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Johnson v. Special School District of St. Louis County

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

May 10, 2018




         Before the Court are the Motions to Dismiss filed by Defendant Special School District of St. Louis County (SSD) and by Defendant Jennings School District (JSD) (jointly, Defendants). (ECF 13; ECF 15). Also before the Court is Plaintiff's Objection to Defendant's Removal of Plaintiff's Case Filed in Missouri State Court (ECF 19) and Amended Objection to Defendant's Removal of Plaintiff's Case Filed in Missouri State Court (ECF 28). The matters are fully briefed and ready for disposition.


         The SSD removed this matter from the Circuit Court of St. Louis County on January 11, 2018, pursuant to 28 U.S.C. § 1441(a). On February 9, 2018, Plaintiff filed a document titled “Objection to Defendant's Removal of Plaintiff's Case Filed in Missouri State Court.” (ECF 19). Subsequently, Plaintiff filed a document titled “Amended Objection to Defendant's Removal of Plaintiff's Case Filed in Missouri State Court.” (ECF 28). In these documents, Plaintiff argues that removal was not proper because the JSD did not properly consent to removal pursuant to 28 U.S.C. § 1446(b)(2)(A) in that it failed to notify the Court, in writing, that it consented to removal.

         The Notice of Removal stated that, prior to removal, counsel for the SSD notified counsel for the JSD of the SSD's intention to remove the matter and that the JSD did not object to removal. (ECF 1, ¶ 23; ECF 31.1). Although 28 U.S.C. § 1446(b)(2)(A) does require that all defendants who have been served consent to removal, section 1446(b)(2)(A) does not specify that all defendants notify the court in writing of their consent. To the extent that defendants must do so, the JSD filed a Consent to Removal, on April 3, 2018. (ECF 31). As such, the Court finds that the JSD sufficiently consented to removal and that, therefore, removal was proper.[1]


         Under the heading “Introduction, ” Plaintiff's Complaint states, in a single paragraph the following:

Plaintiff contends that SSD officials discriminated against her by refusing to transfer her, [] because of her race (caucasi[a]n) AND her age (over 40) while at the same time transferring others who were younger than her to schools where the level of violence was far less and that the opportunity to flourish as an instructor was much more prevalent. In addition, the SSD did discriminate against her by an unequal and unfair distribution of the workload, not providing appropriate technology to assist the plaintiff in furthering the education of her students, refusing access to printers that actually work, penalizing her for reporting a hot line of abuse by a [JSD] administrator, refusing to provide the basic instructional materials and settings that would be conducive to fostering education. While at the same time providing these requisite items to her African American counter-parts who were younger than her. That the SSD and the [JSD] failed to correct any of the aforementioned after the plaintiff complained to them about discriminatory acts. Further, the plaintiff contends that the Supervisory personnel of the SSD and the JSD retaliated against her for having complained of the discriminatory acts. In addition, the plaintiff contends that the SSD and the JSD retaliated against her for having complained of the discriminatory acts. In addition, the plaintiff contends that the SSD and JSD supervisors did retaliate against her for having reported the wrong doings of some of the aforementioned supervisors. The retaliation consisted of, but was not limited to[:] creating a hostile work environment, causing her to suffer major depression, failed to provide reasonable accommodations, punished her for using medical leave to obtain treatment for medical issues and her rights under the Equal Employment Opportunity Act to obtain legal representation to combat the retaliation by work induced maladies, poor work evaluations and threats of discharge. In addition, the acts of the supervisory personnel sought to inflict emotional distress upon the plaintiff. That not only did supervisors create the hate filled work environment but the higher up supervisors condoned their discriminatory and retaliatory acts making them culpable in the distress of the plaintiff. That the defendants were guilty of despicable acts designed to discriminate in an egregious “Willful and Wanton” manner that they should be appropriately punished by allowing “Punitive Damages” against the defendants.

(ECF 4, ¶ 1).

         As relevant, Plaintiff alleges, under the heading “Parties, ” that: she is a Caucasian female who was at least forty years of age and a career speech and language pathologist; at all times relevant, “including [the] present day she has been employed with SSD as a Speech and Language pathologist”; that she is “a mandated reporter under both State and Federal law regarding physical, emotional, and sexual abuse of the minor children under her care”; and that the SSD and the JSD are municipal governmental agencies. (ECF 4, ¶¶ 5-8).

         In numbered paragraphs under the heading “Statement of Facts, ” Plaintiff alleges that: at all times relevant, she worked at the University City Belmar Harvard Elementary School in the University City School District and the Northview Elementary School in the JSD; “at all times relevant [she] was working within the [SSD] wherein they oversee the operations and activities of the individual instructors on a concurrent basis”; Plaintiff's “first level supervisor for the SSD” at the time of the “discrimination” and “retaliation” was “DeAndria Player (female African American)”; Plaintiff's first level supervisors at the SSD at the time of Plaintiff's “Whis[t]leblower reporting” were “DeAndria Player and Constance Johnson”; Plaintiff's “third level supervisor for the SSD at the time of the ‘discrimination' [and retaliation] was Don Bohannon”; “DeAndria Player was a protégé of Gina Hastey”; “[w]hen DeAndria Player became [Plaintiff's] supervisor she continued the discriminatory acts as promised by Gina Hastey”; Gina Hastey “engaged in age and racial discrimination from 2010 to present day when she placed unfair and unrelenting expectations on [Plaintiff]”; Hastey and her agents retaliated “by refusing to transfer [Plaintiff] out of [the JSD] while granting transfers to others of younger years”; Hastey “retaliate[d] by assessing unfair and unjust Personal Improvement Plan (PIP), unfair and unjust evaluation”; when DeAndria Player, who is an African American female, became Plaintiff's supervisor, she “continued the discriminatory acts as promised by [] Hastey”; in March 2015, DeAndria Player placed Plaintiff on a second PIP and was, among other things, rude, and told Plaintiff to “go teach somewhere closer to her home”; subsequently, Player retaliated by “having [] SSD send [] [P]laintiff a ‘30 day letter' threatening termination”; Player fabricated “a story about [] [P]laintiff not inviting a parent to a scheduled Individualized Education Plan (IEP)”; Player retaliated against Plaintiff because Plaintiff filed complaints against her with [the] Union and Human Resources director Don Bohannon; Player retaliated against Plaintiff by “reprimanding [her] for not signing in and out for attendance purposes, ” although “the black teachers did not have to sign in and out”; and, in May 2015, Plaintiff reported an alleged violation of the “Missouri Department of Elementary and Secondary Education rules and regulations regarding IEP meetings” to “Don Bohannon along with all other retaliatory actions on the part of DeAndria Player and other District and building personnel.” (ECF 4, ¶¶ 11-36).

         Further, under the heading “Statement of Facts, ” Plaintiff alleges that: in August 2015, Plaintiff filed a “Hot Line report” against her building principal, Dr. Hicks Prophet, regarding “a very challenged IEP student”; during the meeting regarding the Hot Line report, Assistant Principal Dr. Gyton, stated that “‘we don't need a circus around here with spectators, ' as if [] [P]laintiff was part of a ‘Circus with spectators'”; after this meeting, “Constance Johnson[2] called DeAndria Player and DeAndria [told] Ms. Johnson to tell [] [P]laintiff to go home”; Plaintiff called her Union representative to report what happened; after the August 2015 meeting, the retaliation against Plaintiff “really started” and Constance Johnson “started constantly giving memos as to things [Plaintiff] was not supposedly doing correctly”; Dr. Hicks Prophet, then “began giving [Plaintiff] dirty glaring looks” and began to “ostracize” her; then Player and Jody Haye, a supervisor in the Special Non-Public Access Program (SNAP), retaliated by removing Plaintiff from participating in SNAP, which had an effect on Plaintiff's “annual income and her lifetime monthly retirement amount”; Player and “others” constantly harassed Plaintiff, by among other things, preventing her from attending workshops, unequally distributing the workload, and doing “anything that might place [] [P]laintiff into a position of violating school or district policy”; in January 2016, Player came to Plaintiff, “challenge[d] [her] obligation to do SNAP after school even though” it had been approved and threatened Plaintiff “with the past, ” including Plaintiff's having previously received a “30 Day Letter”; when Player came to Plaintiff in January 2016, she told Plaintiff that she was “back as her supervisor” and that Plaintiff would “no longer be doing SNAP”; “[l]ater, Jody Haye, Gina Hastey's friend contact[ed] [Plaintiff] and want[ed] [her] to leave her present assignment and go” to a different school district “but later withd[rew] the offer due to []Andria Player's interference and refusal to allow [] [P]laintiff to take part in SNAP”; on August 28, 2017, Holly Kloppenburg, who was then the SNAP supervisor, told Plaintiff that she had a conversation with Jody Haye who said that Plaintiff “was to never work SNAP per [] Player's directive”; Player declined a position at Hazelwood High School where she would be working with older much more aggressive students; Player requested that Plaintiff take the Hazelwood High School position; Plaintiff feared that, upon requesting that Plaintiff take the transfer to Hazelwood, she was being “set up for failure because she had never worked with high school students”; after Plaintiff declined to take the Hazelwood position, Player told Plaintiff that if she did not take the position, Player “better never hear [Plaintiff] complain about anything to SSD or Jennings ever again”; Plaintiff “was fearful of more retaliation and finally gave in and took the transfer”; and Plaintiff's supervisors engaged in age and racial discrimination against her “either by direct involvement or by being complacent and doing nothing to prevent the discriminatory acts regarding both age and race, and whistleblowing.” (ECF 4, ¶¶ 38-46).

         Plaintiff's Complaint titles Counts I through X as follows: Racial Discrimination in violation of the Missouri Human Rights Act (MHRA), Mo. Rev. Stat. § 213, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Count I); Age Discrimination in violation of the MHRA and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 (Count II); Reprisal for Engaging in Protected Activities, in violation of the MHRA (Count III); “Reprisal for Engaging in ‘Whistleblower' Protected Activity” in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12203(a), Title VII, the Education Amendments of 1972, (Title IX), 20 U.S.C. § 1681, et seq., the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2614, and the Rehabilitation Act, 29 U.S.C. § 794 (Count IV); Violation of the Rehabilitation Act, 29 U.S.C. § 710, et seq. (Count V); “Hostile and Abusive Work Environment” (Count VI); Intentional Infliction of Emotional Distress (IIED) (Count VII); Negligent Infliction of Emotional Distress (NIED) (Count VIII); “Tortious Interference with a Business Expectancy” (Count IX); and “Willful and Wanton” (Count X). (ECF 4).

         In her Responses to the Motions to Dismiss, Plaintiff introduces and references facts which are not alleged in the Complaint. (ECF 26 & 27). She has not submitted a sworn affidavit to support any of the additional facts to which she refers in her Responses and has not sought leave to file an amended complaint. In her Responses, Plaintiff also references exhibits she submitted in support of her Motion for an Extension of Time to Obtain an Attorney. (ECF 24.1-24.51). In the interest of justice, the Court will consider these exhibits, to the extent they are relevant to the Motions to Dismiss.

         The exhibits which Plaintiff submitted in support of her Motion for Extension of Time to Obtain an Attorney reflect, among other things, that: Plaintiff suffered injuries in a motor vehicle collision on September 18, 2017 (ECF 24.3); on October 14, 2017, a doctor noted that Plaintiff had a normal physical exam, a normal neurological exam, including a normal memory, and a normal psychiatric exam, including normal orientation, mood, affect, insight, and judgment (ECF 24.28); Plaintiff requested FMLA leave from the SSD due to fatigue with chronic headaches and neck and back pain and stated that her condition started on September 18, 2017, and that she would need to have her work schedule reduced two to three hours (ECF 24.15-24.17); on November 20, 2017, Plaintiff presented for the purpose of having her FMLA “papers extended, ” and stated that she had physical problems which were “keeping her from getting her paper work at work completed by the deadlines so she want[ed] a duty modification so she [could] have extensions” (ECF 24.27); on November 30, 2017, Plaintiff's request for FMLA leave was approved by the SSD and, pursuant to this approval, Plaintiff could take “Intermittent Leave” (ECF 24.19-24.20); on November 30 and December 19 and 28, 2017, January 30, 2018, February 14, 2018, and March 1, 2018, Plaintiff presented for counseling (ECF 24.32-24.37); on January 11, 2018, Plaintiff signed a form acknowledging that she was being placed on “paid administrative leave” and would not have “SSD technology access” and she would not be “conducting any SSD business” (ECF 24.46-24.47); on January 20, 2018, Plaintiff had an MRI of the cervical spine (ECF 40); on January 11, 2018, Plaintiff signed a notice of a due process meeting, acknowledging that “all SSD Technology access [would] be removed and that [she] [would] not be conducting any SSD business or attending any SSD or Partner District Trainings” (ECF 24.47); a February 1, 2018 form reflects that Plaintiff was requesting an accommodation and that she had headaches and chronic neck pain with fatigue (ECF 24.21-24.22); a February 5, 2018 letter from the SSD to Plaintiff acknowledged receiving a “Medical Inquiry Form, ” from Plaintiff's physician requesting “work accommodations of ‘Extension on progress reporting and Medicaid billing on correct student records or data on a daily basis, '” and stated that the SSD needed a “medical diagnosis” and information regarding the “frequency and duration of time required for the [requested] extension” (ECF 24.42); the February 5, 2018 letter also stated that after receiving the requested information from Plaintiff's physician, the SSD would contact Plaintiff to discuss whether she qualified for a reasonable job accommodation and whether reasonable job accommodations existed (ECF 24.42); on February 9, 2018, it was reported that Plaintiff was in an automobile accident in September 2017 and was diagnosed with a concussion and spinal stenosis, that she still had pain, that she had a past history of depression, that a neurological exam was normal which exam included a finding that her memory was normal, and that her psychiatric examination was normal in that Plaintiff was oriented and had appropriate mood, affect, and judgment (ECF 24.24 and 24.26); on February 21, 2018, Plaintiff sent an e-mail regarding her request for “Administrative Leave/FMLA, ” which stated that the SSD already had the information it requested and that she would be returning to school on February 26, 2018 (ECF 24.48-24.49); and, on February 23, 2018, the SSD sent Plaintiff notification, in regard to an investigation for allegations of violating Board policies, that she should return to work on February 26, 2018, and that she would receive a PIP (ECF 24.50).


         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, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). See also Erickson v. Pardus, 551 U.S. 89, 93 (2007).

         “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to defeat a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679 (citing Twombly, 550 U.S. at 556). The pleading standard of Rule 8 “does not require ‘detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

         Further, in regard to a Rule 12(b)(6) Motion, the Supreme Court holds:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, [citations omitted] 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, see Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation”). Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A. Miller, Federal Practice and Procedure ' 1216, pp. 235-236 (3d ed. 2004).

Twombly, 550 U.S. at 555. See also Gregory v. Dillard=s, Inc., 565 F.3d 464, 473 (8th Cir. 2009) (en banc) (“[A] plaintiff ‘must assert facts that affirmatively and plausibly suggest that the pleader has the right he claims . . ., rather than facts that are merely consistent with such a right.'”) (quoting Stalley v. Catholic Health Initiative, 509 F.3d 517, 521 (8th Cir. 2007)).

         Additionally, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable.” Twombly, 550 U.S. at 556 (citation omitted). “The issue is not whether plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support [his or her] claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (abrogated on other grounds, Horlow v. Fitzgerald, 457 U.S. 800 (1982)).

         A pro se complaint should be liberally construed. Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2014) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). See also Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995) (holding that in civil rights actions a complaint should be liberally construed when determining whether it has stated a cause of action sufficient to survive a motion to dismiss). The complaint must, however, “still allege sufficient facts to support the claims advanced.” Stone, 364 F.3d at 914 (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (regarding a pro se plaintiff, “we will not supply additional facts, nor will we construct a legal theory for plaintiff that assumes facts that have not been pleaded.”); Cunningham v. Ray, 648 F.2d 1185, 1186 (8th Cir. 1981) (“[P]ro se litigants must set forth [a claim] in a manner which, taking the pleaded facts as true, states a claim as a matter of law.”).

         The Court will apply the above stated principles to the pending Motions to Dismiss.


         Count I: Racial Discrimination in Violation of the MHRA and Title VII:

         In addition to the allegations set forth above, which Plaintiff incorporates in all Counts, Plaintiff alleges, in Count I, that “Defendant's conduct . . . constitutes discrimination based on race in violation of Title VII, ” and that “[t]he stated reasons for the Defendant's conduct were not the true reasons, but instead were the pretext to hide the Defendant's discriminatory animus.” (ECF 4, ¶ 48).

         The SSD and the JSD each contend that Count I of Plaintiff's Complaint, alleging racial discrimination in violation of Title VII and the MHRA, should be dismissed as untimely. (ECF 14 at 5-6; ECF 16 at 3).

         Prior to filing suit pursuant to Title VII, a plaintiff must file a discrimination charge with the Equal Employment Opportunity Commission (EEOC) or the Missouri Commission on Human Rights (MCHR) and obtain a right-to-sue letter. Litigation must be instituted within the ninety-day period specified in the right-to sue letter. Winbush v. State of Iowa, By Glenwood State Hosp., 66 F.3d 1471, 1477 (8th Cir. 1995). See also Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002) (the “charge filing provision [of Title VII] [] ‘specifies with precision' the prerequisites that a plaintiff must satisfy before filing suit, ” including that “[a]n individual must file a charge within the statutory time period and serve notice upon the person against whom the charge is made”) (quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974)). Failure to file suit within ninety days after receipt of a notice from the EEOC renders a plaintiff's action untimely. See Brooks v. Ferguson-Florissant Sch. Dist., 113 F.3d 903, 905 (8th Cir. 1997) (noting that the EEOC letter “plainly” said the plaintiff would lose his right to a cause of action if one was not filed within 90 days). See also Littell v. Aid Ass'n for Lutherans, 62 F.3d 257, 259 (8th Cir. 1995) (considering a suit pursuant to the ADEA and holding that “the plain meaning of the statute now provides that failure to file suit within ninety days after the receipt of a notice from the EEOC renders a plaintiff's action untimely”).

         The MHRA, § 213.111.1 provides that any action brought pursuant to the MHRA must be filed within ninety days from the date of the MCHR notification letter. Thus, under the MHRA, the statute of limitations for filing suit begins to run when the right-to-sue letter is issued, rather than the date the letter is received. Hammond v. Mun. Correction Inst., 117 S.W.3d 130, 133 (Mo. App. 2003).

         Plaintiff filed a dual charge of discrimination against the SSD and the JSD with the MCHR and the EEOC on December 29, 2015. (ECF 14.1). On March 21, 2017, the MCHR issued a right-to-sue letter, stating Plaintiff had ninety days from the date of the letter to file suit (ECF 14.3), and, on June 7, 2017, the EEOC, through the United States Department of Justice (DOJ), issued a right-to-sue letter, stating that Plaintiff had ninety days from the date she received the letter to file suit (ECF 14.2). Plaintiff, however, did not file this action in State ...

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