Douglas L. Daugherty, Appellant v. The City of Maryland Heights, Respondent

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Douglas L. Daugherty, Appellant v. The City of Maryland Heights, Respondent Case Number: ED86438 Handdown Date: 06/27/2006 Appeal From: Circuit Court of St. Louis County, Hon. B.C. Drumm, Jr. Counsel for Appellant: Greg Kloeppel and Kevin J. Dolley Counsel for Respondent: James N. Foster, Jr., William B. Jones, Amy R. Brown Opinion Summary: Douglas L. Daugherty appeals the circuit court's judgment granting summary judgment in favor of the city of Maryland Heights. Daugherty, a former employee of the city's police department, brought an action against the city alleging unlawful discharge based on age discrimination and disability discrimination in violation of section 213.055.1(1), RSMo 2000, of the Missouri Human Rights Act. AFFIRMED. Division Two holds: (1) The trial court properly used the McDonnell Douglas burden shifting analysis because Daugherty failed to provide direct evidence of either age discrimination or disability discrimination. (2) Daugherty failed to establish a prima facie case of age discrimination under the act. (3) Daugherty failed to establish a prima facie case of disability discrimination under the act. Citation: Opinion Author: Per Curiam Opinion Vote: AFFIRMED. Gaertner, Sr., P.J., Draper III and Romines, J., concur Opinion:

Appellant, Douglas L. Daugherty ("Daugherty"), appeals the judgment of the Circuit Court of St. Louis County granting summary judgment in favor of Respondent, The City of Maryland Heights ("the City"). Daugherty, a former employee of the City's Police Department ("the Police Department"), brought an action against the City alleging unlawful discharge based on age discrimination and disability discrimination in violation of section 213.055.1(1), RSMo 2000(FN1) of the Missouri Human Rights Act ("the MHRA"). We affirm. In 1985, Daugherty, at the age of forty-two years old, began working as a sergeant for the Police Department. Daugherty later obtained the rank of captain, worked as commander in the detective bureau, and then worked as a watch commander until he was notified of his termination. On July 4, 1986, a drunk driver struck Daugherty while he was working for the Police Department. Daugherty's spinal cord was partially severed and he was initially paralyzed from the chest down. Daugherty had surgery for the injury, which eventually alleviated his paralysis. However, Daugherty's spinal cord remained partially severed. On or about September 1, 1987, Daugherty was released back to work. After the injury, Daugherty continued to suffer the following physical effects of his spinal cord injury: pain, spasms, burning sensations, muscle weakness, and muscle atrophy. As a result, Daugherty took several medications. In April of 2000, Daugherty was diagnosed with degenerative spine disease, which was related to his 1986 injury. This condition caused Daugherty to have pain in his lower back, left leg, and hips. As a result, in April of 2000, Daugherty had lower back fusion surgery and was out of work from April to October of 2000. Sometime in the year 2000, Daugherty exhausted all of his paid sick leave. Around that time, the City enacted a temporary ordinance specifically for Daugherty that allowed employees to share some of their paid sick leave with other employees. As a result, some employees donated sick leave time to Daugherty until Daugherty returned to work. After Daugherty returned to work, he began accruing his own paid sick leave. However, in June of 2001, Daugherty again became close to exhausting all of his paid sick leave. During 2001 and 2002, Daugherty's brother-in-law and chief of police for the City, Thomas O'Connor ("O'Connor"), received complaints from officers regarding Daugherty's lack of leadership and supervision due to his poor attendance. In April of 2002, Daugherty received a less than satisfactory evaluation based upon his lack of leadership and supervision, his increased use of sick time, and two violations of the Police Department's sick leave policies. On July 9, 2002, Daugherty injured his lower back again, when he stepped off a curb. As a result of this injury, Daugherty missed at least four days of work. Subsequently, the City's attorney, Mark Levin ("Levin"), approached O'Connor and asked him if he thought it

would be a good idea to have Daugherty complete a test to determine his fitness for duty. As a result of Daugherty's absenteeism, which seemed in large part related to Daugherty's back injuries, O'Connor agreed with Levin that O'Connor should be sent for a test to determine his fitness for duty. Thereafter, Daugherty was notified by the City's human resource department that O'Connor and deputy chief of police, Major Michael Kozuszek ("Kozuszek"), wanted him to be evaluated for his fitness for duty. Accordingly, Daugherty was scheduled for a physical exam(FN2) with Dr. Richard Katz ("Dr. Katz") to determine Daugherty's fitness for duty. On August 27, 2002, Dr. Katz examined Daugherty, and concluded that he needed more information from the City to complete his evaluation. Subsequently, the City provided Dr. Katz with Daugherty's medical records and a description of a police captain's duties. In addition, the City specifically asked Dr. Katz to make an assessment whether Daugherty was capable of functioning in a physical confrontation and subsequent arrest with an adult where public safety is at risk. Thereafter, Dr. Katz examined Daugherty for a second time. Dr. Katz also sent Daugherty to undergo a functional capacity evaluation with Mr. Victor Zucarello ("Mr. Zucarello"), a licensed occupational therapist. In October of 2002, Dr. Katz issued a report which incorporated Mr. Zucarello's findings as to Daugherty's fitness for duty. Dr. Katz opined in relevant part that "[Daugherty] has not been safe in functioning in a physical confrontation and subsequent arrest with an adult . . . where public safety is at risk . . . [t]hus he can not work in the capacity as a front line officer." Mr. Zucarello opined that "[Daugherty] may be at risk of harm should he directly attempt to physically chase and subdue an uncooperative suspect," and "[h]e also does not display adequate lifting or pulling strength to assist in moving an injured person from an emergency scene." Although Dr. Katz also opined that Daugherty was capable of performing his supervisory work as a captain, Daugherty acknowledges that every police officer, including captains, are required to do more than supervisory work. Daugherty specifically admits that every police officer for the City is required to do the same type of work that Dr. Katz and Mr. Zucarello determined that he can not or may not be able to do: enact an arrest, subdue an unwilling perpetrator, lift more than one hundred pounds, and pull an accident victim from an accident scene. Based upon Dr. Katz's report, O'Connor made the decision to terminate Daugherty. On October 28, 2002, O'Connor and Kozuszek met with Daugherty to inform him that he had the choice of being terminated or taking disability retirement(FN3) ("the October of 2002 meeting"). Subsequently, Daugherty was temporarily assigned to a community services position so he could determine whether he was going to voluntarily apply for disability retirement benefits. However, Daugherty never actually performed any work in his position in the community services bureau. Once O'Connor

learned that Daugherty chose not to apply for disability retirement, Daugherty was effectively terminated as of November 8, 2002. On November 8, 2002, O'Connor issued a memorandum to Daugherty, notifying him that his termination was based upon Dr. Katz's medical conclusions. On November 26, 2002, O'Connor issued at letter to Daugherty, which stated that Daugherty was terminated due to: (1) the Police Department's determination that Daugherty cannot perform the duties required of him as a police officer based on Dr. Katz's and Mr. Zucarello's findings, and (2) "a related and supporting reason . . . that [Daugherty's] physical condition has caused him attendance problems which interfere with his ability to act as a supervisor and the [Police D]epartment's ability to properly schedule its officers." Subsequently, Daugherty requested a hearing on the termination decision, which took place on or about March of

1. After the hearing, Daugherty's termination decision was upheld by the Police Department.

Daugherty then filed a complaint with the Missouri Commission on Human Rights ("the MCHR") against the City on May 4, 2003, alleging an unlawful discriminatory practice. On November 4, 2003, the MCHR issued Daugherty a "notice of right to sue" letter pursuant to section 213.111 of the MHRA. On November 12, 2003, Daugherty filed an action against the City, alleging unlawful discharge based on age discrimination and disability discrimination in violation of section 213.055.1(1) of the MHRA. On April 11, 2005, the City filed its motion for summary judgment, which the trial court granted with respect to both of Daugherty's claims. This appeal by Daugherty followed. Our review of a grant of summary judgment is essentially de novo. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 376 (Mo.banc 1993). We view the record in the light most favorable to the non-movant. Id. Facts set forth in support of the moving party's motion are considered to be true unless contradicted by the non-movant's response. Id. A trial court's judgment will be upheld if there are no genuine issues of material fact and if the moving party is entitled to judgment as a matter of law. Id. at 380. In his first point on appeal,(FN4) Daugherty contends that the trial court failed to use the correct standard of law. In granting summary judgment in favor of the City, the trial court used the McDonnell Douglas burden shifting analysis and found that: (1) Daugherty failed to establish a prima facie case of age discrimination or disability discrimination under the MHRA, (2) the City articulated a legitimate, non-discriminatory reason for Daugherty's discharge, and (3) Plaintiff failed to adduce any evidence of pretext for discrimination. See McDonnell Douglas Corp v. Green, 411 U.S. 792, 802-04 (1973). The McDonnell Douglas three-part burden shifting analysis applies to claims of employment discrimination. H.S. v. Board of Regents, 967 S.W.2d 665, 670 (Mo.App.E.D. 1998). Under that approach, the plaintiff must first establish a

prima facie case of discrimination ("the first prong"). Id. Should the plaintiff carry this burden, then the burden shifts to the employer to state a legitimate, non-discriminatory reason for the employment action ("the second prong"). Id. If the employer satisfies this burden, then the burden shifts back to the plaintiff to prove that the reasons for the employment action articulated by the employer are pretextual ("the third prong"). Id. Daugherty contends that the correct standard of law at the summary judgment level in an employment discrimination case is "whether or not there exists a genuine issue of fact as to whether or not . . . evidence of discrimination on the basis of [a protected class] [i]s a 'contributing factor' in [the employment action]." In support of his argument, Daugherty cites (1) Strate v. Midwest Bankcentre, Inc., 398 F.3d 1011 (8th Cir. 2005), and (2) Missouri Approved Instruction ("MAI") 31.24 (2005), the verdict director for employment discrimination claims under the MHRA. Daugherty apparently argues that Strate, in discussing the impact of Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), abrogated the McDonnell Douglas burden shifting analysis. Desert Palace involved the post-trial issue of when a plaintiff should be able to obtain a "mixed motive" instruction. Desert Palace, 539 U.S. at 92. However, Daugherty's argument is rejected by the Eighth Circuit's finding in Strate that, "the district court did not err in concluding that Desert Palace has not changed our summary judgment standards under the McDonnell Douglas paradigm." 398 F.3d at 1017. Furthermore, the Eighth Circuit then reviewed the district court's summary judgment decision using the McDonnell Douglas burden-shifting framework. Id. at 1018-21. First, the court found that the plaintiff met the first prong by making a prima facie case of discrimination. Id. at 1019. Next, the court found that employer satisfied the second prong by setting forth a non-discriminatory reason for the plaintiff's termination. Id. The court then held that a plaintiff can meet the third prong, and thus survive summary judgment, if he can establish enough admissible evidence to raise a genuine doubt as to the legitimacy of the employer's motive, even if the evidence does not directly contradict the reasons for the employment action articulated by the employer. Id. at 1021. Accordingly, we hold that Strate does not abrogate any part of McDonnell Douglas burden shifting analysis, but merely elucidates, or clarifies the third prong. Daugherty also relies upon MAI 31.24, the verdict director for employment discrimination claims under the MHRA, for his contention that the trial court used the incorrect standard of law. MAI 31.24 states in relevant part that "[y]our verdict must be for plaintiff if you believe . . . age or disability . . . was a contributing factor in . . . [plaintiff's] discharge . . .." MAI 31.24 (emphasis added). Daugherty maintains that because a plaintiff is entitled to a verdict if he proves that his protected class was a contributing factor in his discharge at trial, it follows that a plaintiff is entitled to survive summary judgment if he provides evidence that his protected class was a contributing factor in his discharge. However, what a plaintiff needs to prove

under an MAI instruction is very different from what a plaintiff needs to survive summary judgment. See Ribaudo v. Bauer, 982 S.W.2d 701, 704 (Mo.App.E.D. 1998). Thus, we find that Plaintiff's argument that MAI 31.24 should apply at the summary judgment level has no merit. We will now determine what standard of law should apply at the summary judgment level for employment discrimination claims under the MHRA. In Griffith v. City of Des Moines, the Eighth Circuit held that a plaintiff in an employment discrimination case may survive a defendant's motion for summary judgment in one of two ways: (1) by proof of "direct evidence" of discrimination, or, (2) if there is no direct evidence of discrimination, the inference of unlawful discrimination through the McDonnell Douglas analysis. 387 F.3d 733, 736 (8th Cir. 2004). We hold that this is the standard of law that should be utilized at the summary judgment level for employment discrimination claims under the MHRA. Accordingly, we will now determine, de novo, whether plaintiff has provided direct evidence of discrimination and consequently, whether the trial court was correct in using the McDonnell Douglas burden-shifting analysis in its judgment. Direct evidence is evidence which shows a specific connection between the alleged discrimination and the challenged decision, sufficient to support a finding by a reasonable trier of fact that an illegitimate criterion actually motivated the adverse employment action. Griffith, 387 F.3d at 736. Direct evidence includes evidence of remarks made by individuals closely involved in employment decisions that reflect a discriminatory attitude. E.E.O.C. v. Liberal R-II School Dist., 314 F.3d 920, 923 (8th Cir. 2002). However, direct evidence does not include "stray remarks in the workplace" or "statements by decision makers unrelated to the decisional process itself." Id. It is undisputed that O'Connor made the decision to terminate Daugherty, and Levin approved O'Connor's termination. In addition, it is undisputed that Kozuszek was at the October of 2002 meeting when Daugherty was notified of his termination. Thus, O'Connor, Levin, and Kozuszek were all individuals closely involved in the decision to terminate Daugherty. Accordingly, the only issue is whether Daugherty has provided direct evidence that any of these individuals made remarks reflecting a discriminatory attitude. We will first determine whether Daugherty has provided direct evidence of age discrimination. In this case, Daugherty stated in oral argument that the only alleged direct evidence of age discrimination took place during the October of 2002 meeting. During this meeting, O'Connor told Daugherty that Levin was trying to get rid of employees over the age of fifty-five, because they were making too much money. In response, Daugherty suggested that was age discrimination, and O'Connor agreed with Daugherty. However, the evidence reveals that that O'Connor made these statements to Daugherty in an effort to shift part of

the blame in the termination decision and to avoid confrontation with his brother-in-law, Daugherty. In addition, there is no evidence that Levin represented to anyone that he wanted to get rid of older employees. Furthermore, Daugherty stated that he understood that O'Connor, in making the statements, was expressing his opinion as to Levin's desires with respect to older police officers. Finally, Daugherty also stated that nothing offensive was said to him relating to his age by Levin, O'Connor, or Kozuszek. Because the above evidence does not reflect a discriminatory attitude on the part of Levin, O'Connor, or Kozuszek, we find there is not direct evidence of age discrimination. We will now determine whether Daugherty has provided direct evidence of disability discrimination. Daugherty contended in oral argument that the record reveals direct evidence of disability discrimination in that prior to Daugherty being sent to the physical exam, someone had told him that Levin was going to use the results of the physical exam to terminate him. However, there is no evidence of this statement in the record. Daugherty's actual statement in his deposition was that Levin wanted to have him evaluated to assess his fitness for duty because he was using a lot of sick time and had many absences. Levin stated that he suspected that Daugherty's absences were related to Daugherty's ongoing back injury, and concluded that the City had an obligation to find out. The record reveals that Daugherty did in fact miss a lot of work due to, at least in large part, his ongoing back injury. In addition, Daugherty's poor attendance had an effect on his job performance. Further, there is nothing in the record that shows a discriminatory attitude on the part of Levin in his desire to have Daugherty submit to a physical exam. Also, Daugherty stated that nothing offensive was said to him relating to a disability by Levin, O'Connor, or Kozuszek. Thus, we find there is not direct evidence of disability discrimination. Therefore, because Daugherty has failed to provide direct evidence of either age discrimination or disability discrimination, the trial court properly used the McDonnell Douglas burden shifting analysis. See Griffith, 387 F.3d at 736. Under Plaintiff's second and third points on appeal below, we will review, de novo, whether the trial court also properly determined that plaintiff failed to establish an inference of discrimination under the McDonnell Douglas framework. Point denied. In his second point on appeal, Daugherty maintains the trial court erred in finding he failed to establish a claim of age discrimination under the McDonnell Douglas burden-shifting analysis. The MHRA prohibits employers from engaging in unlawful employment practices, including discharging an employee on the basis of his age. Section 213.055.1(1). When analyzing an employment discrimination claim under the

MHRA, we consult federal employment discrimination decisions and Missouri law. Cook v. Atoma Intern. of America, Inc., 930 S.W.2d 43, 45 (Mo.App.E.D. 1996). The McDonnell Douglas burden shifting analysis requires a plaintiff to establish a prima facie case of age discrimination. Haas v. Kelly Services, Inc., 409 F.3d 1030, 1035 (8th Cir. 2005). In order to establish a prima facie case of age discrimination under the MHRA, a plaintiff is required to show that: (1) he is a member of a protected age group, (2) he met the applicable job qualifications, (3) he was discharged by his employer, and (4) he was replaced by a younger employee. Schierhoff v. Glaxosmithkline Consumer Healthcare, L.P., 444 F.3d 961, 965 (8th Cir. 2006). Under the MHRA, a plaintiff is a member of a protected age group if he is "an age of forty or more years but less than seventy years." Section 213.010(1). In this case, Daugherty was fifty-nine years old at the time of his termination. Daugherty's last active job with the City was as a captain in the watch commander position. After his termination, Daugherty was replaced by Captain Robert Nichols, who was sixty-three years old. Because he was replaced by an older employee, Daugherty has failed to make a prima facie case of age discrimination under the MHRA. Thus, summary judgment in favor of the City was proper. See Fox v. McDonnell Douglas Corp., 890 S.W.2d 408, 412 (Mo.App.E.D. 1995). Point denied. In his third point on appeal, Daugherty asserts the trial court erred in finding he failed to establish a claim of disability discrimination under the McDonnell Douglas framework. Daugherty argues the City regarded him as having a disability. The MHRA prohibits employers from engaging in unlawful employment practices, including discharging an employee on the basis of his disability. Section 213.055.1(1). When analyzing an employment discrimination claim under the MHRA, we consult federal employment discrimination decisions and Missouri law. Cook, 930 S.W.2d at 45. The McDonnell Douglas burden shifting analysis requires a plaintiff to establish a prima facie case of disability discrimination. See Medley v. Valentine Radford Communications, 173 S.W.3d 315, 321 (Mo.App.W.D. 2005). In order to establish a prima facie case of disability discrimination under the MHRA, a plaintiff is required to show that: (1) he is a member of a protected class because he has a disability as defined by the MHRA, (2) he was discharged by his employer, and (3) there is evidence to infer that the disability was a factor in his discharge. Id. at 320. The MHRA defines a "disability" as: "a physical or mental impairment which substantially limits one or more of a person's major life activities, [or] being regarded as having such an impairment . . . which with or without reasonable accommodation does not interfere with performing the job . . .." Section 213.010(4).(FN5) To establish that he is "regarded as having" a disability, a plaintiff can show that the employer mistakenly believed that he had an actual, non-

limiting impairment which substantially limited one or more major life activities. Brunko v. Mercy Hosp., 260 F.3d 939, 942 (8th Cir. 2001). An employer does not mistakenly believe an employee has an actual, non-limiting impairment which substantially limits the major life activity of working if the employer bases his belief on an uncontradicted physician's opinion that he could not perform certain duties. See id. Furthermore, the major life activity of working does not mean working at a particular job of the employee's choice. Id. Additionally, an impairment does not substantially limit the major life activity of working if it only disqualifies an employee from a narrow range of jobs. Id. In this case, Daugherty contends the City mistakenly believed he had an actual, non-limiting impairment which substantially limited his major life activity of working. Daugherty asserts that "[t]his is evidenced by Dr. Katz's actual release of [Daugherty] for work as a supervisory captain." However, the record reflects that Dr. Katz did not release Daugherty to return to work, but rather found that Daugherty "is capable of working in his supervisory work as a captain." Nonetheless, Daugherty admits that every police officer, including a captain, is required to do more than supervisory work. In addition, Daugherty specifically admits that every police officer for the City is required to do the type of work that Dr. Katz and Mr. Zucarello determined that he can not or may not be able to do: enact an arrest, subdue an unwilling perpetrator, lift more than one hundred pounds, and pull an accident victim from an accident scene. Moreover, neither of Daugherty's own experts, Dr. Barry Feinberg or vocational rehabilitation counselor Mr. James England, specifically opined that Daugherty can perform these particular duties that are required of all officers in the Police Department. In its decision to terminate Daugherty, the City relied upon Dr. Katz's uncontradicted opinion that Daugherty could not perform certain duties. The City based its decision to terminate Daugherty on his inability to perform his job as a police officer rather than a belief that Daugherty had an impairment which substantially limits his major life activity of working. Accordingly, the City did not have a mistaken belief that Daugherty had an actual, non-limiting impairment which substantially limits his major life activity of working. Thus, Daugherty has failed to establish that the City regarded him as having a disability, or that he has a disability within the meaning of the MHRA. Because Daugherty has failed to make a prima facie case of disability discrimination under the MHRA, summary judgment in favor of the City was proper. Point denied. Based upon the foregoing, we affirm the judgment of the trial court. Footnotes: FN1.All statutory references are to RSMo 2000, unless otherwise indicated. FN2.The City's personnel policy provides that "[t]he [C]ity may require an employee to be examined by the City's

physician for the purpose of determining an employee's ability to perform the essential functions of his/her position." FN3.Under the City's long term disability insurance plan, a disabled employee can receive up to 66% of his base salary until the age of 65, which is the mandatory retirement age for the Police Department's employees. FN4.Because Daugherty's first point on appeal in his brief only discusses the standard of review for summary judgment, for purposes of this appeal we will consider his second point on appeal his first point on appeal. Accordingly, we will also consider Daugherty's third point on appeal his second point on appeal, and his fourth point on appeal his third point on appeal. FN5.In this case, the question of reasonable accommodations is not at issue because Daugherty does not maintain that the City should have accommodated him in any way so that he could perform his job. Rather, Daugherty's sole argument, as discussed in this point on appeal, is that the City mistakenly believed he had a disability. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.