Kerr v. Curators of the Univ. of Mo.

• Decision Date: 13 December 2016
• Docket Number: WD 79372
• Citation: 512 S.W.3d 798
• Parties: Charlotte Jean KERR, Appellant, v. The CURATORS OF THE UNIVERSITY OF MISSOURI, Respondent.
• Court: Missouri Court of Appeals

512 S.W.3d 798

Charlotte Jean KERR, Appellant,

v.The CURATORS OF THE UNIVERSITY OF MISSOURI, Respondent.

WD 79372

Missouri Court of Appeals, Western District.

OPINION FILED: December 13, 2016

Motion for Rehearing and/or Transfer to Supreme Court Denied January 24, 2017

Application for Transfer Denied April 4, 2017

George Smith, Columbia, MO, Counsel for Appellant.

Andrew Heitmann, Columbia, MO, Co-Counsel for Appellant.

Dale Doerhoff, Jefferson City, MO, Counsel for Respondent.

Shelly Kintzel, Jefferson City, MO, Co-Counsel for Respondent.

Before Division Three: Alok Ahuja, P.J., Victor C. Howard, and James Edward Welsh, JJ.

James Edward Welsh, Judge

Charlotte Jean Kerr appeals the circuit court's grant of summary judgment in favor of the Curators of the University of Missouri (University) on her claims of employment discrimination and retaliation under the Missouri Human Rights Acts (MHRA). Kerr contends that the circuit court erred in granting summary judgment for the University because (1) the court misstated and misapplied the elements of an MHRA age discrimination claim, (2) she demonstrated genuine disputes of material fact on her age discrimination claim; (3) she demonstrated a genuine dispute of material fact on her disability discrimination claim, and (4) the court misstated and misapplied the law when it found that summary judgment on her MHRA discrimination claims caused her retaliation claim to fail as a matter of law. We affirm.

When considering an appeal from summary judgment, we view the record in the light most favorable to the party against whom judgment was entered, and we afford that party the benefit of all reasonable inferences. ITT Com. Fin. Corp. v. Mid–Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993). The record established that, at the times relevant to these claims, Kerr was over 40 years of age. She was diagnosed with bipolar disorder

, post-traumatic stress disorder, attention deficit disorder, chronic depression, Crohn's disease, and spinal stenosis.

Kerr was employed as an animal caretaker at the Laboratory Animal Center (LAC), which is an animal care facility operated by the Office of Animal Resources (OAR) at the University of Missouri—Columbia. Kerr's immediate supervisor was Clayton Douglas. Douglas's supervisor was Dana Weir, the Facilities Manager for the OAR. Weir's supervisor was Dr. Lon Dixon. Tom Malloy was an animal technician at the OAR and the "lead technician" on weekends. Malloy was sometimes referred to as the "weekend supervisor."

Kerr was a part-time employee and was the only part-time employee at the LAC beginning at least in 2010.¹ Kerr's employment with the OAR has always been part-time, and she has never applied for a full-time position with the University. Although she obtained certification as an Assistant Lab Animal Technologist, she never applied for a full-time position or a different job within the OAR.² Kerr said that she did not want to work full-time because of her Crohn's disease

and because she has "difficulty socializing with humans."

As a part-time union employee, Kerr was not required to be put on a certain step within the pay range for animal caretakers. Full-time union employees, however, must be on a certain step within a pay range. Step raises are given automatically to those within full-time union positions but not to employees in part-time union positions. Further, the University's policies require it to apply its progressive discipline policy to full-time employees only.³

At the time she was hired, Kerr notified her supervisors that she had Crohn's disease

but did not identify any other disabilities.⁴ Indeed, Kerr requested a handicapped parking tag from the University, identifying Crohn's disease

as the reason she need it. The only disabilities that Weir and Douglas were aware that Kerr had were Crohn's disease and back problems.⁵ Kerr requested and received accommodations for her Crohn's disease by being allowed to miss work when sick and by being allowed to have frequent access to the bathroom during work hours. She also requested and received accommodations for her back problems by having help lifting heavy items. When asked whether she ever told any other supervisor or anyone at the OAR that she had depression, PTSD, or bipolar disorder, Kerr responded, "I never said anything to anyone because I thought the atmosphere for people with mental disease was not the same as the atmosphere for people with other physical problems."

On Friday, March 16, 2012, Kerr was at work and asked Malloy whether she could leave her dogs in her vehicle on the loading dock while she worked the next day. The parties dispute exactly what Malloy said in response.⁶ Malloy testified that he told Kerr that he did not have a problem with it "if it was okay with [Douglas.]" Kerr testified that Malloy "thought it would be okay." When Malloy told Douglas what Kerr wanted to do, Douglas said "absolutely not." Douglas sent an email to Kerr telling her not to bring her animals into the loading dock.

The next morning, Malloy found Kerr moving an OAR truck out of the loading dock. According to Malloy, Kerr "had parked her van outside—on the drive outside the loading dock and had gone inside and gotten the green [OAR] pickup truck and moved it around to the front of the building, so as to create room for her to move her van into the loading dock." Malloy told Kerr that she could not put her vehicle containing multiple dogs in the loading dock. Following this incident, Kerr's employment was terminated for "misconduct and insubordination." The termination letter said:

Due to recent misconduct and insubordination in your interactions with the Supervisors of LAC (both Clayton Douglas and Tom Malloy), we are releasing you from your part-time employment with the University of Missouri and Office of Animal Resources.

You had been instructed not to bring in your personal pets to the animal facility on Saturday, 3/17/12, (via an email on Friday, 3/16/12), however you brought them to work anyway, with the intention of bringing them into the facility. Had Tom not stopped you from pulling your van, fully loaded with crates of animals, into the dock, it could have posed a serious health issue within our research colonies and went against a direct order from your Supervisor not to do this. When Tom Malloy (Weekend Supervisor) instructed you not to continue to pull your vehicle into the dock, you then argued with him. Insubordination will not be tolerated at any time, especially when it concerns the health of our research animals.

Weir made the decision to terminate Kerr along with some input from Douglas, after considering information from Malloy. Dixon approved the termination.

Following her termination, Kerr filed a grievance and had a hearing before Karen Touzeau, Associate Vice Chancellor for Research for the University. Touzeau issued a written decision upholding the termination. Thereafter, on September 17, 2013, Kerr filed a third amended petition for damages, in which she alleged violations of the MHRA for age discrimination, religious discrimination, disability discrimination, and retaliation. The University moved for summary judgment on all counts, which the circuit court granted. Kerr appeals from the circuit court's judgment granting summary judgment on her claims for age discrimination, disability discrimination, and retaliation.

Our review of a summary judgment is de novo. ITT Commercial , 854 S.W.2d at 376. We review the record in the light most favorable to the party against whom judgment was entered, and we afford that party the benefit of all reasonable inferences. Id. "The propriety of summary judgment is purely an issue of law." Id. We will affirm the circuit court's grant of summary judgment if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Id. at 380 ; Rule 74.04. A "defending party" may establish a right to judgment by showing:

(1) facts that negate any one of the claimant's elements facts [sic], (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.

ITT Commercial , 854 S.W.2d at 381 (emphasis omitted). As cautioned by the Missouri Supreme Court, "[s]ummary judgment should seldom be used in employment discrimination cases, because such cases are inherently fact-based and often depend on inferences rather than on direct evidence." Daugherty v. City of Maryland Heights , 231 S.W.3d 814, 818 (Mo. banc 2007). However, in considering summary judgment on an MHRA claim, the Court "must determine whether the record shows two plausible, but contradictory, accounts of the essential facts and the ‘genuine issue’ in the case is real, not merely argumentative, imaginary, or frivolous." Id. at 820. "Summary judgment should not be granted unless evidence could not support any reasonable inference for the non-movant." Id. at 818.

In her first point on appeal, Kerr asserts that the circuit court erred in granting summary judgment for the University because the court misstated and misapplied the elements of an MHRA age discrimination claim. Kerr claims that the circuit court erroneously required her to show disparate treatment based on age. Kerr asserts that a submissible MHRA age discrimination case does not require a showing of disparate treatment and that a plaintiff may prevail by showing "any unfair treatment" in employment in which consideration of age was a contributing factor.

"The MHRA protects persons aged 40 to 70 from age discrimination." Daugherty , 231 S.W.3d at 820 n. 8 (citing § 213.010(1), RSMo 2000 ). Section 213.055.1(1)(a), RSMo 2000, states that it shall be an unlawful employment...