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Marshall v. Walgreen Co.

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

June 18, 2018

WALGREEN CO., et al., Defendants.



         Walgreens manager Scott Haynes is properly named as a defendant in this employment discrimination lawsuit brought under the Missouri Human Rights Act (MHRA), so I will deny his motion to dismiss. But because complete diversity exists between the parties and the amount in controversy exceeds $75, 000, I will deny plaintiff's motion to remand this case to state court. Plaintiff shall have thirty days within which to serve the remaining diverse defendant in this case, Cecile Wong.


         Plaintiff Pamela Marshall is an African American woman who began working for defendant Walgreen Co. in 1985 when she was eighteen years old. She began her employment as a pharmacy intern and was later promoted to pharmacy manager, pharmacy supervisor, and eventually district manager in May 2015. During the course of her employment as district manager, she was supervised by defendants Cecile Wong and Scott Haynes. She was the only African American district manager in the St. Louis metropolitan area and the only African American district manager reporting to Haynes.

         In March 2016, Marshall complained to Walgreens that Wong treated her differently and more severely than other district managers; after this complaint she was placed on a performance improvement plan (PIP). Marshall successfully completed the PIP in May 2016 and asked Haynes to strike the PIP from her record, but he refused. For the year ending August 2016, Marshall received a low rating in her performance evaluation and was criticized for issues that non-African American district managers did not get criticized for. In December 2016, Marshall was again placed on a PIP and was criticized for conduct that non-African American district managers did not get criticized for.

         On April 10, 2017, Wong told Marshall that Walgreens had eliminated her position, and she was demoted to management trainee. She began working in that position on April 21. In the meanwhile, a younger, less experienced, white male replaced Marshall in her district manager position. Marshall ended her employment with Walgreens on April 26.

         Marshall filed a charge of discrimination with the Missouri Human Rights Commission (MHRC) on May 16, 2017, alleging that defendants Walgreens, Wong, and Haynes discriminated against her in her employment on account of her race, age, and sex and, further, in retaliation for engaging in protected conduct. The MHRC issued Marshall a notice of right to sue on November 13, 2017.

         On January 22, 2018, Marshall filed this action in the Circuit Court of the City of St. Louis, Missouri, alleging that she was subjected to a hostile work environment and constructively discharged because of her race, age, and sex, and in retaliation for her complaints of discrimination, all in violation of the MHRA. She named Walgreen Co., Wong, and Haynes as defendants. Walgreens and Haynes removed the action to this Court on February 27, 2018, invoking this Court's diversity jurisdiction. Defendant Wong has not yet been served in the case.

         Motion to Dismiss

         Defendant Haynes seeks to dismiss Marshall's claims against him, arguing that at the time Marshall's claims accrued, Missouri law provided that individuals were not subject to liability under the MHRA. Although Missouri courts have not yet spoken on the issue, I agree with plaintiff that her cause of action accrued at a time when the MHRA provided for individual liability.

         At the time of the alleged discriminatory conduct and when Marshall filed her charge of discrimination, Missouri law provided that individuals could be held liable under the MHRA. Mo. Rev. Stat. § 213.010(7) (2016). That law was amended effective August 28, 2017, however, changing the definition of “employer” to exclude individuals. Mo. Rev. Stat. § 213.010(8)(c) (2017). Although Missouri courts have not yet addressed the issue, various federal courts have determined that because this change to the law removed a cause of action a plaintiff would otherwise have against individual defendants, the amendment was substantive and could not be applied retroactively. See Woodruff v. Jefferson City Area YMCA, No. 17-4244-CV-C-WJE, 2018 WL 576857, at *3 (W.D. Mo. Jan. 27, 2018); Billingsley v. Rich Logistics, LLC, No. 4:17 CV 2834 SNLJ, 2018 WL 1924339, at *2 (E.D. Mo. Apr. 24, 2018). See also McGuire v. St. Louis Cty., Mo., No. 4:17 CV 2818 CDP, 2018 WL 705050, at *2-3 (E.D. Mo. Feb. 5, 2018) (agreeing with Woodruff court's reasoning, but recognizing that Missouri courts have not decided the issue). “It is settled law in Missouri that the legislature cannot change the substantive law for a category of damages after a cause of action has accrued.” Klotz v. St. Anthony's Med. Ctr., 311 S.W.3d. 752, 760 (Mo. banc 2010). Haynes does not quarrel with this reasoning. Instead, he claims that Marshall's cause of action did not accrue until November 13, 2017, when the MHRC issued its right-to-sue notice. Because the MHRA did not provide for individual liability at that time, Haynes argues that Marshall's claims against him must be dismissed.

         So the question is: when does an MHRA employment discrimination claim “accrue”?

         The MHRA does not specifically define when a cause of action for employment discrimination “accrues” and no Missouri court has addressed the issue. But because the MHRA is modeled after federal anti-discrimination laws, federal law on the issue is strong persuasive authority. See Hammond v. Municipal Correction Inst., 117 S.W.3d 130, 134 (Mo.Ct.App. 2003) (Missouri courts look to federal employment discrimination law where there is no Missouri precedent); Pollock v. Wetterau Food Distribution Grp., 11 S.W.3d 754, 771 (Mo.Ct.App. 1999) (looking to federal law when MHRA not explicit on issue).

         Under federal law, an employee's claim of discrimination accrues when the alleged discriminatory action occurs, e.g., for wrongful discharge, when the employee is fired. “At that point . . . he has a ‘complete and present cause of action.'” Green v. Brennan, 136 S.Ct. 1769, 1777 (2016). See also Henderson v. Ford Motor Co., 403 F.3d 1026, 1032 (8th Cir. 2005) (cause of action for employment discrimination accrues on date adverse employment action is communicated to employee); Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 362 (8th Cir. 1997) (“an employee's claim accrues on the date she is notified of the employer's [adverse] decision.”); Noel v. AT & T Corp., 936 F.Supp.2d 1084, 1091-94 (E.D. Mo. 2013) (cause of action for wrongful termination under MHRA accrued when employee tendered resignation). I note that various provisions of the MHRA itself are consistent with this principle. First, the MHRA's statute of limitations requires that a cause of action must be brought in court “no later than two years after the alleged cause occurred or its reasonable discovery by the alleged injured party.” Mo. Rev. Stat. § 213.111.1. And the MHRA's administrative process by which an employee must file and pursue an administrative complaint is ...

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