United States District Court, D. South Dakota, Western Division
STEPHANIE ANDERSON, PHETSAMONE “MAO” DARY, MORIAH DEMERS, CHAD ENGELBY, THOMAS ENGLISH, DEANNA HOBBS, KEN JOHNSON, BRIAN KRUSCHKE, JEFFREY DALLMAN, KATHRYN EASTMAN, and ALAN HAYDEN, Plaintiffs,
WELLS FARGO BANK, N.A., Defendant.
JEFFREY L. VIKEN CHIEF JUDGE.
plaintiffs filed this action against defendant Wells Fargo
Bank, N.A. (Docket 6). Each plaintiff was an employee of
defendant who was fired in approximately the last five years
because of the plaintiff's criminal background
information. Id. at pp. 3, 6, 12, 16, 22, 23, 25,
29-30, 32-33, 36 & 39-40; see Docket 12 at p. 8.
Plaintiffs' complaint advances 31 claims against defendant.
Id. The court has jurisdiction pursuant to 28 U.S.C.
§ 1332 because there is complete diversity between the
parties and the amount in controversy exceeds $75, 000.
Id. at p. 2. Federal question jurisdiction pursuant
to 28 U.S.C. § 1331 provides the court with jurisdiction
over plaintiffs' claims grounded in federal law.
complaint includes several state law causes of action. Each
plaintiff alleges a fraud and deceit claim. Id. at
pp. 4-5, 10-11, 14-15, 18-19, 21-24, 27-28, 30-31, 34-35,
37-38 & 41-42. Aside from Mr. Engelby, each plaintiff
brings a claim for punitive damages. Id. at pp. 5-6,
11, 15, 19-20, 24-25, 28, 21-32, 35, 39 & 43. Five
plaintiffs assert promissory estoppel claims against
defendant: Ms. Anderson, Mr. Dary, Ms. Demers, Ms. Eastman
and Mr. Hayden. Id. at pp. 4, 8, 17, 37 & 41.
Only Mr. Dary alleges fraudulent inducement and fraudulent
concealment claims against defendant. Id. at pp.
complaint also sets forth violations of federal law in
connection with each plaintiff. Plaintiffs collectively
allege defendant violated the Fair Credit Reporting Act
(“FCRA”) because it “failed to comply with
the procedural protections and requirements of the FCRA when
it used the consumer reports of Plaintiffs, and thousands of
other employees, to make adverse employment decisions
resulting in their termination.” Id. at p. 43.
The plaintiffs claim defendant's conduct in firing them
violated the Racketeer Influenced and Corrupt Organizations
Act (“RICO”), 18 U.S.C. § 1962(c), and
constituted a conspiracy to violate RICO, 18 U.S.C. §
1962(d). Id. at pp. 49-68. The core of
plaintiffs' RICO claims is defendant fired them for the
“purpose of terminating employees en masse, reducing
payroll, eliminating earned and accrued employee bonuses and
benefits, and depressing the relevant job market, all under
the fraudulent pretext of compliance with federal
regulation.” Id. at p. 61.
filed a motion to dismiss some of plaintiffs' claims.
(Docket 11). Defendant asserts the court should dismiss
plaintiffs' FCRA claim under Federal Rule of Civil
Procedure 12(b)(1) because plaintiffs lack standing to bring
their FCRA claim. Id. at p. 3. Defendant argues
plaintiffs' FCRA and RICO claims should be dismissed
under Rule 12(b)(6) because they are time-barred.
Id. According to defendant, Mr. English and Mr.
Dallman's state law claims are also time-barred,
warranting Rule 12(b)(6) dismissal. Id. Aside from
timeliness, defendant argues the court should dismiss
plaintiffs' RICO claims under Rule 12(b)(6) because they
fail to state a claim upon which the court can grant relief.
Id. Defendant alternatively moves the court to
strike plaintiffs' complaint under Rule 12(f) to the
extent it “fails to contain a short and plain statement
of the claims upon which the Plaintiffs are seeking relief .
. . .” Id. at p. 4 (citing Fed.R.Civ.P. 8(a)).
Rule 12(b)(1) motion to dismiss
is an essential and unchanging part of the
case-or-controversy requirement of Article III [of the United
States Constitution.]” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). “Standing . .
. is a jurisdictional requirement, and thus ‘can be
raised by the court sua sponte at any time during the
litigation.' ” Pucket v. Hot Springs Sch. Dist.
No. 23-2, 526 F.3d 1151, 1156-57 (8th Cir. 2008)
(quoting Delorme v. United States, 354 F.3d 810, 815
(8th Cir. 2004)). “The [standing] doctrine limits the
category of litigants empowered to maintain a lawsuit in
federal court to seek redress for a legal wrong. In this way,
the law of Article III standing . . . serves to prevent the
judicial process from being used to usurp the powers of the
political branches, and confines the federal courts to a
properly judicial role . . . .” Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1547 (2016) (internal citations
omitted) (internal quotation marks omitted).
‘irreducible constitutional minimum' of standing
consists of three elements.” Id. (quoting
Lujan, 504 U.S. at 560). “The plaintiff must
have (1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3)
that is likely to be redressed by a favorable judicial
decision.” Id. (citations omitted).
“Where, as here, a case is at the pleading stage, the
plaintiff must ‘clearly . . . allege facts
demonstrating' each element.” Id. (quoting
Warth v. Seldin, 422 U.S. 490, 518 (1975)).
“In assessing a plaintiff's Article III standing,
we must ‘assume that on the merits the plaintiffs would
be successful in their claims.' ” Am. Farm
Bureau Fed'n v. U.S. Envtl. Prot. Agency, 836 F.3d
963, 968 (8th Cir. 2016) (quoting Muir v. Navy Fed.
Credit Union, 529 F.3d 1100, 1106 (D.C. Cir. 2008)).
second and third elements of standing tend to be
straightforward, but the injury element is harder to pin
down. The United States Supreme Court recently ruled on the
injury element in Spokeo. Spokeo clarified
the requirements that the injury suffered is “concrete
and particularized . . . .” Spokeo, 136 S.Ct.
at 1548 (citing Lujan, 504 U.S. at 560) (internal
quotation marks omitted). A particularized injury
“affect[s] the plaintiff in a personal and individual
way[, ]” as opposed to an injury affecting an
undifferentiated collection of people. Id.
(citations omitted). A concrete injury is one that
“actually exist[s].” Id. It can be a
tangible injury, such as physical pain, or it can be
intangible, like curtailing someone's right to free
speech. Id. at 1549 (citing Pleasant Grove City
v. Summum, 555 U.S. 460 (2009)). Spokeo
acknowledged Congress can create statutes providing people
rights, which, if violated, may result in an Article III
injury. Id.; see, e.g., Fed. Election
Comm'n v. Akins, 524 U.S. 11, 20-25 (1998) (holding
that certain voters' “inability to obtain
information” Congress chose to make accessible to them
yielded an Article III injury). However, Spokeo held
“Article III standing requires a concrete injury even
in the context of a statutory violation. . . . [A plaintiff]
could not, for example, allege a bare procedural violation,
divorced from any concrete harm, and satisfy the
injury-in-fact requirement of Article III.”
Spokeo, 136 S.Ct. at 1549.
argues the court should dismiss plaintiffs' FCRA claim
because they lack standing. (Dockets 19 at pp. 18-23). For
the FCRA allegation, the core issue is whether plaintiffs set
forth violations of substantive rights sufficient to
constitute a concrete injury or whether he asserts “a
bare procedural violation, divorced from any concrete harm .
. . .” Spokeo, 136 S.Ct. at 1549.
court notes this precise issue divides many United States
District Courts. Compare Thomas v. FTS USA, LLC, 193
F.Supp.3d 623, 629-37 (E.D. Va. 2016); Banks v. Cent.
Refrigerated Servs., Inc., No. 2:16-CV-356, 2017 WL
1683056, at *3 (D. Utah May 2, 2017), with In re Michaels
Stores, Inc., Fair Credit Reporting Act (FCRA)
Litigation, MDL No. 2615, 2017 WL 354023, at *4-11
(D.N.J. Jan. 24, 2017); Fisher v. Enterprise Holdings,
Inc., No. 15-CV-00372, 2016 WL 4665899, at *2-4 (E.D.
Mo. Sept. 7, 2016). In Thomas and Banks, the
courts concluded the FCRA violations before them set forth
concrete injuries because they involved substantive rights.
See Thomas, 193 F.Supp.3d at 637 (“Section
1681b(b)(3), like § 1681b(b)(2)(A), provides the
consumer with a legally cognizable right to specific
information.”); Banks, 2017 WL 1683056, at *3
(noting “[s]everal courts have recognized that multiple
sections of the FCRA provide consumers with a [substantive]
right to information”). In contrast, the courts in
In re Michaels Stores and Fisher determined
the FCRA claims did not constitute more than procedural
rights, which alone do not amount to concrete injuries.
See In re Michaels Stores, Inc., 2017 WL 354023, at
*7 (“I respectfully disagree with Thomas's
conclusion that the disclosure requirements set forth in
§ 1681b(b)(2)(A)(i) are substantive rather than
procedural.”); Fisher, 2016 WL 4665899, at
reaching its conclusion about the nature of the rights the
FCRA confers, Thomas started, “as
Spokeo instructs, [by] look[ing] to the common law
and to the judgment of Congress, as reflected in the FCRA, to
determine whether the violations of that statute alleged by
[the plaintiff] constitute concrete injuries that satisfy the
case or controversy requirement.” Thomas, 193
F.Supp.3d at 631.
Spokeo Court itself explained the background of
Congress passing the FCRA:
The FCRA seeks to ensure “fair and accurate credit
reporting.” § 1681(a)(1). To achieve this end, the
Act regulates the creation and the use of “consumer
report[s] by “consumer reporting
agenc[ies]”for certain specified purposes, including
credit transactions, insurance, licensing, consumer-initiated
business transactions, and employment. See
§§ 1681a(d)(1)(A)-(C); § 1681b. . . . [T]he
FCRA applies to companies that regularly disseminate
information bearing on an individual's “credit
worthiness, credit standing, credit capacity, character,
general reputation, personal characteristics, or mode of
living.” § 1681a(d)(1).
The FCRA imposes a host of requirements concerning the
creation and use of consumer reports. . . . [T]he Act
requires consumer reporting agencies to “follow
reasonable procedures to assure maximum possible accuracy
of” consumer reports, § 1681e(b); to notify
providers and users of consumer information of their
responsibilities under the Act, § 1681e(d); to limit the
circumstances in which such agencies provide consumer reports
“for employment purposes, ” § 1681b(b)(1);
and to post toll-free numbers for consumers to request
reports, § 1681j(a).
Spokeo, 136 S.Ct. at 1545.
sections at issue in this case are 15 U.S.C. §§
1681b(b)(2)(A) & 1681b(b)(3)(A). (Docket 6 at pp. 43-49).
Section 1681b(b)(2)(A) stated in full reads:
[A] person may not procure a consumer report, or cause a
consumer report to be procured, for employment purposes with
respect to any consumer, unless: (i) a clear and conspicuous
disclosure has been made in writing to the consumer at any
time before the report is procured or caused to be procured,
in a document that consists solely of the disclosure, that a
consumer report may be obtained for employment purposes; and
(ii) the consumer has authorized in writing (which
authorization may be made on the document referred to in
clause (i)) the procurement of the report by that person.
Thomas court held § 1681b(b)(2)(A) establishes
two rights. Thomas, 193 F.Supp.3d at 631-32.
“First, it establishes a right to specific information
in the form of a clear and conspicuous disclosure, ”
which is supported by “the textual command that the
disclosure be clear and conspicuous.” Id. at
631. “Second, [it] establishes a right to privacy in
one's consumer report that employers may invade only
under stringently defined circumstances.” Id.
at 631-32. Thomas held those rights “are
clearly substantive, and neither technical nor
procedural.” Id. at 632; see Demmings v.
KKW Trucking, Inc., No. 14-CV-494, 2017 WL 1170856, at
*8 (D. Or. Mar. 29, 2017) (“The Court finds persuasive
these, and other cases that similarly hold that the Sections
1681b(b)(2)(B) and (b)(3)(B) and similar provisions of the
FCRA establish substantive informational and privacy rights
held by the consumer.”); Mix v. Asurion Ins. Servs.
Inc., No. CV-14-02357, 2016 WL 7229140, at *6 (D. Ariz.
Dec. 14, 2016) (“Violations of FCRA that unfairly
deprive a consumer of relevant information, or obtain consent
for a background check without a statutorily-proper
disclosure, implicate the harms Congress identified in FCRA,
and thus cause concrete harms.”); Moody v. Ascenda
USA Inc., No. 16-CV-60364, 2016 WL 5900216, at *5 (S.D.
Fla. Oct. 5, 2016) (holding § 1681b(b)(2)(A) confers
substantive rights); Meza v. Verizon Commc'ns,
Inc., No. 16-CV-0739, 2016 WL 4721475, at *3 (E.D. Cal.
Sept. 9, 2016) (same).
Syed v. M-I, LLC, the United States Court of Appeals
for the Ninth Circuit adopted the view that §
1681b(b)(2)(A) is a grant of substantive rights. 853 F.3d
492, 499 (9th Cir. 2017). The Ninth Circuit held:
Syed alleges more than a “bare procedural
violation.” The disclosure requirement at issue, 15
U.S.C. § 1681b(b)(2)(A)(i), creates a right to
information by requiring prospective employers to inform job
applicants that they intend to procure their consumer reports
as part of the employment application process. The
authorization requirement, § 1681b(b)(2)(A)(ii), creates
a right to privacy by enabling applicants to withhold
permission to obtain the report from the prospective
employer, and a concrete injury when applicants are deprived
of their ability to meaningfully authorize the credit check.
By providing a private cause of action for violations of
Section 1681b(b)(2)(A), Congress has recognized the harm such
violations cause, thereby articulating a “chain[ ] of
causation that will give rise to a case or
controversy.” See Spokeo, 136 S.Ct. at 1549
(quoting Lujan, 504 U.S. at 580 (Kennedy, J.,
court is aware other courts have come to the opposite
conclusion: that § 1681b(b)(2)(A) consists of procedural
rights the violation of which does not amount to an Article
III injury. See In re Michaels Stores, Inc., 2017 WL
354023, a *7-8; Landrum v. Blackbird Enters., LLC,
No. CV 16-0374, 2016 WL 6075446, at *3-4 (S.D. Tex. Oct. 3,
2016). The court respects the well-reasoned rulings in In
re Michaels Stores and Landrum. But the court
disagrees with their analysis of the FCRA.
determining whether an intangible harm constitutes injury in
fact, both history and the judgment of Congress play
important roles.” Spokeo, 136 S.Ct. at 1549.
The FCRA's backdrop the Ninth Circuit explained in
Syed supports concluding § 1681b(b)(2)(A)
grants substantive rights. In 1996, Congress amended the
26-year-old FCRA with the specific concern that
“prospective employers were obtaining and using
consumer reports in a manner that violated job
applicants' privacy rights.” Syed, 853
F.3d at 496 (citing S. Rep. No. 104-185 at 35 (1995)).
“The disclosure and authorization provision codified at
15 U.S.C. § 1681b(b)(2)(A) was intended to address this
concern by requiring the prospective employer to disclose
that it may obtain the applicant's consumer report for
employment purposes and providing the means by which the
prospective employee might prevent the prospective employer
from doing so-withholding of authorization.”
Id. (citing S. Rep. No. 104-185 at 35)). Section
1681b(b)(2)(A) advances Congress' broader goals of
“ensuring accurate credit reporting, promoting
efficient error correction, and protecting privacy.”
Id. at 496-97. By enacting the FCRA, Congress found
there “is a need to insure that consumer reporting
agencies exercise their grave responsibilities with fairness,
impartiality, and a respect for the consumer's right to
privacy.” 15 U.S.C. § 1681(a)(4). As time moved
forward and technology developed, the “modern
information age has shined a spotlight on information
privacy, and on the widespread use of consumer credit reports
to collect information in violation of consumers' privacy
rights.” Syed, 853 F.3d at 495.
to § 1681b(b)(2)(A) with this background in mind, it is
clear the statute takes the consumer's personal
information and grants the consumer substantive protections
regarding its release. To protect the consumer's personal
information, § 1681b(b)(2)(A) grants the consumer a
right to information in a disclosure form and a right to
privacy an employer “may invade only under stringently
defined circumstances.” See Thomas, 193
F.Supp.3d at 631-32. If an employer does not secure the
consumer's disclosure authorization as the statute
requires, the employer may “unfairly deprive a consumer
of relevant information, or obtain consent for a background
check without a statutorily-proper disclosure, [which]
implicate[s] the harms Congress identified in FCRA, and thus
cause[s] concrete harms.” Mix, 2016 WL
7229140, at *6. “It is clear from the statute's
legislative history that Congress intended that the FCRA be
construed to promote the credit industry's responsible
dissemination of accurate and relevant information and to
maintain the confidentiality of consumer reports. To that
end, it was Congress' judgment, as clearly expressed in
§§ 1681b(b)(2) and (3), to afford consumers rights
to information and privacy.” Thomas, 193
F.Supp.3d at 633.
argues it did not violate the FCRA's disclosure and
authorization requirements because plaintiff was not confused
by the disclosure form. (Docket 12 at pp. 21-22). The
fundamental point is that defendant's deviation from the
statute's disclosure standards did not vitiate
plaintiff's authorization for defendant to obtain his
background information. However, the “proper inquiry is
whether a procedural violation [of § 1681b(b)(2)(A)]
creates a ‘risk of real harm.' ”
Mix, 2016 WL 7229140, at *5 (quoting
Spokeo, 136 S.Ct. at 1549-50). The court finds an
employer “does create a real risk of harm” when
it uses “a disclosure that, because it is merely one
section of a larger document, results in ‘information
overload' which inhibits a consumer's ability to
agree to a background check with full knowledge of their
rights and the potential consequences.” Id.
“Drawing all reasonable inferences in favor of the
non-moving party, ” Syed, 853 F.3d at 499, the
court finds plaintiff's allegations that the disclosure
was “wordy” and not in a “stand-alone
document” sufficiently show the disclosure created a
risk of real harm. (Docket 6 at p. 47). Plaintiff's
claims grounded in § 1681b(b)(2)(A) allege a concrete
injury under Article III.
second section of the FCRA at issue in this case, §
[I]n using a consumer report for employment purposes, before
taking any adverse action based in whole or in part on the
report, the person intending to take such adverse action
shall provide to the consumer to whom the report relates: (i)
a copy of the report; and (ii) a description in writing of
the rights of the consumer under this subchapter, as
presented by the Bureau under section 1681g(c)(3) of this
Thomas held this section “delineates
substantive rights” because it “provides a
consumer with a right to certain information (the consumer
report and a description of rights conferred by the FCRA)
before an employer takes adverse action based on that report.
By requiring that the consumer receive the foregoing
information before adverse action is taken, the
statute provides the consumer with a right to review the
report and discuss it with his putative or current employer
before adverse action is taken against him.”
Thomas, 193 F.Supp.3d at 632 (emphasis in original)
(citing H.R. Rep. No. 10-486, 103d Cong. 2d Sess. 30-31
FCRA background outlined above applies to §
1681b(b)(3)(A) just as it does § 1681b(b)(2)(A). See
supra pp. 10-11. The reasoning underlying the
court's determination § 1681b(b)(2)(A) grants
substantive informational and privacy rights “is
applicable not only to the disclosure requirements of §
1681b(b)(2)(A) but also to the notice requirements of §
1681b(b)(3)(A) . . . .” Mix, 2016 WL 7229140,
at *6. Specifically, § 1681b(b)(3)(A) provides a
consumer with a substantive right to information prior to
adverse employment action. See Thomas, 193 F.Supp.3d
at 632. Plaintiff's claims grounded in §
1681b(b)(3)(A) constitute an Article III concrete injury.
claims because the information regarding plaintiff's
background was accurate, he fails to allege a concrete
injury. (Docket 12 at p. 20). “But the broad principle
that the holding in Thomas rests on-that the
violation of statutory rights may in itself be a concrete
injury-is not limited to situations where the violation of
those rights results in the dissemination of false
information.” Mix, 2016 WL 7229140, at *5.
Focusing on whether there is a risk of real harm, “[i]n
the context of employment-related background checks,
information that is true but amenable to contextual
explanation, delivered without time to provide that
explanation, does create a risk of real harm.”
Id. (citing Thomas, 193 F.Supp.3d at 638).
The crux of the injury here is not whether the information is
accurate, it is defendant depriving plaintiff of his right to
information before being fired.
argues that finding plaintiff's FCRA claims constitute
injuries is inconsistent with the United States Court of
Appeals for the Eighth Circuit decision Braitberg v.
Charter Commc'ns, Inc., 836 F.3d 925 (8th Cir.
2016). (Docket 12 at p. 23). Braitberg involved a
cable company's retention of Mr. Braitberg's personal
identifying information after he canceled his cable services,
which violated the Cable Communications Policy Act
(“CCPA”). Braitbertg, 836 F.3d at
926-27. Mr. Braitberg claimed a violation of his privacy
rights because the CCPA provides “[a] cable operator
shall destroy personally identifiable information if the
information is no longer necessary for the purpose for which
it was collected and there are no pending requests or orders
for access to such information [by the subscriber] or
pursuant to a court order.” 47 U.S.C. § 551(e);
see Braitberg, 836 F.3d at 927. The Eighth Circuit
held Mr. Braitberg lacked standing because he
“identifies no material risk of harm from the
retention; a speculative or hypothetical risk is
insufficient. Although there is a common law tradition of
lawsuits for invasion of privacy, the retention of
information lawfully obtained, without further disclosure,
traditionally has not provided the basis for a lawsuit in
American courts.” Braitberg, 836 F.3d at 930.
The United States Court of Appeals for the Third Circuit
interprets Braitberg “as creating a
requirement that a plaintiff show a statutory violation has
caused a ‘material risk of harm' before he can
bring suit . . . .” In re Horizon Healthcare Servs.
Inc. Data Breach Litig., 846 F.3d 625, 637 (3d Cir.
court finds its determination that plaintiff alleges a
concrete injury under the FCRA is consistent with
Braitberg. First, the court disagrees with In re
Horizon's view of Braitberg. In discussing
Mr. Braitberg's failure to identify a “material
risk of harm, ” the Eighth Circuit was not raising the
standing bar-it was explaining why the CCPA claim was “
‘a bare procedural violation, divorced from any
concrete harm.' ” Braitberg, 836 F.3d at
930 (quoting Spokeo, 136 S.Ct. at 1549). Even if
In re Horizon's interpretation is correct,
plaintiff meets that standard here because he sufficiently
showed risk of harm to his informational and privacy rights
granted via § 1681b(b)(2)(A) and § 1681b(b)(3)(A).
See supra pp. 10-13. Second, Braitberg
deals with the CCPA, not the FCRA. The court grounds its
conclusion regarding the substantive rights the FCRA confers
in the statute's backdrop and text, so
Braitberg's holding does not directly apply to
this case. And third, Braitberg involves the
retention of information lawfully obtained. The core of this
case is plaintiff's information was obtained in violation
of informational and privacy rights granted by the FCRA. The
retention of information in Braitberg was an
extension of the status quo, and the acquisition of
information in this case was a disruption of a status quo
where plaintiff's FCRA protections were intact.
plaintiffs allege a concrete injury under the FCRA, the court
finds they have Article III standing.
Rule 12(b)(6) motion to dismiss
Rule 12(b)(6), a plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). Two “working principles” underlie Rule
12(b)(6) analysis. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). First, courts are not required to
accept as true legal conclusions “couched as . . .
factual allegation[s]” in the complaint. See
id. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id. (quoting Twombly,
550 U.S. at 555) (internal quotation marks omitted). The
court does, however, “take the plaintiff's factual
allegations as true.” Braden v. Wal-Mart Stores,
Inc., 588 F.3d 585, 594 (8th Cir. 2009). Second, the
plausibility standard is a “context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S.
at 678 (citation omitted). The complaint is analyzed
“as a whole, not parsed piece by piece to determine
whether each allegation, in isolation, is plausible.”
Braden, 588 F.3d at 594.
court may dismiss a claim under Rule 12(b)(6) as barred by
the statute of limitations if the complaint itself
establishes that the claim is time-barred.” Illig
v. Union Elec. Co., 652 F.3d 971, 976 (8th Cir. 2011)