Opinion
No. ED 82559
March 2, 2004
Appeal from the Circuit Court of the City of St. Louis, Honorable Patricia L. Cohen.
Jeremiah W. (Jay) Nixon, Attorney General, Deborah Bell Yates, Assistant Attorney General, Jefferson City, MO, for Appellant.
William E. Moench, William E. Moench Associates, St. Louis, MO, for Respondent.
Appellants, the Department of Labor and Industrial Relations of the State of Missouri and the Division of Workers Compensation of the Department of Labor and Industrial Relations of the State of Missouri ("Defendants"), appeal from the judgment of the Circuit Court of the City of St. Louis awarding respondent, John Igoe ("Plaintiff"), $373,577.10 in lost wages and $10,000 in compensatory damages after the case was heard with an advisory jury. We affirm.
In 1997 and again in 1999, Plaintiff applied for a position as an administrative law judge ("ALJ") or legal advisor in the City of St. Louis. The Division of Workers' Compensation is authorized to select legal advisors and administrative law judges pursuant to Section 287.610 RSMo (1998) and Section 287.615. Applicants must be, at a minimum, licensed to practice law in the State of Missouri. Plaintiff, a licensed attorney in Missouri, was sixty-three years old when he first applied for a position as an ALJ, and had been practicing as a workers' compensation attorney for twenty-seven years. Karla McLucas, the director of the Department of Labor interviewed and assessed each of the applicants. She then was instructed by the governor's staff as to which applicants should undergo background checks.
All statutory references are to RSMo 1998 unless otherwise indicated.
After Defendants failed to hire Plaintiff in 1998 and again in 2000, he brought claims under the Missouri Human Rights Act, Chapter 213 ("MHRA") and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, et seq. ("Title VII"), alleging gender discrimination, age discrimination, and retaliation. The retaliation claim was in relation to a charge Plaintiff filed with the Equal Employment Opportunity Commission and the Missouri Human Rights Commission in late 1998, which alleged age and gender discrimination in Defendants' decision not to hire him in 1998.
The gender discrimination claim is not at issue in this appeal.
The jury found in favor of Plaintiff on his 1998 age discrimination claim and his 2000 age and retaliation claims. The trial court held that the jury verdicts on the MHRA claims were advisory only. However, the trial court reviewed and then adopted the findings of the advisory jury as its own, except that it found "Plaintiff [was] entitled to a single recovery of the maximum amount under any of his four claims." Thus, the trial court found Plaintiff was entitled to recover $10,000 in compensatory damages and $373,577.10 for lost wages through the date of its judgment. Further, the trial court ordered Plaintiff instated as an ALJ and found he was entitled to time credit in the state retirement system beginning July 1, 1998 and continuing through his instatement as an ALJ. Defendants appeal.
We will discuss all further relevant facts as they pertain to the points on appeal.
In their first point on appeal, Defendants argue the trial court erred in determining that federal venue law applied.
Venue is determined solely by statute. SSM Health Care St. Louis v. Neill, 78 S.W.3d 140, 142 (Mo.banc 2002). Statutory construction is not a matter of fact, but rather a matter of law.Westwood Partnership v. Gogarty, 103 S.W.3d 152, 158 (Mo.App.E.D. 2003). As a result, our review is de novo and we give no deference to the trial court's determination of law.Id.
Initially, we note that while a writ of mandamus or prohibition may be an appropriate remedy to mount a challenge for improper venue, neither is an exclusive remedy for such a problem. Carey v. Pultizer Pub. Co., 859 S.W.2d 851, 854 (Mo.App.E.D. 1993). Therefore, Defendants are not barred from challenging venue on appeal. See Id.
Plaintiff filed claims under the MHRA and Title VII alleging age and gender discrimination. Section 213.111.1 provides that a claim under the MHRA "may be brought in any circuit court in any county in which the unlawful discriminatory practice is alleged to have occurred. . . ." Section 213.111.1. Title VII provides:
[e]ach United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this subchapter. Such an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office . . . 42 U.S.C. § 2000e-5 (f)(3).
The United States Supreme Court has held that Congress did not divest the state courts of their concurrent authority to adjudicate civil actions brought under Title VII. Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 821 (1990). However, in evaluating a venue provision similar to the Title VII provision above, the Supreme Court also found that where a federal claim is brought in state court, venue is determined by reference to the laws of the state, not the federal statute. Bainbridge v. Merchants' Miners' Transportation Co., 287 U.S. 278, 280-81 (1932). See also American Dredging Co. v. Miller, 510 U.S. 443, 453 (1994).
We agree that the venue provision in Title VII does not apply. However, in order to reach a conclusion regarding proper venue, we now must evaluate Defendants' second point on appeal in which they argue that the trial court erred in finding venue was proper in the City of St. Louis.
Specifically, Defendants argue the City was not a place where the unlawful discriminatory practice was alleged to have occurred in that the petition made no venue allegation and the factual allegations in the petition showed that the discriminatory conduct occurred in Cole County because that is where their office is located.
Where a statute contains a specific venue provision, the general venue statute is superceded. State ex rel. City of St. Louis v. Kinder, 698 S.W.2d 4, 6 (Mo.banc 1985).
In this case, Plaintiff filed claims under the MHRA and Title VII. Both of these statutes have specific venue provisions. Therefore, we must look at one of these two provisions to make our determination of venue. Because we have found the Title VII venue provision to be inapplicable in this case, the proper inquiry is whether venue is proper according to the MHRA's specific venue provision. We need not consider the general venue statute because it is superceded.
A party challenging venue bears the burden of persuasion and proof, if necessary, to show that venue is improper. State ex rel. Etter, Inc. v. Neill, 70 S.W.3d 28, 31 (Mo.App.E.D. 2002). A plaintiff is not required to plead venue. Wood v. Wood, 716 S.W.2d 491, 494 (Mo.App.S.D. 1986).
In this case, Plaintiff did not specifically plead venue. Defendants' arguments before the trial court were limited solely to the application of the general venue statute and the Title VII venue provision. Although Defendants bore the burden of persuasion, they did not make an argument that venue was improper under the MHRA. Because we have found the MHRA venue provision is the only provision properly applicable here, we also find Defendants failed to meet their burden to persuade the trial court that venue was improper in the City of St. Louis under the MHRA. Point denied.
It should be noted that this evaluation may change after July 1, 2004, because effective that date Rule 51.045 will require a party electing to file a reply to a motion for transfer for improper venue to "set forth the basis for venue in the forum." Further, "[t]he court shall not consider any basis not set forth in the reply, nor shall the court consider allegations relating to fictitious defendants. If a reply is filed, the court may allow discovery on the issue of venue and shall determine the issue." Order dated November 25, 2003, re: Rule 51.045 Transfer of Venue When Venue Improper, http://www.osca.state.mo.us/sup/index. nsf/OrdersRules?OpenView.
In their third point on appeal, Defendants argue the trial court erred in determining that they discriminated against Plaintiff in violation of the MHRA.
Although this case was tried with an advisory jury, our standard of review is still that of a bench-tried case, which is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. 1976). See Mo-Kan Teamsters Health and Welfare Fund v. Clark, 803 S.W.2d 61, 63 (Mo.App.W.D. 1990). We must sustain the trial court's judgment unless substantial evidence does not support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, at 32. We evaluate the evidence in the light most favorable to the judgment in applying this standard.City of St. Louis v. Riverside Waste Manage, 73 S.W.3d 794, 796 (Mo.App.E.D. 2002). This means that we accept all evidence favorable to the prevailing party and all reasonable inferences drawn from such evidence as true, and we disregard any contrary evidence. Higgins v. Olson, 991 S.W.2d 216, 218 (Mo.App.E.D. 1999).
In interpreting the MHRA, we have adopted federal case law from Title VII cases in addition to case law from other states interpreting analogous discrimination statutes. Swyers v. Thermal Science, Inc., 887 S.W.2d 655, 656 (Mo.App.E.D. 1994). To evaluate a discrimination claim based on circumstantial evidence, we employ the burden shifting analysis set out inMcDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Schlitz v. Burlington Northern Railroad, 115 F.3d 1407, 1412 (8th Cir. 1997). However, we vary the elements of the test to accord with the facts of each case. Id. In order to establish a prima facie case of age discrimination in a failure to hire claim, the complainant must show: "(1) he belonged to the protected class; (2) he was qualified for the positions for which he applied; (3) he was not hired for the position applied for despite his being sufficiently qualified; and (4) the employer finally filled the position with a person sufficiently younger to permit an inference of age discrimination." Id. If complainant makes a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for not hiring complainant. Id. If that burden is met, complaint must show defendant's reason was a mere pretext for discrimination. Id.
In this case, Plaintiff unquestionably established his prima facie case. McLucas testified that she interviewed each of the candidates. Then she continued ". . . we made our assessments . . . and then the decision was made [by the governor's staff] to offer positions that, if you looked at our assessments, may not have been the most highly qualified or extremely well qualified to be offered the position. But they were [offered the positions]." McLucas also stated that she did not know how the governor's staff ranked them. Defendants failed to posit any non-discriminatory reason for Plaintiff not being hired. Instead, they simply stated they do not know by what criteria the decision was made. This rationale is insufficient to meet their burden of production. See Turnes v. AmSouth Bank, N.A., 36 F.3d 1057 (11th Cir. 1994).
Even assuming arguendo that Defendants did meet their burden of production with their argument that Plaintiff was not one of the better candidates, in their opinion, to facilitate the governor's vision to make all state departments more efficient, their justification would merely be a pretext because they admit they do not know the criteria by which the hiring decision was made. Therefore, the trial court did not err in determining that they discriminated against Plaintiff in violation of the MHRA. Point denied.
In their fourth point on appeal, Defendants argue the trial court erred in failing to grant their motion for judgment notwithstanding the verdict ("JNOV") and abused its discretion in failing to grant their motion for a new trial on the Title VII and MHRA retaliation claims.
Initially, we note that Plaintiff did not specifically plead a retaliation claim under Title VII, but rather only under his MHRA claim. Further, neither the jury nor the trial court specifically found for Plaintiff on a Title VII retaliation claim. They simply found for him on his retaliation claim under the MHRA. In this case, the court did not simply enter a judgment on the advisory jury's verdicts. Instead it reviewed the record and "adopt[ed] such findings as the findings of the court on the [MHRA] claims." However, the trial court found Plaintiff was only "entitled to a single recovery of the maximum amount under any of his four claims." Therefore, because no judgment was entered on the jury's verdict, we cannot review the denial of the motion for JNOV. As a result, our standard of review is that for a denial of a motion for new trial. We are limited to a determination of whether the trial court abused its discretion. First Bank of St. Charles v. Frankel, 86 S.W.3d 161, 172 (Mo.App.E.D. 2002). An abuse of discretion is only found where the moving party is prejudiced by the alleged trial error or misconduct. Id.
We apply the aforementioned McDonnell Douglas burden shifting analysis to claims of retaliation in the absence of direct evidence of discrimination. Buettner v. Arch Coal Sales Co., Inc., 216 F.3d 707, 713 (8th Cir. 2000). To establish a prima facie case of retaliation, a plaintiff must show that (1) he engaged in an activity protected by the MHRA; (2) an adverse employment action occurred; (3) and there existed a causal connection between participation in the protected activity and the adverse employment action. Id. at 713-14. The Missouri Supreme Court has advocated a similar test in matters outside of the employment context. See Keeney v. Hereford Concrete Products, Inc., 911 S.W.2d 622, 625 (Mo.banc 1995) (requiring only (1) that a person file a complaint, testify, assist or participate in an investigation, proceeding or hearing conducted pursuant to chapter 213 and (2) as a direct result, that person suffers any damages due to an act of reprisal). However, this matter occurred in the employment context; therefore, we apply the standards in Buettner.
There is no dispute that Plaintiff was not hired subsequent to his filing of a complaint, which is an activity protected by the MHRA. Plaintiff also established a sufficient causal connection for a prima facie case in that he was qualified for the position applied for and was not hired at the next available opportunity. However, Defendants did not meet their burden of production to establish a legitimate, nondiscriminatory reason for not hiring complainant. Defendants argue Plaintiff did not fit their criteria, which required a person that they thought would improve the workers' compensation system, and that, in any case, the Governor's office was the final decision-maker. This second justification is precisely the problem. Defendants adhered to the Governor's recommendation without question, even though Sections 287.610 and 287.615 authorize Defendants to select ALJ's and legal advisors. Moreover, as discussed in the third point on appeal, Defendants did not know the grounds for the Governor's decision. As a result, they have failed to satisfy their burden to produce a legitimate non-discriminatory reason for not hiring Plaintiff.
Even if we were to accept Defendants' posited non-discriminatory justification as sufficient to meet their burden of production, we would still find that their justification was a pretext as discussed in the third point on appeal.
Therefore, because they did not meet their burden, the trial court did not err in denying their motion a new trial on the retaliation claim. Point denied.
In their fifth and final point on appeal, Defendants argue the trial court erred in specifically ordering that Plaintiff be instated into the position of ALJ in the City of St. Louis.
We review trial court's decision to order instatement for abuse of discretion. See Yancey v. Weyerhaeser Company, 277 F.3d 1021, 1025 (8th Cir. 2001).
Reinstatement is the preferred remedy for unlawful employment discrimination, and front pay is the disfavored alternative, available only when reinstatement is impracticable or impossible.Salitros v. Chrysler Corp., 306 F.3d 562, 572 (8th Cir. 2002). However, the decision as to which remedy, if either, should be granted is committed to the sound discretion of the trial court. Standley v. Chilhowee R-IV School Dist., 5 F.3d 319, 322 (8th Cir. 1993). When an appropriate position is not immediately available in the absence of the displacement of an innocent incumbent, a court may order front pay until the claimant is placed in a comparable position or declines an offer for comparable employment. King v. Staley, 849 F.2d 1143, 1145 (8th Cir. 1988).
In this case, there were no ALJ positions available in the City of St. Louis when the court entered its judgment. The trial court's options were to order front pay or instatement, with instatement being the favored alternative. The trial court awarded Plaintiff lost wages and compensatory damages and it ordered him instated to an ALJ position in the City of St. Louis "and that [Defendants] provide [Plaintiff] creditable service in the state retirement system as if he had commenced serving as an [ALJ] July 1, 1998." One of the purposes of the MHRA "is to make persons whole for injuries caused by unlawful employment discrimination." Swyers v. Thermal Science, Inc., 887 S.W.2d 655, 656-57 (Mo.App.E.D. 1994). According to King, the trial court could order instatement and front pay until a position became available for Plaintiff. King, 849 F.2d at 1145. Therefore, we find the trial court did not abuse its discretion in ordering that Plaintiff be instated into the position of ALJ in the City of St. Louis. Point denied.
Judgment affirmed.
Robert G. Dowd, Jr., J. and Mary R. Russell, J. concur.