United States District Court, W.D. Missouri, Western Division
ORDER AND OPINION GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
D. SMITH, SENIOR JUDGE.
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.
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
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”). Plaintiff is responsible for, among other
things, checking the identification of individuals entering
the federal building to prevent unauthorized access to the
PSO, Plaintiff is required to comply with Defendant's job
requirements as well as the requirements FPS imposes upon
Defendant. 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
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.
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.
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
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.
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.
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
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).
Applicability of Amendments to the MHRA
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
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. 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
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).
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 ...