Plengemeier v. Thermadyne Indus., Inc., ED 99193.

• Court: Court of Appeal of Missouri (US)
• Citation: 409 S.W.3d 395
• Docket Number: No. ED 99193.,ED 99193.
• Parties: Lorie PLENGEMEIER, Plaintiff/Appellant, v. THERMADYNE INDUSTRIES, INC. and Joseph F. Mueller, Defendants/Respondents.
• Decision Date: 29 October 2013

409 S.W.3d 395

Lorie PLENGEMEIER, Plaintiff/Appellant,
v.
THERMADYNE INDUSTRIES, INC. and Joseph F. Mueller, Defendants/Respondents.

No. ED 99193.

Missouri Court of Appeals,
Eastern District,
Division One.

June 4, 2013.
Application for Transfer to Supreme Court Denied July 24, 2013.
Application for Transfer Denied Oct. 29, 2013.

[409 S.W.3d 397]

John D. Lynn, Donna L. Harper, St. Louis, MO, for plaintiff/appellant.

Randall S. Thompson, Kimberley J. Mathis, Clayton, MO, for defendants/respondents.

SHERRI B. SULLIVAN, J.
Introduction

Lorie Plengemeier (Appellant) appeals from the trial court's judgment dismissing her petition alleging gender discrimination in her employment under the Missouri Human Rights Act (MHRA) against Thermadyne Industries, Inc. (Thermadyne) and Joseph F. Mueller (Mueller) (collectively Respondents) as time-barred by the statute of limitations. We reverse and remand.

Factual and Procedural Background

Appellant's first amended petition (petition) alleged the following. Thermadyne manufactures and markets metal welding

[409 S.W.3d 398]

and cutting products. In 2000, Thermadyne hired Appellant as a Specialty Markets Manager. In 2004, Appellant was promoted to the position of National Accounts Manager, and this promotion made her the only woman employed in a sales or marketing position in the Americas Sales and Marketing Group. As a National Accounts Manager, Appellant reported through James Horvath (Horvath), Vice President of National Accounts, to Mueller, Vice President of the Americas Sales and Marketing Group.

Appellant's job performance as a National Accounts Manager was exemplary, as evidenced by her annual performance evaluations for 2004 through 2008. The 2004 evaluation stated Appellant “has the overall best analytical mind within my team. She is outstanding at identifying an opportunity and then taking the correct actions to close the deal or complete the project.” Her 2005 performance review stated, “Overall progress from day one to 18 months has been outstanding. You are developing a very nice career that will take you far.” In 2005, Thermadyne awarded Appellant a quarterly Thermadyne Sales Leadership Award. In the first quarter of 2005, Appellant finished above 100% of the quarter's quota at 114.97% of budget and was the top performer in her group. In 2006, Appellant's performance review stated, “Due to [Appellant's] efforts and account management, Airgas has deemed Thermadyne their best and most attentive supplier.” Her 2007 review noted Appellant did an outstanding job with Airgas again that year; the relationships were outstanding and Appellant was still the top NAM [National Accounts Manager] for 2007. Her 2008 review recited that she “developed very good relationships with the customer, [and had] very good analytical skills.”

On October 16, 2009, Thermadyne internally posted a notice that it was accepting applications for a newly created position of Director of Americas Marketing and National Accounts (Director). The two main qualifications for the Director's position were listed as (1) a bachelor's degree with an MBA preferred and (2) ten or more years of experience in sales or marketing with experience in the welding industry preferred. On October 22, 2009, Appellant applied for the Director's position and informed Mueller of her interest in the job. On October 23, 2009, Appellant completed her application by obtaining her supervisor's signature and submitting it to Lana Vakula in Human Resources, who advised Appellant that Mueller would interview her for the position the following week. On October 26, 2009, Mueller told Appellant she was not going to be considered for the Director's position and he was not going to interview her because he was hiring Tony Coco (Coco), a man from outside Thermadyne. Appellant believed she was much better qualified for the Director's position than Coco, in that she had a bachelor's degree with an emphasis in marketing and an MBA, as well as sixteen years of experience in sales and marketing with nine of them in the welding industry working for Thermadyne; while Coco had a bachelor's degree without an emphasis in marketing and no MBA, and only five years of experience in sales and marketing, none of them in the welding industry. On November 1, 2009, Appellant began reporting to Mueller through Coco.

Appellant pled that after she was not promoted, she discovered Thermadyne was and had been systematically paying her substantially less compensation over the years than a male National Accounts Manager, Eric Moore (Moore). Every year Thermadyne's Senior Management Group for the Americas Sales and Marketing division, which included Mueller, determined

[409 S.W.3d 399]

the salaries of National Accounts Managers Appellant and Moore. While both had the same job description, Appellant had more education and seniority than Moore, and also greater job responsibilities, in that she handled accounts worth approximately $100 million in annual revenue with a much larger percentage of U.S. sales; while Moore handled accounts worth approximately $30 million in annual revenue with a much smaller percentage of U.S. sales. Appellant discovered that in 2006, Respondents paid Appellant $18,700 less than it did Moore; in 2007, $20,000 less; in 2008, $20,600 less; and in 2009, $20,000 less. Respondents also provided Moore with a company car, while they did not for Appellant. Appellant's yearly base salary, bonuses, 401(k) match and company car allowance were all less than Moore's.

In January 2010, after Appellant's discovery of Respondents' disparate treatment, she resigned from Thermadyne. Appellant's last day of employment at Thermadyne was January 13, 2010 and she received her last paycheck on January 22, 2010.

On April 21, 2010, within 180 days of Respondents' discriminatory acts as required by the MHRA in Section 213.075,¹ Appellant filed an administrative charge of gender discrimination with the Missouri Commission on Human Rights (MCHR).² After obtaining a right-to-sue letter from the MCHR on October 14, 2011, Appellant brought the instant lawsuit in circuit court on January 10, 2012, within 90 days of her receipt of the right-to-sue letter as required by the MHRA in Section 213.111. In her petition, Appellant alleged Respondents were guilty of a continuing violation of the MHRA by discriminating against her for four years because of her gender based upon the above recounted facts.

On April 9, 2012, Respondents filed a motion to dismiss Appellant's petition on the ground that her claim of gender discrimination was barred by the MHRA's two-year statute of limitations set forth in Section 213.111. Appellant filed a response in opposition to the motion, arguing her claim was timely under the continuing violation doctrine. The trial judge entered a judgment granting Respondents' motion to dismiss without explication. This appeal follows.

Point on Appeal

Appellant claims the trial court erred in dismissing her petition as untimely filed because it was timely under the continuing violation doctrine, in that it was filed within two years of the date of the last act of discrimination against her.

Standard of Review

A motion to dismiss is the proper motion for attacking a petition on the ground it is barred by the statute of limitations, especially where the expiration of the limitation appears on the face of the petition. Harris–Laboy v. Blessing Hosp., Inc., 972 S.W.2d 522, 524 (Mo.App. E.D.1998); Heintz v. Swimmer, 922 S.W.2d 772, 775 (Mo.App. E.D.1996). The trial court may not dismiss the petition unless it is clearly established on the petition's face and without exception that the cause of

[409 S.W.3d 400]

action is time-barred. Braun v. Petty, 31 S.W.3d 521, 523 (Mo.App. E.D.2000); Doyle v. Crane, 200 S.W.3d 581, 590–91 (Mo.App. W.D.2006). The determination of whether the statute of limitations applies to bar the action is a question of law that we review de novo. Harris–Laboy, 972 S.W.2d at 524;Warren County Concrete, L.L.C. v. Peoples Bank & Trust Co., 340 S.W.3d 289, 290 (Mo.App. E.D.2011).

In ruling on a motion to dismiss, including one based on the bar of a statute of limitations, the trial court is obliged to construe the petition liberally, give the pleadings their broadest intendment, take the statements of fact in the petition as true, and determine whether the petition states facts which, if established,...