Jennifer Kubinak, Appellant, v. Board of Regents, Southeast Missouri State University, Respondent.

• Court: Missouri Court of Appeals
• Decided: August 19, 2025
• Docket: ED113153
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION FOUR

JENNIFER KUBINAK, ) No. ED113153 ) Appellant, ) Appeal from the Circuit Court ) of the Cape Girardeau County v. ) Cause No. 20CG-CC00074 ) BOARD OF REGENTS, SOUTHEAST ) Honorable Benjamin F. Lewis MISSOURI STATE UNIVERSITY, ) ) Respondent. ) Filed: August 19, 2025

OPINION

Jennifer Kubinak appeals the circuit court’s judgment granting summary judgment in the

Board of Regents, Southeast Missouri State University’s favor on her allegations of violations of

the Missouri Human Rights Act, section 213.010 et seq., RSMo 2016, 1 for age and sex

discrimination and retaliation. The circuit court’s judgment is affirmed.

Background

Kubinak is a 64-year-old woman employed by the University. Kubinak began working

for the University in January 2016 as a Learning Management System Programmer. Kubinak’s

male supervisor was over the age of 40. In July 2018, the University restructured its information

1 All further statutory references are to RSMo 2016, as supplemented. technology department. Kubinak’s position was moved to a different department, but there was

no change to her job title or compensation. However, Kubinak then reported to a female director

who was over the age of 40.

In March 2019, Kubinak applied for, and was offered, a promotion to Application

Programmer. The University’s compensation offer was for 85 percent of the median salary.

Kubinak negotiated with the University and accepted the position with her compensation set at

93 percent of the median salary. Since accepting this position, Kubinak has not been demoted,

her compensation has not decreased, and she has not applied for another position.

In May 2019, Kubinak filed a charge of discrimination with the Missouri Human Rights

Commission. Kubinak alleged discrimination based on sex and age. Sometime thereafter, the

University commissioned a pay equity study.

Kubinak filed a petition in the circuit court alleging the University violated the Act’s

prohibition on sex and age discrimination and retaliation. The University moved for summary

judgment. Kubinak denied the University’s statement of uncontroverted material facts, and

supplied a statement of additional facts in dispute. The circuit court sustained the University’s

summary judgment motion. Kubinak appeals.

Standard of Review

“This Court reviews a circuit court’s grant of summary judgment de novo.” Sachtleben v.

Alliant Nat’l Title Ins. Co., 687 S.W.3d 624, 629 (Mo. banc 2024). When considering an appeal

from summary judgment, this Court applies the same criteria as the circuit court in determining

whether granting summary judgment was appropriate. Green v. Fotoohighiam, 606 S.W.3d 113,

115 (Mo. banc 2020). The record is viewed in the light most favorable to the party against whom

judgment was entered and affords that party the benefit of all reasonable inferences. Weeks v. St.

2 Louis Cnty., 696 S.W.3d 333, 338 (Mo. banc 2024). Summary judgment is appropriate when the

record demonstrates there are no genuine issues of material fact and the moving party is entitled

to judgment as a matter of law. Id.

Rule 74.04 governs summary judgment practice. “Summary judgment is proper only if

the moving party establishes that there is no genuine issue of material fact and that the movant is

entitled to judgment as a matter of law.” Templeton v. Orth, 685 S.W.3d 371, 374 (Mo. banc

2024). The movant may accomplish this by attaching a statement of uncontroverted material

facts to the summary judgment motion. Rule 74.04(c)(1). The uncontroverted material facts must

“state with particularity in separately numbered paragraphs each material fact as to which

movant claims there is no genuine issue, with specific references to the pleadings, discovery,

exhibits or affidavits that demonstrate the lack of a genuine issue as to such facts.” Id.

Once the movant makes this showing, the non-movant must file a response to admit or

deny each of the movant’s material facts. Rule 74.04(c)(2). “A denial may not rest upon the mere

allegations or denials of the party’s pleading. Rather, the response shall support each denial with

specific references to the discovery, exhibits or affidavits that demonstrate specific facts showing

that there is a genuine issue for trial.” Id. If the response fails to comply with Rule 74.04(c)(2),

that statement is deemed to be an admission of truth. Id. The non-movant “may set forth

additional material facts that remain in dispute … in the manner prescribed by Rule 74.04(c)(1).”

Id.

If the non-movant asserts additional disputed material facts, the movant shall respond to

each additional fact “in its original paragraph number and immediately thereunder admit or deny

each such factual statement.” Rule 74.04(c)(3). Any denial must be supported as in Rule

74.04(c)(2). Id.

3 The Act

Section 213.055.1(1)(a) provides that it is an unlawful employment practice “to

discriminate against any individual with respect to his [or her] compensation, terms, conditions,

or privileges of employment, because of ... sex, [or] age ....” Appellate review of cases arising

under the Act is “guided by both Missouri law and any federal employment discrimination (i.e.,

Title VII [of the Civil Rights Act of 1964]) case law that is consistent with Missouri law.”

Matthews v. Harley-Davidson, 685 S.W.3d 360, 366 (Mo. banc 2024) (quoting Lampley v. Mo.

Comm’n on Hum. Rts., 570 S.W.3d 16, 22 (Mo. banc 2019)).

Sex Discrimination

Kubinak claims the circuit court erred in entering summary judgment in the University’s

favor on her sex discrimination claim because there were genuine issues of material fact in

dispute. Kubinak argues there was a dispute regarding whether she was paid less than similarly

situated male employees.

The Act provides it is an unlawful employment practice for an employer to discriminate

on the basis of sex. Section 213.055.1(1)(a). An employee establishes a prima facie case of sex

discrimination in the workplace when the employee demonstrates: “(1) the employee was a

member of a protected class; (2) the employee was qualified to perform the job; (3) the employee

suffered an adverse employment action; and (4) the employee was treated differently from other

similarly situated employees of the opposite sex.” Lampley, 570 S.W.3d at 24.

Rule 74.04(c)(2) required Kubinak to either admit or deny each of the University’s

material facts. Kubinak’s response needed to “support each denial with specific references to the

discovery, exhibits or affidavits that demonstrate specific facts showing that there is a genuine

issue for trial.” Id. “Affidavits in opposition to motions for summary judgment must be made on

4 personal knowledge, set forth facts as would be admissible in evidence, and show that the affiant

is competent to testify.” Stanbrough v. Vitek Sols., Inc., 445 S.W.3d 90, 99 (Mo. App. 2014).

“Conclusory allegations are not sufficient to raise a question of fact in summary judgment

proceedings.” Id. (quoting Syngenta Crop Prot., Inc. v. Outdoor Equip. Co., 241 S.W.3d 425,

428 (Mo. App. 2007)).

Kubinak did not establish there was a genuine issue of material fact demonstrating she

suffered an adverse employment action or that she was treated differently from other similarly

situated male employees because she failed to set forth admissible evidence demonstrating a

genuine dispute of material fact. The only evidence in the summary judgment record that any

similarly situated male employees were paid more than Kubinak comes from Kubinak’s own

self-serving affidavit. It is unclear from that affidavit how Kubinak knows the salaries or job

duties of her co-workers. As a result, Kubinak has not demonstrated that she is competent to

testify about this information. In addition, Kubinak’s affidavit fails to set forth any details of the

male employees’ jobs that demonstrate they are, in fact, similarly situated. When assessing a

motion for summary judgment we must necessarily take all inferences in favor of the non-

moving party, but that does not relieve the non-movant from setting forth some admissible

evidence to support the genuinely disputed facts. If the non-movant cannot present that evidence,

there is no triable issue, and summary judgment is appropriate.

It is conceivable that something somewhere in the summary judgment record, which

consists of depositions of other individuals as well as Kubinak’s affidavit, supports Kubinak’s

statements. But Kubinak’s response to the University’s statement of uncontroverted material

facts did not specify where in the record this Court could locate this evidence nor did this Court

discover any fact supporting Kubinak’s position when it reviewed the record on appeal. Kubinak

5 was required to “support each denial with specific references to the discovery, exhibits or

affidavits that demonstrate specific facts showing that there is a genuine issue for trial.” Rule

74.04(c)(2) (emphasis added). This Court has no duty to search through Kubinak’s exhibits to

discover facts that would create genuine issues for trial. Jimmy Jones Excavation, Inc. v. JDC

Structural Concrete, LLC, 404 S.W.3d 922, 924 (Mo. App. 2013). That obligation falls squarely

on Kubinak and her counsel, which they failed to do.

Kubinak also references the pay equity study conducted by the University and suggests

that the existence of the study demonstrates she was discriminated against. Kubinak’s citations to

the record do not support this conclusion. The deposition testimony cited by Kubinak

demonstrates that the University commissioned a pay equity study to determine how its

compensation compared with private industry salaries. The testimony also shows that the

University adjusted salaries in accordance with that study. Kubinak fails, however, to set forth

facts connecting this study to the discrimination she alleges. No paragraph in Kubinak’s

statement of additional material facts states that the pay equity study found that Kubinak’s salary

was less than similarly situated male employees. In fact, Kubinak’s statement of additional facts

says that the study did not result in a raise for any internal employee. Further, the study was not

submitted as part of the summary judgment record. And in any event, the testimony that Kubinak

cites in support of her statements about the equity study supports little more than the fact that a

study occurred. If the depositions in this case support more than that, it was Kubinak’s obligation

to identify the locations in the testimony where this information could be found. Kubinak failed

to do so.

Additionally, some of Kubinak’s denials also include explanations that are not supported

by any reference to any discovery, exhibit, or affidavit as required by Rule 74.04(c)(2). For

6 example, in one response Kubinak stated: “Plaintiff admits that she reported to [supervisor]

following the restructuring, but adds that [supervisor] made less than men doing her same job, a

pattern evident in Plaintiff’s cause of action in this matter.” This statement is not supported by a

citation to the record, and as a result, the statement is not a proper denial of any fact stated in the

corresponding paragraph nor is it proper under Rule 74.04 to put any facts before the circuit

court. Perhaps that fact is available somewhere in the summary judgment record, but this Court

cannot act as an advocate for a party by “sift[ing] through the entire record to identify disputed

issues.” Fotoohighiam, 606 S.W.3d at 118.

Rather than develop an adequate factual record based on admissible evidence, Kubinak

relied on the statement in employment discrimination case law that “[c]aution is warranted in

employment discrimination cases particularly because they are ‘inherently fact-based and often

dependent on inference rather than on direct evidence.’” Bracely-Mosley v. Hunter Engineering

Co., 662 S.W.3d 806, 815 (Mo. App. 2023) (quoting M.W. by & through K.W. v. Six Flags St.

Louis, LLC, 605 S.W.3d 400, 409 (Mo. App. 2020). But that statement only applies if there is a

genuine dispute of disputed facts. Kubinak argues that the facts are in dispute, but she failed

entirely to provide any evidence, direct or circumstantial, of discrimination.

In short, although Kubinak’s affidavit alleges she was paid less than her coworkers on the

basis of her sex, she failed to support that theory with any competent, admissible evidence that

creates a genuine dispute of material fact. Kubinak’s nearly wholesale reliance on her personal

affidavit is insufficient to raise an issue of material fact. As a result, this is one of the rare cases

in which summary judgment is appropriate. The circuit court did not err in granting summary

judgment in the University’s favor.

Age Discrimination

7 Kubinak claims the circuit court erred in entering summary judgment in the University’s

favor on her age discrimination claim because there were genuine issues of material fact in

dispute. Kubinak argues there was a dispute regarding whether she was paid less than similarly

situated employees based upon her age. Kubinak asserts her compensation should be the same as

the other two women in her department who are over the age of 40.

The Act provides that it is an unlawful employment practice for an employer to

discriminate on the basis of age. Section 213.055.1(1)(a). For an employee to establish a prima

facie case of age discrimination in the workplace, the employee must demonstrate: (1) an adverse

employment action; (2) age was the motivating factor; and (3) damages. Eivins v. Mo. Dep’t of

Corr., 636 S.W.3d 155, 166 (Mo. App. 2021). The Act defines “age” as a person at least 40 years

old but less than 70 years old. Section 213.010(1). The Act also defines “the motivating factor”

to be when “the employee’s protected classification actually played a role in the adverse action

or decision and had a determinative influence on the adverse decision or action.” Section

213.010(19).

Kubinak did not establish there was a genuine issue of material fact demonstrating she

suffered an adverse employment action or that age was a motivating factor for all of the same

reasons she failed to demonstrate a genuine issue of material fact with respect to her sex

discrimination claim. As with her allegations of sex discrimination, Kubinak’s denials of the

University’s statement of uncontroverted material facts and her statement of additional facts in

dispute are supported by her personal affidavit and with explanations that are not supported by

any reference to discovery, exhibit, or affidavit as required by Rule 74.04(c)(2).

Again, Kubinak’s nearly wholesale reliance on her personal affidavit is insufficient to

raise an issue of material fact. Accordingly, the University’s facts are deemed to be admitted.

8 Rule 74.04(c)(2). The circuit court did not err in granting summary judgment in the University’s

favor.

Retaliation

Kubinak claims the circuit court erred in entering summary judgment in the University’s

favor on her retaliation claim because there were genuine issues of material fact in dispute.

Kubinak argues there was a dispute regarding whether University refused to pay her as similarly

situated younger male employees.

In the administrative complaint, a claimant must give notice of all discrimination claims

under the Act. Farrow v. Saint Francis Med. Ctr., 407 S.W.3d 579, 594 (Mo. banc 2013). “Each

discrete act is a different unlawful employment practice for which a separate charge is required.”

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S. Ct. 2061, 2073 (2002).

Exhaustion of remedies requires notice of all discrimination claims, but “the scope of the civil

suit may be as broad as the scope of the administrative investigation which could reasonably be

expected to grow out of the charge of discrimination.” Farrow, 407 S.W.3d at 594 (quoting

Alhalabi v. Missouri Dep’t of Nat. Res., 300 S.W.3d 518, 525 (Mo. App. 2009)).

The Act provides that it is an unlawful employment practice for an employer to retaliate

“in any manner against any other person because such person has opposed any practice

prohibited by” the Act. Section 213.070.1(2). For an employee to establish a prima facie case of

retaliation in the workplace, the employee must demonstrate: (1) the individual complained of

discrimination; (2) the employer took an adverse action; and (3) a causal relationship existed

between the complaint and the adverse action. King v. Missouri Am. Water Co., 703 S.W.3d 184,

200 (Mo. App. 2024).

9 Kubinak admits her administrative complaint did not set forth a charge for retaliation.

Kubinak argues, however, that the University was given notice of its discrimination when she

filed her complaint and this lawsuit. She also states she was retaliated against as a result of her

complaints about unequal pay. Kubinak maintains that she is paid less than similarly situated

male co-workers. However, this is the same claim of discrimination that was raised in her charge

of discrimination. Kubinak does not point to any additional discrimination or retaliation she

faced as a result of filing her complaint.

“To retaliate is to ‘inflict in return,’ and retaliation includes ‘any act done for the purpose

of reprisal that results in damage to the plaintiff ....’” McGaughy v. Laclede Gas Co., 604 S.W.3d

730, 751 (Mo. App. 2020) (quoting Walsh v. City of Kan., 481 S.W.3d 97, 106 (Mo. App.

2016)). The only allegation of discrimination Kubinak alleges that occurred after she filed her

discrimination charge was that the University refused to raise her pay commensurate with the

equity study. However, her only support for this claim is a vague reference to her personal

affidavit. 2 There are no details about the study’s findings or recommendations nor was the study

entered as an exhibit. Additionally, there is no evidence of what action the University took in

response to the study.

Kubinak fails to demonstrate that she suffered any sort of discrimination based upon her

filing of the charge of discrimination or this lawsuit. Kubinak merely relies upon her claims that

she was not paid equally when compared to similarly situated male co-workers. Since Kubinak

filed her charge of discrimination and this lawsuit, Kubinak has not been terminated or demoted,

2 Kubinak relies upon the conclusions of the University’s equity study. However, there is no indication she has any personal knowledge of the study such that she would be competent to testify about the study. Cent. Tr. & Inv. Co. v. Signalpoint Asset Mgmt., LLC, 422 S.W.3d 312, 320 (Mo. banc 2014). Further, Rule 74.04(e) requires “papers or parts thereof referred to in an affidavit shall be attached thereto” and the study was not attached to her affidavit. 10 her compensation has not decreased, and she has not applied for another position. There have

been no additional claims of discrimination that could constitute retaliation.

Kubinak fails to demonstrate a causal connection between her filing the discrimination

charge and any discrimination by the University. King, 703 S.W.3d at 200. Accordingly, the

University was entitled to summary judgment on the retaliation claim.

Conclusion

Kubinak is correct that “[s]ummary judgment seldom should be used in employment

discrimination cases, because such cases are inherently fact-based and often depend on

inferences rather than on direct evidence.” Grissom v. First Nat. Ins. Agency, 364 S.W.3d 728,

732 (Mo. App. 2012). However, in this case, Kubinak failed to present any fact that would be

admissible in evidence or that was supported by citations to the record, to overcome summary

judgment. The circuit court’s judgment is affirmed.

John P. Torbitzky, Chief Judge Robert M. Clayton III, J., and Michael S. Wright, J., concur.