TUETH KEENEY COOPER MOHAN & JACKSTADT P.C. Association of Corporate Counsel The Anatomy of an MHRA Claim: From the Administrative Charge through Jury Verdict November 21, 2013 Presented by Ian P. Cooper, Esq. (314) 880-3605 icooper@tuethkeeney.com Melanie Gurley Keeney, Esq. (314) 880-3611 - mkeeney@tuethkeeney.com
Ian P. Cooper is a founding Shareholder of the Firm of Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C. Prior to founding the Firm, Ian was a partner at Blackwell Sanders Peper Martin (now Husch Blackwell Sanders, LLP) in its St. Louis office. Before entering private practice, Ian served as Law Clerk to the Hon. James F. Warren of the Texas Court of Appeals, First Supreme Judicial District, in Houston, Texas from 1984-1985. Ian practices in the areas of employment, higher education, commercial, and tort litigation. Ian has tried numerous jury and bench trials in federal and state courts in Missouri and Illinois. Ian has served as lead counsel in significant employment, tort and commercial cases, including class actions and other complex litigation. Ian has also argued cases before the Missouri Supreme Court, the Illinois Supreme Court, the Missouri Court of Appeals, the Illinois Appellate Court, and the United States Courts of Appeal for the Seventh and Eighth Circuits. Ian also recently submitted an Amicus Brief in the United States Supreme Court in Vance v. Ball State University. Ian has been recognized as a 2009, 2010, 2011, 2012, and 2013 Missouri & Kansas Super Lawyer in employment litigation. Ian serves as the Chairman of the Firm s Management Committee. Ian P. Cooper Shareholder Education J.D., Washington University School of Law, 1984, Notes and Comments Editor, Washington University Journal of Urban and Contemporary Law B.A., Rice University, 1981
Melanie Gurley Keeney is a founding Shareholder of the Firm of Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C. and serves on the Firm s Management Committee. She practices in the areas of Employment, Immigration, and Education law. Melanie represents institutions of higher education, corporations and individuals in immigration law matters, including obtaining nonimmigrant and immigrant visas and handling employer sanctions issues, I-9 compliance, E-Verify issues, consular processing and naturalization. She frequently speaks on immigration, labor and education issues. Melanie has been listed in St. Louis Magazine s St. Louis Best Lawyers and The Best Lawyers in America, from 1997-2013, and in Missouri & Kansas Super Lawyers, 2005-2013 editions as a top lawyer and has been listed as one of the top 50 female lawyers in Missouri and Kansas and in Kansas City Magazine as one of the Top Missouri Lawyers. Ms. Keeney was also named the Best Lawyers 2012 St. Louis Immigration Law Lawyer of the Year. Melanie also represents public and private employers regarding employment discrimination charges and lawsuits, wage-hour compliance, disability issues, constitutional matters, and student issues, and provides preventive employment law services, including supervisor training programs and employment compliance audits. Melanie handles discrimination and retaliation claims asserted under Title VII, the ADA, ADEA, FMLA, Section 1983, the MHRA, sexual harassment, and other federal/state employment claims. Melanie Gurley Keeney Shareholder Education J.D., Washington University School of Law, 1990, Notes and Topics Editor, Journal of Urban and Contemporary Law B.A., Baylor University, magna cum laude, 1987, Phi Beta Kappa
THE CASE STUDY: Sinclair v. Charter Communications, 2013 U.S. Dist. LEXIS 150586 (E.D. Mo. October 21, 2013) In-house counsel liability under the MHRA Retaliation broadened Removal issues discussed
Sinclair v. Charter Comm s Facts asserted in Plaintiff s Petition (from Court s opinion): Sinclair was Senior Director of HR Dykhouse was GC and Senior VP Sinclair complained about age related comments and gender biased treatment by his supervisor Pfeiffer Dykhouse was assigned to manage the investigation with assistance of outside counsel As part of a restructuring, Sinclair was offered a relocation to NYC
Sinclair v. Charter Comm s (cont d) Sinclair was given a firm deadline of August 20 to accept or reject the relocation Sinclair requested an extension due to the pending investigation Dykhouse responded and refused to extend the deadline
Sinclair v. Charter Comm s (cont d) Sinclair s job was moved to NYC and another person was hired after Sinclair indicated he intended to accept the relocation Sinclair filed a Charge with the MCHR A week later, Sinclair was placed on leave and told his job would end in three months
Sinclair v. Charter Comm s (cont d) Sinclair filed suit in state court and named Charter and Dykhouse. Defendants removed to federal court Sinclair moved to remand Dykhouse claimed that he could not be sued as in-house counsel privilege issues, not supervisor under the MHRA District Court denied Dykhouse s motion
Sinclair v. Charter Comm s (cont d) Court held that no decision had been made by Missouri Courts as to whether the MHRA covers in-house counsel But the A/C privilege does not insulate counsel from all employment discrimination lawsuits Held it is possible that Missouri may impose liability on in-house counsel
Sinclair v. Charter Comm s (cont d) Dykhouse also claimed he was not a supervisor and thus not an employer subject to liability under the MHRA The Court rejected that claim and noted that the anti-retaliation provisions of the MHRA are exceedingly broad Again, the Court held that state law might impose liability on non-supervisors for retaliation
THE ADMINISTRATIVE PHASE: EVALUATION OF THE CHARGE OF DISCRIMINATION Analysis of the Charge: Are the claims covered by the MHRA? Employment discrimination? Places of public accommodation? Washington University v. MCHR Are you an employer? Attorneys - Dykhouse? Is the Charge timely?
WHO IS AN EMPLOYEE UNDER THE MHRA? Analysis of the Charge: Is the complainant an employee under the MHRA? Independent contractors versus employees: Howard v. City of Kan. City, 332 S.W.3d 772 (Mo. 2011) Sloan v. Bankers Life & Cas. Co., 1 S.W.3d 555 (Mo. App. 1999)
WHO IS A JOINT EMPLOYER? Tolentino v. Starwood Hotels, 2013 Mo. App. LEXIS 409 (Mo. App. April 2, 2013)(non MHRA) if the facts establish that the employee is employed jointly by two or more employers, i.e., that employment by one employer is not completely disassociated from employment by the other employer(s), all of the employee's work for all of the joint employers during the workweek is considered as one employment for purposes of the Act. 29 C.F.R. 791.2
WHAT SHOULD YOU DO IF YOU BELIEVE THE MCHR LACKS JURISDICTION? Farrow v. Saint Francis Medical Center, 407 S.W.3d 579 (Mo. 2013) MCHR required to promptly investigate Charges and determine jurisdiction If the MCHR issues a Notice of Right to Sue, it has effectively determined it has jurisdiction Any party wishing to challenge the jurisdiction of the MCHR must do so IMMEDIATELY at the Charge stage or through a Writ of Mandamus
WHAT COULD HAVE BEEN DONE IN SINCLAIR? Should Dykhouse have challenged the jurisdiction of the MCHR? How would he go about doing so? Writs of Prohibition Declaratory judgment actions
HOW IS THE MCHR HANDLING CHARGES POST-FARROW? Increased scrutiny of jurisdiction Dismissal of Charges for lack of jurisdiction Revocation of Notices of Right to Sue that were improperly issued
RESPONDING TO THE CHARGE Legal Hold procedures MCHR / EEOC Investigation: How detailed will the investigation be current practice before the MCHR? Will the MCHR conduct witness interviews and what rights do you have regarding the interviews? Requiring subpoenas Challenging subpoenas
RESPONDING TO THE CHARGE Position Statements: how detailed should you be in your response? Responding to requests for information: should you challenge the requests?
MEDIATIONS DURING THE ADMINISTRATIVE PHASE Pros and cons? Can you choose your mediator?
A NOTICE OF RIGHT TO SUE HAS BEEN ISSUED: WHAT IS NEXT? Administrative challenges post- Farrow Proactive versus passive strategy
AN MHRA LAWSUIT IS FILED WHAT NOW? Jurisdictional issues Removal? Pretensive joinder of individual defendants what is an employer - Sinclair Update Legal Hold documentation
MCHR CLASS ACTIONS Charges must reference representation of a class Limit, Segregate or Classify prong of the MHRA Affirmative action plans under the MHRA and reverse discrimination claims
MHRA SUMMARY JUDGMENT Recent case offers a glimmer of hope: Reed v. McDonalds Corp., 363 S.W.3d 134 (Mo. App. 2012) (affirming summary judgment and holding that nothing in the record supports a finding that Davis was in a position directly overseeing the alleged discriminatory conduct of which Reed complains. )
MHRA JUDGMENTS AND VERDICTS Recent Verdicts Laclede Gas $3.675 M whistleblower case Attorneys Fees High hourly rates approved Damage Caps 510.265. 1. No award of punitive damages against any defendant shall exceed the greater of: (1) Five hundred thousand dollars; or (2) Five times the net amount of the judgment awarded to the plaintiff against the defendant.
LESSONS LEARNED: PREVENTING MHRA CLAIMS AND MANAGING RISK HR Policies Investigations Resolution Follow up Documentation
QUESTIONS? ANSWERS?
Ian P. Cooper, Esq. icooper@tuethkeeney.com Melanie Gurley Keeney, Esq. mkeeney@tuethkeeney.com Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C. Main: 314-880-3600 Fax: 314-880-3601 www.tuethkeeney.com TUETH KEENEY COOPER MOHAN JACKSTADT, P.C.