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Davis v. Walgreen Co.

Court of Appeals of Missouri, Western District, Second Division

April 23, 2019

ROBERT L. DAVIS, Appellant,
WALGREEN COMPANY, et al., Respondents.

          Appeal 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. Pfeiffer, JJ.


         Robert 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[1] (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.

         Factual Background

         For 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 summary judgment.

         In late 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 complaint.

         On 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.

         Jaramillo 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.

         Following 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 12, 2013.

         On 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.

         In 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.

         In the 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.

         Jaramillo 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.

         Following 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.

         At the 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.

         On 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 . . . ."

         Davis' 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 Defendants.

         Davis appeals.

         Standard of Review

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, 854 ...

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