PATRICIA JACKSON AS NEXT FRIEND FOR MINOR v. EXCELSIOR SPRINGS SCHOOL DISTRICT AND TERRI IRONS (2026)

This matter stems from an incident that occurred when L.J. was a freshman in high school. P.E. teacher and volleyball coach, Terri Irons (“Irons”), admonished L.J. for opening a door during P.E. class. L.J. alleged Irons placed her hand around L.J.’s throat and choked her. L.J. filed this action against Excelsior Springs School District (“School District”) and Irons (collectively, “Defendants”), asserting claims of (1) discrimination and hostile school environment based on L.J.’s sex; (2) aiding and abetting discrimination; (3) retaliation; (4) intentional infliction of emotional distress; and (5) assault.

The case proceeded to a jury trial before the Circuit Court of Clay County (“trial court”). After L.J.’s presentation of evidence, Defendants moved for directed verdicts on all counts. The trial court granted the motion as to L.J.’s claims of discrimination and hostile school environment, aiding and abetting discrimination, and intentional infliction of emotional distress. After Defendants’ presentation of evidence, the jury found in favor of Defendants on L.J.’s remaining claims of retaliation and assault.

L.J. appeals, asserting four points of trial court error. She argues the trial court erred in excluding medical evidence relating to her anxiety and depression (Point I). She also asserts it was “manifestly unjust” for Defendants to state during closing arguments that L.J. had “no medical evidence,” and thus the trial court erred in denying her motion for new trial (Point II). Finally, she contends the trial court erred in directing the verdicts in favor of Defendants on her claims of sex discrimination and hostile school environment (Point III) and aiding and abetting discrimination (Point IV).

For the reasons stated below, we affirm.

Factual and Procedural Background

In September 2019, L.J. was a fourteen-year-old freshman at Excelsior Springs High School. She was a member of the freshman girls volleyball team, also known as the “C Team.” Irons was the head of the volleyball program and the varsity volleyball coach. Irons was also a P.E. teacher. The freshman P.E. classes were gender-specific, meaning Irons and another female teacher taught all-female classes, while male teachers taught all-male classes.

L.J. had P.E. during fifth hour. The other female teacher was L.J.’s teacher, but Irons also taught a freshman P.E. class during fifth hour, so the two classes often interacted. There were also freshman boys P.E. classes during fifth hour, and sometimes the girls and boys classes would play games or do activities together.

On September 19, 2019, L.J.’s class had a substitute teacher. Irons took her class outside to play tennis, while L.J.’s class remained in the gymnasium. When Irons’ class returned from playing tennis outside, some of her students banged on the door to the gym because it was locked. L.J. opened the door for them. Irons followed her students into the gym and asked, “Who opened the door?” L.J. said that she did. L.J. and Defendants presented different evidence at trial as to what occurred next.

According to L.J., Irons became upset and roughly put a hand around L.J.’s throat and a hand on her shoulder, and “started backing [her] up.”¹ Irons yelled, “What did [your P.E. teacher] say about opening the gym doors?” then laughed and walked off. L.J. started crying; some of her friends comforted her.

According to Irons, when her class returned to the gymnasium, she planned to unlock the door to let her students in. The external doors to the gym were locked for safety purposes, and students were not supposed to open those doors. When L.J. said that she had opened the door, Irons was “disappointed that one of [her] players had opened that door” because “we kind of set an expectation if you're a student athlete, we want those kids to be school leaders.” Irons approached L.J. and “put [her] hand on [L.J.’s] shoulder and the other hand on her arm.” Irons said, “[W]hat has [your P.E. teacher] told you about opening those doors?” L.J. responded, “I don't know.” Irons said, “[W]e can't open those doors.” Then Irons “moved on” and “thought nothing of it,” believing it to be just like other interactions she'd had with her student athletes.

That evening, L.J. told her mother (“Mother”) about what happened in P.E. class. Mother called the school the following morning and met with Assistant Principal. L.J. spoke with Assistant Principal as well, and gave a written statement about what occurred. Assistant Principal was able to find and view a video of the incident that was recorded by a camera in the gym.² Assistant Principal contacted Principal and notified her about L.J.’s complaint. Principal, in turn, contacted “Central Office” and notified Deputy Superintendent.

Deputy Superintendent determined that Irons should be placed on administrative leave with pay pending the outcome of the investigation. Irons was placed on leave beginning Tuesday, September 24th. As part of the investigation, Principal spoke with L.J., Irons, and four students who witnessed the incident. Principal and Deputy Superintendent also viewed the video numerous times. Ultimately it was concluded that Irons walked up to L.J., put her hands on her shoulder and arm, and gave her some instruction; there was no choking, and Irons’ hand was not on L.J.’s throat. Irons was reinstated on Thursday, September 26th; a memo was placed in her personnel file.

On October 4th, Mother and L.J.’s father met with the high school athletics director (“Athletics Director”). Mother testified at trial that, during that meeting, Athletics Director said that Irons “would have never addressed the situation with [L.J.] had she not been one of her volleyball girls” and “she felt comfortable with her because she was one of her girls.”

L.J. quit the volleyball team on October 11th. She testified that she quit because “it wasn't worth having people talking about [her] all the time and looking at [her], making comments,” and also that she wanted to separate herself from Irons. She stated that before the incident she was a starter on the team, but after she was “benched,” meaning her playing time was reduced significantly.

Athletics Director testified that students were not allowed to practice or participate in sporting events if they missed school and that L.J. had missed school and practice after the incident with Irons. He also testified that the C Team was a skills development team, and that players rotated through playing time “a lot more” so they all could receive the opportunity to play and improve. Athletics Director stated that the C Team coaches (not Irons) made determinations about playing time.

L.J. testified that the school administrators met with her about the incident six times, and she felt that they were trying to get her “to change [her] story.” According to L.J., “everyone started to know” about the incident and people were talking about her. L.J. said that when she encountered Irons, Irons never looked at her “with a smile,” and instead looked at her “more mean than ․ nice.”

Irons testified that after L.J.’s complaint, she no longer combined her P.E. class with L.J.’s class, and she restructured volleyball practice so Irons spent time with just the varsity team. Irons did not interact with L.J. or speak to her; L.J.’s family had filed a police report against Irons, and she “didn't think [interacting with L.J.] was appropriate at that point.”³

On February 19, 2020, L.J. filed a charge of discrimination with the Missouri Commission on Human Rights, in which she claimed that Defendants discriminated and harassed her based on her sex.

L.J. stopped going to school and transitioned to on-line learning. L.J. stated that she did this to “try and separate [herself] from Ms. Irons.” L.J. had numerous incomplete credits her freshman year. Irons retired at the end of that year (the 2019-2020 school year).

L.J. came back to school full time for her junior year (the 2021-2022 school year). Also that year, Irons began to substitute teach for the School District. Irons was L.J.’s substitute teacher one time during L.J.’s senior year.

L.J.—through Mother as next friend—initiated this action against Defendants. In her First Amended Petition, L.J. asserted three counts against School District and two counts against Irons. Her claims against School District were for discrimination and hostile school environment in a place of public accommodation, aiding and abetting discrimination, and retaliation, all in violation of the Missouri Human Rights Act (“MHRA”). Her claims against Irons were for intentional infliction of emotional distress and assault.

The case was tried before a jury. After L.J.’s presentation of evidence, Defendants moved for directed verdicts on all counts. The trial court granted the motion in part, directing verdicts in favor of Defendants on L.J.’s claims for discrimination and hostile school environment, aiding and abetting discrimination, and intentional infliction of emotional distress.

After the presentation of all evidence, two claims were submitted to the jury: L.J.’s claim against School District for retaliation and her claim against Irons for assault. As to retaliation, the jurors were instructed that they must find in favor of L.J. if they believed: (1) L.J. made a complaint of discrimination; (2) School District either refused to properly investigate L.J.’s complaint, reduced or eliminated her volleyball playing time, refused to assist her with alternative home school learning programs, or refused to separate Irons from her; (3) a causal relationship existed between the complaint and the conduct outlined above; and (4) such conduct directly caused damage to L.J. As to assault, the jurors were instructed that they must find in favor of L.J. if they believed: (1) Irons made physical contact with L.J. with the intent to cause L.J. offensive contact or apprehension of offensive contact; and (2) Irons thereby caused L.J. to be in apprehension of bodily harm or offensive contact. Only if they found in favor of L.J. on either claim was the jury to consider an award of compensatory and punitive damages. The jury found in favor of Defendants, and thus did not reach the issue of damages.

Additional facts are set forth in the analysis.

Point I – Exclusion of Medical Evidence

In her first point, L.J. argues the trial court erred in “excluding testimony and documents regarding [her] medical condition,” specifically, her anxiety and depression. L.J. contends that “medical testimony and documents supported that [she] was emotionally damaged,” and “[w]ithout the ability to offer evidence regarding depression and anxiety, L.J. was denied the ability to meet the burden of proof on her emotional damage.”

Standard of Review

“On appellate review, the issue is not whether the evidence was admissible, it is whether the trial court abused its discretion in excluding the evidence.” O'Haver v. 3M Co., 698 S.W.3d 730, 736 (Mo. App. W.D. 2024). “A trial court enjoys considerable discretion in the admission or exclusion of evidence, and, absent clear abuse of discretion, its action will not be grounds for reversal.” Id. (internal marks omitted).

Even if a trial court's evidentiary ruling constitutes an abuse of discretion, we only reverse if the appellant demonstrates she suffered prejudice from that ruling. See Piers v. Dep't of Corr., 688 S.W.3d 65, 73 (Mo. App. W.D. 2024) (“To prove reversible error, the appellant must show both an abuse of discretion and prejudice.”). “To establish prejudice sufficient to justify reversal, the appellant must show that the erroneous exclusion of evidence materially affected the merits of the action, in other words, that the trial court's error affected the outcome of the trial.” Lopez v. Cedar Fair, L.P., 702 S.W.3d 114, 124 (Mo. App. W.D. 2024) (internal marks omitted); see also Wilkins v. Off. of the Mo. Att'y Gen., 464 S.W.3d 271, 277 (Mo. App. E.D. 2015) (“[T]he appellant must demonstrate resulting prejudice by showing that the outcome of his case would have been different had the excluded evidence been admitted.”).

Analysis

L.J. asserts the trial court erroneously excluded three types of “medical evidence” relating to her anxiety and depression—testimony of her treating nurse practitioner (“Nurse Practitioner”), medical records, and L.J.’s own testimony about her anxiety and depression—and without this evidence she was deprived of the ability to show her “emotional damage.” We disagree.

Prior to trial, Defendants filed a motion to strike Nurse Practitioner's trial testimony. The trial court heard argument on the motion both at a pre-trial hearing and during trial. L.J. sought to admit the testimony of Nurse Practitioner to show there was “a connection between the incident and [L.J.’s] increased anxiety” and that “any increase of [L.J.’s] depression or anxiety was exacerbated or caused by the conduct of [School District].” The trial court ruled that Nurse Practitioner could not testify “to causation” because L.J. did not follow the required pre-trial procedures to identify retained expert witnesses, and, without an expert “linking the incident to the diagnosis,” any testimony about L.J.’s anxiety or depression was irrelevant. Thus, the trial court ruled “nobody can testify as to the condition of anxiety or depression.”

L.J. made an offer of proof relating to Nurse Practitioner's testimony:⁴

Q. Okay, and did [L.J.] report to you that she had, that she had anxiety because of an incident that had occurred at her school?

A. I had to go back and review my note. I couldn't remember exactly. What I believe my note said was she was having some anxiety when she started that school year; and then there was an incident at the school that she did not want to discuss with me that caused it to get worse, and that's why she left school that semester.

Q. Okay. And after that meeting with [L.J.], you actually diagnosed her with anxiety and depression; is that right?

A. Anxiety, I know is on her chart, yes.

Q. Okay, all right. And would you be able to say to a reasonable degree of medical certainty that any anxiety that she had was exacerbated by the incident she reported at school?

A. Exacerbated, yes.

Although L.J. did not move to admit any medical records into evidence at trial, she did describe during her offer of proof two of Nurse Practitioner's treatment notes.⁵ In these treatment notes, Nurse Practitioner noted L.J.’s anxiety was aggravated by conflict or stress, traumatic memories, and school, and that L.J. reported she noticed increased anxiety when school started in the fall of 2019, and then she had an “incident” with a teacher that increased her issues. L.J. argued to the trial court that these treatment notes were “relevant because [they showed] that the conduct of Defendants harmed L.J.,” “[a]nd there's a connection between the incident and [L.J.’s] increased anxiety.” L.J. did not make an offer of proof as to what her own testimony would have been had she been permitted to testify about her anxiety and depression.

We find the exclusion of the medical evidence ⁶ relating to L.J.’s anxiety did not result in prejudice sufficient to warrant reversal. We initially note that, in a sex discrimination or sexual harassment claim, a plaintiff is not required to present medical evidence to prove emotional damage. See State ex rel. Dean v. Cunningham, 182 S.W.3d 561, 567-69 (Mo. banc 2006). Here, the medical evidence showed that L.J. had pre-existing school-related anxiety, and L.J. reported that the anxiety increased after an “incident” with a teacher that she refused to discuss with Nurse Practitioner. Based on this information, Nurse Practitioner opined that L.J.’s anxiety was exacerbated by this incident. Nurse Practitioner never diagnosed L.J. with depression, and L.J. did not make an offer of proof, so we do not know what her testimony would have been relating to her anxiety and depression. See O'Haver, 698 S.W.3d at 739 (one purpose of an offer of proof is “to create a record for this Court to review, which, in turn allows us to determine whether [the appellant] was prejudiced by any of the purported errors”). Thus, the excluded evidence amounted to an opinion of Nurse Practitioner that L.J.’s school-related anxiety was exacerbated by an undescribed incident relating to a teacher. We find that the exclusion of such evidence was not outcome-determinative, given the considerable additional evidence before the jury that L.J. was emotionally damaged by the incident with Irons.

L.J. testified that immediately after the incident, she was very upset and she cried, and when she got home later that day she was still “super emotional” and she broke down crying when she told Mother what had happened. She stated that “it wasn't just a six-second interaction,” and that it caused her suffering “throughout [her] high school experience,” it “ruined” her high school experience, and she “was scared to go to school because of [Irons] every single day.” She testified that “it still troubles” her to this day,⁷ she's “[s]till pretty sad” about it, she thinks about it a lot, it bothers her a lot, and she tries to block out what happened to her but it's still tough for her. She further testified that the way she was treated by School District still has an effect on her, and she is probably going to need “help to be able mentally process this and get through all this.”

Mother testified that when L.J. told her about the incident with Irons, L.J. was “very much emotionally upset,” and “by the end of the conversation she was crying” and was “scared for [Mother] to bring it to anybody's attention.” Mother had no doubt that the incident “traumatized” L.J. When L.J. saw Irons after the incident she became “very upset and uncomfortable.” L.J. “cried, and cried and cried,” and “begged [Mother] not to make her go to school.” L.J. “begged [Mother] every morning not to make her go after Ms. Irons was allowed back in the building.” L.J. also “talked to [the school counselor] several times.”

In light of this evidence showing how L.J. suffered from and was damaged by the incident with Irons, there is no reasonable probability that, had the jurors additionally heard from Nurse Practitioner that L.J.’s pre-existing anxiety was exacerbated by the incident, their verdict would have been different.

Point I is denied.

Point II – Closing Argument

In her second point, L.J. asserts the trial court “erred in overruling [her] motion for new trial, because it was manifestly unjust for defendants to argue to the jury [L.J.] had ‘no medical evidence,’ in that [L.J.] had substantial medical evidence that was improperly excluded on defendants’ motion.”

Relevant Record

In L.J.’s closing argument, her counsel suggested to the jurors that they award L.J. at least $500,000 in compensatory damages. To support this amount, counsel argued:

But then you have to also consider she had her Freshman, Sophomore, Junior and Senior year. And then we have the present, and she has the future. How long is she going to experience this? You've seen that she's still suffering from this to this day. I don't know how long it's going to take, but she did say that she wants to get some help. But ultimately, you get to make the determination, it's your job, you've got the power.

In response, defense counsel argued the following (the portions challenged by L.J. on appeal are emphasized):

You heard Plaintiff's counsel get up here and say, well, if you find for [L.J.], then you need to be able to compensate her. And he talked about well, how do you compensate someone for trauma, how do you compensate someone for what they've been through. But I want you to also consider some additional things. We did not hear any evidence of any physical injury. In fact, we asked [Mother] did she see any marks, were there any, were there marks, were there scratches, were - - was there any kind of injury. There's no physical injury. We also did not hear evidence of any medical intervention. We didn't hear that. That's not what was given to you.

Also, there was no evidence provided to you about therapeutic services. We are now five years later, five years later to talk about a trauma when at that moment we didn't hear evidence whether or not the school counselor was called; we didn't hear evidence whether or not a private counselor was called. We didn't hear evidence of any kind of therapeutic services or any kind of attempt to seek interventions. But five years later, they are asking you, well, we think it needs to start now. I'm making the assumption that they must not have thought it had to start back then. But now, they want you to compensate for any kind of trauma received. So, I want you to consider that and think about what you did not hear evidence of. And I also want you to consider what you did hear evidence of.

L.J. asserts that during Defendants’ closing argument, they presented a PowerPoint presentation that included the statement, “No medical evidence.” After trial, L.J. propounded a discovery request to Defendants seeking production of the PowerPoint. Defendants objected to producing the PowerPoint and refused to do so. Defendants make no reference to the PowerPoint in their brief on appeal, and do not refute the existence of the PowerPoint. We will thus presume the PowerPoint as described by L.J. was shown to the jury.

Preservation and Standard of Review

Although L.J. included this issue in her motion for new trial, she did not object to the challenged statements and PowerPoint during Defendants’ closing argument. “Failure to properly object to closing argument at the time it is made to a jury results in a waiver of any right to complain of the argument on appeal, even if the point is preserved in an after trial motion ․ because if the objection is not timely, the trial court has no opportunity to take corrective action at the time the remarks were made.” Howard v. City of Kan. City, 332 S.W.3d 772, 791 (Mo. banc 2011). Accordingly, “[a]n issue of error concerning closing argument is not preserved if raised for the first time in a motion for new trial,” and thus the issue “may only be reviewed for plain error.” Guess v. Escobar, 26 S.W.3d 235, 241 (Mo. App. W.D. 2000); see also Rush v. Senior Citizens Nursing Home Dist. of Ray Cnty., 212 S.W.3d 155, 162 (Mo. App. W.D. 2006) (the appellants asserted that the trial court erred in denying their motion for new trial; however, because they did not object to the improper closing argument at trial, “the only recourse left [was] plain error review”).

Under Rule 84.13(c), “[p]lain errors affecting substantial rights may be considered on appeal, in the discretion of the court, though not raised or preserved, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” “Plain error review is rarely granted in civil cases.” Rush, 212 S.W.3d at 162. Further, “[p]lain error review is rarely conducted of an alleged error committed during closing argument because withholding an objection to an improper argument is often a strategic decision made by counsel.” State v. Burkett, 725 S.W.3d 565, 576 (Mo. banc 2025). An improper closing argument only warrants reversal if it “had a decisive effect on the jury determination.” Id.

Analysis

We find the challenged statements in Defendants’ closing argument did not have a decisive effect on the jury's determination given the context in which they were made. See id. (“When claims of improper arguments are made, the Court examines the entire record, not just an isolated segment in the closing argument, to determine if the improper argument detrimentally misled the jury.”). When Defendants argued, “We also did not hear evidence of any medical intervention,” they were pointing out that there was no evidence of physical injury or other medical intervention to warrant the amount of damages suggested by L.J.’s counsel during her closing argument. The jury never reached the issue of damages, however, because it found in favor of Defendants. Thus, we find the alleged improper statement relating to the amount of damages the jury should award had no decisive effect on the jury's verdicts.

Further, Defendants’ statements that there was no evidence that a “private counselor was called,” or evidence of “therapeutic services or any kind of attempt to seek interventions,” did not constitute improper argument, as L.J. was not precluded from presenting such evidence. The trial court expressly ruled that L.J. was permitted to present evidence that she sought or underwent counseling or therapeutic services,⁸ but L.J. did not offer any such evidence. Moreover, the challenged statements responded to L.J.’s argument that her future counseling or therapy services warranted a $500,000 award of compensatory damages. See Delacroix v. Doncasters, Inc., 407 S.W.3d 13, 46 (Mo. App. E.D. banc 2013) (“[T]he law indulges a liberal attitude toward closing argument, particularly where the comment complained of is a fair retort or responds to prior argument of opposing counsel,” and “Missouri courts have allowed otherwise improper arguments as retaliation to opposing counsel's arguments.”).

For these reasons, we find L.J. failed to establish the trial court committed plain error that resulted in manifest injustice or miscarriage of justice. Accordingly, we decline to exercise plain error review.

Point II is denied.

Point III – Directed Verdict: Discrimination/Hostile School Environment

In her third point, L.J. asserts the trial court erred in granting School District's motion for directed verdict on her sex discrimination and hostile school environment claims.

Standard of Review

“In a jury-tried case, a motion for directed verdict challenges the sufficiency of the plaintiff's evidence to make a case.” Gamber v. Mo. Dep't of Health & Senior Servs., 225 S.W.3d 470, 476 (Mo. App. W.D. 2007). Thus, “[i]n reviewing the grant of a motion for directed verdict, this Court must determine whether the plaintiff made a submissible case.” Marcantonio v. Bd. of Curators of Lincoln Univ., 702 S.W.3d 153, 168 (Mo. App. W.D. 2024). “In order for a plaintiff to make a submissible case, each and every element essential to establish a defendant's liability must be supported by substantial evidence.” Gamber, 225 S.W.3d at 476. “Substantial evidence is evidence that has probative force upon the issues, and from which the trier of fact can reasonably decide the case.” Apperson v. Kaminsky, 727 S.W.3d 422, 426 (Mo. banc 2026).

In conducting our review, we “should view the evidence in the light most favorable to the plaintiff, assuming the jury will believe all evidence (and draw all reasonable inferences) tending to support the plaintiff's case and reject all evidence (and inferences) that do not.” Id. “The plaintiff may prove essential facts by circumstantial evidence as long as the facts proved and the conclusions to be drawn are of such a nature and are so related to each other that the conclusions may be fairly inferred.” Marcantonio, 702 S.W.3d at 168. “Whether the plaintiff made a submissible case is a question of law subject to de novo review.” Id.⁹

Analysis

L.J. asserts the trial court erred in directing the verdict for School District on her sex discrimination and hostile school environment claims, “because she presented substantial evidence in support of every element of her claims, in that the evidence showed that she was discriminated against based on sex and suffered adverse actions and treatment severe enough to create a hostile or abusive environment damaging to [her].” We disagree, and conclude L.J. did not present substantial evidence that her sex was the motivating factor for the claimed discrimination and harassment.

Section 213.065.2, RSMo,¹⁰ prohibits discrimination based on sex—among other protected characteristics—in a place of public accommodation, which includes public schools. See R.M.A. by Appleberry v. Blue Springs R-IV Sch. Dist., 568 S.W.3d 420, 426-29 (Mo. banc 2019). A school district can be held liable for the actions of its employees based on respondeat superior. M.N. by S.N. v. N. Kan. City Sch. Dist., 597 S.W.3d 786, 793-95 (Mo. App. W.D. 2020). The elements of a public accommodation discrimination claim under section 213.065 are: “(1) [plaintiff] is a member of a class protected by section 213.065; (2) [plaintiff] was discriminated against in the use of a public accommodation; and (3) [plaintiff's] status as a member of the protected class was the motivating factor in the discrimination.” J.H. by Meudt-Antele v. Jefferson City Pub. Sch. Dist., 661 S.W.3d 353, 358 (Mo. App. W.D. 2023) (citing R.M.A., 568 S.W.3d at 424-25). “The motivating factor” is defined by statute as “the [student's] protected classification actually played a role in the adverse action or decision and had a determinative influence on the adverse decision or action[.]” § 213.010(19). The “motivating factor” standard imposes a higher burden upon the plaintiff than the “contributing factor” standard that applied under the prior version of the MHRA. See Bram v. AT&T Mobility Servs., LLC, 564 S.W.3d 787, 794-95 (Mo. App. W.D. 2018) (prior to the 2017 amendment of the MHRA, a plaintiff was required to show the protected characteristic was a “contributing factor” in the discriminatory act, which was a less stringent standard than the “motivating factor” standard).

L.J. also asserts she suffered discrimination under a “hostile school environment” theory. Assuming without deciding her theory is cognizable,¹¹ an element of that claim would also include that L.J.’s protected characteristic (here, her sex) was the “motivating factor” for the harassment that resulted in a hostile school environment. See Matthews v. Harley-Davidson, 685 S.W.3d 360, 367 (Mo. banc 2024) (“The elements of a hostile work environment claim under the MHRA” include that “the [plaintiff's] membership in the protected group was a motivating factor in the harassment[.]”).

In support of her claim that she was discriminated against and harassed based on her sex, L.J. relies on two types of evidence: a statement from Athletics Director—which she contends was “direct evidence” of discrimination—and testimony purporting to show Irons treated male students differently than female students. However, taking L.J.’s evidence as true, we find it did not constitute substantial evidence that L.J.’s sex was the motivating factor for the alleged discrimination.

L.J. first points to Athletic Director's statement that Irons “would have never addressed the situation with [L.J.] had she not been one of her volleyball girls” and “she felt comfortable with her because she was one of her girls.”¹² But the reasonable inference to be drawn from Athletic Director's statement is that Irons disciplined L.J. because she was an athlete in the program Irons coached, which happened to be the girls volleyball team. The fact that there was a correlation between L.J.’s sex and being an athlete on the volleyball team did not constitute substantial evidence that L.J.’s sex was the motivating factor for the discrimination alleged. Cf. EEOC v. McDonnell Douglas Corp., 191 F.3d 948, 951 (8th Cir. 1999) (Relating to an age discrimination claim: “We have held that employment decisions motivated by factors other than age (such as retirement eligibility, salary, or seniority), even when such factors correlate with age, do not constitute age discrimination.”).

L.J. next attempts to support her sex discrimination claim with evidence that Irons treated male P.E. students differently than female P.E. students. To the extent that L.J. purports to make a “disparate treatment” argument, the evidence she relies upon does not support such a theory. Under a “disparate treatment” theory of discrimination, a “plaintiff must show ‘that he or she was treated differently from similarly situated members of the unprotected class.’ ” Cox v. Kan. City Chiefs Football Club, Inc., 473 S.W.3d 107, 119-20 (Mo. banc 2015) (quoting Alexander v. Local 496, Laborers’ Int'l Union of N. Am., 177 F.3d 394, 402-03 (6th Cir. 1999)). “In determining whether coworkers were ‘similarly situated,’ courts analyze factors including whether the same supervisor imposed the discipline, whether the coworkers were subject to the same standards, whether they engaged in conduct of similar seriousness, and similar factors.” Id. at 119.

L.J. presented the testimony of two witnesses who were also in freshmen P.E. classes in 2019, but neither of these witnesses identified any male student who engaged in the same conduct as L.J. in the presence of Irons and was treated more favorably. Rather, R.P. provided generalized, speculative testimony that male students would not get disciplined by any of the P.E. teachers (male or female) for opening gym doors, engaging in “nut-tap Tuesday,” and making inappropriate sexual jokes to each other, whereas R.P. “fe[lt] like if girls were to do that, [they] would've gotten in trouble” and “if a girl did something,” “it was immediately shut down.” When pressed to give an example of Irons “correcting one of the female students,” the only instance R.P. recalled was a time when she was “standing there one day and someone had said something to another student. And Irons said something like don't say that.”

This was not substantial evidence demonstrating that L.J. was treated differently than similarly situated male students, in that it did not identify specific instances of similar misconduct by male students that was observed by Irons and which Irons treated more favorably. Cf. Rowles v. Curators of Univ. of Mo., 983 F.3d 345, 360 (8th Cir. 2020) (male plaintiff's discrimination claim that he received disparate punishment as compared to a similarly situated female and that such punishment was motivated by sex failed because the plaintiff did not sufficiently allege that a female in similar circumstances was treated more favorably). Generalized testimony that male students were not disciplined by P.E. teachers, without specific examples of favorable treatment by Irons for similar misconduct, was insufficient to support a reasonable inference of discrimination.

L.J. did not present substantial evidence to support her claim that her sex was the motivating factor for the discrimination and harassment she alleges she suffered. As a result, she did not make a submissible case for sex discrimination, and the trial court did not err in directing a verdict in School District's favor.

Point III is denied.

Point IV – Directed Verdict: Aiding and Abetting Discrimination

In her final point, L.J. argues the trial court erred in directing a verdict in School District's favor on her claim of aiding and abetting discrimination. However, given our disposition of her other points on appeal, we find L.J. did not suffer prejudice from the trial court's grant of a directed verdict, as she has failed to establish an underlying violation of the MHRA.

Section 213.070.1(1) provides that it is “an unlawful discriminatory practice” to “aid, abet, incite, compel, or coerce the commission of acts prohibited under this chapter or to attempt to do so[.]” This section thus prohibits aiding or abetting another to commit an act prohibited under the MHRA, or attempting to aid or abet another to commit an act prohibited under the MHRA. Under either scenario, liability of the aiding-or-abetting party is dependent on the existence of an act prohibited by the MHRA. In other words, where no violation of the MHRA has been established, a party cannot be held liable for aiding or abetting, or attempting to aid or abet, a violation of the MHRA. See Markham v. Wertin, 861 F.3d 748, 755-56 & n.2 (8th Cir. 2017) (To state a claim against Wertin for aiding and abetting under section 213.070.1(1), the plaintiff “must show that [the union] committed acts prohibited under the MHRA and that Wertin aided and abetted the commission of those acts,” thus the plaintiff “will have to prove an underlying violation of the MHRA by [the union] to prove his aiding-and-abetting claim against Wertin.”).¹³

Here, L.J. has failed to establish a violation of the MHRA. The jury found in favor of School District on L.J.’s retaliation claim, and the trial court granted a directed verdict in School District's favor on her discrimination and hostile school environment claims. We are affirming these verdicts on appeal. Because L.J. has failed to establish a violation of the MHRA, School District cannot be held liable for aiding or abetting a violation of the MHRA.

“We review the trial court's granting of a directed verdict for prejudice, not mere error,” and we will affirm a trial court's grant of directed verdict “if it is clear that the directed verdict did not prejudice the plaintiff.” Cedar Fair, L.P., 702 S.W.3d at 129. Here, because L.J. cannot prevail on her claim for aiding and abetting discrimination, we need not determine if the trial court erroneously granted her motion for directed verdict, as any error in the trial court's grant of directed verdict did not prejudice L.J. See id.

For this reason, Point IV is denied.

Conclusion

The judgment of the trial court is affirmed.

FOOTNOTES

1.   In her First Amended Petition, L.J. alleged that Irons “proceeded to strangle/choke her by the throat.” L.J.’s trial testimony, however, was that Irons roughly put her hand around her neck or throat.

2.   The video was played for the jury multiple times at trial. The video was not provided to this Court on appeal.

3.   The prosecutor declined to bring charges against Irons.

4.   “If an objection to the proffered evidence is sustained, the proponent must then make an offer of proof in order to preserve the record for appeal and to allow the trial court to consider further the claim of admissibility.” O'Haver, 698 S.W.3d at 739.

5.   L.J.’s medical records were discussed at a pre-trial hearing, but she did not move to admit any of them at trial. She attached sixty pages of medical records to her motion for new trial, including the two treatment notes she described during her offer of proof. On appeal, she only addresses the two treatment notes in the medical records.

6.   Again, we note that L.J. did not move to admit her medical records into evidence, thus the trial court did not exclude them. Nonetheless, for purposes of our analysis, we will treat the records as being excluded by the trial court.

7.   At the time of trial, L.J. was nineteen years old and had graduated high school.

8.   During Mother's direct testimony, L.J.’s counsel advised the trial court—outside the hearing of the jury—that he was “not trying to directly ask her what [L.J.’s] diagnosis was,” but inquired whether he could “get into what she did after she had learned her daughter being [sic] emotionally distraught.” The trial court responded, “that she took her to a counselor or something like that, sure, you can do that.”

9.   Although the standard to sustain a motion for directed verdict is demanding, contrary to L.J.’s contention on appeal, there is no presumption in favor of reversing a trial court's grant of a motion for directed verdict. See Apperson, 727 S.W.3d at 426 n.3.

10.   All statutory references are to RSMo 2016 as currently supplemented.

11.   L.J. does not cite any case recognizing a “hostile school environment” claim based on a teacher or school district's discrimination or harassment of a student. In Doe ex rel. Subia v. Kansas City, Missouri School District, we did recognize, as a matter of first impression, that a school district could be held liable under the MHRA for its failure to stop student-on-student sexual harassment, when the school district knew or should have known of such harassment. 372 S.W.3d 43, 51-52 (Mo. App. W.D. 2012).

12.   L.J. also asserts that Irons’ trial testimony was “direct evidence” of discrimination, contending Irons “admitted that she put her hands on L.J. because L.J. was one of her ‘girls.’ ” That was not, however, Irons’ testimony. During trial, L.J.’s counsel asked Irons if she told Athletics Director that she “thought [she] could put [her] hands on [L.J.] because she was one of [her] volleyball girls.” Irons denied making that statement. L.J.’s counsel then attempted to impeach Irons with her deposition testimony, but the question asked during the deposition was, “Do you remember whether or not you told [Athletics Director] that you had the relationship with her because she was one of your volleyball girls?” This prompted an “improper impeachment” objection from Defendants and L.J.’s counsel agreed to “move on to something else.”

13.   In making this determination, the Eighth Circuit cited cases from New York and Minnesota addressing aiding-and-abetting claims under their respective state anti-discrimination statutes and determining that a prohibited discriminatory act was a prerequisite to an aiding-and-abetting claim. See Markham, 861 F.3d at 755-56. The New York and Minnesota statutes are substantively identical to the MHRA. Compare § 213.070.1(1), RSMo (It shall be an unlawful discriminatory practice to “aid, abet, incite, compel, or coerce the commission of acts prohibited under this chapter or to attempt to do so[.]”), with N.Y. Exec. Law § 296(6) (“It shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or to attempt to do so.”), and Minn. Stat. § 363A.14 (“It is an unfair discriminatory practice for any person: (1) intentionally to aid, abet, incite, compel, or coerce a person to engage in any of the practices forbidden by this chapter; [or] (2) intentionally to attempt to aid, abet, incite, compel, or coerce a person to engage in any of the practices forbidden by this chapter[.]”).

EDWARD R. ARDINI, JR., JUDGE

All concur.