Missouri Court of Appeals Affirms Viability of

Missouri Court of Appeals Affirms Viability of "Continuing Violation" Theory

On June 4, 2013, the Missouri Court of Appeals for the Eastern District reversed the trial court's judgment and remanded the case of Plengemeir v. Thermadyne Industries, Inc.

In 2000, Thermadyne hired Lorie Plengemeir as a Specialty Markets Manager. In 2004, Thermadyne promoted Plengemeir to the position of National Accounts Manager. In that position, Plengemeir consistently received positive performance evaluations from 2004 to 2008. In fact, Plengemeir received a Thermadyne Sales Leadership Award for her outstanding performance. In 2009, Thermadyne posted a job notice for the newly created position of Director of Americas Marketing and National Accounts. The two main qualifications for the Director position were (1) a bachelor's degree with an MBA preferred and (2) ten or more years of experience in sales or marketing in the welding industry. Plengemeir applied for the position but Joseph Mueller, Vice President of the Americas Sales and Marketing Group informed Plengemeir that she would not be considered for the position because Mueller planned to hire Tony Coco, an applicant from outside of Thermadyne. Plengemeir believed that she was more qualified for the position because she possessed a bachelor's degree with an emphasis in marketing and an MBA, as well as sixteen years of experience in sales and marketing – nine of which were in the welding industry working for Thermadyne. On the other hand, Coco possessed a bachelor's degree without an emphasis in marketing, did not possess an MBA, and had only five years of experience in sales and marketing – none of which were in the welding industry.

Shortly after Plengemeir was not promoted, she discovered that she was being paid substantially less than a male National Accounts Manager, Eric Moore. Plengemeir had more education and seniority than Moore and greater job responsibilities. Plengemeir handled accounts worth approximately $100 million in annual revenue, while Moore handled accounts worth approximately $30 million in annual revenue. From 2006 to 2009, Thermadyne paid Plengemeir between $18,700 and $20,600 less than Moore.

In January 2010, Plengemeir resigned from Thermadyne. On April 21, 2010, Plengemeir filed a gender discrimination charge with the Missouri Commission on Human Rights (MCHR). Plengemeir alleged that Thermadyne unlawfully discriminated against her on the basis of gender based upon the above facts. Thermadyne filed a motion to dismiss, claiming that Plengemeir's claim was barred by the two-year statute of limitations under Missouri law. Plengemeir alleged, however, that her claim was timely under the "continuing violation" doctrine. The trial court granted Thermadyne's motion to dismiss and Plengemeir appealed that judgment.

Under Missouri's antidiscrimination law, an employee must file a petition no later than two years after receiving a right-to-sue letter from the MCHR. Here, Plengemeir filed her petition on January 10, 2012. Accordingly, the unlawful discrimination must have occurred after January 10, 2010 in order to satisfy the two-year statute of limitations, unless an exception applies. One such exception is the "continuing violation" doctrine. Missouri courts recognize the concept of a continuing violation in employment discrimination cases. Under the continuing violation doctrine, an employee may pursue a claim for an act of discrimination that occurred before the statutory period, if she can show that the discriminatory act was part of an ongoing discriminatory practice or pattern of the employer. In other words, the doctrine can preserve a claim that is otherwise barred by the statute of limitations. To utilize the doctrine, an employee must meet two requirements:

  • First, she must show that at least one act of discrimination occurred within the filing period. Here, Plengemeir alleged that the discriminatory conduct (i.e., paying her less than a male colleague) continued through January 13, 2010. Because at least one discriminatory act occurred after January 10, 2010, the Court concluded that Plengemeir met this requirement.
  • Second, an employee must show that the discriminatory treatment is comprised of a series of interrelated events, rather than isolated or sporadic acts of discrimination. Here, Plengemeir alleged that she was consistently paid less than a male colleague between 2006 and 2010.

As such, the Court concluded that Plengemeir sufficiently plead an "ongoing practice or pattern of discrimination." Because Thermadyne systematically decided to pay Plengemeir substantially less than Moore over the course of many years, the Court concluded that Plengemeir was entitled to a right of recovery under the continuing violation doctrine.

If you believe you have been unlawfully discriminated against, you should contact a St. Louis employment lawyer.

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