FROM THE CIRCUIT COURT OF COLE COUNTY The Honorable Patricia
S. Joyce, Judge.
W. Draper III, Judge.
Lampley (hereinafter, "Lampley") and Rene Frost
(hereinafter, "Frost") appeal from the circuit
court's grant of summary judgment in favor of the
Missouri Commission on Human Rights (hereinafter, "the
Commission") on their consolidated allegations of
violations of the Missouri Human Rights Act, section 213.010
et seq., RSMo 2000 (hereinafter, "the
Act"). The circuit court's judgment is
reversed, and the case is remanded.
and Procedural History
facts viewed in the light most favorable to Lampley and Frost
are as follows: In July 2014, Lampley filed charges of sex
discrimination and retaliation against his employer, the
State of Missouri, Department of Social Services Child
Support Enforcement Division (hereinafter,
"Employer"), pursuant to sections 213.055.1(1) and
213.070.1(2) of the Act. Lampley's "Charge of
Discrimination" form submitted to the Commission
provided a list of discriminatory actions and instructed the
complainant to check the appropriate boxes. Lampley checked
boxes indicating he was discriminated against based on
"sex" and "retaliation." Lampley also
provided a more detailed factual summary of his claims.
factual recitation, Lampley stated he is a gay man. Lampley
elaborated he does not exhibit the stereotypical attributes
of how a male should appear and behave. Lampley alleged other
similarly situated co-workers, those who were not gay and
exhibited stereotypical male or female attributes, were
treated differently. Because he exhibited non-stereotypical
behaviors, Lampley asserted he was subjected to harassment at
work. Further, Lampley alleged he was grossly underscored in
a performance evaluation in retaliation for his complaints.
December 2014, Frost submitted her "Charge of
Discrimination" form to the Commission. The charge of
discrimination contained the same list of discriminatory
actions and instructions as Lampley's. Frost checked
boxes indicating she was discriminated due to
"retaliation" and "other." Following the
indication of "other" discrimination, Frost wrote,
"Association with person protected by section 213.010
et seq." Frost also provided a more detailed
factual summary of her claims.
factual recitation, Frost detailed her close friendship with
Lampley, noting his non-stereotypical attributes of how a
male should appear and behave. Frost alleged she filed a
complaint against Employer for violating its policy and
breaching confidentiality after publicly announcing her
performance review. Frost believes Employer's conduct
stemmed from her friendship with Lampley. After filing her
complaint, Employer moved Frost's desk away from Lampley
and other co-workers with whom she collaborated. Frost was
informed she and Lampley were no longer allowed to eat lunch
together. Unlike other employees, Frost and Lampley had
vacation time docked for meeting with their union
representative. Frost alleged she continued to suffer from
Employer's verbal abuse, threats about her performance
review, and other harassing behaviors.
Commission opened investigations into Lampley and Frost's
claims. The Commission's investigator assumed
Lampley's claim of discrimination based on sex meant
"sexual orientation." The investigator concluded
sexual orientation is not protected by the Act. Similarly,
the investigation summary of Frost's claim asserted her
claim of "association with someone who is gay" is
not protected by the Act. Subsequently, the Commission
terminated its proceedings in both matters in 2015, stating
Lampley's and Frost's complaints do not involve a
category covered by the Act. The matters were closed
and Frost filed petitions for administrative review or,
alternatively, a writ of mandamus, asking the circuit court
to direct the Commission to issue notices of right-to-sue
letters. Both petitions made the same averments as in their
respective charges of discrimination. The circuit court
consolidated their petitions. The parties filed cross-motions
for summary judgment. The circuit court sustained the
Commission's summary judgment motion, finding
Lampley's and Frost's claims fail under Pittman
v. Cook Paper Recycling Corp., 478 S.W.3d 479 (Mo. App.
W.D. 2015). Lampley and Frost appeal.
administrative matter, the determination of whether the
proceeding was contested or noncontested is determined as a
matter of law. City of Valley Park v.
Armstrong, 273 S.W.3d 504, 506 (Mo. banc 2009).
Contested cases provide the parties with an opportunity for a
formal hearing with the presentation of evidence, including
sworn testimony of witnesses and cross-examination of
witnesses, and require written findings of fact and
conclusions of law. The review of a contested case is a
review by the trial court of the record created before the
administrative body …. Non-contested cases do not
require formal proceedings or hearings before the
administrative body. As such, there is no record required for
review. In the review of a non-contested decision, the
circuit court does not review the administrative record, but
hears evidence, determines facts, and adjudges the validity
of the agency decision.
Furlong Co., Inc. v. City of Kansas City, 189 S.W.3d
157, 165 (Mo. banc 2006) (internal citations omitted).
Because there was no hearing at the Commission, this case is
a noncontested case. Kinzenbaw v. Dir. of Rev., 62
S.W.3d 49, 52 (Mo. banc 2001).
536.150 governs the standard of judicial review for
noncontested cases. Armstrong, 273 S.W.3d at 508.
While Lampley's and Frost's petitions stated they
were seeking mandamus review pursuant to section 536.150,
review of a noncontested case may be "by suit for
injunction, certiorari, mandamus, prohibition or other
appropriate action …." Section
536.150.1. There is no limitation, as suggested by
the dissenting opinion, a noncontested case must proceed by
writ of mandamus because the statute governing noncontested
review clearly delineates multiple avenues to pursue relief.
"The circuit court does not review the record for
competent and substantial evidence, but instead conducts a
de novo review in which it hears evidence on the
merits, makes a record, determines the facts and decides
whether the agency's decision is unconstitutional,
unlawful, unreasonable, arbitrary, capricious or otherwise
involves an abuse of discretion." Id.
dissenting opinion finds this case is procedurally deficient
based upon the guidelines set forth in the
concurring opinion in U.S. Dept. of Veterans
Affairs v. Boresi, 396 S.W.3d 356, 364 (Mo. banc 2013).
The concurring opinion in Boresi sets forth the
procedure for mandamus in the circuit court and suggests a
court should not issue a writ that fails to follow that
procedure strictly. Id. The Boresi
concurring opinion is not binding on this Court. Canary
Taxicab Co. v. Terminal Ry. Ass'n of St. Louis, 294
S.W. 88, 92 (Mo. banc 1927). The principal opinion
acknowledged the proper writ procedure, but noted the parties
and the circuit court's failure to follow the writ
procedure strictly, stating,
[T]his Court is exercising its discretion to consider the
matter on the merits and issue the writ because the parties,
who already have litigated the matter fully, were not at
fault and should not be required to initiate a new writ
proceeding due to the circuit court's failure to follow
the procedure proscribed by the rules.
Boresi, 396 S.W.3d at 359 n.1. Further, the
principal opinion recognized this Court is not required to
exercise discretion in future matters. Id. However,
the Court did not foreclose the possibility of exercising its
Boresi, this Court was presented with two situations
wherein the parties failed to follow the proper writ
procedure. See Tivol, 527 S.W.3d at 842 and
Bartlett, 528 S.W.3d 913, issued the same day in
2017. In Tivol, this Court opted to exercise its
discretion as in Boresi because the case was
litigated "as if the circuit court had issued a
preliminary order in mandamus and then denied the permanent
writ." Tivol, 527 S.W.3d at 842. Further, the
Court noted the lack of fault on the part of the parties and
the importance of the issues in the case. Id. Again
the Court cautioned, "Parties should not expect unending
tolerance from the appellate courts for such failures to
follow Rule 94.04, however, particularly when the question is
not of such general interest or when the parties were made
aware of the failure to follow Rule 94 …."
contrast, in Bartlett, "this Court declined to
exercise its discretion to treat the summons as a preliminary
order, for in that case the plaintiff told the clerk to issue
a summons rather than treat the matter as a writ and
repeatedly declined to follow the procedure applicable to
writs despite numerous motions by the State requesting the
court order the plaintiff to do so." Tivol, 527
S.W.3d at 842. The Court reiterated its warning from
Boresi: "This Court is not required to exercise
its discretion in like manner in the future."
Bartlett, 528 S.W.3d at 914. Then, this Court
dramatically declared the "future has now arrived."
Id. This Court did not announce that the arrival of
the future also meant an obliteration of the past. Neither
Boresi, Tivol, nor Bartlett
restricts this Court's ability to choose to exercise its
discretion, if appropriate, in another case.
case is more comparable to Tivol than to
Bartlett. None of the parties nor the circuit court
objected to or questioned the procedure. Additionally,
addressing charges of sex discrimination based upon sexual
stereotyping evidence is an important issue this Court has
not addressed. Most importantly, Lampley and Frost filed
their petitions in the circuit court in 2015. This
Court's 2017 guidance in Tivol and
Bartlett was not available at the time this case was
presented to the circuit court. Hence, while the litigants
should strive to follow the proper procedure in any
litigation, it is clear the participants in this case
believed they were acting properly. This Court will not
penalize them for failing to follow precedent not established
at the time.
Court's review of an appeal from summary judgment is
de novo. ITT Commercial Fin. Corp. v. Mid-Am.
Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc
1993). When considering an appeal from summary judgment, this
Court reviews the record in the light most favorable to the
party against whom judgment was entered and affords that
party the benefit of all reasonable inferences. Lewis v.
Gilmore, 366 S.W.3d 522, 524 (Mo. banc 2012). Summary
judgment is appropriate when the record demonstrates there
are no genuine issues of material fact and the moving party
is entitled to judgment as a matter of law. Hargis v. JLB
Corp., 357 S.W.3d 574, 577 (Mo. banc 2011).
"Summary judgment seldom should be used in employment
discrimination cases, because such cases are inherently
fact-based and often depend on inferences rather than on
direct evidence." Farrow v. Saint Francis Med.
Ctr., 407 S.W.3d 579, 588 (Mo. banc 2013) (quoting
Hill v. Ford Motor Co., 277 S.W.3d 659, 664 (Mo.
213.055.1(1)(a) provides it is an unlawful employment
practice "to discriminate against any individual with
respect to his [or her] compensation, terms, conditions, or
privileges of employment, because of … sex
…." "When reviewing cases under the [Act,
appellate courts] are guided by both Missouri law and any
federal employment discrimination (i.e., Title VII) case law
that is consistent with Missouri law." Diaz v.
Autozoners, LLC, 484 S.W.3d 64, 76 (Mo. App. W.D. 2015)
(quoting Tisch v. DST Sys., Inc., 368 S.W.3d 245,
252 n.4 (Mo. App. W.D. 2012)). The Act "is clear that if
an employer considers age, disability or other protected
characteristics when making an employment decision, an
employee has made a submissible case for
discrimination." Templemire v. W & M Welding,
Inc., 433 S.W.3d 371, 383 (Mo. banc 2014).
the Act is a remedial statute. Howard v. City of Kansas
City, 332 S.W.3d 772, 779 (Mo. banc 2011).
"Remedial statutes should be construed liberally to
include those cases which are within the spirit of the law
and all reasonable doubts should be construed in favor of
applicability to the case." Mo. Comm'n on Human
Rights v. Red Dragon Rest., Inc., 991 S.W.2d 161, 166-67
(Mo. App. W.D. 1999) (quoting State ex rel. Ford v.
Wenskay, 824 S.W.2d 99, 100 (Mo. App. E.D. 1992)).
circuit court relied on Pittman to justify the
Commission's termination of Lampley's and Frost's
claims. In Pittman, James Pittman (hereinafter,
"Pittman") asserted his employer discriminated
against him because he was a homosexual male. Pittman stated
he suffered disparaging comments about his lifestyle at work
and was treated more harshly than a heterosexual male when he
terminated his long-term relationship. Pittman, 478
S.W.3d at 481. Pittman claimed his employer "caused the
workplace to be an objectively hostile and abusive
environment based on sexual preference." Id.
Pittman brought a claim for sex discrimination under the Act,
alleging he was harassed and terminated from his employment
because of his sexual orientation. Id. at 482. The
circuit court dismissed Pittman's petition for failure to
state a claim. Id. at 480. A divided panel of the
Western District affirmed the circuit court's judgment,
finding the Act does not prohibit discrimination on the basis
of sexual orientation. Id. at 485.
circuit court in this case relied upon Pittman's
holding the Act does not include claims for sex
discrimination based upon sexual orientation and extended
that rationale to include claims for sex discrimination based
upon sex stereotyping. The circuit court reasoned sex
stereotyping, like sexual orientation, is not listed
specifically in the Act, and the Commission's exclusion
of Lampley and Frost's claims was reasonable.
however, declined to address whether sex discrimination based
on sex stereotyping was covered under the Act because that
claim was not at issue in Pittman. Contrary to the
circuit court's suggestion, Pittman provides no
support for the Commission's decision. Lampley's
sexual orientation was merely incidental to the sex
discrimination complaints filed. Lampley and Frost
specifically stated they were discriminated against on the
basis of sex because Lampley did not conform to generally
held sexual stereotypes. Because the Commission erroneously
characterized their claims as sexual orientation
discrimination, the circuit court's reliance on
Pittman is misplaced.
Lampley and Frost's charges of discrimination filed with
the Commission and in their petitions with the circuit court,
they alleged they were subjected to sex discrimination by
Employer because of Lampley's non-stereotypical
characteristics. Lampley and Frost assert the circuit court
erred in issuing summary judgment in favor of Employer
because the Act covers sex discrimination.
dissenting opinion wrongly characterizes Lampley and Frost as
only seeking relief from sexual stereotyping on appeal and
the underlying charge before the Commission was based upon
sexual orientation. This assertion is wrong. In both charges
of discrimination, Lampley and Frost stated Lampley was gay,
but this fact is incidental to the basis for the
discrimination. They asserted they were discriminated against
because Lampley does "not exhibit the stereotypical
attributes of how a male should appear and behave." They
also asserted, "Similarly situated co-workers …
are treated differently than [Lampley]. These similarly
situated co-workers are not gay, and they exhibit the
stereotypical attributes of how a male or female should
appear and behave." There was no allegation the
discrimination was based upon his sexual orientation.
Further, there are multiple allegations Lampley, and by
association Frost, was discriminated against because of his
clearly provides it is an unlawful employment practice for an
employer to discriminate on the basis of sex. Section
213.055.1(1)(a). For an employee to establish a prima
facie case of sex discrimination in the workplace, the
employee must demonstrate: (1) the employee was a member of a
protected class; (2) the employee was qualified to perform
the job; (3) the employee suffered an adverse employment
action; and (4) the employee was treated differently from
other similarly situated employees of the opposite sex.
Ressler v. Clay Cty., 375 S.W.3d 132, 141 (Mo. App.
W.D. 2012); Ruppel v. City of Valley Park, 318
S.W.3d 179, 185 (Mo. App. E.D. 2010). "The fourth
element of a prima facie discrimination case also
can be met if the employee provides 'some other evidence
that would give rise to an inference of unlawful
discrimination.'" Buchheit, Inc. v. Mo.
Comm'n on Human Rights, 215 S.W.3d 268, 277 (Mo.
App. W.D. 2007) (quoting Turner v. Gonzales, 421
F.3d 688, 694 (8th Cir. 2005)).
may give rise to an inference of unlawful discrimination upon
a member of a protected class. In Price Waterhouse v.
Hopkins, 490 U.S. 228, 235, 109 S.Ct. 1775, 1791, 104
L.Ed.2d 268 (1989), a female senior manager was denied
partnership after partners referred to her as
"macho" and needing "a course at charm
school." She was advised that to become a partner she
needed to "walk more femininely, talk more femininely,
dress more femininely, wear make-up, have her hair styled,
and wear jewelry." Id. at 251. The Supreme
Court recognized when an employer relies upon sex stereotypes
in its employment decisions, that evidence may support an
inference of sex discrimination. Id. at 235. The
Supreme Court explained, "[W]e are beyond the day when
an employer could evaluate employees by assuming or insisting
that they matched the stereotype associated with their group,
for '[i]n forbidding employers to discriminate against
individuals because of their sex, Congress intended to strike
at the entire spectrum of disparate treatment of men and
women resulting from sex stereotypes.'" Id.
at 251 (quoting Los Angeles Dep't of Water and Power
v. Manhart, 435 U.S. 702, 707, n.13, 98 S.Ct. 1370,
1375, n.13, 55 L.Ed.2d 657 (1978)).
Price Waterhouse, it is clear an employer who
discriminates against "women because, for instance, they
do not wear dresses or makeup, is engaging in sex
discrimination because the discrimination would not occur
but for the victim's sex." Lewis v.
Heartland Inns of Am., L.L.C., 591 F.3d 1033, 1040 (8th
Cir. 2010) (emphasis in original) (quoting Smith v. City
of Salem, Ohio, 378 F.3d 566, 574 (6th Cir. 2004)).
Further, "Price Waterhouse applies with equal
force to a man who is discriminated against for acting too
feminine." Nichols v. Azteca Rest. Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001).
Christiansen v. Omnicron Group, Inc., 852 F.3d 195,
199 (2d Cir. 2017), the Second Circuit upheld the district
court's holding that sexual orientation discrimination is
not protected by Title VII, but reversed its holding
regarding the plaintiff's sexual stereotyping claim,
relying on Price Waterhouse's analysis to find a
homosexual male had a cognizable claim under Title VII. The
court found "gay, lesbian, and bisexual individuals do
not have less protection under Price
Waterhouse against traditional gender stereotype
discrimination than do heterosexual individuals."
Id. at 200-01 (emphasis in original). However,
standing alone, the characteristic of being gay, lesbian, or
bisexual cannot sustain a sex stereotyping claim.
Id. at 201. The court found, under Price
Waterhouse, "at a minimum, 'stereotypically
feminine' gay men could pursue a gender
stereotyping claim under Title VII (and the same principle
would apply to 'stereotypically masculine' lesbian
women)." Id. at 200.
courts have distinguished between discrimination based on
sexual orientation and sex discrimination as evidenced by sex
stereotyping. They have held Price Waterhouse's
sex stereotyping analysis applies to homosexual people who
allege discrimination based upon their failure to conform to
sex stereotypes. While a Missouri court has not had the
opportunity to address a sex discrimination claim based upon
sexual stereotyping until now, the rules and regulations
promulgated by the Commission support applying this analysis
here as well. The Commission has the power and duty to
"adopt, promulgate, amend, and rescind suitable rules
and regulations to carry out the provisions of this chapter
and the policies and practices of the [C]ommission in
connection therewith." Section 213.030.1(6). When a
complaint is filed with the Commission, the Commission needs
to investigate the complaint properly. Section 213.075.3.
"The investigation, determination of probable cause and
conciliation shall be conducted according to such rules,
regulations and guidelines as the [C]ommission shall
comply with its statutory duties, the Commission established
Rule 8 CSR 60-3.040. Rule 8 CSR 60-3.040(2)(A)2 provides an
employer may not refuse "to hire an individual based on
stereotyped characterizations of the sexes …. The
principle of nondiscrimination requires that individuals be
considered on the basis of individual capacities and not on
the basis of any characteristics generally attributed to the
the Commission's promulgated rules already characterize
sexual stereotyping as an unlawful hiring practice, it
follows that sexual stereotyping during employment is an
unlawful employment practice. These rules are an application
of the holdings of the United States Supreme Court and other
federal courts. Accordingly, under these regulations and
federal law, an employee who suffers an adverse employment
decision based on sex-based stereotypical attitudes of how a
member of the employee's sex should act can support an
inference of unlawful sex discrimination. Sexual orientation
is incidental and irrelevant to sex stereotyping. Sex
discrimination is discrimination, it is prohibited by the
Act, and an employee may demonstrate this discrimination
through evidence of sexual stereotyping.
Commission had the statutory authority to investigate
Lampley's and Frost's claims, but the Commission
unreasonably and erroneously assumed that because Lampley was
homosexual, there was no possible sex discrimination claim
other than one for sexual orientation. Lampley and Frost
should have been allowed to demonstrate whether the alleged
sexual stereotyping motivated Employer's alleged
discriminatory conduct. The Commission had the authority to
issue a right-to-sue letter so the trier of fact could then
determine whether their claims for sex discrimination were
due to sexual stereotyping. However, the Commission
terminated its investigation into Lampley and Frost's
claims of sex discrimination, thereby precluding any
investigation of genuine issues of material fact. The circuit
court's grant of summary judgment in favor of the
Commission was incorrect; the Commission erred in terminating
and Frost request reversal of the Commission's
determination that it had no authority to investigate their
claims and an order directing the Commission to reopen the
administrative proceedings. However, the time for
administrative investigation has expired because the
Commission is limited to 180 days to process a complaint once
the complaint is filed. Section 213.111.1. Once the 180-day
time limitation has expired, the Commission must cease all
activity on a complaint and issue a right-to-sue letter.
Id.; Tivol, 527 S.W.3d at 845. Because it
has been more than 180 days since Lampley and Frost filed
their charges of discrimination, the Commission has no
authority to investigate their claims. The appropriate remedy
would be to construe their request as seeking right-to-sue
letters and direct the Commission to provide such letters.
circuit court's judgment is reversed, and the case is
remanded. Upon remand, the circuit court is directed to
remand to the Commission with instructions to issue Lampley
and Frost right-to-sue letters.
Breckenridge and Stith, JJ., concur; Wilson, J., concurs in
separate opinion filed; Russell, J., concurs in opinion of
Wilson, J.; Fischer, C.J., concurs in part and dissents in
part in separate opinion filed; Powell, J., dissents in
separate opinion filed.
C. Wilson, Judge.
question presented in this case is whether the charges filed
before the Missouri Commission on Human Rights
("Commission") by Harold Lampley
("Lampley") and Rene Frost ("Frost")
(collectively, "the Claimants") properly invoke the
Commission's jurisdiction because they state claims under
the Missouri Human Rights Act (MHRA). Those claims do invoke
the Commission's jurisdiction and, therefore, the
principal opinion is correct in holding that the circuit