R.M.A. (A MINOR CHILD), by his next friend: RACHELLE APPLEBERRY, Appellant,
BLUE SPRINGS R-IV SCHOOL DISTRICT and BLUE SPRINGS SCHOOL DISTRICT BOARD OF EDUCATION, Respondents.
FROM THE CIRCUIT COURT OF JACKSON COUNTY The Honorable Marco
FISCHER, CHIEF JUSTICE.
by his next friend, appeals the circuit court's judgment
dismissing with prejudice his petition alleging Defendants,
the Blue Springs R-IV School District ("School
District") and the Blue Springs School District Board of
Education ("School Board"), unlawfully
discriminated against him on the grounds of his sex in
violation of section 213.065 of the Missouri Human Rights Act
(MHRA). Because R.M.A.'s petition alleges facts that (if
taken as true, as required by the standard of review)
establish the elements of a claim under section 213.065, the
judgment of the circuit court is vacated, and the case is
remanded. This Court has jurisdiction pursuant to article V,
section 10, of the Missouri Constitution.
October 2014, R.M.A. filed a charge of discrimination with
the Missouri Commission on Human Rights
("Commission") alleging he was discriminated
against in a public accommodation on the grounds of his sex.
In July 2015, the Commission issued a notice of right to sue,
which terminated its administrative proceedings. Then,
following an unsuccessful attempt to obtain relief via a writ
of mandamus,  R.M.A. filed suit in October 2015 against
the School District and the School Board (collectively,
"Defendants"). R.M.A.'s petition alleges his
"legal sex is male" and that, by denying him
"access to the boys' restrooms and locker
rooms," Defendants have discriminated against him in the
use of a public accommodation "on the grounds of his
sex" in violation of section 213.065.2.
November 2015, Defendants filed a motion to dismiss for
failure to state a claim upon which relief could be granted.
The motion asserts two grounds for dismissal: (1) the MHRA
does not cover claims based on gender identity and (2)
Defendants are not "persons" as defined by section
213.010(14) and used in section 213.065.2. From September
2015 through May 2016, both R.M.A. and Defendants made
numerous filings with the circuit court regarding
Defendants' motion to dismiss. Then, in June 2016, the
circuit court sustained Defendants' motion to dismiss
without explanation and entered judgment dismissing
R.M.A.'s petition with prejudice. This timely appeal
courts review "a trial court's grant of a motion to
dismiss … de novo." Ward v. W. Cty.
Motor Co., Inc., 403 S.W.3d 82, 84 (Mo. banc 2013).
"A motion to dismiss for failure to state a claim on
which relief can be granted is an attack on the
plaintiff's pleadings." In re T.Q.L., 386
S.W.3d 135, 139 (Mo. banc 2012). "Such a motion is only
a test of the sufficiency of the plaintiff's
petition." Id. "When considering whether a
petition fails to state a claim upon which relief can be
granted, this Court must accept all properly pleaded facts as
true, giving the pleadings their broadest intendment, and
construe all allegations favorably to the pleader."
Bromwell v. Nixon, 361 S.W.3d 393, 398 (Mo. banc
2012). "The Court does not weigh the factual allegations
to determine whether they are credible or persuasive."
Id. "Instead, this Court reviews the petition
to determine if the facts alleged meet the elements of a
recognized cause of action …." Id.
(quotation marks omitted).
R.M.A. asserts he has stated a claim under section 213.065.2,
which, in relevant part, provides: "It is an unlawful
discriminatory practice for any person, directly or
indirectly, to refuse, withhold from or deny any other person
… advantages, facilities, services, or privileges made
available in any place of public accommodation … or to
segregate or discriminate against any such person in the use
thereof on the grounds of … sex …."
Therefore, the elements of a public accommodation sex
discrimination claim under section 213.065 are:
(1) plaintiff is a member of a class protected by section
(2) plaintiff was discriminated against in the use of a
public accommodation (as defined by section 213.010); and
(3) plaintiff's status as a member of a protected class
was a contributing factor in that discrimination.
Cf. Midstate Oil Co., Inc. v. Mo. Comm'n on Human
Rights, 679 S.W.2d 842, 846 (Mo. banc 1984) (holding
elements of an employment sex discrimination claim under
section 213.055 are: "that complainant [(1)] was a
member of a class protected by § 296.020.1; [(2)] that
she was discharged; and [(3)] that a gender-related trait -
pregnancy - was a factor in respondent's decision to
often said, Missouri is a fact-pleading state. ITT
Commercial Fin. Corp. v. Mid-Am. Marine Supply Co., 854
S.W.2d 371, 379-80 (Mo. banc 1993). But the facts that must
be pleaded are the ultimate facts, not evidentiary facts.
Scheibel v. Hillis, 531 S.W.2d 285, 290 (Mo. banc
1976). Ultimate facts are those the jury must find to return
a verdict for the plaintiff. Johnson v. Auto Handling
Corp., 523 S.W.3d 452, 463 (Mo. banc 2017) (concluding
"a not-in-MAI instruction must follow substantive law by
submitting the ultimate facts necessary to sustain a
verdict") (quotation marks and alteration omitted).
is no Missouri Approved Instruction (MAI) for submitting a
plaintiff's public accommodation claim under section
213.065 to a jury. But MAI 38.01(A), which applies to
employment discrimination claims under section 213.055, can
be made applicable with only minor modifications. Using MAI
38.01(A) as the starting point, therefore, a verdict director
in this case would state (in substance if not in form):
verdict must be for plaintiff [R.M.A.] if you believe:
First, defendants [School District and School Board] denied
plaintiff full and equal use and enjoyment of the males'
restroom and locker room facilities at defendants'
Second, plaintiff's male sex was a contributing factor in
such denial, and
Third, as a direct result of such conduct, plaintiff
these elements identified, the analysis required to resolve
R.M.A.'s appeal is simple and
straightforward. This analysis, of course, requires a
faithful application of the standard of review. See,
e.g., In re T.Q.L., 386 S.W.3d at 139 ("[T]his
Court assumes that the allegations set forth are true and
liberally grants the plaintiff reasonable inferences based on
first element is the defendants denying the plaintiff
"full and equal use and enjoyment" of a public
accommodation. § 213.065.1. R.M.A. alleges Defendants
have denied him (and, in 2015 when the petition was filed,
were continuing to deny him) "access to the boys'
restrooms and locker rooms." Petition at ¶ 31,
R.M.A. v. Blue Springs School R-IV Dist. (No.
1516-CV20874) (Cir. Court Jackson County, Sept. 25, 2015).
See also id. at ¶ 27 (alleging "Defendants
refused to give R.M.A. access to the boys' locker room
and restrooms when he requested such access while attending
Delta Woods Middle School"); id. at ¶ 40
(alleging Defendants "refused to give him access to the
boys' locker rooms"); id. at ¶ 42
(R.M.A. "has been required to use separate bathrooms
from other boys on a daily basis and has been denied access
to the boys' locker room if he wishes to participate in
boys' P.E. or athletic activities."). A school's
restrooms and locker rooms constitute public accommodations
as defined in section 213.010(15)(e). Thus, R.M.A.'s petition
alleges facts sufficient to satisfy this first element.
second element is the plaintiff's membership in a
protected class. Section 213.065 protects the following
classes: "race, color, religion, national origin, sex,
ancestry, or disability," and the petition specifically
alleges that "R.M.A.'s legal sex is male."
Petition at ¶ 25. Accordingly, R.M.A.'s petition
pleads facts sufficient to satisfy the second
third element is that plaintiff's sex was a
contributing (or motivating) factor in the denial of his use
of a public accommodation. § 213.065.2. R.M.A. alleges
he was "discriminated against in his use of a public
accommodation on the grounds of his sex." Petition at
¶ 50. See also id. at ¶ 35
("Defendants have discriminated and continue to
discriminate against Plaintiff R.M.A. based on his
sex."); id. at ¶ 43 ("Plaintiff
received different and inferior access to public facilities