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Evans v. Orthopedic Associates, LLC

United States District Court, E.D. Missouri, Eastern Division

August 19, 2019




         This 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.


         Plaintiff 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.”[1] 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.

         In 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.


         Rule 12(c)

         As a 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)).

         Rule 12(b)(6) Standards

         The 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).

         “A 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).

         The 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.

         Hostile Work Environment

         To 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 ...

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