The court, in determining whether or not the employer, Goldstar, did or did not employ the requisite 20 fulltime equivalents, took into consideration other companies which were under the common ownership of the owners of Goldstar Transport, Inc.

While the court found that Goldstar Transport employed 19.4 fulltime equivalents, and therefore did not violate COBRA regulations, such a holding should be small comfort for other companies which are under “common control” of an ownership group.

If you have questions whether your situation does or does not satisfy the “common control” standard for determining if employment benefits are to be available to current or former employees, or if you have not been given notice of the opportunity for  those benefits, contact the attorneys at Weiss Attorneys at Law.

If you have questions, please contact us 314/588-9500 or email us at www.weisslawstl.com.

Y’all be careful out there!

If you have questions, please contact us 314/588-9500 or email us at www.weisslawstl.com.

Even though your company or employer may not be as large as Verizon, the take away remains the same:  a company must carefully structure policies which, while on their face are perhaps neutral and fair, nonetheless may discriminate against employees in a protected class.  Reviewing those policies to determine whether or not a potential violation could occur, or has occurred, is an area of employment law in which Weiss Attorneys at Law regularly practices.  If you have questions, please contact us 314/588-9500 or email us at www.weisslawstl.com.

On appeal, the Court first considered the Uniform Condominium Act, which provides that common expenses benefiting fewer than all of the units shall be assessed exclusively against the units benefited only to the extent required by the condominium declaration (the “Declaration”).  The Court then reviewed the Declaration and found that the Declaration did not specifically state that the elevators were a limited common element and allowed the Association to assess their cost of repair as a common expense associated with all condominium unit owners. Summary judgment for the Association was affirmed.  This case reiterates the importance of a condominium’s declaration and the effects it can have on condominium unit owners throughout Missouri.

Weiss Attorneys at Law, P.C. provides guidance and representation regarding all types of real estate matters, including condominium law. If confronted with a real estate issue, please contact the attorneys at Weiss Attorneys at Law, P.C.

Recently, I read a case where unmentionable, okay it is mentionable, conduct formed the basis for suing a mother for intentional as well negligent infliction of emotional distress, in addition to psychological abuse for such conduct, as:

• Making a son wear a seatbelt;
• Setting a curfew for a daughter on homecoming night;
• Not including any type of gift with birthday and holiday cards to the children;
• Not sending care packages until junior year of college; and
• Taking a new surname upon remarriage, thereby “causing attention at the daughter’s school events.”

As an attorney, I would have to question why one would ever bring this type of case, ex-spouse or otherwise.  Certainly there are slights in life, some actionable and some not.  Childrearing is not a science and some perform substantially better than others.  But bringing a lawsuit under this type of fact situation is just ridiculous. Fortunately, the court found as much and dismissed the case, stating that ruling in favor of the plaintiffs would “potentially open the floodgates to subject family childrearing to…excessive judicial scrutiny and interference.”

These are the types of actions that give a profession in which so many people do so many good things a bad rap.

John Doe was a student at Swinney Elementary School, which is part of the Kansas City, Missouri School District (“School District”).  In October 2010, Doe filed a Petition against the School District alleging that the District failed to protect him from sexual harassment and sexual assault by a fellow student, which constituted sex discrimination that deprived him of the full, free and equal use and enjoyment of the School District’s elementary school, a public accommodation.

Doe alleged that beginning in May 2009, he was sexually harassed and sexually assaulted by another student on multiple occasions during school hours and on school grounds.  Doe asserted the perpetrator climbed under the stalls in the boys’ restroom to commit the sexual harassment and sexual assaults.  Doe further alleged that school administrators, as well as the teachers and paraprofessionals responsible for supervising him and the perpetrator, had knowledge of the perpetrator’s inappropriate and sexualized behavior and his aggressive tendencies.  Despite knowledge of the perpetrator’s sexual tendencies, school personnel permitted the perpetrator to use the restroom at the same time as other male students.  Consequently, the perpetrator had the opportunity to sexually harass and sexually assault him.  Doe contended that, as a result of the sexual harassment and sexual assaults, he experienced emotional distress in the form of anxiety, fear and depression, among other manifestations.

Doe asserted the School District’s acts and omissions violated the MHRA, Chapter 213, RSMo.  Specifically, he alleged the sexual harassment and sexual assaults occurred on the basis of his gender and constituted sex discrimination.  He further claimed that Swinney Elementary School, as part of the School District, was a public place of accommodation, and that he was deprived of the full, free and equal use and enjoyment of the school and its services by way of the School District’s actions and inactions.

The School District moved to dismiss Doe’s Petition.  Following a hearing, the Circuit Court granted the School District’s motion to dismiss on the basis that Doe failed to state a cause of action under the MHRA against the School District.  Doe thereafter appealed the decision.

On appeal, the Missouri Court of Appeals relied upon Section 213.065 of the MHRA, which provides in relevant part:

1.  All persons within the jurisdiction of the state of Missouriare free and equal and shall be entitled to the full and equal use and enjoyment within this state of any place of public accommodation, as hereinafter defined, without discrimination or segregation on the grounds of race, color, religion, national origin, sex, ancestry, or disability.

2.  It is an unlawful discriminatory practice for any person, directly or indirectly, to refuse, withhold from or deny any other person, or to attempt to refuse, withhold from or deny any other person, any of the accommodations, advantages, facilities, services, or privileges made available in any place of public accommodation, as defined in section 213.010 and this section, or to segregate or discriminate against any such person in the use thereof on the grounds of race, color, religion, national origin, sex, ancestry, or disability.

3.  The provisions of this section shall not apply to…a place of accommodation…or other establishment which is not in fact open to the public. . . .

Section 213.010(15) defines “places of public accommodation” as “all places or businesses offering or holding out to the general public, goods, services, privileges, facilities, advantages or accommodations for the peace, comfort, health, welfare and safety of the general public or such public places providing food, shelter, recreation and amusement[.]”

The Missouri appellate court noted that whether Section 213.065 covers a claim against a public school district for sex discrimination based upon student-on-student sexual harassment is a matter of statutory interpretation. The primary goal of statutory interpretation is to ascertain the legislature’s intent from the language used and to give effect to that intent.  Courts must interpret statutes consistently with the legislature’s obvious purpose.  In ascertaining that purpose, courts should not read statutory provisions in isolation but, rather, they should construe the provisions of a legislative act together and read a questioned phrase in harmony with the entire act.

The court further noted that Section 213.065 is a remedial statute.  Therefore, courts should interpret it liberally to include those cases which are within the spirit of the law and all reasonable doubts should be construed in favor of applicability to the case.

With this in mind, the School District argued on appeal that public schools are specifically excluded as places of public accommodation by Section 213.065.3 because they are “not in fact open to the public” because members of the general public do not have unfettered and unlimited access to them.  Accordingly, the issue on appeal was whether a place of public accommodation must be accessible by all members of the public to be “open to the public.”

In analyzing the issue, the Missouri Court of Appeals explained that Missouri courts have long considered public school districts to be both subdivisions of the State and public corporations.  In addition, prior case law has specifically recognized “that an entity can be said to serve the public even if it serves only a subset or segment of the public and is subject to regulation on that basis.”  The court therefore found that limiting the phrase “open to the public” in Section 213.165.3 to mean accessible by all members of the populace would be contrary to the legislature’s intent and would effectively nullify the prohibition against discrimination in public accommodations.  As such, the court held that because Doe alleged that Swinney Elementary School was a public facility that was owned, operated or managed by a public school district, which was a subdivision of the State of Missouri and a public corporation, he sufficiently pled that Swinney Elementary School was a place of public accommodation.

In his Petition, Doe also asserted that the School District was liable under the “indirect” theory set forth in Section 213.065.2, as he claimed that the School District, by its actions and inactions in failing to protect him from the harassment and assaults, was responsible for denying him the full and equal use and enjoyment of the public school and its services.  The Missouri Court of Appeals stated that because Section 213.065.2 alternatively prohibits a person from “indirectly” denying the benefits of a public accommodation, the statute also contemplates liability for a party who does not personally engaged in the discriminatory acts but who is responsible for the denial of the advantages, facilities, services or privileges of a public accommodation that results from another’s discriminatory acts.  The court noted that a school district exercises significant control over its students through its disciplinary policy.  And because it has such control over its students, a school district’s failure to take prompt and effective remedial action to address a student’s sexually harassing and sexually assaulting another student has the potential to deny the aggrieved student the full and equal use and enjoyment of the advantages, facilities, services and privileges of the public school.  Thus, the court found that the Section 213.065 encompasses a claim against a school district for student-on-student sexual harassment in a public school.

Finally, the court reiterated that an employer is liable under Section 213.055.1(1)(a) for the sexual harassment of one co-worker by another if the employer knew or should have known of the harassment and failed to take prompt and effective remedial action.  After a lengthy analysis, the court held that the standard for a public school district’s liability for student-on-student sexual harassment under the MHRA should be the same as that for an employer’s liability for co-worker sexual harassment under the MHRA.  In other words, a public school district can be held liable if it knew or should have known of the harassment and failed to take prompt and effective remedial action.

Based upon the foregoing, and construing Doe’s petition liberally and according it all reasonable inferences deducible from the facts stated, the Missouri Court of Appeals reversed the Circuit Court’s judgment and held that Doe sufficiently stated a cause of action under Section 213.065 for discrimination in a public accommodation based on student-on-student sexual harassment.

Weiss Attorneys at Law provides guidance and representation regarding all types of employment matters, including sexual harassment and sexual discrimination claims.  If confronted with an employment issue, please contact the employment law attorneys at Weiss Attorneys at Law.

In the litigious society in which we live, asset protection can be of extreme importance to many individuals. Doctors, lawyers and small-business owners should be concerned about the potential personal liability of their respective professions. Traditionally, these concerns have been addressed by these couples owning their property as “tenants by the entirety.” Tenancy by the entirety ownership is available only to married couples. It is similar to joint tenants with right of survivorship in that upon the death of one spouse, the surviving spouse becomes the outright owner of the jointly owned assets. However, a separate creditor of one spouse may attach the debtor-spouse’s half interest in JTWROS property, subject to a few exceptions, but a separate creditor of one spouse cannot take any part of tenancy by the entirety property. Until recently, a typical married couple had to choose whether to utilize the advantages of a revocable trust (i.e., avoidance of probate, full utilization of the federal estate tax “Unified Credit” amount) or to instead own their assets as tenants by the entirety for the asset protection benefits. In Missouri, tenancy by the entirety ownership is presumed for assets owned by a husband and wife unless another form of ownership is indicated.

Missouri recently enacted legislation creating a Qualified Spousal Trust (QST) to allow couples to have the advantages of both. A QST allows a husband and wife to transfer tenancy by the entirety property into a trust and maintain the asset protection that tenancy by the entirety provides, but eliminates the requirement that the property pass wholly to the survivor. The property of a QST may be held as one trust fund, revocable by either or both spouses, or as two separate shares, one for each spouse, with each spouse having the right to revoke the trust as to his or her share.

Traditionally, for a husband and wife with assets over the Unified Credit threshold, two separate and distinct trusts would be formed — one for the husband and one for the wife. This division, while maximizing the traditional estate tax planning benefits, offered little asset protection. The QST allows a husband and wife to transfer property held as tenants by the entirety to the trust, keep the asset protection given to property held by tenants by the entirety, and still receive the benefits of utilizing both spouses’ Unified Credit. Traditional Asset Protection Trusts continue to provide better asset protection but they are often too expensive, cumbersome and impractical for most married couples to create and administer. Under the QST, the spouses can continue to control the assets by being the Trustees.

Under current federal tax laws, the estate tax Unified Credit exemption has been increased, and estate tax concerns regarding the allocation of asset ownership between spouses has been eliminated. A married couple may now leave up to $10 million to their children and other beneficiaries without incurring any estate tax. These changes have caused many couples to opt for a joint revocable trust rather than separate revocable trusts created by each spouse.

And, of concern to some married couples in the situation above, utilization of the QST does not change either party’s marital rights to the transferred property in the event of divorce.

Conclusion

If you have questions regarding how you can protect yourself, both financially and in the personal care you receive as your situation changes, please contact the attorneys here at Weiss Attorneys at Law, P.C.  or call us at 314/588-9500 or email us at law@weisslawstl.com to discuss how the attorneys at Weiss Attorneys at Law, P.C. can help you in your personal affairs and your business. We pride ourselves in giving practical advice to meet your objectives.

The federal judge first concluded that the employer had specific obligations to provide the employee notice of the date on which her FMLA leave would be exhausted, as a matter of law.  Its failure to do so constituted, on its face, a viable legal claim for “interference” with her protected FMLA rights.

The trial court granted partial summary judgment to DST on the basis that his claims regarding his 2003 salary reduction and DST’s 2005 refusal to give him a temporary assignment were time barred because they were brought outside the 180 day time period allotted for filing a charge of discrimination under Section 213.075.1, RSMo.  The plaintiff thereafter appealed the decision.  On appeal, the plaintiff argued that the claims were timely brought under the “continuing violation” doctrine.  The Missouri Court of Appeals ultimately affirmed the trial court’s decision.

In its opinion, the Missouriappellate court noted that in determining the timeliness of a claim, there are two distinct types of discriminatory acts.  At one end of the spectrum are events that can be identified individually as “significant events.”  The U.S. Supreme Court has termed such events “discrete acts” that occur at a particular moment in time.  By way of example, courts have held that termination, failure to promote, denial of transfer, or refusal to hire are easily identifiable discrete acts.  To be sure, “[e]ach incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable, unlawful employment practice[,]…[which] are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act.”

The court then explained that on the other end of the spectrum are “continuing violations” that consist of repeated conduct extending over a period of time.  One example of a continuing violation is a hostile work environment claim.  Hostile work environment claims differ from discrete act claims in that by their very nature they involve repeated conduct, where liability is based on the cumulative effects of individual acts.  A continuing violation is established when the plaintiff shows “a series of closely-related, similar events that occurred within the same general time period and stemmed from the same source” that “continued into the limitations period.”  In other words, continuing violations are day-to-day discriminatory events that occur on a regular basis, which may not be significant individually but establish a continuing violation due to their cumulative effect.

Importantly, the Missouri Court of Appeals emphasized that “discrete acts that fall within the statutory time period do not make timely acts that fall outside the time period.”  Accordingly, in analyzing the facts of Tisch, the court held that only those acts that occurred 180 days before April 21, 2006, the date the plaintiff filed his MCHR discrimination charge, were actionable.  Hence, the only claim the plaintiff timely filed was the 2006 failure to promote claim; and the timely 2006 claim could not make timely the separate discrete discriminatory acts alleged to have occurred in 2003 and 2005.

Weiss Attorneys at Law provides guidance and representation regarding all types of employment matters, including discrimination claims.  If confronted with an employment issue, please contact the employment law attorneys at Weiss Attorneys at Law.

After a Board of Adjustment has made a decision to grant or deny a request for a variance, Missouri courts must give deference to that decision.  In reviewing a decision by a Board of Adjustment, a court is limited to determining whether the Board’s decision is supported by competent and substantial evidence upon the whole record, or whether the decision is arbitrary, capricious, unreasonable, unlawful, or in excess of the Board’s jurisdiction.  Moreover, the court must view the evidence and reasonable inferences therefrom in a light most favorable to the decision.

On March 20, 2012, the Missouri Court of Appeals reiterated the foregoing principles, but made it clear that a Board of Adjustment exceeds its authority by granting a variance to relieve mere inconvenience to the property owner.  In Board of Alderman of the City of Cassville v. Board of Adjustment of the City of Cassville, et al., the property owner applied for a non-use variance to allow him to keep a carport that he built which infringed upon the five foot side yard setback requirement.  During the hearing, the property owner argued in part that removing the carport would create a hardship for his daughter and granddaughter because they would have to “get out in the rain and snow.”  After the hearing, the Board of Adjustment granted a variance for a property owner, finding that the lot was unique in size and that failure to grant the variance would cause the property owner unnecessary hardship.  The Missouri Court of Appeals reversed the Board’s decision both as to the uniqueness of the property and the hardship.

In its decision, the Missouri Court of Appeals opined that the property owner “presented no evidence that the infringement was due to exceptional narrowness, shallowness, or the shape of his property, or showed exceptional topographical conditions or other exceptional circumstances that prohibit him from using his property in the same manner as the other residents in his zoning district. . . .”  The court further stated that “the attributes of his property do not create the uniqueness, but his attempted use makes his property unique.”  Accordingly, the court held that the Board of Adjustment’s decision was not supported by competent and substantial evidence as to the uniqueness of the lot.

With regard to whether the property owner would suffer unnecessary hardship, the Court of Appeals noted that a person seeking a non-use variance must demonstrate that, as a practical matter, the property cannot be used for a permitted used without coming into conflict with the restrictions contained in the ordinances.  The court opined that the phrase “practical difficulties or undue hardships” as that term is used in variance ordinances does not refer to conditions personal to the landowner in question, but rather refers to the conditions especially affecting the lot in question and must be different from that suffered throughout the zone or neighborhood.  With respect to the property owner at issue, the Court of Appeals held that subjecting individuals to rain and snow “is nothing more than merely an occasional inconvenience.”  And “[l]egislation granting relief by way of variances to zoning codes is not intended to relieve mere occasional inconvenience.”  As such, the court held that the decision of the Board of Adjustment was arbitrary, capricious, unreasonable and unlawful.

Weiss & Associates, P.C. provides guidance and representation regarding all types of real estate matters, including zoning and variance issues.  If confronted with a real estate issue, please contact the attorneys at Weiss & Associates, P.C.