686 F.3d 847 (8th Cir. 2012), 11-2570, Richter v. Advance Auto Parts, Inc.

Docket Nº:11-2570.
Citation:686 F.3d 847
Opinion Judge:PER CURIAM.
Party Name:Mischelle RICHTER, Plaintiff-Appellant, v. ADVANCE AUTO PARTS, INC., Defendant-Appellee.
Attorney:J. Justin Johnston, Wyrsch Hobbs & Mirakian, P.C., Kansas City, MO, for appellant. Michael L. Blumenthal, Julie O'Dell, Seyferth Blumenthal & Harris LLC, Kansas City, MO, for appellee.
Judge Panel:Before BYE, SMITH, and COLLOTON, Circuit Judges. BYE, Circuit Judge, concurring in part and dissenting in part.
Case Date:August 01, 2012
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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686 F.3d 847 (8th Cir. 2012)

Mischelle RICHTER, Plaintiff-Appellant,


ADVANCE AUTO PARTS, INC., Defendant-Appellee.

No. 11-2570.

United States Court of Appeals, Eighth Circuit.

August 1, 2012

Submitted: Jan. 11, 2012.

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[Copyrighted Material Omitted]

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J. Justin Johnston, Wyrsch Hobbs & Mirakian, P.C., Kansas City, MO, for appellant.

Michael L. Blumenthal, Julie O'Dell, Seyferth Blumenthal & Harris LLC, Kansas City, MO, for appellee.

Before BYE, SMITH, and COLLOTON, Circuit Judges.


Mischelle Richter appeals the district court's order dismissing her retaliation claims under Title VII and the Missouri Human Rights Act for failure to exhaust administrative remedies. She also appeals the dismissal of her wrongful discharge claim under Missouri law for failure to state a claim upon which relief may be granted. On appeal, Richter argues her retaliation claims are excepted from the administrative exhaustion requirement and asserts her complaint alleged sufficient facts to state a claim for wrongful discharge under Missouri law. We affirm the district court's dismissal of the retaliation claims, but reverse and remand for further proceedings on the state-law wrongful discharge claim.


Richter was employed as a store manager by Advance Auto Parts, Inc., from 1999 until August 25, 2009. T.C. Hulett, who is an African-American male, served as Richter's direct supervisor. Beginning in early 2009 and continuing into August 2009, Richter reported to Hulett on several occasions that fellow employees had engaged in misconduct. The alleged transgressions included abuse of the employee discount program, failure to follow the company's sick leave policy, and theft. On August 14, 2009, a few days after Richter reported that an employee had committed theft, Hulett informed Richter she was being removed from the store manager position for failure to make timely bank deposits on four occasions. Hulett told Richter she could continue her employment with the company, but had one week to apply for a different position. The new position involved different responsibilities and offered lower pay.

On August 18, 2009, Richter filed a charge with the Equal Employment Opportunity Commission (" EEOC" ), alleging that she suffered an adverse employment action because of her race (white) and her sex (female). A complaint filed with the EEOC is also " deemed filed" with the Missouri Commission on Human Rights (" MCHR" ). Mo.Rev.Stat. § 213.075.2. On the forms, Richter checked the boxes for " race" and " sex," but did not check the " retaliation" box. The narrative portion of Richter's charge asserted that Advance Auto Parts was motivated by race and sex when it removed her from the store manager position on August 14, 2009. The EEOC eventually dismissed the charge and notified Richter that she had ninety days to file a private lawsuit against the employer in federal court.

Richter then filed suit in the district court against Advance Auto Parts. Her complaint, however, did not allege discrimination based on race or sex, in violation of 42 U.S.C. § 2000e-2(a). Instead, Richter alleged that Advance Auto discriminated against her in violation of 42 U.S.C. § 2000e-3, the anti-retaliation provision of Title VII, which forbids discrimination

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against an employee for making a charge in an enforcement proceeding. She also alleged that Advance Auto's conduct violated the anti-retaliation provision of the Missouri Human Rights Act (" MHRA" ). See Mo.Rev.Stat. § 213.070.2. Richter asserted, inter alia, that she informed a regional vice president of Advance Auto on August 23, 2009, about the charge that she had filed on August 18, and that Advance Auto terminated her employment on August 25, 2009, " in direct retaliation for her filing a good faith complaint with the EEOC and [MCHR] for racial discrimination." The complaint also alleged that Advance Auto committed a wrongful discharge under Missouri law, because the termination was motivated by Richter's reports of employee misconduct.

The district court dismissed the complaint. The court concluded that Richter failed to exhaust her administrative remedies as required by Title VII and the MHRA, and dismissed the retaliation claims on that basis. The court further ruled that Richter failed to state a claim for wrongful discharge, reasoning that " the statutes and public policy invoked by Richter ... are insufficient to displace the unquestioned preference for at-will employment in the State of Missouri." Richter appealed.


We review de novo the district court's grant of a motion to dismiss, accepting as true all factual allegations in the complaint and drawing all reasonable inferences in favor of the nonmoving party. See Palmer v. Ill. Farmers Ins. Co., 666 F.3d 1081, 1083 (8th Cir.2012); see also Fed.R.Civ.P. 12(b)(6). " To survive a motion to dismiss, 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation omitted). " 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.


On appeal, Richter first argues the district court erred in dismissing her Title VII and MHRA retaliation claims for failure to exhaust administrative remedies. Richter contends that she may proceed with her retaliation claims in federal court, despite filing no charge about these claims with the EEOC or the MCHR, because " claims relating to direct retaliation for filing an original EEOC complaint are excepted from exhaustion requirements." Appellant's Br. 15 (capitalization omitted).

We consider the Title VII claim first. Title VII requires that before a plaintiff can bring suit in court to allege unlawful discrimination, she must file a timely charge with the EEOC or a state or local agency with authority to seek relief. 42 U.S.C. § 2000e-5(e)(1); Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir.1994). Congress set up an elaborate administrative procedure, implemented through the EEOC, that is designed " to assist in the investigation of claims of ... discrimination in the workplace and to work towards the resolution of these claims through conciliation rather than litigation." Patterson v. McLean Credit Union, 491 U.S. 164, 180-81, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), superseded by statute on other grounds, Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071. The text of the statute on exhaustion provides:

A charge under this section shall be filed within one hundred and eighty days after

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the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter.

42 U.S.C. § 2000e-5(e)(1) (emphases added). If the agency dismisses the charge and notifies the complainant of her right to sue, then the complainant has ninety days to bring a civil action in federal court. Id. § 2000e-5(f)(1).

The object of the exhaustion requirement is " the alleged unlawful employment practice." The Supreme Court in Morgan explained that the term " practice" in this phrase does not connote " an ongoing violation that can endure or recur over a period of time." 536 U.S. at 110-11, 122 S.Ct. 2061. Rather, other subsections of Title VII define the sorts of actions that qualify as " unlawful employment practices," and include among such practices " numerous discrete acts." Id. at 111, 122 S.Ct. 2061. The Court reasoned that the term " practice" does not convert " related discrete acts into a single unlawful practice for the purposes of timely filing." Id. " Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable ‘ unlawful employment practice.’ " Id. at 114, 122 S.Ct. 2061. The Tenth Circuit explained that Morgan thus " abrogates the continuing violation doctrine as previously applied to claims of discriminatory or retaliatory actions by employers, and replaces it with the teaching that each discrete incident of such treatment constitutes its own ‘ unlawful employment practice’ for which administrative remedies must be exhausted." Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir.2003).

We reject Richter's contention that retaliation claims arising from a charge filed with the EEOC are excepted from the statutory exhaustion requirement. Title VII requires that a complainant must file a charge with the EEOC within 180 days " after the alleged unlawful employment practice occurred," and give notice to the employer of the circumstances of " the alleged unlawful employment practice." 42 U.S.C. § 2000e-5(e)(1) (emphases added). The use of the definite article shows that the complainant must file a charge with respect to each alleged unlawful employment practice. In her EEOC charge, Richter alleged discrimination based on race and sex that occurred on August 14, 2009. In the district court, she alleged discrimination for making a charge ( i.e., retaliation) that occurred on August 25, 2009. These are two discrete acts of alleged discrimination— one in violation of 42 U.S.C. § 2000e-2(a), one in violation of § 2000e-3(a). Each discrete act is a different unlawful employment practice for which a separate...

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