United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE
three-count complaint, plaintiff Sarah Michal claims that
defendant D.H. Pace Company, Inc., discriminated against her
in her employment because of her gender, in violation of
Title VII of the Civil Rights Act (Count I) and the Missouri
Human Rights Act (MHRA) (Count II), and in a manner that
caused her “emotional distress” (Count III).
Because the Missouri Commission on Human Rights (MCHR) never
issued Michal a notice of right to sue on her MHRA claim, I
will grant defendant's motion to dismiss that claim.
Also, Michal concedes that her claim for emotional distress
was not intended to allege a separate tort but rather to
plead an element of damages on her discrimination claims. I
will dismiss the claim to the extent it purports to be a
separate claim for relief, but I will permit Michal to plead
emotional distress as damages for discrimination.
Pace seeks to dismiss Counts II and III of Michal's
complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a
claim. When reviewing a Rule 12(b)(6) motion to dismiss, I
assume the allegations in the complaint to be true and
construe the complaint in plaintiff's favor. See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007);
Huggins v. FedEx Ground Package Sys., Inc., 592 F.3d
853, 862 (8th Cir. 2010); Anzaldua v. Northeast Ambulance
& Fire Prot. Dist., 978 F.Supp.2d 1016, 1021 (E.D.
Mo. 2013). To survive a motion to dismiss, the complaint need
not contain “detailed factual allegations, ” but
it must contain facts with enough specificity “to raise
a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. The issue in determining a
Rule 12(b)(6) motion is not whether the plaintiff will
ultimately prevail, but whether the plaintiff is entitled to
present evidence in support of the claim. See Skinner v.
Switzer, 562 U.S. 521, 529-30 (2011) (quoting
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
concedes that the claim of emotional distress raised in Count
III of her complaint is not brought as a separate tort claim
upon which she seeks independent relief. Regarding the MHRA
claim raised in Count II, Michal argues that she should be
permitted to proceed on the claim in this action.
began working for D.H. Pace in July 2012. Since June 2014,
she was continually passed over for promotion to the position
of residential install manager, despite her ability and
qualifications to perform the job. Instead, less experienced
and less senior male employees were hired for the position,
and Michal was charged with the duty to train these men.
September 2016, a new manager and supervisor at D.H. Pace
suggested that Michal be promoted to residential install
manager and Michal inquired in November 2016 about a
promotion. In December 2016, D.H. Pace informed Michal that
she would never be promoted to a management position.
Pace terminated Michal's employment on December 5,
filed a complaint with the EEOC on April 18, 2017, and the
EEOC issued a notice of right to sue on December 8, 2017. The
EEOC did not inform the MCHR of Michal's complaint of
discrimination. The MCHR never issued a notice of right to
sue to Michal, and Michal contends that it refuses to do so.
not jurisdictional, a plaintiff must obtain a right-to-sue
letter from the MCHR in order to bring an action under the
MHRA. Whitmore v. O'Connor Mgt., Inc., 156 F.3d
796, 800-01 (8th Cir. 1998); Clayton v. Speed Emissions,
Inc., No. 4:12-CV-565-CDP, 2012 WL 1253066, at *2 (E.D.
Mo. Apr. 13, 2012). The failure to obtain a right-to-sue
letter can be cured after litigation has begun, but the Court
may dismiss an MHRA claim if the plaintiff fails to attempt
to secure such a letter. Clayton, 2012 WL 1253066,
Michal avers in her complaint that the MCHR “refused to
issue a Right to Sue Letter to Plaintiff, ” and she
contends in response to the motion to dismiss that she is not
barred from pursuing her MHRA claim because her EEOC
complaint, on which she received a right-to-sue letter, is
considered to be dually filed with the MCHR. But, as noted by
the Missouri Court of Appeals, “[a] right-to-sue letter
from the EEOC does not give rise to a right-to-sue under the
MHRA; the plaintiff must first receive a right-to-sue letter
from the MCHR. The Missouri Human Rights Act and Title VII
are coextensive, but not identical, acts. These statutes
create different causes of action.” Hammond v.
Municipal Correction Inst., 117 S.W.3d 130, 136
(Mo.Ct.App. 2003) (citation omitted).
information before the Court, it appears that Michal does not
intend to attempt to obtain a right-to-sue letter from the
MCHR or believes that she is unable to do so. I will
therefore dismiss her MHRA claim. I will dismiss the claim
without prejudice, ...