Court of Appeals of Missouri, Western District, Third Division
from the Circuit Court of Boone County, Missouri The
Honorable Dorothea Christine Carpenter, Judge
Alok Ahuja, P.J., Victor C. Howard, and James Edward Welsh,
Edward Welsh, Judge.
Jean Kerr appeals the circuit court's grant of summary
judgment in favor of the Curators of the University of
Missouri (University) on her claims of employment
discrimination and retaliation under the Missouri Human
Rights Acts (MHRA). Kerr contends that the circuit court
erred in granting summary judgment for the University because
(1) the court misstated and misapplied the elements of an
MHRA age discrimination claim, (2) she demonstrated genuine
disputes of material fact on her age discrimination claim;
(3) she demonstrated a genuine dispute of material fact on
her disability discrimination claim, and (4) the court
misstated and misapplied the law when it found that summary
judgment on her MHRA discrimination claims caused her
retaliation claim to fail as a matter of law. We affirm.
considering an appeal from summary judgment, we view the
record in the light most favorable to the party against whom
judgment was entered, and we afford that party the benefit of
all reasonable inferences. ITT Com. Fin. Corp. v. Mid-Am.
Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc
1993). The record established that, at the times relevant to
these claims, Kerr was over 40 years of age. She was
diagnosed with bipolar disorder, post-traumatic stress
disorder, attention deficit disorder, chronic depression,
Crohn's disease, and spinal stenosis.
was employed as an animal caretaker at the Laboratory Animal
Center (LAC), which is an animal care facility operated by
the Office of Animal Resources (OAR) at the University of
Missouri-Columbia. Kerr's immediate supervisor was
Clayton Douglas. Douglas's supervisor was Dana Weir, the
Facilities Manager for the OAR. Weir's supervisor was Dr.
Lon Dixon. Tom Malloy was an animal technician at the OAR and
the "lead technician" on weekends. Malloy was
sometimes referred to as the "weekend supervisor."
was a part-time employee and was the only part-time employee
at the LAC beginning at least in 2010. Kerr's
employment with the OAR has always been part-time, and she
has never applied for a full-time position with the
University. Although she obtained certification as an
Assistant Lab Animal Technologist, she never applied for a
full-time position or a different job within the
Kerr said that she did not want to work full-time because of
her Crohn's disease and because she has "difficulty
socializing with humans."
part-time union employee, Kerr was not required to be put on
a certain step within the pay range for animal caretakers.
Full-time union employees, however, must be on a certain step
within a pay range. Step raises are given automatically to
those within full-time union positions but not to employees
in part-time union positions. Further, the University's
policies require it to apply its progressive discipline
policy to full-time employees only.
time she was hired, Kerr notified her supervisors that she
had Crohn's disease but did not identify any other
disabilities. Indeed, Kerr requested a handicapped
parking tag from the University, identifying Crohn's
disease as the reason she need it. The only disabilities that
Weir and Douglas were aware that Kerr had were Crohn's
disease and back problems. Kerr requested and received
accommodations for her Crohn's disease by being allowed
to miss work when sick and by being allowed to have frequent
access to the bathroom during work hours. She also requested
and received accommodations for her back problems by having
help lifting heavy items. When asked whether she ever told
any other supervisor or anyone at the OAR that she had
depression, PTSD, or bipolar disorder, Kerr responded,
"I never said anything to anyone because I thought the
atmosphere for people with mental disease was not the same as
the atmosphere for people with other physical problems."
Friday, March 16, 2012, Kerr was at work and asked Malloy
whether she could leave her dogs in her vehicle on the
loading dock while she worked the next day. The parties
dispute exactly what Malloy said in response. Malloy testified
that he told Kerr that he did not have a problem with it
"if it was okay with [Douglas.]" Kerr testified
that Malloy "thought it would be okay." When Malloy
told Douglas what Kerr wanted to do, Douglas said
"absolutely not." Douglas sent an email to Kerr
telling her not to bring her animals into the loading dock.
next morning, Malloy found Kerr moving an OAR truck out of
the loading dock. According to Malloy, Kerr "had parked
her van outside-on the drive outside the loading dock and had
gone inside and gotten the green [OAR] pickup truck and moved
it around to the front of the building, so as to create room
for her to move her van into the loading dock." Malloy
told Kerr that she could not put her vehicle containing
multiple dogs in the loading dock. Following this incident,
Kerr's employment was terminated for "misconduct and
insubordination." The termination letter said:
Due to recent misconduct and insubordination in your
interactions with the Supervisors of LAC (both Clayton
Douglas and Tom Malloy), we are releasing you from your
part-time employment with the University of Missouri and
Office of Animal Resources.
You had been instructed not to bring in your personal pets to
the animal facility on Saturday, 3/17/12, (via an email on
Friday, 3/16/12), however you brought them to work anyway,
with the intention of bringing them into the facility. Had
Tom not stopped you from pulling your van, fully loaded with
crates of animals, into the dock, it could have posed a
serious health issue within our research colonies and went
against a direct order from your Supervisor not to do this.
When Tom Malloy (Weekend Supervisor) instructed you not to
continue to pull your vehicle into the dock, you then argued
with him. Insubordination will not be tolerated at any time,
especially when it concerns the health of our research
made the decision to terminate Kerr along with some input
from Douglas, after considering information from Malloy.
Dixon approved the termination.
her termination, Kerr filed a grievance and had a hearing
before Karen Touzeau, Associate Vice Chancellor for Research
for the University. Touzeau issued a written decision
upholding the termination. Thereafter, on September 17, 2013,
Kerr filed a third amended petition for damages, in which she
alleged violations of the MHRA for age discrimination,
religious discrimination, disability discrimination, and
retaliation. The University moved for summary judgment on all
counts, which the circuit court granted. Kerr appeals from
the circuit court's judgment granting summary judgment on
her claims for age discrimination, disability discrimination,
review of a summary judgment is de novo. ITT
Commercial, 854 S.W.2d at 376. We review the record in
the light most favorable to the party against whom judgment
was entered, and we afford that party the benefit of all
reasonable inferences. Id. "The propriety of
summary judgment is purely an issue of law."
Id. We will affirm the circuit court's grant of
summary judgment if no genuine issues of material fact exist
and the moving party is entitled to judgment as a matter of
law. Id. at 380; Rule 74.04. A "defending
party" may establish a right to judgment by showing:
(1) facts that negate any one of the claimant's elements
facts [sic], (2) that the non-movant, after an adequate
period of discovery, has not been able to produce, and will
not be able to produce, evidence sufficient to allow the
trier of fact to find the existence of any one of the
claimant's elements, or (3) that there is no genuine
dispute as to the existence of each of the facts necessary to
support the movant's properly-pleaded affirmative
ITT Commercial, 854 S.W.2d at 381 (emphasis
omitted). As cautioned by the Missouri Supreme Court,
"[s]ummary judgment should seldom be used in employment
discrimination cases, because such cases are inherently
fact-based and often depend on inferences rather than on
direct evidence." Daugherty v. City of Maryland
Heights, 231 S.W.3d 814, 818 (Mo. banc 2007). However,
in considering summary judgment on an MHRA claim, the Court
"must determine whether the record shows two plausible,
but contradictory, accounts of the essential facts and the
'genuine issue' in the case is real, not merely
argumentative, imaginary, or frivolous." Id. at
820. "Summary judgment should not be granted unless
evidence could not support any reasonable inference for the
non-movant." Id. at 818.
first point on appeal, Kerr asserts that the circuit court
erred in granting summary judgment for the University because
the court misstated and misapplied the elements of an MHRA
age discrimination claim. Kerr claims that the circuit court
erroneously required her to show disparate treatment based on
age. Kerr asserts that a submissible MHRA age discrimination
case does not require a showing of disparate treatment and
that a plaintiff may prevail by showing "any unfair
treatment" in employment in which consideration of age
was a contributing factor.
MHRA protects persons aged 40 to 70 from age
discrimination." Daugherty, 231 S.W.3d at 820
n. 8 (citing § 213.010(1), RSMo 2000). Section
213.055.1(1)(a), RSMo 2000, states that it shall be an
unlawful employment practice for an employer "[t]o fail
or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of
employment, because of such individual's . . .
age[.]" The MHRA defines discrimination, in part, as
"any unfair treatment based on . . . age as it relates
to employment[.]" § 213.010(5). "Nothing in
this statutory language of the MHRA requires a plaintiff to
prove that discrimination was a substantial or determining
factor in an employment decision; if consideration of age . .
. contributed to the unfair treatment, that is
sufficient." Daugherty, 231 S.W.3d at 819.
"Therefore, in enacting the MHRA, the legislature sought
to prohibit any consideration of [age] no matter how slight
in employment decisions." McBryde v. Ritenour School
Dist., 207 S.W.3d 162, 170 (Mo. App. 2006). Thus, if
there is a genuine issue of material fact as to whether
Kerr's age was a "contributing factor" in the
University's decision regarding Kerr's employment,
summary judgment is not proper. Daugherty, 231
S.W.3d at 820.
claims that the circuit court misstated and misapplied the
elements of an MHRA age discrimination claim by requiring her
to show disparate treatment based on age instead of focusing
on whether age was a contributing factor in the
University's alleged unfair treatment of her. Kerr,
however, ignores the fact that she pled this case as one of
disparate treatment. In the first count of her third amended
petition, Kerr alleged:
a. Plaintiff experienced unequal pay between herself and
newly hired, younger employees with less education, work
experience, and training.
. . .
d. Plaintiff has a college degree and over forty years of
experience caring for animals, however Plaintiff's
coworker Alan Yoder has no college degree but was hired a pay
grade ahead of Plaintiff, even though he never tested for
that pay grade.
e. Younger employees were not terminated or investigated when
complaints are made regarding their quality of work or
unprofessional and improper behavior, whereas Plaintiff was.
For example, Shannon Ragan, a male coworker of Plaintiff in
his late twenties, was known to sleep during work hours, did
not perform job duties, continuously used obscene language,
was never investigated or reprimanded, and voluntarily
resigned from employment with Defendant University. Also,
Alan Yoder, another male coworker of Plaintiff in his late
fifties, was reported to supervisors for inappropriate
behavior on more than one occasion for kicking dogs and not
letting dogs out of confinement to clean the dogs' runs.
Yoder also loudly argued with supervisors in the presence of
coworkers and is still employed by Defendant University.
. . .
g. Plaintiff complained many times to her supervisor about
the disparity in pay and the unequal treatment she received,
but her concerns were never addressed.
Kerr was claiming that her age was a contributing factor in
the University's alleged unfair treatment of her as shown
by the disparate treatment between herself and other
employees. "'[I]nstances of disparate treatment,
' that is, when the employee has been treated differently
from other employees, 'can support a claim of'
discrimination under the MHRA." McGhee v.
Schreiber Foods, Inc., No. WD78744, 2016 WL 4198580,
at * 6 (Mo. App. W.D. Aug. 9 2016) (quoting Williams v.
Trans States Airlines, Inc., 281 S.W.3d 854, 873 (Mo.
App. 2009) and Young v. Am. Airlines, Inc., 182
S.W.3d 647, 654 (Mo. App. 2005)). But, where a plaintiff
attempts to prove her case based upon disparate treatment,
"'the plaintiff bears the burden of establishing
that the employees are similarly situated in all relevant
respects.'" McGhee, 2016 WL 4198580 at *6
(quoting Williams, 281 S.W.3d at 873, and
Young, 182 S.W.3d at 654). Thus, Kerr's
contention that the circuit court erroneously required her to
show disparate treatment based on age instead of focusing on
whether age was a contributing factor in the University's
alleged unfair treatment of her is without merit. The circuit
court never stated that Kerr had to establish disparate
treatment to prevail on any MHRA claim. The circuit court was
merely analyzing Kerr's discrimination claims under the
theory of discrimination that she pled.
[A] disparate treatment plaintiff must show 'that he or
she was treated differently from similarly situated members
of the unprotected class.'" Cox v. Kansas City
Chiefs Football Club, Inc., 473 S.W.3d 107, 119-120 (Mo.
banc 2015) (citation omitted.) "[T]he plaintiff must
prove that the motivating distinguishing factor leading to
the more severe [employment action] was his or her membership
in the protected group." Id. at 120. "In
such 'disparate treatment' claims, the relevance of
evidence as to the treatment of coworkers depends on whether
those coworkers were otherwise similarly situated to the
plaintiff." Id. at 119. "In determining
whether coworkers were 'similarly situated, ' courts
analyze factors including whether the same supervisor imposed
the discipline, whether the coworkers were subject to the
same standards, whether they engaged in conduct of similar
seriousness, and similar factors." Id. To be
similarly situated, coworkers do not have to be
"identical in every conceivable way, " but the
distinctions between them must not be "so significant
that they render the comparison effectively useless[.]"
Id. at 123 n.14 (internal quotation marks and
disparate treatment analysis, the circuit court merely found
that Kerr did not identify co-workers who were outside the
protected class but who were otherwise similarly situated to
Kerr and treated more favorably. Indeed, the employees Kerr
compared herself to were not similarly situated. Kerr was the
only part-time employee, and the younger employees that Kerr
compared herself to were full-time union employees subject to
the union provisions for pay scales, step raises, and
progressive discipline. Although the younger employees may
have performed similar duties, they were not subject to the
same standards for pay scales, raises, or disciplinary
procedures. These distinctions are "so significant to
render the comparison effectively useless[.]"
Id. (internal quotation marks and citation omitted).
no admissible evidence exists in the record to support that
Kerr's factual allegations about these employees are even
true. In response to summary judgment, Kerr cannot assert
that these allegations are true by merely relying on her
pleadings, given that the University has denied those
allegations in its answer to Kerr's petition and the
University has not admitted these facts. Rather, Kerr has to
come forward with actual admissible evidence from
"discovery, exhibits, or affidavits" in support of
her allegations. Rule 74.04(c)(2).
third amended petition, Kerr also alleged that her age was a
contributing factor in the University's alleged unfair
treatment of her in that:
b. Plaintiff has always been compensated as an entry-level
employee, despite having tested successfully for a higher pay
c. Plaintiff was never given a step raise or a raise based on
successful pay-grade testing during the 15 years she was
employed by Defendant University.
support of these alleged facts, Kerr relies on her deposition
testimony in which she testified that when she was hired she
had a "verbal contract" with "Mr.
Anthony" that as she "tested into higher
grades" that she "would be given that pay
scale." Kerr fails to point out, however, that she also
testified that "Mr. Anthony told [her] something that
[she] was later told . . . didn't exist." Thus, Kerr
admitted that although "Mr. Anthony" told her that
she would receive the higher pay scales as she tested into
higher grades, she knew that such an arrangement
in its statement of uncontroverted facts for its motion for
summary judgment, the University stated: "Step raises
are given automatically to employee in full-time employees in
full-time union positions but not to those in part-time
positions." In support of this statement, the University
provided the affidavit of Bonnie Gregg, a ...