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Lampley v. The Missouri Commission on Human Rights

Supreme Court of Missouri, En Banc

February 26, 2019

HAROLD LAMPLEY and RENE FROST, Appellants,
v.
THE MISSOURI COMMISSION ON HUMAN RIGHTS and ALISA WARREN, Respondents.

          APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY The Honorable Patricia S. Joyce, Judge.

          George W. Draper III, Judge.

         Harold 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").[1] The circuit court's judgment is reversed, and the case is remanded.[2]

         Factual and Procedural History

         The 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.

         In his 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.

         In 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.

         In her 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.

         The 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.[3] The matters were closed administratively.

         Lampley 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.

         Noncontested Case

         In any 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).

         Section 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.[4] 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.

         The 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 discretion either.

         Following 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 …." Id.[5]

         In 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.

         This 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.

         Standard of Review

         This 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. banc 2009)).[6]

         The Act

         Section 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).

         Further, 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)).

         Applicability of Pittman

         The 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.

         The 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.

         Pittman, 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.

         Sex Discrimination

         In 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.

         The 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 sex.

         The Act 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)).

         Stereotyping 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)).

         Since 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).

         In 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.[7] 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.

         Federal 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 prescribe." Id.

         To 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 group …."

         Because 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.

         The 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 its inquiry.

         Lampley 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.

         Conclusion

         The 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.

         CONCURRING OPINION

          Paul C. Wilson, Judge.

         The 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 ...


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