Joe Pulczinski v. Trinity Structural Towers

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-2570
___________
Mischelle Richter, *
*
Plaintiff – Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Advance Auto Parts, Inc., *
* [PUBLISHED]
Defendant – Appellee. *
___________
Submitted: January 11, 2012
Filed: August 1, 2012
___________
Before BYE, SMITH, and COLLOTON, Circuit Judges.
___________
PER CURIAM.
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.

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I.
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
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VII, which forbids discrimination 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.
II.
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
(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.
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A.
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 (2002);
Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (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 (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 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).
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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. 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. 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. 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 charge is required. Morgan, 536 U.S. at 114. Richter
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failed to exhaust the retaliation claim, and the district court correctly dismissed the
claim on that basis.
Richter resists this conclusion by invoking decisions that say a plaintiff need
not file an administrative charge with respect to claims that are “like or reasonably
related to” an alleged unlawful unemployment practice that the plaintiff did properly
exhaust. See, e.g., Anderson v. Block, 807 F.2d 145, 148 (8th Cir. 1986). She
contends that because her retaliation claim is “like or reasonably related” to the claim
of discrimination based on race and sex that she presented to the EEOC, nothing more
was required to exhaust her retaliation claim.
This notion found favor with our court for a time. In Wentz v. Maryland
Casualty Co., 869 F.2d 1153 (8th Cir. 1989), the court considered a complaint that
alleged unlawful retaliation under the Age Discrimination and Employment Act. The
plaintiff filed a charge with the EEOC alleging age discrimination by his employer.
The next day, the employer terminated him. The plaintiff did not file another charge
with the EEOC alleging unlawful retaliation, but filed an action in federal court that
pleaded a retaliation claim. In considering whether the plaintiff properly exhausted
his retaliation claim, this court stated that allegations in a judicial complaint are
“cognizable” if the claims filed in court are “like or reasonably related to” charges that
were timely filed with the EEOC. Id. at 1154. Wentz held that although the plaintiff
did not include a retaliation claim in the charge that he filed with the EEOC, his claim
for unlawful retaliation was “properly before this court,” because it “grew out of the
discrimination charge he filed with the EEOC.” Id.
After Morgan, however, this court disavowed Wentz. In Wedow v. City of
Kansas City, Missouri, 442 F.3d 661 (8th Cir. 2006), this court characterized the “like
or reasonably related to” analysis of Wentz as a “judicial exception to the exhaustion
doctrine,” and explained that the court has “considerably narrowed [its] view of what
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is ‘like or reasonably related’ to the originally filed EEOC allegations.” Id. at 672-73.
The court made clear that Wentz no longer governed exhaustion analysis:
While at one time, this judicial exception to the exhaustion doctrine
permitted a finding that a subsequent retaliation claim growing out of an
EEOC age discrimination complaint was sufficiently related to be within
the scope of the lawsuit, see Wentz v. Md. Cas. Co., 869 F.2d 1153, 1154
(8th Cir. 1989), we have subsequently recognized that “retaliation claims
are not reasonably related to underlying discrimination claims.”
Wedow, 442 F.3d at 672-73 (quoting Duncan v. Delta Consol. Indus., Inc., 371 F.3d
1020, 1025 (8th Cir. 2004)). Wedow’s disavowal of Wentz is fully consistent with
Morgan and the text of § 2000e-(5)(e)(1). 1
The overriding message of Morgan was to follow statutory text. “[S]trict
adherence to the procedural requirements specified by the legislature is the best
guarantee of evenhanded administration of the law.” 536 U.S. at 108 (internal
quotation omitted). Here, as in Morgan, “our most salient source for guidance is the
statutory text.” Id. at 109. We recognize that Morgan concerned discrete acts of an
employer that occurred prior to the filing of an EEOC charge, rather than discrete acts
1Wedow held that retaliation claims in that case were properly exhausted only
because the plaintiffs, in their November 1997 EEOC charges, did “clearly allege[]
that retaliation had occurred and was continuing to occur throughout the plaintiffs’
ongoing employment.” 442 F.3d at 674. Because “[t]he claims of retaliation from
1998 through 2000 alleged in the complaint include the same type of ongoing
retaliation alleged in the timely filed administrative charges,” the court thought it was
unnecessary for the complainants to file a new administrative charge with respect to
each continuing incident of retaliation. Id. The narrow holding of Wedow lends no
support to Richter’s claim. Unlike the plaintiffs in Wedow, Richter never alleged any
retaliation in her charge filed with the EEOC. And the EEOC’s correspondence to
Richter considered only claims of discrimination based on race and sex, with no
mention of alleged retaliation.
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of an employer that occurred thereafter, but the meaning of the phrase “unlawful
employment practice” does not vary based on the timing of the alleged unlawful acts.
The term “practice” no more subsumes multiple discrete acts when one of those acts
occurs after the filing of an EEOC charge than it does when all acts occur before the
charge is filed. As the Tenth Circuit recognized, the rule of Morgan “is equally
applicable . . . to discrete claims based on incidents occurring after the filing of
Plaintiff’s EEO complaint.” Martinez, 347 F.3d at 1210-11. But see Delisle v.
Brimfield Twp. Police Dep’t, 94 F. App’x 247, 253-54 (6th Cir. 2004) (unpublished)
(divided panel holding that a plaintiff could proceed with three retaliation claims,
although only two were presented to the EEOC).2
The partial dissent relies on “policy considerations” to support a rule that would
except post-charge retaliation claims from the statutory exhaustion requirement.
These considerations include the view that exhaustion of such claims is a “needless
procedural barrier,” and concern that a plaintiff who experiences alleged retaliation
will be reluctant to file a separate charge with the EEOC. Post, at 19. But these
points cannot override the text of the statute and the textual analysis of Morgan. And
there are countervailing policy considerations as well. Exempting retaliation claims
from the administrative framework established by Congress could frustrate the
2Several authorities cited by the partial dissent are inapposite. The Ninth
Circuit in Lyons v. England, 307 F.3d 1092, 1104-05 (9th Cir. 2002), simply
continued to apply pre-Morgan circuit precedent on a “like or reasonably related to”
rule without addressing the impact of Morgan. The unpublished opinion of the Fifth
Circuit in Eberle v. Gonzales, 240 F. App’x 622, 628 (5th Cir. 2007), cites Morgan
only on a different issue, and Gupta v. East Texas State University, 654 F.2d 411, 414
(5th Cir. 1981), predates Morgan by more than twenty years. The Fourth Circuit in
Jones v. Calvert Group, Ltd., 551 F.3d 297 (4th Cir. 2009), did not analyze the
exhaustion question anew, but held only that Morgan had not “overruled” binding
circuit precedent, because it did not directly address “the extent to which an EEOC
charge satisfies exhaustion requirements for claims of related, post-charge events.”
Id. at 303.
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conciliation process, which we have called “central to Title VII’s statutory scheme,”
Williams, 21 F.3d at 222. See Romero-Ostolaza v. Ridge, 370 F. Supp. 2d 139, 149
(D.D.C. 2005). While the EEOC apparently has represented elsewhere that retaliation
for filing a charge of discrimination “likely” would be uncovered in the course of a
reasonable EEOC investigation, Clockedile v. N.H. Dep’t of Corr., 245 F.3d 1, 4 (1st
Cir. 2001), the agency’s correspondence in this case made no mention of alleged
retaliation and framed the charge solely in terms of alleged discrimination based on
race and sex. J.A. 58-60. The EEOC evidently never considered whether Richter has
a meritorious claim of unlawful retaliation, and never initiated any conciliation
process on that matter with the employer. Unconvinced by the dissent’s policy
arguments, we conclude that federal law required exhaustion of Richter’s Title VII
retaliation claim.
Richter also appeals the dismissal of her MHRA retaliation claim. Although
the parties do not address the state-law claim separately, we must consider how the
Supreme Court of Missouri would rule in this situation.
Under the MHRA, a complainant must file an administrative complaint that
“set[s] forth the particulars” of “the unlawful discriminatory practice.” Mo. Rev. Stat.
§ 213.075.1. Discrimination based on race or sex is an unlawful employment practice
under Mo. Rev. Stat. § 213.055.1(1)(a). Retaliation for filing a charge of
discrimination is an unlawful employment practice under a different section, Mo. Rev.
Stat. § 213.070(2). The filing of an administrative complaint “is a prerequisite to
seeking judicial relief.” Igoe v. Dep’t of Labor & Indus. Relations, 152 S.W.3d 284,
287 (Mo. 2005); see Mo. Rev. Stat. § 213.111.
The Missouri Court of Appeals, relying on pre-Morgan precedent of this court,
has held that “administrative remedies are deemed exhausted as to all incidents of
discrimination that are like or reasonably related to the allegations of the
administrative charge.” Alhalabi v. Mo. Dep’t of Natural Res., 300 S.W.3d 518, 525
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(Mo. Ct. App. 2009) (citing Tart v. Hill Behan Lumber Co., 31 F.3d 668, 671 (8th Cir.
1994)). The Supreme Court of Missouri has not addressed whether this standard
comports with the MHRA’s directive that a complainant “set forth the particulars” of
“the unlawful discriminatory practice.” Mo. Rev. Stat. § 213.075.1. And although
Missouri courts may look to federal case law in applying the MHRA, see Daugherty
v. City of Md. Heights, 231 S.W.3d 814, 818 (Mo. 2007), no Missouri appellate court
has considered whether the “like or reasonably related to” standard is consistent with
the MHRA in light of Morgan’s interpretation of a similarly-worded federal statute.
Cf. Hill v. Ford Motor Co., 277 S.W.3d 659, 670 (Mo. 2009) (“Because there are no
relevant Missouri cases as to the effect of failure to name a person in a charge who is
later included in the civil lawsuit, the Court looks to federal law for guidance.”). The
textual analysis of Morgan, if followed by the Supreme Court of Missouri, would
dictate that Richter’s charge alleging discrimination based on race and sex under
§ 213.055.1 did not “set forth the particulars” of a different “unlawful discriminatory
practice,” i.e., alleged retaliation under § 213.070(2), and thus did not properly
exhaust her claim under the MHRA.
Even assuming, however, that the Supreme Court of Missouri would embrace
a “like or reasonably related to” standard under the MHRA, we conclude that Richter
failed to exhaust her administrative remedies with respect to her state-law retaliation
claim. Richter’s charge alleged only that she was removed from her store manager
position due to her race and sex. She identified a single date on which the alleged
discrimination took place, and she did not identify retaliation as a basis for her charge
or set forth any facts regarding alleged retaliation. Considering the text of
§ 213.075.1, and drawing guidance from available Missouri appellate decisions, we
conclude that Richter’s claim of retaliation is not like or reasonably related to the
allegations raised in her administrative charge for purposes of Missouri law. See Reed
v. McDonald’s Corp., 363 S.W.3d 134, 144 (Mo. Ct. App. 2012) (holding that
constructive discharge claim was not exhausted where charges filed with MCHR and
EEOC alleged sexual harassment by a supervisor, but did not mention that plaintiff
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no longer worked for employer, “failed to mention any facts or particulars relating to
intolerable working conditions causing her to quit working,” and thus “failed to
include any facts reasonably related to a claim of constructive discharge”); cf.
Alhalabi, 300 S.W.3d at 525-26 (holding that an administrative charge adequately
alleged a claim of hostile work environment where the charge was not limited to a
discrete act of discrimination, but rather described “pervasive racially discriminatory
conduct” over a period of two years).
For these reasons, we conclude that Richter did not properly exhaust her Title
VII and MHRA retaliation claims. The district court correctly dismissed those claims.
B.
Richter next argues that the district court erred in dismissing her wrongful
discharge claim. The district court reasoned that the violations Richter reported to her
employer were based on statutes that are too vague, do not amount to “serious
misconduct,” and do not sufficiently implicate public policy concerns to state a
wrongful discharge claim under Missouri law.
Generally, Missouri adheres to the “at-will” employment doctrine, which allows
an employer to terminate an employee for any reason or no reason at all. Crabtree v.
Bugby, 967 S.W.2d 66, 70 (Mo. 1998). This doctrine, however, has limits, as
“Missouri recognizes the public-policy exception to the at-will employment rule.”
Margiotta v. Christian Hosp. Ne. Nw., 315 S.W.3d 342, 346 (Mo. 2010). Under the
public policy exception, otherwise known as the wrongful discharge doctrine, an
employer cannot discharge an at-will employee “because the employee reported to
[her] superiors or to public authorities serious misconduct that constitutes violations
of the law and of such well established and clearly mandated public policy.” Fleshner
v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 91 (Mo. 2010) (internal quotation
omitted). Therefore, in Missouri, an employee may not be terminated for reporting
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wrongdoings or violations of law to superiors, or what has commonly been referred
to as “whistleblowing.” Id. at 92.
To succeed on a wrongful discharge claim, a plaintiff need not prove “exclusive
causation;” she must prove only that the whistleblowing was a “contributing factor”
in the employer’s decision to discharge her. Bazzi v. Tyco Healthcare Grp., LP, 652
F.3d 943, 947 (8th Cir. 2011) (citing Missouri law). While a wrongful discharge
action must be based on a constitutional provision, statute, regulation, or rule
promulgated by a governmental body, the mere citation of such a provision “is not by
itself sufficient to state a cause of action for retaliatory discharge.” Margiotta, 315
S.W.3d at 347 (internal quotation omitted). Rather, “the plaintiff must demonstrate
that the public policy mandated by the cited provision is violated by the discharge.”
Id. Thus, to present a claim for wrongful discharge, a plaintiff’s petition must specify
the legal provision violated by the employee, and “it must affirmatively appear from
the face of the petition that the legal provision in question involves a clear mandate
of public policy.” Frevert v. Ford Motor Co., 614 F.3d 466, 471 (8th Cir. 2010)
(quoting Misischia v. St. John’s Mercy Med. Ctr., 30 S.W.3d 848, 863 (Mo. Ct. App.
2000)).
Richter asserts that she sufficiently stated a claim for wrongful discharge by
pleading that she reported violations of state and federal law to her superior. In her
complaint, Richter alleged that she reported four distinct acts of wrongdoing to her
supervisor, Hulett. First, she reported that another employee was abusing the
employee discount program, an action constituting felony theft under Mo. Rev. Stat.
§ 570.030, as well as mail and wire fraud and theft of honest services under 18 U.S.C.
§§ 1341, 1343, and 1346. Specifically, Richter alleged that the employee purchased
“thousands of parts through [Advance Auto’s] employee discount program in order
to operate his side business.” Compl. ¶¶ 15, 46. Second, Richter reported that an
employee was abusing the company’s sick pay policy by “using her ‘sick days’
without a doctor’s note,” in violation of 18 U.S.C. §§ 1341, 1343, and 1346. Compl.
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¶¶ 16, 46. Third, Richter reported that an employee improperly provided a refund to
an unknown customer, which she asserted constitutes a felony theft under Mo. Rev.
Stat. § 570.030 and fraud under 18 U.S.C. §§ 1341 and 1343. Compl. ¶¶ 17, 46.
Fourth, Richter reported a $250 missing change order by an employee. Id. at ¶¶ 26,
46.
The district court dismissed Richter’s claim, stating 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.” The court noted that Richter had
referenced specific laws in her complaint, but found these laws too vague and general
to give rise to a wrongful discharge action. Because a “vague or general statute . . .
cannot be successfully pled under the at-will wrongful termination theory,” Margiotta,
315 S.W.3d at 346, the district court concluded that Richter did not state a legally
cognizable claim for wrongful discharge. The court further explained that dismissal
was proper because the reported misconduct was not “serious misconduct” and the
public policy invoked by Richter was neither “fundamental” nor “substantial.”
We agree with part of the district court’s conclusion. Missouri law requires a
wrongful discharge plaintiff to specify the constitutional provision, statute, or
regulation the reported misconduct allegedly violated. Id. Richter’s complaint does
not indicate what legal provision, if any, the $250 missing change order violates.
“Absent such explicit authority, the wrongful discharge action fails as a matter of
law.” Id. Therefore, we conclude the district court did not err in concluding that the
allegation of a missing change order does not support a wrongful discharge action.
We also conclude that Richter’s wrongful discharge claim based on the
allegations of federal law violations fails as a matter of law. First, while Richter’s
complaint alleged violations of the mail and wire fraud statutes, the complaint made
no reference to the use of the mails or wires. See 18 U.S.C. §§ 1341, 1343 (providing
a person commits mail or wire fraud if he or she engages in “any scheme or artifice
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to defraud, or for obtaining money or property by means of false or fraudulent
pretenses, representations, or promises” and uses either the mails or the wires to
execute such scheme). Moreover, the Supreme Court recently found that § 1346,
which codifies the offense of honest-services fraud, is unconstitutionally vague when
applied to fraud schemes other than bribery and kickbacks. See Skilling v. United
States, 130 S. Ct. 2896, 2931 & n.42 (2010). Richter’s complaint does not allege that
the reported misconduct amounts to either a bribe or a kickback. She may not,
therefore, rely on § 1346 to support a claim for theft of honest services. Accordingly,
the district court properly concluded that the allegations of federal law violations do
not support a wrongful discharge claim.
We disagree, however, with the district court’s conclusion that Richter failed
to state a claim for wrongful discharge based on the allegations of state law violations.
Richter’s complaint alleges that the abuse of the employee discount program and the
giving of an improper refund constituted theft under Missouri law. “A person
commits the crime of stealing if he or she appropriates property or services of another
with the purpose to deprive him or her thereof, either without his or her consent or by
means of deceit or coercion.” Mo. Rev. Stat. § 570.030. Because the statute
proscribes the prohibited conduct—stealing—with specificity and clarity, it is neither
too vague nor too general to be “successfully pled under the at-will wrongful
termination theory.” Margiotta, 315 S.W.3d at 346. Thus, we conclude Richter could
properly rely on § 570.030 to support her allegations of theft.
Taking the factual allegations in Richter’s complaint as true, we further
conclude the complaint sufficiently alleged that the reported misconduct constitutes
stealing or theft by deceit under Missouri law. A person commits the crime of stealing
or theft by deceit if he appropriates property or services of another with the purpose
to deprive him thereof. Mo. Rev. Stat. § 570.030. Each wrongdoing alleged by
Richter constitutes such an appropriation. Each wrongdoing involves an employee’s
attempt to appropriate company property with the purpose to deprive the company of
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such property. The complaint specifically states that Richter reported an employee
was abusing Advance Auto’s employee discount program by purchasing automobile
parts at a discounted rate for the employee’s personal business. See Compl. ¶ 15. The
complaint further alleged that this conduct “resulted in the loss of monies to [Advance
Auto], constituting felony theft under [Mo. Rev. Stat.] § 570.030.” Compl. ¶ 46. As
for the improper refund allegation, the complaint says that Richter reported that
another employee “was involved in improperly providing a refund on a motorcycle
battery to an unknown customer, under circumstances where the sale of the battery
could not be traced to any [Advance Auto] transaction.” Id. at ¶ 17. This conduct,
Richter alleged, amounts to “stealing monies from [Advance Auto]” and constitutes
felony theft under § 570.030. Id. at ¶ 46. Based on these specific allegations, we
conclude the complaint sufficiently alleges that the abuse of the employee discount
program and the improper refund violated Missouri’s stealing statute.
Richter also sufficiently alleged that she reported serious misconduct in
violation of well established and clearly mandated public policy. See Margiotta, 315
S.W.3d at 347. As the district court noted, Margiotta did not offer “a road map for
ascertaining how serious the misconduct must be before the at-will employment
doctrine will be overcome.” Similarly, at oral argument, neither counsel was able to
articulate what factors we must consider in determining whether the misconduct is
“serious” within the meaning of Margiotta. We must do our best to predict how the
Supreme Court of Missouri would rule in this situation. Based on the guidance
available from Missouri decisions to date, we are satisfied that the misconduct alleged
by Richter—a felony theft under Missouri law—is “serious” enough, and the public
policy against theft “clearly mandated” and “well established” enough, to state a claim
for wrongful discharge. Missouri courts have recognized that “the theft of property
from another, including one’s employer, is a violation of criminal law.” Faust v.
Ryder Commercial Leasing & Servs., 954 S.W.2d 383, 390 (Mo. Ct. App. 1997),
abrogated on other grounds by Fleshner, 304 S.W.3d at 93. Thus, they have rejected
the claim that “simple acts of theft” are insufficient to support a wrongful discharge
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claim, noting the “almost universal agreement” that the law should encourage “the
uncovering and prosecution of crime.” Brenneke v. Dep’t of Mo., Veterans of Foreign
Wars, 984 S.W.2d 134, 138-39 (Mo. Ct. App. 1998).
In sum, we conclude that Richter alleged sufficient facts regarding the abuse of
the employee discount program and the improper refund to state a wrongful discharge
claim under Missouri law. The district court thus erred in dismissing her action based
on these two particular allegations. See, e.g., Akers v. RSC Equip. Rental, Inc., No.
4:09CV2022, 2010 WL 5479678, at *3, 5 (E.D. Mo. Dec. 31, 2010) (finding, under
similar facts, plaintiff’s complaint sufficiently alleged a claim for wrongful discharge
where the reported misconduct was theft of company goods and services under section
570.030 of Missouri Revised Statutes); see also Custom Hardware Eng’g &
Consulting, Inc. v. Dowell, No. 4:10CV000653, 2011 WL 1743662, at *10 (E.D. Mo.
May 5, 2011) (“The issue before the Court is the sufficiency of the pleadings, not
whether [plaintiff] will ultimately be able to prove all of the necessary elements [of
her wrongful discharge action].”) (internal quotation marks and citation omitted).
* * *
For the foregoing reasons, we affirm the district court’s dismissal of Richter’s
Title VII and MHRA claims, but reverse the dismissal of the state-law wrongful
discharge claim and remand for further proceedings.
BYE, Circuit Judge, concurring in part and dissenting in part.
In her judicial complaint, Richter alleged Advance Auto unlawfully retaliated
against her after she filed a discrimination charge with the EEOC. She further alleged
the retaliation was a direct result of the filing of the EEOC charge. The issue
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presented in this appeal, therefore, is a narrow one: is a claim alleging retaliation
occurring after and as a result of the filing of a discrimination charge with the EEOC
like or reasonably related to the allegations in the charge so as to be deemed
exhausted. Because in my opinion Richter's retaliation claim is reasonably related to
the allegations in the EEOC charge, as it grew out of these allegations, I would
reverse the district court's dismissal of the claim for failure to exhaust administrative
remedies. Therefore, I respectfully dissent from Part II.A of the court's opinion.
Prior to the Supreme Court's decision in National Railroad Passenger Corp. v.
Morgan, 536 U.S. 101 (2002), the circuit courts overwhelmingly recognized a Title
VII plaintiff need not file a new or amended EEOC charge of retaliation if the
retaliation arose after and as a result of engaging in the protected activity of filing an
EEOC charge. See Clockedile v. N.H. Dep't of Corr., 245 F.3d 1, 4 & n.3 (1st Cir.
2001) (collecting cases); see also Anderson v. Block, 807 F.2d 145, 148 (8th Cir.
1986). Then in Morgan, the Court addressed whether the continuing violation
doctrine applies to discrete acts of unlawful employment practices which, although
related to the acts alleged in the timely filed EEOC charge, are otherwise time barred.
536 U.S. at 106. The Court held the doctrine is inapplicable to Title VII claims
involving discrete acts of discrimination or retaliation. Id. at 122. Because each
discrete act of unlawful employment practice constitutes a separate actionable
practice, the Court concluded "discrete discriminatory acts are not actionable if time
barred, even when they are related to acts alleged in timely filed charges." Id. at 113-
14.
Some courts moved away from their approach to related, post-filing retaliation
claims in the wake of Morgan. Interpreting Morgan's holding broadly, these courts
concluded a Title VII plaintiff must file a separate EEOC charge for each discrete act
of retaliation, even when the retaliation occurs after a timely charge has been filed.
See, e.g., Martinez v. Potter, 347 F.3d 1208, 1210-11 (10th Cir. 2003); Romero-
Ostolaza v. Ridge, 370 F. Supp. 2d 139, 149 (D.D.C. 2005) (“[I]t makes sense to
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apply Morgan to bar subsequent discrete acts that a plaintiff fails to exhaust in the
administrative process.”). Other courts, however, construed Morgan more narrowly
and continued to adhere to the position post-filing acts of retaliation, resulting from
filing the charge in the first instance, can be pursued without administrative
exhaustion because they are like or reasonably related to the allegations in the charge.
See, e.g., Jones v. Calvert Grp., Ltd., 551 F.3d 297, 302 (4th Cir. 2009) (concluding
a Title VII plaintiff may bring a retaliation claim for the first time in federal court
because "a claim of retaliation for the filing of an EEOC charge as discrimination is
indeed like or reasonably related to and growing out of such allegations") (internal
quotation marks and citation omitted); Delisle v. Brimfield Twp. Police Dep't, 94 F.
App'x 247, 252-53 (6th Cir. 2004) (unpublished) (stating Morgan did not address
whether courts can hear claims based on discriminatory acts occurring after the timely
filed EEOC charge). Two primary considerations seem to underlay these courts'
continued adherence to the like-or-reasonably-related-to exception for post-filing
retaliation claims post-Morgan.
First, the operative facts in Morgan involved retaliatory acts occurring prior to,
rather than after, the EEOC filing. See Jones, 551 F.3d at 303; see also Lyons, 307
F.3d at 1102-04 (concluding plaintiffs were not required to exhaust administrative
remedies for claims alleging failure to promote as a result of filing an EEOC charge
and explaining Morgan is inapplicable to post-filing discrete acts); Delisle, 94 F.
App'x at 253 (stating Morgan did not address whether courts can hear claims based
on discriminatory acts occurring after the timely filed EEOC charge). Additionally,
the narrow issue before the Court in Morgan was "when the limitations clock for filing
an EEOC charge begins ticking with regard to discrete unlawful employment
practices." Jones, 551 F.3d at 303. Morgan's holding, therefore, "concerns only
Congress's clear preference as expressed in Title VII for prompt processing of all
charges of employment discrimination . . . [and] does not purport to address the extent
to which an EEOC charge satisfies exhaustion requirements for claims of related,
post-charge events." Id. (internal quotation marks and citation omitted).
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Second, public policy considerations favor excepting post-filing retaliation
claims from administrative exhaustion. In concluding a plaintiff should not be
required to file a new EEOC charge for retaliation claims arising after the filing, the
Fifth Circuit, for example, emphasized the "needless procedural barrier" a contrary
rule would require. See, e.g., Eberle v. Gonzales, 240 F. App'x 622, 628 (5th Cir.
2007) (unpublished) ("'It is the nature of retaliation claims that they arise after the
filing of the EEOC charge. Requiring prior resort to the EEOC would mean that two
charges would have to be filed . . . a double filing that would serve no purpose except
to create additional procedural technicalities.'") (quoting Gupta v. E. Tex. State Univ.,
654 F.2d 411, 414 (5th Cir. 1981)). "Eliminating this needless procedural barrier[,]"
the court reasoned, "will deter employers from attempting to discourage employees
from exercising their rights under Title VII." Gupta, 654 F.2d at 414. Further, in
continuing to adhere to its pre-Morgan rule on exhaustion for post-filing retaliation
claims, the Fourth Circuit explained "a plaintiff that has already been retaliated against
one time for filing an EEOC charge will naturally be reluctant to file a separate
charge, possibly bringing about further retaliation." Jones, 551 F.3d at 302; see also
Schwartz v. Bay Indus., 274 F. Supp. 2d 1041, 1047 (E.D. Wis. 2003) (explaining the
Seventh Circuit's rule for post-filing retaliation claims is premised on the fact that
"having once been retaliated against for filing an administrative charge, the plaintiff
will naturally be gun shy about inviting further retaliation by filing a second charge
complaining about the first retaliation").
Our circuit considered Morgan's impact on exhaustion of related, post-filing
retaliation claims in Wedow v. City of Kansas City, Missouri, 442 F.3d 661 (8th Cir.
2006). The majority states Wedow "disavowed" the applicability of the like-or-
reasonably-related-to exception to a "'subsequent retaliation claim growing out of an
EEOC . . . discrimination complaint.'" Ante at 6-7 (quoting Wedow, 442 F.3d at 672).
It thus concludes Wedow forecloses Richter's contention she was not required to
administratively exhaust her retaliation claim because the claim is like or reasonably
related to the claim of discrimination based on race and sex Richter asserted in her
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timely filed EEOC charge. I cannot agree with the majority's interpretation of the
principles announced in Wedow.
To begin, Wedow did not purport to address whether a plaintiff asserting
retaliation after and as a result of a timely filed EEOC charge must file a new or
amended charge with the EEOC before pursuing her retaliation claim in federal court.
Rather, the narrow issue in Wedow concerned only the applicability of the like-or-
reasonably-related-to exception to "subsequent retaliatory acts [that are] of a like kind
to the retaliatory acts alleged in the EEOC charge, which were specified to be of an
ongoing and continuing nature." 442 F.3d at 674 (emphasis added). Wedow's
holding is therefore limited to retaliation claims arising after the filing of the EEOC
charge, but asserting "the same type of ongoing retaliation alleged in the timely filed
administrative charge[]." Id.
The majority concludes Wedow "lends no support to Richter's claim [because]
[u]nlike the plaintiffs in Wedow, Richter never alleged any retaliation in her charge
filed with the EEOC." Ante at 7 n.1. I agree Richter's retaliation claim is unlike the
retaliation claims asserted in Wedow and is therefore not governed by Wedow's
limited holding. I do not, however, view our holding in Wedow as so limiting as to
foreclose Richter's argument the like-or-reasonably-related-to exception to the
exhaustion doctrine applies to subsequent retaliatory acts arising from the filing of the
EEOC charge. On the contrary, while Wedow noted our circuit's narrowing of the
exception post-Morgan, it also emphasized our reluctance to abandon it in toto:
In light of the Supreme Court's clear rejection in Morgan of the
continuing violation theory as a means to toll the limitation period for
discrete acts of discrimination that occurred prior to the limitation period
for a timely filed charge, some courts have concluded that the rule
applies with equal force to discrete acts of discrimination that occur
subsequent to a timely filed EEOC charge. See Martinez v. Potter, 347
F.3d 1208, 1210-11 (10 Cir. 2003) . . . . These courts require a new or
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amended EEOC charge for each subsequent alleged incident of
retaliation or discrimination, regardless of whether the subsequent acts
are related to the allegations of the initial timely filed EEOC charge. . . .
[But] [w]hile our court has narrowed its view of what subsequent
acts are sufficiently related to be within the scope of the properly filed
administrative charges, we have not wholly abandoned the theory that
reasonably related subsequent acts may be considered exhausted.
Wedow, 442 F.3d at 674 (internal citation omitted). To be sure, Wedow also stated
that
[w]hile at one time, [the like-or-reasonably related-to] exception . . .
permitted a finding that a subsequent retaliation claim growing out of an
EEOC age discrimination complaint was sufficiently related to be within
the scope of the lawsuit, see Wentz v. Md. Cas. Co., 869 F.2d 1153,
1154 (8th Cir. 1989), we have subsequently recognized that "retaliation
claims are not reasonably related to underlying discrimination claims."
Duncan v. Delta Consol. Indus., Inc., 371 F.3d 1020, 1025 (8th Cir.
2004).
Wedow, 442 F.3d at 672-73. Duncan, however, the case on which Wedow relied for
the unnecessarily overinclusive statement "retaliation claims are not reasonably related
to underlying discrimination claims," did not involve related, post-filing retaliation
claims and is therefore inapposite to the proposition for which it was cited.
In Duncan, plaintiff had filed a charge with the EEOC alleging retaliation for
having internally complained about sexual harassment, without alleging a separate
claim of sex discrimination. Yet, plaintiff's Title VII judicial complaint asserted both
retaliation and sex discrimination. The district court granted summary judgment in
favor of the employer and we affirmed, concluding "charges of sexual harassment
generally are not like or reasonably related to retaliation charges for complaining
about antecedent harassment." Duncan, 371 F.3d at 1025. Our conclusion was based
on our circuit's well-established, pre-Morgan precedent that retaliation claims are not
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reasonably related to underlying discrimination claims unless the retaliatory acts
"grew out of the discrimination charge [plaintiff] filed with the EEOC." Wallin v.
Minn. Dep't of Corrs., 153 F.3d 681, 688 (8th Cir. 1998); see also Williams v. Little
Rock Mun. Water Works, 21 F.3d 218, 223 (8th Cir. 1994) (stating "claims of race
discrimination are separate and distinct from . . . claims of retaliation"). Thus, the
allegedly subsequent—presumably, post-Morgan—recognition Wedow speaks of is
nothing more than a reiteration of our long established—and pre-Morgan—circuit
precedent holding retaliatory acts occurring prior to the filing of the EEOC charge are
not like or reasonably related to discrimination claims alleged in the charge. I
therefore decline to view Wedow as foreclosing the applicability of the like-or-
reasonably-related-to exception to retaliatory acts occurring after the filing of a
discrimination charge with the EEOC and growing out of said charge as such acts are
necessarily reasonably related to the underlying allegations in the charge.
As a result, Richter's retaliation claim asserting Advance Auto unlawfully
retaliated against her for filing a discrimination charge with the EEOC is reasonably
related to the underlying discrimination claims so as to be deemed exhausted. I
therefore respectfully dissent from Part II.A of the court's opinion, which affirms the
district court's dismissal of Richter's retaliation claim for failure to exhaust
administrative remedies. I concur in Part II.B of the opinion concerning Richter's
state-law wrongful discharge claim.
______________________________
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