United States District Court, E.D. Missouri, Eastern Division
GREGORY L. BROWN, Plaintiff,
THERAPY MANAGEMENT CORPORATION, Defendant.
MEMORANDUM AND ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE
Plaintiff's request, the Court ordered the parties to
submit briefing as to the relevant burden of proof for
allegations of discrimination and retaliation in violation of
the Missouri Human Rights Act (“MHRA”). (Doc.
83.) The parties have done so (Docs. 84-86), and the issue is
now ripe for consideration.
The Alleged Discrimination and Retaliation
is a fifty-year-old licensed Physical Therapy Assistant
(“PTA”) who began working for Defendant in May,
2015. Plaintiff has been legally blind since the age of ten
and cannot drive, so he would usually walk the short distance
from his home to Defendant's Southbrook facility.
he was hired on a part-time, as-needed basis, Plaintiff
routinely expressed his interest in a full-time PTA position.
Plaintiff's program director assured Plaintiff that
“she was working on getting him a full-time position
and acknowledged that he was qualified for that
position.” In November, 2015, when one of
Defendant's full-time PTA's left her position,
Plaintiff reiterated his interest. Two days later, Plaintiff
was told that the position had been filled.
Area Manager explained to Plaintiff that “the reason we
felt he was not the right fit for the position” was
that he was unable to “drive between”
Defendant's multiple facilities in Farmington and St.
Genevieve, Missouri. Plaintiff claims he told the Area
Manager that he could travel between facilities so long as it
was not an everyday occurrence. The newly hired full-time PTA
held that position from November 2015 through April
2018-nearly two and one half years-and worked away from the
Southbrook location only once: a four-day stretch totaling
less than twenty-two hours of work.
April 30, 2016, believing that Defendant's decision not
to hire him for the full-time position was improperly based
on his disability, Plaintiff filed a charge of discrimination
with the Missouri Commission on Human Rights. In the months
following, Plaintiff's part-time hours dropped
dramatically. Plaintiff filed suit on March 1, 2017, alleging
discrimination and retaliation in violation of the Missouri
Human Rights Act (“MHRA”) and Title VII of the
Civil Rights Act of 1964, seeking compensation including
punitive damages. (Doc. 5.)
The 2017 Amendment of the MHRA
time Plaintiff was passed over for the full-time position,
proof of an MHRA violation hinged on a plaintiff's
ability to show that “consideration of age, disability,
or other protected characteristics contributed to
the unfair treatment.” Daugherty v. City of
Maryland Heights, 231 S.W.3d 814, 819 (Mo. 2007)
(emphasis added), overturned due to legislative
action. In 2017, the MHRA was amended such that all
claims accruing after August 28, 2017, are subject to a
stricter “motivating factor” standard. Jordan
v. Bi-State Dev. Agency, 561 S.W.3d 57, 59 n.1
(Mo.Ct.App. 2018), reh'g and/or transfer denied
(Sept. 24, 2018), transfer denied (Dec. 4,
2018). Under the new standard, the plaintiff's protected
characteristics must have motivated the unfair
amendment to the HRCA creates two points of disagreement
between the parties: first, whether Plaintiff's
discrimination claims are subject to the “contributing
factor” or “motivating factor” standard;
and second, whether Plaintiff's retaliation claims-which
Plaintiff alleges continued up to the date he filed suit and
therefore straddle the effective date of the amendment-are
subject to different standards depending on when they
Missouri, statutes cannot be applied retroactively. Mo.
Const. art. I, § 13; Mo. Rev. Stat. § 1.170.
Missouri courts have long recognized only two exceptions:
“(1) where the legislature manifests a clear intent
that it do so, and (2) where the statute is procedural only
and does not affect any substantive right of the
parties.” State ex rel. St. Louis-S.F. Ry. Co. v.
Buder, 515 S.W.2d 409, 410 (Mo. 1974). Defendant does
not argue that the first exception applies but does argue
that the amendment was not substantive. Substantive changes
“take away or impair vested rights acquired under
existing laws, or create a new obligation, ...