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Lampley v. Missouri Commission on Human Rights

Court of Appeals of Missouri, Western District, Second Division

October 24, 2017

HAROLD LAMPLEY AND RENE FROST; Appellants,
v.
MISSOURI COMMISSION ON HUMAN RIGHTS, AND ALISA WARREN, EXECUTIVE DIRECTOR, MISSOURI COMMISSION ON HUMAN RIGHTS, Respondents. AMERICAN CIVIL LIBERTIES UNION OF MISSOURI, Amicus Curiae,

         Appeal from the Circuit Court of Cole County, Missouri The Honorable Patricia S. Joyce, Judge

          Before Karen King Mitchell, Presiding Judge, Gary D. Witt, Judge, Anthony Rex Gabbert, Judge

          ANTHONY REX GABBERT, JUDGE.

         Harold Lampley and Rene Frost appeal a grant of summary judgment in favor of the Missouri Commission on Human Rights ("MCHR") on their consolidated discrimination and retaliation claims. They raise two points on appeal. Point I contends the trial court erred in finding their claims were based on sexual orientation and not sex. Point II contends the trial court abused its discretion, because competent substantial evidence did not support the MCHR's conclusion that sexual orientation was the basis of their claims. We reverse and remand.

         BACKGROUND

         In 2014, Lampley filed charges of sex discrimination and retaliation against his employer, the State of Missouri's Office of Administration Child Support Enforcement Division. The charges were made pursuant to Sections 213.055(1) and 213.070(2) of the Missouri Human Rights Act ("MHRA") and filed with the Equal Employment Opportunity Commission ("EEOC") and the MCHR, per their work-share agreement.[1] Lampley alleges his employer discriminated against him based on sex, because his behavior and appearance contradicted the stereotypes of maleness held by his employer and managers. These stereotypes, Lampley argues, motivated his employer to harass him and treat him differently from similarly situated employees who conformed to gender stereotypes. He further argues he was grossly underscored in a performance evaluation in retaliation for his complaint. Frost, Lampley's close friend and co-worker, filed discrimination charges under Section 213.070(4) later in 2014, alleging retaliation based on her association with Lampley. The EEOC investigated both Appellants' complaints, but the MCHR terminated the proceedings, stating it lacked jurisdiction over claims based on sexual orientation. Though their original petitions acknowledge Lampley is gay, Appellants insist sex, and not sexual orientation, is the basis of their claims. The MCHR did not address Appellants' theory of sex discrimination evidenced by sex stereotyping. Lampley and Frost petitioned the trial court for administrative review (or, alternatively, mandamus to issue Right to Sue notices). The trial court consolidated their petitions and granted summary judgment in favor of the MCHR.

         POINT I

         In their first point, Appellants argue the trial court erred, because their claim of discrimination was based on sex and not, as the court determined, sexual orientation. We review the trial court's entry of summary judgment "essentially de novo, " ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Co., 854 S.W.2d 371, 376 (Mo. banc 1993). Evidence is viewed in the light most favorable to the nonmoving party, which is given all reasonable inferences from the record in determining whether there is any genuine issue of material fact. Hale ex rel. Hale v. City of Jefferson, 6 S.W.3d 187, 195 (Mo. App. 1999). "Summary 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. Maryland Heights, 231 S.W.3d 814, 818 (Mo. banc 2007) (citation omitted). "Summary judgment should not be granted unless evidence could not support any reasonable inference for the non-movant." Id. Because evidence of sex stereotyping can support a reasonable inference of sex discrimination, we conclude there remain genuine issues of material fact precluding summary judgment.

         Appellants Have Stated a Claim of Sex Discrimination

         The relevant language of Section 213.055 provides it is unlawful "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of . . . sex[.]" Discrimination because of sexual orientation is not prohibited. Pittman v. Cook Paper Recycling Corp., 478 S.W.3d 479, 483 (Mo. App. 2015). Thus, the question before us is whether Appellants have stated a discrimination claim based on sex. We find Appellants have consistently done so.

         In his initial complaint to the EEOC and the MCHR, Lampley checked the boxes for "SEX" and "RETALIATION" as the bases for his discrimination claim. He did not check "OTHER." In his Petition for Administrative Review (or Mandamus), Lampley alleged his employer violated his rights under the MHRA "by discriminating against him based on sex[.]" Frost consistently based her discrimination and retaliation claims on her association with Lampley as a member of the protected class of sex. In their appeal to this court, Appellants again maintain they suffered discrimination based on sex. Appellants have never stated a claim of discrimination based on sexual orientation or another unprotected class. Lampley's sexual orientation is incidental to the underlying claim of sex discrimination, which Appellants contend was evidenced by sex stereotyping.

         Stereotyping as Evidence of Discrimination

         Sex stereotyping as a theory of sex discrimination was first articulated in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In Price Waterhouse, a female senior manager in an accounting firm was denied partnership in the firm, because partners considered her insufficiently feminine. Id. at 235. A plurality of the Supreme Court held that an adverse employment action motivated by such stereotyping was actionable sex discrimination under Title VII, declaring:

we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for 'in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of ...

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