United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant's motion for
judgment on the pleadings or dismissal. ECF No. 17. For the
reasons set forth below, the motion will be granted in part
and denied in part.
Tiffany Evans filed a complaint against her former employer,
Defendant Orthopedic Associates, under Title VII of the Civil
Rights Act (42 U.S.C. §2000e, et seq.) and the Missouri
Human Rights Act (§213.010 et seq. RSMo), claiming that
she was subjected to a hostile work environment and
retaliation when a co-worker with Tourette's syndrome
repeatedly shouted profane and racial slurs at her. The
co-worker is not a party to this lawsuit and, for her
privacy, will be referred to herein as
“S.B.” Plaintiff alleges that, over a period of
five months, she suffered “an almost daily barrage of
racial epithets, ” several of which she recorded
between December 15, 2017, and January 9, 2018, and one of
which contains the word nigger 18 times in the span of six
minutes. Plaintiff complained to her managers, who attempted
to physically separate her from S.B. on Defendant's
premises, including designating separate lunch times.
Plaintiff suggests that her managers trivialized her
degradation by responding that S.B.'s tics were
involuntary and occurred even in her absence. Plaintiff
pleads that Defendant's response to the situation was
inadequate and that she continued to experience racial
harassment by S.B., ultimately resulting in her constructive
discharge on February 13, 2018.
response to Plaintiff's complaint, Defendant filed the
present motion for judgment on the pleadings or dismissal,
asserting that Plaintiff cannot succeed on her claims because
S.B.'s conduct was not racially motivated and because
Defendant took extraordinary steps to accommodate Plaintiff.
Plaintiff counters that the nature of S.B.'s condition is
a subject for discovery and in any case does not relieve
Defendant of its obligation to remediate reported
discrimination. Defendant replies that it had no duty to fire
S.B. due to her disability and that Plaintiff fails to
identify any actions constituting retaliation.
preliminary matter, Plaintiff asserts that Defendant's
motion for judgment on the pleadings under Rule 12(c) is
premature in that Defendant has not yet filed an answer to
the complaint. Rule 12(c) provides that, “[a]fter the
pleadings are closed but within such time as not to delay the
trial, any party may move for judgment on the
pleadings.” Fed.R.Civ.P. 12(c). Since no answer has
been filed in this case, no Rule 12(c) motion can be decided.
Richardson v. Hellmuth, Obata & Kassabaum, Inc.,
4:11CV1227 CDP, 2011 WL 4635183, at *1 (E.D. Mo. Oct. 4,
2011) (citing Hailey v. Yellow Freight Sys., Inc.,
599 F.Supp. 1332, 1333 (W.D.Mo.1984)).
purpose of a motion to dismiss under Rule 12(b)(6) is to test
the legal sufficiency of the complaint. Richardson,
2011 WL 4635183 at *2. To survive a motion to dismiss for
failure to state a claim, a complaint must contain
“sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
court must accept the complaint's factual allegations as
true and construe them in the plaintiff's favor, but it
is not required to accept the legal conclusions the complaint
draws from the facts alleged. Id. at 678. “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.” Id.; see also McDonough v. Anoka
Cty., 799 F.3d 931, 945 (8th Cir. 2015). Courts are not
bound to accept as true a legal conclusion couched as a
factual allegation, and factual allegations must be enough to
raise a right to relief above the speculative level.
Torti v. Hoag, 868 F.3d 666, 671 (8th Cir. 2017). A
court must “draw on its judicial experience and common
sense” and consider the plausibility of the
plaintiff's claim as a whole, not the plausibility of
each individual allegation. Zoltek Corp. v. Structural
Polymer Grp., 592 F.3d 893, 896 n.4 (8th Cir. 2010)
(quoting Iqbal, 556 U.S. at 679).
complaint should not be dismissed merely because the court
doubts that a plaintiff will be able to prove all the
necessary allegations. The issue is not whether the plaintiff
will ultimately prevail but whether he is entitled to present
evidence to support his claims.” Richardson,
2011 WL 4635183 at *2 (internal citations omitted).
parties do not dispute that Plaintiff's federal and state
claims of hostile work environment (Counts I and II) and
retaliation (Counts III and IV) require the same basic
elements and analysis for purposes of the present motion. As
such, the Court will simply address each theory as the
parties have discussed them in their briefing.
sustain a claim for hostile work environment, a plaintiff
must show that (1) she is a member of a protected class; (2)
she is subjected to unwelcome race-based harassment; (3) the
harassment was because of membership in the protected class;
and (4) the harassment affected a term, condition, or
privilege of her employment. Anderson v. Durham D &
M, L.L.C., 606 F.3d 513, 518 (8th Cir. 2010); Hill
v. City of St. Louis, 371 S.W.3d 66, 70 (Mo. App. E.D.
2012). “The harassment must be both subjectively
offensive to the employee and objectively offensive such that
a reasonable person would consider it to be hostile or
abusive.” Turner v. Gonzales, 421 F.3d 688,
695 (8th Cir. 2005). When a plaintiff attempts to establish a
hostile work environment ...