Opinion
No. ED 108820
11-17-2020
Vanessa ICKENROTH, Appellant, v. PARKWAY SCHOOL DISTRICT C-2, Respondent.
FOR APPELLANT: Charles R. Dickman, Charlie Dickman Law, LLC, 4427 Osage Beach Parkway, Suite A900, Osage Beach, Missouri 65065, Sarah H. Hale, Marglous Law Firm, 7711 Bonhomme Avenue, Suite 300, Clayton, Missouri 63105. FOR RESPONDENT: Margaret A. Hesse, Mandi D. Moutray, Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C., 34 North Meramec Avenue, Suite 600, St. Louis, Missouri 63105.
FOR APPELLANT: Charles R. Dickman, Charlie Dickman Law, LLC, 4427 Osage Beach Parkway, Suite A900, Osage Beach, Missouri 65065, Sarah H. Hale, Marglous Law Firm, 7711 Bonhomme Avenue, Suite 300, Clayton, Missouri 63105.
FOR RESPONDENT: Margaret A. Hesse, Mandi D. Moutray, Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C., 34 North Meramec Avenue, Suite 600, St. Louis, Missouri 63105.
Philip M. Hess, Judge
Introduction
Vanessa Ickenroth ("Ickenroth") appeals the trial court's grant of summary judgment for Parkway School District C-2 ("the District") on her claim of age discrimination under the Missouri Human Rights Act ("MHRA"), Section 213.010, RSMo (2014) et seq. She argues the District was not entitled to judgment as a matter of law because genuine issues of material fact exist regarding whether her age was a contributing factor in the District's alleged harassment of her. She also argues the trial court erred by assessing costs against her because it did not find her claim was without foundation. The evidence before us raises no genuine issues of material fact and Ickenroth has failed to adduce sufficient evidence allowing a jury to find all essential elements of her age discrimination claim. However, we find the trial court erred by assessing costs against Ickenroth without finding her claim was without foundation. The trial court's judgment is affirmed in part, reversed in part, and modified under Rule 84.14.
All statutory references are to RSMo (2014), unless otherwise indicated.
All rule references are to the Missouri Supreme Court Rules (2014), unless otherwise indicated.
The facts are set forth in the light most favorable to Ickenroth, as she is the party against whom summary judgment was entered. ITT Comm. Fin. Corp. v. Mid-Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993).
The District hired Ickenroth as a school bus driver in 1998. As a school bus driver, Ickenroth provided transportation services to school-aged resident students in the District. During the 2014-2015 school year, Ickenroth was fifty-nine years old. In November 2014, a school bus route with "a reputation for rowdy students" became available. The District allowed school bus drivers to request changes in their routes mid-year in order of seniority. Ickenroth requested, and was selected for, transfer to the newly-available route. After she transferred routes, Ickenroth experienced many instances of student misbehavior. Several students refused to remain sitting on the school bus and threatened and harassed Ickenroth while she was driving. The students used "disparaging words" that Ickenroth believed "indicated they considered [her] race as a catalyst for the[ir] behavior and threats."
Ickenroth filed multiple safety violation reports between November 2014 and February 2015 with the District to report the student misbehavior. Although the District responded to each safety violation report Ickenroth filed, Ickenroth believed her route remained dangerous. In December 2014, an Assistant Principal boarded the school bus and told the students to "calm down." Ickenroth requested to see footage from the video camera installed on the school bus on several occasions, but she was always told by her supervisor the footage was unavailable. In early March 2015, the District removed several misbehaving students from Ickenroth's route. Ickenroth's supervisor told her to "offer the kids an olive branch." Ickenroth believed her supervisor's statement was based on an "ageist stereotype" that suggests she "was simply unable to handle the children because of her age."
Ickenroth believed the District ignored her reports of student misbehavior to force her to quit so the District could replace her with a younger driver it could pay less, since the District paid school bus drivers based on their years of experience and the number of years they worked for the District. Ickenroth recalled the Director of Transportation once asked school bus drivers if they had any ideas for ways the Transportation Department could save money, although she could not recall if the Director of Transportation made this inquiry during the 2014-2015 school year. The Director of Transportation for the District never indicated the District wanted to remove or replace older school bus drivers to cut transportation costs. Compared to the 2013-2014 school year, the District increased its spending budget for the Transportation Department for the 2014-2015 school year. The Transportation Department was not fully staffed and actively recruiting additional school bus drivers during the 2014-2015 school year.
Ickenroth can identify no employees in the Transportation Department that she believes were treated better than her because of their age. No one at the District ever made a comment or statement regarding Ickenroth's age. Other than filing this lawsuit, Ickenroth never told the District she was being harassed because of her age at work.
Ickenroth's compensation, benefits, and hours of work were not reduced and her job duties did not change during or after the time she experienced student misbehavior on her route during the 2014-2015 school year. Ickenroth received every raise owed to her each year following the 2014-2015 school year. Ickenroth received a positive performance evaluation for the 2014-2015 school year. Ickenroth continued driving the route for the remainder of the 2014-2015 school year, although one "leg" of the route was removed. Ickenroth requested, and was selected for, the same route the next school year. Had Ickenroth resigned as a school bus driver during the 2014-2015 school year, the District could have replaced her with another school bus driver who had "a) no prior experience driving a school bus; b) less experience than [Ickenroth] driving a school bus; c) the same experience as [Ickenroth] driving a school bus; or d) more experience than [Ickenroth] driving a school bus."
Ickenroth continued her employment as a school bus driver with the District until her resignation effective January 31, 2020. Ickenroth maintains she would have continued working for the District until she reached seventy years old but for the District's alleged discrimination against her during the 2014-2015 school year. Procedural Background
Ickenroth filed a Charge of Discrimination with the Missouri Commission on Human Rights ("MCHR") against the District on June 5, 2015, alleging the District discriminated against her because of her "race, color, and age." On March 29, 2016, the MCHR issued Ickenroth a "notice of right to sue" letter under section 213.111 of the MHRA. On May 17, 2019, Ickenroth filed her First Amended Petition against the District, alleging the District engaged in unlawful age discrimination against her by "allow[ing] serious student misconduct and a dangerous workplace to persist unabated for several months on [her] school bus, despite [her] persistent pleas for help" in violation of section 213.055 of the MHRA. She alleged the District ignored her "repeated reports of student misbehavior and bus safety concerns ... [in an] attempt to force [her] to quit so [the District] could replace [her] with a younger, less experienced driver, thereby further saving transportation costs." On December 19, 2019, the District moved for summary judgment, which the trial court granted.
Ickenroth's First Amended Petition did not allege the District discriminated against her because of her "race" or "color." Ickenroth filed her initial petition against the District on June 22, 2016, within ninety days of the date she received her "notice of right to sue" letter.
This appeal follows.
Standard of Review
Our review of a trial court's grant of summary judgment "is essentially de novo. " ITT Comm. Fin. Corp. v. Mid-Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993). We review "the record in the light most favorable to the party against whom judgment was entered." Id. Any facts set forth in support of a moving party's motion for summary judgment are considered true unless contradicted by the non-moving party's response to the summary judgment motion. Id. We grant the non-moving party the benefit of all reasonable inferences from the record. Id. After reviewing the evidence in this manner, we will only affirm the trial court's entry of summary judgment if (1) there is no genuine dispute as to the material facts on which the movant is relying for summary judgment; and (2) based on those undisputed facts, the Movant is entitled to judgment as a matter of law. Id. at 381 ; see also Harpagon MO, LLC v. Bosch , 370 S.W.3d 579, 582 (Mo. banc 2012).
Where, as here, the movant is a defending party, summary judgment can be established by showing: (1) undisputed facts that negate any one of the plaintiff's required proof elements; (2) the plaintiff, after an adequate period of discovery, has not produced and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of one or more of the plaintiff's proof elements; or (3) there is no genuine dispute as to the existence of the facts necessary to prove the movant's properly pleaded affirmative defense. ITT Comm. Fin. Corp. , 854 S.W.2d at 381 ; see also Childress Painting & Assoc., Inc. v. John Q. Hammons Hotels Two, L.P. , 106 S.W.3d 558, 561 (Mo. App. W.D. 2003).
"[I]n considering summary judgment on an MHRA claim, the Court ‘must determine whether the record shows two plausible, but contradictory, accounts of the essential facts and the "genuine issue" in the case is real, not merely argumentative, imaginary, or frivolous.’ " Kerr v. Curators of the Univ. of Mo. , 512 S.W.3d 798, 805 (Mo. App. W.D. 2016) (quoting Daugherty v. City of Maryland Heights , 231 S.W.3d 814, 820 (Mo. banc 2007) ). "Summary judgment should not be granted unless evidence could not support any reasonable inference for the non-movant." Id.
Discussion
Point I: Age Discrimination Claim
Ickenroth challenges the trial court's grant of summary judgment for the District on her claim of age discrimination under the MHRA. The MHRA prohibits an employer from discriminating against an individual regarding "compensation, terms, conditions, or privileges of employment, because of such individual's ... age...." § 213.055.1(1)(a). In her first point, Ickenroth argues the trial court erred by granting summary judgment for the District on her age discrimination claim because genuine issues of material fact exist regarding whether her age was a contributing factor in the District's alleged harassment of her. Ickenroth alleges the District discriminated against her due to a hostile work environment. To prevail on a claim of discrimination due to a hostile work environment, Ickenroth must show: (1) she is a member of a protected class; (2) she was subjected to unwelcome age harassment; (3) her age was a contributing factor in the harassment; (4) the harassment affected a term, condition, or privilege of employment; and (5) the District knew or should have known of the harassment and failed to take appropriate action. Alhalabi v. Mo. Dep't of Nat. Res. , 300 S.W.3d 518, 527 (Mo. App. E.D. 2009).
The actions giving rise to Ickenroth's claim of discrimination and the filing of Ickenroth's lawsuit pre-date the August 2017 amendments to the MHRA. Thus, the "contributing factor" standard applies to her claim. See Bram v. AT&T Mobility Servs., LLC , 564 S.W.3d 787, 794-96 (Mo. App. W.D. 2018) for an analysis of how assessment of claims of discrimination under the MHRA differed before and after the August 2017 amendments. The argument portion of Ickenroth's brief argues the trial court erred by applying the August 2017 amended version of the MHRA, which provides an employer violates the MHRA if the employee's protected status was the motivating factor in an adverse employment action, retrospectively to her age discrimination claim. See id. This argument is waived, as it was not raised in Ickenroth's point relied on. Rule 84.04(e) ("The argument shall be limited to those errors included in the "Points Relied On"); Minor v. Rush , 216 S.W.3d 210, 213 n.2 (Mo. App. W.D. 2007) (arguments not raised in an appellant's point relied on are not preserved for appellate review). Even if this argument was not waived, it is meritless. Ickenroth acknowledges the trial court ruled she "failed to present sufficient competent evidence that would allow a reasonable trier of fact to conclude that her age was a contributing factor ’ to any potential discrimination by [the] District," although it found in a footnote Ickenroth's claim failed under either a motivating factor or contributing factor analysis. (emphasis added). For the reasons explained in this Opinion, Ickenroth's discrimination claim does not survive summary judgment when applying the "contributing factor" standard.
We find Ickenroth failed to prove the second, third, fourth, and fifth elements of her claim and the District is entitled to judgment as a matter of law. There is no genuine dispute regarding whether Ickenroth was subjected to unwelcome age harassment. The record shows the students on Ickenroth's bus threatened and harassed her while she was driving. However, Ickenroth believed the students "considered [her] race as a catalyst for the[ir] behavior and threats," not her age. (emphasis added). Ickenroth provided no evidence showing the students harassed her because of her age. When Ickenroth alerted the District about the student misbehavior, the District responded to safety violation reports and removed several misbehaving students from her route. A supervisor told Ickenroth to "offer the kids an olive branch." Although she argues her supervisor's statement, "offer the kids an olive branch," is based on an "ageist stereotype" that suggests she "was simply unable to handle the children because of her age," Ickenroth admitted in her response to the District's motion for summary judgment no one at the District ever made a comment or statement regarding her age. There is no genuine issue of material fact regarding whether Ickenroth was subjected to unwelcome age harassment.
There is also no genuine dispute regarding whether Ickenroth's age was a contributing factor in any alleged harassment. "A contributing factor is a condition that contributes a share in anything or has a part in producing the effect." Jones v. Galaxy 1 Mktg., Inc. , 478 S.W.3d 556, 573 (Mo. App. E.D. 2015) (quotations omitted). Ickenroth contends age discrimination can be reasonably inferred from:
1. Ickenroth's opinion her supervisor's statement to "offer the kids an olive branch" was based on an "ageist stereotype" that suggests she "was simply unable to handle the children because of her age."
2. Ickenroth's opinion the Transportation Department was trying to cut costs during the 2014-2015 school year because the Director of Transportation once asked bus drivers if they had any ideas for ways the Transportation Department could save money.
3. Ickenroth's opinion the District ignored her "repeated reports of student misbehavior and bus safety concerns ... [in an] attempt to force [her] to quit so [the District] could replace [her] with a younger, less experienced driver, thereby further saving transportation costs."
However, Ickenroth cites no support for her claims. A plaintiff must present more than his or her own unsupported opinions that an employer discriminated against him or her based on age to withstand a motion for summary judgment. See Hilfiker v. Gideon Sch. Dist., No. 37 , 403 S.W.3d 667, 671-72 (Mo. App. S.D. 2012).
Ickenroth not only failed to support her claims with evidence beyond her own unsupported opinion, but also admitted these facts were uncontroverted in her response to the District's motion for summary judgment: No one at the District ever made a comment or statement regarding Ickenroth's age. Ickenroth could not recall if the Director of Transportation inquired about ways the District could save money on transportation during the 2014-2015 school year. The Director of Transportation for the District never indicated the District wanted to remove or replace older school bus drivers to cut transportation costs. Compared to the 2013-2014 school year, the District increased its spending budget for the Transportation Department for the 2014-2015 school year. The Transportation Department was not fully staffed and was actively recruiting additional school bus drivers during the 2014-2015 school year. Had Ickenroth resigned as a school bus driver during the 2014-2015 school year, the District could have replaced her with another school bus driver who had "a) no prior experience driving a school bus; b) less experience than [Ickenroth] driving a school bus; c) the same experience as [Ickenroth] driving a school bus; or d) more experience than [Ickenroth] driving a school bus."
These admissions establish there are not two plausible, contradictory accounts of essential facts in the record. Ickenroth's admissions of these facts contradict the personal unsupported opinions she offers as evidence that summary judgment was improper. There is no genuine issue of material fact regarding whether Ickenroth's age was a contributing factor in any alleged harassment by the District.
There is no genuine dispute regarding whether any alleged harassment by the District affected a term, condition, or privilege of Ickenroth's employment. "[H]arassment affects a term, condition, or privilege of employment if it is sufficiently severe or pervasive enough to alter the conditions of the plaintiff's employment and create an abusive working environment." See Cooper v. Albacore Holdings, Inc. , 204 S.W.3d 238, 244 (Mo. App. E.D. 2006). "The conduct must be sufficient to create a hostile work environment, both as it was subjectively viewed by the plaintiff and as it would be objectively viewed by a reasonable person." Id. at 244-45.
Ickenroth contends "District's failure to rectify [the] ... hostile and dangerous working condition[s on her school bus] satisfies the portion of the MHRA claim that requires discrimination impacting a condition of her employment." However, Ickenroth never alleged the students on her school bus harassed her because of her age. Ickenroth further admitted no one at the District ever made a comment or statement regarding her age. The record shows Ickenroth did not view the District's conduct as discriminatory. The District's conduct did not constitute discriminatory age harassment when viewed subjectively by Ickenroth, let alone when viewed objectively by a reasonable person. See id.
We further note Ickenroth's compensation, benefits, and hours of work were not reduced and her job duties did not change during or after the time she experienced student misbehavior on her route during the 2014-2015 school year. Ickenroth received every raise owed to her each year following the 2014-2015 school year. Ickenroth received a positive performance evaluation for the 2014-2015 school year. Ickenroth continued driving the complained-of route for the remainder of the 2014-2015 school year, although one "leg" of the route was removed. Ickenroth requested, and was selected for, the same route the next school year. There is no genuine dispute regarding whether any alleged harassment by the District affected a term, condition, or privilege of Ickenroth's employment.
Finally, there is no genuine dispute regarding whether the District knew or should have known of the alleged harassment and failed to take appropriate action. Again, Ickenroth never alleged the students on her school bus harassed her because of her age. In response to Ickenroth's complaints about the student misbehavior on her route, the District responded to several safety violation reports between November 2014 and February 2015 and removed several misbehaving students from her route in March 2015. Other than filing this lawsuit, Ickenroth never told the District she was being harassed because of her age at work. Ickenroth admitted no one at the District ever made a comment or statement regarding her age. There is no genuine dispute regarding whether the District knew or should have known about any alleged age harassment and failed to take appropriate action.
Even when viewing the evidence and inferences in the light most favorable to Ickenroth, we find no genuine issues of material fact exist regarding her claim for age discrimination. Accordingly, the trial court did not err by granting summary judgment for the District on Ickenroth's age discrimination claim.
Point I is denied.
Point II: Assessment of Court Costs Against Ickenroth
In her second point, Ickenroth argues the trial court erred by assessing costs against her because it did not find her claim was without foundation, as required under the version of section 213.111.2 in effect before August 28, 2017. Ickenroth argues that, for MHRA claims accruing before August 28, 2017, the trial court must find a plaintiff's case was "frivolous, unreasonable, or groundless" to assess costs against the plaintiff. See Mercer v. BusComm, Inc. , 515 S.W.3d 238, 245 (Mo. App. E.D. 2017).
Under the version of section 213.111.2 effective before August 28, 2017, the trial court could assess court costs against a plaintiff "only upon a showing that the case is without foundation." Brummett v. Burberry Ltd. , 597 S.W.3d 295, 313 (Mo. App. W.D. 2019) (citing § 213.111.2, RSMo (2000) ). After August 28, 2017, section 213.111.2 included no requirement that the trial court may only assess costs against a plaintiff upon a showing that the case is without foundation. See id.
The District does not contest Ickenroth's second point. The District concedes the pre-August 2017 version of section 213.111.2 applies here, as the actions giving rise to Ickenroth's claim of discrimination and the filing of Ickenroth's lawsuit pre-date August 28, 2017. The District further concedes, under the pre-August 2017 version of section 213.111.2, the trial court must have found Ickenroth's case was without foundation to assess costs against her but did not do so here. The trial court may not retrospectively apply the August 2017 amendment to section 213.111.2 to assess costs against Ickenroth. Brummett v. Burberry Ltd. , 597 S.W.3d 295, 317 (Mo. App. W.D. 2019). Thus, the trial court's assessment of costs against Ickenroth without finding her case was without foundation was legal error. See id.
Point II is granted.
Conclusion
Because no genuine issues of material fact exist regarding whether Ickenroth's age was a contributing factor in the District's alleged harassment of her, the trial court's judgment granting summary judgment for the District is affirmed. The trial court's judgment assessing costs against Ickenroth, however, is reversed because the trial court did not find Ickenroth's claim was without foundation. Because, under Rule 84.14, we may "give such judgment as the court ought to give," we modify the trial court's judgment to remove the portion of the sentence "that costs be taxed against Plaintiff" in the final order on Ickenroth's age discrimination claim. Each party shall bear their own costs.
Gary M. Gaertner, Jr., P.J. and Michael E. Gardner, J. concur.