Lampley v. Mo. Comm'n On Human Rights
| Decision Date | 24 October 2017 |
| Docket Number | WD80288 |
| Parties | HAROLD LAMPLEY AND RENE FROST; Appellants, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI, Amicus Curiae, v. MISSOURI COMMISSION ON HUMAN RIGHTS, AND ALISA WARREN, EXECUTIVE DIRECTOR, MISSOURI COMMISSION ON HUMAN RIGHTS, Respondents. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Cole County, Missouri
Harold Lampley and Rene Frost appeal a grant of summary judgment in favor of the Missouri Commission on Human Rights ("MCHR") on their consolidated discrimination and retaliation claims. They raise two points on appeal. Point I contends the trial court erred in finding their claims were based on sexual orientation and not sex. Point II contends the trial court abused its discretion, because competent substantial evidence did not support the MCHR's conclusion that sexual orientation was the basis of their claims. We reverse and remand.
In 2014, Lampley filed charges of sex discrimination and retaliation against his employer, the State of Missouri's Office of Administration Child Support Enforcement Division. The charges were made pursuant to Sections 213.055(1) and 213.070(2) of the Missouri Human Rights Act ("MHRA") and filed with the Equal Employment Opportunity Commission ("EEOC") and the MCHR, per their work-share agreement.1 Lampley alleges his employer discriminated against him based on sex, because his behavior and appearance contradicted the stereotypes of maleness held by his employer and managers. These stereotypes, Lampley argues, motivated his employer to harass him and treat him differently from similarly situated employees who conformed to gender stereotypes. He further argues he was grossly underscored in a performance evaluation in retaliation for his complaint. Frost, Lampley's close friend and co-worker, filed discrimination charges under Section 213.070(4) later in 2014, alleging retaliation based on her association with Lampley. The EEOC investigated both Appellants' complaints, but the MCHR terminated the proceedings, stating it lacked jurisdiction over claims based on sexual orientation. Though their original petitions acknowledge Lampley is gay, Appellants insist sex, and not sexual orientation, is the basis of their claims. The MCHR did not address Appellants' theory of sex discrimination evidenced by sex stereotyping. Lampley and Frost petitioned the trial court for administrative review (or, alternatively, mandamus to issue Right to Sue notices). The trial court consolidated their petitions and granted summary judgment in favor of the MCHR.
In their first point, Appellants argue the trial court erred, because their claim of discrimination was based on sex and not, as the court determined, sexual orientation. We review the trial court's entry of summary judgment "essentially de novo," ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Co., 854 S.W.2d 371, 376 (Mo. banc 1993). Evidence is viewed in the light most favorable to the nonmoving party, which is given all reasonable inferences from the record in determining whether there is any genuine issue of material fact. Hale ex rel. Hale v. City of Jefferson, 6 S.W.3d 187, 195 (Mo. App. 1999). "Summary 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. Maryland Heights, 231 S.W.3d 814, 818 (Mo. banc 2007) (citation omitted). "Summary judgment should not be granted unless evidence could not support any reasonable inference for the non-movant." Id. Because evidence of sex stereotyping can support a reasonable inference of sex discrimination, we conclude there remain genuine issues of material fact precluding summary judgment.
The relevant language of Section 213.055 provides it is unlawful "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of . . . sex[.]" Discrimination because of sexual orientation is not prohibited. Pittman v. Cook Paper Recycling Corp., 478 S.W.3d 479, 483 (Mo. App. 2015). Thus, the question before us is whether Appellants have stated a discrimination claim based on sex. We find Appellants have consistently done so.
In his initial complaint to the EEOC and the MCHR, Lampley checked the boxes for "SEX" and "RETALIATION" as the bases for his discrimination claim. He did not check "OTHER." Inhis Petition for Administrative Review (or Mandamus), Lampley alleged his employer violated his rights under the MHRA "by discriminating against him based on sex[.]" Frost consistently based her discrimination and retaliation claims on her association with Lampley as a member of the protected class of sex. In their appeal to this court, Appellants again maintain they suffered discrimination based on sex. Appellants have never stated a claim of discrimination based on sexual orientation or another unprotected class. Lampley's sexual orientation is incidental to the underlying claim of sex discrimination, which Appellants contend was evidenced by sex stereotyping.
Sex stereotyping as a theory of sex discrimination was first articulated in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In Price Waterhouse, a female senior manager in an accounting firm was denied partnership in the firm, because partners considered her insufficiently feminine. Id. at 235. A plurality of the Supreme Court held that an adverse employment action motivated by such stereotyping was actionable sex discrimination under Title VII, declaring:
we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for 'in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.'
Id. at 251 (citation omitted). Price Waterhouse "confirmed that 'discrimination on the basis of sex' means the deprivation of one sex of a right or privilege afforded the other sex, including a deprivation based on a trait unique to one sex, or a deprivation based on traits perceived as unique to one sex." R.M.A. v. Blue Springs R-IV School Dist., No. WD80005, 2017 WL 3026757, at *8 (Mo. App. July 18, 2017) (emphasis added). Price Waterhouse has been cited in thousands of cases across all federal circuits, and state courts have also adopted a sex stereotyping analysis wheninterpreting their human rights laws. See, e.g., Nelson v. James H. Knight DDS, P.C., 834 N.W.2d 64 (Iowa 2013); Enriquez v. West Jersey Health Systems, 777 A.2d 365 (N.J. Super. 2001); Behrmann v. Phototron Corp., 795 P.2d 1015 (N.M. 1990); Arcuri v. Kirkland, 978 N.Y.S.2d 439 (N.Y. App. Div. 2014); Graff v. Eaton, 598 A.2d 1383 (Vt. 1991); Gray v. Morgan Stanley DW, Inc., No. 54347-4-1, at *3 (Wash. Ct. App. 2005).
Though Missouri courts have not formally pronounced "that sexual stereotyping falls within the intended scope of the MHRA," R.M.A. at *8, our existing case law provides a framework that readily accommodates a sex stereotyping theory. More specifically, we conclude that sex stereotyping can satisfy the fourth element of a prima facie sex discrimination case.
The elements of a prima facie discrimination case are: 1) the employee belonged to a protected class; 2) the employee was qualified to perform his or her job; 3) the employee suffered an adverse employment action; and 4) the employee was treated differently from similarly situated members of the opposite sex. Buchheit, Inc. v. Missouri Comm'n on Human Rights, 215 S.W.3d 268, 277 (Mo. App. 2007). "The fourth element ... also can be met if the employee provides 'some other evidence that would give rise to an inference of unlawful discrimination.'" Id. (quotes and citation omitted).
Sex-based stereotyping can give rise to an inference of unlawful discrimination. For example, in Midstate Oil Co., Inc. v. Missouri Comm'n on Human Rights, 679 S.W.2d 842 (Mo. banc 1984), the MCHR concluded that "Respondent's decision [to dismiss complainant] was not based on [c]omplainant's inability to perform the duties, but rather was based on obsolete and stereotyped ideas about what tasks a pregnant woman should be performing." Id. at 846. While our Supreme Court found there was insufficient evidence to support the MCHR's findings, it agreed that "an employment decision that adversely affects a person within a protected class" mustbe "rational and nondiscriminatory." Id. at 847. As sex-based stereotyping is fundamentally irrational, Nguyen v. Immigration and Naturalization Service, 533 U.S. 53, 68 (2001) (), it can support an inference of unlawful discrimination.
This court has already recognized that stereotyping can support an inference of age discrimination. In Ferguson v. Curators of Lincoln Univ., 498 S.W.3d 481, 492 (Mo. App. 2016), we stated that "[t]hough mere inquiries into the retirement plans of an employee who is of retirement age do not rise to the level of age discrimination, when (1) the decision to terminate an employee is based upon an age-dependent factor (such as retirement eligibility), (2) the employer offers implausible alternate explanations for the termination, and (3) there is evidence that someone with the ability to influence the decision acted based on age-based stereotypes, there is sufficient evidence from which a jury can infer that age was a contributing factor to the termination decision." Id. at 492 (citation and quotes omitted) (emphasis added).
Additionally, even the MCHR's own employment regulations identify sex-based...
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