Eivins v. Mo. Dep't of Corr.

• Decision Date: 26 October 2021
• Docket Number: WD 84321
• Citation: 636 S.W.3d 155
• Parties: Michael EIVINS, Appellant, v. MISSOURI DEPARTMENT OF CORRECTIONS, Respondent.
• Court: Missouri Court of Appeals

636 S.W.3d 155

Michael EIVINS, Appellant,

v.MISSOURI DEPARTMENT OF CORRECTIONS, Respondent.

WD 84321

Missouri Court of Appeals, Western District.

OPINION FILED: OCTOBER 26, 2021

Christina J. Nielson, Lorain, OH, Counsel for Appellant.

Abbie E. Rothermich, Kansas City, MO, Counsel for Respondent.

Before Division Two: Mark D. Pfeiffer, Presiding Judge, Alok Ahuja, Judge, Anthony Rex Gabbert, Judge

Anthony Rex Gabbert, Judge

Michael Eivins appeals the circuit court's Judgment granting the Missouri Department of Corrections’ (DOC) motion for summary judgment on all counts in Eivins's "Petition for Damages" which alleged age discrimination in violation of the Missouri Human Rights Act (MHRA), retaliation in violation of the MHRA, and hostile work environment in violation of the MHRA. Eivins asserts on appeal that the circuit court, 1) erred in applying the motivating factor standard to Eivins's claims, arguing that the contributing factor standard applies to the State and State agencies, 2) erred in granting summary judgment to the DOC on Eivins's age discrimination claim, arguing that genuine issues of material fact exist as to whether Eivins's age was a contributing or motivating factor in the alleged discriminatory actions taken against him, 3) erred in granting summary judgment to the DOC on Eivins's hostile work environment claim, arguing that the trial court improperly disregarded tangible employment actions that are legally sufficient to support a hostile work environment claim, evaluated each paragraph of Eivins's petition individually and failed to consider the totality of the circumstances, disregarded uncontroverted evidence of a hostile work environment, and improperly ignored events a jury could have considered as background evidence when determining if Eivins's work environment was abusive, and 4) erred in granting summary judgment to the DOC on Eivins's retaliation claim, arguing that genuine issues of material fact exist regarding this claim and the court failed to consider Eivins's evidence of retaliation while improperly giving the DOC the benefit of inferences from the evidence. We affirm in part and reverse in part.

Background and Procedural Information

On April 6, 2020, Michael Eivins filed a Second Amended Petition for Damages alleging in Count I, age discrimination in violation of the MHRA, in Count II, retaliation in violation of the MHRA, and in Count III, hostile work environment in violation of the MHRA.

Eivins began working for the DOC in or around 2001, and was fifty years old at the time he filed his petition. Eivins left the employment of the DOC in 2014, and from 2014 to 2017, he worked at the Leavenworth Detention Center.¹ In July, 2017, Eivins was rehired by the DOC and began working at the Western Missouri Correctional Center (WMCC) in Cameron, Missouri.

In June 2018, WMCC held interviews to fill three open positions. In August 2018, WMCC filled a fourth open position using the June 2018 interviews. Eivins applied for these positions, was interviewed, and was rejected for promotion. Eivins alleges that he had a higher "merit score" than all other applicants, and that all applicants promoted were younger than thirty-five years of age. He alleges that two of the three people promoted had completed the training academy only one month prior to their promotions. He alleges that, although Stacy Yarbrough was promoted in August over Eivins, the interview committee recommended after the June interviews that Yarbrough not be promoted and later changed its interview notes to justify her promotion. Based on the changed recommendation, Eivins, age forty-nine at the time, was not promoted, while Yarbrough, age twenty-five, was promoted. Eivins alleges that, this was despite Eivins having a merit score of 87, an interview score of 70, fourteen years’ experience with the DOC, and a positive recommendation from his supervisor. Yarbrough had a merit score of 70, an interview score of 60, only eighteen months experience with the DOC, and Yarbrough's supervisor stated that she "lacks experience."

In June 2018, Crossroads Correctional Center (Crossroads), a DOC facility that neighbors WMCC, held separate interviews to fill five open positions at that facility. Five individuals were interviewed, and only two were promoted. Eivins applied for these positions, was interviewed, and was rejected for promotion. Eivins had higher merit scores than both of the promoted individuals, whom Eivins knew to be younger than thirty-five years of age.

Eivins alleges that he was placed on a "Performance Plan" in September 2018 to deter him from applying for additional, upcoming positions.

Eivins filed his first Charge of Discrimination in October 2018, which the DOC began investigating in April 2019. He alleges that, after he filed his first Charge of Discrimination, he was constantly nitpicked² and was falsely accused of drinking on the job. He alleges that the repeated failures to promote, deterring him from applying for other promotions, being constantly nitpicked, and being falsely accused of drinking on the job affected Eivins physically and mentally, including causing him to lose sleep. This, he contends, led him to submit his resignation in April 2019.

The DOC moved for summary Judgment on August 26, 2020. The DOC argued that its non-discriminatory reason and motivating factor for promoting younger employees over Eivins was that Eivins did not perform well during the interviews compared to the other candidates. In the WMCC interview, he allegedly did not show a working knowledge of policy and procedure, and left some of the paperwork he was required to bring to the interview in his car. In the Crossroads interview, he seemed unsure of himself and, instead of giving direct answers, told stories. Further, he stated that he had lost documents from the interview packet which showed a lack of preparedness. The DOC argued, therefore, that it was entitled to judgment as a matter of law on Eivins's age discrimination claim.

With regard to Eivins's retaliation claim, the DOC argued that Eivins's first complaint of discrimination was made in October 2018, and the only allegation Eivins made with regard to his treatment by the DOC after this date was his allegation that he was falsely accused of drinking on the job. The DOC argued that the facts showed that Eivins agreed that he suffered no adverse treatment based on that allegation, in that he was not required to take a breathalyzer, only spoke to two individuals about the allegation, and was not disciplined, demoted, or written up in response to the allegation. Further, Eivins admitted that if a co-worker suspects that a fellow employee is drinking on the job, the co-worker has a duty to report the suspicion. The DOC argued that for this same reason, Eivins's allegation that he was constructively terminated fails because the only allegation he made that could be considered to have resulted in the constructive termination is the accusation of drinking at work, and that resulted in no negative treatment toward Eivins. The DOC argued that it also sufficiently investigated Eivins's complaints and conducted a complete investigation.

The DOC contended that it was entitled to summary judgment as a matter of law on Eivins's hostile work environment claim, arguing that the only allegations from Eivins's Second Amended Petition that could "theoretically constitute his hostile work environment claim are those surrounding Eivins's performance plan." The DOC contended that the record showed that Eivins was placed on the performance plan in September 2018 for absences occurring in the earlier half of 2018. Consequently, Eivins was already on the performance plan at the time of his October 2018 surgery, and the surgery, therefore, could not have been the impetus for his performance plan. The DOC argued that Eivins, therefore, could not show that he was put on a performance plan for a discriminatory or retaliatory reason, or to create a hostile work environment.

On February 9, 2021, the circuit court found no genuine issue existing as to any material fact to support Eivins's claims of age discrimination, retaliation, or hostile work environment, and concluded the DOC was entitled to judgment as a matter of law on all of Eivins's claims.

This appeal follows. Additional factual history will be discussed below as necessary to address Eivins's points on appeal.

Standard of Review

The standard of review for a preserved appeal challenging the grant of a motion for summary judgment is de novo. ITT Com. Fin. Corp. v. Mid-Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993). In such cases, we do not defer to the trial court's decision, but instead use the same criteria that the trial court should have employed in initially deciding whether to grant the motion. Barekman v. City of Republic , 232 S.W.3d 675, 677 (Mo. App. 2007) (internal citations omitted). We review the record in the light most favorable to the party against whom judgment was entered, and accord that party the benefit of all inferences which may reasonably be drawn from the record. Id. Summary judgment is appropriate where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law. ITT Com. Fin. Corp. , 854 S.W.2d at 376. A genuine issue that will prevent summary judgment exists where the record shows two plausible, but contradictory, accounts of the essential facts and the genuine issue is real, not merely argumentative, imaginary, or frivolous. Id. at 382. "Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion." Id. at 376. The moving party bears the burden of establishing a legal right to judgment and the absence of any genuine issue of material fact required to support the claimed right to judgment." Id. at 378.

A ‘defending party’

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