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. #39. For the following reasons,
Defendant's motion is granted in part and denied in part.
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.
2012, Plaintiff Kaseem Hurley, who is over the age of forty
and identifies as a black male, began working for Defendant
as a Protective Security Officer
(“PSO”).Plaintiff, who is assigned to the Visitor
Center located on Bannister Road in Kansas City, Missouri, is
responsible for providing security services and protecting
the security of the facility at which he is stationed.
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. #40-8, 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. #43-18, at 3. Pursuant to the collective bargaining
agreement, which also governs the terms and conditions of
Plaintiff's employment, Defendant “will endeavor to
investigate the facts that resulted in” FPS's
action. Doc. #43-14, at 9.
April 20, 2015, a female federal employee lodged a complaint
against Plaintiff. She alleged that while she was walking
through the Visitor Center carrying a beverage, Plaintiff
asked if he could have a drink of her beverage. The employee
hesitated for a moment to figure out if Plaintiff was
serious. When Plaintiff was offered a drink, Plaintiff said,
“I didn't want a drink, I only wanted to have the
straw since your tongue had been there.” The employee
reported Plaintiff's comment made her feel
“extremely uncomfortable, ” and she quickly
April 21, 2015, FPS directed Defendant to suspend Plaintiff
from working under Defendant's contract with FPS, pending
the outcome of an FPS investigation into an allegation that
Plaintiff sexually harassed a female employee. Defendant did
not request reconsideration of FPS's decision to suspend
April 22, 2015, while at his post, Plaintiff was directed to
report to the office. At the office, the employee's
complaint was read to Plaintiff, and Plaintiff was informed
he was suspended pending an investigation by FPS. On April
24, 2015, Plaintiff provided the following statement to
On 20Apr15 around 1240 while on duty at 2306 Bannister Rd, at
the visitor center a female employee entered the visitor
center carrying two beverages in styrofoam cups, one with a
straw and the other one without a straw.I greeted the
employee with, “how[']s it going, you bought me a
drink?[”] and she proceeded to offer me the cup with
the straw in it and I stated that “I didn't want a
drink especially the one that she already had the straw in
her mouth, besides I can't drink anything while on
post.”[S]he went on saying something about she'd
let me drink from her straw and how people in her office
always want to take the lid off the cup to share with one
another, and that she do[es]n't mind sharing straws.I
reiterated that I can't drink while on duty anyway.
She left and was not in a big rush, my intention was only to
greet her as she entered with two beverages.I never wanted
any of her beverage[s] neither did I [i]ntend to make it
appear as if I was coming on to her or make her feel
uncomfortable. This is a true and accurate statement to the
best of my memory.
Doc. #43-8, at 2 (spacing as contained in original).
Defendant sent Plaintiff's statement to FPS.
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 Defendant could do about the suspension. Defendant
contacted FPS when the alleged incident occurred, and again
in or about October 2015, inquiring about the investigation.
Plaintiff was not interviewed by anyone with FPS until
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 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 ...