BSCR Firm News/Blogs Feed

Baker Sterchi Attorneys Contribute to ALFA Transportation Law Compendium

02 Jun 2023

Baker Sterchi attorneys Jon Benevides and Jim Jarrow contributed to the Missouri and Kansas sections of the 2023 edition of the ALFA International (ALFA) Transportation Practice Group's 50-state Transportation Law Compendium. Additionally, Kyle Roehler contributed to the Missouri section, while Shawn Rogers contributed to the Kansas section.

The ALFA Transportation Law Compendium serves as a valuable quick reference for 17 common topics in transportation litigation. It covers essential areas such as the rules and regulations governing third-party litigation funding, the standards applied for spoliation of physical and/or documentary evidence, applicable law/choice of law questions in motor vehicle accident cases, and more. The Missouri section can be accessed online here, while the Kansas section can be found here.

Based in Kansas City, Benevides, Jarrow, Roehler and Rogers are members of ALFA’s Transportation Practice Group. They represent transportation carriers and their insurers in commercial motor vehicle accidents and handle various other legal matters encountered by the trucking industry. Jarrow serves as a co-chair of Baker Sterchi's Trucking Practice Group.

Baker Sterchi is the Kansas City and Overland Park member firm of ALFA International, a premier global legal network of 140 independent law firms in the United States and internationally. The ALFA organization offers educational programming in several practice areas for attorneys and clients of its member firms.

Baker Sterchi and Attorneys Recognized as Leaders in Insurance and General Commercial Litigation by Chambers USA 2023

01 Jun 2023

Baker Sterchi Cowden & Rice LLC has received recognition as a leader in insurance and general commercial litigation in the Missouri region, according to the recently released 2023 edition of Chambers USA.

Baker Sterchi's insurance practice achieved a Band 1 ranking, with Chambers USA lauding the firm for its "expertise in handling a range of complex coverage disputes and broader defense claims." The publication also highlighted the firm's "impressive litigation capabilities that see it frequently appear before trial and appellate courts across the USA."

Chambers USA ranked the firm in Band 3 for its general commercial litigation practice. Describing Baker Sterchi as a "regional firm with a solid reputation," the publication highlighted the firms experience in insurance, product liability, medical malpractice and class action defense work, in addition to its broader commercial disputes practice.

Additionally, four Baker Sterchi attorneys earned individual recognition:

Clay Crawford (Insurance, Missouri)
Scott Hofer (Insurance, Missouri)
Scott Kreamer (General Commercial Litigation, Kansas City & Surrounds)
Paul Venker (General Commercial Litigation, St. Louis & Surrounds)

Chambers USA is a respected guide, which evaluates leading law firms and attorneys across the United States. Chambers USA conducts its comprehensive research through a team of 200 analysts. The rankings are based on feedback from numerous clients, obtained through extensive interviews. Only law firms and attorneys demonstrating exceptional technical legal skills, professional conduct, client service, and other qualities valued by clients receive recognition from Chambers.

Missouri Court of Appeals Provides Guidance on Interlocutory Appeal Requirements and Pleadings Standards in an Employment Discrimination Case

30 May 2023

ABSTRACT: The appellate court decision in this employment discrimination suit provides guidance to practitioners and businesses on Missouri’s interlocutory appeal requirements, and a reminder that employees do not always have to be the direct target of discrimination in order to be able to state a viable cause of action. Witnessing and experiencing a discriminatory work environment may be enough.

In Mathews, et al., v. Harley Davidson, et al., the Missouri Court of Appeals for the Western District overruled the trial court’s dismissal of claims alleging discrimination, hostile work environment, and aiding and abetting in violation of 213.070.1(1), RSMo, at the pleading stage.

The lawsuit filed by the plaintiffs was brought by eighteen black employees against their employers, Harley Davidson and Syncreon. The employees alleged they were subjected to race discrimination while employed at a Harley Davidson plant in Kansas City, Missouri. This appeal concerns the dismissal of all claims asserted by eleven of those plaintiffs for failure to state claims upon which relief could be granted. The trial court held Appellants did not sufficiently plead the elements for their race discrimination and hostile work environment claims. Because of that finding, it also held that their aiding and abetting claims were subject to dismissal, finding those claims required an underlying viable discrimination claim to be pled.

Background

The Plant manufactured and assembled Harley Davidson merchandise. Syncreon provided contract workers to the Plant. Appellants alleged both Harley Davidson and Syncreon were joint employers. Harley Davidson’s employees were approximately 90% white, while Syncreon’s employees were approximately 90% black. Appellants alleged several racially charged incidents, summarized below:

Syncreon hired a white male supervisor, even though Harley Davidson fired him for discriminating against black employees.
The Plant had a barrier that physically divided Harley Davidson employees from Syncreon employees. Harley Davidson employees could go to the Syncreon side, but Syncreon employees were prohibited from crossing to the Harley Davidson side.
There were separate bathrooms for Harley Davidson and Syncreon employees and Syncreon employees were barred from using the Harley Davidson bathroom.
In the summer of 2017, a noose was found in the Syncreon women’s bathroom.
In April 2018, a swastika and doll of a black woman hanging by a noose were discovered in the Syncreon women’s bathroom.
In November 2018, one of the plaintiffs was assaulted by a white male coworker, who was never disciplined for the incident.
In December 2018, in the presence of unnamed black employees, a white employee showed her coworkers a family photo that included confederate flags and people depicting racist signs.
In January and February 2019, racist graffiti appeared in a bathroom used by Syncreon employees.
In February 2019, another plaintiff, whose claims were not dismissed by the trial court, found a noose while working and complained to management. A different unnamed Syncreon employee witnessed a supervisor cut up the noose.

Appellants further alleged racially motivated insults were common at the Plant and, further, that neither Harley Davidson nor Syncreon took any disciplinary action based on any of the conduct alleged. The Plant ultimately closed in May 2019.

Dismissal of Claims

Appellants filed an Amended Petition in 2021, in response to which Harley Davidson and Syncreon filed partial motions to dismiss, arguing Appellants’ claims for race discrimination, hostile work environment, and the separate claims for aiding and abetting against Harley Davidson and Syncreon failed to allege facts sufficient to state those claims. The trial court granted the dismissal of the race discrimination and hostile work environment claims, but initially denied the dismissal of the aiding and abetting claims.

Harley Davidson and Syncreon filed separate motions for clarification of that Order, arguing a “viable discrimination claim is a prerequisite to a claim of aiding and abetting discrimination.” Ultimately, the trial court agreed and clarified the Order, granting the dismissal of the aiding and abetting claims as well.

Appeal

The first issue addressed by the Court of Appeals was whether it had jurisdiction to consider the appeal, since the claims of seven additional plaintiffs remained before the trial court. Although the trial court certified its Judgment as appealable and none of the parties questioned the appellate court’s jurisdiction, the Court of Appeals declared it was first required, sua sponte, to determine whether it had jurisdiction over the appeal.

Specifically, the Court of Appeals was required to determine whether the trial court’s Judgment, dismissing Appellants’ claims, satisfied the requirements of a final judgment under Rule 74.01(b). The Court of Appeals determined the Judgment disposed of a distinct “judicial unit” because it dismissed all of the claims of some of the plaintiffs, which made it properly appealable. Further, the Court of Appeals found nothing in the record supported a conclusion that the trial court abused its discretion in certifying its judgment under Rule 74.01(b). As such, it held it had jurisdiction to hear this appeal.

Next, in considering whether Appellants stated a claim on which relief can be granted, it noted the standard of review requires the Court to determine only whether the pleaded facts are sufficient to state a cognizable cause of action or claim for relief. If the petition set forth any set of facts that, if proven, would entitle the plaintiffs to relief, then the petition states a claim for relief under Missouri law.

Appellants argued three points on appeal: (1) the trial court erred in dismissing the race discrimination and hostile work environment claims because they properly pled those claims; (2) the trial court erred in dismissing their aiding and abiding claims because the court erroneously applied the law; and (3) an underlying discrimination claim is not necessary to state a claim for aiding and abetting discrimination.

Hostile Work Environment

The Court of Appeals stated the familiar standard that, in order to plead a claim for hostile work environment, Appellants must have alleged facts showing: (1) they are members of a protected group under the Missouri Human Rights Act; (2) they were subjected to unwelcome harassment; (3) their membership in the protected group was a motivating factor in the harassment; and (4) a term, condition, or privilege of their employment was affected by the harassment.

Reviewing the Petition, Appellants plainly pled they were members of a protected group, satisfying the first element. Next, the Court of Appeals found their allegations exemplified unwelcome harassment and met the second required element of Appellant’s cause of action. Further, it found Appellants had sufficiently alleged the harassment was motivated by their race, meeting the third element. Here, Appellants alleged their race determined which bathrooms they could use and where they could go in the Plant. Additionally, the alleged racial epithets and racially derogatory symbols that were sufficient to establish the harassment was motivated by their race. In analyzing the final element, the Court noted Appellants were required to allege that a term, condition, or privilege of employment was affected by the harassment. The Court advised this element can be established by showing either a tangible employment action or an abusive working environment. In determining the hostility of the work environment, the Court noted it was required to consider the totality of the circumstances.

In contesting the appeal, Harley Davison and Syncreon argued that Appellants’ claim for hostile work environment failed because they did not allege they subjectively perceived any harassment. They alleged none of Appellants were identified as having personally experienced any of the incidents complained of. The Court of Appeals rejected this position outright, noting Harley Davison and Syncreon were arguing for a more exacting pleading standard than is required by Missouri law.

Appellant’s Amended Petition explicitly alleged that Harley Davidson and Syncreon “subjected [the Appellants] to a continuous pattern of hostile work environment based on race discrimination,” that the environment “was so pervasive or severe as to create a hostile work environment for each [Appellant],” and that the hostile work environment “unreasonably interfered” with each of the Appellant’s work performance, affected their physiological and psychological well-being, and caused them damage.

For these reasons, the Court of Appeals held Appellants sufficiently stated facts that, if true, would prove they were exposed to a hostile working environment because of their race. Importantly, the Court noted Appellants do not need to be the direct target of each and every racially motivated incident alleged to subjectively perceive harassment from the negative working conditions. As such, the Court of Appeals overruled the trial court’s dismissal of Appellant’s hostile work environment claim, finding Appellants properly stated a claim.

Race Discrimination

The Court of Appeals next set forth the requirements for stating a claim for race discrimination under the Missouri Human Rights Act. It held Appellants are required to show: (1) that they suffered an adverse employment action; (2) that their race was a motivating factor; and (3) that they were damaged as a result.

For the same reasons explained above, the Court of Appeals determined Appellants had sufficiently pled the first two elements of their race discrimination claim. Regarding the final element, the Court noted Appellants alleged they sustained damage, including, but not limited to, “emotional distress, humiliation, anxiety, dread, inconvenience, mental anguish, embarrassment, and deprivation of their civil rights.” Again, the Court of Appeals determined Appellants’ properly pled claims for race discrimination under the Missouri Human Rights Act, such that their claims were improperly dismissed.

Aiding and Abetting

Finally, having found that Appellants met the threshold pleading requirements to state claims for race discrimination and hostile work environment, the Court of Appeals also reversed the trial court’s dismissal of Appellants’ aiding and abetting claims, as those claims were dismissed solely on the basis that they were not supported by viable discrimination claims, which was no longer true.

Key Takeaway

This case serves as an important reminder that a Court of Appeals, in appropriate circumstances, may exercise jurisdiction when part of the case remains before the trial court. Here, the dismissal of all claims of some plaintiffs qualified as a distinct “judicial unit,” allowing these claims to be immediately appealable. As such, the trial court was allowed, under Rule 74.01(b), to exercise its discretion in certifying the Judgment as final and appealable.

The case also serves as a lesson that employees do not need to be the direct target of the alleged discriminatory or harassing conduct in order to have an actionable claim. When a protected class member witnesses pervasive discrimination against other members of his or her protected class, that may be sufficient to support that employee’s claim of a hostile work environment.

Meghan Kane Named Recording Secretary of Madison County Bar Association

26 May 2023

At the recent annual meeting of the Madison County Bar Association, Baker Sterchi Member Meghan Kane was named recording secretary for the 2023-2024 term.

The Madison County Bar Association is a legal organization of more than 600 attorneys dedicated to serving the needs of both attorneys and residents of Madison County, Illinois, part of the Greater St. Louis metropolitan area.

Kane is a civil defense lawyer with a focus on product and premises liability, as well as toxic tort litigation. She also serves as the vice chair of Illinois Defense Counsel’s Tort Law Committee and co-chair of Baker Sterchi's Toxic Tort Practice Group.

Baker Sterchi Welcomes 2023 Class of Summer Law Clerks

25 May 2023

Baker Sterchi is pleased to welcome its 2023 class of summer law clerks.

Summer law clerks in Kansas City include:

Allison Garrett, a rising 3L student at the University of Missouri School of Law, where she holds positions as the president of the Women's Law Association, editor-in-chief of the Journal of Dispute Resolution, and a law school ambassador. Garrett previously served as a judicial intern at the U.S. District Court for the Western District of Missouri. She earned her undergraduate degree in political science from Missouri State University.

Kaleb McKinnon, a rising 3L student at Drake University Law School, where he holds leadership roles as the president of the Black Law Student Association and Drake OUTLAWS. He is also a co-founder of the Corporate Law Society and a member of the Moot Court Board. McKinnon completed his undergraduate degree in political science with a minor in English at the University of Mississippi.

Andrew Snively, a rising 3L student at Pepperdine Caruso School of Law, where he serves as the president of the Veterans Legal Society and is a student ambassador. Snively previously served in the United States Air Force as a Financial Budget Analyst and completed a legal internship with the United States Coast Guard. He earned his undergraduate degree in business administration and management at Park University.

Summer law clerks in St. Louis include:

Manni Jandernoa, a rising 3L student at Saint Louis University School of Law. Jandernoa is a Note and Comment Editor for the Vol. 67 SLU Law Journal and LRW teaching assistant. They also hold the position of treasurer of OUTlaws and are a recipient of the 1843 Scholarship. They earned their undergraduate degree in political science and French, with a minor in mathematics at Southern Illinois University of Edwardsville.

Hans Liu, a rising 3L student at Washington University School of Law, where he serves as the president of the Criminal Law Society and holds the position of vice president in both the Asian Pacific American Law Students Association and Christian Legal Fellowship. He is also a recipient of the Scholar in Law Award. Liu previously served as a judicial extern with the U.S. District Court for the District of Idaho. He earned his undergraduate degree in history and international studies with minors in political science and Chinese at the University of Utah – Honors College."

Baker Sterchi's summer law clerks in both locations will attend hearings and depositions, prepare blog posts, and undertake various research projects. They will also have the opportunity to participate in social activities within their respective cities.

Michael Shunk to Moderate ALFA International Insurance Roundtable Discussion

25 May 2023

Baker Sterchi Member Michael Shunk will be moderating a roundtable discussion on "Shifting the Risk: Additional Insureds and Indemnity" at the ALFA International Insurance Roundtable seminar set to take place in Charleston, South Carolina.

The roundtable discussion, scheduled for June 1, will delve into topics such as coverage implications and overlapping concerns, how to navigate when there are multiple insureds, claims for indemnity and defenses to those claims, and inadequate limits. Additionally, the session will touch upon hold-harmless and indemnification agreements, as well as the obligation to procure and maintain insurance.

Shunk's practice centers around the defense of individuals, insurance carriers, and corporate clients in a range of cases, including personal injury, contract and commercial disputes, construction defect, and insurance coverage and bad faith issues. He is a member of the ALFA International Insurance Practice Group and co-chair of the Baker Sterchi Insurance Coverage and Bad Faith Practice Group.

Baker Sterchi is the Kansas City and Overland Park member firm of ALFA International, a leading global legal network consisting of 140 independent law firms across the United States and internationally. ALFA International offers educational programming in various practice areas, benefiting attorneys and clients of its member firms.

Clay Crawford to Present at DRI Insurance Bad Faith and Extra-Contractual Liability Seminar

24 May 2023

Baker Sterchi Member Clay Crawford will present on effective strategies for navigating policy and time limit demands at the DRI Insurance Bad Faith and Extra-Contractual Liability Seminar in Charlotte, North Carolina on June 15. The seminar will provide attendees with an overview of recent developments in case law and statutes, along with practical strategies to effectively defend against orchestrated bad faith situations.

Crawford focuses his practice on commercial, construction and personal injury matters in the insurance industry. He is a Fellow in the American College of Coverage Counsel and a member of ALFA International’s Insurance Practice Group. Crawford is admitted to practice in Missouri and earned his Juris Doctor from the University of Missouri-Kansas City School of Law.

DRI is the largest international membership organization for attorneys who defend the interests of businesses and individuals in civil litigation.

For more information or to register for the seminar, click here.

Jaylen Henderson Joins Baker Sterchi in St. Louis

23 May 2023

Baker Sterchi is pleased to welcome Jaylen Henderson as an associate in St. Louis. Henderson’s practice is focused in product liability, premises liability, wrongful death, commercial matters, and personal injury claims.

Prior to joining Baker Sterchi, Jaylen worked for another St. Louis area law firm, where he defended insurance companies and national corporations in personal injury and toxic tort litigation.

Henderson earned his law degree from the Saint Louis University School of Law and his undergraduate degree from Millikin University. He is admitted to practice in Missouri and Illinois.

Can an employee's hostile, abusive, or offensive speech actually be protected and, if so, when?

18 May 2023

ABSTRACT: Emphasizing that disputes over wages, hours, and working conditions are among the disputes most likely to provoke strong responses from employees, the NLRB once again broadens protection for an employee’s use of hostile, offensive and abusive conduct while engaged in Section 7 activity.

Few things in life are certain. But when an administration changes from Republican to Democratic, or vice versa, at least one thing is certain: the pendulum will swing, and NLRB case law will change.

In a 2020 decision, the NLRB changed the way it traditionally evaluated an employee’s hostile or abusive conduct that occurs during protected Section 7 activity and that leads to the employee’s discipline. In General Motors, 369 NLRB 127 (2020), the Board decided it would no longer apply long-established “setting-specific” standards to assess whether an employer wrongfully disciplined an employee who used offensive language or engaged in abusive conduct in connection with Section 7 protected activity. Instead, the General Motors Board determined the proper focus would be on the motive of the employer for taking the adverse employment action against the employee, adopting the Wright Line motive-focused standard. See Wright Line, 251 NLRB 1083 (1980). In other words, was the employee disciplined because the employer believed in good faith he used offensive language or abusive conduct in the workplace or was he actually disciplined because he was engaging in activity protected by Section 7?

In adopting the Wright Line standard, the General Motors Board specifically overruled: (1) the four-factor Atlantic Steel test, 245 NLRB 814 (1979), which governed employees’ conduct towards management in the workplace; (2) the totality-of-the-circumstances test announced in Desert Springs Hospital Medical Center, 363 NLRB 1824, 1839 fn. 3 (2016) and Pier Sixty, LLC, 362 NLRB No. 59 (2015), which governed social-media posts and most cases involving conversations among employees in the workplace; and (3) the Clear Pine Mouldings, 268 NLRB No. 173 (1984), standard, which governed picket-line conduct.

Now, with the recent Lion Elastomers, LLC II, 372 NLRD No. 83 (May 1, 2023), decision, the NLRB has once again restored these traditional “setting-specific” standards, overruling the General Motors’ decision. Under each of these three standards, offensive or hostile conduct that occurs during the course of Section 7 activity must be evaluated as part of that activity and not as if it occurred in the normal workplace context. https://apps.nlrb.gov/link/document.aspx/09031d4583a42c17. The Board found the General Motors motive-focused Wright Line standard did not give enough consideration to employees’ statutory rights and gave too much consideration to the interests of employers.

A key theme throughout the Lion Elastomers decision is that protected disputes over wages, hours, and working conditions are often going to be heated. That is to be expected. For this reason and considering the purpose of the Act, if the Board is going to potentially sanction an employer’s discipline of an employee due to the employee’s perceived misconduct, the Board has to first consider that misconduct (under the appropriate standard) in light of the foreseeable impact or chilling effect the discipline might have on the exercise of Section 7 rights.

The Board criticized the General Motors decision on the basis that it made the employer the arbiter of whether an employee’s conduct retains or loses the protection of Section 7. The Board expressed its concern that advancing “civility” as a statutory goal would give employer’s “dangerous discretionary power” over employees who exercised their statutory rights under the NLRA. Instead, it declared it is the role of the Board to evaluate and decide whether an employee retains or loses the protection of the Act based on his or her alleged misconduct, irrespective of the employer’s motive for the discipline.

The Board rejected the concerns the General Motors Board raised about the potential conflict between the “setting-specific” standards and an employer’s obligations under the Federal anti-discrimination statutes. The Board noted that the behavior at issue commonly equates to no more than offhand comments and isolated incidents, which unless extremely severe, are generally legally insufficient to create liability under the anti-discrimination laws. Further, the Board noted that it is required to accommodate other Federal statutes, just as those statutes must accommodate the NLRA. So, if the behavior at issue rises to a questionable level under the anti-discrimination laws, that is something the Board certainly is able to consider when assessing whether the employer’s discipline is lawful. As such, the Lion Elastomer Board found the “setting-specific” standards do not prevent the Board from complying with the Federal anti-discrimination statutes.

While acknowledging that employers have a legitimate interest in maintaining order and respect in the workplace, the Board held that it is tasked with balancing that interest against employees’ Section 7 rights. In the end, the crux of the Board’s decision is that it is Board’s job to referee the exercise of protected activity under the Act, not employers.

Key Takeaway

Surely, this decision will cause employers to suffer some significant heartburn, feeling as if they are damned if they take appropriate consistent corrective action against abusive or offensive conduct of employees, and damned if they do not take such action, recognizing the threat other litigation may ensue for failing to act.

Remember Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection”. This includes the right to discuss the terms and conditions of employment with each other, to disagree with the employer on these issues, to protest, and, quite frankly, to speak harshly in discussing or asserting their position.

If an employee is engaged in protected activity under Section 7 and also uses hostile, abusive, or offensive language or conduct, which you believe warrants discipline, before making a swift decision, first consult with an experienced employment attorney, who can help navigate these issues, weighing the appropriate setting-specific factors and hopefully mitigating the risks involved.

Scott Kreamer Named to Missouri Lawyers Media Business Defense POWER LIST

18 May 2023

For the third year in a row, Baker Sterchi Managing Member Scott Kreamer has earned recognition on Missouri Lawyers Media’s Business Defense POWER LIST.

The Business Defense POWER LIST features the 32 most powerful business defense attorneys in Missouri as identified by Missouri Lawyers Media’s editorial team after reviewing records of verdicts and settlements, interviewing attorneys and other leaders around the state, and examining Missouri Lawyers Weekly archives.

Kreamer is an experienced trial attorney, trying a wide variety of commercial, construction, financial services, insurance and product liability cases in state and federal courts. He has also served as national counsel for clients in the areas of toxic tort litigation and financial services.

Kreamer is a Fellow in the American College of Trial Lawyers, and a past chairman of the board and president of the Federation of Defense & Corporate Counsel, both of which are invitation-only organizations. He is currently serving as Vice President on the board of directors of Lawyers for Civil Justice, a coalition of defense bar organizations, law firms and corporations committed to reform in the civil justice system.