# Filius v. Missouri Department of Corrections

> District Court, E.D. Missouri · March 25, 2022

URL: https://www.frixlaw.com/law-library/cases/10236788

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** March 25, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10236788

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10236788. Public record. Not legal advice.