November Newsletter (Issue 11-2017)

Western District Holds In Case of First Impression Those Allegations of Sex Stereotyping Can State a Cause of Action

Facts and Procedure: In 2014, Lampley filed charges of sex discrimination and retaliation against his employer, the State of Missouri, Department of Social Services Child Support Enforcement Division.  The charges were made pursuant to Sections 213.055(1) and 213.070(2) of the Missouri Human Rights Act (“MHRA”) and filed with the Equal Employment Opportunity Commission (“EEOC”) and the Missouri Commission Human Rights (MCHR).  Lampley alleged his employer discriminated against him based on sex, because his behavior and appearance contradicted the stereotypes of maleness held by his employer and managers.  These stereotypes, Lampley argued, motivated his employer to harass him and treat him differently from similarly situated employees who conformed to gender stereotypes.  He further argued he was grossly underscored in a performance evaluation in retaliation for his complaint.  Frost, Lampley’s close friend and co-worker, filed discrimination charges under Section 213.070(4) later in 2014, alleging retaliation based on her association with Lampley.

The EEOC investigated both Appellants’ complaints, but the MCHR after investigation terminated the proceedings, stating it lacked jurisdiction over claims based on sexual orientation.  Though their original petitions acknowledge Lampley is gay, Appellants insist sex, and not sexual orientation, is the basis of their claims.  The MCHR did not address Appellants’ theory of sex discrimination evidenced by sex stereotyping. Lampley and Frost petitioned the trial court for administrative review (or, alternatively, mandamus to issue Right to Sue notices).  The trial court consolidated their petitions and granted summary judgment in favor of the MCHR.  Appellants appealed to the Western District.

Opinion: Stereotyping as Evidence of Discrimination
: Section 213.055 RSMo. provides that it is unlawful “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of . . . sex[.]” Discrimination because of sexual orientation is not prohibited.  The question presented to the Western District was whether or not Appellants stated a discrimination claim based upon sex.  In a matter of first impression, the Western District ruled that the Appellants stated a claim under the MHRA for gender stereotyping, which is a form of sex discrimination, relying upon the 1989 opinion by United States Supreme Court in Price Waterhouse, which held by a plurality that:

“we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for ‘in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”

The decision in Price Waterhouse, “confirmed that ‘discrimination on the basis of sex’ means the deprivation of one sex of a right or privilege afforded the other sex, including a deprivation based on a trait unique to one sex, or a deprivation based on traits perceived as unique to one sex.”

Even though this is a case of first impression, Missouri cases have recognized that sex stereotyping against a pregnant woman because the employer did not think a woman could perform the tasks that a pregnant woman would be performing or because of a person’s age made them unsuitable for the job was fundamentally irrational and can support an inference of unlawful discrimination.  The Western District reasoned that existing Missouri case law and employment regulations support the conclusion that evidence an employee suffered an adverse employment decision based upon stereotyped ideas of a member of the employees sex can support an inference of unlawful sex discrimination.

Opinion: Sex Stereotyping and Sexual Orientation The MCHR contended that a sex stereotyping analysis transforms sexual orientation into a suspect class.  The Western District disagreed by concluding that the sex stereotyping simply allows the fact finder to determine whether sex stereotypes motivated disparate treatment.

“Sexual orientation is incidental and irrelevant to sex stereotyping, a conclusion underscored by Price Waterhouse, where the claimant made no reference to sexual orientation. If an employer mistreats a male employee because the employer deems the employee insufficiently masculine, it is immaterial whether the male employee is gay or straight.”

In the present case, Appellants alleged Lampley was discriminated against because of his sex, and offered evidence of sex stereotyping to support the claim. “The fact that Lampley is gay neither precludes nor insures his MHRA protections.”  As a male, Lampley belonged to a protected class; therefore, Lampley should have been allowed to demonstrate how sex stereotyping motivated the alleged discriminatory conduct and Frost should be able to proceed with her retaliation claim. The MCHR should have issued the right to sue letters.  Lampley v. Missouri Commission On Human Rights, (WD80288, 10/24/17)

Comment Howard: It would seem that the Missouri Supreme Court would review this case; therefore, stay tuned until we get a final decision.  The opinion is well-written and grounded based on earlier United States Supreme Court decisions and Missouri case law where the courts recognized that stereotyping based upon the type of work a pregnant woman could perform or a person’s age was a limitation for eligibility to work was discrimination based on stereotyping.  This is a form of discrimination; consequently there was no need to go to the question of sexual orientation since that was irrelevant.  Missouri has rejected a discrimination claim based upon sexual orientation.

Provocation Rule Does Not Provide Independent Basis for Fourth Amendment Excessive Force Claim

Facts And Procedures: Police officers (Officers) were called to a convenience store in Rogers, Arkansas, where Fallon Frederick, was holding a four-inch folding knife and erratically pacing back and forth in a corner near two restrooms.  The Officers confronted Frederick who refused to comply with Sergeant Scott Clifton’s repeated commands to drop the knife.  Officer Nick Torkelson discharged his taser, but Frederick’s purse blocked one of the probes and then she charged the Officers with her knife.  Officer Motsinger, who was providing cover for Torkelson, shot and killed Frederick.  The incident, occurred over an extended period of time that was videotaped by the store video showing in great detail the confrontation.

The representative of Frederick’s Estate, filed an action against the City of Rogers and Officers Motsinger, Clifton, and Torkelson (Officers) asserting excessive force Fourth Amendment claims under 42 U.S.C. § 1983.  The Defendants moved for summary judgment on the merits, asserting the defense of qualified immunity from Fourth Amendment damage claim against the Officers.  The district court, applying Graham v. Connor, 490 U.S. 386 (1989), to the Fourth Amendment excessive force claims, granted summary judgment. The Estate appealed the dismissal of the excessive force claim to the Eighth Circuit.

Opinion: The Court reasoned that Frederick was seized for purposes of the Fourth Amendment when she was shot after the tasing occurred.  The Estate argued that summary judgment was improperly granted because the Officers’ use of excessive force in tasing Frederick violated the Fourth Amendment and proximately caused Frederick’s killing because it provoked her violent reaction that gave rise to Motsinger’s use of deadly force.  The Estate relied on the Ninth Circuit’s “provocation rule” — “Where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation, he may be held liable for his otherwise defensive use of deadly force.”

While this case was on appeal the Supreme Court rejected the Ninth Circuit’s provocation rule, agreeing with other circuits that it was “fundamental flawed” because it “uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.”  The Court made it clear that “the objective reasonableness analysis must be conducted separately for each search or seizure that is alleged to be unconstitutional.”  The test under Graham was whether or not the use of deadly force was objectively reasonable based on what the officers knew when the force was applied (when she charged the Officers with her knife).  This use of force “may not be found unreasonable by reference to some separate constitutional violation (the tasing incident).

Earlier opinions by the Eighth Circuit supported the view that the attempted tasing was objectively reasonable when the suspect’s actions posed an immediate threat to the safety of the officers or others.  This analysis is based on the reasonableness of a particular use of force from the perspective of a reasonable officer on the scene instead of with 20/ 20 hindsight.

More importantly, the Eighth Circuit found that the Officers were entitled to qualified immunity because liability for their actions is personal and the use of a Taser to control a person who poses a safety risk to the officers or others was objectively reasonable, particular when the incident occurred in front of restrooms that may have been occupied while the suspect was brandishing a weapon that posed a danger to the officers or customers.  Frederick v. Motsinger, et al., (8th Cir., 16-3523, 11/17/17)

MOPERM Policy Does Not Cover Inverse Condemnation

Facts and Procedures: County of Scotland v. Missouri Public Entity Risk Management Fund, involved a lawsuit between the County of Scotland, Missouri (County) and its insurer Missouri Public Risk Management Fund (M0PERM) over whether or not the County was covered under a policy issued by MOPERM, which had an exclusion that exempted from the terms of the policy the following:

To claims for loss or damage arising out of or in connection with the principles of eminent domain, proceedings to condemn property or inverse condemnation by whatever name . . .; or any action, proceeding or challenge by whatever name to enforce or invalidate, modify or change any zoning ordinance or land use plan. (Emphasis added)

The County refused to issue a permit to Hauk who wanted to establish a Concentrated Animal Feed Operation (CAFO) based upon it’s zoning ordinance because the facility was too close to residential properties.  Hauk sued the County on the grounds that the refusal of the County to issue the permit was a taking.  When this lawsuit was filed MOPERM refused to defend the lawsuit on the grounds that “inverse condemnation” was specifically excluded from the policy.  Hauk prevailed in this case and was awarded $178,000 in damages.  The County also incurred legal expenses of $102,000 in defending this lawsuit.

The County then sued MOPERM for breach of contract claiming that MOPERM had a duty to defend and indemnify the County.  The trial court granted the motion for summary judgment by the County finding that MOPERM had an obligation under the policy to defend and indemnify the County.  MOPERM appealed to the Western District.

Opinion: The County argued that the policy did cover the claim because the term “inverse condemnation” was not defined, making it ambiguous; therefore, the ambiguity should be resolved against MOPERM.  The Western District concluded that the failure to define the term “inverse condemnation “was not ambiguous because the ordinary meaning of “inverse condemnation” is well settled by case law in Missouri and the United States Supreme Court.  See numerous cases as to what constitutes inverse condemnation in the opinion.  The policy clearly excluded claims for “inverse condemnation.” County of Scotland v. Missouri Public Entity Risk Management Fund, (WD 80518, 11/17/17)

Comment Howard: This is a very straightforward case although it could be useful if you want to look at what constitutes inverse condemnation.  If you are sued in inverse condemnation it may be advisable to look at your policy to determine if the claim is covered. If it is not covered, you may want to give your public officials a heads up after carefully evaluating the validity of the claim, particularly since there are no caps on inverse condemnation damages.

Court Ducks Question Concerning Validity of Protest Ordinance By Finding Qualified Immunity

 Facts and Procedures: On Saturday, August 17, 2013, Weed and others held signs protesting the President’s policies, from a pedestrian sidewalk on an overpass over Interstate 70 in St. Charles, Missouri.  Protesters faced the highway below, targeting motorists.

Traffic that day was more congested than usual.  The highway’s left lane was closed for construction.  A festival taking place nearby was accessible by the next exit.  At that exit, there was construction for traffic leaving the highway.  The traffic approaching the protest was heavy and intermittently congested, backing up to the next exit.

That day there were five accidents on the stretch of highway approaching the protestors.  One occurred before officers arrived.  A Missouri Department of Transportation worker told the investigating officer that the protesters were causing a traffic safety hazard.  Investigating the second accident, a state trooper “observed drivers making evasive maneuvers and honking their horns in response to protesters standing on [the] overpass above.”  The driver in the third accident told the investigating trooper “he was distracted by protesters above on the overpass, and that the crash would not have occurred if the protesters had not been there.”  A driver and passenger in the fourth accident said “the crash occurred because too many people were looking up at the protesters and not paying attention to the road.”

The trooper investigating that accident “was almost struck by a car that swerved to avoid hitting another car” and “observed numerous vehicles change lanes when it was unsafe to do so, drivers slam on their brakes, and vehicles run off the road into the grass to avoid collisions.” The driver and passenger of the car hit in the fifth accident also said the protesters were distracting.

Corporal Jenkins, the highest ranking officer from the Missouri State Highway Patrol (MSHP) that day, was responsible to decide whether to ask the protesters to leave.  The troopers who investigated the accidents told Jenkins that the protesters were creating a traffic safety hazard, causing or contributing to the accidents.  After the third accident, Jenkins was not personally convinced that the protesters were causing or contributing to the accidents and decided to take a “wait and see” approach.  Jenkins went to assist at the scene of the fifth accident.  He noted that traffic was heavier than earlier that day.  The trooper who had investigated the fourth and fifth accidents told him she had observed unsafe driving, had almost been hit, and that the motorists in the accidents thought the protesters were the cause.  Jenkins had also been told “numerous persons had called the MSHP and reported the protesters were causing a distraction.”

Jenkins determined “that the protesters were creating a traffic hazard and causing or contributing to traffic accidents.”  He decided they should be removed from the overpass.  After the St. Charles police refused to remove them, Jenkins sent MSHP officers to the overpass.  When Jenkins arrived, most of the protesters were already dispersing, but Weed and another protester were arguing with two other officers.  The officers explained several times why they were asking them to leave the overpass and said they could return another time.  Weed maintained he had a right to be on the overpass and believed that because he had only been “asked” to leave, he had no obligation to do so.  Jenkins asked Weed whether he was going to leave and said that if he did not, he would be arrested.  Weed refused to leave.  Jenkins arrested him for willfully opposing a member of the highway patrol in violation of § 43.170 RSMo.

A week later, Weed returned to the same overpass for another protest.  No one was arrested.  He has since attended many other overpass protests.

Weed sued Corporal Jenkins, alleging that Weed’s arrest violated the First and Fourth Amendments and that the statute authorizing the arrest is invalid.  The district court granted summary judgment for the defendants. Weed appealed to the Eighth Circuit.

Opinion: Weed argued that Stahl v. City of St. Louis, 687 F.3d 1038 (8th Cir. 2012), controlled and put Jenkins on notice that his order was clearly unlawful.  Weed’s premise was that the order issued under § 43.170 which prohibits “willfully resist[ing] or oppos[ing] a member of the patrol in the proper discharge of his duties.”  But § 43.170 RSMo applies only after an individual fails to comply with a trooper’s “proper” order—that is, one issued under another law.  Here, that other law is a local ordinance of the City of St. Charles.

Comment Howard: This case is long on facts and short on law.  You could not have a more compelling case based on the facts for shutting down the protests.  Ordinance § 340.020 makes it “unlawful for any person to obstruct in any manner any . . . public highway . . . by hindering or impeding or tending to hinder or impede the free and uninterrupted passage of vehicles.”

The Eighth Circuit sidestepped the issue of whether or not the ordinance was constitutional by determining that Corporal Jenkins was entitled to qualified immunity because his actions did “not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  Weed v. Jenkins, (8th Cir 16-3629, 10/17/17)

The Eighth Circuit ducks the issue of whether or not the ordinance was constitutional by going directly to the question of qualified immunity.  No need to discuss the validity of the ordinances because the officer had qualified immunity.   Interestingly the court appears to have taken judicial notice of a city ordinance making this statement. (“[M]atters of public record such as state statutes, city charters, and city ordinances fall within the category of ‘common knowledge’ and are therefore proper subjects for judicial notice. ” Tuck this one away for the future when the record in the case shows that the ordinance was not introduced into evidence and your back is to the wall.

No Abuse of Discretion in Quashing Subpoena For Personnel Records of the Arresting Officer and Not Allowing the Defendant to Impeach the Office                                                                        

Facts and Procedure: Defendant was arrested, tried, and convicted for a DWI.  Defendant learned that the police officer for the Foristell Police Department (City) had been terminated by the City.  Prior to trial, Defendant subpoenaed the records of the City requesting the production of documents regarding the Officer, including “any citizen complaints against [him], the [officer’s] disciplinary file and [his] personnel file.” The trial court quashed this subpoena.  At trial, Defendant attempted to question the Officer about his termination.  However, the court sustained the State’s objection, finding the Officer’s disciplinary and personnel issues irrelevant to Defendant’s case.  The court instructed the jury to disregard the issue concerning the Officer’s termination.

The jury found Defendant guilty of driving while intoxicated and he appealed the decision to the Eastern District.

Opinion: No Abuse of Discretion in Quashing Subpoena and Not Allowing the Defendant to Impeach the Officer: Defendant maintained that the records contained vital impeachment evidence necessary to challenge the Officer’s testimony.  Defendant asserted that he was deprived of his rights to due process of law and to a fair trial, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution.  Defendant claimed that he was entitled to these records because they could contain evidence that is favorable to and material to guilt or punishment which could include “evidence that may be used to impeach the Officer.

The Eastern District, reasoned that in order for records to be discoverable a party must “make some plausible showing how the information would have been material and favorable.”  “In order for the suppression of said evidence to rise to a constitutional violation, the evidence must be material in the sense that its suppression undermines confidence in the outcome of the trial.”  There must be more than a mere possibility that the material contained relevant or exculpatory evidence.  There must be a showing of a factual predicate as to relevancy and materiality to justify a review; therefore, without such a showing the Defendant is not entitled to the information on the mere possibility that it might be helpful.  If such a showing is made, the trial court may conduct an in camera review to determine if the records are actually privileged. The Eastern District affirmed the trial court’s decision to quash the subpoena and not allow the Defendant to cross-examine the Officer concerning his personal record.  State Of Missouri v. Donovan, (ED104625, 11/24/17)

Comment Howard: I find that this case extremely troubling because there is no way to know if the termination was in any way relevant to this case.  I understand, that defendants should not be able to engage in a fishing expedition; nevertheless, it seems that the blackout of information violates defendant’s right of due process.  For example, when did the City take the action to discipline the Officer?  Was it years ago or just last week before the trial?  Did the discipline in any way relate to the officer’s actions in this case?  Was the Officer disciplined by the city for falsifying records or some other action that related to the officer’s character with respect to truthfulness?

It seems to me that a narrowly focused motion ought to be allowed since the court still gets to make an in camera inspection. The Defendant in this case was sentenced to 2 1/2 years in jail, no small matter, compared to the slight inconvenience in conducting an in camera inspection.

Tattoo Policy Requiring Police Officers To Cover Tattoos While On Duty Is Valid

 Facts: The City of Chicago (City) adopted a policy that required on duty police officers “representing the Department, whether in uniform, conservative business attire or casual dress,” to cover tattoos on the hands, face, neck, and other areas not covered by clothing with skin tone adhesive bandages or tattoo covers.  Medici, one of the officers had two tattoos, one relating to military service as a Marine and the other relating to his religious beliefs.  The other officers had tattoos that related to their religion.  The Officers complained that the creation of the Tattoo Policy caused them to experience overheating in warm weather months as well as skin irritation and discomfort from the adhesive bandages.  Three police officers (Officers) challenged the policy on the grounds that it infringed on their free speech rights under the First Amendment.

Opinion: The City filed a motion to dismiss, that was sustained by the federal district court, which applied the Pickering test determining that the tattoos were not a form of speech on matters of public concern.  The City had an interest in ensuring that professionalism and uniformity was maintained, in an effort to allow the City to conduct its affairs, which substantially outweighed the plaintiff’s interest in personal expression by displaying their tattoos while on duty.  Medici et al. v. City of Chicago, 144 F. Supp. 3d 984 (2015)