Pedro Carrillo vs. Missouri Department of Corrections

PEDRO CARRILLO, ) ) Respondent, ) ) v. ) WD86862 ) MISSOURI DEPARTMENT OF ) Opinion filed: April 29, 2025 CORRECTIONS, ) ) Appellant. )

APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE HONORABLE CHARLES H. MCKENZIE, JUDGE

Before Special Division: Cynthia L. Martin, Presiding Judge, W. Douglas Thomson, Judge and Joseph M. Ellis, Special Judge The Missouri Department of Corrections (the "DOC") appeals the trial court's judgment following a jury verdict in favor of Pedro Carrillo ("Carrillo") on his claims of disability discrimination and hostile work environment under the Missouri Human Rights Act ("MHRA"), section 213.010 et seq. 1 The DOC raises three Points on Appeal, all of which concern Carrillo's claim of disability

1 All statutory references, including references to chapter 213, are to RSMo (2017), unless otherwise stated. The MHRA was amended, effective August 28, 2017. This case is governed by the post-amendment statute.

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discrimination. 2 Because any error asserted by the DOC cannot be prejudicial error requiring reversal, we affirm. On remand, we direct the trial court to determine the amount of appellate attorney fees, post-judgment interest on same, and expenses to be awarded Carrillo. Factual and Procedural History Carrillo began his career with the DOC in June of 2014 as a Corrections Officer I ("CO-I") at the Western Missouri Correctional Facility in Cameron, Missouri. At the start of his employment, discussions took place concerning the fact that he had congestive heart failure and a pacemaker. Because of his pacemaker, Carrillo obtained a letter from the chief of custody that allowed him to bypass the metal detectors when entering and exiting the facility and instead be pat-searched and "wand[ed] over with a wanding device[.]" In 2015, Carrillo transferred to the Kansas City Reentry Center ("KCRC"), a smaller Division of Adult Institutions ("DAI") facility. Carrillo started off at KCRC as a CO-I, but was promoted to a Corrections Officer II ("CO-II") in 2016. While at KCRC, Carrillo again received permission to be pat-searched and "wanded" instead of walking through the metal detector when entering the facility. This was reiterated in January of 2017 when a new warden ("Warden 1") 3 transitioned into KCRC and informed custody staff of Carrillo's exception to the metal detectors.

2 The DOC does not appeal the judgment entered in favor of Carrillo on his hostile work environment claim. 3 Pursuant to section 509.520.1(5), RSMo (2023), we do not provide the names of any non-party witnesses in this opinion.

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On July 1, 2017, the DOC's Policy D2-11.4 went into effect. This is the DOC's "zero tolerance policy" regarding discrimination, harassment, retaliation, and unprofessional conduct. Under the policy, staff members who experience or witness any form of discrimination, harassment, retaliation, or unprofessional conduct are required to immediately report the conduct. Similarly, supervisors who experience, witness, or receive reports of such conduct are required to report it to their chief administrative officer, and such reports are to be automatically sent to the Office of Professional Standards ("OPS") in Jefferson City, Missouri. Supervisors who receive such reports are to prepare and send a Request for Investigation to OPS for review. Between 2015 and 2017, no one at KCRC gave Carrillo any trouble with respect to bypassing the metal detectors. This changed in 2017 when Carrillo began having daily interactions with D.P., a supervisor over maintenance. 4

Carrillo's problems with D.P. began "[a]lmost immediately." When Carrillo would bypass the metal detectors, D.P. would "immediately" say "why are you getting different treatment? Why are you being treated special? Why do you not have to go through this metal detector like everybody else? Why aren't you like anybody else?" D.P. would make it "a huge production[.]" He would call Carrillo names and tell Carrillo he did not "feel safe" with Carrillo there because "I don't know that you're not bringing stuff into the institution" and "if you have a medical condition I don't feel safe, you know, that you're not able to come through or do your job."

4 D.P. was not Carrillo's supervisor nor was he in Carrillo's chain of command.

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D.P. was "irate" and "very indignant about it." He would scream and curse loud enough where "[e]verybody could hear" and "he'd make sure that he caused enough ruckus that everybody heard it." This occurred "every single time" Carrillo and D.P. went through the metal detector area together. Carrillo "[i]mmediately" started to complain about D.P., going first to his direct supervisor. D.P.'s complaints were also presented to the then-special assistant to the Director of DAI and Warden 1. Warden 1 spoke to D.P., telling him Carrillo did not have to go through the metal detectors. However, Warden 1 never sent a Request for Investigation to OPS in Jefferson City regarding Carrillo's complaints about D.P. Carrillo stated D.P.'s behavior did not stop. In September of 2017, Carrillo was assigned the joint position of chief training officer/fire and safety specialist ("CTO/F&S") in an acting capacity. Carrillo was excited, as being the training officer was his "dream job." Carrillo served in the acting capacity position for 355 consecutive days. During that time, Carrillo received "accolades" and was told he was "doing a really good job," "turning the place around," and "pushing training." While in the acting CTO/F&S role, Carrillo's supervisor was S.C., the deputy warden of operations. In July of 2018, Carrillo underwent surgery to replace his pacemaker. Beforehand, Carrillo informed S.C. of the procedure and told him he was going to be off work for a week. Carrillo had also scheduled a mass casualty, crisis management tabletop for August of 2018, which would be attended by the department heads, function unit managers, case managers, wardens, chief of

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custody, and lieutenants. Some of the function unit managers ultimately had a conflict and requested that the meeting be rescheduled. Carrillo, who had returned early from medical leave due to the meeting, agreed to push the meeting back. S.C. apparently "didn't like that" and started "talking about [Carrillo's] pacemaker," stating "if [Carrillo] hadn't taken the time off or had any medical procedure, we wouldn't have to push this – if he was better prepared, we wouldn't have to push this meeting back." 5 S.C. made these statements to "the head nurse" and in front of a few others. Carrillo subsequently informed the warden at that time ("Warden 2") of the incident in an August 9, 2018 interoffice communication memo. While Carrillo did not receive a response to his memo from Warden 2, Warden 2 spoke with S.C. concerning "what he's . . . saying about people around other staff members." In September 2018, Warden 2 removed Carrillo from his acting role as acting CTO/F&S. The reason provided to Carrillo was that he had been in the "acting" position too long and they were thus "out of policy," meaning they were in noncompliance with the acting capacity policy, which established the guidelines for placing employees in such assignments with or without additional pay. While Carrillo was in the acting capacity assignment, he was paid as a CO-II sergeant. Carrillo was never paid for the additional work he performed while in the acting

5 The evidence was unclear as to the exact contents of S.C.'s statements.

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capacity assignment, despite efforts by Warden 2 to request such compensation for him. 6

In November of 2018, Carrillo filed a Charge of Discrimination with the Missouri Commission on Human Rights. After receiving Carrillo's Charge of Discrimination on December 3, 2018, Warden 2 submitted a Request for Investigation to OPS on December 4th concerning the allegations contained in Carrillo's charge. Shortly thereafter on December 19, 2018, Carrillo interviewed for the full- time CTO/F&S position. This was Carrillo's third attempt at securing the position, having previously interviewed for it in October of 2017 and October of 2018. The first time Carrillo had interviewed, he was told he was recommended for the position, but was subsequently informed that he did not meet the minimum qualifications for the position. 7 Ultimately, no one was placed in the formal CTO/F&S position following the round of interviews in October of 2017. When he interviewed again in October of 2018, the position was again not filled. Following the December 19, 2018 interviews, Carrillo was recommended for the position. The recommendation was approved by Warden 2, who then forwarded the recommendation to the deputy division director for DAI in January

6 This request was denied by the Director of DAI because the DOC's policy had not been followed, and pursuant to such policy Carrillo "didn't qualify for the position which is required for acting capacity with pay." 7 Carrillo had also interviewed for an open Corrections Officer III ("CO-III") lieutenant position in October of 2017. Carrillo was awarded the position, but ultimately turned it down in favor of staying in the acting capacity position so he could eventually meet the minimum qualifications needed for the full-time CTO/F&S position.

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of 2019. On February 4, 2019, Carrillo's appointment was approved for a predominately F&S position that also entailed CTO duties. However, on February 3, 2019, Carrillo had submitted a letter of resignation to his direct supervisor. He "finally had enough" and "was done because of the way [he] was being treated." Carrillo's direct supervisor learned of the resignation the following day, at which time she signed off on it. On February 5th , S.C. called Carrillo to offer him the position. Carrillo "informed [S.C.] that it was his dream job, but he would have to respectfully decline because he felt like he would lose face in front of other staff members." Carrillo had reached his "limitation" and "didn't want it to be like a power play" of "I'm going to quit if you don't promote me[.]" Warden 2 accepted Carrillo's resignation in good standing the next day. Carrillo's final day of employment with the DOC was February 17, 2019. Carrillo filed his original petition for damages against the DOC on August 4, 2019. On June 3, 2020, he filed his Second Amended Petition. The Second Amended Petition alleged six counts. The petition alleged the DOC had discriminated against Carrillo on the basis of disability, race, gender, and national origin; that the DOC retaliated against him for his complaints of discrimination and harassment; and that he was subjected to unwelcome harassment and discrimination based on his national origin, g