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Kerr v. Curators of University of Missouri

Court of Appeals of Missouri, Western District, Third Division

December 13, 2016

CHARLOTTE JEAN KERR, Appellant,
v.
THE CURATORS OF THE UNIVERSITY OF MISSOURI, Respondent.

         Appeal from the Circuit Court of Boone County, Missouri The Honorable Dorothea Christine Carpenter, Judge

          Before Alok Ahuja, P.J., Victor C. Howard, and James Edward Welsh, JJ.

          James Edward Welsh, Judge.

         Charlotte 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.

         When 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.

         Kerr 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."

         Kerr was a part-time employee and was the only part-time employee at the LAC beginning at least in 2010.[1] 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 OAR.[2] 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."

         As a 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.[3]

         At the time she was hired, Kerr notified her supervisors that she had Crohn's disease but did not identify any other disabilities.[4] 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.[5] 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."

         On 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.[6] 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.

         The 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 animals.

         Weir made the decision to terminate Kerr along with some input from Douglas, after considering information from Malloy. Dixon approved the termination.

         Following 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, and retaliation.

         Our 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 defense.

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.

         In her 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.

         "The 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.

         Kerr 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.

         Thus, 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 citation omitted).

         In its 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).

         Moreover, 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).

         In her 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 grade.
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.

         In 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 "didn't exist."

         Further, 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 ...


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