Appeals court returns discrimination case to Cole County court

Unless the state appeals to the Supreme Court, a three-judge appeals court panel ruled last week that Cole County Circuit Judge Pat Joyce will have to take more evidence in a Holts Summit woman’s discrimination claim against the state Revenue department.

The appeals court’s Kansas City division ruled last week that Joyce should not have granted the department’s motion for summary judgment, because “there is a genuine issue as to whether a reasonable person would objectively consider the Employer’s behavior toward (Terrie) Fuchs sufficiently severe or pervasive to alter the conditions of her employment by creating an abusive working environment.”

The appeals court’s 12-page ruling noted that Fuchs, who has cerebral palsy, has worked “continuously” with the department since 1981 “in multiple capacities” and, since 1998, as a call center telephone operator.

Fuchs filed her discrimination lawsuit in July 2011, after getting a right-to-sue letter from the Missouri Human Rights Commission.

Fuchs initially filed her “disability discrimination” complaint with the commission in December 2010, then filed a second complaint in April 2011 “alleging retaliation by the Employer” for filing the first complaint, Judge Cynthia Martin wrote for the three-judge panel.

In her lawsuit, filed by Jefferson City lawyer Carla Holste, Fuchs argued her “disability contributed, in whole or in part, to [the department’s] adverse employment actions towards and harassment,” and that her actions under the Missouri Human Rights Act contributed to the department’s “improper and illegal retaliation.”

The appeals court noted a combination of Fuchs’ disability and the effects of some injuries she had suffered meant she is “confined to a wheelchair and requires assistance to use the restroom. At work, this assistance is provided by co-workers.”

Fuchs’ lawsuit alleged that her supervisor — who isn’t identified — created a hostile work environment through “comments and conduct.”

The court’s opinion noted Fuchs testified in a deposition that “her supervisor suggested that Fuchs ‘realize [she is] broken and go on disability,’ (that) her supervisor has questioned her repeatedly about the length of time she requires to use the restroom, and has limited the times during which Fuchs may use the restroom during the workday” — and that the supervisor took other actions against her, “including questioning the volume of work Fuchs completes each day, punishing Fuchs for tardiness, denying Fuchs’ request for leave to see her doctor, and requiring a note from Fuchs’s doctor before allowing her to wear tennis shoes to work.”

She also testified in that deposition that coworkers who help her also “felt intimidated and threatened.”

The court noted Joyce granted the department’s request for summary judgment because she “found as a matter of law that all three of Fuchs’s discrimination claims … required Fuchs to establish that a specific, discrete, adverse employment action had been taken against her by Employer,” and Fuchs couldn’t do that.

But, the three-judge appeals court panel ruled, “specific, discrete adverse employment actions are not the only means by which a claimant can prove that a term, condition, or privilege of her employment has been impacted.”

The appeals court also said, “Summary judgment will rarely be appropriate, therefore, in discriminatory harassment cases that turn on whether an employer’s conduct is objectively severe or pervasive.”

Those disputes should be left to a jury’s determination, the court said.

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