United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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.
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
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.
question is: when does an MHRA employment discrimination
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).
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 ...