Kathryn Torre-Stewart, Appellant/Plaintiff, v. The Washington University-St. Louis, Respondent/Defendant.

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KATHRYN TORRE- STEWART,

Appellant/Plaintiff,

v.

THE WASHINGTON UNIVERSITY—ST. LOUIS,

Respondent/Defendant. ) ) ) ) ) ) ) ) ) ) )

No. ED113602

Filed: February 24, 2026

Appeal from the Circuit Court of St. Louis County The Honorable Thomas C. Albus, Judge

Introduction Plaintiff, Kathryn Torre-Stewart, appeals the judgment entered by the Circuit Court of St. Louis County dismissing her claims for disability discrimination, hostile work environment, and retaliation under the Missouri Human Rights Act against Defendant, The Washington University—St. Louis. We affirm in part and reverse in part. Because Plaintiff failed to plead facts demonstrating that she is legally disabled under the Missouri Human Rights Act, we affirm the trial court's dismissal of her claim of disability discrimination. Because Plaintiff failed to plead facts demonstrating a hostile work environment based on disability, we also affirm the trial court's dismissal of this

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claim. However, Plaintiff alleged facts that—if taken as true—establish the elements of a retaliation claim under the Missouri Human Rights Act based on her complaints of disability discrimination. Consequently, the trial court's judgment is vacated as to Plaintiff's retaliation claim, and the case is remanded. Factual and Procedural Background Plaintiff began her career with the University in 1998. She left her employment four years later when she moved out of state. Plaintiff returned to work for the University in 2013, and continued her employment until the COVID pandemic, when she was furloughed, and ultimately laid off, from her position as special projects coordinator with the University's School of Medicine. In October 2020, Plaintiff obtained another position with the University in the Advancement Department as the Associate Director of Development, Alumni and Constituent Relations in Arts and Sciences. Plaintiff was responsible for planning and managing events for the University's School of Arts and Sciences. Plaintiff worked in this capacity from October 2020 until her discharge on July 19, 2023. Having received a right-to-sue letter from the Missouri Commission on Human Rights, Plaintiff filed an employment discrimination suit against the University in the Circuit Court of St. Louis County, in which she alleged the following facts. In 2016, Plaintiff had the middle and lower lobes of her right lung removed due to neuroendocrine cancer. Since the surgery, and through the termination of her employment, "Plaintiff suffered from varying degrees of difficulty with breathing," and "[t]his difficulty caused Plaintiff to ga in weight, as it was harder to remain physically active." The petition alleged

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no other facts to show that Plaintiff's "difficulty with breathing" substantially limited major life activities such as ambulation (walking) or employment between her 2016 surgery and the 2022 incident. Plaintiff contracted COVID in August 2022, soon after which she failed a pulmonary function test. Her pulmonologist ordered Plaintiff placed on mobile oxygen, which she carried in a backpack and wore to work. Plaintiff does not allege that her pulmonologist placed her on any restrictions related to ambulation or work. Plaintiff wore the oxygen backpack, which kept her blood oxygen from dropping to an unsafe level, during her employment with the University whenever she needed to walk or stand for more than a few minutes. When her job responsibilities required her to walk to a location on the University campus, Plaintiff "frequently had to take occasional 30 [to] 60 second breaks," and had to take the elevator whenever available. In addition, her oxygen backpack needed access to electricity so that the backpack could charge periodically. Thus, Plaintiff carefully planned her trips away from the office to ensure that she arrived to her destination early and had extra time for her needed 30 to 60 second breaks from walking. Plaintiff consistently performed her duties without incident. Plaintiff received three excellent performance reviews, and in the early fall of 2022 shortly after Plaintiff began using mobile oxygen, the chief of staff to the senior director of the department at the time suggested that Plaintiff could expect a promotion in the near future. In October 2022, Tom Eschen became Assistant Vice Chancellor of Plaintiff's department on an interim basis, replacing the former senior director of the department who had received a promotion. In January 2023, Plaintiff's former supervisor

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told her that Eschen had commented to the former supervisor and the chief of staff about Plaintiff's oxygen backpack. Plaintiff became upset and cried when she learned of Eschen's comment. On February 13, 2023, a new director of advancement, Alison Ricketts, was appointed to the department, and Plaintiff reported to her. Plaintiff informed Ricketts on February 14, 2023 about Eschen's comment regarding her backpack. One month later, in March 2023, Ricketts sent Plaintiff an email expressing concerns about alleged "ongoing editing and quality control issues." Ricketts met with Plaintiff shortly thereafter, during which Ricketts "berated" Plaintiff and placed her on a performance improvement plan. Plaintiff had never received a formal warning or reprimand before being placed on the performance improvement plan, an alleged violation of the University's policy. Ricketts also faulted Plaintiff for failing to complete a briefing that was Ricketts's responsibility during a time that Plaintiff was on pre- approved vacation. After the March meeting, Plaintiff believed "Ricketts began going out of her way to criticize Plaintiff's work performance, as well as choosing to use a particularly aggressive tone in her conversations with Plaintiff." On April 7, 2023, Plaintiff submitted a complaint to the University's human resources department regarding Eschen's comment and the March performance improvement plan that Ricketts issued to Plaintiff. A representative from human resources interviewed Plaintiff in mid-May, and told Plaintiff that, under University policy, she should not have been placed on a performance improvement plan without first receiving a warning. Nevertheless, the investigation of Plaintiff's complaint was closed

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the next day because "[t]he allegations and subsequent investigation result do not support a finding of violation of the University's Discrimination and Harassment policy. We discussed this during our meeting on May 11, 2023." On June 19, 2023, Ricketts issued Plaintiff a final written warning and a second performance improvement plan, stating that Plaintiff's employment would be terminated if she did not show sustained improvement in job performance. Plaintiff was directed to deliver documents that were complete, accurate, and contained correct details. She was also directed to manage events projects with organization, attention to detail, and adherence to deadlines, and to provide regular status updates. No deadline was specified by which Plaintiff must improve her work to maintain her employment. Plaintiff requested specific written examples of her deficient performance. Ricketts responded that numerous examples were provided orally in earlier meetings with Plaintiff, and that Plaintiff should reflect on her own work to find instances of poor performance. Thirty days after issuing the final warning and second performance improvement plan, the University terminated Plaintiff's employment on July 19, 2023. Plaintiff's petition asserted three claims under the Missouri Human Rights Act ("MHRA") related to her employment and termination. Count one alleged disability discrimination. Count two alleged a hostile work environment based on disability. Count three alleged retaliation based on Plaintiff's complaints to Ricketts and to human resources regarding Eschen's comment followed by Ricketts's disciplinary actions. Plaintiff asserted that her disability was "at least a motivating factor" in count one, and that her disability and reports of discriminatory action were "at the very least, a

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motivating factor" for the hostile work environment and retaliation al leged in counts two and three, respectively. The University filed its motion to dismiss Plaintiff's claims with prejudice on the grounds that they failed to state a claim upon which relief can be granted. Specifically, the University argued that Plaintiff's disability discrimination claim in count one failed because the petition did not contain facts establishing that Plaintiff was legally disabled under the MHRA. As to count two, the University argued that Plaintiff's claim for a hostile work environment failed because her allegations were insufficient as a matter of law and did not support the elements of such a claim. Finally, the University argued that Plaintiff's retaliation claim should be dismissed because count three failed to allege facts demonstrating Plaintiff engaged in activity protected by the MHRA, and failed to allege facts demonstrating her purportedly protected activity was the motivating factor and determinative influence in her discharge. Plaintiff opposed the University's motion to dismiss. She included in her suggestions in opposition to the motion an alternative request for leave to amend her petition although she did not recite any new or additional facts that she wished to plead in an amended petition. Plaintiff neither attached a proposed amended petition to her suggestions in opposition to the motion to dismiss, nor did she file a separate motion for leave to amend. After full briefing and argument, the trial court granted the University's motion to dismiss all counts of the petition, and entered judgment in favor of the University. The trial court did not expressly rule on Plaintiff's alternative request to amend her petition. Plaintiff appeals.

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Discussion In seven points on appeal, Plaintiff challenges the trial court's dismissal of her petition for failure to state a claim and its implicit denial of her request to amend her petition. Standard of Review In points one through six, Plaintiff challenges the trial court's dismissal of her claims under the MHRA. We review de novo the trial court's grant of a motion to dismiss. Matthews v. Harley-Davidson, 685 S.W.3d 360, 365 (Mo. banc 2024). We will affirm the dismissal if it can be sustained on any grounds raised in the motion. Sullivan v. City of University City, 677 S.W.3d 844, 848 (Mo. App. E.D. 2023). "A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition." Id. We assume the plaintiff's averments are true, and we liberally grant the plaintiff all reasonable inferences. Id. "A motion to dismiss for failure to state a claim assesses whether the petition alleged facts giving rise 'to a cognizable cause of action or of a cause that might be adopted.'" Id. (quoting Graves v. Mo. Dep't of Corrections, 630 S.W.3d 769, 772 (Mo. banc 2021)) (emphasis in original). However, threadbare recitals of the elements of a cause of action, supported only by conclusory statements, will not pass muster. Wilkinson v. Farmers Holding Companies, No. 1:23-CV-4 SNLJ, 2023 WL 2536374, at *1 (E.D. Mo. Mar. 16, 2023). To sufficiently state a claim, the plaintiff must plead ultimate facts demonstrating entitlement to relief, and may not rely on mere conclusions. Gross v. A New Missouri, Inc., 591 S.W.3d 489, 493 (Mo. App. W.D. 2019). "Ultimate facts are

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those the jury must find to return a verdict for the plaintiff." Matthews, 685 S.W.3d at

1. We do not weigh the factual allegations to determine whether they are credible or

persuasive. Id. In her seventh and final point, Plaintiff challenges the trial court's implicit denial of her request to amend her petition. Denial of leave to amend is within the discretion of the trial court, and we presume the trial court's ruling is correct. Gross, 591 S.W.3d at

1. The plaintiff bears the burden to demonstrate that the trial court clearly and palpably

abused its discretion. Id. A trial court abuses its discretion when its "ruling is so clearly against the logic of the circumstances and so unreasonable and arbitrary that it shocks the sense of justice and indicates lack of careful consideration." Horton v. St. Louis Public Schools, 700 S.W.3d 311, 316 (Mo. App. E.D. 2024). Points One and Two – Plaintiff Failed To State A Claim For Disability Discrimination We consider Plaintiff's first two points together because both relate to whether Plaintiff adequately pled a claim for disability discrimination. In her first point, Plaintiff claims the trial court erred when it dismissed her disability discrimination claim because Plaintiff is disabled under the MHRA. In her second point, Plaintiff claims the trial court erred in dismissing her petition because her disability was a motivating factor in the adverse employment actions taken against her. The Missouri Human Rights Act ("MHRA") provides in pertinent part that it shall be an unlawful employment practice for an employer, because of the disability of any individual, to discharge any individual or otherwise to discriminate with respect to

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compensation, terms, conditions, or privileges of employment. Section 213.055.1(1)(a) RSMo. (Supp. 2024). 1 In short, it is unlawful under the MHRA for an employer to discharge an employee because of that employee's disability. Id. To assert a claim of disability discrimination under section 213.111 of the MHRA, Plaintiff must plead that: (1) she is legally disabled; (2) she was discharged or otherwise subjected to an adverse employment action; and (3) her disability was the motivating factor. Emile v. Triumph Foods, LLC, 713 S.W.3d 197, 210 (Mo. App. W.D. 2025). When reviewing cases under the MHRA, we "are guided by both Missouri law and any federal employment discrimination (i.e., Title VII [of the Civil Rights Act of 1964]) case law that is consistent with Missouri law." Matthews, 685 S.W.3d at 366. As a threshold element of her MHRA claim, Plaintiff must plead facts showing that her alleged "varying degrees of difficulty with breathing" qualify as a "disability" within the meaning of the MHRA. Loerch v. City of Union, 643 S.W.3d 597, 602 (Mo. App. E.D. 2022). A qualifying "disability" under the MHRA means: "a physical or mental impairment which substantially limits one or more of a person's major life activities, being regarded as having such an impairment, or a record of having such an impairment, which with or without reasonable accommodation does not interfere with performing the job ...." Section 213.010(5); Moore v. Southwestern Bell Tel. Co., 684 S.W.3d 187, 205 (Mo. App. E.D. 2023). Under the relevant regulations, a physical "impairment" means "[a]ny physiological disorder or condition, cosmetic disfigurement

1 All statutory references are to RSMo. (Supp. 2024).

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or anatomical loss affecting one (1) or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive, genito-urinary; hemic and lymphatic; skin; and endocrine[.]" 8 CSR 60-3.060(1)(A)(1). Plaintiff alleged she had surgery for cancer in 2016 that resulted in the removal of the middle and lower lobes of her right lung. After the surgery she experienced "varying degrees of difficulty with breathing." After contracting COVID in late August 2022, her cardiologist found Plaintiff's heart was normal, but her pulmonologist prescribed mobile oxygen that Plaintiff wore to work in a backpack for a limited time of several months but less than one year. These allegations show that Plaintiff had a physiological condition or anatomical loss affecting her respiratory system, in other words a "physical impairment." Id. Under the MHRA, however, showing an impairment is only the first step in establishing a disability. Heuton v. Ford Motor Co., 930 F.3d 1015, 1020 (8th Cir. 2019). A plaintiff must then plead facts sufficient to show that the impairment substantially limits one or more of her major life activities, she is regarded as having such an impairment, or she has a record of such an impairment. Section 213.010(5). A plaintiff is substantially limited in performing a major life activity for purposes of the MHRA if she is unable to perform a major life activity, or she is significantly restricted as to the condition, manner, or duration under which she can perform a particular major life activity. DeWalt v. Davidson Serv./Air, Inc., 398 S.W.3d 491, 499–500 (Mo. App. E.D. 2013); Heuton, 930 F.3d at 1019. "Major life activities" are defined as activities that

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affect employability such as ambulation, communication, education, employment, self- care, socialization, transportation, and vocational training. 8 C.S.R. 60-3.060(1)(C); Feldman v. Patrish, L.L.C., 674 S.W.3d 59, 63 (Mo. App. E.D. 2023). "[I]n the context of disability discrimination, the plaintiff must prove that [her] condition caused substantial impairment to a major life activity as opposed to mere difficulties." Id. (emphases in original). Plaintiff's petition does not name the major life activity she maintains is substantially limited by her "varying degrees of difficulty with breathing." Rather, she simply makes the conclusory assertion that her physical impairment "substantially limits one (1) or more of Plaintiff's major life activities." Plaintiff alleged that it became harder to remain physically active after her surgery, causing her to gain weight; that she "frequently had to take occasional" 30-60 second breaks when walking across the University campus; that she planned extra travel time; and that she took the elevator whenever possible. These facts lead to a reasonable inference that the affected major life activity implicated was ambulation. 2

Plaintiff alleged no restrictions on ambulation ordered by her doctor. And while Plaintiff may have had "difficulty with breathing" that required taking occasional breaks of one minute or less when walking across the University campus, planning extra time to allow for these occasional short breaks and perhaps slower than average walking speed,

2 In her reply brief, Plaintiff argues for the first time that the major life activity affected is that of breathing, and that she sufficiently pled "concrete functional limitations," which is not the standard under the MHRA.

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and taking the elevator when available, these difficulties do not show that Plaintiff's major life activity of ambulation was substantially limited by her physical impairment. Plaintiff failed to plead facts showing that her condition caused substantial impairment to a major life activity as opposed to mere difficulties. Id. In addition, minor, temporary illnesses, such as broken bones, sprains, or colds, are not considered physical or mental impairments that result in a disability. 8 C.S.R. 60- 3.060(1)(B)(1); Feldman, 674 S.W.3d at 63. "Temporary [conditions] are not actionable due to their transitory nature in that the [condition] does not significantly limit the individual permanently." Cook v. Atoma Int'l of Am., Inc., 930 S.W.2d 43, 47 (Mo. App. E.D. 1996) (employee diagnosed with "probable carpal tunnel syndrome" who returned to work without restriction could not be perceived as disabled because she only suffered temporary injury that did not substantially limit major life activity). See also Feldman, 674 S.W.3d at 64 (plaintiff's notice to employer that he needed temporary leave for mental health reasons was more akin to temporary illness than to substantial impairment of major life activity); Travis v. Perdue, No. 3:20-05071-CV-RK, 2021 WL 328916, at *5 (W.D. Mo. Feb. 1, 2021) (torn hamstring not qualifying disability because "[s]tatutory disability requires permanent or long-term limitations"). While Plaintiff's lung surgery, which removed the middle and lower lobes of her right lung, would have some permanent effect on her respiratory system, as plead in her petition, the need for mobile oxygen and for occasional short breaks when walking across campus arose after Plaintiff contracted COVID in late August 2022. Based on Plaintiff's July 30, 2023 complaint to

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the Missouri Commission on Human Rights attached to her petition, Plaintiff's use of mobile oxygen was temporary and lasted less than one year. Plaintiff does not allege that her pulmonologist placed her on any restrictions related to ambulation or work. See Gaal v. BJC Health Sys., 597 S.W.3d 277, 285 (Mo. App. E.D. 2019) (noting doctor did not place plaintiff on work restrictions despite her diagnosis of mild persistent asthma, even after her return from medical leave). Nor does Plaintiff allege facts to show that her "difficulty with breathing" substantially limited major life activities such as ambulation or employment between her 2016 surgery and 2022 when Plaintiff contracted COVID. Plaintiff has failed to plead facts demonstrating that she has "a physical or mental impairment" that "substantially limits one or more of [her] major life activities." Section 213.010(5) (emphasis added). A second means of establishing a "disability" under the MHRA is to show that a plaintiff is "regarded as having such an impairment." Id. However, Plaintiff has not pled facts demonstrating that the University regarded her as having such an impairment. The term "regarded as having such an impairment" means a person either "[h]as a physical or mental impairment that does not substantially limit major life activities but is treated by an employer or by others as constituting such a limitation," or "[h]as none of the impairments defined in [8 CSR 60-3.060(1)(A)] ... but is treated by an employer or by others as having an impairment which substantially limits a major life activity[.]" 8 CSR 60-3.060(1)(E) (emphases added); Heuton, 930 F.3d at 1019. Being regarded as having a limiting but not disabling restriction cannot qualify as a disability. See Irving v. Dierbergs Market, Inc., No. 4:21-CV-506 RLW, 2023 WL 2536363, at *5 (E.D. Mo.

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Mar. 16, 2023) (being regarded as having limiting but not disabling restriction cannot be disability within meaning of Americans With Disabilities Act). 3

The only allegation that might be construed to show the University regarded Plaintiff as having such an impairment is the allegation that Eschen made a comment about Plaintiff's oxygen backpack. However, Plaintiff provides no indication of what Eschen purportedly said, alleges no facts showing the substance of Eschen's comment. Nor does Plaintiff plead any facts to suggest that she was criticized, reprimanded, or disciplined for anything related to her breathing difficulties, such as taking too long to traverse the campus, taking too many breaks, being away from her office for too long, or taking too much time off work in connection with her breathing difficulties. Plaintiff does not plead facts showing the University mistakenly believed an impairment substantially limited one or more of her major life activities. Threadbare recitals of the elements of a cause of action, supported only by conclusory statements, will not pass muster. Wilkinson, No. 1:23-CV-4 SNLJ, 2023 WL 2536374, at *1.

3 The Americans With Disabilities Act provides that a person can be discriminated against because she is "regarded as" disabled in either of two ways: "(1) the employer mistakenly believes that the employee has an impairment (which would substantially limit one or more major life activity), or (2) the employer mistakenly believes that an actual impairment substantially limits one or more major life activity." Irving, No. 4:21- CV-506 RLW, 2023 WL 2536363, at *5 (emphasis in original). Likewise under the MHRA, a person can be discriminated against because she is "regarded as" disabled in either of two ways if the defendant: (1) wrongly believed the person has an impairment that substantially limits one or more major life activities or (2) wrongly believes that an actual, non-limiting impairment substantially limits one or more of the person's major life activities. Heuton, 930 F.3d at 1019.

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The third means of establishing a "disability" under the MHRA is to show that a plaintiff has a record of such an impairment. Section 213.010(5). State regulations define "record of such an impairment" to mean that "a person has a history of, or has been misclassified, as having a physical or mental impairment that does not substantially limit major life activities but that is treated by an employer as constituting such a limitation." 8 CSR 60-3.060(1)(D) (emphases added). Plaintiff alleges nothing to support that she has a "record of such an impairment" in that she pleads no facts to show the University treated her as having a substantial limitation on major life activities when she, in actuality, had no such limitation. Her conclusory allegation that "Plaintiff has a record of said physical impairment," unsupported by any facts whatsoever, is inadequate to properly plead that Plaintiff had a record of such an impairment. Threadbare recitals of the elements of a cause of action, supported only by conclusory statements, will not pass muster. Wilkinson, No. 1:23-CV-4 SNLJ, 2023 WL 2536374, at *1. Moreover, a medical diagnosis in itself—such as Plaintiff's diagnosis of low oxygen levels and the need for mobile oxygen—does not establish a record of impairment under the MHRA. See Gaal, 597 S.W.3d at 285 (asthma diagnosis does not per se establish a record of a disability); Stobaugh v. Wal-Mart Stores E. 1 LP, No. 5:21- CV-06105-HFS, 2024 WL 6901311, at *5 (W.D. Mo. Sept. 25, 2024) (medical diagnosis alone does not prove plaintiff is disabled under MHRA); Wilkinson, No. 1:23-CV-4 SNLJ, 2023 WL 2536374, at *2 (evidence of medical diagnosis of impairment is insufficient, and plaintiff's allegation that he "became disabled with muscular sclerosis" [sic] does not suffice to show disability). Calling Plaintiff's "varying degrees of difficulty

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with breathing" a "disability" does not make it a disability within the meaning of the MHRA. Clark v. YRC Freight, No. 4:14-CV-00668 FJG, 2016 WL 918047, at *10 (W.D. Mo. Mar. 8, 2016). Plaintiff has failed to plead facts demonstrating that she is legally disabled under the MHRA because she has not pled facts to support that she has "a physical or mental impairment" that "substantially limits one or more of [her] major life activities." Neither has Plaintiff adequately pled that the University regarded her as having such an impairment, nor has she adequately pled that she had a record of such an impairment. We deny Plaintiff's first point. In her second point, Plaintiff challenges the dismissal of her petition because, she contends, her disability was a motivating factor in the adverse employment actions taken against her. In addition to pleading facts to show that Plaintiff has a "disability" under the MHRA, Plaintiff must plead facts showing that her disability was the motivating factor in her discipline and discharge. In 2017, the Missouri legislature amended Chapter 213 to provide that the terms "because" or "because of," as related to the adverse decision or action, means that the protected criterion—here disability—was the motivating factor in the decision or action. Section 213.010(2); Barrett v. Cole County, 687 S.W.3d 685, 696 (Mo. App. W.D. 2024). "The motivating factor" means that "the employee's protected classification actually played a role in the adverse action or decision and had a determinative influence on the adverse decision or action." Section 213.010(19); Barrett, 687 S.W.3d at 696.

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The question on a motion to dismiss for failure to state an MHRA discrimination claim is whether the petition alleges ultimate facts giving rise to a reasonable inference that a protected characteristic was the motivating factor in the adverse employment action. Id. at 698. "Pleading direct evidence of discriminatory intent is not required to survive a motion to dismiss." Id. The Univ ersity's motion to dismiss did not raise this issue as a ground for dismissal, and it was not presented to the trial court in the responsive pleadings before us. We will affirm the dismissal if it can be sustained on any grounds raised in the motion to dismiss. Sullivan, 677 S.W.3d at 848. Because the motivating-factor issue was not raised in the motion to dismiss, and nothing in the record suggests it was reached by the trial court, we decline to consider it here. Moreover, "[w]e will not convict the trial court of error on an issue that we cannot find was ever presented for it to decide." Horton, 700 S.W.3d at 315. In any event, given our disposition of Point One finding that Plaintiff does not have a "disability" as defined under the MHRA, Plaintiff's second point also fails. We deny Plaintiff's second point. Point Three – Plaintiff Failed To State A Claim For Hostile Work Environment Based On Disability In her third point, Plaintiff challenges the trial court's dismissal of her claim alleging a hostile work environment. Plaintiff contends the University's conduct related to her disability had the purpose or effect of unreasonably interfering with her work performance. She argues that "the repeated criticisms, baseless disciplinary actions, and

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management's dismissive treatment of [Plaintiff's] disability created an environment that was intimidating, offensive, and interfered with her ability to perform her job." To assert a claim of hostile work environment under the MHRA, Plaintiff must plead that: (1) she is a member of a group protected under the MHRA; (2) she was subjected to unwelcome harassment; (3) her membership in the protected group was a motivating factor in the harassment; and (4) a term, condition, or privilege of her employment was affected by the harassment. Matthews, 685 S.W.3d at 367. A hostile work environment, by its very nature, involves repeated conduct over time. Gill v. City of St. Peters, 641 S.W.3d 733, 740 (Mo. App. E.D. 2022). In most claims of a hostile work environment, the discriminatory acts are not the type that can be identified separately as significant events; rather, the day-to-day harassment is primarily significant in its cumulative effect. Matthews, 685 S.W.3d at 367. Generally, the discriminatory conduct occurs over a series of days, or perhaps even years, and in direct contrast to discrete acts, one act of harassment may not be actionable on its own. Shiffman v. Kansas City Royals Baseball Club, LLC, 687 S.W.3d 443, 470 (Mo. App. W.D. 2024). Discriminatory conduct creates a hostile work environment when the conduct either creates an intimidating, hostile, or offensive work environment, or has the purpose or effect of unreasonably interfering with an employee's work performance. Matthews, 685 S.W.3d at 367. Claims of a hostile work environment must meet demanding standards, and courts should filter out complaints concerning the ordinary tribulations of

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the workplace. 4 Moore, 684 S.W.3d at 209. It is well-established that offhand comments, simple teasing, and isolated incidents (unless extremely serious) do not amount to discriminatory changes in the terms and conditions of employment. Shiffman, 687 S.W.3d at 470.

Here, Plaintiff failed to plead sufficient facts to support a claim of hostile work environment based on disability. First, Plaintiff failed to plead facts demonstrating that she is legally disabled under the MHRA. In asserting her hostile work environment claim, Plaintiff pled that she is a member of a class of persons protected by the MHRA by virtue of her perceived or actual disability. However, as discussed in our analysis of Points One and Two, Plaintiff did not plead facts to support her claim that she has "a physical or mental impairment" that "substantially limits one or more of [her] major life activities," that the University regarded her as having such an impairment, or that she had a record of such an impairment. As a result, Plaintiff cannot sufficiently plead the first and third elements of a hostile work environment claim, namely that she is a member of a group protected under the MHRA by virtue of her disability, and that her membership in the protected group was a motivating factor in the harassment. Second, even had she sufficiently pled her membership in a protected group and harassment based on her group membership, Plaintiff failed to plead sufficient facts to

4 In federal cases alleging a hostile work environment, the U.S. Supreme Court has implored lower courts to apply the demanding harassment standards to filter out complaints alleging ordinary troubles of the workplace, such as sporadic use of abusive language, gender-related jokes, and occasional teasing. Shiffman, 687 S.W.3d at 470 n.17.

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satisfy the fourth element of a claim of a hostile work environment. The fourth element requires a plaintiff to plead that the harassment affected a term, condition, or privilege of employment. Matthews, 685 S.W.3d at 368. Discriminatory harassment affects a term, condition, or privilege of employment when the harassment is sufficiently severe or pervasive enough to alter the conditions of the plaintiff's employment and to create an abusive working environment. Id. The harassment must be so intimidating, offensive, or hostile that it poisoned the work environment, and permeated the workplace with discriminatory intimidation, ridicule, and insult, both when viewed subjectively by the plaintiff and when viewed objectively by a reasonable person. Young v. Missouri Dep't of Corrections, 691 S.W.3d 815, 824 (Mo. App. W.D. 2024). A plaintiff can show the harassment affected a term, co ndition, or privilege of employment by showing either a tangible employment action or an abusive working environment. Matthews, 685 S.W.3d at 368. In assessing the hostility of an environment, we look to the totality of the circumstances. Id. Relevant factors in the analysis include the frequency and severity of the harassing behavior, the extent to which it was physically threatening or humiliating, and whether it unreasonably interfered with the plaintiff's work performance. Young, 691 S.W.3d at 824. Plaintiff's hostile work environment claim alleged that she "was subjected to severe and unwelcome discrimination," and that the "disability-harassing" "conduct was sufficiently severe and/or pervasive that a reasonable person in Plaintiff's position would find Plaintiff's work environment to be hostile and abusive." She also alleged the conduct

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had the purpose or effect of unreasonably interfering with her work performance, including by placing her on two performance improvement plans. In addition to Eschen's single, unspecified comment about Plaintiff's backpack, the facts asserted in the petition were that Ricketts "berated" Plaintiff in a meeting; that after placing Plaintiff on a performance improvement plan at said meeting, "Ricketts began going out of her way to criticize Plaintiff's work performance," and that Ricketts chose "to use a particularly aggressive tone in her conversations with Plaintiff." Even had the petition disclosed the content of Eschen's allegedly discriminatory comment, a single co mment would not automatically constitute a hostile work environment. See Moore, 684 S.W.3d at 208 (even were specific racially-charged comments alleged, such comments alone would not automatically constitute a hostile work environment). Further, the petition includes no facts elaborating or expanding on Ricketts's actions or describing the content, manner, circumstances, or frequency under which Ricketts berated and criticized Plaintiff and used an aggressive tone. "Not all unpleasant conduct creates a hostile work environment. Rather the plaintiff must show that she was singled out because of her [membership in a protected group] and that the conduct was severe and pervasive." Eccles v. Dep't of Elementary & Secondary Educ., No. 06-0165-CV-W-FJG, 2006 WL 2788516, at *2 (W.D. Mo. Sept. 26, 2006). Plaintiff's bare assertions that a single, unspecified comment was made and that she was berated, criticized, and spoken to in an aggressive tone do not sufficiently plead harassment that affected a term, condition, or privilege of her employment. In Travis v. Perdue, for instance, allegations that the plaintiff's supervisor twice threatened

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to deny medical leave, questioned the validity of the plaintiff's doctor's note, questioned plaintiff's request for sick leave, and yelled at plaintiff for requesting medical leave were found insufficient to plead a hostile work environment. No. 3:20-05071-CV-RK, 2021 WL 328916, at *7. See also Moore, 684 S.W.3d at 208-09 (general allegations of increased scrutiny; overbearing behaviors, including yelling out from office at plaintiff; and questioning plaintiff's clothing did not amount to incidents of severe and pervasive harassment under objective standard court must apply); Eccles, No. 06-0165-CV-W-FJG, 2006 WL 2788516, at *2 (plaintiff experienced rude, unkind and insensitive conduct, but reasonably objective person would not find these types of actions to be hostile or abusive). Viewed objectively by a reasonable person, Plaintiff's facts pled to support her claim of a hostile work environment fall short. Further, the petition pleads no facts to explain how the alleged harassment unreasonably interfered with Plaintiff's work performance. The petition failed to sufficiently plead that Plaintiff was a member of a group protected by the MHRA based on disability, and that she was subjected to harassment because of this disability. In addition, the facts pled fail to demonstrate that Plaintiff was subjected to harassment so intimidating, offensive, or hostile that it poisoned the work environment, and permeated the workplace with discriminatory intimidation, ridicule, and insult or that such harassment unreasonably interfered with her work performance. We deny Plaintiff's third point.

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Points Four, Five, and Six – Plaintiff Sufficiently Pled A Claim For Retaliation Under The MHRA For ease of discussion, we consider together Plaintiff's related Points Four, Five, and Six. In her fourth point, Plaintiff challenges the trial court's dismissal of her retaliation claim because she engaged in activity protected by the MHRA. In her fifth point, Plaintiff challenges the trial court's dismissal of her retaliation claim because, she contends, the University took one or more adverse actions against her for engaging in activity protected by the MHRA. In her sixth point, Plaintiff challenges the trial court's dismissal of her retaliation claim because she alleged that one or more of her protected activities were a motivating factor in one or more of the University's adverse actions taken against her. Section 213.070.1(2) forbids an employer from retaliating or discriminating in any manner against a person who has opposed a discriminatory practice prohibited by the MHRA, or who has filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing concerning discrimination pursuant to the MHRA. Emile, 713 S.W.3d at 211. To plead a claim of unlawful retaliation under the MHRA, the petition must set forth the following ultimate facts: "(1) [the plaintiff] complained of or otherwise opposed discrimination; (2) the [employer] took adverse action against [the plaintiff]; and (3) a causal relationship exists between the complaint [or opposition of discrimination] and the adverse action." Barrett, 687 S.W.3d at 702 (quoting Harrison v. Harris-Stowe State Univ., 626 S.W.3d 843, 857 (Mo. App. E.D. 2021)).

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"To retaliate" means to "inflict in return," and retaliation includes "any act done for the purpose of reprisal that results in damage to the plaintiff." Emile, 713 S.W.3d at

1. The complaint of discrimination need not involve actual discrimination for a

retaliation claim to stand. Moore, 684 S.W.3d at 200. "[I]t is irrelevant to a claim of retaliation that the act complained of was not legally actionable. The only issue is whether the person making the complaint had a reasonable good[-]faith belief that there were grounds for the claim of discrimination or harassment." Emile, 713 S.W.3d at 211. (quoting Soto v. Costco Wholesale Corp., 502 S.W.3d 38, 48 (Mo. App. W.D.2016)) (internal quotation marks and citations omitted). " [A]s long as a plaintiff had a reasonable, good[-]faith belief that there were grounds for a claim of discrimination or harassment, the success or failure of a retaliation claim is analytically divorced from the merits of the underlying discrimination or harassment claim." Moore, 684 S.W.3d at 200 (quoting Shore v. Children's Mercy Hosp., 477 S.W.3d 727, 735 (Mo. App. W.D. 2015)). Here, Plaintiff pled that she made complaints of discrimination, harassment, and/or a hostile work environment to her supervisor, Ricketts, and to the University's human resources department regarding Eschen's comment about Plaintiff's oxygen backpack and Ricketts's alleged violation of performance improvement plan policy. Thus, Plaintiff alleged sufficient facts showing that the University, and specifically Ricketts, knew of her complaints of disability-related discrimination before any of the alleged retaliatory acts occurred. Plaintiff alleged that she reasonably and in good faith believed her complaints of discrimination, harassment, and/or a hostile work environment were based on her actual or perceived physical disability. Plaintiff further alleged that

25

after she complained, the University took adverse action against her by terminating her employment, and that her complaints were a motivating factor. The petition pled that when Plaintiff complained to her new supervisor, Ricketts, about Eschen's comment, Ricketts placed Plaintiff on a performance improvement plan one month later. Once the human resources department closed its investigation of Plaintiff's complaint, Ricketts issued a final warning and placed Plaintiff on a second performance improvement plan about one month later. Thirty days after issuing the final warning and second performance improvement plan, Ricketts discharged Plaintiff. Thus, Plaintiff alleged that after each complaint she made, the University placed her on a performance improvement plan—despite her previous good performance reviews and never receiving a formal warning or reprimand—and ultimately terminated her employment over the course of a six-month period. The petition alleged a timeline of events and facts that, when considered in totality, support a reasonable inference that Plaintiff's complaints of discrimination were the motivating factor in the termination of her employment. For purposes of a motion to dismiss, the timeline and facts Plaintiff alleges permit the inference that her complaints of discrimination actually played a role in her discipline and the termination of her employment and had a determinative influence on the decision to terminate employment. See Barrett, 687 S.W.3d at 698 (for purposes of motion to dismiss, where suspension and internal investigation into conduct accepted by employer and engaged in by white deputies began 30 days after deputy revealed his actual race to sheriff, timeline and facts

26

alleged, taken together, permit inference that deputy's race or color actually played role and had determinative influence in termination of employment). We do not weigh the factual allegations to determine whether they are credible or persuasive. Matthews, 685 S.W.3d at 366. The question here is not whether Plaintiff will likely prevail on her retaliation claim, but instead is whether she "has alleged enough to nudge [her] over the line of stating a claim upon which relief could be granted." Barrett, 687 S.W.3d at 704. Plaintiff satisfies this standard as to her claim for retaliation. We grant Points Four, Five, and Six. Point Seven – The Trial Court Did Not Abuse Its Discretion When It Implicitly Denied Plaintiff Leave To Amend Her Petition In her seventh and final point, Plaintiff claims the trial court abused its discretion when it implicitly denied her alternative request to file an amended petition by failing to rule upon her request. On sustaining a motion to dismiss a claim, the trial court "shall freely grant leave to amend and shall specify the time within which the amendment shall be made or amended pleading filed." Rule 67.06. Nevertheless, a party "does not have an absolute right to file an amended petition." Gross, 591 S.W.3d at 494 (quoting Doran v. Chand, 284 S.W.3d 659, 666 (Mo. App. W.D. 2009)). Denial of leave to amend is within the discretion of the trial court, and we presume the trial court's ruling is correct. Id. The plaintiff bears the burden to demonstrate that the trial court clearly and palpably abused its discretion. Id.

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The University filed its motion to dismiss in mid-August 2024. A hearing on the motion was held over five months later, in late January 2025. We do not have a record of the hearing, and so we cannot ascertain what Plaintiff argued in this regard. The trial court issued its order granting the University's motion to dismiss in mid-April 2025, eight months after the University's motion was filed. While Plaintiff requested leave to amend her petition should the trial court be inclined to grant the University's motion to dismiss, in the eight months between filing and decision on the University's motion to dismiss, Plaintiff never set forth a single additional fact she intended to plead, nor did she attach a proposed amended petition. In fact, Plaintiff has never explained—either to the trial court or in her briefing to this Court—how she would cure her pleading deficiencies if given the opportunity to amend. Where plaintiffs neither recited any new or additional facts or claims they wished to assert in an amended petition nor did they attach a proposed amended petition to their response to the motion to dismiss, the trial court did not abuse its discretion in not granting plaintiffs leave to amend their petition. Doran, 284 S.W.3d at 666. A party "does not have an absolute right to file an amended petition." Gross, 591 S.W.3d at 494. For the reasons explained above, we find the trial court did not clearly and palpably abuse its discretion in dismissing Plaintiff's petition with prejudice without granting leave to amend. Plaintiff, over the course of eight months, made neither an effort to actually amend her petition nor to inform the court how she would do so if granted the opportunity. We deny Plaintiff's seventh point.

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Conclusion Because Plaintiff failed to plead facts demonstrating that she is legally disabled under the Missouri Human Rights Act, we affirm the trial court's dismissal of her claim of disability discrimination. Because Plaintiff failed to plead facts demonstrating a hostile work environment based on disability, we also affirm the trial court's dismissal of this claim. However, Plaintiff alleged facts that—when taken as true—establish the elements of a retaliation claim under the Missouri Human Rights Act based on her complaints of disability discrimination. Consequently, the trial court's judgment is vacated as to Plaintiff's retaliation claim, and the case is remanded for further proceedings consistent with this opinion.

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ANGELA T. QUIGLESS, JUDGE

Renee D. Hardin-Tammons, Presiding Judge, and Thomas C. Clark, II, Judge, concur.