M.W. v. Six Flags St. Louis, LLC

• Citation: 605 S.W.3d 400
• Decision Date: 21 July 2020
• Docket Number: No. ED 107943,ED 107943
• Parties: M.W., an infant, BY AND THOUGH her natural guardian and next friend, K.W., Appellant, v. SIX FLAGS ST. LOUIS, LLC, Respondent.
• Court: Missouri Court of Appeals

605 S.W.3d 400

M.W., an infant, BY AND THOUGH her natural guardian and next friend, K.W., Appellant,

v.SIX FLAGS ST. LOUIS, LLC, Respondent.

No. ED 107943

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: July 21, 2020

Jeremy D. Hollingshead, Daniel Joseph Nolan, 309 N. Main Street, Suite 2401, St. Louis, MO 63105, for appellant.

Mikela T. Sutrina, 70 West Madison Street, Ste. 4800, Chicago, IL 60602, for respondent.

Before James M. Dowd, P.J., Gary M. Gaertner, Jr., J., and Robin Ransom, J.

OPINION

Robin Ransom, Judge

M.W. appeals the trial court's grant of summary judgment in favor of Six Flags St. Louis, LLC, ("Six Flags") on her claim of sex discrimination under the Missouri Human Rights Act ("MHRA"), Section 213.010, RSMo. (2016)¹ et seq. , due to a hostile work environment. She argues Six Flags was not entitled to judgment as a matter of law because genuine issues of material fact exist regarding two of the elements of a hostile work environment claim: that the harassment affected a term, condition, or privilege of her employment; and that Six Flags knew or should have known of the harassment and failed to take appropriate remedial action. However, the evidence before us does not raise any genuine issues of material fact and M.W. has failed to adduce sufficient evidence allowing a jury to find these two essential elements of her hostile work environment claim. We therefore affirm the trial court's grant of summary judgment in favor of Six Flags.

Background ²

M.W. began working as a seasonal employee at Six Flags when she was sixteen years old and worked the 2016 and 2017 summer seasons, which ran from May 29 to November 5, 2016, and from June 3 to September 24, 2017. During these two seasons, M.W. was a ride operator at the Justice League and Shazam rides. Upon being hired, M.W. attended orientation and training on Six Flags's procedures, which included training on the "Zero Tolerance of Harassment and Discrimination" policy and the procedure to report harassment. Two primary incidents of harassing conduct occurred in July of 2016 while M.W. worked at Six Flags.

a. Complained-of harassing conduct

The complained-of conduct consisted of harassing behavior on the part of two of M.W.’s male non-supervisory co-workers, J.B. and T.W. These two incidents are referred to as the "Glasses Room Incident" and the "Video Incident," described below.³

i. Glasses Room Incident

On July 6, 2016, M.W. and a female co-worker, N.G., were assigned to clean the 3-D glasses used on the Justice League ride in the "glasses room," where equipment for the ride was maintained. J.B. and T.W. entered, locked the door, and were greeted by M.W. and N.G. J.B. commented that there were "two girls and two boys" in the room and suggested they should "get it on." J.B. and T.W. proceeded to pull down their pants, but not their underwear. M.W. instructed them to pull their pants back up, and both boys complied. At some point, J.B. and T.W. tightly grabbed M.W. by the arms and legs, laughing. M.W. stated she did not find their behavior funny and kicked J.B.; after they released M.W., T.W. stepped on her hair. M.W. proceeded to unlock the "glasses room" door, clock out of work for the night, and leave Six Flags.

ii. Video Incident

Later that night, on July 6, 2016, some employees stayed after Six Flags had closed to enjoy the park, as they were allowed to do on designated "ride nights." After the Glasses Room Incident, N.G. and J.B. stayed at Six Flags for an employee "ride night." The next day, on July 7, 2016, J.B. approached M.W. to show her something on his cellular telephone from the employee night: a video of N.G. engaging in oral sex with J.B. M.W. saw approximately five seconds of the video and pushed the cellular telephone away. J.B. proceeded to hit and "karate chop" M.W. on the head, instructing her not to tell anyone about the video he showed her.

b. Six Flags's response to the complained-of conduct

On July 7, 2016, the same day that J.B. showed her the video, M.W. told two of her supervisory "leads," Tyler Bauman ("Bauman") and Brittney Jackson ("Jackson"), about the Video Incident. M.W. did not tell either lead about the Glasses Room Incident. Bauman reported the Video Incident and J.B.’s behavior to the Six Flags Human Resources ("H.R.") department the next morning, on July 8, 2016. Bauman and one other lead were interviewed that day in connection with this report, and another lead was interviewed on July 9. H.R. also contacted N.G. on July 8 to meet with her regarding the Video Incident. N.G. met with H.R. during her next regularly scheduled shift on July 9, during which she formally filed a complaint with H.R. against J.B. and T.W.

Six Flags H.R. officially launched an investigation into the Video Incident on July 9, 2016, after speaking with N.G. This investigation was led by H.R. Supervisor JoAnn Hamilton ("Hamilton") and H.R. Manager Michael Ude ("Ude"). Both J.B. and T.W. were interviewed on July 9 and were suspended pending the investigation. As part of its investigation into the Video Incident, Hamilton and Ude interviewed M.W. on July 11, her next regularly scheduled shift. Because M.W. was a minor at the time, Six Flags notified M.W.’s parents of the interview. During M.W.’s interview, M.W. described both the Video Incident and the Glasses Room Incident; M.W. also provided a written statement of the two incidents. M.W.’s impression during the interview was that H.R. personnel was aware of the Glasses Room Incident prior to her interview because Hamilton and Ude asked M.W. "what happened in the room"; Hamilton attested that H.R. had no knowledge of the Glasses Room Incident before M.W.’s July 11 interview. Hamilton and Ude offered to M.W. that she could move to another ride at Six Flags if she would feel more comfortable in a different area, and asked M.W. what changes she would like enacted if she decided to stay at Six Flags. M.W. testified at her deposition that, at the end of her H.R. interview, Hamilton told M.W. that "[She] can't let those two bother [her]. They're boys. Boys are going to be boys, and it's going to happen at workplaces."⁴

As a result of the investigation, Six Flags terminated both J.B. and T.W., effective July 9, 2016. Six Flags also reported the video on J.B.’s cellular telephone to the Eureka police that same day. J.B.’s last day working at Six Flags was July 7, 2016; T.W.’s was July 8, 2016, on which M.W. and T.W. worked together. According to H.R. documents, J.B.’s inappropriate behavior was first reported to Six Flags on July 8 and T.W.’s inappropriate behavior was reported on July 9. H.R. documents note no previous instances of inappropriate behavior, and Hamilton attested that N.G.’s complaint was the first formal or informal complaint that Six Flags had received regarding J.B. or T.W. M.W., however, stated in her deposition that J.B. had previously engaged in inappropriate behavior, of which Six Flags was or should have been aware.

c. M.W.’s hostile work environment claim under the MHRA

M.W. filed a one-count petition alleging sexually harassing conduct creating a hostile work environment at Six Flags, in violation of the MHRA, on May 30, 2017. The complaint specifically identified harassing conduct on the part of J.B. during the summer of 2016. In January of 2019, Six Flags filed a motion for summary judgment contending it was entitled to judgment as a matter of law because M.W. could not establish two essential elements of her claim: that the harassing conduct affected a term, condition, or privilege of her employment; and that Six Flags knew or should have known of the harassing conduct and failed to take proper remedial action. The trial court heard argument on Six Flags's motion, took it under advisement, and granted summary judgment in favor of Six Flags on April 24, 2019. This appeal follows.

Standard of Review

Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Mo. R. Civ. P. 74.04(c)(6) (2019).⁵ "A ‘genuine issue’ is a dispute that is real, not merely argumentative, imaginary or frivolous." ITT Commercial Fin. Corp. v. Mid.-Am. Marine Supply Corp. , 854 S.W.2d 371, 382 (Mo. banc 1993). Where, as here, the party seeking summary judgment is the defending party,⁶ it may establish a right to summary judgment by showing: (1) facts negating any one of the claimant's elements; (2) that the party opposing the motion has presented insufficient evidence to allow the finding of 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 a properly pleaded affirmative defense. Id. at 381. Unless contradicted by the non-movant's response, we take as true the facts set forth in support of the summary judgment motion. Id. at 376.

We review a trial court's grant of summary judgment de novo, viewing the record and all reasonable inferences therefrom in the light most favorable to the party against whom judgment was entered. Id. However, we exercise caution in affirming a grant of summary judgment because summary judgment is "an extreme and drastic remedy" that forecloses the opposing party's day in court. Id. at 377. Such caution is particularly warranted "in employment discrimination cases, because such cases are inherently fact-based and often depend on inferences rather than on direct evidence." Hill v. Ford Motor Co. , 277 S.W.3d 659, 664 (Mo. banc 2009).

Discussion

On appeal, M.W. challenges the trial court's grant of summary judgment in favor of Six Flags on her claim of sexual discrimination under the MHRA due to a hostile work environment. The MHRA prohibits an employer from discriminating against an individual with respect to "compensation, terms, conditions, or privileges of employment, because of such individual's ... sex...." Section 213.055.1(1)(a).⁷ To prevail on a claim of discrimination due to a...