        IN THE MISSOURI COURT OF APPEALS
                WESTERN DISTRICT
WILLIAM ALTON,                              )
                                            )
              Appellant,                    )
                                            )
vs.                                         )       WD77617
                                            )
MISSOURI DEPARTMENT OF                      )       Opinion filed:
PUBLIC SAFETY,                              )
                                            )
              Respondent.                   )

       APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY, MISSOURI
                    The Honorable Jon E. Beetem, Judge

                  Before Division Three: Victor C. Howard, Presiding Judge,
                       James E. Welsh, Judge and Gary D. Witt, Judge


       William Alton appeals the summary judgment in favor of the Missouri Department of

Public Safety in his action against it for age discrimination/failure to hire. He contends that a

genuine dispute of material fact existed as to whether he was an employment applicant under

section 213.055.1, RSMo 2000. The judgment is affirmed.

       In March 1996, William Alton began working for the Department of Public Safety as a

special agent in the Division of Alcohol and Tobacco Control. In April 2009, Lafayette Lacy

was hired as the state supervisor for the Division. In May 2010, Mr. Lacy informed twenty-five

agent employees including Mr. Alton that they would be laid off effective June 15, 2010, as a

result of a budget cut. Mr. Alton, who was fifty-eight years old, believed he had two options: he
could either be laid off without pay or choose to take retirement. Mr. Alton chose to retire and

requested that his termination date be delayed and that he be allowed to use accrued vacation

time from June 15 to June 30 so that he would be eligible for full retirement benefits on July 1,

2010. The Department approved the request. On June 2, 2010, Mr. Alton sent Mr. Lacy a letter

confirming his plan to retire:

        This is to confirm that I have applied for retirement effective July 1, 2010. I had
        no intention for retiring that soon, but felt compelled to retire due to the
        elimination of my job. Thank you for changing the termination date to June 30. I
        will take vacation from June 16, 2010, to June 30, 2010. Should the situation
        change prior to June 30th that would allow my continued employment with the
        Division; please let me know and I will cancel my retirement.

Mr. Alton retired effective July 1, 2010.

        Meanwhile, prior to the effective date of the layoff, Mr. Lacy learned that the budget for

five positions was restored. The five positions covered one agent in each of the five district

offices—Kansas City, Jefferson City, St. Louis, Springfield, and Cape Girardeau. Mr. Lacy sent

a letter to the most senior agents inviting them to bid on the five restored positions. Mr. Alton

was not among the special agents invited to bid for the five restored positions. The restored

positions were filled by the end of May 2010, and the five selected agents began work in the

district offices on June 1.

        Shortly thereafter, the agents staffing the Kansas City and St. Louis offices went on

extended sick leave. Later, the special agent assigned to the Jefferson City office resigned to

accept a job with the Department of Insurance. After the special agents assigned to the Kansas

City and St. Louis offices exhausted their twelve weeks of FMLA leave, both chose to retire.

After the remaining agents transferred to different offices, Mr. Lacy needed to fill agent

vacancies in Kansas City, St. Louis, and Cape Girardeau offices. He contacted former special

agents who lived near each of the district offices and asked whether they wanted to come back to

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work for the Division in that office. Specifically, he contacted Charles Bidding (age 51), who

lived in St. Joseph, regarding the Kansas City position; LaMont Mitchell (age 41), who lived in

St. Louis County, regarding the St. Louis position; and Edward Widenbenner (age 47), who lived

in Farmington, regarding the Cape Girardeau position. Mr. Alton was not called or asked to

apply. On September 20, 2010, the Division received written applications from the three agents

contacted by Mr. Lacy. All three were rehired as special agents in October 2010. On October

15, 2010, after learning of the rehire of agents Bidding, Mitchell, and Widenbenner, Mr. Alton

emailed Mr. Lacy stating, “As you know, I had no intention of retiring from the Division on July

1, 2010, had I not been laid off. This in part is to confirm my request to be immediately

reinstated as a Special Agent.” Mr. Lacy did not respond to Mr. Alton’s email.

       Mr. Alton subsequently brought the present action under the Missouri Human Rights Act

(MHRA) for age discrimination/failure to recall. He alleged that the Department discriminated

against him based on his age when it hired LaMont Mitchell, a younger person, without notifying

Alton that the position was available or offering him an opportunity to apply. He further alleged

that the Division had a policy and practice of rehiring or recalling employees with the most

seniority, and the Division deviated from that policy by rehiring Mr. Mitchell, who was least

senior and one of the youngest agents in the Division. Mr. Alton did not allege discrimination in

the elimination of his position in June 2010, in not being invited to bid on the five restored

positions in May 2010, or in the October 2010 rehiring of Mr. Bidding and Mr. Widenbenner,

who were younger but more senior than him.

       The Department moved for summary judgment arguing that Mr. Alton was not an

employee or employment applicant of the Division under section 213.055.1 at the time of the

October 2010 hiring.



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       Following argument on the motion, the trial court entered summary judgment in favor of

the Department. It found Mr. Alton was not an employee or an employment applicant of the

Department at the time of the alleged discriminatory actions. Specifically, it found that while

Mr. Alton’s correspondence indicated a desire to be called back to work if positions became

available, it was limited by its own terms to availability prior to June 30 and the decisions to hire

a person younger than Mr. Alton was not made before June 30. This appeal by Mr. Alton

followed.

       In his sole point on appeal, Mr. Alton contends that the trial court erred in granting

summary judgment in favor of the Department because a genuine dispute of material fact

remained as to whether he was a potential applicant for recall/re-hire from layoff such that he

was entitled to the protections of the MHRA.

       Appellate review of the grant of summary judgment is de novo. ITT Commercial Fin.

Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary

judgment will be upheld on appeal if the movant is entitled to judgment as a matter of law and no

genuine issues of material fact exist. Id. at 377. The record is reviewed in the light most

favorable to the party against whom judgment was entered, according that party all reasonable

inferences that may be drawn from the record. Id. at 376. Facts contained in affidavits or

otherwise in support of a party’s motion are accepted as true unless contradicted by the non-

moving party's response to the summary judgment motion. Id.

       A defending party may establish a right to judgment as a matter of law by showing any

one of the following: (1) facts that negate any one of the elements of the claimant’s cause of

action, (2) the non-movant, after an adequate period of discovery, has not and will not be able to

produce evidence sufficient to allow the trier of fact to find the existence of any one of the



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claimant’s elements, or (3) there is no genuine dispute as to the existence of each of the facts

necessary to support the movant’s properly-pleaded affirmative defense. Id. at 381.

       Once the movant has established a right to judgment as a matter of law, the non-movant

must demonstrate that one or more of the material facts asserted by the movant as not in dispute

is, in fact, genuinely disputed. Id. The non-moving party may not rely on mere allegations and

denials of the pleadings, but must use affidavits, depositions, answers to interrogatories, or

admissions on file to demonstrate the existence of a genuine issue for trial. Id.

       As in any summary judgment matter, review of summary judgment in the context of a

MHRA employment discrimination claim must determine whether the record shows two

plausible, but contradictory, accounts of essential facts and the genuine issue in the case is real,

not merely argumentative, imaginary, or frivolous. Daugherty v. City of Maryland Heights, 231

S.W.3d 814, 820 (Mo. banc 2007). “If the parties disagree on the legal effect and consequences

of the facts, and not the relevant facts themselves, there is no genuine dispute of facts precluding

summary judgment.” Medley v. Valentine Radford Communications, Inc., 173 S.W.3d 315, 319

(Mo. App. W.D. 2005).

       In deciding a case under the MHRA, courts are guided by both Missouri law and federal

employment discrimination case law that is consistent with Missouri law. Daugherty v. City of

Maryland Heights, 231 S.W.3d 814, 818 (Mo. banc 2007). The MHRA prohibits unlawful

employment practices on the basis of race, color, religion, national origin, sex, ancestry, age, or

disability. Howard v. City of Kansas City, 332 S.W.3d 772, 779 (Mo. banc 2011). Specifically,

section 213.055, RSMo 2000, is a remedial prohibition against discrimination in the employment

context. Id. It provides:

       1. It shall be an unlawful employment practice:



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               (1) For an employer, because of the race, color, religion, national origin,
       sex, ancestry, age or disability of any individual:

               (a) To fail or refuse to hire or to discharge any individual, or otherwise to
       discriminate against any individual with respect to his compensation, terms,
       conditions, or privileges of employment, because of such individual’s race, color,
       religion, national origin, sex, ancestry, age or disability;

               (b) To limit, segregate, or classify his employees or his employment
       applicants in any way which would deprive or tend to deprive any individual of
       employment opportunities or otherwise adversely affect his status as an employee,
       because of such individual’s race, color, religion, national origin, sex, ancestry,
       age or disability.

§ 213.055.1.     “A plaintiff can prove discrimination by showing age or any protected

characteristics was a contributing factor for the employment action regardless if other factors

also exist.” Hurst v. Kansas City, Missouri School Dist., 437 S.W.3d 327, 39 (Mo. App. W.D.

2014)(internal quotes and citation omitted).

       Protection under section 213.055.1 requires an employer/employee relationship. Id.;

Sloan v. Bankers Life & Cas. Co., 1 S.W.3d 555, 562 (Mo. App. W.D. 1999). See also Coleman

v. Carnahan, 312 S.W.3d 377, 380 (Mo. App. E.D. 2010)(plaintiffs’ MHRA employment

discrimination complaint defeated because they “do not allege any potential or actual

employer/employee relationship between the parties.”). “The MHRA defines ‘employer’ to

include ‘the state, or any political or civil subdivision thereof….’” Howard, 332 S.W.3d at 779

(quoting § 213.010(7)). It does not, however, define “employee” or “employment applicant.”

Id. The Missouri Supreme Court recently defined the word “employee” for purposes of the

MHRA by looking at its plain and ordinary meaning. Id. at 780. It explained, “The word

‘employee’ is commonly defined as ‘one employed by another, usually in a position below the

executive level and usually for wages,’ as well as ‘any worker who is under wages or salary to an

employer and who is not excluded by agreement from consideration as such a worker.’” Id.



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(quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 743 (1993)). The Court further

noted that the term “employee applicant” does not have a dictionary definition. Id.

       Alton does not dispute that he was not an employee of the Department at the time of the

alleged discriminatory actions. Rather, he claims that material facts were in dispute regarding

whether he was an employee applicant. Typically, to establish a claim for discriminatory failure

to hire, the plaintiff must show that “‘he applied and was qualified for a job for which the

employer was seeking applicants.’” Green v. City of St. Louis, 507 F.3d 662, 666 (8th Cir.

2007)(quoting Chambers v. Wynne Sch. Dist., 909 F.2d 1214, 1216 (8th Cir. 1990)). However, a

formal application may be excused where the plaintiff “‘made every reasonable effort to convey

[his] interest in the job to the employer.’” Jackson v. United States Parcel Serv., Inc., 643 F.3d

1081, 1086 (8th Cir. 2011)(quoting Chambers, 909 F.2d at 1217)). See Paxton v. Union Nat’l

Bank, 688 F.2d 552, 568 (8th Cir. 1982)(where vacancy not posted and plaintiff did not hear

about it from any other source until after position was filled, his expression of desire to advance

in specific department of bank was sufficient for application). Additionally, a plaintiff may be

excused from making a formal application where the employer had “‘some reason or duty to

consider him for the post.’” Green, 507 F.3d 662, 667 (quoting Kehoe v. Anheuser Busch, Inc.,

96 F.3d 1095, 1105 n.13 (8th Cir. 1996)(where supervisors knew they were going to eliminate

plaintiff’s position at the same time they were interviewing candidates for an open position and

plaintiff did not know he was going to be fired until after other opening had already been filled,

application requirement was excused)).

       The following facts were undisputed. Mr. Alton’s position was to be eliminated effective

June 15, 2010, due to budget cuts, and he chose to retire on July 1, 2010, rather than to be laid

off without pay. Mr. Alton had no intention of retiring in July 2010 but only did so because of



                                                7
the elimination of his job. In a June 2, 2010 letter to Mr. Lacy, Mr. Alton expressed his interest

in cancelling his retirement if positions became available before June 30, 2010. Five positions

were restored before June 30, 2010, and those positions were filled at the end of May/beginning

of June 2010 with the most senior agents. Mr. Alton did not allege discrimination in the filling

of the positions. Of the five restored positions, three became vacant after two agents exhausted

twelve-weeks of FMLA leave and retired and another resigned to accept another job. Mr. Lacy

contacted Mr. Bidding, Mr. Mitchell, and Mr. Widenbenner, and on September 20, 2010, the

Division received their written applications. All three were rehired as special agents in October

2010. After learning of the hiring, Mr. Alton emailed Mr. Lace on October 15, 2010, asking to

be reinstated as a special agent.

       These undisputed facts showed that Mr. Alton did not apply for any of the positions filled

during the October 2010 hiring. Furthermore, he did not make every reasonable effort to convey

his interest in the jobs and the Division had no reason or duty to consider him for a position at

that time. By its own terms, Mr. Alton’s June 2, 2010 letter limited his interest in positions that

became available before June 30, 2010. Mr. Alton did not contact the Division or Mr. Lacy

about a position again until his October 15, 2010 email to Mr. Lacy after Mr. Mitchell was

rehired.

       Mr. Alton argued that the manner in which the positions were filled and recent history

and evidence of age discrimination by Mr. Lacy supported a plausible inference that he was an

employment applicant requiring the issue to be submitted to a jury. In making this argument,

Mr. Alton relied on evidence from a previous age discrimination lawsuit by two special agents

that were laid off in 2009. The two agents were the most senior agents in the Division when they

were laid off. In their lawsuit, which resulted in a preliminary injunction against the Department,



                                                8
evidence was offered that the Department had a tradition of carrying out budget-driven layoffs

by inverse order of hire (last hired, first fired) and that Mr. Lacy had stated to a district

supervisor during the 2009 layoff his desire that older agents should retire so younger agents

could be retained. While these facts were undisputed, they were not material to the issue in this

appeal—the threshold question of whether Mr. Alton was an employment applicant. Rather,

such facts would tend to be relevant to whether Mr. Alton’s age was a contributing factor in the

failure to hire. Because the undisputed facts show that Alton did not express an interest in

returning to work for the Department after he retired until after the October 2010 rehiring, he

was not an employment applicant entitled to protections under the MHRA. The trial court

properly granted summary judgment in favor of the Department. The point is denied.

       The judgment is affirmed.




                                            __________________________________________
                                            VICTOR C. HOWARD, JUDGE

All concur.




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