Smith v. General Motors
Filing
65
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment, Doc. 51 , is GRANTED. IT IS FURTHER ORDERED that Defendant's Motion To Deem Admitted All Facts In Defendant's Statement Of Uncontroverted Materi al Facts Pursuant To Rule 56(E) And To Strike Plaintiff's Unsupported Facts, Doc. 62 , is GRANTED. The Clerk of Court is directed to strike Plaintiff's facts, Doc. 57 , from the record. Signed by District Judge Matthew T. Schelp on 2/3/2023. (TMT)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DARIUS SMITH,
Plaintiff,
vs.
GENERAL MOTORS,
Defendant.
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Case No. 4:20-cv-562-MTS
MEMORANDUM AND ORDER
Before the Court is Defendant’s Motion for Summary Judgment, Doc. [51], pursuant to
Federal Rule of Civil Procedure 56, on Plaintiff’s four-count Petition, Doc. [5], asserting claims
under the Missouri Human Rights Act (“MHRA”). For the reasons set forth below, the Court
grants Defendant’s Motion.
Before addressing the several procedural and substantive issues raised in this Motion, the
Court notes Plaintiff’s failure to litigate. Plaintiff failed to “set forth specific facts” or any evidence
at all in opposition to summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Instead, throughout his Opposition, Plaintiff relied exclusively on unsupported factual
allegations in support of his claims. See, e.g., Doc. [59] at 11, 14, 15 (using language like “Plaintiff
has properly alleged” or “Plaintiff specifically alleges”) (emphasis added). Plaintiff “may not
merely point to unsupported self-serving allegations” but must, on a motion for summary
judgment, “substantiate” his allegations with “sufficient probative evidence” that would permit a
finding in his favor. Reed v. City of St. Charles, 561 F.3d 788, 791–92 (8th Cir. 2009). Plaintiff’s
Opposition provides the Court with a handful of broad-sweeping legal propositions 1 from which
Also, notably, Plaintiff uses the wrong legal standard, arguing the “contributing factor” standard as opposed to
“motivating factor” standard applicable to claims for discrimination under the MHRA after August 28, 2017. See,
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he summarily concludes his claims are sufficiently actionable under the MHRA. “Evidence, not
contentions, avoids summary judgment.” Reasonover v. St. Louis Cnty., 447 F.3d 569, 578 (8th
Cir. 2006). Plaintiff has not put forth any evidence upon which this Court can rely to justify denial
of Defendant’s motion for summary judgment.
Moreover, both in his Opposition, Doc. [59], and so-called “fact” section, Doc. [57],
Plaintiff did not incorporate facts from or citations to the evidentiary record. Fed. R. Civ. Pro.
56(c), (e) (requiring facts be supported by evidentiary record); L.R. 4.01(E) (same). Sometimes,
Plaintiff even argued completely new (and unsupported) facts that were never raised in his charge
of discrimination, prior pleadings, discovery, or deposition. And more egregiously, Plaintiff
repeatedly relied on facts he flatly denied in his own sworn deposition testimony.
Plaintiff also failed to controvert Defendant’s Statement of Material Facts, as required by
the Federal Rules of Civil Procedure and the Local Rules of this District. Fed. R. Civ. Pro.
56(c)(1); L.R. 4.01(E); see Doc. [57]. In fact, Plaintiff completely failed to respond to 100 of
Defendant’s 140 factual assertions. 2 Accordingly, as both the Federal and Local Rules provide,
the Court deems Defendant’s facts as admitted. 3 Fed. R. Civ. Pro. 56(e)(2) (“If a party fails to
properly . . . address another party’s assertion of fact as required by Rule 56(c), the court may . . .
e.g., Doc. [59] at 10-12 (“Plaintiff has properly alleged that his race was the contributing factor in the harassment.”)
(emphasis added).
Plaintiff’s Response to Defendant’s Statement of Material Facts (“SOMF”) consists of 36 numbered paragraphs that
do not correlate in any way to the numbered paragraphs contained in Defendant’s SOMF. See Doc [57]. In three
numbered paragraphs, Plaintiff stated he “concurs with” the factual statements in 40 of Defendant’s SOMF. Id. ¶ 1
(1–23), ¶ 4 (26–38), ¶ 7 (41–44). Plaintiff does not address the other 100 SOMF, did not properly indicate that a
genuine issue existed, nor cite to the record supporting a contradiction. Instead, the remaining 33 paragraphs in
Plaintiff’s Response contain new, unsupported factual allegations with no citation to evidence in the record. See id.
¶¶ 2–3, 5–6, 8–36. Notably, majority of the new factual allegations begin with statements like “Plaintiff contends” or
“Plaintiff asserts.”
2
Defendant filed a Motion to Deem Admitted All Facts In Defendant’s Statement Of Uncontroverted Material Facts
Pursuant To Rule 56(E) and to Strike Plaintiff’s Unsupported Facts. See Doc. [62]. Plaintiff filed no response or
opposition to the Motion. The Court grants this Motion.
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consider the fact undisputed for purposes of the motion.”); L.R. 4.01(E) (stating “[a]ll matters set
forth in the moving party’s Statement of Uncontroverted Material Facts shall be deemed admitted
for purposes of summary judgment unless specifically controverted by the opposing party”); see
also Roe v. St. Louis Univ., 746 F.3d 874, 881 (8th Cir. 2014) (explaining if the opposing party
does not raise objections to a movant’s statement of facts as required by Local Rule 4.01(E), “a
district court will not abuse its discretion by admitting the movant’s facts”); Benford v. Schneider
Nat’l Carriers, Inc., 4:19-cv-550-MTS, 2021 WL 3033346, at *2 (E.D. Mo. July 19, 2021)
(deeming “several” of opposing-party’s factual submissions as uncontroverted where party
alleging employment discrimination “failed to respond” to the particular “factual assertions,” in
violation of Local Rule 4.01(E)), aff’d, 21-2717, 2022 WL 97108 (8th Cir. Jan. 10, 2022); Jenkins
v. N. Cnty. Gen. Surgery, 4:20-cv-01415-SRC, 2022 WL 3107231, at *1 (E.D. Mo. Aug. 4, 2022)
(deeming all facts from the moving party’s Statement of Uncontroverted Material Facts admitted
because non-moving plaintiff failed to respond to the moving party’s facts (citing L.R. 4.01(E))).
The Court will thus set out the undisputed and relevant factual background as supplied by
Defendant in its Motion for Summary Judgment and Statement of Material Facts.
I.
BACKGROUND
This case arises from Plaintiff Darius Smith’s employment with Defendant General Motors
(“Defendant or “GM”) and his allegations of unlawful discrimination, harassment, and hostile
work environment based on Plaintiff’s race, as well as retaliatory conduct by GM employees.
Plaintiff is an African American who currently works at GM as a material handler in a GM
assembly plant. In his position at GM, Plaintiff drives a forklift, works on the dock, and unloads
trucks carrying parts being delivered to the plant.
Since his employment began in 2015, Plaintiff has complained on numerous occasions
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about workplace conduct he believed to be discriminatory and/or harassing. Plaintiff explained
the first time he experienced any form of harassment at GM was on May 15, 2017, when Plaintiff
asked Laura, another hourly union co-worker, for a box cutter, and Laura allegedly said that she
would ask her friend to fire Plaintiff if he asked her again for a box cutter. Doc. [52] ¶¶ 39–44.
Later, in 2018, 4 Plaintiff described two separate incidents of harassment that involved his Group
Leader, Tracy Cook (“Tracy”), throwing a safety vest at him and later, where Tracy “gave him the
middle finger.” Id. ¶¶ 45–68. Plaintiff’s claims of racial discrimination and harassment also
include more generic allegations about times he was asked to perform job-related tasks that he felt
were “unfair.” 5 See, e.g., id. ¶ 88.
Plaintiff’s retaliation claim is based on his reporting of a swastika. 6 Doc. [5] ¶ 42 (alleging
in his Petition that retaliation began “ever since he complained about a Nazi sign placed on a door
in the facility”). Plaintiff explained that a co-worker pointed out a swastika scratched in the paint
of one of the facility doors. Doc. [52] ¶ 70. Plaintiff took a picture of the swastika and reported it
to his supervisor, Gerald Thornhill (“Thornhill”). Id. ¶ 71. Plaintiff did not believe the swastika
was directed to him in any way, but he knew “it was something bad and it wasn’t supposed to have
been on the door inside the plant.” Id. ¶¶ 73–74 (quoting Doc. [52-20] at 125–26 (125:16–126:7)).
Plaintiff alleged his various supervisors, principally Thornhill and Dan Bold (“Bold”), retaliated
Plaintiff provides no affirmative date from which these events transpired. However, the record shows the safety vest
incident occurred on April 13, 2018. Doc. [52] ¶ 49 (GM Plant Medical Records show Plaintiff taken to medical
department following incident with Tracy and a “vest”). There is a dispute as to when the middle finger incident
occurred and Plaintiff himself provides conflicting dates. Compare id. ¶ 63 (Smith’s handwritten notes dated May
2018 describe the middle finger incident), with id. ¶ 68 (Smith testified during deposition that safety vest incident and
middle finger incident happened six months apart).
4
As an example, Plaintiff was asked on one occasion to fill in when GM was low on manpower. However, he stated
the incident had nothing to do with his race or racial discrimination but instead, he thought it was “unfair” that he was
being asked to perform other job duties. Doc. [52] ¶ 85–89 (citing Doc. [52-20] at 73–74 (73:8–74:4)).
5
Plaintiff did not file his discrimination, harassment, or hostile work environment claims in this lawsuit based on the
swastika.
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against him for “snitching” when he reported the swastika. See Doc. [52] ¶¶ 69, 75, 99. The
alleged retaliatory acts included an increased workload, verbal warnings, excessive monitoring,
cussing, and public admonishing. See, e.g., id. ¶ 78 (Thornhill asked Plaintiff to haul empty
containers alone on one occasion following reporting of swastika); 7 id. ¶ 104 (Thornhill regularly
cussed at Plaintiff while working); id. ¶ 99 (Thornhill and/or Bold gave Plaintiff verbal warnings
and/or notice 8 for not finishing his work); id. ¶¶ 90–99 (Bold asked Plaintiff to unload a truck by
himself in retaliation for reporting swastika); 9 Doc. [52-20] at 249–51 (249:9–251:16) (Plaintiff
explaining Thornhill and Bold “dual supervised” him).
Plaintiff was never disciplined as a result of reporting any workplace conduct or concerns
to GM. Doc. [52] ¶ 138. In fact, Plaintiff’s employment record has no discipline noted on it at
all. Id. Plaintiff was never demoted or transferred to a position with lesser pay and he has
continued to receive all compensation and benefits due to him. Id. ¶¶ 139–40.
On June 15, 2019, Plaintiff filed a Charge of Discrimination (“Charge”) 10 with the Equal
Employment Opportunity Commission (“EEOC”), which was dually filed with the Missouri
Commission on Human Rights (“MCHR”). Doc. [52-13]; Doc. [52] ¶ 125. In March 2020,
Plaintiff filed a four-count action against GM under the MHRA for harassment (Count I), hostile
work environment (Count II), employment discrimination (Count III), and retaliation (Count IV).
Plaintiff admits collecting the empty containers while the team was waiting on the next truck to arrive was something
all employees are required to do; both black and white employees alike were asked to do the task. Doc. [52] ¶ 81
(citing Doc. [52-20] at 143–44 (143:18–144:2)).
7
Being “put on notice” is not reflected on an employee’s disciplinary record and results in no tangible change in
employment terms or conditions. Doc. [52] ¶¶ 100–02.
8
When asked at his deposition if Plaintiff felt he was asked to do the extra work because he is black and his co-worker
was white, Plaintiff responded “No, ma’am, I wouldn’t say that.” Doc. [52] ¶ 97 (citing Doc. [50-20] at 77 (77:12–
15).
9
In his Charge, Plaintiff included the safety vest incident and other complaints about Tracy. Doc. [52-13]. Plaintiff
also mentioned he was forced to work other jobs during staff shortages. Plaintiff then generically complained that he
had suffered harassment, bullying, and retaliation from his supervisor and other employees.
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Doc. [5]. In the current Motion, GM moves for summary judgment on all four counts. Doc. [51].
II.
LEGAL STANDARD
A claim of unlawful discrimination may be established through direct or indirect evidence.
Because Plaintiff’s claim is not based on any direct evidence of discrimination, the Court will
apply the McDonnell Douglas burden-shifting analysis. Mo. Rev. Stat. § 213.101.3 (stating “the
court shall consider the burden-shifting analysis of McDonnell Douglas . . . to be highly persuasive
for analysis in cases not involving direct evidence of discrimination”); Eivins v. Mo. Dep’t of Corr.,
636 S.W.3d 155, 166 (Mo. Ct. App. 2021) (“Like federal courts, Missouri courts use the burdenshifting analysis developed in McDonnell Douglas . . . to evaluate proof in discrimination cases
where disparate treatment is alleged.”). When deciding a case under the MHRA, courts are guided
by Missouri law and federal employment discrimination case law consistent with Missouri law.
Lampley v. Mo. Comm’n on Hum. Rts., 570 S.W.3d 16, 22 (Mo. banc 2019) (“When reviewing
cases under the [MHRA, courts] are guided by both Missouri law and any federal employment
discrimination (i.e., Title VII) case law that is consistent with Missouri law.”).
Under the McDonnell Douglas burden-shifting framework, Plaintiff must first demonstrate
a prima facie case of discrimination; then the burden shifts to Defendant to articulate a legitimate,
non-discriminatory reason for the challenged action; finally, if Defendant offers such a reason, the
burden shifts back to Plaintiff to show the proffered reason is merely a pretext for discrimination.
Eivins, 636 S.W.3d at 166–67. If Plaintiff fails to make a prima facie case, the Court grants
summary judgment. See, e.g., M.W. by & though K.W. v. Six Flags St. Louis, LLC, 605 S.W.3d
400, 419 (Mo. Ct. App. 2020) (affirming summary judgment in favor of employer when plaintiff
failed to present sufficient evidence from which a factfinder could find necessary elements of her
prima facie discrimination claim) (Ransom, J.); see also Celotex Corp. v. Catrett, 477 U.S. 317,
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323 (1986) (explaining if Plaintiff fails to make a sufficient showing on an essential element of
her case with respect to which he or she has the burden of proof, the moving party is “entitled to a
judgment as a matter of law”).
The Court views any genuine factual disputes in the light most favorable to Plaintiff, Scott
v. Harris, 550 U.S. 372, 380 (2007), and will grant summary judgment only if evidence could not
support any reasonable inference for Plaintiff. Hilde v. Cty. of Eveleth, 777 F.3d 998, 1004 (8th
Cir. 2015) (“[I]f the plaintiff lacks evidence that clearly points to the presence of an illegal motive,
he must avoid summary judgment by creating the requisite inference of unlawful discrimination
through the McDonnell Douglas analysis, including sufficient evidence of pretext.”); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a scintilla of
evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which
the jury could reasonably find for the plaintiff.”). Despite this deferential standard, Plaintiff will
not withstand summary judgment with “[m]ere allegations, unsupported by specific facts or
evidence beyond [his] own conclusions.” Thomas v. Corwin, 483 F.3d 516, 526 (8th Cir. 2007);
see also Bram v. AT&T Mobility Servs., LLC, 564 S.W.3d 787, 799 (Mo. Ct. App. 2018)
(explaining an “inference” of discrimination is not raised by a “plaintiff’s general, conclusory
allegations and opinions” (quoting Palesch v. Mo. Comm’n on Hum. Rts., 233 F.3d 560, 570 (8th
Cir. 2000)). For reasons discussed below, the Court concludes Plaintiff has not met his burden for
any of his claims at the prima facie stage.
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III.
DISCUSSION
A. Plaintiff’s Claims Based on Acts Prior to December 18, 2018, are Time-Barred
The first issue is whether Plaintiff’s claims are time-barred. 11 To bring an action under the
MHRA, a plaintiff must first exhaust his administrative remedies by filing a Charge of
Discrimination (“Charge”) with the Missouri Human Rights Counsel (“MHRC”) within 180 days
of the alleged discriminatory act. Mo. Rev. Stat. § 213.075.1. Failure to timely file a Charge is a
“complete defense,” requiring dismissal of the allegations related to that charge. Id.; see also L.B.
v. Jefferson City Sch. Dist., 833 F. App’x 40, 42 (8th Cir. 2021). Plaintiff filed his Charge on June
15, 2019. Doc. [52-13]. Thus, all acts occurring on or after December 18, 2018, are timely
because they fall within the 180-day limitations period.
However, majority of the discriminatory acts alleged by Plaintiff originated before
December 18, 2018, and are thus untimely as the acts fall outside the limitations period. Claims
based on these untimely acts could survive, however, if they fall under the “continuing violation
doctrine.” See Gill v. City of St. Peters, 641 S.W.3d 733, 739 (Mo. Ct. App. 2022); see also Rowe
v. Hussmann Corp., 381 F.3d 775, 782 (8th Cir. 2004) (“Missouri courts have concluded that
application of MHRA’s 180–day statute of limitations is subject to equitable exceptions, including
the continuing violation doctrine.”); Bozue v. Mut. of Omaha Ins. Co., 536 F. Supp. 3d 438, 449
(E.D. Mo. 2021) (applying the continuing violation doctrine). “Under the continuing violation
theory, a plaintiff may pursue a claim for an act that occurred outside the filing period if he can
demonstrate the act is part of an ongoing pattern or practice of discrimination by the employer.”
Defendant argued Plaintiff’s claims are time-barred because Plaintiff filed his Charge on June 15, 2019 and listed
on the Charge that the latest discrimination occurred almost two years before on June 8, 2017. Doc. [53] at 9–11.
Plaintiff stated he committed a “typographical error” and that he “intended to state that the latest date of discrimination
took place on June 8, 2019,” not 2017. Doc. [59] at 4 (italics added). Viewing the facts in a light most favorable to
Plaintiff, the Court accepts Plaintiff’s argument that he made a typographical error because Plaintiff specifically
referenced acts in the Charge that occurred in 2018 (e.g.: safety vest) and also stated in the Charge that he continued
to experience discrimination/retaliation at least up to the time that he filed his Charge in 2019. See Doc. [52-13].
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Gill, 641 S.W.3d at 739 (citing Plengemeier v. Thermadyne Indus., 409 S.W.3d 395, 401 (Mo. Ct.
App. 2013)). The continuing violation doctrine requires (1) at least one discriminatory act within
the 180-day limitations period and (2) a “show[ing] that the current claim of discrimination is part
of ‘a series of interrelated events, rather than isolated or sporadic acts of intentional
discrimination.’” Tisch v. DST Sys., Inc., 368 S.W.3d 245, 252 (Mo. Ct. App. 2012) (quoting
Pollock v. Wetterau Food Distrib. Grp., 11 S.W.3d 754, 763 (Mo. Ct. App. 1999)).
Plaintiff satisfies the first element of the continuing violation doctrine because he alleged
incidents that occurred within the 180-day limitations period—i.e.: incidents that occurred on or
after December 18, 2018. See, e.g., Doc. [5] ¶ 42 & Doc. [52] ¶¶ 69, 75, 78, 99 (alleging Thornhill
and Bold retaliated against Plaintiff after he reported swastika graffiti on or around June of 2019).
To satisfy the second element of the continuing violation doctrine, as discussed supra, Plaintiff
must show that the timely and untimely acts are part of “a series of interrelated events, rather than
isolated or sporadic acts of intentional discrimination.” Tisch, 368 S.W.3d at 252. In other words,
the timely acts—conduct by Bold and Thornhill—must be “sufficiently related” to the acts that
occurred outside of the limitation period. Bozue, 536 F. Supp. 3d at 449 (quoting Rowe, 381 F.3d
at 782).
The alleged untimely acts concern the conduct of other GM employees such as Laura,
Tracy, Admire, and Booth. See, e.g., Doc. [52-13] (Tracy threw a safety vest at him); Doc. [5220] at 112 (112:3–22) (Tracy threatened to “make something up” to get Plaintiff disciplined or
fired); id. at 233 (233:4–11) (Tracy showed Plaintiff her middle finger); id. at 52 (52:18–23) (Laura
threatened to get Plaintiff fired if Plaintiff asked her for a box cutter while working); id. at 191–92
(191:13–192:15) (employee Booth retaliated against Plaintiff for reporting Laura); id. at 219
(219:1–8) (Booth harassed and threatened Plaintiff in May 2017); id. at 70–73 (70:20–73:17)
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(employee Admire made Plaintiff perform another employee’s job when Defendant was low on
power). On the other hand, the timely acts concern Plaintiff’s supervisors, mainly Thornhill and
Bold, who allegedly retaliated against Plaintiff by asking Plaintiff to unload a truck and haul empty
containers alone, giving Plaintiff verbal warnings for not finishing his work, excessively
monitoring Plaintiff while he was working, and cussing at Plaintiff throughout his employment.
Plaintiff cannot show a pattern of “interrelated events” involving “repeated conduct” that
would “connect” the untimely discriminatory acts to the discriminatory acts within the statutory
period. Bozue, 536 F. Supp. 3d at 450. The untimely acts did not occur “within the same general
time period” or “stem from the same source” that “continued into the limitations period.” Tisch,
368 S.W.3d at 254. Notably, the untimely acts concern different supervisors and different conduct
than the timely acts. See, e.g., Kovach v. MFA, Inc., 2:21-cv-00013-SEP, 2021 WL 4125048, at
*4 (E.D. Mo. Sept. 9, 2021) (finding a continuing violation where the verbal harassment was from
the “same harasser . . . committing the same harassing acts”); see also Chambers v. Padda, 4:20cv-01617-SEP, 2022 WL 898784, at *6 (E.D. Mo. Mar. 28, 2022) (“the same individual . . .
allegedly committed all of the harassing acts before and after October 5, 2018,” and the plaintiff
alleged “several sexual assaults connected by periods of other sexual harassment”). Plaintiff failed
to point to a series of “interrelated events” that would bring the earlier discriminatory acts within
the filing period. Gill, 641 S.W.3d at 740. As a result, Plaintiff cannot avail himself of the
continuing violation theory and his claims based on acts that occurred before December 18, 2018,
are time-barred. 12
12
The Court also concludes Plaintiff exhausted his hostile work environment claim because, “liberally” construing
his Charge, the allegations were sufficient to put Defendant on notice that an investigation into a claim for hostile
work environment “could reasonably be expected to grow out of the charge of discrimination.” See Henson v. Union
Pac. R.R. Co., 3 F.4th 1075, 1080 (8th Cir. 2021) (quoting Alhalabi v. Mo. Dep’t of Nat. Res., 300 S.W.3d 518, 525
(Mo. Ct. App. 2009)).
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B. Plaintiff Cannot Meet His Prima Facie Burden and Defendant is Entitled to
Summary Judgment as a Matter of Law
As discussed supra, the pre-December 2018 incidents are untimely and cannot form the
basis of Plaintiff’s claims. As to any post-December 2018 incidents, which largely concern the
conduct of Thornhill and Bold, the Court now analyzes the merits of each of Plaintiff’s claims
based on the acts that occurred on or after December 18, 2018. 13 As discussed below, the Court
finds Plaintiff cannot meet his burden at the prima facia stage for his claims of harassment,
discrimination, hostile work environment, and retaliation because Plaintiff cannot establish any
adverse employment action or that the alleged conduct was based on his race.
1. Plaintiff Does Not Establish Adverse Employment Action
To establish a prima facie claim for race discrimination and retaliation under Missouri law,
Plaintiff must show, inter alia, the alleged discriminatory act “had some adverse impact” on
Plaintiff “before it becomes actionable.” Tuttle v. Dobbs Tire & Auto Ctrs., Inc., 590 S.W.3d 307,
310 (Mo. banc 2019); Heuton v. Ford Motor Co., 930 F.3d 1015, 1023 (8th Cir. 2019) (retaliation
under the MHRA); see also Shore v. Children’s Mercy Hosp., 477 S.W.3d 727, 732 (Mo. Ct. App.
2015) (affirming summary judgment for employer where plaintiff did not show any term or
condition of employment that was denied). To satisfy this requirement, Plaintiff must demonstrate
“a significant change in employment status.” Williams v. True Mfg., 4:14-cv-1609-HEA, 2015
WL 4546618, at *3 (E.D. Mo. July 28, 2015) (analyzing MHRA claim). A significant change in
employment occurs when “compensation, terms, conditions, or privileges of employment were
13
The Court notes that Plaintiff failed to allege any incidents of harassment or discrimination that are within the
limitations period, as Plaintiff states Thornhill’s and Bold’s conduct—the timely acts—was in retaliation for reporting
the swastika. On this basis alone, Defendant could be entitled to summary judgment on Plaintiff’s claims for
harassment (Count I) and discrimination (Count III), as those claims are based on acts that are time barred, as discussed
in Section III(a) of this Memorandum and Order. Nonetheless, the Court explains in this Memorandum and Order
why Counts I and III fail for other reasons, too.
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negatively affected.” Bram, 564 S.W.3d at 796. During the relevant time before the Court—acts
occurring on or after December 18, 2018—Plaintiff cannot show a single adverse action that
caused a material change in his employment status. Plaintiff did not experience any cut in pay or
benefits, he was not subjected to a significant change in job responsibilities, nor were any future
career prospects or pay negatively affected.
Plaintiff makes several arguments in claiming adverse employment action, none of which
are persuasive. Plaintiff argues verbal warnings and “increased reprimands” constitute adverse
employment actions. Doc. [59] at 14. But undisputed evidence shows these had no disciplinary
effects and did not impact any term or condition of his employment. Doc. [52] ¶ 100–02.
“[F]ormal criticisms or reprimands that do not lead to a change in compensation, responsibilities,
or other benefits do not constitute an adverse employment action.” Powell v. Yellow Book USA,
Inc., 445 F.3d 1074, 1079 (8th Cir. 2006) (finding no material change in employment where
management gave an employee three written reprimands, but there was no corresponding decrease
in pay, hours, or any other significant change); Anderson v. Dillard’s Inc., 109 F. Supp. 2d 1116,
1127 (E.D. Mo. 2000) (rejecting “Plaintiff’s assertion that a verbal reprimand is an adverse
employment action”); Clayton v. DeJoy, 4:18-cv-01039-JAR, 2020 WL 6822641, at *6 (E.D. Mo.
Nov. 20, 2020) (explaining that “discrete reprimands with no associated effect on Plaintiff’s
tangible working conditions, do not rise to the level of an adverse employment action”). Similarly,
Thornhill’s alleged regular cussing at Plaintiff is not actionable because “personal animus,
hostility, disrespect, and ostracism” do not rise to the level of an adverse employment action. Jones
v. Fitzgerald, 285 F.3d 705, 714 (8th Cir. 2002); see also Scusa v. Nestle U.S.A. Co., 181 F.3d 958,
969 (8th Cir. 1999) (explaining “ostracism and disrespect” by supervisor did not rise to the level
of an adverse employment action).
12
Plaintiff next points to his increased workload. But these changes are not actionable as
they were temporary and did not significantly disadvantage Plaintiff. See Jackman v. Fifth Jud.
Dist. Dep’t of Corr. Servs., 728 F.3d 800, 804 (8th Cir. 2013) (“[M]inor changes in duties or
working conditions, even unpalatable or unwelcome ones, which cause no materially significant
disadvantage, do not rise to the level of an adverse employment action.”); Saulsberry v. St. Mary’s
Univ. of Minn., 318 F.3d 862, 868 (8th Cir. 2003) (affirming summary judgment in favor employer
where supervisor changed employee’s hours and job duties but “many of the actions were only
temporary or not materially significant”); Clayton, 2020 WL 6822641, at *6 (“A reasonable
factfinder could not conclude that Plaintiff’s temporary reassignments constituted adverse
employment actions.”); Sallis v. Univ. of Minn., 408 F.3d 470, 476 (8th Cir. 2005) (stating that
“minor changes in working conditions that merely inconvenience an employee or alter an
employee’s work responsibilities do not” rise to the level of an adverse employment action).
Plaintiff also noted excessive monitoring. Doc. [59] at 14–15. While it is not totally clear who
Plaintiff is alleging excessively monitored him, such conduct is not actionable here under any
circumstances. See Forest v. Barnes-Jewish Hosp., 4:04-cv-686-DJS, 2006 WL 1300611, at *7
(E.D. Mo. May 10, 2006) (explaining increased scrutiny, without additional disciplinary action
such as a change in grade, salary, or other benefits, does not constitute adverse employment
action).
Finally, Plaintiff argues the workplace harassment and discrimination he endured reduced
his wages by forcing him to miss work. Doc. [59] at 12, 14. While some of the complained of
acts may have caused a material change in Plaintiff’s employment on this basis, those acts are time
barred. 14 As to missing work during the relevant period—where Plaintiff twice took an approved
For example, Plaintiff had an approved medical leave of absence due to anxiety and stress following the incident
with Tracy and the safety vest. Doc. [52] ¶¶ 24–25 (citing Doc. [52-18]).
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medical leave of absence due to anxiety and stress 15—the record is devoid of any evidence that
connects the alleged medical condition to his employment with Defendant. Moreover, nothing on
this record even supports Plaintiff’s argument that he “missed wages” during the approved leaves.
In conclusion, because there is no evidence of an adverse employment action, the Court
grants summary judgment in favor of Defendant on Plaintiff’s race discrimination (Count III) and
retaliation claims (Count IV). See Ressler v. Clay Cnty., 375 S.W.3d 132, 141 (Mo. Ct. App. 2012)
(explaining a prima facie case for summary judgment can be established by showing undisputed
facts negate any one of the plaintiff’s required proof elements).
2. Plaintiff Does Not Establish the Alleged Conduct was Based on his Race
To establish a prima facie case for racial harassment, discrimination and hostile work
environment under Missouri law, Plaintiff must show the at-issue conduct was based on a protected
characteristic—here, Plaintiff’s race. McGaughy, 604 S.W.3d at 748 (hostile work environment
claim requires “harassment [] based on a protected characteristic”); Lehr v. Nike IHM, Inc., 4:19cv-942-RLW, 2021 WL 1611720, at *12 (E.D. Mo. Apr. 26, 2021) (harassing actions must be
“based on the plaintiff’s race” to constitute race discrimination (citing Singletary v. Missouri Dep’t
of Corr., 423 F.3d 886, 892 (8th Cir. 2005))); see also Mo. Rev. Stat. § 213.055.1(1)(a) (MHRA
prohibiting employment discrimination on the basis of race). Plaintiff has not pointed to any direct
or indirect evidence showing the timely conduct was based on his race or any discriminatory
animus.
The undisputed facts show the timely acts presently before the Court are unrelated to
Plaintiff’s race. Plaintiff himself states that any increases in his workload were not related to his
race. See, e.g., Doc. [52] ¶¶ 85–89 (Plaintiff acknowledging a task assignment was unfair as
Plaintiff was off work on an approved medical leave of absence due to anxiety and stress from October 28, 2019 to
December 8, 2019 and July 13, 2020 to January 19, 2021. Doc. [52] ¶¶ 27, 30.
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opposed to race related); id. ¶ 97 (Plaintiff stating he was not asked to do extra work because he is
black and his counterpart was white). In fact, Plaintiff states majority of Thornhill’s and Bold’s
conduct was in retaliation for reporting the swastika—not based on discrimination or any racial
animus. See Doc. [52] ¶ 75 (Plaintiff alleging Thornhill and Bold retaliated against Plaintiff
because Plaintiff reported the swastika); id. ¶ 99 (Plaintiff stating that he was put on notice for
reporting the swastika).
As to the cussing and public admonishing, Plaintiff explained all his allegations related
exclusively to Thornhill. 16 Doc. [52] ¶ 104. Yet, Plaintiff admitted Thornhill never brought up
race, used a racial slur, nor did anything racially derogatory toward Plaintiff. Thus, Thornhill’s
cussing is not actionable. Fuchs v. Dep’t of Revenue, 447 S.W.3d 727, 733 (Mo. Ct. App. 2014)
(explaining actionable harassment is “discriminatory intimidation, ridicule, and insult” (quoting
Palesch, 233 F.3d at 566) (emphasis added)).
Nor can Plaintiff show racial harassment or discrimination vis-à-vis disparate treatment.
Burton v. Ark. Sec’y of State, 737 F.3d 1219, 1229 (8th Cir. 2013) (explaining a plaintiff may
“satisfy the fourth part of the prima facie case . . . by showing more-favorable treatment of
similarly-situated employees who are not in the protected class”). Under a disparate treatment
theory, Plaintiff bears the burden of establishing he and the white employees are “similarly situated
in all relevant respects.” McGhee v. Schreiber Foods, Inc., 502 S.W.3d 658, 667 (Mo. Ct. App.
2016); see also Cox v. Kan. Cty. Chiefs Football Club, Inc., 473 S.W.3d 107, 119–20 (Mo. banc
2015) (explaining a disparate treatment plaintiff must show she was “treated differently from
similarly situated members of the unprotected class”). Even assuming Plaintiff was treated
And, to any allegations of “public admonishment,” the Court notes Plaintiff specifically tied that to issues unrelated
to race. See Doc. [59] at 15 (discussing in Opposition Brief that Plaintiff was “admonished publicly for his use of
FMLA for his anxiety”).
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differently than other white employees 17—which the Court does not find on this record—the only
evidence in the record as to whether the white employees were similarly situated is Plaintiff’s own,
self-serving deposition testimony, which is insufficient to support a disparate treatment claim. See
Rinchuso v. Brookshire Grocery Co., 944 F.3d 725, 730 (8th Cir. 2019) (“An unsupported, selfserving allegation that another employee was similarly situated is insufficient”). Nor do Plaintiff’s
references to other employees as his “counterparts,” see, e.g., Doc. [57] ¶ 35 & Doc. [52-20] at
149 (149:8–18), provide the “‘specific, tangible evidence’ of at least one other employee who was
‘similarly situated in all relevant respects.’” Said v. Mayo Clinic, 44 F.4th 1142, 1148 (8th Cir.
2022) (quoting Rinchuso, 944 F.3d at 730). These bare assertions are insufficient to meet the
“rigorous” standard required here. Fields v. Shelter Mut. Ins. Co., 520 F.3d 859, 864 (8th Cir.
2008) (describing the “rigorous” test to show employees are similarly situated for disparate
treatment). As such, Plaintiff cannot show race-based harassment or discrimination under a
disparate treatment theory. See, e.g., Philip v. Ford Motor Co., 413 F.3d 766, 767–69 (8th Cir.
2005) (affirming summary judgment for defendant where black employee worked at motor vehicle
assembly plant and presented evidence that disparate treatment occurred but not whether relevant
employees were similarly situated).
In general, Plaintiff offers only speculation that any of the complained of conduct was on
account of or motivated by his race, as opposed to personal animosity or other reasons not related
to a protected category. He does not cite to any record evidence or provide admissible or probative
evidence to support his assertions or substantiate his allegations. This is insufficient to withstand
summary judgment. Gander Mountain Co. v. Cabela’s, Inc., 540 F.3d 827, 831 (8th Cir. 2008)
The Court notes many of Plaintiff’s cited incidents deal with the specific treatment of Plaintiff individually and not
treatment to other members of the protected class. Gill v. Cty. of St. Peters, 641 S.W.3d 733, 743 (Mo. Ct. App. 2022)
(finding action that impacted plaintiff individually rather than black people as a protected class is insufficient to show
disparate treatment).
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(explaining that “to avoid summary judgment, the nonmoving party must submit more than
unsupported self-serving allegations” and instead, “must provide sufficient probative evidence to
allow the nonmoving party to prevail”); Clay v. Credit Bureau Enters., Inc., 754 F.3d 535, 539
(8th Cir. 2014) (explaining to “survive” a motion for summary judgment the plaintiff must
“substantiate” his discrimination allegations with “sufficient probative evidence” that would
permit a finding in his favor based on more than “mere speculation”). Beyond his own conclusory
allegations, Plaintiff completely failed to put forth any tangible evidence that he was discriminated
or harassed based on his race. Despite Plaintiff’s belief to the contrary, see, e.g., Doc. [59] at 10,
“general allegations are not ‘sufficient, specific evidence of disparate treatment to survive
summary judgment.’” Gibson v. Am. Greetings Corp., 670 F.3d 844, 856 (8th Cir. 2012) (quoting
Anderson v. Durham D & M, LLC, 606 F.3d 513, 524 (8th Cir. 2010)). Because Plaintiff has not
pointed to any direct or indirect evidence showing the alleged acts were based on his race or any
discriminatory animus, Defendant is entitled to summary judgment on Counts I–III as a matter of
law.
CONCLUSION
Even when viewing the evidence and inferences in the light most favorable to Plaintiff, the
Court finds no genuine issues of material fact exist regarding his claim for race discrimination,
retaliation, and hostile work environment. On the undisputed facts, Plaintiff cannot meet his prima
facie burden for all his claims under the MHRA.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment, Doc. [51],
is GRANTED.
IT IS FURTHER ORDERED that Defendant’s Motion To Deem Admitted All Facts In
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Defendant’s Statement Of Uncontroverted Material Facts Pursuant To Rule 56(E) And To Strike
Plaintiff’s Unsupported Facts, Doc. [62], is GRANTED. The Clerk of Court is directed to strike
Plaintiff’s facts, Doc. [57], from the record.
Dated this 3rd day of February, 2023.
MATTHEW T. SCHELP
UNITED STATES DISTRICT JUDGE
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