von Kaenel v. Armstrong Teasdale, LLP

Filing 13

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Motion to Dismiss, [Doc.No. 8], is DENIED. 8 Signed by District Judge Henry Edward Autrey on 8/1/17. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOSEPH S. von KAENEL,
Plaintiff,
v.
ARMSTRONG TEASDALE, LLP,
Defendants.

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Case No. 4:16CV1414 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion to Dismiss, [Doc. No.
8]. Plaintiff opposes the Motion. For the reasons set forth below, the Motion is
denied.
Facts and Background
Plaintiff’s Complaint alleges that this is an action brought pursuant to the
Age Discrimination in Employment Act, (“ADEA”), 29 U.S.C. § 623for age
discrimination. The following facts are alleged:
Plaintiff Joseph S. von Kaenel is a male resident of St. Louis, Missouri.
Plaintiff’s date of birth is November 27, 1944.
Defendant Armstrong Teasdale, LLP is a Missouri limited liability
partnership doing business in St. Louis County with offices located at 7700 Forsyth
Blvd, Clayton, MO 63105.

Plaintiff was employed by Defendant as an attorney from June 1, 1972, to
December 31, 2014, and was an equity partner at the time of his termination.
During his employment with Defendant, Plaintiff performed the duties of his job in
a satisfactory manner. At all times relevant herein, Plaintiff was an employee, as
defined by the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §
630(f), in that he was an individual employed by an employer, and is therefore
entitled to the protections of that statute.
At all times relevant herein, Defendant was an employer, as defined by the
ADEA, 29 U.S.C. § 630(b), in that it was, and is, engaged in an industry affecting
commerce and employed twenty (20) or more persons for each working day in
each of twenty or more calendar weeks in the current or preceding calendar year.
Defendant informed Plaintiff in, on, or about March 2014 that Plaintiff
would not be allowed to remain employed with Defendant past December 31,
2014, because he would be turning seventy (70) years old that year. Defendant has
a policy which requires that equity partners leave the firm at the end of the
calendar year in which the equity partner turns seventy (70) years of age. As a
result of this policy, Defendant instituted a program and has a practice of phasing
out senior lawyers, which includes steering work away from them, reducing their
contact with clients, and reducing their compensation.

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Between March 2014 and December 2014, at least one partner at the firm
requested that Plaintiff be permitted to remain at the firm past December 31, 2014.
Defendant denied that request.
Plaintiff’s last day at work with Defendant was December 31, 2014.
Plaintiff was entitled to receive severance benefits for two years when he
retired. When he was terminated, Plaintiff was eligible to receive the severance
benefits. However, as a condition of receiving those benefits, Defendant required
Plaintiff to cease the private practice of law. Plaintiff wished to continue practicing
law and did so.
Defendant terminated Plaintiff’s severance benefits and failed and refused to
pay Plaintiff severance benefits because Plaintiff continued to engage in the private
practice of law.
But for Defendant’s discriminatory policy, Plaintiff would have retired at or
around age 75 or later and would have ceased practicing law at that time and would
have received the severance benefits at that time.
Defendant would not have terminated Plaintiff but for his age. Defendant’s
termination of Plaintiff’s employment constitutes a violation of the ADEA, 29
U.S.C. § 623.
On December 11, 2014, Plaintiff timely filed a charge of age discrimination
against Defendant with the Equal Employment Opportunity Commission (EEOC).
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The EEOC docketed Plaintiff’s charge as Charge Number 560-2015-00406.
Plaintiff obtained a Notice of Right to Sue from the EEOC on June 24, 2016.
As a direct and proximate result of Defendant’s termination of Plaintiff’s
employment, Plaintiff has sustained and will continue to sustain lost wages and
benefits of employment. As a direct and proximate result of Defendant’s
termination of Plaintiff’s employment, Plaintiff has sustained and will sustain lost
severance benefits. As a direct and proximate result of Defendant’s termination of
Plaintiff’s employment, Plaintiff has incurred and will continue to incur attorneys’
fees and costs of litigation.
In terminating Plaintiff’s employment, Defendant, based on its extensive
experience in employment law, knew the termination was a violation of the ADEA
or acted with reckless disregard of that law such that Defendant’s conduct was
willful and warrants an award of additional damages against Defendant for
willfulness.
Motion to Dismiss Standard
Under Fed.R.Civ.P. 12(b)(6), a party may move to dismiss a claim for
“failure to state a claim upon which relief can be granted.” The notice pleading
standard of Fed.R.Civ.P. 8(a)(2) requires a plaintiff to give “a short and plain
statement showing that the pleader is entitled to relief.” To meet this standard and
to survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient
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factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citation
omitted). This requirement of facial plausibility means the factual content of the
plaintiff's allegations must “allow[ ] the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Cole v. Homier Distrib. Co.,
599 F.3d 856, 861 (8th Cir.2010) (quoting Iqbal, 556 U.S. at 678). Courts must
assess the plausibility of a given claim with reference to the plaintiff's allegations
as a whole, not in terms of the plausibility of each individual allegation. Zoltek
Corp. v. Structural Polymer Group, 592 F.3d 893, 896 n. 4 (8th Cir.2010) (internal
citation omitted). This inquiry is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Iqbal, 556
U.S. at 679. The Court must grant all reasonable inferences in favor of the
nonmoving party. Lustgraaf v. Behrens, 619 F.3d 867, 872–73 (8th Cir.2010).
Discussion
Defendant argues Plaintiff’s Complaint was not timely filed. Defendant
argues Plaintiff was required to file a charge of discrimination within 180 days
after Defendant informed him that his employment would not continue after
December 31, 2014, the end of the year in which he would turn age 70. Plaintiff
was informed of this decision in March, 2014. He did, however, file his charge of
discrimination within 300 days from the notification.
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The ADEA provides that “[n]o civil action may be commenced by an
individual . . . until 60 days after a charge alleging unlawful discrimination has
been filed with the [EEOC].” 29 U.S.C. § 626(d)(1). The statute further provides
that a charge of discrimination must be filed “within 180 days after the alleged
unlawful practice occurred,” or, “in a case to which section 633(b) of this title
applies, within 300 days after the alleged unlawful practice occurred, or within 30
days after receipt by the individual of notice of termination of proceedings under
State law, whichever is earlier.” Id. Section 633(b) of the ADEA applies “[i]n the
case of an alleged unlawful practice occurring in a State which has a law
prohibiting discrimination in employment because of age and establishing or
authorizing a State authority to grant or seek relief from such discriminatory
practice.” 29 U.S.C. § 633(b).
There is no dispute that Missouri is a State which has a law prohibiting
discrimination in employment because of age. The Missouri Human Rights Act
(“MHRA”) states that “[i]t shall be an unlawful employment practice . . . [f]or an
employer, because of the . . . age . . . of any individual . . . [t]o fail or refuse to hire
or to discharge any individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s . . . age . . .” Mo. Rev. Stat. § 213.055.1. This statute

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covers persons who are forty and over, but less than seventy years of age.
Mo.Rev.Stat. § 213.010(1).
Defendant argues that because the Missouri Human Rights Act did not cover
this particular situation since Plaintiff was required to leave its employ because he
was 70 years old, Plaintiff cannot rely on the 300 day limitation period.
Perplexingly, Defendant argues that Plaintiff must have filed his claim of
discrimination with the EEOC within 180 days from the date he was notified of the
alleged discrimination, i.e., March, 2014, but counters Plaintiff’s argument that he
was 69 in March 2014, so the MHRA would have covered him. Defendant
however, urges that when the discrimination took effect becomes the salient time
under the MHRA, and because Plaintiff was 70 years old by the end of 2014, the
MHRA had no jurisdiction over Plaintiff’s claim. Thus, Defendant claims that
Plaintiff is not entitled to the 300 day limitation period.
The Court disagrees. At the time Defendant claims Plaintiff’s time for filing
a discrimination charge began, Plaintiff was 69 years old. Whether his claim under
the MHRA was a valid claim is of no consequence at this juncture. The significant
inquiry is, when Plaintiff’s cause of action accrued, was there a statute in Missouri
which covered age discrimination? Clearly the MHRA was in effect at that time,
and Plaintiff is entitled to rely on the 300 day period for filing his ADEA action.

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Conclusion
Based upon the foregoing analysis, Plaintiff’s Complaint cannot be
dismissed. Plaintiff has set forth sufficient allegations regarding the timing of his
Charge of Discrimination.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss, [Doc.
No. 8], is DENIED.
Dated this 1st day of August, 2017.

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HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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