# Phillips v. Nesher Pharmaceuticals

> District Court, E.D. Missouri · February 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10234548

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** February 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ASHLEY PHILLIPS, )
)
Plaintiff(s), )
)
vs. ) Case No. 4:21-cv-00175
)
NESHER PHARMACEUTICALS, )
LLC, )
)
Defendant(s).

Memorandum and Order
Ashley Phillips claims that her employer violated Missouri’s anti-discrimination laws
after she had a baby and needed space and time to pump breast milk, and she filed suit in state
court. Her employer, Nesher Pharmaceuticals, acknowledges that Phillips’s drafted her petition1
complaint to avoid asserting a claim under the Fair Labor Standards Act, but removed the case to
this Court nonetheless. The Court lacks subject-matter jurisdiction and sua sponte remands this
matter back to the Circuit Court of St. Louis County. See 28 U.S.C. § 1447(c) (“If at any time
before final judgment it appears that the district court lacks subject matter jurisdiction, the case
shall be remanded.”).
I. Background
Phillips filed suit in St. Louis County Circuit Court. Doc. 6. She asserts claims—only
under the Missouri Human Rights Act—for gender discrimination and retaliation. She does not
assert any claim under any federal law. Nesher removed this action to federal court pursuant to
28 U.S.C. § 1441(a), arguing that “this Court has jurisdiction based on federal question pursuant

1 A “petition” in Missouri state court serves as the analog of a federal “complaint.”
to 28 U.S.C. § 1331[.]” Doc. 1 at pp. 2–3. After removing this action to federal court, Nesher
filed a motion to dismiss for failure to state a claim. Docs. 10–11.
In her complaint, Phillips alleges that she underwent a C-section in October 2018 and
returned to work in January 2019. Doc. 6 at ¶¶ 15–16. Upon her return, Phillips informed
Nesher that she could not work 12-hour shifts and needed time for breast-feeding. Id. at ¶ 16.

Nesher took issue with Phillips’s work limitations and other employees complained about
Phillips’s schedule. Id. at ¶¶ 17, 19.
An employee in Nesher’s Human Resources department referred Phillips to a bathroom
for breast-pumping. Id. at ¶ 20. Phillips “declined[,] stating she wanted an appropriate room,
per her rights as protected under The Patient Protection and Affordable Care Act amended
Section 7 of the Labor Standards Act, that went into effect March 23, 2010.” Id. at ¶ 21. Nesher
then directed Phillips to a different room—a room converted into an office occupied by a male
employee. Id. at ¶ 22. The male employee occupying that room referred Phillips to “a cluttered
and dirty storage area.” Id. at ¶ 23. Other Nesher employees constantly came into the room. Id.

at ¶ 24.
Eventually, Nesher directed Phillips to a different room—one that “was cleaner[,] but still
had people coming in and out retrieving supplies.” Id. at ¶ 25. An employee in Nesher’s Safety
& Security department made a sign indicating that the room could not be used, but people
ignored the signed and still came into the room. Id. at ¶ 26. In March 2019, the sign disappeared
from the door that Phillips had been using for pumping. Id. at ¶ 33. Phillips reported the
missing sign to an employee in Nesher’s Safety & Security department, but never received a
response. Id. at ¶¶ 34–35.
Phillips’s supervisor frequently complained and talked to other employees about how
long Phillips took to pump. Id. at ¶¶ 28, 31. Phillips met with Nesher’s Human Resources
department about time spent pumping. Id. at ¶ 29. The third time Phillips’s supervisor asked
Phillips how long, she declined to respond and told him to speak with Nesher’s Human
Resources department. Id. at ¶ 32.

In July 2019, Phillips took time off because her stress caused her milk production to
decrease. Id. at ¶ 36. Phillips visited her doctor, who gave her two weeks of time off and also
referred her to a therapist for depression. Id. at ¶ 37. Phillips then requested time off under the
Family Medical Leave Act and received approval for short term disability. Id. at ¶¶ 38–39.
Nesher terminated Phillips in September 2019, and replaced her with a non-breastfeeding female.
Id. at ¶¶ 41–42.
II. Standard
A defendant may remove to federal court any state court civil action over which the
federal court has original jurisdiction. 28 U.S.C. § 1441(a). “The [removing] defendant bears

the burden of establishing federal jurisdiction by a preponderance of the evidence.” In re
Prempro Prod. Liab. Litig., 591 F.3d 613, 620 (8th Cir. 2010) (citation omitted). The federal
court must remand the case to state court if it lacks subject matter jurisdiction. Id. (citing 28
U.S.C. § 1447(c)). “All doubts about federal jurisdiction should be resolved in favor of remand
to state court.” Id.
III. Discussion
Nesher removes on the basis of federal-question jurisdiction. To have federal-question
jurisdiction, a claim in the case must “aris[e] under the Constitution, laws, or treaties of the
United States.” 28 U.S.C. § 1331. To “aris[e] under the Constitution, laws, or treaties of the
United States,” the complaint must assert on its face a claim under federal law, or, in certain
limited situations, raise a substantial federal question. The Court accordingly must determine
whether any of Phillips’s claims “aris[e] under the Constitution, laws, or treaties of the United
States.” Id.
A. Jurisdiction based on the face of the complaint or complete preemption

While Nesher does not argue that a federal question appears on the face of the complaint
or that the FLSA preempts Phillips’s state law claims, the Court briefly addresses these bases for
federal subject matter jurisdiction. “It is settled doctrine that a case is not cognizable in a federal
trial court, in the absence of diversity of citizenship, unless it appears from the face of the
complaint that determination of the suit depends upon a question of federal law.” Pan Am.
Petroleum Corp. v. Superior Court of Del. In & For New Castle Cty., 366 U.S. 656, 663 (1961)
(citation omitted). Here, Phillips only asserts claims under the MHRA, and thus no federal
question appears on the face of the complaint.
However, the artful pleading doctrine allows removal where federal law completely

preempts a plaintiff’s state-law claim. Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998)
(citation omitted). A plaintiff may not defeat removal by omitting necessary federal questions in
its pleadings. Id. “If a court concludes that a plaintiff has ‘artfully pleaded’ claims in this
fashion, it may uphold removal even though no federal question appears on the face of the
plaintiff’s complaint.” Id. However, courts consistently hold that the FLSA does not completely
preempt state law claims. See Fry v. Accent Mktg. Servs., L.L.C., No. 4:13-cv-00059-CDP, 2013
WL 2403669, at *2 (E.D. Mo. May 31, 2013) (collecting cases). Accordingly, subject matter
jurisdiction does not exist on the face of the complaint.
B. Jurisdiction Based on a substantial federal issue
Nesher argues that Phillips raises a federal question under 29 U.S.C. §§ 207(r), 215(a)(3)
of the FLSA. Doc. 1. Section 207(r)(1) of the FLSA governs “[r]easonable break times for

nursing mothers” and guarantees, under federal law, that employers must provide:
(A) a reasonable break time for an employee to express breast milk for her
nursing child for 1 year after the child’s birth each time such employee has need to
express the milk; and

(B) a place, other than a bathroom, that is shielded from view and free from
intrusion from coworkers and the public, which may be used by an employee to
express breast milk.

Section 215(a)(3) of the FLSA prohibits retaliation “against any employee because such
employee has filed any complaint.” Nesher contends that because Phillips’s factual allegations
center around the accommodations and treatment she received related to her breastfeeding, her
complaint requires a court to analyze whether Nesher complied with the FLSA’s requirements.
Consequently, Nesher argues, Phillips’s complaint necessarily raises a federal question under
section 207(r) of the FLSA.
“[F]ederal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily
raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without
disrupting the federal-state balance approved by Congress.” Gunn v. Minton, 568 U.S. 251, 258
(2013). That is, federal question jurisdiction may exist if a “state-law claim necessarily raise[s] a
stated federal issue, actually disputed and substantial, which a federal forum may entertain
without disturbing any congressionally approved balance of federal and state judicial
responsibilities.” Great Lakes Gas Transmission Ltd. P’Ship v. Essar Steel Minn., LLC, 843
F.3d 325, 331 (8th Cir. 2016) (quoting Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg.,
545 U.S. 308, 314 (2005)) (alterations in original).
Under Grable, the Court first determines if—in resolving Phillips’s discrimination and
retaliation claims under the MHRA—it must decide whether Nesher complied with the FLSA’s
requirements for nursing mothers. For an employee to establish a prima facie case of sex

discrimination under the MHRA, the employee must demonstrate: (1) the employee was a
member of a protected class; (2) the employee was qualified to perform the job; (3) the employee
suffered an adverse employment action; and (4) the employee was treated differently from other
similarly situated employees of the opposite sex. Lampley v. Missouri Comm'n on Human
Rights, 570 S.W.3d 16, 24 (Mo. 2019) (citations omitted). “To present a prima facie case of
retaliation, the plaintiff must show (1) she complained of discrimination; (2) the employer took
adverse action against her; and (3) a causal relationship existed between the complaint of
discrimination and the adverse employment action.” McGaughy v. Laclede Gas Co., 604 S.W.3d
730, 751 (Mo. Ct. App. 2020), reh'g and/or transfer denied (May 21, 2020), transfer denied

(Sept. 1, 2020) (citations and internal quotations omitted).
Based on these elements, Phillips’s discrimination and retaliation claims do not rely upon
proving that Nesher violated section 207(r). Phillips does not seek recovery for a violation of
section 207(r); rather she seeks to recover for the discrimination that she faced as a nursing
mother as well as Nesher’s retaliation, and her reference to section 207(r) and the allegations
related to her breastfeeding accommodations serve as some of the alleged instances of
discrimination. Thus, the resolution of Phillips’s MHRA claims do not hinge on whether Nesher
and its employees violated section 207(r). Instead, Phillips’s claims turn on whether the actions
of Nesher and its employees constitute gender discrimination and retaliation under the MHRA,
regardless of whether those actions violated section 207(r). Federal courts consistently find that
alleged violations of federal law do not create federal-question jurisdiction when those violations
are alleged as instances of discrimination and retaliation under the MHRA. See Miller v. Metro.
Sewer Dist., No. 4:10-cv-00363-JCH, 2010 WL 2399553, at *2 (E.D. Mo. June 10, 2010); Davis
v. Oliver St. Dermatology Mgmt., LLC, No. 4:17-cv-00250-FJG, 2017 WL 3494231, at *2 (W.D.

Mo. Aug. 15, 2017); Zampitella v. Walgreens Co., No. 4:16-cv-00781 (CEJ), 2016 WL 3627290,
at *3 (E.D. Mo. July 6, 2016). These cases involve the FMLA, which like the FLSA at issue
here, does not completely preempt state-law claims. Id. The reasoning of those cases applies
with equal force here.
Additionally, a potential violation of section 207(r) does not form the sole basis of
Phillips’s claims. For instance, Phillips alleges that her supervisor and other Nesher employees
complained about how long it took her to pump and that a sign was removed from her door.
Therefore, even assuming that Nesher complied with section 207(r), Phillips alleged separate
facts that support that Nesher and its employees discriminated and retaliated against her. Thus, a

court need not consider whether Nesher violated the FLSA to determine whether it violated the
MHRA. See Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 817 (4th Cir. 2004) (cited with
approval in Central Iowa Power Coop. v. Midwest Indep. Transmission Operator, Inc., 561 F.3d
904, 914 (8th Cir. 2009) (“If the plaintiff can support his claim with even one theory that does
not call for an interpretation of federal law, his claim does not ‘arise under’ federal law for
purposes of § 1331.”); see also Mantlo v. Missouri Sch. Boards Ass'n, No. 2:18-cv-04184-NKL,
2018 WL 6634485, at *2 (W.D. Mo. Dec. 19, 2018) (same).
Moreover, the “mere presence of a federal issue in a state cause of action does not
automatically confer federal-question jurisdiction.” Merrell Dow Pharms. Inc. v. Thompson, 478
U.S. 804, 813 (1986). Likewise, the “mere need to apply federal law in a state-law claim will
[not necessarily] suffice to open the ‘arising under’ door.” Grable, 545 U.S. at 313; see also
Merrell Dow, 478 U.S. at 807 (internal citation omitted) (“Although the constitutional meaning
of ‘arising under’ may extend to all cases in which a federal question is ‘an ingredient’ of the
action, . . .we have long construed the statutory grant of federal-question jurisdiction as

conferring a more limited power.”). Thus, the complaint’s references to the FLSA and the
FMLA do not support finding that a federal question exists.
The Court presumes the second requirement of Grable is satisfied. Although Phillips did
not explicitly state in her complaint that Nesher violated the FLSA and she has not responded to
Nesher’s removal of this action, the Court will assume that Phillips contends that Nesher did not
fulfill its FLSA obligations. The Court then turns to the third requirement, the substantiality of
the issue. The claimed significance of the federal issue to the particular parties themselves does
not satisfy the “substantiality” requirement. Gunn, 568 U.S. at 260. The substantiality inquiry
instead looks to “the importance of the issue to the federal system as a whole.” Id.

In Grable, a quiet title action originally filed in state court, the Supreme Court held that
the meaning of a federal tax provision, specifically the 26 U.S.C. § 6335 requirement that the
IRS give adequate notice of seizure of real property to satisfy a federal tax delinquency, was “an
important issue of federal law that sensibly belongs in a federal court.” 545 U.S. at 315. In
contrast, in Gunn, an action for legal malpractice, the Supreme Court held the validity of a patent
was not a significant issue, important to the federal system as a whole. 568 U.S. at 260–64. The
Supreme Court found the state court’s resolution of the question of patent law in the context of a
malpractice action would have no broader effects; it would not stand as binding precedent; and it
would not affect the validity of the patent. Id.
Here, unlike Grable, Phillips’s claims involve the actions of a private employer, not a
federal agency, and require a fact-specific inquiry into Nesher’s employees’ actions. See Roller
v. Glazer's Distributors of Missouri, No. 4:16-cv-00022-CDP, 2016 WL 2609804 (E.D. Mo.
May 6, 2016) (remanding for lack of subject matter jurisdiction after the defendant removed to
federal court arguing that the plaintiff’s allegations related to breast-feeding accommodations

raised a federal question under section 207); Roller, Doc. 1 at 2 (notice of removal). The
resolution of whether Nesher and its employees violated the FLSA “would not be dispositive of
the case or controlling in any other cases.” Roller, 2016 WL 2609804 at *4. Given the limited
impact that a determination of whether Nesher also violated the FLSA would have on other
courts, the Court finds that Nesher fails to demonstrate a “substantial” federal question.
Finally, the Court must determine if allowing the case to proceed in federal court would
upset the appropriate balance of federal and state judicial responsibilities. Gunn, 568 U.S. at
264. In Gunn, the Supreme Court held the patent-law malpractice claim did not meet this fourth
requirement because the case did not present a substantial federal issue, and the states have a

“special responsibility to maintain standards” among attorneys. Id. The Court further held that
the state’s interest is especially great because of the role lawyers have in administering justice
and as officers of the court. Id.
Similarly, in this case, asserting federal subject-matter jurisdiction over this action would
disrupt the federal-state balance approved by Congress. Congress has not established exclusive
federal jurisdiction over gender discrimination or employment conditions for breast-feeding
mothers. Additionally, states have a strong interest in ensuring employees do not face gender
discrimination. Moreover, adopting Nesher’s rationale for removal would mean that this court
has subject matter jurisdiction over any case involving the accommodation and treatment of
nursing mothers in the workplace. Consequently, Missouri state courts would never be able to
opine on whether actions such as those alleged in the complaint amount to discrimination under
the MHRA. Accordingly, on these facts, assuming jurisdiction of this case would raise
significant federalism concerns. See Younger v. Harris, 401 U.S. 37, 43 (1971) (“Since the
beginning of this country’s history Congress has, subject to few exceptions, manifested a desire
to permit state courts to try state cases free from interference by federal courts.”).
In sum, because Nesher has not satisfied the four elements of Grable, it has not
established federal question jurisdiction. While a defendant has a statutory right to remove in
certain situations, the plaintiff is still the master of her own claim. See Caterpillar Inc. v.
Williams, 482 U.S. 386, 391 & n.7 (1987). Although Phillips could have possibly brought her
claims in federal court, she pleaded only state-law claims and this Court lacks subject-matter
jurisdiction. Accordingly, the Court remands this action back to the Circuit Court of St. Louis
County. Pursuant to 28 U.S.C. 1447(c), the Clerk of the Court shall mail a certified copy of this
order of remand to the clerk of the State court.

So Ordered this 26th day of February 2021.

‘riveree fe. C Se
STEPHENR.CLARK sists
UNITED STATES DISTRICT JUDGE

10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10234548. Public record. Not legal advice.