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Hurley v. Vendtech-SGI, LLC

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

February 6, 2018

KASEEM HURLEY, 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. #39. 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 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”).[2]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.

         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. #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.

         On 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 walked away.

         On 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 Plaintiff.

         On 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 Defendant:

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.

         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 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 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 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 ...


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