Grissom v. First Nat'l Ins. Agency

• Decision Date: 20 April 2012
• Docket Number: Nos. SD 30821,SD 30822.,s. SD 30821
• Citation: 364 S.W.3d 728
• Parties: Lisa GRISSOM, Plaintiff–Appellant/Respondent, v. FIRST NATIONAL INSURANCE AGENCY and Tri–Star of Sikeston, Inc., Defendants-Respondents, and Loy Welker, Defendant–Respondent/Cross–Appellant.
• Court: Missouri Court of Appeals

364 S.W.3d 728

Lisa GRISSOM, Plaintiff–Appellant/Respondent,

v. FIRST NATIONAL INSURANCE AGENCY and Tri–Star of Sikeston, Inc., Defendants-Respondents,andLoy Welker, Defendant–Respondent/Cross–Appellant.

Nos. SD 30821, SD 30822.

Missouri Court of Appeals,

Southern District,

Division Two.

March 30, 2012.

Motion for Rehearing or Reconsideration and

Transfer Denied April 20, 2012.

Application for Transfer

Denied May 29, 2012.

John P. Clubb, Cape Girardeau, MO, for Appellant–Respondent.

James E. Spain, Poplar Bluff, MO, for Respondent/Cross–Appellant.

JEFFREY W. BATES, Judge.

Lisa Grissom (Grissom) was employed as an insurance salesperson by Loy Welker, owner and president of Tri–Star of Sikeston, Inc. (hereinafter referred to individually as Welker or Tri–Star and collectively as Respondents). ¹ Following Grissom's termination, she brought suit against Respondents for, inter alia, sexual harassment, retaliation and wrongful discharge. Respondents moved for summary judgment on Grissom's sexual harassment claims on the basis that the claims were time-barred. See § 213.075.1.² The trial court agreed and granted summary judgment on Grissom's sexual harassment claims. Grissom's retaliation and wrongful discharge claims went to trial, and the jury found in Grissom's favor against Welker only. Grissom was awarded actual and punitive damages, costs and a portion of her attorney's fees.

On appeal, Grissom contends the trial court erred by: (1) granting summary judgment on her sexual harassment claims; and (2) awarding her only a portion, rather than all, of her attorney's fees. In Welker's cross-appeal, he contends the trial court erred by refusing to grant Respondents' motions for directed verdict at the close of all of the evidence and for judgment notwithstanding the verdict (JNOV) because: (1) the evidence was insufficient to support the retaliation and wrongful discharge claims; and (2) the evidence was insufficient to submit the punitive damages claim to the jury. We find no merit in either of Welker's points in his cross-appeal, or in Grissom's second point concerning her attorney's fees. We do, however, find merit in Grissom's first point. Because the trial court erred in granting summary judgment on Grissom's sexual harassment claims, that portion of the judgment is reversed, and the cause is remanded for further proceedings. In all other respects, the judgment is affirmed.

Grissom's Appeal

In Grissom's first point, she challenges the trial court's grant of summary judgment on her sexual harassment claims. She argues that there is a genuine issue of material fact concerning the timeliness of her claims that precludes summary judgment for Respondents.

A summary judgment can only be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 74.04(c)(6); Hitchcock v. New Prime, Inc., 202 S.W.3d 697, 699 (Mo.App.2006); Lindsay v. Mazzio's Corp., 136 S.W.3d 915, 919 (Mo.App.2004). Appellate review is de novo. Wilson v. Rhodes, 258 S.W.3d 873, 875 (Mo.App.2008). Consequently, this Court does not defer to the trial court's decision to grant summary judgment. Barekman v. City of Republic, 232 S.W.3d 675, 677 (Mo.App.2007). Instead, we use the same criteria the trial court should have employed in initially deciding whether to grant Respondents' motion. Id.; see ITT Commercial Finance Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).

As our Supreme Court explained in ITT,Rule 74.04 distinguishes between a motion for summary judgment filed by a “claimant” and by a “defending party.” ITT, 854 S.W.2d at 380. Here, Respondents were the defending parties.

[A] “defending party” may establish a right to judgment by showing (1) facts that negate any one of the claimant's elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, 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) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense.

Id. at 381 (italics in original); see Ameristar Jet Charter, Inc. v. Dodson Int'l Parts, Inc., 155 S.W.3d 50, 58–59 (Mo. banc 2005). “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.” Wallingsford v. City of Maplewood, 287 S.W.3d 682, 685 (Mo. banc 2009). Because summary judgment is “an extreme and drastic remedy,” we exercise great caution in affirming it because the procedure cuts off the opposing party's day in court. ITT, 854 S.W.2d at 377.

Appellate review is based upon the record submitted to the trial court. Sexton v. Omaha Property and Cas. Ins. Co., 231 S.W.3d 844, 845 (Mo.App.2007). 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, 854 S.W.2d at 376;see Hill v. Ford Motor Co., 277 S.W.3d 659, 662 n. 3 (Mo. banc 2009). “A genuine issue of material fact” exists where the record contains competent evidence that two plausible, but contradictory, accounts of essential facts exist. Amusement Centers, Inc. v. City of Lake Ozark, 271 S.W.3d 18, 19 (Mo.App.2008). “Summary judgment seldom should be used in employment discrimination cases, because such cases are inherently fact-based and often depend on inferences rather than on direct evidence.” Hill, 277 S.W.3d at 664. Summary judgment should not be granted unless the evidence could not support any reasonable inference for the non-moving party. Id.; Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 818 (Mo. banc 2007). The following summary of facts has been prepared in accordance with these principles.³

In January 2003, Grissom was hired to work at Tri–Star's Sikeston, Missouri office. Tri–Star is a corporation organized and registered to do business under Missouri law to offer and sell commercial and residential insurance products. Welker was the sole owner and ultimate decision-maker for Tri–Star during the entire time period relevant to Grissom's claims.

According to Grissom, she was subjected to sexual harassment by Welker while employed at Tri–Star. She hand-delivered a letter (hereinafter, the complaint letter) on July 22, 2005, from her attorney to Welker asking him to stop sexually harassing Grissom. Welker, however, has repeatedly and consistently denied under oath that he ever received the complaint letter. Welker also has denied that he sexually harassed Grissom. Shortly after July 22, 2005, Welker transferred Grissom to a branch office in Dexter, Missouri. On January 18, 2006, exactly 180 days after Grissom said that she delivered the complaint letter to Welker, he directed two other employees to fire Grissom. The employees did so, and Grissom was terminated on that date.

On May 1, 2006, Grissom filed a complaint of sexual harassment with the Missouri Commission on Human Rights (MCHR) against Respondents. In the complaint, Grissom alleged that most recent or continuing discrimination was her discharge on January 18, 2006.

On January 22, 2007, Grissom received a “Notice of Right to Sue” from the MCHR on her sexual harassment claim.⁴ On April 13, 2007, Grissom filed suit against Respondents and later filed an eight-count first amended petition. Insofar as relevant here, the first amended petition alleged sexual harassment by Welker (Count I) and Tri–Star's liability for Welker's sexual harassment (Count II). Respondents asserted, as an affirmative defense, that Grissom's sexual harassment claims were time-barred pursuant to § 213.075. In relevant part, this statute states:

Any person claiming to be aggrieved by an unlawful discriminatory practice may make, sign and file with the commission a verified complaint in writing, within one hundred eighty days of the alleged act of discrimination, which shall state the name and address of the person alleged to have committed the unlawful discriminatory practice and which shall set forth the particulars thereof and such other information as may be required by the commission. The complainant's agent, attorney or the attorney general may, in like manner, make, sign and file such complaint.

§ 213.075.1.

In September 2009, Respondents moved for summary judgment on the sexual harassment claims in Counts I and II, contending that said claims were time-barred pursuant to § 213.075.1. Respondents argued that Grissom did not file her sexual harassment claim within 180 days of the alleged act of discrimination. To support the summary judgment motion, Respondents relied upon Grissom's deposition testimony that the sexual harassment by Welker stopped after she delivered the letter from her attorney sometime around July 22, 2005.

In Grissom's response, she specifically denied that “[a]ll alleged sexual harassment stopped on or about July 22, 2005.” She set out additional facts that remained in dispute, including that: (1) her discharge on January 18, 2006, was the most recent or continuing discrimination by Respondents; and (2) Welker had denied under oath that he ever received the letter from Grissom's attorney.⁵ The materials supporting Grissom's statement of additional facts included her original MCHR complaint form, the MCHR investigative reports, her affidavit and portions of depositionsfrom herself and two other employees. One of those employees testified that he believed Welker's sexual harassment of Grissom was a cause of her termination. The trial court granted summary judgment to Respondents on Grissom's sexual harassment claims under Counts I and II of her first amended petition.

On appeal, Grissom contends the trial court erred in granting Respondents' motion for summary judgment...