Tisch v. DST Sys., Inc.

• Decision Date: 01 May 2012
• Docket Number: No. WD 73454.,WD 73454.
• Citation: 368 S.W.3d 245
• Parties: Roger TISCH, Appellant, v. DST SYSTEMS, INC., Respondent.
• Court: Missouri Court of Appeals

368 S.W.3d 245

Roger TISCH, Appellant,

v.DST SYSTEMS, INC., Respondent.

No. WD 73454.

Missouri Court of Appeals, Western District.

April 3, 2012.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 1, 2012.

Application for Transfer

Denied July 3, 2012.

Dennis E. Egan and Mark Buchanan, Kansas City, MO, for Appellant.

Brian J. Finucane, James R. Holland, II, and Gregory D. Ballew, Kansas City, MO, for Respondent.

Before Division II: GARY D. WITT, Presiding Judge, and JOSEPH M. ELLIS and MARK D. PFEIFFER, Judges.

MARK D. PFEIFFER, Judge.

Roger Tisch brought an action against his employer, DST Systems, Inc. (“DST”), for reverse gender discrimination, age discrimination, and retaliation in violation of section 213.010 ¹ et seq., the Missouri Human Rights Act (“MHRA”). The Circuit Court of Jackson County (“trial court”) granted partial summary judgment to DST and a jury returned a verdict in favor of DST on the remaining discrimination claim. The trial court entered judgment on the jury verdict in favor of DST. Tisch appeals. We affirm.

Facts and Procedural History²

The following is a summary of the uncontroverted material facts that were before the trial court prior to its ruling on DST's motion for partial summary judgment.

Through its information processing capabilities and computer software services and products, DST provides services to entities in the financial services industry, including mutual funds, investment managers, brokers, and financial planners. On March 1, 1996, DST hired Tisch at age 55 as a Staff Consultant at a salary of $77,500. In 1998, DST established a new department, the Project Office Department, and selected Tisch at age 58 to manage it. Tisch was given the title of Business Analyst Manager at a salary of $86,991, effective January 1, 1999.

In May 2002, DST's management team determined that the Project Office Department managed by Tisch was not as successful as they wanted it to be. DST eliminated the Department and Tisch's position of Business Analyst Manager, but Tisch remained employed by DST at his salary of $95,784. Tisch did not initiate a complaint—either internally (i.e., DST Human Resources) or externally (i.e., Missouri Commission on Human Rights—“MCHR”—or the Equal Employment Opportunity Commission—“EEOC”)—when he was demoted from this managerial position. When DST considered salaried employeesfor annual raises at the end of 2002, it granted Tisch a raise to $97,363, effective December 1, 2002.

In March 2003, DST changed Tisch's job title to Business Analyst Administrator and transferred him to the Operations Department. Effective August 1, 2003, DST changed Tisch's job title to Senior Business Analyst, a position that had a salary range of $48,705 to $71,625, but did not change his salary immediately. Instead, DST set a deadline of October 15, 2003, for Tisch to find another employment opportunity in the organization that would allow him to avoid a reduction in salary. Over the next two months, Tisch tried unsuccessfully to locate other jobs at DST or its local subsidiary.

Effective October 16, 2003, DST reduced Tisch's salary to $60,005. After his salary was reduced, Tisch made an internal complaint to DST's Human Resources Department. Thereafter, the parties engaged in settlement negotiations regarding Tisch's employment and salary. Effective October 16, 2004, DST reclassified Tisch to Senior Software Developer and raised his salary to $68,200, retroactive to January 1, 2004. In total, after the October 2003 salary reduction, DST subsequently awarded Tisch nine salary increases to raise his salary to $88,385. Tisch did not initiate a discrimination complaint at any time in 2003 or 2004 with the MCHR.

In 2005, Tisch interviewed and was accepted for a temporary assignment in DST's Enterprise Command Center (“ECC”) but that position offer was later retracted by DST and DST filled the position with a female under the age of forty, who was transferred out of the DST Operations Department where Tisch was working. Tisch did not initiate a discrimination complaint in 2005 with the MCHR over DST's transfer denial to the ECC.

In March 2006, Tisch applied for promotion to the position of Principal Architect in the Network Services Area. Four DST employees had expressed interest in the Principal Architect position. In April 2006, DST selected a thirty-eight-year-old male DST employee for the position instead of Tisch.

On April 21, 2006, Tisch filed a Charge of Discrimination with the MCHR ³ against DST. The MCHR complaint specifically referenced the denial of the Principal Architect position as an act of alleged discrimination and retaliation. Tisch's complaint did not specifically mention the denial of transfer to ECC nor did Tisch's complaint check the “continuing action” box. On May 14, 2007, the MCHR issued a Notice of Right to Sue.

On May 21, 2007, Tisch was denied a promotion to Senior Software Engineer at DST Output, a subsidiary of DST. Tisch believed he was denied the promotion because of his age or because he had filed the MCHR complaint or both.

On July 31, 2007, Tisch filed suit under the MHRA, alleging employment discrimination based on gender, age, and retaliation. DST moved for summary judgment on the four events forming the basis for Tisch's claims on the following argued grounds: (i) the 2003 demotion and the 2005 ECC transfer denial were both outside of the 180–day period for filing an administrative charge of discrimination (§ 213.075.1), and were both outside of the two-year statute of limitations for filing suit (§ 213.111.1); (ii) the 2006 refusal to promote Tisch to the Principal Architect position, while a timely discrimination charge and lawsuit, failed to present any evidence of discrimination or retaliation; and (iii) the May 21, 2007 refusal to promote Tisch to the position of Senior Software Engineer was not the subject of the MHRA charge and occurred after the May 14, 2007 MCHR Right to Sue notice. The trial court granted the motion in part—finding that the 2003 demotion claim and the 2005 transfer denial claim fell outside the 180–day period for filing a charge; rejecting Tisch's “continuing violation doctrine” argument; and finding that, as Tisch conceded, the 2007 refusal to promote claim was not a claim upon which he could recover—and denied the motion in part as to the 2006 refusal to promote claim.

Tisch filed a motion to reconsider the summary judgment order, which the trial court denied.

Thereafter, on September 30, 2010, four days before trial, Tisch filed a motion for leave to file a first amended petition to add a count for hostile work environment based on age. After a hearing, the trial court denied the motion.

A jury trial was conducted October 4 through October 18, 2010, on Tisch's claims of age discrimination or retaliation related to DST's 2006 promotion of an applicant other than Tisch to the position of Principal Architect, and the jury returned its verdict in favor of DST. The trial court entered judgment in accordance with the jury's verdict.

Tisch timely filed his Motion for New Trial and to Amend Judgment, which the trial court denied.

Tisch timely filed this appeal.

Point I—Summary Judgment Challenge

Appellate review of the trial court's order granting summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is appropriate where the moving party has demonstrated, on the basis of material facts about which there is no genuine dispute, a right to judgment as a matter of law. Id. at 380. We review the record in the light most favorable to the party against whom summary judgment was entered and accord the non-movant the benefit of all reasonable inferences from the record. Id. at 376. The movant bears the burden of establishing a legal right to judgment and the absence of any genuine issue as to any material fact required to support that right to judgment. Id. at 378.

A defending party may establish a right to summary judgment as a matter of law by any one of three means: (i) showing facts that negate any one of the elements of the claimant's claim; (ii) showing “that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements”; or (iii) showing “that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense.” Id. at 381. When the movant has made a prima facie showing, the non-movant's only recourse is to show by affidavit, depositions, answers to interrogatories, or admissions on file, that one or more of the material facts are genuinely disputed. Id.

Analysis

In his first Point, Tisch asserts that the trial court erred in granting partial summary judgment to DST as to discriminatory acts occurring outside the 180–day period for filing an administrative charge under section 213.075.1 and the two-year statute of limitations for filing a civil action in section 213.111.1 because genuine issues of material fact existed as to whetherthese claims were timely under the “continuing violation” doctrine. Tisch suggests that DST's acts of demoting him in 2003 and refusing to transfer him to the ECC in 2005 were not discrete acts of discrimination but were part of a series of interrelated discriminatory acts.

Tisch brought his claims under two sections of the MHRA.

Section 213.055.1 prohibits employers from engaging in unlawful employment practices, including discriminating against an individual because of age by “fail[ing] or refus[ing] to hire ... any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment” or by “limit[ing], segregate[ing], or classify[ing] ... employees or ... employment...