Brummett v. Burberry Ltd.

• Decision Date: 24 December 2019
• Docket Number: WD 82092
• Citation: 597 S.W.3d 295
• Parties: Mona BRUMMETT, Appellant, v. BURBERRY LIMITED, Respondent.
• Court: Missouri Court of Appeals

597 S.W.3d 295

Mona BRUMMETT, Appellant,

v.BURBERRY LIMITED, Respondent.

WD 82092

Missouri Court of Appeals, Western District.

OPINION FILED: December 24, 2019

Motion for Rehearing and/or Transfer to Supreme Court Denied January 23, 2020

Application for Transfer Denied April 28, 2020

Kirk Holman, Kansas City, MO, for appellant.

Walter M. Brown, Kansas City, MO, and Amy L. Bess, Pro hac vice, for respondent.

Before Division One: Edward R. Ardini, Jr., Presiding Judge, Mark D. Pfeiffer, Judge and Cynthia L. Martin, Judge

Cynthia L. Martin, Judge

Mona Brummett ("Brummett") appeals from the trial court's entry of judgment in favor of Burberry Limited ("Burberry") on her claims of religious discrimination and retaliation. Brummett complains that the trial court committed reversible error in its evidentiary rulings, in prohibiting Brummett from commenting on the absence of witnesses during closing argument, and in assessing costs against her. We affirm in part, and reverse and modify the judgment in part.

Factual and Procedural History¹

In late 2014, Brummett began working for Burberry as a service lead and key holder in the company's Kansas City, Missouri retail store ("store"). Brummett's responsibilities included interacting with customers and making sales, as well as training other sales staff and opening and closing the store. During the first year of her tenure at the store, Brummett became friends with the store's general manager, Karli DeCastro ("DeCastro"), and the two women and their families socialized outside of work. On October 4, 2015, Brummett texted a photograph of a positive home pregnancy test to DeCastro.

Katy Cox ("Cox"), the store's assistant general manager, told DeCastro that she wanted to transfer to the store's shipper/receiver position in October 2015. DeCastro announced Cox's decision to the store's staff. Brummett expressed her interest in the assistant general manager position to DeCastro. At the time, DeCastro believed that Brummett had potential to assume a larger leadership role in the store.

On November 13, 2015, Lynne Miller ("Miller"), one of the store's sales associates, was working in the store when she learned of a terrorist attack in Paris, France. Miller testified at trial that, upon learning of the news, she commented that there was a "radical terrorist attack," and that Hexi Wang ("Wang") (another Burberry employee) admonished "you can't say that." Wang's recollection of Miller's comments was different. Wang testified that Miller said, "The Muslims are terrorists. They killed all the people." Wang reported Miller's comments to DeCastro.

DeCastro met with Miller and told her that any statements generalizing a religion could be offensive to others and are "dangerous and potentially hurtful." According to DeCastro, Miller apologized and stated that she did not intend to offend anyone. DeCastro testified that she did not believe Miller intended the comment to be hurtful or malicious. DeCastro also testified that she never personally heard Miller make any derogatory comments about Muslims.

Brummett, a Muslim, did not personally hear Miller's comments. However, after Brummett heard of Miller's comments from another employee, Brummett complained to DeCastro. DeCastro told Brummett that she had spoken to Miller. In addition, DeCastro issued a directive to the store's staff not to discuss politics and religion while in the store. Brummett testified that Miller nonetheless continued to make comments about politics and religion. Brummett testified that she continued to complain to DeCastro, but that DeCastro told Brummett to "just ignore her."

In late 2015, Brummett made numerous comments to her co-workers to the effect that she was considering terminating her pregnancy because she did not want her child to experience the same kind of discrimination that she endured as a Muslim woman. While at work on December 8, 2015, Brummett had an emotional breakdown. Brummett cried uncontrollably in the store's restroom for more than two hours. DeCastro unsuccessfully attempted to comfort Brummett. Brummett's husband had to be called to retrieve her.

Following this incident, Brummett worked for a portion of December and was approved for a medical leave of absence due to depression and anxiety from December 28, 2015, through the end of January 2016. Brummett's job during this extended leave was protected by the Family Medical Leave Act.² Brummett returned to work on February 1, 2016, as a service lead.

Brummett submitted an application to be the store's assistant general manager on the day she returned to work. However, Cox had changed her mind about transferring to the store's shipper/receiver position and remained the store's assistant general manager. After learning of Cox's decision, Brummett expressed anger to DeCastro about not being promoted to assistant general manager. Brummett also told DeCastro that Miller was continuing to talk about politics and Muslims while in the store.

On February 11, 2016, Brummett asked DeCastro for the phone number for Burberry's corporate human resources department. Brummett wanted a copy of the incident report that DeCastro told Brummett she had filed, and wanted to make the corporate office aware of her version of the events in November and December 2015. Brummett spoke by phone with Carlos Rodriguez ("Rodriguez"), Burberry's senior manager of employee services, that same day. Throughout February and March 2016, Brummett contacted Burberry's corporate human resources department several times, sending multiple lengthy emails and having multiple telephone conversations lasting at least one hour each. During these emails and conversations, Brummett described her complaints with management and her concerns about how she had been treated by her coworkers and by management. In particular, Brummett complained that Miller told Wang that "all Muslims are terrorists" and that Cox had been coerced into remaining the store's assistant general manager in order to prevent Brummett from being promoted to the position. Brummett also voiced concerns about her work schedule and requests for leave.

In March 2016, Kareem Gayle ("Gayle"), Burberry's corporate human resources manager, traveled to Kansas City to investigate the circumstances surrounding Brummett's complaints. While in Kansas City, Gayle interviewed a number of Burberry employees who worked at the store, including Wang, Miller, Cox, and DeCastro. Wang told Gayle that, on November 13, 2015, Miller announced to Wang that "there [was] a bombing and Muslims bombed Paris," and that he admonished Miller, saying that "you can use the terms radicals or extremists but to say Muslims isn't correct," before he spoke to DeCastro about the matter. When Gayle interviewed Miller, her memory of her comments on November 13, 2015, was substantially the same as Wang's. Miller told Gayle that she said "Muslim[ ] radicals bombed Paris." None of the employees with whom Gayle spoke indicated that derogatory or discriminatory comments were an ongoing, chronic problem in the store.

Gayle sent Brummett a letter summarizing her investigation's findings on April 11, 2016. The letter stated that Gayle was "unable to substantiate [Brummett's] allegations" that Miller stated that "all Muslims are terrorists," and also stated that Cox's decision to continue in her role as the assistant general manager "was purely a personal decision that she was in no manner coerced or pressured by [Burberry] to make."

In late May 2016, Brummett fell in the store and sustained an injury to her foot. Brummett began workers' compensation leave and had a baby later in the summer.³

In June 2016, while Brummett was on leave, Cox was promoted to general manager of the store after DeCastro resigned. Brummett applied for the store's assistant general manager position. Burberry ultimately hired Abby Lamone ("Lamone") for the position. Rodriguez testified that Burberry hired Lamone because her experience as a manager was superior to that of the other applicants.

Brummett timely filed charges of discrimination with the Missouri Human Rights Commission ("MHRC") and the Equal Employment Opportunity Commission ("EEOC"). The MHRC issued Brummett right-to-sue letters on August 19, 2016, and on April 28, 2017.

Brummett filed a petition for damages ("initial petition") against Burberry, DeCastro, and Cox⁴ on November 16, 2016. The trial court granted Brummett leave to file a first amended petition ("first amended petition") on June 16, 2017. The first amended petition named Burberry, DeCastro, Cox, and Lamone as defendants (collectively "the defendants"), and alleged several counts, including claims seeking relief under the Missouri Human Rights Act⁵ ("MHRA"): (1) religious harassment and discrimination against the defendants; (2) national origin harassment and discrimination against the defendants; (3) sex discrimination against Burberry, DeCastro, and Cox; (4) retaliation against the defendants; (5) aiding and abetting against the defendants; (6) disability and perceived disability discrimination against Burberry, Cox, and Lamone; and (7) workers' compensation retaliation against Burberry. On May 1, 2018, Brummett and the defendants filed a joint stipulation to dismiss Brummett's claims against DeCastro, Cox, and Lamone with prejudice, leaving Burberry as the only remaining defendant.

During a pretrial conference, Brummett's counsel confirmed that Brummett would only be proceeding to trial on counts one and four, religious discrimination and retaliation, and that all other counts were being dismissed. The trial court granted Brummett's motion to bifurcate the trial, such that liability and punitive damages would be separately tried. In addition, the trial court entertained and ruled the parties' motions in limine.

Brummett's claims of religious discrimination and retaliation against Burberry were tried to a jury over four days, beginning on May 9, 2018. Less than two hours after it retired, the...