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Fassett v. Vendtech-SGI, LLC

United States District Court, W.D. Missouri, Western Division

February 6, 2018

STANFORD FASSETT, Plaintiff,
v.
VENDTECH-SGI, LLC, Defendant.

          ORDER AND OPINION GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          ORTRIE D. SMITH, SENIOR JUDGE.

         Pending is Defendant Vendtech-SGI, LLC's Motion for Summary Judgment. Doc. #40. For the following reasons, Defendant's motion is granted in part and denied in part.

         I. BACKGROUND [1]

         Defendant provides security services at federal facilities pursuant to a federal government contract. Defendant's contract with the Federal Protective Services (“FPS”) consists of a Statement of Work, which includes the rights and responsibilities of FPS and Defendant, as well as the qualification and performance standards Defendant's employees must meet. Among other things, the Statement of Work allows FPS to direct the suspension of any of Defendant's employees from working under the contract for a variety of reasons. The Statement of Work also requires Defendant to report any adverse information concerning any of its employees to FPS, and permits Defendant to appeal FPS's decision to remove one of Defendant's employees.

         In June 2012, Plaintiff Stanford Fassett, who is over the age of forty and identifies as a black male, began working for Defendant as a Protective Security Officer (“PSO”).[2] Plaintiff is responsible for, among other things, checking the identification of individuals entering the federal building to prevent unauthorized access to the building.

         As a PSO, Plaintiff is required to comply with Defendant's job requirements as well as the requirements FPS imposes upon Defendant.[3] Plaintiff received FPS's Security Manual and Resources Tool (“SMART”) Book, which includes guidelines regarding work-related conduct and prohibits sexual harassment. According to the SMART Book, “[i]f a government employee or visitor complains to…FPS about sexual harassment by a PSO, FPS will initiate an investigation, and it is probable that the employer will be asked to make a determination about removing the individual(s) from the contract until the investigation is completed.” Doc. #41-8, at 6. Defendant's employee handbook also sets forth a zero tolerance policy for harassment, and states “complaints of harassment will be investigated promptly and in an impartial manner.” Doc. #44-21, at 3. Pursuant to the collective bargaining agreement, which also governs the terms and conditions of Plaintiff's employment, Defendant will investigate the facts leading to a decision by FPS to request the removal of an employee.

         According to Plaintiff, on April 22, 2015, a Caucasian female government employee entered the federal building where Plaintiff worked, walking at an abrupt pace, preventing Plaintiff from seeing her badge. Plaintiff did not recall seeing the employee prior to that date. Plaintiff asked the employee to see her badge; she did not respond. He then tapped the employee's shoulder, and asked to see her badge. The employee turned around, and said, “don't ever touch me.” Again, Plaintiff asked the employee to see her badge. She showed her badge, and walked away.

         Later that same day, the employee alleged Plaintiff harassed her. The employee reported she showed her badge to the guard before going through the metal detectors. According to the employee, the guard “smiled and touched my shoulder.” She told him, “[d]on't ever touch me again, ” and kept walking. She reported the guard winked at her twice earlier that week or the previous week. Plaintiff was informed of the complaint, and was told to provide a statement. His statement was provided to Defendant and FPS. A coworker also provided a statement. Plaintiff was informed the video footage of the event would be reviewed.

         FPS was made aware of the employee's complaint, and directed Defendant to suspend Plaintiff from working under Defendant's contract with FPS, pending the outcome of FPS's investigation into the allegation. Defendant informed Plaintiff of the suspension without pay pending FPS's investigation. On April 27, 2015, Plaintiff answered additional questions about the April 22, 2015 incident. Defendant neither asked FPS to reconsider its directive to remove Plaintiff nor appealed FPS's directive.

         While suspended from work, Plaintiff filed a charge of discrimination alleging, among other things, his suspension was discriminatory and retaliatory. Throughout his suspension, Plaintiff contacted Defendant on numerous occasions asking about his suspension. He was told there was nothing he or Defendant could do because FPS was investigating the complaint. Defendant contacted FPS when the alleged incident occurred and again in or about October 2015, inquiring about the investigation. Plaintiff was contacted by a federal investigator in November 2015.

         On or about December 8, 2015, Defendant received a letter from FPS stating its investigation was complete, and the results failed to provide sufficient evidence to support the allegation of sexual harassment against Plaintiff. Plaintiff's suspension was lifted, and he returned to work at the same location with the same rate of pay. Plaintiff, however, did not receive the vacation time allotment to which he believes he was entitled based upon his seniority. Plaintiff continues to be employed by Defendant.

         On August 10, 2016, Plaintiff filed suit in the Circuit Court of Jackson County, Missouri, alleging Defendant violated the Missouri Human Rights Act (“MHRA”) by discriminating against him on the basis of his race and age, and retaliating against him. Doc. #1-1. Defendant removed the matter to this Court. Doc. #1. Defendant now moves for summary judgment in its favor on all of Plaintiff's claims.

         II. STANDARD

         A moving party is entitled to summary judgment on a claim only if there is a showing that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Williams v. City of St. Louis, 783 F.2d 114, 115 (8th Cir. 1986). “[W]hile the materiality determination rests on the substantive law, it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Wierman v. Casey's Gen. Stores, 638 F.3d 984, 993 (8th Cir. 2011) (quotation omitted). The Court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of all inferences that may be reasonably drawn from the evidence. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588-89 (1986); Tyler v. Harper, 744 F.2d 653, 655 (8th Cir. 1984). “[A] nonmovant may not rest upon mere denials or allegations, but must instead set forth specific facts sufficient to raise a genuine issue for trial.” Nationwide Prop. & Cas. Ins. Co. v. Faircloth, 845 F.3d 378, 382 (8th Cir. 2016) (citations omitted).

         III. DISCUSSION

         A. Applicability of Amendments to the MHRA

         The MHRA was amended, effective August 28, 2017. There are two amendments to the MHRA that, if applicable, affect the Court's consideration of the pending motion: (1) the modification of the causation standard, and (2) the legislature's instruction to courts to apply a burden-shifting framework when analyzing a summary judgment motion.

         First, the causation standard was changed from “contributing factor” to “motivating factor.” Mo. Rev. Stat. § 213.101.4 (2017) (expressly abrogating the contributing factor standard); Mo. Rev. Stat. § 213.111.5 (2017) (stating a plaintiff bears the burden of proving the alleged unlawful action “was made or taken because of his or her protected classification and was the direct proximate cause of the claimed damages.”); Mo. Rev. Stat. § 213.010(2) (2017) (defining “because” or “because of” “as it relates to the adverse decision or action, the protected criterion was the motivating factor”). Second, the amended MHRA requires courts to use the McDonnell Douglas burden-shifting framework.[4] Mo. Rev. Stat. § 213.101.3 (2017) (stating “the court shall consider the burden-shifting analysis of McDonnell Douglas…to be highly persuasive for analysis in cases not involving direct evidence of discrimination.”); Mo. Rev. Stat. § 213.101.4 (2017) (abrogating the Missouri Supreme Court's decision in Daugherty v. City of Maryland Heights, 231 S.W.3d 814 (Mo. banc 2007), which abandoned the McDonnell Douglas burden-shifting framework as applied to the MHRA).

         The Court must determine whether these amendments apply retrospectively to this matter, which was filed in November 2016. The Missouri Constitution states no law “retrospective in its operation…can be enacted.” Mo. Const. art. I, sec. 13. “The constitutional bar on civil laws retrospective in their operation has been a part of Missouri law since this State adopted its first constitution in 1820.” Doe v. Phillips, 194 S.W.3d 833, 850 (Mo. banc 2006). The Missouri Supreme Court presumes “statutes operate prospectively unless legislative intent for retrospective application is clear from the statute's language or by necessary and unavoidable implication.” State ex rel. Schottel v. Harman, 208 S.W.3d 889, 892 (Mo. banc 2006) (citations omitted). A statute will be applied retrospectively if (1) the legislature clearly expressed an intent that the statute be applied retrospectively, or (2) the statute is procedural or remedial (not substantive) in its operation. Dalba v. YMCA of Greater St. Louis, 69 S.W.3d 137, 140 (Mo.Ct.App. 2002) (citation omitted).

         The legislature did not clearly express an intent to apply these amendments retrospectively. Thus, the Court must examine whether the amendments are procedural or substantive. “Substantive laws fix and declare primary rights and remedies of individuals concerning their person or property, while remedial statutes affect only the remedy provided, including laws that substitute a new or more appropriate remedy for the enforcement of an existing right.” Files v. Wetterau, Inc., 998 S.W.2d 95, 97-98 (Mo.Ct.App. 1999) (citing Faulkner v. St. Luke's Hosp.,903 S.W.2d 588, 592 (Mo.Ct.App. 1995)); compare State ex rel. St. Louis-San Francisco Ry. Co. v. Buder, 515 S.W.2d 409, 411 (Mo. banc 1974) (precluding retrospective application of the amended wrongful death statute, which removed the recovery limitation) with State ex rel. LeNeve v. Moore, 408 S.W.2d 47, 49 (Mo. banc 1966) (allowing retrospective application of a statute that permitted ...


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