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Brown v. Therapy Management Corp.

United States District Court, E.D. Missouri, Eastern Division

May 9, 2019

GREGORY L. BROWN, Plaintiff,
v.
THERAPY MANAGEMENT CORPORATION, Defendant.

          MEMORANDUM AND ORDER

          JOHN A. ROSS, UNITED STATES DISTRICT JUDGE

         At 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.

         Background

         I. The Alleged Discrimination and Retaliation

         Plaintiff 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.

         Although 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.

         Defendant's 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.

         On 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.)

         II. The 2017 Amendment of the MHRA

         At the 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 treatment.

         The 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 accrued.

         Legal Standards

         In 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 ‚Äútake away or impair vested rights acquired under existing laws, or create a new obligation, ...


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