Court of Appeals of Missouri, Western District, Second Division
ROBERT L. DAVIS, Appellant,
WALGREEN COMPANY, et al., Respondents.
from the Circuit Court of Jackson County The Honorable Joel
P. Fahnestock, Judge
Before: Alok Ahuja, P. J., and Thomas H. Newton and Mark D.
L. Davis appeals the circuit court's grant of summary
judgment in favor of his former employer, Walgreen Co.
("Walgreens"), and two Walgreens' employees,
Joey Jaramillo and Willow Cope (collectively "the
Defendants"). Davis sued the Defendants in the Circuit
Court of Jackson County for employment discrimination and
retaliation in violation of the Missouri Human Rights Act,
chapter 213, RSMo. Davis contends the circuit court erred in
granting summary judgment for the Defendants, because genuine
issues of material fact exist concerning his discrimination
and retahation claims. Because we conclude that Davis failed
to properly controvert the Defendants' showing that he
was terminated for non-discriminatory reasons, we affirm.
reasons explained in § I of our Analysis, below, we
recite the facts as stated in the Defendants' statement
of uncontroverted materials facts supporting their motion for
August 2013, Davis transferred to a Walgreens store located
in Belton, where he was employed as an Assistant Store
Manager. On September 12, 2013, an employee in the Belton
store called the Walgreens compliance hotline and lodged a
complaint against Davis. In her complaint, the employee
alleged that Davis had sexually harassed her, was
unprofessional toward her, and had acted in a physically
threatening manner. Jaramillo, the District Loss Prevention
Manager, was assigned to investigate the employee's
September 17, 2013, Jaramillo interviewed the employee and
took a written statement from her. In her written statement,
the employee alleged that on September 5, 2013, Davis
injected himself into a conversation she was having with
another employee about not being strong enough to unload a
shipment, and said: "I'd pay 50 cents for you, maybe
a dollar on a good day." The employee was offended by
Davis' comment. She also recounted that, whenever she and
Davis would interact, he would look up and down her body in a
sexually suggestive way while making inappropriate gestures
like licking his lips. The employee also stated that on
September 12, 2013, Davis paged her to the store office to
discuss a scheduling issue, and physically prevented her from
leaving the office even after she became visibly upset, and
stated that she would be more comfortable discussing the
issue with the store manager.
also interviewed Davis. He denied the employee's
allegations and her account of their interaction on September
12, 2013. Davis denied preventing the employee from leaving
the office, and asserted that it was the employee who was
inappropriate in her demeanor and insubordinate.
his investigation, Jaramillo concluded that the
employee's account of the relevant events was more
credible than Davis' denials, because "Jaramillo
believed that [the complaining employee] was straightforward
and direct in her recitation regarding [Davis'] conduct,
and that [Davis'] response regarding [the employee's]
report was shifting, and his responses to Jaramillo's
questions changed with probing." Jaramillo shared his
findings with the Belton store manager, who concluded that
the allegations made by the employee were credible, and that
Davis could have and should have avoided the issue by having
two individuals present for the conversation with the
employee. The store manager decided that Davis should be
issued a final written warning for his conduct on September
September 23, 2013, Davis requested a transfer to another
Walgreens store. The request was granted, and Davis was
transferred in early October to a store located in Blue
Springs. On October 29, 2013, Davis met with the managers of
the Belton and Blue Springs stores, and he was issued a final
written warning for the allegations stemming from the hotline
complaint by the Belton employee. The warning noted it was
being issued for inappropriate, unprofessional, and
unacceptable behavior, and that further discipline, up to and
including termination, could result if performance standards
were not met in the future.
November 2013, Cope became the store manager in Blue Springs.
In late November, Cope received a complaint from a pharmacy
technician at the Blue Springs store that Davis made an
unprofessional comment to her. Davis allegedly told the
pharmacy technician that she "should take a Vicodin and
get over it" after she told Davis she was in pain.
course of asking other employees about the pharmacy
technician's complaint, Cope spoke with a shift floor
lead at the Blue Springs store. The shift floor lead reported
that Davis forced him to work on December 1, 2013, so Davis
could attend a professional football game, and had berated
the shift floor lead for his handling of certain perishable
items. Cope referred both complaints to Jaramillo for
investigation pursuant to Walgreens regular practice.
interviewed the two complaining employees. On December 11,
2013, Jaramillo interviewed Davis regarding the complaints by
the Blue Springs employees. Davis denied the allegations. At
the end of the interview, Davis was placed on suspension
pending further review and consideration of the matter.
the interview with Davis, Jaramillo interviewed the assistant
manager who made the schedule for December 1, 2013. The
assistant manager stated that the shift floor lead did not
voluntarily cover Davis' December 1, 2013 shift.
conclusion of his investigation of the Blue Springs
complaints, Jaramillo concluded that, more likely than not,
Davis had engaged in the conduct that was reported by the
pharmacy technician and the shift floor lead.
December 11, 2013, Jaramillo reported his findings to an
Employee Relations Specialist in Walgreens' human
resource department. The Employee Relations Specialist
recommended that Davis be terminated for his misconduct, and
asked that Jaramillo share his findings and the Employee
Relations Specialist's recommendation with the District
Manager. The District Manager agreed that Davis should be
terminated and approved the termination.
[The District Manager] believed that termination was
warranted because Plaintiff had engaged in three separate
instances of conduct with subordinate employees that were not
in keeping with Walgreen Co.'s expectations for its
Assistant Store Managers, and that were inconsistent with
Walgreen Co.'s policy regarding appropriate behavior for
its employees. [The District Manager] further believed
termination was warranted because two of the reports
regarding Plaintiffs conduct occurred shortly after Plaintiff
was issued a final written warning.
(Record citations omitted.) Neither Cope nor Jaramillo made
the decision to terminate Davis; instead, "[t]he
decision to terminate [Davis'] employment was recommended
by [the] Employee Relations Specialist. . ., and approved by
[the] District Manager . . . ."
employment with Walgreens was terminated on December 12,
2013. He filed a complaint with the Missouri Human Rights
Commission, alleging age, disability, and race discrimination
in employment, and retaliation for his complaints of
discrimination, all in violation of the Missouri Human Rights
Act. After receiving a right to sue letter, Davis filed his
petition against Defendants in the Circuit Court of Jackson
County. Defendants moved for summary judgment. The circuit
court granted the motion and entered judgment for the
This Court reviews a grant of summary judgment de novo.
ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply
Corp., 854 S.W.2d 371, 376 (Mo. banc 1993); Rule 74.04.
"Summary judgment is appropriate when there are no
genuine issues of material fact and the moving party is
entitled to judgment as a matter of law." Strake v.
Robinwood W. Cmty. ImprovementDist, 473 S.W.3d 642, 644
(Mo. banc 2015).
Gall v. Steele, 547 S.W.3d 564, 567 (Mo. 2018).
A defending party can demonstrate entitlement to summary
judgment by showing: (1) facts negating any of the
claimant's necessary elements; (2) the claimant, after an
adequate period of discovery, has been unable, and will not
be able, to produce evidence sufficient to allow the trier of
fact to find the existence of any one of the claimant's
elements; or (3) there is no genuine dispute of the existence
of facts required to support the defending party's
properly pleaded affirmative defense.
Scottsdale Ins. Co. v. Addison Ins. Co., 448 S.W.3d
818, 826 (Mo. 2014) (citing ITTCommercial,