United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants St. Louis Family
Court/State of Missouri ("the State"), Ben
Burkemper, and Clifford Faddis' motion to dismiss. (Doc.
No. 3). The motion is fully briefed and ready for
disposition. For the reasons set forth below, the motion will
be granted in part and denied in part.
November 6, 2018, Plaintiff, a white female, filed this
employment discrimination action, asserting violations of
Title VII, 42 U.S.C. § 2000, et seq.; the
Missouri Human Rights Act ("MHRA"), Mo. Rev. Stat.
§ 213.010, et seq.; 42 U.S.C. § 1983; 42
U.S.C. § 1981; and conspiracy to violate civil rights.
Specifically, Plaintiff asserts that she was discriminated
against on the basis of her race when she was not promoted to
Director of Court Programs for the Family Court of St. Louis,
and that Defendants lowered the qualifications for the
position for the purpose of hiring a particular
African-American candidate, T.B.
filed this motion to dismiss, arguing (1) that Plaintiffs
Title VII claim against Defendants Burkemper and Faddis fail
because there is no individual liability under the statute;
(2) the State is not a "person" subject to suit
under § 1983; (3) Plaintiffs § 1981 claim fails
because such a claim against state actors must be brought
pursuant to § 1983; and (4) Plaintiff fails to allege
with particularity materials facts that Defendants Burkemper
and Faddis reached any agreement to deprive Plaintiff of her
civil rights, which is insufficient to state a claim for
concedes in her response that Plaintiffs Title VII claims
against Defendants Burkemper and Faddis fail and that the
State is not a "person" subject to suit under
§ 1983. Thus, she consents to partial dismissal of those
claims. However, she maintains that she properly asserts
§ 1981 claims, via violations of the Equal Protection
Clause, against the State. She further argues that she has
cited numerous facts demonstrating explicit actions that were
taken in concert sufficient to survive a motion to dismiss
her conspiracy claim. In reply, Defendants acknowledge
Plaintiffs concessions and assert that under the Eleventh
Amendment, the State is immune from Plaintiffs § 1981
claim. Plaintiff did not seek leave to file a sur-reply.
deciding this motion to dismiss, the Court must accept all
the allegations in the complaint as true and draw all
reasonable inferences in favor of the nonmoving party.
Young v. City of St. Charles, 244 F.3d 623, 627 (8th
Cir. 2001). Complaints should be liberally construed in the
plaintiffs' favor and '"should not be dismissed
for failure to state a claim unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of
[her] claim which would entitle [her] to relief.'"
Rucci v. City of Pacific, 327 F.3d 651, 652 (8th
Cir.2003) (quoting Conley v. Gibson, 355 U.S. 41,
§ 1981 permits a cause of action against private actors,
where ... a plaintiff brings a claim pursuant to § 1981
against an individual who was acting under color of law, the
claim must be asserted through § 1983." A.L.L.
Constr., LLC v. Metro. St. Louis Sewer Dist., No.
4:17-CV-02367-AGF, 2018 WL 1638384, at *6 (E.D. Mo. Apr. 5,
2018) (citing Jones v. McNeese, 746 F.3d 887, 896
(8th Cir. 2014). "A plaintiff establishes a prima facie
case under § 1981 by showing (1) membership in a
protected class; (2) the intent to discriminate on the basis
of race on the part of the defendant; and (3) discrimination
interfering with a protected activity (i.e., the making and
enforcement of contracts)." Harris v. Hays, 452
F.3d 714, 718 (8th Cir. 2006).
brought under 42 U.S.C. §§ 1981 and 1983 are
closely related, and a district court may consider them
together. Zimmerman v. Arkansas Dep 't of Fin. &
Admin., No. 5:17CV00160 JM, 2018 WL 700850, at *2 (E.D.
Ark. Feb. 2, 2018), aff'd, 745 F.App'x 666
(8th Cir. 2018) (citing Artis v. Francis Howell N. Band
Booster Ass 'n, Inc., 161 F.3d 1178, 1181 (8th Cir.
1998). Here, accepting all the allegations in the complaint
as true and drawing all reasonable inferences in favor of the
nonmoving party, the Court concludes that Plaintiff has set
forth sufficient facts to state an equal protection violation
against Defendants Burkemper and Faddis, and the absence of
any reference to § 1983 is not fatal.
Plaintiffs § 1981 claim fails as to the State because
states and state agencies are immune from § 1981 claims
in federal court. Singletary v. Mo. Dep't of
Corr., 423 F.3d 886, 890 (8th Cir. 2005); see also
Rodgers v. Univ. of Mo. Bd. of Curators, 56 F.Supp.3d
1037, 1049 (E.D. Mo. 2014) (dismissing claims under
§§ 1981, 1983, and the Fourteenth Amendment based
on Eleventh Amendment immunity). Accordingly, the Court will
dismiss Plaintiffs § 1981 claims against the State.
state a claim under the equal protection provisions of the
first part of § 1985(3), ' Plaintiff must allege (1)
a conspiracy, (2) for the purpose of depriving another of the
"equal protection of the laws, or of equal privileges
and immunities under the laws; (3) an act in furtherance of the
conspiracy; and (4) an injury to a person or property, or the
deprivation of a legal right. Federer v. Gephardt,363 F.3d 754, 757-58 (8th Cir. 2004) (citing Griffin v.
Breckenridge,403 U.S. 88, 102-03 (1971) and 42 U.S.C.
§ 1985(3)). "A claim under this part of the section
also requires proof of a class-based animus."
Id (citing Griffin, 403 U.S. at 102)). In
addition, Plaintiff must allege that an independent federal
right has been infringed. "Section 1985 is a ...