Shore v. Children's Mercy Hosp.

• Decision Date: 22 December 2015
• Docket Number: WD 78530
• Citation: 477 S.W.3d 727
• Parties: Richard Shore, M.D., Appellant, v. The Children's Mercy Hospital and Dr. Gerald Woods, Respondents.
• Court: Missouri Court of Appeals

477 S.W.3d 727

Richard Shore, M.D., Appellant,

v.The Children's Mercy Hospital and Dr. Gerald Woods, Respondents.

WD 78530

Missouri Court of Appeals, Western District.

OPINION FILED: December 22, 2015

R. Mark Nasteff, Jr., and Amy D. Quinn, Liberty, MO, Attorneys for Appellant.

Julianne P. Story and Kate E. McClymont, Kansas City, MO, Attorneys for Respondents.

Before Division II: Mark D. Pfeiffer, Presiding Judge, and Lisa White Hardwick and James Edward Welsh, Judges

Mark D. Pfeiffer, Presiding Judge

Dr. Richard Shore ("Dr. Shore") appeals the grant of summary judgment of the Circuit Court of Jackson County, Missouri ("trial court"), in favor of his former employer, The Children's Mercy Hospital ("Children's Mercy"), and his former supervisor, Dr. Gerald Woods ("Dr. Woods"), on his claims for racial discrimination and retaliation pursuant to the Missouri Human Rights Act ("MHRA"), sections 213.055 and 213.070, RSMo 2000. We affirm.

Factual and Procedural Background¹

Children's Mercy hired Dr. Shore (Caucasian male) on October 31, 2005, to work in its Hematology/Oncology ("Hem/Onc") Division. Dr. Shore's immediate supervisor was Dr. Woods (African–American male), who offered Dr. Shore the job.

In the years following Dr. Shore's hire, Dr. Woods invited Dr. Shore to his house to play tennis, invited Dr. Shore to join his fantasy football league, invited Dr. Shore and his wife to attend a social event with Dr. Woods and other Children's Mercy staff members, and went bowling with Dr. Shore. Dr. Shore agreed that during this time, he and Dr. Woods had become "friends," or were at least "friendly" with one another.

In April 2010, a lack of office space made it necessary for several of the Hem/Onc doctors to move their offices from the main hospital building to a mobile office unit across the street. Dr. Woods asked Dr. Shore to make the move with several other doctors and to serve as a mentor to the other, more junior, doctors who were moving. Dr. Shore was upset about the move, asked Dr. Woods to reconsider, and complained repeatedly over several months to Dr. Woods until Dr. Woods relented. In October 2010, Dr. Woods offered Dr. Shore the use of an office back inside the main hospital building when he was working in the main hospital building. Dr. Shore considered this a small but significant gesture of friendship by Dr. Woods. During this same meeting, Dr. Woods confided to Dr. Shore that he was disappointed with the attitudes of many of the Hem/Onc doctors toward patients receiving treatment at the hospital for sickle-cell anemia

.

Several days later, on November 3, 2010, at a senior staff meeting, Hem/Onc doctors were discussing how to lighten the workload for Hem/Onc residents. Dr. Shore stated, "I may be going to hang myself with this, but ...," and suggested that sickle-cell patients be placed on the general pediatrics service and that the hematologists only serve as consultants in their care. This suggestion offended Dr. Woods, who later told Dr. Shore that he felt that his comment was a betrayal of their friendship, was disrespectful, and was racist. Later that same evening, Dr. Shore wrote an email apology to Dr. Woods stating that he did not mean to offend Dr. Woods. In response, Dr. Woods wrote back to Dr. Shore:

Based on your actions last night, our conversation last Friday meant nothing! Your words were not only hurtful, but selfish and disrespectful. I expected more compassion from you, but that was clearly a misguided thought. At this point, do your job, try to stay out of trouble, and we will not have any immediate problems. Trying to engage me further beyond professional matters [ ] will only make things worse!

After this exchange, Dr. Shore believed that Dr. Woods did not like him and that Dr. Woods treated him unfairly, finding fault with everything that Dr. Shore did. In fact, according to Dr. Shore, after his sickle-cell comment, "[e]very action that took place over the next two years was based on that comment and getting me out of his life and out of Children's Mercy Hospital."

Thereafter, Dr. Woods treated Dr. Shore coolly, removed Dr. Shore from a Hem/Onc committee, and refused to support Dr. Shore's effort to expand his professional practice. Although Dr. Shore acknowledged that his personality caused others to perceive him as loud, direct, and even rude and obnoxious, he felt that Dr. Woods's attitude toward him was undeserved and that it was attributable, in part, to Dr. Woods's mistaken belief that Dr. Shore was, in fact, a racist. Dr. Shore shared this view with Children's Mercy's Human Resources personnel and, in December of 2010, also met with the Children's Mercy's Chair of Pediatrics and told him that Dr. Woods had called him a racist. Dr. Woods was aware that Dr. Shore had complained about him in these meetings.

In July 2011, in response to the conflict between Drs. Shore and Woods, Children's Mercy removed Dr. Shore from Dr. Woods's direct supervision and placed him under the direct supervision of Dr. Alan Gamis (Caucasian male). During the time that Dr. Shore was under Dr. Gamis's supervision, various Hem/Onc nurses and support staff complained about Dr. Shore's rude or otherwise inappropriate behavior.² Dr. Gamis discussed these issues with Dr. Shore and counseled Dr. Shore about the complaints. In January 2012, while Dr. Shore was still under Dr. Gamis's immediate supervision, Children's Mercy Human Resources personnel and the Chair of Pediatrics met with Dr. Shore to discuss his problematic workplace behaviors. None of these meetings or conversations involved input or participation by Dr. Woods.

In May 2012, Dr. Shore's permanent office was moved back to the main hospital building from the modular unit across the street, and Dr. Shore was re-assigned to Dr. Woods's direct supervision shortly thereafter in June 2012. Although Dr. Shore had complained about moving from the hospital to the modular unit for months, he also opposed moving back to the main building from the modular unit.

In an email conversation with the Chair of Pediatrics (Dr. Michael Artman) on May 17, 2012, Dr. Woods expressed his frustration with Dr. Shore's continuing "whininess that stirs the pot." Dr. Artman responded with an understanding of the tension between Drs. Woods and Shore, but asked Dr. Woods to "step back" and remember to supervise Dr. Shore similarly to Dr. Shore's other colleagues on the Hem/Onc Division (which was comprised of seventeen Caucasians and four non-Caucasians).

Thereafter, Dr. Woods received additional complaints about Dr. Shore and, on July 17, 2012, Dr. Woods gave Dr. Shore a written warning stating that, despite his counseling in January of 2012, Dr. Shore had engaged in "inappropriate and disruptive" behaviors including:

• Interactions with an APN [nurse] which were described as ‘rude and confrontational.’

• A ‘public’ complaint about Dr. Woods['s] Instruction(s) for your moving from Modular 3 offices to the main office area.

• Making an individual decision that you would not be renewing your Kansas license and therefore would not be fulfilling your assignments at CMS³ for this current academic year.

• Persistent ‘badgering’ of your administrative assistant to submit a request for an expenditure (that was later determined to be unreasonable).

Dr. Shore was not terminated at that time. However, following this written warning, on October 4, 2012, another female employee complained about Dr. Shore, accusing him of inappropriate workplace behavior, including Dr. Shore's use of the word "f* *k." Dr. Shore admitted to using the word at least one time on that day but denied other behaviors alleged by the female employee relating to sexual harassment. After receiving this latest complaint, Dr. Woods terminated Dr. Shore's employment with Children's Mercy.

Dr. Shore sued Children's Mercy and Dr. Woods under the MHRA alleging discrimination on the basis of race and religion and retaliation for having complained of Dr. Woods's unfair treatment of him. Dr. Woods and Children's Mercy filed a motion for summary judgment, claiming that Dr. Shore had failed to present a genuine issue of material fact that Dr. Woods's treatment of, and attitude toward, Dr. Shore were based upon his race (Caucasian) or his religion (Jewish) rather than Dr. Shore's own inappropriate behaviors. Children's Mercy and Dr. Woods also claimed that Dr. Shore had failed to present a genuine issue of material fact that retaliation was a contributing factor in his termination because Dr. Shore had not engaged in any protected activity in that he never complained that Dr. Woods's dislike of him was based upon his religion or his race. The trial court granted the motion for summary judgment, and this appeal follows, although Dr. Shore does not appeal the grant of summary judgment with respect to his claim of religious discrimination.

Standard of Review

We review the grant of summary judgment de novo. ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).

Our criteria when reviewing the grant of summary judgment are no different than those that the trial court should have used to sustain the motion initially. Id. We review the record in the light most favorable to the party against whom judgment was entered and give the non-moving party the benefit of all inferences that are reasonable from the record. Cent. Mo. Elec. Co – op v. Balke, 119 S.W.3d 627, 635 (Mo.App.W.D.2003). "A defending party can demonstrate entitlement to summary judgment by showing: (1) facts negating any of the claimant's necessary elements; (2) the claimant, after an adequate period of discovery, has been unable, 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) there is no genuine dispute of the existence of facts required to support the defending party's properly pleaded affirmative defense." Scottsdale Ins. Co. v. Addison Ins. Co., 448...