Buchheit, Inc. v. Mo. Com'n On Human Rights

• Citation: 215 S.W.3d 268
• Decision Date: 20 February 2007
• Docket Number: No. WD 65985.,WD 65985.
• Parties: BUCHHEIT, INC., Appellant, v. MISSOURI COMMISSION ON HUMAN RIGHTS, Respondent.
• Court: Court of Appeal of Missouri (US)

215 S.W.3d 268

BUCHHEIT, INC., Appellant, v. MISSOURI COMMISSION ON HUMAN RIGHTS, Respondent.

No. WD 65985.

Missouri Court of Appeals, Western District.

February 20, 2007.

Lois L. Vander Waerdt, St. Louis, MO, for appellant.

Cyrus C. Dashtaki, St. Louis, MO, for respondent.

Before SMITH, P.J., BRECKENRIDGE and SPINDEN, JJ.

PATRICIA BRECKENRIDGE, Judge.

Buchheit, Inc., appeals from a judgment of the circuit court, affirming in part, reversing in part, and remanding an order of the Missouri Commission on Human Rights finding that Buchheit violated section 213.044.1, RSMo 2000,¹ by terminating the employment of Melissa Blessing. Ms. Blessing was terminated after an incident occurred in which Ms. Blessing was the only female participant, while none of the male participants were discharged. In its first point on appeal, Buchheit claims that the commission erred in finding that Buchheit discriminated against Ms. Blessing on the basis of sex when it discharged her, because there is no evidence to support the commission's finding that Buchheit's reason for discharging Ms. Blessing was pretextual or motivated by sex. In its second point on appeal, Buchheit claims that the commission erred in finding that Ms. Blessing was treated less favorably than a similarly situated male employee. In its final point on appeal, Buchheit claims that the commission erred in finding that Buchheit discharged Ms. Blessing on the basis of sex because the commission considered facts in making its decision that were not known to Buchheit at the time of Ms. Blessing's discharge. This court finds that the commission did not err in finding that Buchheit's nondiscriminatory reason for discharging Ms. Blessing was pretextual and in finding that Ms. Blessing was treated less favorably than a similarly situated male employee. This court further finds that the facts the commission considered in making its decision were known to Buchheit at the time of Ms. Blessing's discharge. Therefore, the judgment of the commission is affirmed.

Factual and Procedural Background

Buchheit is a family owned retail chain of hardware and building supply stores located in southern Missouri and Illinois. On December 28, 1998, Melissa Blessing began working for Buchheit at its Perryville store as a cashier.² Ms. Blessing was later moved to the service desk and occasionally filled in as a cashier. Although Ms. Blessing performed her job well, Ms. Blessing received one verbal warning and one written warning regarding her excessive personal phone calls. Ms. Blessing also attracted many male visitors to her workstation.

During July 1999, Ms. Blessing asked the manager of another Buchheit store if she could transfer to that store. She was interested in transferring, in part, because she was planning to move closer to the store. During their conversation, she mentioned that an employee at the Perryville store was harassing her. The manager reported this and Ms. Blessing was interviewed by Buchheit about the alleged sexual harassment. Despite attempts to get Ms. Blessing to name the employee, she refused to do so.

In response to the telephone problem, in December 1999, the store manager, Mike Smith, transferred Ms. Blessing to the guard shack in the lumberyard to work as a cashier. Buchheit reconfigured the phone system so that Ms. Blessing could not make or receive outside phone calls from the guard shack. Ms. Blessing's duties in the lumberyard included handling customers' loading tickets and receiving payments for the purchase of outside lumber supplies. Occasionally, Ms. Blessing would help a customer load lumber supplies. Ms. Blessing's job performance in the lumberyard was very good and her personal telephone calls ceased to be a problem.

Ms. Blessing was the only female employee stationed in the lumberyard. Scott Duvall supervised Ms. Blessing, along with ten male employees who worked in the lumberyard. Mr. Duvall's duties included enforcing Buchheit's policies against horseplay, smoking, and sexual harassment. Mr. Duvall permitted frequent violations of Buchheit's policies and, occasionally, violated them himself. For example, Mr. Duvall was caught smoking in the lumberyard.

As a result, horseplay was not uncommon in the lumberyard. Ms. Blessing's coworkers frequently played pranks on her, including duct-taping her file drawers shut, filling the guard shack with trash, locking her out of the guard shack, and backing a forklift against the door so that it backfired loudly in her ear. The use of foul language was also common in the lumberyard and Ms. Blessing's coworkers frequently ignored her calls to assist customers. Although Ms. Blessing generally tried to ignore the incidents, on the occasion the forklift was backed up against the door to the guard shack, she was so upset that she left the lumberyard in tears and had to be comforted by a former supervisor.

Another incident occurred in February of 2000, when a Buchheit delivery driver sat in Ms. Blessing's chair in the guard shack and refused to get out of her chair. Ms. Blessing attempted to remove the delivery driver from the chair by rolling the chair toward the door with the driver in it. In response, the driver bent Ms. Blessing over his knee and spanked her. Ms. Blessing did not report this incident, but the delivery driver was later reprimanded when management learned of the incident.

One day in August of 2000, Ms. Blessing was sitting in the guard shack reading a book when she noticed that a group of male employees, including her supervisor, Mr. Duvall, had gathered around the back of a delivery truck that had pulled into the lumberyard. Mr. Duvall approached Ms. Blessing while she was inside the guard shack and asked her to read a sign on the back of a truck as the truck left. Instead, Ms. Blessing walked to the back of the truck and Mr. Duvall pointed to the handmade sign on the back of the truck that read "show me your boobies, please." Mr. Duvall then encouraged Ms. Blessing to do what the sign said. Ms. Blessing refused, turned, and began walking back to the guard shack. As she walked away, Mr. Duvall and the other male employees continued to encourage Ms. Blessing to lift her shirt. Mr. Duvall also told Ms. Blessing that he would not report her to management. Ms. Blessing then turned and raised her shirt, exposing one side of her bra, and returned to the guard shack. After the incident, Ms. Blessing felt humiliated.

Buchheit's management learned of this incident in October 2000. Buchheit investigated the incident by asking Mr. Duvall if the incident occurred, but no other questions were asked. Buchheit also had Mr. Duvall and Brent Jung, an outside salesman, write out statements about the incident. Other employees working in the lumberyard that day were not questioned or asked to give written statements. Then, on October 23, 2000, Buchheit met with Ms. Blessing and asked her if the incident occurred and if she thought her behavior was appropriate, had her write a statement, questioned her about her alleged sexual activities, and then terminated her. Mr. Duvall received a written reprimand for his participation in the exposure incident. Thereafter, Buchheit's director of loss prevention, safety and training was asked to investigate the incident. He interviewed some of the other male employees in the lumberyard. None of the other male employees who participated in the incident were disciplined, however, because only Mr. Duvall admitted saying anything. He did not interview Ms. Blessing because she had been terminated before he was asked to investigate.

On November 22, 2000, Ms. Blessing filed a charge of discrimination on the basis of sex against Buchheit with the commission. The commission issued its finding of probable cause on August 9, 2001, and a hearing was held on June 16 and 17, and October 29, 2003. The Hearing Examiner found that Ms. Blessing established a prima facie case of gender-based discrimination and that Buchheit's nondiscriminatory reasons for discharging Ms. Blessing were pretextual. On July 19, 2004, the commission issued its decision and order adopting the Hearing Examiner's findings of fact and conclusions of law, and ordered Buchheit to cease and desist its discriminatory practices and awarded back wages in the amount of $1644 and actual damages for deprivation of civil rights and humiliation and emotional distress in the amount of $4000 to Ms. Blessing. On August 24, 2004, Buchheit filed a petition for judicial review in the Circuit Court of Cole County.

On August 19, 2005, the circuit court issued its findings of fact, conclusions of law and judgment affirming in part, reversing in part, and remanding the cause back to the commission. The circuit court found that the commission erroneously found that Buchheit had no basis to discipline Ms. Blessing because Buchheit had a legitimate, nondiscriminatory reason for disciplining Ms. Blessing. Nevertheless the circuit court found that terminating Ms. Blessing was disparate treatment when compared to the discipline imposed on Mr. Duvall. The circuit court further found that the award of back pay was appropriate, but reversed the award for deprivation of civil rights and humiliation and emotional distress because it was based upon the commission's improper conclusion that Buchheit had no basis to discipline Ms. Blessing. The cause was remanded to the commission for a determination of whether a damage award should be made for deprivation of civil rights and humiliation and emotional distress. Buchheit filed this appeal.

Jurisdiction

Before reaching the merits of Buchheit's appeal, this court must first consider the motion to dismiss the commission filed with this court, requesting dismissal of Buchheit's appeal for lack of jurisdiction. In its motion, the commission asserts that the agency decision from which Buchheit appeals is not final because the circuit court remanded the case back to the commission.

The...