Berkowski v. St. Louis County Bd. of Election Com'rs

Citation854 S.W.2d 819
Decision Date08 June 1993
Docket NumberNo. 62528,62528
Parties2 A.D. Cases 985, 4 NDLR P 36 Rhoda BERKOWSKI, Plaintiff/Appellant, v. ST. LOUIS COUNTY BOARD OF ELECTION COMMISSIONERS, Minerva Thompson, Doris Sharp and Paul DeGregorio, Defendants/Respondents.
CourtCourt of Appeal of Missouri (US)

Morris B. Kessler, Kessler & Kessler, Robert E. Keaney, Robyn Susan Fox, Moser, Marsalek & P.C., St. Louis, for plaintiff/appellant.

Steven Walter Garrett, Curtis, Oetting, Heinz, Garrett & Soule, Clayton, for defendants/respondents.

CRANE, Judge.

Plaintiff appeals the dismissal of her second amended petition seeking damages and other relief against her former employer for sex and handicap discrimination under state and federal law. The trial court dismissed the second amended petition for failure to state a claim and other grounds. We affirm.

The facts, as alleged in the second amended petition, are as follows. Plaintiff, Rhoda Berkowski, was an employee of the St. Louis County Board of Election Commissioners (Election Board). She worked in the Field Operations Department and was supervised by defendant Minerva Thompson. Defendant Paul DeGregorio was the director of the Election Board and defendant Doris Sharp was the assistant director.

On March 2, 1987, plaintiff was injured as a result of lifting heavy boxes. She obtained medical treatment and was advised not to engage in heavy lifting. She gave notice of the injury and the medical advice to the Election Board, and to the individual defendants. They did not take any action.

In November, 1987 plaintiff became ill and had gallbladder surgery. She did not work from November 16, 1987 through February 1, 1988. On February 3, 1988, after returning to her position with the Election Board, she re-injured her back "because of continued heavy lifting." Upon advice of a medical doctor, plaintiff did not work for two days. Upon her return to work she requested transfer to a job with lighter duties "such as that given to a man who replaced her during her absence because of her gallbladder surgery." No transfer was offered.

On February 26, 1988 she had a conference with the individual defendants. She requested a job with lighter duties, but was denied a transfer. She alleged that "[t]o her knowledge a male employee of the 'Election Board' who had a heart problem was assigned and permitted to perform a job with lighter duties because of his disability and positions were available that did not require heavy lifting." The petition does not identify what positions were available, the duties of these positions, plaintiff's qualifications or that she was, in fact, qualified for any of these positions. On February 26, 1988, plaintiff was discharged from her position with the Election Board for the stated reason that she was not able to perform the duties of her employment.

On March 8, 1988 plaintiff filed an employment discrimination charge against the Election Board with both the Missouri Human Rights Commission and the Equal Employment Opportunity Commission. On November 30, 1989, at her request pursuant to § 213.111 RSMo 1986, 1 she was provided a right-to-sue letter from the Missouri Human Rights Commission. She subsequently filed a suit for employment discrimination in the circuit court of St. Louis County.

Plaintiff's original petition named only the Election Board as defendant and was dismissed by the trial court upon the Election Board's motion to dismiss. On May 16, 1990 plaintiff filed a first amended petition, adding the individual defendants. The defendants filed motions to dismiss, for summary judgment and to strike. While these motions were pending, plaintiff filed her second amended petition.

Plaintiff's second amended petition named the Election Board and the three individuals as defendants. In Count I of the second amended petition plaintiff alleged her discharge was the result of sex discrimination in violation of 42 U.S.C. Section 2000e-2 and sex and handicap discrimination in violation of Section 213.055 RSMo 1986. 2 She sought damages in the amount of her back pay and reinstatement with duties commensurate with her handicap. In Count II she further alleged that she was discharged because of her physical handicap and sought the same relief sought in Count I plus costs and attorney's fees. In Count III she alleged sex discrimination in violation of 42 U.S.C. § 1983 and sought back pay plus $100,000 punitive damages against each of the individual defendants.

Defendants filed a motion to dismiss asserting that the individual defendants should be dismissed because plaintiff had not complied with the time limitations set forth in Chapter 213 RSMo 1986 and 42 U.S.C. § 2000e-5 with respect to the individual defendants; had not exhausted her administrative remedies with the Missouri Human Rights Commission or the Equal Opportunity Employment Commission with respect to the individual defendants; failed to state the capacity in which the individuals were sued as required by 42 U.S.C. § 1983; failed to state a § 1983 claim against the individuals who, as state officials acting in their official capacity, are immune under that section; and had failed to state a claim for which relief could be granted. The motion asserted that the claim against Election Board should be dismissed on the ground that the second amended petition failed to state a claim upon which relief could be granted. The trial court sustained the motion to dismiss in all respects. Plaintiff appeals from this order.

Where a trial court fails to state a basis for its dismissal, we presume the dismissal is based on the grounds stated in the motion to dismiss. Davis v. Carmichael, 755 S.W.2d 679, 680 (Mo.App.1988). We must affirm if the dismissal can be sustained on any ground supported by the motion to dismiss. Property Exchange & Sales, Inc. v. King, 822 S.W.2d 572, 573 (Mo.App.1992).

For her first point plaintiff asserts that the trial court erred in sustaining the Election Board's motion to dismiss "because the second amended petition states a claim against defendant Election Board for which relief may be granted pursuant to Chapter 213 R.S.MO.Cum.Supp.1991, 42 U.S.C. Section 2000e-5 and 42 U.S.C. Section 1983." In subsection four of her second point plaintiff asserts that the trial court erred in sustaining the individual defendants' motion to dismiss for the same reason. We will address these points together.

The bare assertion in a point that a petition "states a claim" is too general to raise an issue on appeal. Rule 84.04(d); Gould v. Missouri State Board of Registration for the Healing Arts, 841 S.W.2d 288, 290 (Mo.App.1992). It does not set forth with sufficient specificity "wherein and why" the trial court erred because it does not state why each dismissed count stated a cause of action. Id. We will, however, gratuitously address the argument made under these points in order to render a decision on the merits.

A petition must contain a short and plain statement of facts showing that the pleader is entitled to relief. Rule 55.05. The pleadings must identify the facts upon which the plaintiff's claim rests. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 379 (Mo. banc 1993). In assessing the sufficiency of a petition, all facts properly pleaded are assumed true, the averments are given a liberal construction, and the petition is accorded all reasonable inferences fairly deductible from the facts stated. Commercial Bank of St. Louis Co. v. James, 658 S.W.2d 17, 21-22 (Mo. banc 1983). However, mere conclusions of the pleader not supported by factual allegations are disregarded. Id.

A motion to dismiss on the ground that the petition fails to state a cause of action is well taken where the facts essential to recovery are not pleaded. Erslon v. Vee-Jay Cement Contr., 728 S.W.2d 711, 712 (Mo.App.1987). A petition must contain allegations of fact in support of each essential element of the cause sought to be pleaded. Cady v. Hartford Accident and Indemnity Co., 439 S.W.2d 483, 485 (Mo.1969). In ruling on the sufficiency of the facts pleaded to state a claim, courts consider whether material and essential allegations have not been made. Langenberg v. City of St. Louis, 355 Mo. 634, 197 S.W.2d 621, 625 (1946). Where a petition contains only conclusions and does not contain the ultimate facts or any allegations from which to infer those facts a motion to dismiss is properly granted. Sofka v. Thal, 662 S.W.2d 502, 509 (Mo. banc 1983).

Plaintiff's petition sought relief for both sex and handicap discrimination pursuant to § 213.055 RSMo 1986, and sex discrimination pursuant to 42 U.S.C. § 2000e-2 and 42 U.S.C. § 1983. We will consider each cause of action separately to determine if a claim is stated.

§ 1983 Claim

Plaintiff's § 1983 claim for sex discrimination is contained in Count III. At oral argument plaintiff's attorney conceded the trial court properly dismissed plaintiff's claim under 42 U.S.C. § 1983 pursuant to Foster v. Wyrick, 823 F.2d 218 (8th Cir.1987). Foster holds that because Title VII provides a comprehensive remedial system for the enforcement of employment rights created thereunder, those employment rights cannot be enforced through § 1983. Id. at 222. The trial court did not err in dismissing Count III.

Sex Discrimination Claim

Plaintiff's sex discrimination claim is based on 42 U.S.C. § 2000e-2(a)(1) and § 213.055. 42 U.S.C. § 2000e-2(a)(1) provides:

(a) It shall be an unlawful employment practice for an employer--

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; ...

State courts have concurrent jurisdiction with federal courts over Title VII actions. Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820,...

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