Moore v. Sw. Bell Tel. Co.

684 S.W.3d 187

Charlotte MOORE, Appellant,

v.SOUTHWESTERN BELL TELEPHONE COMPANY, et al, Respondents.

No. ED 111470

Missouri Court of Appeals, Eastern District, DIVISION TWO.

FILED: December 19, 2023

Motion for Rehearing and/or Transfer to Supreme Court Denied January 23, 2024

Appeal from the Circuit Court of St. Louis County, Honorable John N. Borbonus, Judge

For Appellant: Douglas B. Ponder, Jaclyn M. Zimmermann, 20 S. Sarah St., St. Louis, MO 63108.

For Respondent, Sharon Hyche: Pro se.

For Respondents, Southwestern Bell Telephone Company, Johnny Soliz, and Ja- cobie Jones: Daniel B. Boatright, Benjamin R. Marble, 600 Washington Ave., Ste. 900, St. Louis, MO 63101.

KURT S. ODENWALD, Presiding Judge

Introduction

Charlotte Moore ("Moore") appeals from the circuit court’s summary judgment and dismissal of her claims of workplace discrimination under the Missouri Human Rights Act ("MHRA"). In her first four points on appeal/ Moore challenges the circuit court’s grant of summary judgment in favor of Southwestern Bell Telephone Company ("SWBT") and its employees Johnny Soliz ("Soliz") and Jacobie Jones ("Jones") (collectively, "Respondents"). Moore argues the circuit court erred in granting summary judgment to Respondents because the record contained sufficient evidence that race, disability, and complaints of discrimination were contributing factors to her termination and supported her claims of hostile work environment. In her final point on appeal, Moore argues that when the circuit court denied her partial-summary judgment motion against former SWBT employee Sharon Hyche ("Hyche"), the circuit court erred in granting final judgment to Hyche because Moore’s claims against her were not precluded by res judicata or collateral estoppel in that there had been no previous lawsuit involving Hyche. The summary-judgment record contains no evidence that a genuine dispute of material fact exists showing that Moore’s race, disability, or complaints of discrimination were contributing factors to her termination. Accordingly, the circuit court did not err in entering summary judgment on her claims of racial discrimination, disability discrimination, retaliation, and hostile work environment against Respondents, and we deny the first four points. However, because we can find no authority for a circuit court to grant judgment to a non-movant in summary-judgment proceedings, the circuit court erred in entering final judgment as to Hyche. Accordingly, we affirm the circuit court’s judgment as to Respondents, reverse as to Hyche, and remand the case for further proceedings.

Factual and Procedural History

I. Procedural History

SWBT employed Moore as a service representative between December 3, 2003 and May 2, 2017. After SWBT terminated her employment, Moore filed a Charge of Discrimination with the Missouri Commission on Human Rights, On September 26, 2018, Moore filed a Petition in the circuit court against Hyche, Moore’s primary supervisor who was no longer employed by SWBT at the time of filing, and Respondents. In her petition, Moore alleged the following claims under the MHRA: racial discrimination, disability discrimination, retaliation, and hostile work environment based on race, disability, and retaliation. Moore alleged that Soliz, Jones, and Hyche acted directly in the interests of SWBT in their capacity as supervisors. Initially, Respondents and Hyche were all jointly represented, then the circuit court entered an order permitting Respondents’ counsel to withdraw from representing Hyche because she refused to communicate or cooperate. Hyche proceeded in the action unrepresented. Moore served Hyche with requests for admissions, to which Hyche did not respond.

Respondents moved for summary judgment on all counts in the Petition. Respondents argued the uncontroverted facts established that Moore’s race, alleged disability, and alleged protected activities were not factors in any adverse employment action or hostile work environment. Respondents maintained that Moore’s per- formance repeatedly fell short of objective expectations and that, after several steps of progressive discipline, SWBT terminated her employment for violating company policy when handling customer calls.

II. Summary-judgment Record

The following facts summarize the relevant portions of the summary-judgment record:

A. SWBT policies

SWBT maintained a policy prohibiting discrimination and harassment based on any class protected by law ("EEO Policy") and a Code of Business Conduct ("COBC") setting forth a policy for employee ethics and requiring employees to treat customers and other employees with respect and professionalism. SWBT trained Moore on the EEO, Policy and COBC. Moore’s role as a service representative was to handle customer inquiries and complaints, including assisting customers requesting to disconnect service, and to retain customers and promote SWBT’s products and services. As a member of the Communication Workers of America Union (the "Union"), the terms and conditions of Moore’s employment were governed by a collective bargaining agreement ("CBA") between the Union and SWBT. The CBA provided that supervisors may monitor and assess service representatives’ calls with customers. SWBT assessed performance of service representatives using various metrics on a scorecard, including customer surveys. Supervisors regularly coached service representatives on performance and were authorized to place poorly-performing service representatives on a Performance Improvement Plan (a "PIP"), a policy of corrective action that includes four progressive steps: a Performance Notice, a Written Reminder, Decision Making Leave ("DML"), and, ultimately, Termination. If DML was interrupted by another form of leave, it was SWBT’s policy to automatically extend the DML to account for that time.

B. Moore’s Performance Notice, Return to Hyche’s Team, and First Complaint to Jones

Between 2003 and 2010, Hyche was Moore’s direct supervisor. Hyche’s supervisor was center sales manager Jones, and Jones’s supervisor was general manager Soliz. Between 2010 and 2014, Moore’s direct supervisor was Corey Hill ("Hill"). Moore, Hyche, Hill, and Jones are African American, and Soliz is Hispanic.

Hill testified that Moore was one of the more consistent and top-performing service representatives on his team, which had average performance overall. However, Hill noted Moore had poor customer survey satisfaction scores. Hill explained that poor customer surveys are one of the weighted metrics on an employee’s scorecard that can result in disciplinary measures. Hill placed Moore on a PIP in July 2012 in order to improve her customer survey satisfaction scores. Hill subsequently issued Moore a Performance Notice for customer survey results in January 2013. Moore did not recall receiving the PIP or Performance Notice but recalled discussing with Hill how she needed to improve her customer survey scores.

Moore returned to Hyche’s team in 2014. In March 2015, SWBT’s National Observation Team documented an incident in which Moore ran a credit check on a customer without first obtaining the customer’s permission, which violated regulatory requirements and SWBT policy. The National Observation Team referred the incident to Hyche, who met with Moore to confirm Moore knew the credit check guidelines. Moore indicated she understood the guidelines but said they slipped her mind on that occasion, and Hyche ad- vised Moore that failure to follow the guidelines could lead to disciplinary, action. In April 2015, Hyche met with Moore and a Union representative to discuss Moore’s compliance with training on opening and closing statements during calls. Hyche agreed to deactivate Moore’s earlier Performance Notice and to refrain from issuing the next step of a Written Reminder so long as Moore met or exceeded customer service expectations, and Moore agreed to meet those expectations.

In May 2015, Moore met with Jones and requested to be transferred to another team. Moore told Jones that Hyche was "micromanaging" her and listening to all her calls. Jones replied that SWBT would not move her from one team to another simply because her supervisor was listening to her calls because that is what a supervisor is supposed to do. In her deposition, Moore initially testified that she did not tell anyone at SWBT that she was racially discriminated against. Moore then clarified that she "probably told [Jones] … [she] did tell him that … [Hyche] treated black people terrible, that’s—black women in particular."

C. Moore’s Written Reminder

On April 19, 2016, Hyche placed Moore on a Written Reminder for nine months due to unsatisfactory customer survey scores. Hyche met with Moore and a Union representative and informed Moore that she needed to improve her customer survey scores to avoid further disciplinary action.

D. Moore’s Second Complaint to Jones, DML, Medical Leave, and Hotline Calls

In. May 2016, Moore again asked Jones if she could be transferred to a different team. Neither Moore nor Jones recalled the specifics of her request. Jones remembered speaking twice with Moore about Hyche micromanaging her, and Moore testified she told Jones that Hyche was harassing her and listening to her calls.

That same month, SWBT found through routine call-monitoring that Moore violated COBC policy by placing three different customers on long holds and transferring two of those calls to another department without providing an explanation to the customer. Hyche conducted an investigatory meeting with Moore and a Union representative in which she reviewed the COBC policies and explained how Moore’s recent calls violated them. Hyche reviewed Moore’s job responsibilities, including SWBT’s expectations for how long customers could be placed on hold and how to provide warm transfers. Moore confirmed she understood SWBT’s policies. Hyche asked Moore when it is proper to "warm transfer" a customer, and Moore did not know and did not...