Ashby v. Woodridge of Mo., Inc.

673 S.W.3d 537

Asia ASHBY, Plaintiff-Appellant,

v.WOODRIDGE OF MISSOURI, INC., et al., Defendants-Respondents.

No. SD 37420

Missouri Court of Appeals, Southern District, In Division.

Filed: August 17, 2023

Attorney for Appellant – Raymond Lampert of Springfield, MO.

Attorneys for Respondents – Jessica L. Liss, Morgan E. Knott of St. Louis, MO.

JENNIFER R. GROWCOCK, J.

Asia Ashby ("Ms. Ashby") appeals from the trial court's grant of summary judgment dismissing her disability discrimination and workers’ compensation retaliation claims against Woodridge of Missouri, Inc., d/b/a Piney Ridge Center and REP Perimeter Holdings, LLC d/b/a Perimeter Healthcare (collectively, "Piney Ridge") under the Missouri Human Rights Act ("MHRA") and Workers’ Compensation Law. Ms. Ashby raises six points of alleged trial court error on appeal. Finding no merit in any of her points, we affirm the trial court's judgment.

Factual Background and Procedural History

Ms. Ashby began working for Piney Ridge as a case manager on January 2, 2018. Piney Ridge is a Level Four alcohol and substance abuse residential treatment facility for children and adolescents. The patients at Piney Ridge are treated for substance abuse, mental health, and sexual abuse, among other needs. A Level Four residential facility is the highest-level facility designation in terms of safety and security.

Piney Ridge has a zero-tolerance Drug and Alcohol-Free Workplace Safety policy (the "Policy") prohibiting employees from being under the influence or having drugs or alcohol in one's system during company time or on company premises. The Policy provides that employees will be subject to drug testing in certain situations, including pre-employment, post-offer, post-accident, reasonable suspicion, random, and upon return to work. Any positive test result will receive a second confirmation test using a different analytical process by a testing lab. A drug test result is deemed "positive" under the Policy if both tests are positive, and any positive test result is deemed a violation of the Policy. Any employee who fails a drug or alcohol test will be removed from work and is subject to disciplinary action, including termination. Piney Ridge's Policy does not forbid the legal use of prescription and non-prescription drugs but requires employees to disclose such use to Piney Ridge before working:

when taking medication containing alcohol or any drug that poses a significant risk of substantial harm to the health and safety of ... themselves or others, or that renders the employee unable to perform the essential functions of the job, or that could in any way interfere with proper performance of their duties.

Ms. Ashby understood the requirements of her job included "the ability to follow ALL policies and procedures," which she acknowledged both when she signed the case manager job description and in her deposition. One of those policies Ms. Ashby agreed to follow was the Policy. When Piney Ridge hired Ms. Ashby as a full-time employee, she signed a consent and release form for drug and alcohol testing, and she disclosed on the form the medications she was taking that may affect a drug test result but did not list hydrocodone or hydromorphone. Her test came back negative at that time.

Piney Ridge's policy for employees injured on the job required Ms. Ashby to take another drug and alcohol test when she reported being injured after attempting to break up a fight between two Piney Ridge residents on July 11, 2018. She signed her second consent and release form for drug and alcohol testing and wrote in four medications on the form that may have affected the outcome of the test. She, again, did not list hydrocodone or hydromorphone. Her test result came back "negative."

Ms. Ashby was later randomly selected for a drug test under the Policy on January 22, 2019. She signed her third consent and release form for drug testing, the same form she had signed at least twice before. She did not list any medications she was taking that could affect the test results in the blank space provided on the form. The initial test result came back positive for opioids, and, pursuant to the Policy, Piney Ridge sent the presumptive positive result to a lab for a confirmation test. Ms. Ashby had never informed anyone she had a medical condition which required her to take opioids prior to the random drug test. She also never previously informed anyone she had a disability or other medical condition, and she never asked anyone at Piney Ridge for a reasonable accommodation for a disability "because she did not need an accommodation." When asked if she had a current prescription for opioids and if so, to provide it, Ms. Ashby did not provide one.

Piney Ridge suspended Ms. Ashby pending the results of the second confirmation drug test. While she was suspended, on January 24, 2019, Ms. Ashby contacted Nancy Patel ("Ms. Patel"), Piney Ridge's Human Resources Manager, regarding her positive test result. Ms. Ashby indicated she did not know why she tested positive and began brainstorming about what caused the test result. She asked Ms. Patel whether having sexual intercourse with her husband, who takes medication daily, the morning of the random drug test could have caused her to test positive for opioids. Ms. Patel informed Ms. Ashby that, pursuant to the Policy, she would have to provide a valid, current prescription at the time she tested positive to excuse her positive result.

Ms. Ashby later provided Piney Ridge a prescription for hydrocodone dated April 24, 2017, from Dr. Nathan Ratchford ("Dr. Ratchford"). Dr. Ratchford was Ms. Ashby's OB/GYN doctor, and had prescribed her hydrocodone for postsurgical pain after her tubal ligation surgery in 2017. The prescription had an "end" date of April 28, 2017.¹ Ms. Ashby provided a list of her prescriptions she had printed out, which showed another doctor prescribed her an additional 10 tablets of hydrocodone that same day. Ms. Ashby's prescription directed her to take one to two tablets every four hours as needed for pain post-surgery. She agreed, had she taken two tablets every four hours, she would have finished her prescription in two and a half to three days. The 2017 prescription for hydrocodone prescribed after Ms. Ashby's tubal ligation surgery was the only prescription she provided Piney Ridge after her positive drug test, and she never supplied a current prescription for hydrocodone to treat back pain.²

On January 25, 2019, while she was still suspended and after the first positive test for opioids, Ms. Ashby reported a work-related injury to Piney Ridge. Ms. Ashby claimed she injured her neck and back on January 21, 2019, one day before the random drug test, while moving her office furniture. She filled out an Employee Accident Report for her alleged injury, stated she wanted to see a workers’ compensation physician for her injury, and she then did so. The physician did not prescribe Vicodin for her alleged injury, but Ms. Ashby explained she took one of her father's prescribed Vicodin pills on January 21, 2019, the evening preceding the random drug test, without consulting a doctor or seeking any medical care and without informing anyone at Piney Ridge.

The result of the confirmation drug test came back on January 26, 2019. It confirmed the presence of hydrocodone and hydromorphone, and the levels of each drug in Ms. Ashby's system were higher than the cut off levels used in the initial test. Piney Ridge compared the confirmation lab test results to Ms. Ashby's 2017 prescription and concluded she did not have a valid, current prescription for hydrocodone. Piney Ridge subsequently terminated Ms. Ashby's employment on January 28, 2019, for violating the Policy.

Ms. Ashby filed a charge with the Missouri Commission on Human Rights (the "Commission"). She claimed Piney Ridge discriminated against her "because of a disability or a perceived disability" relating to "a false perception" of drug addiction. The Commission granted her a right to sue, and she alleged discrimination claims under the MHRA and Workers’ Compensation Law. The trial court granted summary judgment in favor of Piney Ridge on both of Ms. Ashby's claims, and she now appeals.

Standard of Review

Summary judgment is appropriate when the moving party can show there is no genuine dispute as to material facts and, on that basis, movant is entitled to judgment as a matter of law. Green v. Fotoohighiam , 606 S.W.3d 113, 115 (Mo. banc 2020) ; Morelock v. Intercontinental Hotels Grp. Res., LLC. , 644 S.W.3d 843, 847 (Mo. App. S.D. 2021). A defending party may prove it is entitled to summary judgment by showing (1) facts negating any one of the elements of an alleged claim, (2) the non-moving party has not been able to, and will not be able to, produce evidence sufficient to establish any one of the necessary elements of a claim after a reasonable discovery period, or (3) there is no genuine dispute as to the facts necessary to support an affirmative defense. Lisle v. Meyer Elec. Co., Inc. , 667 S.W.3d 100, 103 (Mo. banc 2023). Once a movant has met any of these burdens, the non-moving party can avoid summary judgment by showing – by affidavit, deposition, interrogatory answers, or admissions on file – there is a material fact remaining in dispute. Green , 606 S.W.3d at 117 ; Hartwell v. Am. Fid. Assurance Co. , 607 S.W.3d 807, 813 (Mo. App. S.D. 2020).

An appellate court "reviews the grant of summary judgment de novo and will affirm if summary judgment was appropriate on any basis supported by the record." Wilson v. City of St. Louis , 662 S.W.3d 749, 754 (Mo. banc 2023). With respect to the factual basis supporting a grant of summary judgment, however, an appellate court does not review the whole trial court record. See Green , 606 S.W.3d at 118-19.

[1] Facts come into a summary judgment record only via Rule 74.04(c)’s numbered-paragraphs-and-responses framework. [2] Courts determine and review summary

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