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 (cont.)
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
suit.


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.


You Should be Able to Demonstrate That
You Have Treated the Employee Fairly
 Elements of fairness
• knowledge of rules
• knowledge of consequences
• conduct
• sufficient investigation
• warnings (if appropriate)
• consistency


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


Employment & Labor Law for the Year 2013

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