Barekman v. City of Republic

• Decision Date: 11 September 2007
• Docket Number: No. 27939.,27939.
• Citation: 232 S.W.3d 675
• Parties: Rodney D. BAREKMAN, Plaintiff-Appellant, v. CITY OF REPUBLIC, Missouri, Defendant-Respondent.
• Court: Missouri Court of Appeals

232 S.W.3d 675

Rodney D. BAREKMAN, Plaintiff-Appellant, v. CITY OF REPUBLIC, Missouri, Defendant-Respondent.

No. 27939.

Missouri Court of Appeals, Southern District, Division Two.

September 11, 2007.

Richard Don Crites, Springfield, MO, for Appellant.

M. Douglas Harpool, Springfield, MO, for Respondent.

JEFFREY W. BATES, Chief Judge.

Rodney Barekman (Barekman) sued his employer, the City of Republic (City), for sexual harassment and retaliatory discharge in violation of § 213.055 and § 213.070.¹ The trial court granted the City's motion for summary judgment, and Barekman appealed. We affirm the trial court's decision to grant summary judgment on Barekman's sexual harassment claim. The trial court erred, however, in granting summary judgment on the retaliatory discharge claim. Therefore, the case is remanded for further proceedings.

I. Standard of Review

In determining whether the trial court properly granted summary judgment, we employ a de novo standard of review. City of Springfield v. Gee, 149 S.W.3d 609, 612 (Mo.App.2004). Consequently, we do not defer to the trial court's decision to grant summary judgment. Murphy v. Jackson Nat'l Life Ins. Co., 83 S.W.3d 663, 665 (Mo.App.2002). Instead, we use the same criteria the trial court should have employed in initially deciding whether to grant the City's motion. Stormer v. Richfield Hospitality Services, Inc., 60 S.W.3d 10, 12 (Mo.App.2001). We view the record in the light most favorable to the party against whom judgment was entered, and we accord that party the benefit of all inferences which may reasonably be drawn from the record. ITT Commercial Finance Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). "The propriety of summary judgment is purely an issue of law." Id.

As the opinion in ITT explains, Rule 74.04 distinguishes between motions for summary judgment filed by a "claimant" and by a "defending party." Id. at 380.² Here, the City was the defending party. A defending party "may establish a right to summary judgment by showing: (1) facts negating any one of the claimant's elements; (2) that the party opposing the motion has presented insufficient evidence to allow the finding of the existence of any one of the claimant's elements; or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support a properly pleaded affirmative defense." Ameristar Jet Charter, Inc. v. Dodson Intern. Parts, Inc., 155 S.W.3d 50, 58-59 (Mo. banc 2005).

II. Factual and Procedural Background

Barekman began working for the City as a police officer in June 1995. At that time, Theresa Sweet (Sweet) was a full-time patrol officer. From June 1995 through early 1999, Sweet was one of Barekman's superiors. In an affidavit and a deposition, Barekman stated that he was subjected to sexual harassment by Sweet because she told jokes about male and female genitalia, talked about having to urinate, described her underwear, discussed her sex life and talked about various sexual acts in Barekman's presence. Nearly all of the other male and female police officers and other department employees engaged in such behavior. Members of both sexes made improper statements and used sexually explicit language in Barekman's presence. The "big joke in the entire department" was to engage in such conduct to see how quickly Barekman would become embarrassed and walk away. He was "constantly made the butt of everyone's crude jokes."

At some point, Barekman transferred to the Investigative Division. After the transfer, he requested that Sweet be assigned to that department. In May 2001, Barekman became Sweet's supervisor. After becoming Barekman's subordinate, Sweet kissed him on the cheek and gave him cards signed "Love" and "Love Ya." Barekman did not report the behavior or "write up" Sweet for her actions, although he was required to do so pursuant to City's sexual harassment policy. He gave Sweet good evaluations on her work performance. He gave gifts to Sweet, rubbed her neck and gave her a birthday card in November 2001 signed, "Love, Rodney."

In December of 2001, Sweet filed a complaint against Barekman. The complaint alleged that: (1) he was creating a hostile work environment; (2) he had sexually harassed Sweet; and (3) he was conducting outside business activities at work while on duty in violation of City policies. Barekman discussed Sweet's complaint with the acting Chief of Police Darrell Crick (Crick). According to Barekman, Crick said the complaint was "[n]o big deal. You will just get a slap on the hands, and be told not to do that anymore." Crick asked Barekman to submit a response by January 16, 2002. In Barekman's response, he denied Sweet's allegations. He also complained that he had been subjected to repeated sexual harassment at work by Sweet. He had not reported it to the City earlier because he did not believe his complaint would be taken seriously since he was a male.

On February 8, 2002, the City sent a letter to Barekman requesting that he resign immediately or be fired. The City gave two reasons for this demand: (1) recent comments made by Barekman led the City to believe that he would "continue to engage in hostile, retaliatory behavior" which undermined the City; and (2) an internal investigation had confirmed multiple instances in which Barekman used City property to conduct private business. The letter made it clear that Barekman's employment by the City was over:

Your behavior as a City employee and supervisor is not acceptable. Therefore, I am requesting your letter of resignation immediately. If I do not receive your signed letter of resignation by 5:00 p.m., Monday, February 11, 2002, you will be terminated at that time.

On February 11, 2002, Barekman resigned under protest. He chose to resign for two reasons. First, his resignation allowed him to get paid for his accrued and unused vacation and comp time. Second, if he had been fired, the Missouri Department of Public Safety could have filed an action to revoke his peace officer's license. Without that license, Barekman could not work in law enforcement.

In March 2002, Barekman filed a verified complaint with the Missouri Human Rights Commission. The complaint stated that: (1) he had been sexually harassed by Sweet; (2) he reported her conduct to the City; (3) and he was forced to resign. The complaint then stated:

The conduct of the [City] was retaliatory on its part for raising the sexual harassment and hostile work environment created by Officer Sweet. I was told by the City Administrator, Dean Thompson, that my complaint against Officer Sweet was being viewed as "sour grapes" and nothing had been done nor would be done about my complaint.

In December 2002, Barekman sued the City. The petition alleged that: (1) Barekman was exposed to a sexually hostile work environment because Sweet and other police officers used sexually-oriented and suggestive language in front of Barekman, which embarrassed him; and (2) he had been constructively discharged in retaliation for complaining about Sweet's behavior. In May 2005, the City filed a motion for summary judgment. After Barekman filed his response and the parties submitted suggestions, the trial court held a hearing on the motion. In June 2006, the City was granted summary judgment. This appeal followed.

III. Discussion and Decision

In Barekman's first point, he challenges the trial court's decision to grant summary judgment on his sexual harassment claim. The Missouri Human Rights Act (MHRA) prohibits an employer from discriminating against any individual "with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, national origin, sex, ancestry, age or disability[.]" § 213.055.1(1)(a). When reviewing a claim under the MHRA, "appellate courts are guided by both Missouri law and federal employment discrimination caselaw that is consistent with Missouri law." Daugherty v. City of Maryland Heights, 231 S.W.3d 814, ___ (Mo. banc, 2007).

Sexual harassment creates a hostile work environment when sexual conduct either creates an intimidating, hostile or offensive work environment or has the purpose or effect of unreasonably interfering with an individual's work performance. Mason v. Wal-Mart Stores, Inc., 91 S.W.3d 738, 742 (Mo.App.2002). "An employer is liable for the sexual harassment of one co-worker by another if the employer knew or should have known of the harassment and failed to take prompt and effective remedial action." Id. To prevail on a hostile work environment sexual harassment claim, Barekman had to prove the following ultimate facts: (1) he is a member of a protected group; (2) he was subjected to unwelcome sexual harassment; (3) his gender was a contributing factor in the harassment; (4) a term, condition, or privilege of his employment was affected by the harassment; and (5) the City knew or should have known of the harassment and failed to take appropriate action. Daugherty, 231 S.W.3d at ___4; MAI 31.24; see Cooper v. Albacore Holdings, Inc., 204 S.W.3d 238, 244 (Mo.App. 2006); Mason, 91 S.W.3d at 742.³ If Barekman failed to present sufficient evidence to allow an affirmative finding to be made on any one of the foregoing elements, the City was entitled to summary judgment on Barekman's hostile work environment claim. See Ameristar Jet Charter, Inc. v. Dodson Intern. Parts, Inc., 155 S.W.3d 50, 58-59 (Mo. banc 2005). The City argues that Barekman failed to prove the third element of this claim. This issue is dispositive of the first point on appeal.

As noted above, § 213.055.1(1)(a) prohibits an employer from discriminating "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex ...." In Barekman's brief, he argues that the third element of his claim was satisfied because "the conduct was sexual in nature, content,...