United States District Court, W.D. Missouri.
NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE.
Manpower US, Inc. (“Manpower”) moves to dismiss
plaintiff Shelby Herring's claims against it. Doc. 7. For
the following reasons, Manpower's motion is granted.
to filing suit, Ms. Herring filed a charge of discrimination
with the Missouri Commission on Human Rights
(“MCHR”) asserting claims under the Missouri
Human Rights Act (“MHRA”), Mo. Rev. Stat. §
213.010 et seq. Doc. 8-1 (Plaintiff's June 18,
2018 MCHR Charge). She identified “Yanfeng Automotive
Interiors” as the only respondent. Id. at p.
1. Defendant Manpower appeared in the
“Particulars” (description) of the charge but was
not identified as a formal respondent. Id.
(“When I was with Manpower as a temp, Lavonda Brown, a
black female did not like me and many others who were white,
and she created a hostile work environment.”).
26, 2018, the MCHR sent Yanfeng USA Automotive Trim Systems,
Inc. (“Yanfeng”) written notice that Ms. Herring
had filed a charge of discrimination against it, which
included information about participating in the investigation
moving forward. See Doc. 8-2 (June 26, 2018 Notice).
Manpower received no such notice to participate in the
December 17, 2018, the MCHR issued a Notice of Right to Sue
granting Ms. Herring the right to sue “the
respondent(s) named” in the charge. Doc. 8-3 (December
17, 2018 Right to Sue). Thereafter, on March 5, 2019, Ms.
Herring filed suit against defendants Manpower and Yanfeng in
the Circuit Court of Platte County, Missouri asserting claims
under the MHRA for discrimination on the basis of disability
(Count I), sex (Count II), and race (Count III), retaliation
(Count IV), and hostile work environment (Count V).
Yanfeng removed the case to federal court on April 5, 2019.
On April 12, 2019, Manpower filed the motion to dismiss
currently before the Court.
survive a motion to dismiss, a complaint “must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir.
2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). A claim has facial plausibility when “the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
filing a civil action under the MHRA, a plaintiff must
“exhaust administrative remedies by timely filing an
administrative complaint and either adjudicating the claim
through the MCHR or obtaining a right-to-sue letter.”
Alhalabi v. Mo. Dept. of Nat. Res., 300 S.W.3d 518,
524 (Mo.Ct.App. E.D. 2009); Mo. Rev. Stat. § 213.075(1)
(identifying exhaustion as a “jurisdictional condition
precedent” to filing suit). While the Missouri Supreme
Court has taken a “liberal approach” to
exhaustion under the MHRA, Alhalabi, 300 S.W.3d at
525, it has also acknowledged its purpose, and the
importance, of “giv[ing] notice to the charged party
and . . . provid[ing] an avenue for voluntary compliance
without resort to litigation, ” Hill v. Ford
Motor Co., 277 S.W.3d 659, 669-70 (Mo. 2009).
Thus, when a plaintiff has failed to include a party in the
administrative process, the Court must determine whether
there is “substantial identity of interest”
between the parties sued and those charged, such that the
failure to join the unnamed party can be forgiven and the
case permitted to proceed. Id.
argues that Ms. Herring's claims against it must be
dismissed because she failed to name Manpower as a respondent
in her MCHR charge,  and therefore, has failed to exhaust her
administrative remedies. In opposition, Ms. Herring argues
that dismissal is not required because there is
“substantial identity of interest” between
Manpower and the party charged, Yanfeng, such that her
failure to include Manpower in the administrative process
should be excused.
determine whether there is “substantial identity of
interest” between Manpower and Yanfeng, the Court
considers whether: (1) the role of Manpower could be
ascertained by Ms. Herring's reasonable effort at the
time of filing; (2) interests of Yanfeng and Manpower are so
similar that for the purpose of obtaining voluntary
conciliation and compliance it would be unnecessary to
include Manpower in the administrative proceedings; (3)
Manpower's absence resulted in “actual
prejudice” to its interests; and (4) Manpower has
“in some way represented to [Ms. Herring] that its
relationship with [her] is to be through the named
party.” Id. at 669-70 (quoting Glus v.
G.C. Murphy Co., 562 F.2d 880, 888 (3rd Cir. 1977)).
is no real question that the first Hill factor
weighs in favor of Manpower; Ms. Herring does not even
address it in her suggestions in opposition to the motion to
dismiss. Ms. Herring not only could have ascertained
Manpower's role in the alleged acts of discrimination and
retaliation through reasonable effort but had actual
knowledge of it before she filed her administrative charge,
as evidenced by her mention of Manpower in the charge.
See Stoker v. Lafarge N. Am., Inc., No.
4:12-CV-0504-DGK, 2013 WL 434049, at *4 (W.D. Mo. Feb. 5,