employment & labor law for the year 2013

Employment & Labor Law Update

Presented by: Dan O’Toole

Thomas v. McKeever’s Enterprises, Inc. ___ S.W.3d ___,2012 WL 4771364 (Mo. App. 2012)

At conclusion of MHRA age discrimination trial, court submitted MAI 31.24:

• Your verdict must be for Plaintiff if you believe: − First, Defendant discharged Plaintiff, and

− Second, Plaintiff’s age was a contributing factor in such discharge, and

− Third, as a direct result of such conduct, Plaintiff sustained damages.

Thomas (cont.)

During closing arguments, Defendant’s counsel repeatedly stated that the “real issue” is whether Plaintiff would still be working for Defendant “but for” his age. Plaintiff did not object. During rebuttal argument, Plaintiff argued “contributing

factor” standard and questioned use of “but for” causation. Defendant objected to this argument as a misstatement of the law.

Thomas (cont.)

The trial court sustained the objection and gave an oral curative instruction affirming the “but for” standard. Court of Appeals reverses. MHRA prohibits any unfair

treatment based on age and Plaintiff must only prove that age contributed to Plaintiff’s discharge.

Hill v. City of St. Louis 371 S.W.3d 66 (Mo. App. 2012)

Trial court did not abuse its discretion in: • Allowing Plaintiff’s counsel to inform jury that Sheriff

Murphy had no personal financial liability in the case.

• Allowing an expert to testify about the symbolism of a noose.

• Allowing an expert to testify about significance of EEOC guidance and reasonableness of City’s efforts to prevent harassment and discrimination.

• Remitting punitive damages from $350,000 to $75,000.

• Awarding $326,000 in attorney fees rather than the $421,270.25 requested.

Reed v. McDonald’s Corporation 363 S.W.3d 134 (Mo.App. 2012)

Teenage restaurant worker alleged that she was sexually harassed by Assistant Manager. Reed complained and was offered but declined a transfer. Assistant Manager was suspended and eventually terminated

but visited the restaurant during his suspension and while Reed was working.

Reed (cont.) Factual issue on the Farragher defense:

1) Defense requires proof that employer exercised reasonable care to prevent and promptly correct any harassing behavior; and

2) Employee failed to take advantage of preventative or corrective opportunities provided by the employer or to avoid harm otherwise.

− Franchisee provided Reed a copy of its policies.

− Franchisee posted anti-harassment posters.

− Franchisee immediately suspended and then terminated Assistant Manager after the complaint against him.

Reed (cont.)

− Reed testified “that she does not recall that Franchisee’s policies were explained to her.”

− Franchisee allowed Assistant Manager to visit restaurant during his suspension.

− Franchisee failed to protect her privacy from the employees regarding Reed’s sexual encounters with the Assistant Manager.

Grissom v. First National Insurance Agency 364 S.W.3d 728 (Mo. App. 2012)

Grissom alleged that Welker (the sole owner) sexually harassed her until he received a letter from Grissom’s attorney asking him to stop. Grissom was fired 180 days after Welker received the

attorney’s letter. Trial court granted summary judgment on the sexual

harassment claim because Grissom testified in deposition that the harassment stopped after Welker received her attorney’s letter. Welker denied receiving the letter.

Grissom (cont.)

Court of Appeals reversed. Grissom’s termination could be viewed as part of a continuing violation. Only one act within a continuing violation needs to be timely. Lesson: No good deed goes unpunished. Letter of

recommendation Welker wrote after Grissom’s termination is proof undercutting Welker’s justification for termination.

Farrow v. St. Francis Medical Center 2012 WL 451882 (Mo. App. 2012)

Farrow given notice of discharge on December 10, 2008. Farrow files a grievance which goes through a five step

grievance process and is finally rejected on March 2, 2009. Farrow filed a charge of sexual harassment and retaliation

with the MCHR on July 27, 2009 and thereafter files a lawsuit.

Farrow (cont.)

Circuit Court grants summary judgment against Farrow because her claims are time-barred. Court of Appeals affirms. The grievance procedure, by its nature, is a remedy for a prior

decision and the employment relationship was already severed by the discharge.

Tate v. AutoZoners, LLC 363 S.W.3d 179 (Mo. App. 2012)

Tate filed a sexual harassment case under the MHRA and obtained a $10,000 verdict. Tate’s attorney sought $229,000 in attorneys fees and costs

which the trial court, without explanation, reduced to $129,000. The trial court did not abuse its discretion.

Hervey v. Missouri Department of Corrections 379 S.W.3d 156 (Mo. banc 2012)

Trial court erred in giving instruction patterned after MAI 31.24 • Your verdict must be for the Plaintiff if you believe:

− First, Defendant discharged Plaintiff;

− Second, disability was a contributing factor in such discharge;

− Third, as a result of such conduct, Plaintiff sustained damage. Jury instruction was erroneous because it did not require jury to

find the Plaintiff was “disabled,” which is an essential element of Plaintiff's claim.

Supreme Court reverses judgment and remands the case for trial.

Hervey (cont.)

510.265 RSMo. limits punitive damages to the greater of: 1. $500,000; or

2. “five times the net amount of the judgment awarded to Plaintiff against Defendant.”

Hervey sued for disability discrimination and won: $127,056 in actual damages $36,288 in front pay $97,382.50 in attorney fees $260,726.50 + $2,500,000 in punitive damages

Hervey (cont.)

Trial court correctly included attorneys fees in determining the “net amount of judgment” and reduced punitive damages to $1,303,632.50 ($260,726.50 x5)

Doe v. Kansas City, Missouri School District 372 S.W.3d 43 (Mo. App. 2012)

Doe alleges that he was sexually harassed and assaulted by a fellow student. Doe alleged that administrators and teachers were aware of

the conduct but failed to protect him. Doe sued under the MHRA but the Circuit Court dismissed the

Doe (cont.)

The MHRA provides “all persons…shall be entitled to the full and equal use and enjoyment within this state of any place of public accommodation…without discrimination or segregation…on the grounds of…sex.” “Public accommodations” are “places of business offering or

holding out to the general public, goods, services, privileges, facilities, advantages or accommodations for the peace, comfort, health, welfare and safety of the general public or such public places providing food, shelter, recreation and amusement.”

Doe (cont.)

Court of Appeals finds that school is a place of public accommodation and reverses dismissal of Doe’s claims. School District will be liable if it knew or should have known

of actionable harassment and failed to take prompt and effective remedial action.

Marzette v. Anheuser-Busch, Inc. 371 S.W.3d 49(Mo. App. 2012)

Security guards sued Anheuser-Busch in state court for discrimination under the MHRA. As part of application process, guards agreed to arbitration as

exclusive remedy for any disputes. Trial court denied Anheuser-Busch’s motion to compel

arbitration.

Marzette (cont.)

Arbitration agreements must contain the elements of a valid contract: offer, acceptance, bargained-for-consideration. Anheuser-Busch’s willingness to consider applicant for

employment does not constitute consideration. Anheuser-Busch’s offer of employment cannot constitute

consideration because it was not the motive for the promise to arbitrate.

• Application said: “no promise regarding employment has been made.”

Jones v. Paradies 380 S.W.3d 13 (Mo. App. 2012)

Plaintiff brought suit against directors of a corporation in their individual capacities alleging tortious interference with contract between Plaintiff and corporation. Individual defendants sought to compel arbitration pursuant

to arbitration clause in contract between Plaintiff and corporation. Individual defendants were not signatories to contract

containing arbitration provision and therefore could not compel arbitrations.

Elements of fairness • knowledge of rules

• knowledge of consequences

• conduct

• sufficient investigation

• warnings (if appropriate)

• consistency

You Should be Able to Demonstrate That You Have Treated the Employee Fairly

Hunter v. United Parcel Service, Inc. 697 F.3d 697 (8th Cir. 2012)

Woman with gender identity disorder applied for employment with UPS. After her application was rejected, she sued for

discrimination on the basis of gender, sexual orientation and disability. UPS’ ignorance of Hunter’s disorder shields it from

discrimination liability.

Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives EEOC Appeal No. 0120120821 (April 20, 2012)

Male applicant sought position at the ATF’s crime lab. ATF rejected application after learning that he was in the

process of transitioning to a woman. Applicant was told that position was eliminated due to

budget cuts but later learned that someone else had been hired. EEOC found that applicant stated viable claim for gender

discrimination.

Marez v. Saint-Gobain 688 F.3d 958 (8th Cir. 2012)

Marez discharged within weeks of informing her employer of her impending need for FMLA leave. Marez sues for violation of FMLA and shows that others who

engaged in the same conduct were not discharged. Marez awarded $413,000 in damages plus over $100,000 in

attorney’s fees. Decisionmaker’s ignorance of Marez’s request for FMLA is not

a defense because of the “cat’s paw” theory.

Nigro v. St. Joseph Medical Center 371 S.W.3d 808 (Mo. App. 2012)

Potential employer contacts St. Joseph seeking information regarding Nigro’s employment. St. Joseph provides honest information regarding Nigro’s

numerous deficiencies. Potential employer rejects Nigro’s application and Nigro sues

for defamation. St. Joseph eventually obtains dismissal of Nigro’s lawsuit

based on the truthfulness of its response and the release contained in the reference request.

Templemire v. W&M Welding, Inc. ___ S.W.3d __, 2012 WL 6681950 (Mo. App. 2012)

Until the Missouri Supreme Court instructs otherwise, courts must continue to apply the “exclusive cause” standard to workers compensation retaliation suits.

House Bill 1540

Amends workers compensation statute to legislatively overrule Hooker v. Robinson which excluded co-workers from exclusivity bar. Recovery against co-worker still available if co-worker

“engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.” HB 1540 passed by a veto-proof majority and Governor has

signed it into law.

Wyman v. Missouri Department of Mental Health 376 S.W.3d 16 (Mo. App. 2012)

Workers Compensation retaliation claim against the state under §287.780 barred by sovereign immunity.

Coleman v. Court of Appeals of Maryland 132 S. Ct. 1327 (2012)

Coleman brought FMLA action against state entity claiming improper denial of leave of self-care. District Court dismissed based on sovereign immunity and

Fourth Circuit affirmed. States are immune from suits for damages unless they waive

immunity or Congress validly abrogates immunity.

Coleman (cont.)

U.S. Supreme Court held in 2003 that Congress could subject states to liability under the family-care provisions of the FMLA.

• Decision rested on evidence of gender discrimination by states in family leave policies.

Here, there is no evidence of a pattern of state violations relating to self-care so Congress lacked authority to abrogate sovereign immunity for self-care provisions of the FMLA.

EEOC Strategic Enforcement Plan

Recruiting and hiring practices • Intentional discrimination and disparate impact

Protecting vulnerable workers (immigrants, disabled, youths) • Educating employees about their rights

Emerging issues • ADAAA (accommodation, undue hardship, direct threat)

• Lesbian, gay, bisexual, transgender issues Harassment

EEOC Guidance on Use of Criminal History in Employment Decisions

EEOC suggests that ban on hiring applicants who have a conviction or an arrest record violates Title VII.

− Based on racially disparate impact. EEOC suggests that arrests should never be considered because

there is no evidence of guilt. EEOC suggests that disqualification based on a conviction must

consider the: − Nature of the crime − Time elapsed since conviction − Nature of job sought

www.eeoc.gov/laws/guidance/arrest_conviction

Contact Information

Dan O’Toole dotoole@armstrongteasdale.com

314.621.5070

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