Pittman v. Cook Paper Recycling Corp.

• Decision Date: 27 October 2015
• Docket Number: WD 77973
• Citation: 478 S.W.3d 479
• Parties: James Pittman, Appellant, v. Cook Paper Recycling Corp., Respondent.
• Court: Missouri Court of Appeals

478 S.W.3d 479

James Pittman, Appellant,

v.Cook Paper Recycling Corp., Respondent.

WD 77973

Missouri Court of Appeals, Western District.

OPINION FILED: October 27, 2015

Motion for Rehearing and/or Transfer to Supreme Court Denied November 24, 2015

Application for Transfer Denied January 26, 2016

Lynne Bratcher, Kansas City, MO, Counsel for Appellant.

Marie Gockel, Kansas City, MO, Co–Counsel for Appellant.

Patricia Konopka, Kansas City, MO, Counsel for Respondent.

Marc Goldstein, St. Louis, MO, Co–Counsel for Respondent.

Anthony Rothert, St. Louis, MO, Counsel for Amicus Curiae.

Before Special Division: James Edward Welsh, P.J., Anthony Rex Gabbert, J., and Robert M. Clayton III, Sp. J.

James Edward Welsh, Presiding Judge

James Pittman appeals from the circuit court's judgment dismissing his petition for damages alleging that his employer, Cook Paper Recycling Corporation, "caused the workplace to be an objectively hostile and abusive environment based on sexual preference." The circuit court dismissed Pittman's petition for failure to state a claim.¹ Pittman contends that the circuit court erred in dismissing his claim because his petition adequately stated a claim for sex discrimination in that he alleged that he was harassed and terminated from his employment because of his sexual orientation.² Because the Missouri Human Rights Act does not prohibit discrimination on the basis of sexual orientation, we affirm the circuit court's judgment dismissing Pittman's petition for failure to state a claim.

The facts, as alleged in Pittman's petition, are as follows. Pittman, a homosexual male, worked as a controller at Cook Paper from April 2004 until his termination on December 7, 2011. During the time Pittman was employed by Cook Paper, the president of the company, Joe T. Jurden, told Pittman that "he was a ‘cocksucker’ and made other comments of a sexual nature, discriminatory to a male homosexual, including asking him if he had AIDS." Cook Paper "discriminated against [Pittman] because [Cook Paper] did not approve of the male companion that [Pittman] had been seeing." When Pittman and his companion terminated their relationship, Cook Paper "treated [Pittman] more harshly than a male who was getting a divorce from his female wife." Cook Paper "caused the workplace to be an objectively hostile and abusive environment based on sexual preference." On December 7, 2011, Cook Paper terminated Pittman's employment.

On February 3, 2014, Cook Paper filed a motion to dismiss Pittman's petition alleging that the petition failed to state a claim for which relief could be granted. Specifically, Cook Paper argued that Missouri law lacks any legal standard or statute prohibiting employment discrimination on the basis of "sexual preference" and that "sexual preference" is not a protected class under the Missouri Human Rights Act. The circuit court agreed and dismissed Pittman's claim. The circuit court found that Pittman did not allege discrimination on the basis of "sex" but alleged that he was discriminated against because he was a homosexual. Thus, the circuit court concluded that the Missouri Human Rights Act does not include sexual orientation as a class of individuals protected from discrimination. Moreover, although Pittman urged the court to recognize the claim of "sexual stereotyping," the circuit court declined Pittman's request and stated that it was not the role of the court to create new causes of action. The court found that "[b]ased on the current state of Missouri law," it had to dismiss Pittman's claim. Pittman appeals.

This Court reviews the grant of a motion to dismiss de novo. Travelers Prop. Cas. Co. of Am. v. Manitowoc Co., Inc., 389 S.W.3d 174, 176 (Mo. banc 2013). "[R]eview of a motion to dismiss for failure to state a cause of action ‘is solely a test of the adequacy of the plaintiffs petition.’ " Id. (quoting City of Lake St. Louis v. City of O'Fallon, 324 S.W.3d 756, 759 (Mo. banc 2010) ). We review the petition " ‘in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.’ " Travelers Prop., 389 S.W.3d at 176 (quoting City of Lake St. Louis, 324 S.W.3d at 759 ). We examine the petition, accepting as true all facts alleged and construing them liberally in favor of the plaintiff to determine whether he has stated a claim upon which relief can be granted. Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008).

In his sole point on appeal, Pittman asserts that the circuit court erred in dismissing his claim because his petition adequately stated a claim for sex discrimination. In particular, Pittman contends that his allegation that he was harassed and terminated from his employment because of his sexual orientation was sufficient to state a claim for discrimination under the Missouri Human Rights Act.

The issue of whether or not discriminating against an employee because of his sexual orientation is prohibited under the Missouri Human Rights Act is a question of first impression in Missouri. Section 213.055.1(1)(a), RSMo 2000, provides:

1. It shall be an unlawful employment practice:

(1) For an employer, because of the race, color, religion, national origin, sex, ancestry, age or disability of any individual:

(a) To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, national origin, sex, ancestry, age or disability[.]

"The primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute at issue." Crawford v. Div. of Emp't Sec., 376 S.W.3d 658, 664 (Mo. banc 2012). "Where the language of the statute is unambiguous, courts must give effect to the language used by the legislature." Keeney v. Hereford Concrete Prods., Inc., 911 S.W.2d 622, 624 (Mo. banc 1995). "Courts lack authority ‘to read into a statute a legislative intent contrary to the intent made evident by the plain language.’ " Id. (citation omitted). No room exists for construction " ‘even when the court may prefer a policy different from that enunciated by the legislature.’ " Id. (citation omitted).

The plain language of the Missouri Human Rights Act is clear and unambiguous. Employers cannot discriminate against employees on the basis of their "sex." The clear meaning prohibiting discrimination based upon "sex" under the Missouri Human Rights Act intended by the Missouri legislature concerns discrimination based upon a person's gender and has nothing to do with sexual orientation. Indeed, the first definition of "sex" provided by Webster's Third New International Dictionary is "one of the two divisions of human beings respectively designated male or female[.]" Webster's Third New International Dictionary 2081 (Unabridged 1993). Legislative intent is the pole star of statutory interpretation and construction. Once legislative intent has been determined and becomes the pole star of statutory construction, there can be no unintended consequences of legislation by judicial interpretation. Thus, sex discrimination occurs when a plaintiff's sex is a contributing factor in an employer's employment decision. Ruppel v. City of Valley Park, 318 S.W.3d 179, 185 (Mo.App. 2010). Pittman does not allege that he was discriminated against or harassed because of his gender but alleges that he was discriminated against because of his sexual orientation.

In essence, Pittman's petition is seeking a declaration that sexual orientation discrimination qualifies for protection under the Missouri Human Rights Act because it is tantamount to discrimination based on sex. We note, however, that, to even reach this reading of Pittman's petition, we must liberally construe the petition because, as the circuit court wisely noted, the petition truly does not allege discrimination or harassment on the basis of "sex." Pittman merely alleges that "[Cook Paper] caused the workplace to be an objectively hostile and abusive environment based on sexual preference. "³

The Missouri Human Rights Act, however, is not a general bad acts statute but lists categories of discrimination that are unlawful: "race, color, religion, national origin, sex, ancestry, age or disability." Unlike many other states,⁴ Missouri has not enacted legislation prohibiting discrimination against homosexuals by adding sexual orientation as a protected status in the Missouri Human Rights Act.⁵ If the Missouri legislature had desired to include sexual orientation in the Missouri Human Rights Act's protections, it could have done so. No matter how compelling Pittman's argument may be and no matter how sympathetic this court or the trial court may be to Pittman's situation, we are bound by the state of the law as it currently exists. Without the legislative addition of "sexual orientation" to the statutory list of protected statuses, the Missouri Human Rights Act does not prohibit discrimination based upon a person's sexual orientation.

"[C]ourts cannot rewrite the statutes the legislature in its wisdom has enacted no matter how much such rewriting is desired by a particular group." Gross v. Merchants–Produce Bank, 390 S.W.2d 591, 600 (Mo.App. 1965). "We cannot usurp the function of the General Assembly, or by construction, rewrite its acts." Marshall v. Marshall Farms, Inc., 332 S.W.3d 121, 128 (Mo.App. 2010). Our role is limited to interpreting and applying the statute as it currently exists. "To substitute for the concept of the general assembly our view of what might be the more salutary public policy would be for us to legislate rather than to adjudge." Lemasters v. Willman, 281 S.W.2d 580, 590 (Mo.App. 1955). "Our function is to declare the law as we discover it in the text furnished us by the general assembly and when we have done so our authority ends." Id. "We must leave...