Opinion
Case No. 05-4261-CV-C-NKL.
November 21, 2005
ORDER
Pending before the Court is John "Nick" Karson's ("Karson") Motion to Dismiss [Doc. # 5]. For the reasons set forth below, the Court denies Karson's Motion.
I. Background
Plaintiff Kathy Wagner ("Wagner") was an employee at Cookbook Publisher, Inc.'s ("Cookbook") facility in Sedalia, Missouri, from March 1997 until September 2004. Karson was her direct supervisor at Cookbook. In her Complaint, Wagner alleges that Karson created a hostile work environment when he improperly showed Wagner sexually explicit photographs and discussed sexually explicit topics with her.
Karson now moves to dismiss Counts II, IV, and VI of Wagner's Complaint. Karson contends that he is not an "employer" under the Missouri Human Rights Act ("MHRA").
Counts I, III, and V are all filed under Title VII of the Civil Rights Act of 1964 ("Title VII") and they do not assert claims against Karson individually.
II. Discussion
The issue before the Court is whether the MHRA's definition of "employer" contemplates that individual supervisors may be individually liable for wrongful conduct under the statute. The definition of "employer" in the MHRA includes "any person employing six or more persons within the state, and any person directly acting in the interest of an employer. . . ." Mo. Rev. Stat. § 213.010(7). In a subsequent subsection, the statutory definition of "person" includes "one or more individuals. . . ." Id. at (14).
Despite the language of the MHRA, the Eighth Circuit predicted that the Missouri Supreme Court, which has not resolved the issue presented, would rely on federal case law interpreting Title VII and other federal statutes to construe that the MHRA definition of "employer" precludes individual liability. Lenhardt v. Basic Institute of Technology, Inc., 55 F.3d 377 (8th Cir. 1995). The Eighth Circuit wrote:
Looking to analogous federal civil rights statutes, as we believe the Missouri Supreme Court would, we hold that the Missouri Supreme Court would interpret the definition of an employer in the MHRA . . . in a manner consistent with decisions of our sister circuits construing Title VII's definition of an employer. Every circuit that has considered the issue ultimately has concluded that an employee, even one possessing supervisory authority, is not an employer upon whom liability can be imposed under Title VII. Thus, we believe the Missouri Supreme Court would hold that the definition of the term employer in the MHRA does not subject employees, including supervisors or managers, to individual liability.Id. at 381. In reaching its conclusion, the Eighth Circuit compared the MHRA definition of employer with the same definition found in Title VII and the Age Discrimination in Employment Act ("ADEA") and determined that the MHRA definition does not encompass individual supervisors because the definitions contained in the federal statutes also do not encompass individual supervisors.
Title VII defines "employer" as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such person. . . ." 42 U.S.C. § 2000e(b).
Despite its holding in Lenhardt, the Eighth Circuit subsequently held that the Family Medical Leave Act ("FMLA") imposed liability on individual supervisors because, like the MHRA, its definition of "employer" included "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer." See Darby v. Bratch, 287 F.3d 673, 681 (8th Cir. 2002); 29 U.S.C. § 2611(4)(A)(ii)(I) (FMLA definition of "employer"). In Darby, the court analogized the definition of "employer" in the FMLA to the same definition in the Fair Labor Standards Act ("FLSA"), which defined "employer" as "any person acting directly or indirectly in the interest of an employer in relation to an employee. . . ." 29 U.S.C. § 203(d) (FLSA definition of "employer"). In holding that the FMLA definition of "employer" imposed individual liability, the court stated, "It seems to us that the plain language of the statute decides this question. . . . [The statutory definition of "employer"] plainly includes persons other than the employer itself. We see no reason to distinguish employers in the public sector from those in the private sector. . . . If an individual meets the definition of employer as defined by the FMLA, then that person should be subject to liability in his individual capacity." Darby, 287 F.3d at 681.
The Darby case involved whether a public sector supervisor could be individually liable under the FMLA. However, according to its own language, the court did not believe this distinction was significant.
Not surprisingly, some judges in the Eighth Circuit have concluded that Darby and its analysis cast serious doubt on the viability of the Eighth Circuit's holding in Lenhardt with respect to individual liability under the MHRA. In Shortey v. U.S. Bank, N.A., Magistrate Judge Sarah Hays noted that Lenhardt was merely a prediction of how Missouri courts would resolve the issue and it was not a definitive holding. See Case No. 03-0530-CV-W-SWH [Doc. # 13] (W.D. Mo. Dec. 5, 2003). Additionally, Judge Hays noted that the holding in Darby called into doubt the rationale set out in Lenhardt because the definition of "employer" in the MHRA was closer to the definition set out in the FMLA (the statute analyzed in Darby) than the definition set out in Title VII (the statute analyzed in Lenhardt). Assuming that the Missouri Supreme Court would look to analogous federal law to reach its conclusion on the issue, Judge Hays noted that, given the opportunity, the state court might just as well follow the reasoning in Darby, particularly where the statutory definitions analyzed in that case were closer to the definitions contained in the MHRA and the fact that Darby was decided seven years after Lenhardt. Thus, Judge Hays determined that Lenhardt was not controlling on the issue and, given the plain language of the MHRA, she declined to find that the state statute precluded individual liability.
When confronted with the same issue, other judges have concurred in both the rationale and the holding of Shortey and declined to apply Lenhardt. See Wesley v. OCE Business Service, Inc., No. 05-0055-CV-W-SOW, 2005 WL 998624 (W.D. Mo. Apr. 19, 2005); Garrett v. Ball Metal Beverage Container Corp., No. 05-0068-CV-W-ODS (W.D. Mo. Feb. 24, 2005); Hill v. Ford Motor Co., 324 F. Supp. 2d 1028 (E.D. Mo. 2004). Like Judge Hays, these opinions concluded that there is a probability that the Missouri Supreme Court would impose individual liability under the MHRA in light of the definition of "employer" in section 213.010(7).
In Hill, Senior District Judge Stephen N. Limbaugh conceded that in the past he had "followed blindly the holding of Lenhardt and dismissed MHRA claims against individual defendants." 324 F. Supp. 2d at 1032 (citations omitted). Despite his previous rulings, Judge Limbaugh determined that it is unlikely that the MHRA precludes individual liability. Id.
This Court concurs. First, the plain language in the definition of "employer" under the MHRA clearly contemplates that individual employees may be liable for wrongful conduct under the MHRA. Mo. Rev. Stat. 213.010(7) ("and any person directly acting in the interest of an employer"). Second, the Lenhardt decision was merely a prediction of how the Missouri Supreme Court would rule and that prediction has been called into serious doubt by the successive analysis set forth in Darby, which involved an imposition of individual liability under a definition of "employer" that more closely tracked the statutory definition found in the MHRA. Given both the clear language of the MHRA and the contradictory findings by the Eighth Circuit, this Court concurs and predicts that there is a substantial likelihood that the Missouri Supreme Court would impose individual liability under the MHRA.
Karson argues that Lenhardt is controlling law because the district court cases cited above all arose in the context of whether to remand the dispute back to the Missouri state courts. This argument must fail for several reasons. Lenhardt also was not procedurally identical to the instant case because it involved a review of a district court's grant of summary judgment and not a motion to dismiss. Thus, even assuming such a distinction is relevant, it is not a procedural twin to the pending Motion. Furthermore, as noted above, this Court considers Lenhardt to be a prediction of how the Missouri Supreme Court would decide the issue and not the final word on the scope of the MHRA. Indeed, only the Missouri Supreme Court can definitively decide whether the MHRA imposes individual liability. Moreover, Lenhardt has been called into doubt by Darby, which is equally binding on this Court because it was also decided by the Eighth Circuit. The district court cases cited above did not generate the doubt that looms over Lenhardt, but rather the Eighth Circuit itself created the apparent conflict with its subsequent analysis in Darby. The district court cases merely noted the apparently conflicting decisions and reached what they believe to be the correct conclusion in light of Darby. Finally, the distinction between a motion to remand and a motion to dismiss is inapposite. This Court and the judges noted above were all faced with the same basic issue; i.e., whether the MHRA allows for individual liability. The procedural ramifications of that analysis do not change the underlying substantive issue that each court faced nor do they undermine the analysis performed by other judges.
See Davis v. State of Nebraska, 958 F.2d 831, 833 (8th Cir. 1992) ("[W]e recognize that the state supreme court has final authority to interpret state statutes.") (citing Missouri v. Hunter, 459 U.S. 359, 368 (1983); Kifer v. Liberty Mutual Ins. Co., 777 F.2d 1325 (8th Cir. 1985)).
Accordingly, the Court will deny Karson's pending Motion to Dismiss.
III. Conclusion
Accordingly, it is hereby
ORDERED that Karson's Motion to Dismiss [Doc. # 5] is DENIED.