Opinion
No. 4:96CV2075.
May 22, 1997
MEMORANDUM AND ORDER
This matter is before the Court on defendants' Motions to Dismiss, for Summary Judgment, and for More Definite Statement. The undersigned has jurisdiction over this cause pursuant to 28 U.S.C. § 636(c).
Background
On April 16, 1996, plaintiff filed an EEOC charge of sex discrimination and retaliation against Principal Health Care. In that charge, plaintiff alleged that her supervisor, defendant Freeman, made sexual remarks to her on February 19, 1996. Plaintiff further alleged that defendant Freeman gave her a "written warning" in retaliation for complaining about Freeman's conduct.
The EEOC issued a right to sue letter on April 17, 1996. On July 17, 1996, plaintiff filed a second EEOC charge alleging that defendant Freeman subjected her to unwelcome sexual remarks from October 17, 1995 to February 19, 1996. Plaintiff alleged that she had complained to human resources and administrative personnel without results, and that she was fired on May 16, 1996, after filing her first EEOC charge.
Plaintiff filed this cause on October 21, 1996. Counts I and II of the Complaint assert sexual discrimination under Title VII and the Missouri Human Rights Act, respectively. Count III asserts a state law claim for intentional infliction of emotional distress, and Count IV asserts retaliatory discharge.
Defendant Freeman's Motion to Dismiss asserts that Counts I, II and IV fail to state a claim against her because Title VII and the MHRA do not impose individual liability. All defendants argue that Counts I and II are time-barred due to plaintiff's failure to file a Complaint within 90 days after receiving the right to sue letter on her first EEOC charge. Furthermore, defendants seek the dismissal of Count III because Missouri Workers' Compensation law provides the exclusive remedy for a claim of intentional infliction of emotional distress. Finally, defendants seek a More Definite Statement in regard to Count IV.
Individual Liability of Defendant Freeman
Defendant Freeman argues that the Court should dismiss her from Counts I, II and IV because individual employees are not "employers" under Title VII or the MHRA. The Eighth Circuit has ruled that "the definition of the term employer in the MHRA does not subject employees, including supervisors or managers, to individual liability." Lenhardt v. Basic Institute of Technology, 55 F.3d 377, 381 (8th Cir. 1995). While Lenhardt did not decide the question of individual employee liability under Title VII, the court cited its earlier refusal to assess liability against co-workers in their individual capacities. Lenhardt, 55 F.3d at 380 (citing Smith v. St. Bernard's Regional Medical Center, 19 F.3d 1254, 1255 (8th Cir. 1994)). In addition, the Court noted the consensus of other circuits that Title VII does not impose personal liability on co-employees, even though they act as agents for the employer. Id. at 380 (citing Birkbeck v. Marvel Lighting Co., 30 F.3d 507, 510, -11 (4th Cir. 1994); Lankford v. City of Hobart, 27 F.2d 583, 587 (10th Cir. 1994); Grant v. Lone Star Co., 21 F.3d 649, 653 (5th Cir. 1994); and Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587 (9th Cir. 1993)). Accordingly, the Court will dismiss defendant Freeman from Counts I, II and IV.
Timeliness of Plaintiff's Complaint
Defendants urge that summary judgment is appropriate on Counts I and II of plaintiff's Complaint because plaintiff did not file the Complaint within 90 days of receiving the right to sue letter pertaining to those claims. Plaintiff argues that the Court should calculate the 90 days from the receipt of her second right to sue letter.
A potential plaintiff may not evade the 90 day time limitation by filing successive EEOC charges. See Soso Liang Lo v. Pan American World Airways, 787 F.2d 827, 828 (2nd Cir. 1986) ("whether the present action is time barred must be determined with reference to only the first Notice of Right to Sue."); Ivy v. Meridian Coca-Cola, 108 F.R.D. 118 (S.D. Miss. 1985);Dowdell v. Sunshine Biscuits, 90 F.R.D. 107 (D.M.D. Ga. 1981). Plaintiff's first EEOC charge encompasses everything in her second charge with the exception of her claim of retaliatory discharge. Accordingly, plaintiff's claims of sexual harassment are time barred and the court will grant summary judgment for defendants on Counts I and II.
Intentional Infliction of Emotional Distress
Count III of plaintiff's claim raises a cause of action for intentional infliction of emotional distress. Because this alleged tort occurred during plaintiff's employment, Missouri Workers' Compensation law provides the exclusive remedy against defendants PHC and PHC-KC. Nichols v. American National Insurance Co., 945 F.Supp 1242 (E.D. Mo. 1996). The federal district court cases cited by plaintiff in support of her contention that she may recover emotional distress damages are distinguishable, because in those cases the plaintiffs were seeking emotional distress damages under the MHRA, not as a separate intentional tort. Sullivan v. Curators of the University of Missouri, 808 F.Supp. 1420 (E.D. Mo. 1992);Gruben v. Famous Barr Co., 823 F.Supp. 664 (E.D. Mo. 1993);See Nichols, 945 F.Supp. at 1248, n. 4 (distinguishingSullivan). Accordingly, Count III will be dismissed as to defendants PHC and PHC-KC.
Missouri Workers' Compensation law does not interfere, however, with plaintiff's state law claim against defendant Freeman. Hill v. John Chezik Imports, 797 S.W.2d 528 (Mo.App. 1990) (Workers' Compensation Act did not bar suit against coemployee for intentional infliction of emotional distress). Therefore, plaintiff may proceed against defendant Freeman on Count III.
Motion for More Definite Statement
Defendants seek a More Definite Statement in regard to Count IV of plaintiff's Complaint. Count IV of plaintiff's Complaint is entitled "Retaliatory Discharge." Plaintiff alleges that she was "retaliated against and ultimately fired on the basis of exercising her rights to lodge a complaint with the human resources offices of defendants and for filing a complaint with the EEOC/Missouri Commission." When read in the context of the entire Complaint, Count IV seeks damages under Title VII and the MHRA because defendants fired her in retaliation for exercising her rights under those statutes. The allegations are sufficiently clear for defendants to admit or deny plaintiff's claims and prepare a defense. Therefore, defendants' Motion for More Definite Statement will be denied.
For the foregoing reasons,
IT IS HEREBY ORDERED that defendants' Motion for More Definite Statement (#11) is DENIED. IT IS FURTHER ORDERED that defendants' Motion to Dismiss/for Partial Summary Judgment (#12) is GRANTED IN PART in accordance with the above memorandum. IT IS FURTHER ORDERED that defendant Freeman's Motion to Dismiss as to Counts I, II and IV (#10) is GRANTED. IT IS FURTHER ORDERED that summary judgment be entered in favor of all defendants on Counts I and II.
IT IS FURTHER ORDERED that Count III is DISMISSED against Principal Health Care and Principal Health Care-Kansas City.
IT IS FURTHER ORDERED that Count IV is DISMISSED against defendant Freeman.