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Deml v. Sheehan Pipeline Constr.

Court of Appeals of Missouri, Eastern District, Third Division

December 23, 2014

MARK DEML, Appellant,
v.
SHEEHAN PIPELINE CONSTRUCTION, Respondent

Page 212

Appeal from the Circuit Court of Lincoln County. Hon. Chris K. Mennemeyer.

FOR APPELLANT: Kevin J. Kasper, St. Charles, MO.

FOR RESPONDENT: Russell C. Riggan, Samuel W. Moore, Kirkwood, MO.

ROBERT G. DOWD, JR., Judge. Kurt S. Odenwald, P.J. and Gary M. Gaertner, Jr., J., concur.

OPINION

ROBERT G. DOWD, JR., Judge

Page 213

Mark Deml (" Employee" ) appeals from the trial court's grant of summary judgment in favor of Sheehan Pipeline Construction Company, et al. (" Employer" ). Employee argues the trial court erred in granting Employer's motion for summary judgment because: (1) it failed to make a finding that Employee's exercise of his rights under the Workers' Compensation Law was not a contributing factor in Employer's decision to terminate Employee, and (2) its finding the Employee did not exercise any rights until after he was terminated was incorrect. We reverse and remand.

Employee began working for Employer in 2009 and worked on a project in Lincoln County, Missouri. Employee suffered a heatstroke while working on the project. Employee was not able to work for several days. He requested and received medical treatment pursuant to Missouri's workers' compensation laws. Employee's physician put restrictions on his ability to work, limiting him to four hour days, avoiding heat, and working in the air conditioning. Employee requested these accommodations from Employer, but Employer denied them. Employee then requested that his physician put him on ten hour days so he could return to work. Employee returned to work and was given a job moving plastic that was buried under dirt. Employee requested to work in air-conditioning and to be able to use an umbrella, but Employer refused both accommodations. Employee worked moving plastic from June 30 through July 17, when he injured his shoulder. Employee was terminated on July 18.

Employee subsequently filed a petition against Employer for violations of the Workers' Compensation Law. Employer filed an answer along with several affirmative defenses. Employer also requested that the trial court dismiss Employee's petition with prejudice. The trial court struck Employee's request for attorney fees from the Workers' Compensation Law claim.

Employer subsequently filed a motion for summary judgment, arguing Employee could not establish a prima facie case of discrimination under the Workers' Compensation Law. Employee did not file a timely response. Employee later made an oral motion to file its response to the motion for summary judgment. Employer objected and made an oral motion to strike Employee's responsive pleadings because they were out of time.

The trial court denied Employee's oral motion to file his responsive pleadings as out of time. With respect to the motion for summary judgment, the trial court found Employee failed to make a submissible case of retaliation for his filing of a workers' compensation claim because he admitted alternative reasons for Employer's alleged adverse employment actions. In other words, Employee admitted his exercise of his rights under the Workers' Compensation Law was not the exclusive cause for his termination. Therefore, the trial court granted Employer's motion for summary judgment. This appeal follows.

Appellate review of a trial court's grant of summary judgment is essentially de novo. ITT ...


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