Denn v. CSL Plasma, Inc. et al

Filing 53

ORDER granting 41 Defendant's motion for summary judgment. Signed on 3/2/15 by Chief District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
THOMAS DENN,
Plaintiff,
v.
CSL PLASMA INC.,
Defendant.

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No. 4:13-cv-1015-DGK

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This case involves an employment dispute. Plaintiff Thomas Denn (“Denn”) alleges that
Defendant CSL Plasma Incorporated (“CSL”) discriminated and retaliated against him based
upon his sex and his complaints of sex discrimination. Denn filed a two-count lawsuit in the
Circuit Court of Jackson County, Missouri, alleging that CSL’s actions violated the antidiscrimination and anti-retaliation provisions of the Missouri Human Rights Act (“MHRA”),
Mo. Rev. Stat. §§ 213.055, 213.070. CSL removed to this Court.
Now before the Court are Denn’s and CSL’s cross-motions for summary judgment
(Docs. 36, 41). Addressing CSL’s motion first and finding no genuine dispute of material fact
and that CSL is entitled to judgment as a matter of law, the Court GRANTS it summary
judgment.
Statement of Facts
The following facts are uncontroverted unless otherwise noted.1 CSL, a Boca Raton,
Florida-based company, operates a number of blood plasma collection facilities around the

1

The Court obtained the facts from each party’s motion. The Court excluded asserted facts that are immaterial to
the resolution of the pending motion, asserted facts that are not properly supported by admissible evidence, legal
conclusions, and argument presented as an assertion of fact. For certain facts, the Court notes specifically why it

country, including one in Kansas City, Missouri. Denn, a male, began working for CSL as a
manager trainee at another facility on September 22, 2009. Sometime before the relevant
incidents depicted below, Denn relocated to the Kansas City facility, where he worked as an
assistant center manager until November 8, 2012.
During the early part of his tenure with CSL, Denn received several positive reviews.
According to records spanning from July 2009 until June 2011, Denn received “good” and
“strong” marks for his work as a manager trainee and assistant center manager. At some point
during this time span, CSL sent Denn to other centers to assist with process improvement.
Around September 2011, Denn received another “strong” rating from his then-supervisor Shane
Kennedy (“Kennedy”), a male employee, and he also received an annual pay increase.
On November 28, 2011, Kennedy issued Denn a verbal warning for allegedly revealing
confidential information. On December 1, 2011, Kennedy issued Denn a written warning for
allegedly engaging in the same conduct despite being told not to do so. Denn vigorously
disputes the bases for these reprimands, but does not deny that he was so disciplined.
In January 2012, Rebecca Heatherman (“Heatherman”), who currently works for CSL as
a senior manager in Boca Raton, was promoted to center manager of the Kansas City facility. In
this position, Heatherman supervised the two assistant center managers, Denn and Cristina
Ceniceros (“Ceniceros”). As assistant center managers, Denn and Ceniceros shared many of the
same duties and split the workload fairly evenly. From the time that Heatherman ascended to
center manager until Denn’s termination in November 2012, Denn received numerous verbal and

excluded them. The Court’s decision not to discuss the bases for other exclusions should not be read as an
indication that it overlooked any facts properly set forth in the parties’ briefs.

2

written warnings for alleged performance deficiencies, while Ceniceros received no such
discipline.2
Denn received his first discipline from Heatherman on February 13, 2012. This written
warning, in relevant part, stated:
The Written Warning provide[s] numerous ‘areas of required improvement’
including: In November [Denn] received coaching from S Kennedy regarding
[Denn’s] presence in the production areas, at that time you were advised to spend
at least 50% of your time in production – building relationships, interacting with
staff, managing or monitoring work flow. I have not consistently seen this effort
in the last 4 weeks. Time has been spent on the donor floor but not consistently
driving or managing flow or building relationships….Timely delivery of
corrective actions not consistent with expectations (at next available shift) in the
following examples, M Jones performance prepared 12/19/11 delivered 1/2/12
and J Reese attendance prepared 1/16/12 delivered 1/24/12. On 12/28/11, I
provided you with information (from the AMQ position) regarding the need for C
Tucker to receive a performance corrective action for setpoints, the corrective
action was not prepared.
(Doc. 42-12 at 2-4). This written warning also required Denn to create a development plan
aimed at improving his performance and stated that a failure to improve could result in additional
corrective actions. He submitted the development plan on March 5, 2012.
From that date through August 2012, Heatherman had numerous conversations with
Denn regarding his performance, including missing deadlines, interacting poorly with others, not
elevating concerns, and not administering corrective actions. On one occasion during this time
frame, Denn explained that he was encountering difficulties with time management and
delegating tasks. Heatherman reminded him that during meetings he should inform her about

2

Denn states several facts regarding Ceniceros’ “production” numbers and the number of procedures that she
oversaw. See (Doc. 42 at 14). As CSL notes, however, Denn supports these facts by citing the allegations in the
petition, which is insufficient support at the summary judgment stage. See Skare v. Extendicare Health Servs., Inc.,
515 F.3d 836, 840 (8th Cir. 2008) (noting non-movant must rely upon more than allegations in the complaint to raise
a genuine dispute of material fact). Thus, the Court excludes these facts for lack of support. Denn also cites
deposition testimony from Ceniceros showing that she was never disciplined for insufficient “production” or for not
completing maintenance work. But the Court finds this immaterial because Denn fails to show that he was
disciplined for similar failures. The Court thus excludes these facts.

3

resources he needs and specific tasks he would like reassigned. According to Denn, this inability
to complete tasks arose solely from being overburdened with duties not imposed on other
employees.
On June 5, 2012, Heatherman and Denn reviewed his progress towards his development
plan goals. During this meeting, Heatherman highlighted assigned tasks that Denn failed to
complete, but they both agreed that he had shown significant improvement since his initial
development plan. Shortly thereafter, Denn submitted a second development plan. The plan
included several goals for improvement, including: “sharing more detail about current issues and
concerns. (Sending out daily/weekly updates.);” “utilizing staff to complete time sensitive tasks,
and hold them accountable;” “learn to create more concrete deadlines and hold those involved
more accountable;” “eliminate procrastination;” and “create consistent timeliness.” (Doc. 42-17
at 3-4). The plan concluded with the statement, “[W]e have agreed that we have seen significant
improvement from the first plan….” (Id).
On July 19, 2012, Heatherman sent an email to CSL Human Resources (“H.R.”) manager
Jan Cameron (“Cameron”) seeking approval to proceed with a final written warning3 against
Denn. Also copied on the email was Brannon Brittain (“Brittain”), a male H.R. employee. The
email stated recent events that supported the final written warning. (Doc. 42-18 at 2). After
some modifications, Cameron and Brittain approved the final written warning between the end of
July and the middle of August.
On August 17, 2012, Denn complained to H.R. about Heatherman, alleging, among other
things, that she discriminated against him because of his sex. CSL H.R. employee Tricia
Jackson (“Jackson”) discussed the complaint with Denn on August 20, 2012.

3

After an

Although never directly defined by the parties, a final written warning appears to be the final opportunity for an
employee to correct noted deficiencies before being subject to termination.

4

investigation, which included interviewing multiple employees and reviewing numerous
documents, H.R. determined that Denn suffered no discrimination or unfair treatment.
On August 21, 2012, Heatherman presented Denn with his final written warning and
development plan. This document noted numerous performance deficiencies and ordered Denn
to work on: “Informing peer [Assistant Center Managers], supervisors[,] and [Center Manager]
of necessary updates….Provid[ing] a daily or weekend updates sharing pertinent information to
the manager on the upcoming shift (include any anticipated challenges or follow up items).”
(Doc. 42-20 at 2-5).4
Denn took a leave of absence from September 15, 2012 until October 14, 2012. On
October 26, 2012, after his return, Denn acknowledged receipt of an addendum to the final
written warning and development plan. This addendum contained a revised timeline and again
outlined areas in need of improvement, including:
Informing peer [Assistant Center Managers], supervisors[,] and [Center Manager]
of necessary updates (Human Resources or other Sr Management if applicable).
As a member of management you are held to a higher standard and should lead by
example
to
promote
a
positive
and
professional
working
environment….Following the proper channels of communication as outlined in
the employee handbook (Conduct Counseling Handbook Pg 22)….Provide daily
or weekend updates sharing pertinent information to the manager on the
upcoming shift (include any anticipated challenges or follow up items).
(Doc. 42-21 at 2-4). This addendum also identified additional performance issues, including that
Denn failed to timely elevate an employee’s resignation letter. (Id. at 2).

4

In his statement of facts, Denn claims that after receiving the final written warning, he made a “retaliation”
complaint to H.R., and that Heatherman knew about this complaint on or before August 24, 2012. CSL challenges
this statement by arguing the cited deposition testimony does not support Denn’s statement. Denn never responded
to this argument. After carefully reviewing the deposition testimony, the Court sustains CSL’s objection. The
testimony cited by Denn suggests, at most, that Heatherman was made aware of Denn’s discrimination complaint
prior to August 24, 2012; it does not demonstrate that Denn made a “retaliation” complaint or that Heatherman knew
of any such complaint. See (Doc. 37-2 at 15-18). Because Denn failed to support this factual statement initially or
later direct the Court to other record evidence doing the same, the Court excludes these proposed facts.

5

On October 31, 2012, an incident occurred between two employees who were under
Denn’s supervision. Christian Desouza (“Desouza”) allegedly grabbed and pulled Kristina Todd
(“Todd”) in an aggressive manner. Todd immediately told Denn about the incident, but they did
not discuss it at length because she had to leave. Denn did not talk to Todd or Desouza again
until November 7, 2012. According to Denn, he investigated the incident prior to this date by
looking at videotapes and ensuring that they would not work together until he could investigate
further. Denn also testified that H.R. had previously instructed him to collect information prior
to reporting harassment complaints, and that Todd wanted him to investigate prior to elevating
the complaint. Neither party, however, disputes that Denn failed to tell Ceniceros or H.R. about
the issue until November 7, 2012.
At this time, CSL had the following policies governing harassment complaints.

CSL

requires, “If a manager becomes aware harassment, retaliation[,] or discrimination is occurring,
either from personal observation or as a result of an employee coming forward, the manager
must immediately report it to Human Resources. All complaints are to be handled in a formal
manner and must involve Human Resources.” (Doc. 42-7 at 4). CSL Plasma also maintains a
separate Harassment and Complaint Resolution Policy that, in relevant part, states:
All CSL Plasma employees and/or managers/supervisors are required to
immediately report (orally and/or in writing) all incidents of harassment to a
manager and Human Resources. Managers who are aware of harassment or
related inappropriate conduct and who fail to ensure suitable corrective action is
taken are subject to corrective action, or termination. Management has the special
responsibility to act promptly to eliminate any discrimination or harassment. If a
member of management…receives information that [harassment] might be
occurring he or she must take immediate action to address the problem. In the
first instance they should inform Human Resources Management….Management
is required to report all incidents immediately to Human Resources….Prompt
action will be taken upon receipt of a complaint unless the complainant expressly
requests that no action is to be taken and Human Resources Management
determines (based upon legal advice) that federal, state[,] or local law does not
mandate action….While…the wishes of the complaining person regarding action
6

by the respondent(s) cannot be guaranteed in every instance, they will be
protected to as great a degree as is legally possible.
(Doc. 42-8 at 2, 4, 6). Denn’s position description states that he must: “Support[] the adherence
to all HR policies and practices through fair and equitable treatment of all employees.
Communicate[] effectively with HR to ensure HR compliance.” (Doc. 42-9 at 1). Denn was
provided with all these policies when he started at CSL and had access to them at all times
through CSL’s intranet site.
CSL terminated Denn on November 8, 2012. The termination paperwork lists Denn’s
failure to escalate the Todd-Desouza incident as the primary basis for his termination. (Doc. 4223 at 2). It also lists several previous corrective actions taken against him. Id. Heatherman,
Jackson, and Brittain all participated in the termination decision. Heatherman eventually hired a
male employee to replace Denn.
Denn testified that his sex also contributed to his termination. To support that theory,
Denn presented the following undisputed evidence about events occurring while under
Heatherman’s control.5 Heatherman received two sex discrimination complaints: one from Denn
and one from a fellow male employee Michael Carter (“Carter”). Carter, who filed a separate
MHRA lawsuit against CSL, testified that during his employment he felt that some female
supervisors targeted him. Denn testified that Heatherman discriminated against him by holding
him to a higher standard. Denn further testified that Heatherman falsely claimed he was not in
5

As a part of this evidence, Denn submitted an affidavit from Todd in which she stated, “I also witnessed multiple
occasions where Rebecca Heatherman would single out male employees and target them for termination or treat
them less favorably than female employees. Examples of this conduct would include Ken Lain, Thomas Denn,
Michael Carter, Terrill Canady, and James Carter.” (Doc. 42-1 at 8). CSL later presented a second affidavit from
Todd in which she retracted this statement, claiming she had no personal knowledge of such “targeting” of these
individuals. (Doc. 42-1 at 4). Todd further testified that Denn’s attorney incorrectly phrased the language in the
first affidavit, making it much broader than her actual knowledgebase. As such, the Court excluded major portions
of the first affidavit because it was not based on Todd’s personal knowledge. See Fed. R. Civ. P. 56(c)(4); Ward v.
Int’l Paper Co., 509 F.3d 457, 462 (8th Cir. 2007). Finally, after reviewing both affidavits, the Court has concerns
regarding the circumstances and propriety of the first affidavit.

7

the production area for a sufficient amount of time. Todd averred that although Ceniceros was
not as adept at managing the donor floor as Denn, Heatherman seemed to like Ceniceros better
than Denn. For example, on one occasion, Heatherman commended Ceniceros for one of Denn’s
ideas. Following Denn’s termination, Todd overhead Brandi Robinson (“Robinson”), a trainee
manager, tell Ceniceros, “Isn’t nice that all the testosterone is gone so that we don’t have to deal
with it anymore.” (Doc. 42-1). According to Denn, Ceniceros also told him that CSL was not a
place for males.

Kenneth Lain (“Lain”), who also filed a complaint with H.R. against

Heatherman, testified that she treated male armed forces veterans more poorly than female
employees. Lain, however, claimed that any unfair treatment he received from Heatherman was
unrelated to his sex. Lain also feared that CSL would retaliate against him for his deposition
testimony.
After his termination, Denn exhausted all administrative remedies and then filed the
instant lawsuit on July 2, 2013. CSL removed. Denn filed a motion for summary judgment on
August 21, 2014. CSL then filed suggestions in opposition and its own motion for summary
judgment on September 26, 2014. After briefing through sur-reply by each party, the motions
are now ripe for review.
Standard of Review
A moving party is entitled to summary judgment “if [it] shows that there is no genuine
dispute as to any material fact and [that it] is entitled to judgment as a matter of law.” Fed R.
Civ. P. 56(a). A party who moves for summary judgment bears the burden of showing that there
is no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
Once the moving party has satisfied its initial burden, the nonmoving party “must do more than
simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.

8

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving party must set
forth specific facts showing there is a genuine issue for trial, Anderson, 477 U.S. at 248, but the
nonmoving party “cannot create sham issues of fact in an effort to defeat summary judgment.”
RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 402 (8th Cir. 1995) (citation
omitted).
When considering a motion for summary judgment, a court must scrutinize the evidence
in the light most favorable to the nonmoving party. Torgerson v. City of Rochester, 643 F.3d
1031, 1042 (8th Cir. 2011). “Credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge[, but
when] the record taken as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial.” Id. (internal quotation marks omitted).6
Discussion
Although both parties move for summary judgment, the Court first addresses CSL’s
motion. CSL contends that it is entitled to summary judgment on both counts because Denn
cannot produce sufficient evidence to demonstrate that his sex or his complaint about alleged sex
discrimination were contributing factors in CSL’s decision to discipline and terminate him. The
Court addresses each count separately below.
I. Because the undisputed material facts do not show that Denn’s sex contributed to
his termination, CSL is entitled to summary judgment on Count I.
Count I asserts a MHRA sex discrimination claim. Under the MHRA, an employer
cannot discriminate against an employee because of his sex. Mo. Rev. Stat. § 213.055.1(1)(a).
6

Denn’s briefing significantly relies upon the Supreme Court of Missouri’s pronouncement that “[s]ummary
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. City of Maryland Heights, 231 S.W.3d
814, 818 (Mo. 2007). In so doing, Denn insinuates that there is a special summary judgment exception for
discrimination cases, but the Eighth Circuit has recently rejected such a notion. See Torgerson, 643 F.3d at 1043
(“There is no ‘discrimination case exception’ to the application of summary judgment.”).

9

Discrimination is broadly defined as “any unfair treatment based on race, color, religion, national
origin, ancestry, sex, age as it relates to employment, disability, or familial status as it relates to
housing.” Mo. Rev. Stat. § 213.010(5) (emphasis added).
Because of this expansive language, the Supreme Court of Missouri has held that the
MHRA’s “safeguards…are not identical to the federal standards [governing discrimination
claims under Title VII] and can offer greater discrimination protection.” Daugherty v. City of
Maryland Heights, 231 S.W.3d 814, 818-19 (Mo. 2007). This greater protection has led it to
abandon the McDonnell Douglas burden-shifting framework7 in MHRA discrimination and
retaliation cases. See Templemire v. W&M Welding, Inc., 433 S.W.3d 371, 383 (Mo. 2014)
(“[T]his Court rejected the application of the burden-shifting analysis that McDonnell
Douglas…employed in federal discrimination cases, commonly referred to as the ‘motivating
factor’ analysis.”). Nevertheless, Missouri courts still consult Title VII precedents that are
consistent with Missouri law. See Daugherty, 231 S.W.3d at 818.
To make a submissible MHRA discrimination case, a plaintiff must show that: (1) he
suffered an adverse action; (2) his sex was a contributing factor in the adverse action; and (3) he
incurred damages as a result. See Shirrell v. Saint Francis Med. Ctr., 24 F. Supp. 3d 851, 864
(E.D. Mo. 2014) (citing Daugherty, 231 S.W.3d at 820 (citing what is now Mo. Approved Jury
Instr. (Civil) 38.01)).8 As to the second element, a contributing factor is “one ‘that contributed a

7

The McDonnell Douglas burden-shifting framework is a three-step test used to determine whether there is
sufficient circumstantial evidence for a plaintiff’s Title VII claim to survive summary judgment. See Daugherty,
231 S.W.3d at 819 n.6. This framework proceeds as follows: (1) the plaintiff must present sufficient evidence to
satisfy the prima facie elements of his Title VII claim; (2) if he does so, the burden shifts to the employer to show
legitimate, non-discriminatory reasons for the adverse actions; (3) if the employer satisfies this burden, then the final
burden rests with the plaintiff to show that those reasons were simply pretext for discrimination. Wierman v.
Casey’s Gen. Stores, 638 F.3d 984, 993 (8th Cir. 2011).
8

The parties vigorously dispute whether a plaintiff, in addition to proving the above elements, must also establish
that: (1) he was qualified to perform the position, and (2) he was treated differently than similarly-situated
employees. See Ressler v. Clay Cnty., 375 S.W.3d 132, 141 (Mo. Ct. App. 2012) (including these two elements as

10

share in anything or has a part in producing the effect.’” Wierman v. Casey’s Gen. Stores, 638
F.3d 984, 1002 (8th Cir. 2011) (quoting Williams v. Trans States Airlines, Inc., 281 S.W.3d 854,
867 (Mo. Ct. App. 2009)).
Here, Denn presents sufficient evidence on the first and third elements to survive
summary judgment, because he was terminated and thereby suffered damages. The parties focus
on the second element, whether Denn’s sex was a contributing factor. CSL posits that it
terminated Denn solely because of his poor performance.

In particular, CSL contends he

received numerous verbal and written warnings regarding various performance deficiencies,
failed to correct these deficiencies, received a final written warning for his continued failures,
and then was terminated for the failure to immediately elevate the Todd-Desouza incident. Denn
first challenges the credibility of these proffered reasons, arguing they are fabricated and show
he was held to a higher standard than others. Denn further contends that other evidence supports
an inference of discrimination, namely: (1) that a similarly-situated employee, Ceniceros was not
disciplined, (2) Todd’s testimony that Heatherman favored Ceniceros over Denn, (3) Carter’s
and Lain’s testimony that Heatherman showed preferential treatment for female employees over
male employees, and (4) comments made by female staff members showing an animus towards

part of the prima facie case for MHRA discrimination claims). The Supreme Court of Missouri has never addressed
this issue, so the Court must predict how it would rule if so confronted. See Wivell v. Wells Fargo Bank, N.A., 773
F.3d 887, 897 (8th Cir. 2014) (“Where the Missouri Supreme Court has not spoken, we must predict how the court
would rule, and we follow decisions from the intermediate state courts when they are the best evidence of Missouri
law.” (internal quotation marks omitted)). After carefully reviewing the parties’ arguments and conducting
independent research, the Court concludes that the Supreme Court of Missouri would hold that a plaintiff is not
required to prove that he was treated differently than similarly-situated females. See Templemire, 433 S.W.3d at
383; Daugherty, 231 S.W.3d at 818-19; see also Holmes v. Kansas City Mo. Bd. of Comm’rs, 364 S.W.3d 615, 627
(Mo. Ct. App. 2012); Lomax v. DaimlerChrysler Corp., 243 S.W.3d 474, 482-83 (Mo. Ct. App. 2007). This is not
to say, however, that evidence along these lines is irrelevant to the contributory factor analysis under Missouri law.
To the contrary, such evidence may shed light upon whether a protected characteristic played a part in an employer’s
decision. It is less clear how the Supreme Court of Missouri would decide the qualifications issue, see E.E.O.C. v.
Con-Way Freight, Inc., 622 F.3d 933, 938 (8th Cir. 2010), but the Court need not venture a guess, because assuming
this element applies, Denn has presented sufficient evidence to satisfy the minimal showing “that he possesses the
basic skills necessary” to perform the job. See McGinnis v. Union Pac. R.R., 496 F.3d 868, 874 n.2 (8th Cir. 2007)
(internal quotation marks omitted).

11

male employees. CSL counters that even when taken together, this evidence does not support an
inference that Denn’s sex contributed to his termination, especially considering that they
replaced him with a male employee.
The Courts finds that no rational jury, viewing the record as a whole, could find for
Denn. As an initial matter, Denn fails in his efforts to undermine CSL’s proffered reasons for
termination. A plaintiff may demonstrate sex discrimination by showing that the employer’s
bases for termination were less than credible, thus supporting an inference that the reasons were
simply an artifice to disguise the prohibited consideration. See Lomax v. DaimlerChrysler Corp.,
243 S.W.3d 474, 483 (Mo. App. Ct. 2007).9 However, it is undisputed that Denn received
numerous verbal and written reprimands for a variety of perceived deficiencies. Although Denn
initially received positive reviews, this changed in late 2011 when he was twice disciplined by
Kennedy, a male supervisor. This was followed by another written warning from Heatherman in
February 2012, which outlined numerous different infractions committed by Denn, including
some previously noted by Kennedy.

Although Denn attempts to controvert some of this

discipline by explaining that Heatherman included false information such as lower than actual
production numbers, he was never disciplined for such an alleged deficiency10 and this testimony
does not counter the litany of other documented deficiencies. And while he contends that
Heatherman “set him up to fail” by requiring him to perform more tasks than an average

9

Such a line of proof is not to be confused with showing pretext, the requirement under the third step of the
McDonnell Douglas framework. See Lomax, 243 S.W.3d at 482. Rather, if a plaintiff decides to use this type of
evidence, which Denn has done, then he must simply present evidence that the stated reasons are less than credible.
See id at 483; see also McCullough v. Commerce Bank, 349 S.W.3d 389, 398-99 (Mo. Ct. App. 2011) (affirming a
trial court’s rejection of a pretext instruction because the instruction would amount to a reversion to the McDonnell
Douglas burden-shifting framework).
10

Throughout his deposition and briefs, Denn mischaracterizes his write-up as disciplining him for not performing
enough procedures, but the unchallenged disciplinary record shows that CSL reprimanded him for not consistently
“driving or managing flow or building relationships.” (Doc. 42-12 at 2-4).

12

employee could accomplish, he does not point to evidence, aside from sheer speculation, that she
did not impose similar development plans on similarly-situated employees.
After the initial written discipline, Heatherman and Denn repeatedly met regarding his
development plan goals. At one point, Heatherman acknowledged that Denn showed significant
improvement. But from March 5, 2012 through August 2012, Heatherman consistently voiced
displeasure with Denn missing deadlines, interacting poorly with others, failing to elevate
concerns, and not administering corrective actions.

Eventually, Heatherman requested

permission to serve Denn with a final written warning. After review and approval by H.R.,
which included Brittain, a male employee, Heatherman served the final written warning on
Denn.

This document told Denn, in pertinent part, to improve his communications with

Heatherman, H.R., and his peers. This command was reiterated in a later-served addendum,
which also cited Denn for another instance of failing to apprise H.R. about an issue.
Approximately one week after this addendum, Denn learned of the Todd-Desouza
incident but did not report it to his peer manager or H.R. until a week later, even though the
policies stated he must report such incidents immediately and he was recently disciplined for
failing to do so. Denn protests that Todd requested he postpone reporting and that H.R. would
have admonished him for reporting without investigating.

But despite Denn’s efforts to

challenge the credibility of CSL’s reasons for disciplining him and thus create a genuine issue
for trial, see Lomax, 243 S.W.3d at 483, he falls short because he has no proof underlying his
challenges. Cf. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) (“Proof
that the defendant’s explanation is unworthy of credence is simply one form of circumstantial
evidence that is probative of intentional discrimination, and it may be quite persuasive.”

13

(emphasis added)). Thus, looking at the undisputed facts regarding his discipline, no rational
jury could conclude that his numerous write-ups were merely a guise for sex discrimination.
Nor could a rational jury find that the remainder of Denn’s proffered evidence
demonstrates sex discrimination. Denn first claims that Heatherman never punished his fellow
assistant manager Ceniceros, thus showing animus toward him as a male.11 But he has not
presented evidence that Ceniceros committed the same infractions as him. Cf. Hervey v. Cnty. of
Koochiching, 527 F.3d 711, 720 (8th Cir. 2008) (noting that to be similarly situated the
“individuals used for comparison must have dealt with the same supervisor, have been subject to
the same standards, and engage in the same conduct without any mitigating or distinguishing
characteristics”). For instance, he does not show that she, like him, repeatedly had problems
with interacting with employees, missing deadlines, and failing to elevate complaints to
management or H.R. Instead, Denn, relying on his and Ceniceros’ testimony, contends that she
had lower “production” numbers than him and never completed maintenance work. But Denn
never proves that he was disciplined for either of these two failures.12 Thus, Denn has not shown
that Ceniceros was similarly situated yet treated differently.
Denn next cites testimony from Todd, Lain, and Carter as evidence that a trial-worthy
issue remains. The Todd and Lain testimony, however, is derivative of the Ceniceros evidence
and suffers from the same fatal flaw: It fails to show that Denn was similarly situated to any
female employee yet treated differently from her. Carter’s testimony only generally shows that
he felt he was the victim of sex discrimination because he was “targeted by female supervisors,”
11

Although Missouri courts do not require a plaintiff to plead and prove similarly-situated evidence as a prima facie
case element, a plaintiff may employ this type of evidence to create an inference of discrimination. See Holmes, 364
S.W.3d at 627. Denn clearly chose to do so here, because his petition and summary judgment briefs rely on the lack
of punishment doled out to Ceniceros as central proof of discrimination.
12

Denn also attempts to compare himself to Heatherman under this analysis, but this effort fails because she is his
supervisor and there is no evidence showing that she engaged in similar conduct.

14

but it does not specify as to what that targeting consisted of, who perpetrated it, whether he was
treated differently than similarly-situated female employees, or whether the “discrimination” was
not just limited to him. See also Carter v. CSL Plasma Inc., No. 13-CV-00814-FJG, 2014 WL
5438374, at *8, 10 (W.D. Mo. Oct. 24, 2014) (finding that Carter’s testimony in his companion
lawsuit to Denn’s case was based upon nothing more than speculation).
Denn next contends that two comments from Ceniceros and Robinson are “direct
evidence” of sex discrimination. As mentioned above, Ceniceros once told Denn that CSL was
no place for men, and after Denn’s termination, Robinson remarked to Ceniceros, “Isn’t it nice
that all the testosterone is gone so that we don’t have to deal with it anymore.” When viewed in
the light most favorable to Denn, these comments show that two of his peers may have harbored
a gender-motivated bias against him. However, these comments are not direct evidence of
discrimination because neither Ceniceros nor Robinson participated in the decision to terminate
him. See Daugherty, 231 S.W.3d at 818 n.4. Nor are these stray comments circumstantial
evidence that his sex contributed to his termination because there is no indication that the
comments either influenced decision-makers or were emblematic of similar sentiments held by
those decision-makers. Cf. Fast v. S. Union. Co., Inc., 149 F.3d 885, 891-92 (8th Cir. 1998)
(noting that numerous stray remarks from a non-decision-maker, coupled with stray remarks
from the decision-maker and other evidence, was sufficient to survive summary judgment in an
age discrimination case). Quite to the contrary, Denn cites no evidence connecting Heatherman
or any H.R. employees to any such comments or beliefs.
Denn lastly asserts that when taken together, these discrete pieces of evidence
cumulatively create an inference that his sex contributed to his termination. The Court disagrees
because simply combining all the evidence that is singly insufficient or irrelevant does not create

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a genuine issue for trial. See Johnson v. Securitas Sec. Servs. USA, Inc., 769 F.3d 605, 614 (8th
Cir. 2014) (rejecting an employee’s attempt to avoid summary judgment by combining all the
evidence that the court found individually unavailing). And in any event, even if the Court
combines this evidence, it must also be viewed in conjunction with the other undisputed material
facts. See Torgerson, 643 F.3d at 1042; cf. Scott v. Harris, 550 U.S. 372, 380-81 (2007) (holding
that the court may not simply adopt the non-movant’s view of the evidence when it is plainly
contradicted by the record).

As noted above, the undisputed facts show that a male employee

first disciplined Denn, Denn then incurred numerous infractions over a six-month period, Denn
failed to complete all tasks required of him, a team of female and male employees decided to put
him on final written warning, this same team eventually decided to terminate him after
investigating his claims of sex discrimination, and they eventually replaced him with a male
employee.
In sum, even when all the undisputed facts are viewed in the light most favorable to Denn
with all reasonable inferences taken in his favor, no rational trier of fact could find for him. See
also Carter, 2014 WL 5438374, at *10 (finding no sex discrimination in a case involving similar
arguments and evidence against CSL).

Therefore, the Court finds that CSL is entitled to

summary judgment on Denn’s sex discrimination claim.
II. Because the undisputed facts show that Denn’s discrimination complaint was not a
contributing factor in the adverse actions taken against him, CSL is entitled to
summary judgment on Count II.
Count II alleges a MHRA retaliation claim. The MHRA prohibits an employer from
retaliating or discriminating against an employee for filing a discrimination complaint. See Mo.
Rev. Stat. § 213.070. To make a submissible retaliation case, Denn must establish that: “(1) he
complained of discrimination; (2) the employer took adverse action against him; and (3) a causal

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connection relationship existed between the complaint and the adverse action.” McCrainey v.
Kansas City Mo. Sch. Dist., 337 S.W.3d 746, 753 (Mo. Ct. App. 2011). An adverse action
includes not only termination, Wierman, 638 F.3d at 999, but also any written warnings that the
termination was predicated upon. Spears v. Mo. Dep’t of Corrs. & Human Res., 210 F.3d 850,
854 (8th Cir. 2000).

The causation element analysis mirrors the one used for MHRA

discrimination cases, that is, the plaintiff must show that complaint was a contributing factor in
the employer’s decision to take the adverse action. See Hill v. Ford Motor Co., 277 S.W.3d 659,
664-65 (Mo. 2009).
It is undisputed that Denn has presented sufficient evidence on the first two elements: (1)
he complained to H.R. about Heatherman subjecting him to sex discrimination; and (2) he
received a final written warning in August 2012 and then was terminated in November 2012.
CSL, however, contends that Denn cannot satisfy the causation element because the only
probative evidence he presented is the coincidental timing of the final written warning. Denn
disagrees, contending that this suspicious timing, when coupled with other evidence, is sufficient
to survive summary judgment.
The Court finds that Denn has not adduced sufficient evidence to survive summary
judgment. It is undisputed that Denn received his final written warning from Heatherman only a
couple of days after he complained to H.R. about her. It is unclear whether Heatherman knew
about the complaint when she served the final written warning, but even assuming she did, such
close temporal proximity alone is generally insufficient to create a genuine issue on retaliation;
something more is required.

Williams, 281 S.W.3d at 868-69; see Medley v. Valentine

Commc’ns, Inc., 173 S.W.3d 315, 325 (Mo. Ct. App. 2005) (holding that close temporal

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proximity between adverse act and complaint of discrimination was alone insufficient to make a
prima facie case of MHRA retaliation).
Denn fails to show something more. He highlights what he characterizes as his sterling
work record before Heatherman’s promotion and her withholding the harshest punishment until
after his complaint. This falls short of showing retaliation for two reasons. First, Denn received
discipline before Heatherman’s promotion, so his work record was not as unblemished as he
claims. Second, even though the final written warning was served after his complaint, no one
disputes that Heatherman sought approval for it a month before his complaint and it was
predicated on cumulative infractions dating as far back as February.13 Similarly, even his
termination, which occurred two months after his complaint, was predicated not only upon the
Todd-Desouza incident but also the numerous previous written warnings he received for precomplaint performance deficiencies. Since the majority of his discipline and the grounds for his
later termination all occurred before his complaint, this evidence does not assist Denn. Cf.
Williams, 281 S.W.3d at 867-68 (finding a submissible retaliation case where the plaintiff,
among other things, showed that she had a good work history before her sexual harassment
complaint and most of her discipline arose thereafter).
As additional evidence of retaliatory intent, Denn cites Lain’s testimony that Lain “feared
retaliation” for participating in a deposition for this case. This testimony, however, does not
raise an inference that Denn was retaliated against, because even assuming that Lain’s “fear” was
based upon a prior adverse experience, there is no evidence that Lain was similarly situated to
Denn. Cf. id. at 869 (noting that in addition to suspicious timing, the plaintiff also showed,

13

Denn argues that the Heatherman received approval in late July 2012 and held onto the final written warning so
she could retaliate against him in the future. Denn provides absolutely no support for this theory, and the Court
cannot take such an unreasonable inferential leap. See Johnson, 769 F.3d at 611 (“[W]e give the nonmoving party
the benefit of all reasonable inferences which may be drawn without resorting to speculation.” (emphasis added)).

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among other things, that a similarly-situated employee was also terminated after filing a sexual
harassment complaint).
In sum, no rational jury, viewing the record as a whole, could conclude that Denn’s
discrimination complaint contributed to his final written warning or termination. Therefore, CSL
is entitled to summary judgment on Count II.
Because the Court grants summary judgment to CSL on both claims, it must necessarily
deny summary judgment to Denn. Therefore, his motion for summary judgment is DENIED AS
MOOT.
Conclusion
Because there is no dispute of material fact and judgment as a matter of law is proper on
both counts, the Court GRANTS CSL’s motion for summary judgment (Doc. 41) and DENIES
Denn’s motion for summary judgment (Doc. 36).
IT IS SO ORDERED.
Date: March 2, 2015

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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