Filius v. Missouri Department of Corrections

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

MICHAEL FILIUS, )

)

Plaintiff, )

)

vs. ) Case No. 4:21CV01483

)

MISSOURI DEPARTMENT OF )

CORRECTIONS, )

)

Defendant. )

MEMORANDUM AND ORDER

This matter is before the Court on Defendant Missouri Department of Corrections’

motion ECF No. 5) to dismiss Plaintiff Michael Filius’s complaint. Plaintiff asserts

claims of retaliation in violation of the Family Medical Leave Act of 1993 (“FMLA”), 29

U.S.C. § 2601 et seq., and intentional infliction of emotional distress (“IIED”). For the

reasons set forth below, the motion will be granted in part and denied in part.

BACKGROUND

Taken as true for the purpose of this motion, Plaintiff alleges the following facts.

Plaintiff was hired by Defendant to work as a Corrections & Probation Officer beginning

in January of 2018. ECF No. 4, Compl. ¶ 9. At the outset of his employment, Plaintiff

notified Defendant that he would require accommodations because he suffers from an

autoimmune disorder which causes him to fatigue quickly. Id. ¶¶ 11–12. To

accommodate this health condition, Plaintiff requested that his shifts not exceed twelve

hours per day, and that he not work more than four hours of overtime. Id. ¶¶ 13–14.

Plaintiff believed that this accommodation was granted, but he was frequently required to

work shifts that exceeded the time limitations set by his accommodation. Id. ¶¶ 14–15.

Plaintiff used FMLA time early in his employment due to his own health care

condition and also to care for his daughter, who “has a serious health condition.” Id. ¶¶

16–17. Plaintiff continued to take FMLA leave “intermittently” through November of

2018. Id. ¶ 19. In November of 2018, Plaintiff’s supervisor, Cynthia Hygrade, told

Plaintiff that “I don’t want people taking FMLA, I don’t want people with

accommodations, and if you can’t work over sixteen hours, I don’t want you here.” Id. ¶

18. Hygrade made other disparaging comments about Plaintiff’s need for FMLA

accommodations, and on one occasion, she told Plaintiff that he would not have been

hired if she knew about his need for accommodations. Id. ¶¶ 20, 22. Another employee

of Defendant, Captain Kosanke, told Plaintiff that he was “taking advantage of” his

FMLA leave. Id. ¶ 27.

After being subjected to harassment by his supervisors over the use of FMLA

leave, Plaintiff made a formal complaint of discrimination on December 3, 2018. Id. ¶

31. After making this complaint, Plaintiff was isolated from his co-workers and excluded

from using the employee restroom. Id. ¶ 33. Instead, Plaintiff was required to use the

inmate restroom, which was “in an unsanitary state” and “feces-stained.” Id. ¶¶ 33, 35.

Plaintiff then filed a charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”) on December 19, 2018. Id. ¶ 40. Once this

occurred, Plaintiff experienced additional pressure to leave his position with Defendant.

Id. ¶¶ 41–43. An employee of Defendant told Plaintiff that “he could not keep working

for Defendant” because he filed a charge with the EEOC. Id. ¶ 41. Plaintiff was also

falsely accused of misconduct with respect to the use of force on an inmate, and he was

pressured to transfer to a different location. Id. ¶¶ 42, 44. One of Plaintiff’s supervisors

remarked to Plaintiff, “You’re making a lot of complaints.” Id. ¶ 47.

Plaintiff continued to take FMLA leave in 2019 for both himself and for his

daughter. Id. ¶ 50. In late spring of 2019, Plaintiff obtained FMLA paperwork so that he

could “expand his FMLA approval that he already had.” Id. ¶ 49. Plaintiff intended to

take FMLA leave “related to his serious health conditions.” Id. ¶ 51. Plaintiff completed

this paperwork and returned it to his Facility Supervisor, Don Aries, but Aries claimed

that he never received the paperwork. Id. ¶¶ 52–53. At about the same time, Plaintiff’s

supervisor, Hygrade, undertook efforts to uncover negative information about Plaintiff

which could be used to justify his termination. Id. ¶¶ 54–55. Plaintiff also alleges that,

around this time, he attempted to “open[] a door to aid his breathing,” due to his asthma,

and he was told by an unidentified person: “If you open that door, just leave.” Id. ¶ 58.

Plaintiff was terminated on June 17, 2019. Defendant stated that Plaintiff’s

termination was due to his violation of Defendant’s “policies and procedures.” Id. ¶ 59.

He filed suit on December 17, 2021. He asserts claims for retaliation in violation of the

FMLA (Count I), and for intentional infliction of emotional distress (“IIED”) (Count II).

Under Count I, Plaintiff seeks a remedy in the form of monetary damages, as well as for

“appropriate equitable, declaratory, and injunctive relief . . . .” Id. ¶ 69.1 Under Count II,

Plaintiff requests only monetary damages.

Defendant seeks dismissal of all counts for failure to state a claim. Defendant

submits that Plaintiff cannot recover because both of his claims are barred by sovereign

immunity. With respect to the FMLA claim, Defendant argues that Plaintiff relies on the

“self-care” provision of the statute, which does not create a valid waiver of sovereign

immunity. On the IIED claim, Defendant argues that Plaintiff’s claim is barred by

sovereign immunity because it does not come within the statutory exceptions.

Plaintiff opposes the motion to dismiss and argues that his claims are not barred by

sovereign immunity. On the FMLA claim, Plaintiff argues that his claim also concerns

leave which he took to care for his daughter. Plaintiff contends that this transforms his

FMLA claim into one concerning the “family care” provision, which does yield a valid

waiver of state sovereign immunity. On the IIED claim, Plaintiff argues that his claim

comes within the statutory exception to sovereign immunity for an unsafe condition on

public property, or that sovereign immunity has been waived by the purchase of liability

insurance.

1 The FMLA permits a private cause of action for money damages, and “for such

equitable relief as may be appropriate, including employment, reinstatement, and

promotion.” 29 U.S.C. § 2617(a)(1); see also McBurney v. Stew Hansen’s Dodge City,

Inc., 398 F.3d 998, 1001 n.2 (8th Cir. 2005).

DISCUSSION

Standard

“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) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 570 (2007)). “A claim has facial plausibility when the pleaded factual content

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Magee v. Trustees of Hamline Univ., Minn., 747 F.3d 532, 535 (8th

Cir.2014). The court “construe[s] [a] complaint liberally.” Id. (alterations in original).

“[T]he complaint should be read as a whole, not parsed piece by piece to determine

whether each allegation, in isolation, is plausible.” Wilson v. Arkansas Dep't of Hum.

Servs., 850 F.3d 368, 371 (8th Cir. 2017). Where the complaint contains “well-pleaded

factual allegations, a court should assume their veracity and then determine whether they

plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.

Sovereign Immunity

Because a valid invocation of sovereign immunity would be dispositive as to all of

Plaintiff’s claims, the Court will address the sovereign immunity issue before considering

Plaintiff’s claims on the merits. “Sovereign immunity is the privilege of the sovereign

not to be sued without its consent.” Virginia Office for Prot. & Advocacy v. Stewart, 563

U.S. 247, 253 (2011). “Under Mo. Rev. Stat. § 537.600, public entities enjoy sovereign

immunity . . . unless immunity is waived, abrogated, or modified by statute.” Richardson

v. City of St. Louis, 293 S.W.3d 133, 136 (Mo. Ct. App. 2009). Here, the parties agree

that Defendant is a public entity that is presumptively covered by the state’s sovereign

immunity. See Compl. ¶ 2; ECF. No. 6, Def.’s Mem. in Supp. at 2.

Determining whether sovereign immunity has been abrogated in this case requires

an examination of the FMLA provisions at issue. “The FMLA entitles an employee to

twelve weeks of leave from work during any twelve-month period if the employee meets

certain statutory requirements.” Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d

996, 1005 (8th Cir. 2012). The statutory requirements at issue here are the “family-care”

and “self-care” provisions. Under the “family-care” provisions of FMLA, qualified

employees are entitled to leave “to care for the spouse, or a son, daughter, or parent, of

the employee, if such spouse, son, daughter, or parent has a serious health condition,”

among other reasons. 29 U.S.C. § 2612(a)(1)(C); see also id. § 2612(a)(1)(A)–(B). The

“self-care” provision entitles a qualified employee to leave “because of a serious health

condition that makes the employee unable to perform the functions of the position of such

employee.” 29 U.S.C. § 2612(a)(1)(D).

The FMLA entitles employees to the same period of leave regardless of which

statutory requirement they satisfy, so the reason for which the leave is taken is generally

not relevant to an employee’s claim under the FMLA. See 29 U.S.C.A. § 2612(a)(1).

However, the purpose of the leave is relevant to whether state sovereign immunity may

be validly abrogated by the FMLA. In Nevada Dep’t of Human Resources v. Hibbs, 538

U.S. 721 (2003), the United States Supreme Court held that Congress could validly

abrogate state sovereign immunity with respect to claims against states under the family

care provision of the FMLA, § 2612(a)(1)(C). See Hibbs, 538 U.S. at 740. The plaintiff

in Hibbs was fired while on approved FMLA leave to care for his injured wife, and he

sued his employer for “retaliating against him when he opposed [their unlawful practices

under the FMLA].” Brief for Resp’t at 9, Hibbs, 538 U.S. 721 (No. 01-1368), 2002 WL

31655020. The Court in Hibbs noted that the administration of family-care leave at the

state level resulted in significant gender discrimination, and Congress’ remedy to waive

sovereign immunity with respect to these claims was therefore “congruent and

proportional to its remedial object.” Hibbs, 538 U.S. at 740.

However, with respect to claims under the self-care provision of the FMLA, §

2612(a)(1)(D), the Supreme Court has reached the opposite result. See Coleman v. Ct. of

Appeals of Maryland, 566 U.S. 30, 37 (2012) (plurality opinion). In Coleman, a plurality

of the Court held that the self-care provision was not congruent or proportional to the

stated objective of preventing gender discrimination, so Congress could not abrogate

sovereign immunity for claims against states under the self-care provision of the FMLA.

Id. at 39. The Eighth Circuit has similarly held that the FMLA’s self-care provisions do

not abrogate sovereign immunity. See Townsel v. Missouri, 233 F.3d 1094, 1096 (8th

Cir. 2000), overruled in part on other grounds by Hibbs, 538 U.S. at 740; Miles v.

Bellfontaine Habilitation Ctr., 481 F.3d 1106, 1107 (8th Cir. 2007). Accordingly, where

the defendant in an FMLA suit is a state or state entity, plaintiffs can recover under the

family-care provision but not under the self-care provision.

Here, Plaintiff does not contest that Coleman bars his FMLA claim to the extent

that it relies on the rights created by the self-care provision under § 2612(a)(1)(D).

Therefore, the Court will grant Defendant’s motion in part and will dismiss Count I in

part, without prejudice, to the extent that Count seeks relief for violation of rights created

by the self-care provision.2 See Warnock v. Pecos Cty., Tex., 88 F.3d 341, 343 (5th Cir.

1996) (“Because sovereign immunity deprives the court of jurisdiction, the claims barred

by sovereign immunity can be dismissed only under Rule 12(b)(1) and not with

prejudice.”).

However, Plaintiff maintains that Count I should still survive, at least in part,

because the allegations in the complaint also implicate the family-care provision under §

2612(a)(1)(C). The parties agree that the family-care provision of the FMLA does

effectively abrogate state sovereign immunity. Therefore, whether Plaintiff’s claim in

Count I can overcome the motion to dismiss depends on whether the complaint

successfully states a claim for a violation of a right created by the family-care provision.

FMLA Claims

The Eighth Circuit has recognized three types of claims which may arise under the

“Prohibited acts” section of the FMLA, 29 U.S.C. § 2615. “The first type, arising under

§ 2615(a)(1), occurs where an employer refuses to authorize leave under the FMLA or

takes other action to avoid responsibilities under the Act.” Pulczinski, 691 F.3d at 1005.

This type of claim has been described as an “entitlement” claim. Id. The second type of

2 That Plaintiff seeks equitable and injunctive relief does not overcome the barrier

posed by sovereign immunity with respect to the self-care claims. “[S]overeign

immunity applies regardless of whether a private plaintiff’s suit is for monetary damages

or some other type of relief.” Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743,

765 (2002); see also Church v. Missouri, 913 F.3d 736, 743 (8th Cir. 2019) (“Because—

except for statutory and common-law exceptions—sovereign immunity bars all suits

against the State, it bars suits for prospective equitable relief.”) (emphasis in original).

claim exists where an employer takes adverse action against an employee who “opposes

any practice made unlawful under the FMLA . . . .” Id. at 1006. Pulczinski refers to this

type of claim as a “retaliation” claim. See id. The third type of claim arises “when an

employer takes adverse action against an employee because the employee exercises rights

to which he is entitled under the FMLA.” Id. This type of claim is described as a

“discrimination” claim. Id. Although Plaintiff labels his FMLA claim as one for

“retaliation,” the Court must evaluate the content of the complaint to determine what type

of claim has actually been alleged. See Hager v. Arkansas Dep't of Health, 735 F.3d

1009, 1016 (8th Cir. 2013) (disregarding plaintiff’s labeling of the FMLA claims and

considering the content of each claim under the categorization from Pulczinski).

Plaintiff does not purport to raise an entitlement claim under the FMLA, and the

facts alleged in the complaint could not plausibly support one with respect to the family-

care provision. An entitlement claim requires that the employer take some action to

avoid their responsibilities under the FMLA. See Pulczinski, 691 F.3d at 1005. To state

an entitlement claim under the FMLA, the plaintiff must show that the employer’s actions

actually deterred the employee from taking leave. See id. at 1007; see also Quinn v. St.

Louis Cty., 653 F.3d 745, 753 (8th Cir. 2011) (“[T]he employee must also show that the

employer denied the employee entitlements under the FMLA.”). In this case, Plaintiff

has not been prevented from taking leave for family-care purposes, and the facts alleged

in the complaint indicate that Plaintiff did take FMLA leave for this purpose on several

occasions. See Compl. ¶¶ 16–17, 19, 50. Plaintiff does not allege that he has been

denied an entitlement under the FMLA’s family-care provision, so an entitlement claim is

improper.3

Plaintiff styles his FMLA claim as one for “retaliation.” Under Pulczinski, that

type of claim arises where an employer takes adverse action against an employee who

“opposes any practice made unlawful under the FMLA . . . .” Pulczinski, 691 F.3d at

1006. Therefore, to state a valid retaliation claim, the employer must engage in some

practice that is believed to be unlawful under the FMLA,4 the employee must oppose that

practice, and the employee must suffer an adverse employment action which is causally

connected to their opposition. Id. A retaliation claim also requires proof of the

employer’s discriminatory intent. See Brown v. City of Jacksonville, 711 F.3d 883, 891

(8th Cir. 2013). “This proof may come from direct evidence or indirect evidence using

the McDonnell Douglas burden-shifting framework.” Id. See also McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802–06 (1973).

3 The Court notes that Plaintiff could potentially state an entitlement claim under the

self-care provision. Plaintiff alleges that he submitted paperwork to his supervisors to

“formally expand his FMLA approval,” but his supervisors falsely claimed that they

never received this paperwork. Compl. ¶¶ 48–53. These allegations show that Defendant

refused to authorize Plaintiff’s FMLA leave, which is conduct that can give rise to an

entitlement claim. See 29 C.F.R. § 825.220(b) (“Interfering with the exercise of an

employee's rights . . . include[s] . . . refusing to authorize FMLA leave . . . .”). However,

Plaintiff’s complaint makes clear that this request for FMLA leave was “related to his

serious health conditions,” and thus the underlying right is the self-care provision.

Compl. ¶ 51 (emphasis added). Because the self-care provision does not abrogate state

sovereign immunity, the Court need not address this potential claim.

4 Even if the challenged practice is not a violation of the FMLA, an employee is

protected from retaliation so long as the employee “reasonably believes” that practice to

violate the FMLA. 29 C.F.R. § 825.220(e).

In this case, all three prima facie elements of a retaliation claim under McDonnell

Douglas are adequately alleged in the complaint. First, Plaintiff alleges that his

supervisors actively discouraged Plaintiff and other employees of Defendant from using

FMLA leave. See Compl. ¶¶ 18–28. This type of conduct is expressly forbidden by the

FMLA and its regulations. See 29 C.F.R. § 825.220(b). Further, because Defendant’s

vocal opposition to FMLA leave occurred around the time that Plaintiff was taking

FMLA leave to care for his daughter, it is plausible that the unlawful practices in this

case infringed upon the rights created by the family-care provision.5 Second, Plaintiff

openly opposed this unlawful conduct by filing both a complaint of discrimination and a

charge of discrimination with the EEOC. See Compl. ¶¶ 31, 40. Although Plaintiff does

not expressly state that the “discrimination” at issue was discrimination against

employees who used or wished to use FMLA leave, that conclusion may be reasonably

inferred from the other allegations in the complaint. Third, Plaintiff alleges that he

suffered an adverse employment action which was causally connected to his opposition to

the Defendant’s unlawful policies. This conclusion is bolstered by the several factual

allegations which specifically describe how Plaintiff’s supervisors discouraged him from

making a formal complaint and threatened him with retaliation. See Compl. ¶¶ 32, 39,

41, 47. These allegations are sufficient to plausibly allege a claim for FMLA retaliation.

5 This theory of FMLA violation—one of retaliation against an employee who

opposed an employer’s unlawful practice which interfered with the rights created by the

family-care provision—is analogous to the factual situation in Hibbs, 538 U.S. at 725.

For the same reasons that Plaintiff’s complaint adequately states a claim for

FMLA retaliation, the Court concludes that the allegations in the complaint also state a

claim for “discrimination” under the terminology of Pulczinski. Like a retaliation claim,

an FMLA discrimination claim under § 2615(a)(1) “require[s] proof of the employer’s

discriminatory intent,” which can be proven with indirect evidence under McDonnell

Douglas. Brown v. City of Jacksonville, 711 F.3d 883, 891 (8th Cir. 2013). Under the

McDonnell Douglas approach, to establish a prima facie case of FMLA discrimination,

the plaintiff must “show that []he exercised rights afforded by the Act, that []he suffered

an adverse employment action, and that there was a causal connection between h[is]

exercise of rights and the adverse employment action.” Phillips v. Mathews, 547 F.3d

905, 912 (8th Cir. 2008). Plaintiff’s complaint alleges a plausible prime facie case.

First, the facts alleged in the complaint show that Plaintiff exercised rights

afforded by the FMLA. Disregarding the allegations related to the FMLA’s self-care

provision, the complaint alleges that Plaintiff took FMLA leave in 2018 and in 2019 to

care for his daughter, who suffers from a serious health condition. Second, among other

alleged adverse employment actions, Plaintiff alleges that he was terminated. See

Wierman v. Casey's Gen. Stores, 638 F.3d 984, 999 (8th Cir. 2011) (“Unquestionably,

termination is an adverse employment action.”). Third, Plaintiff has plausibly alleged a

causal connection between his exercise of rights and the adverse employment action.

Plaintiff alleges that shortly after beginning his job with defendant, he took FMLA leave

to care for his sick daughter. Later in 2018, Plaintiff’s supervisor openly expressed to

him that she did not want people taking FMLA leave, and that Plaintiff would not have

been hired if she knew that Plaintiff would need an FMLA accommodation. Other

employees of Defendant expressed the belief that Plaintiff was “taking advantage” of

FMLA leave. Plaintiff was terminated somewhat shortly thereafter, on June 17, 2019.

Taken together, these allegations are at least sufficient to plausibly allege a case of

FMLA discrimination. See Sprenger v. Federal Home Loan Bank, 253 F.3d 1106, 1113–

14 (8th Cir. 2001) (finding temporal proximity between protected conduct and adverse

employment action sufficient to establish prima facie case of discrimination).

Defendant contends that “[t]he bulk of Plaintiff’s FMLA retaliation allegations

refer to his health and need for accommodation and FMLA.” ECF No. 9, Def.’s Reply

Mem. at 2. The Court agrees that several allegations in the complaint exclusively refer to

Plaintiff’s need for accommodation with respect to his own medical condition, and would

thus implicate rights under the self-care provision of the FMLA and be barred by state

sovereign immunity. However, notwithstanding the self-care allegations, the complaint

alleges sufficient factual matter to state a plausible claim for retaliation and

discrimination against Plaintiff for exercising his rights under the family-care provision.

Whether Plaintiff will be able to produce evidence of a causal link between the rights

created by the family-care provision and the adverse employment action is not before the

Court at this time. The Court will deny Defendant’s motion to dismiss Count I to the

extent that Count seeks relief for violation of rights created by the family-care provision.

Intentional Infliction of Emotional Distress Claim

Defendant argues that Plaintiff’s IIED claim must be dismissed because it is

barred by sovereign immunity. As noted above, the parties agree that Defendant is

protected by sovereign immunity unless the immunity is waived, abrogated, or modified

by statute. Congress has not acted to abrogate state sovereign immunity with respect to

claims for IIED. However, Missouri law allows for a limited waiver of sovereign

immunity in four narrow circumstances. This waiver of sovereign immunity applies:

(1) where a plaintiff's injury arises from a public employee's negligent

operation of a motor vehicle in the course of his employment (section

537.600.1(1)); (2) where the injury is caused by the dangerous condition of

the [a public entity’s] property (section 537.600.1(2)); (3) where the injury

is caused by the municipality performing a proprietary function as opposed

to a governmental function (State ex rel. Board of Trustees of the City of

North Kansas City Memorial Hospital, 843 S.W.2d 353, 358 (Mo. banc

1993)); and (4) to the extent the [public entity] has procured insurance,

thereby waiving sovereign immunity up to but not beyond the policy limit

and only for acts covered by the policy (section 537.610).

Bennartz v. City of Columbia, 300 S.W.3d 251, 259 (Mo. Ct. App. 2009). Despite

this limited waiver of sovereign immunity, “[f]or suits against public entities,

sovereign immunity is the rule, not the exception.” Metro. St. Louis Sewer Dist. v.

City of Bellefontaine Neighbors, 476 S.W.3d 913, 921–22 (Mo. 2016). In

interpreting this statute, the Missouri Supreme Court has emphasized that

“statutory provisions that waive sovereign immunity must be strictly construed.”

Id. at 921.

“When bringing claims against a public entity, a plaintiff bears the burden

of pleading with specificity facts giving rise to an exception to the rule of

sovereign immunity.” Thompson v. City of St. Peters, 220 F. Supp. 3d 975, 981

(E.D. Mo. 2016) (internal quotation mark omitted). “Sovereign immunity is not

an affirmative defense but is part of the plaintiff's prima facie case.” St. John's

Clinic, Inc. v. Pulaski Cnty. Ambulance Dist., 422 S.W.3d 469, 471 (Mo. App.

2014). Therefore, “it is incumbent upon a plaintiff who seeks to state a claim for

relief to specifically allege facts establishing that an exception applies.” Boever v.

Special Sch. Dist. of St. Louis Cnty., 296 S.W.3d 487, 491 (Mo. App. E.D. 2009).

Plaintiff first argues that the allegations in the complaint “implicate[]

unsafe property conditions,” so the waiver of sovereign immunity at Mo. Rev. Stat

§ 537.600.1(2) should apply. ECF No. 8, Pl.’s Resp. in Opp’n at 3. To state a

claim under the “dangerous condition” exception, the Plaintiff must establish: “(1)

a dangerous condition of the property; (2) that the injuries directly resulted from

the dangerous condition; (3) that the dangerous condition created a reasonably

foreseeable risk of harm of the kind which was incurred; and (4) that a public

employee negligently created the condition or that the public entity had actual or

constructive notice of the dangerous condition.” Necker by Necker v. City of

Bridgeton, 938 S.W.2d 651, 654 (Mo. Ct. App. 1997). For property to satisfy the

“dangerous condition” test, it must be shown that “the condition was dangerous

because of its existence,” such that the property, “without intervention by third

parties, posed a physical threat to plaintiff.” Id. at 655 (citing Alexander v. State,

756 S.W.2d 539, 542 (Mo. 1988)).

Here, the allegations in Plaintiff’s complaint fail to allege a dangerous

condition of public property as that term has been interpreted by Missouri courts.

Plaintiff does not allege that the physical condition of the inmate restroom or the

closed door posed a physical threat to Plaintiff on its own. The complaint is

devoid of any allegation that Plaintiff suffered a physical injury from either object.

Instead, Plaintiff contends that the conduct of an intervening third party is what

resulted in his injuries. In the case of the inmate restroom, Plaintiff suffered

emotional distress only because the other employees of Defendant forced him to

use that restroom and barred him from the employee facilities. With respect to the

closed door, Plaintiff suffered an injury only because another employee forbade

him from opening the door. Because Plaintiff’s allegations of harm are predicated

on the conduct of an intervening third party, the complaint fails to allege a

dangerous condition of public property that could implicate the waiver of

sovereign immunity at Mo. Rev. Stat § 537.600.1(2). See Dale By & Through

Dale v. Edmonds, 819 S.W.2d 388 (Mo. Ct. App. 1991) (finding no dangerous

condition where plaintiff’s injury caused by “the intentional conduct of another

person and not the direct result of the physical condition” of the property).

Plaintiff’s second argument invokes the waiver of sovereign immunity for

liability insurance at Mo. Rev. Stat § 537.610.1. Plaintiff does not allege the

existence of any insurance policy, but instead submits that he should be allowed to

proceed to discovery because evidence of an insurance policy could potentially be

discovered. This argument ignores Plaintiff’s burden to “plead[] with specificity

facts giving rise to an exception to the rule of sovereign immunity.” Thompson,

220 F. Supp. 3d at 981. This requirement applies equally to the liability insurance

exception, and so Plaintiff remains “obligated to plead facts sufficient to allege a

waiver of sovereign immunity.” Brennan By & Through Brennan v. Curators of

the Univ. of Missouri, 942 S.W.2d 432, 437 (Mo. Ct. App. 1997). Even if

Defendant has purchased applicable liability insurance—and there is no indication

that it has—Plaintiff’s failure to specifically allege facts sufficient to plausibly

demonstrate a waiver of sovereign immunity due to the purchase of such insurance

means that the complaint cannot overcome the motion to dismiss. See State ex rel.

City of Marston v. Mann, 921 S.W.2d 100, 104 (Mo. Ct. App. 1996). Therefore,

the Court will grant Defendant’s motion to dismiss Count II and will dismiss that

claim in its entirety without prejudice.

CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that Defendant’s motion to dismiss is GRANTED

in part and DENIED in part, as set forth above. The motion is GRANTED with

respect to the portions of Count I seeking relief for violation of rights created by the self-

care provision, 29 U.S.C. § 2612(a)(1)(D), and with respect to Count IJ in its entirety,

which are DISMISSED without prejudice. The motion is otherwise DENIED. ECF

No. 5.

UNITED STATES DISTRICT JUDGE

Dated this 25th day of March, 2022.

17