Sentry and St. Regis each filed a Motion to Dismiss in Barnes II, which Motions are currently before the Court. (Barnes II, ECF 8 & 13). Sentry asserts, in its Motion to Dismiss Barnes II, that Plaintiff failed to comply with the timeliness requirement of the Missouri Human Rights Act (MHRA), Mo. Rev. Stat. § 213.111.1 (requiring that an action be filed within 90 days from the date the notification letter is issued by the MCHR), and, alternatively, that Plaintiff fails to state a cause of action pursuant to Title VII. (Barnes II, ECF 8 & 9). St. Regis asserts, in its Motion to Dismiss Barnes II, that Plaintiff's Complaint is barred by res judicata, and, alternatively, citing Mo. Rev. Stat. § 213.111, et seq., that Plaintiff's cause of action against St. Regis is untimely because the MCHR informed Plaintiff, by letter dated April 12, 2017, that the MCHR “lack[ed] jurisdiction” over the matter because Plaintiff's complaint against St. Regis “was not filed within 180 days of the alleged discrimination as required by the [MHRA].” St. Regis also seeks an award of costs and fees. (Barnes II, ECF 14, 14.2 & 14.3).

         On February 8, 2018, Plaintiff filed a Motion for Clarification and Reconsideration in Barnes I, asking the Court to reconsider its Orders of November 15 and 17, 2017, and to declare and/or clarify whether these Orders were with or without prejudice. (Barnes I, ECF 30). By Order, dated February 14, 2018, the Court denied Plaintiff's February 8, 208 Motion for Clarification and Reconsideration, and explained that the Court's November 15 and 17, 2017 Orders were with prejudice. (Barnes I, ECF 31).

         LEGAL STANDARD FOR A MOTION TO DISMISS

         Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Allegations are to be “simple, concise, and direct.” Fed.R.Civ.P. 8(d)(1). Federal Rule of Civil Procedure 10(b) provides that in his or her complaint:

A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. . . . If doing so would promote clarity, each claim founded on a separate transaction or occurrence--and each defense other than a denial--must be stated in a separate count or defense.

         Fed. R. Civ. P. 12(b)(6) provides for a motion to dismiss based on the “failure to state a claim upon which relief can be granted.” To survive a motion to dismiss a complaint must show that “‘the pleader is entitled to relief, ' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atlantic Corp. v. Twombly,550 U.S. 544, ...


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