United States District Court, W.D. Missouri, Western Division
ROBERT G. BERNZEN, Plaintiff,
AT&T MOBILITY SERVICES, LLC, and IESHA LYNCH, Defendants.
ORDER GRANTING PLAINTIFF'S MOTION TO
KAYS, JUDGE UNITED STATES DISTRICT COURT
civil rights action arises under the Missouri Human Rights
Act (“MHRA”). Plaintiff Robert G. Bernzen, a
Missouri citizen, alleges that his employer, AT&T
Mobility Services, LLC, and supervisor, Iesha Lynch,
discriminated against him based on his race and age.
Defendants timely removed this case from state court, arguing
that Lynch, also a Missouri citizen, was fraudulently joined.
Now before the Court are Defendants' motion to dismiss
(Doc. 6) and Plaintiff's motion to remand (Doc. 12).
Because Plaintiff did not fraudulently join Lynch and the
parties are not diverse, the Court lacks jurisdiction to rule
on Defendant's motion. The Court therefore GRANTS
Plaintiff's motion and REMANDS the case.
a white male over forty years of age, began working for
AT&T in 2014. Lynch, a black woman, supervised him from
July 2015 until July 2017, when she was promoted and
relocated. Plaintiff alleges that during this period Lynch
repeatedly discriminated against him. He claims that she
mocked him for his age and treated him and his white
coworkers much worse than their black colleagues. For
example, Lynch purportedly reserved easier and more lucrative
sales for black employees, while assigning to Plaintiff the
difficult customers. Plaintiff states that Lynch ignored his
complaints about this behavior, which took an emotional toll
and deprived him of career-advancement opportunities.
filed a charge of discrimination with the Missouri Commission
on Human Rights (“MCHR”) in November 2017. The
MCHR issued him a “right-to-sue” letter in May
2018. Plaintiff then filed suit in Missouri state court
against both AT&T and Lynch, alleging violations of the
MHRA. Defendants removed the case based on diversity
jurisdiction. According to them, the Court should
disregard Lynch's Missouri citizenship, dismiss the
claims against her, and hear the case because she was
fraudulently joined. Plaintiff meanwhile asks the Court to
remand the suit based on his and Lynch's shared state
defendant may invoke the federal courts' diversity
jurisdiction to remove a state case, provided it arises
between citizens of different states and the matter in
controversy exceeds $75, 000. 28 U.S.C. § 1441(a)-(b)
(referencing 28 U.S.C. § 1332(a)). Diversity
jurisdiction requires complete diversity-that is, no
defendant can hold citizenship in the same state as any
plaintiff. Junk v. Terminix Intern. Co., 628 F.3d
439, 445 (8th Cir. 2010) (internal quotations and citation
omitted). The party seeking removal bears the burden of
establishing federal jurisdiction, Griffioen v. Cedar
Rapids & Iowa City Ry. Co., 785 F.3d 1182, 1192 (8th
Cir. 2015), and federal courts must remand removed cases when
jurisdiction is wanting. 28 U.S.C. § 1447(c);
Junk, 628 F.3d at 444-45.
is, however, an exception for fraudulently joined non-diverse
defendants. See Simpson v. Thomure, 484 F.3d 1081,
1083 (8th Cir. 2007) (“[T]he right of an out-of-state
defendant to remove a diversity suit to federal court
‘cannot be defeated by a fraudulent joinder of a
resident defendant'” (quoting Wilson v. Rep.
Iron & Steel Co., 257 U.S. 92, 97 (1921))). Joinder
is fraudulent if “it is clear under governing
state law that the complaint does not state a cause of action
against the non-diverse defendant . . . .” Filla v.
Norfolk S. Ry. Co., 336 F.3d 806, 811 (8th Cir. 2003)
(emphasis in original) (internal quotation and citation
omitted). Joinder is not fraudulent if the complaint
“might impose liability on the resident
defendant under the facts alleged.” Id.
(emphasis in original). Federal courts resolve all doubts
about jurisdiction in favor of remand. Griffioen,
785 F.3d at 1192.
Plaintiff asserts a colorable cause of action against Lynch
turns on when the MHRA claims accrued. Missouri amended the
MHRA in 2017 to eliminate individual liability. 2017 Mo.
Legis. Serv. S.B. 43 (excluding from the definition of
“employer” an “individual employed by an
employer”); Mo. Rev. Stat. § 213.010. The
amendment took effect on August 28, 2017, and does not apply
retroactively. Bram v. AT&T Mobility Servs.,
LLC, 564 S.W.3d 787, 795 (Mo.Ct.App. 2018). Defendants
contend that Plaintiff's claims against Lynch are
fraudulent because they did not accrue until the MCHR issued
Plaintiff a right-to-sue letter in May 2018, after the
amendment's effective date. Plaintiff responds that his
claims accrued earlier, when the alleged discriminatory
conduct occurred, and thus are unaffected by the amendment.
Court concludes that Plaintiff states a potentially valid
claim against Lynch. Although the MHRA does not specify when
a cause of action accrues, case law suggests that
administrative right-to-sue letters do not bear on a
discrimination claim's validity. See Whitmore v.
O'Connor Mgmt., Inc., 156 F.3d 796, 800 (8th Cir.
1998) (holding that a right-to-sue letter is not a
jurisdictional prerequisite); Ritter v. Delta Sch.
Dist., No. 1:18-cv-170-ACL, 2018 WL 5312043, at *3 (E.D.
Mo. Oct. 26, 2018) (same). Rather, the failure to obtain such
a letter is an affirmative defense that can be cured and
waived. Johnson v. City of Kan. City, Mo., No.
4:07-cv-0664-ODS, 2008 WL 65395, at *3 (W.D. Mo. Jan. 4,
2008) ([T]he failure to obtain a letter prior to suit can be
cured if the right to sue letter is obtained after the suit
is commenced.”); see also Kerr v. Mo. Veterans
Comm'n, 537 S.W.3d 865, 873-76 (Mo.Ct.App. 2017)
(describing the failure to exhaust administrative remedies as
a non-jurisdictional defense). That an aggrieved party can
file suit and later obtain a right-to-sue letter-or, in the
case of waiver, never obtain one-indicates that MHRA claims
accrue when the alleged discriminatory acts took place.
conclusion comports with the MHRA's statute of
limitations, which requires that suits be filed both
“within ninety days from the date of the
commission's notification letter” and also
“no later than two years after the alleged cause
occurred . . . .” Mo. Rev. Stat. § 213.111.1
(emphasis added). Moreover, numerous federal and state trial
courts have adopted Plaintiff's position. See,
e.g., Ramsey v. Ga. Pac. LLC, No.
4:18-cv-00723-NKL, 2019 WL 123001, at *2-3 (W.D. Mo. Jan. 7,
2019); Robinson v. Target Corp., No.
3:18-cv-05039-RK, 2018 WL 6620892, at *2-3 (W.D. Mo. Dec. 18,
2018); Jordan v. Charter Commc'ns, Inc., No.
4:19-cv-00035-SNLJ, 2019 WL 1409353, at *3-4 (E.D. Mo. Mar.
28, 2019); Marshall v. Walgreen Co., No.
4:18-cv-331-CDP, 2018 WL 3025813, at *2-3 (E.D. Mo. June 18,
2018); Issa v. Prog. Plumbing, Inc., No.
18CT-CC00025 (Mo. Cir. Ct. June 19, 2018); Gray v. Adient
US, LLC, No. 1816-CV05914 (Mo. Cir. Ct. June 11, 2018).
argue that De Paul Hosp. Sch. of Nursing v. Sw. Bell Tel.
Co., 539 S.W.2d 542, 546-47 (Mo.Ct.App. 1976) mandates a
contrary outcome. In that case the Missouri Court of Appeals
held that the plaintiff's claims for reimbursement of
telephone overcharges did not accrue until the Public Service
Commission issued an order determining the correct rate.
Id. at 546. But there the commission had exclusive
jurisdiction to decide rates, and until it acted the court
could not hear the case and the plaintiff could not prove
damages. Id. at 546-47. In comparison, the MHRA
right-to-sue letter does not determine one's damages; it
is a “notification” that existing discrimination
claims for already-sustained damages can be litigated in
court rather than investigated by the MCHR. See Mo.
Rev. Stat. § 213.111.1; Igoe v. Dep't of Labor
& Indus. Relations of Mo., 152 S.W.3d 284, 287 n.5
(Mo. 2005). De ...