Franke, Schultz & Mullen, PC | Derek Johannsen Wins Appeal
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Derek Johannsen Wins Appeal

On March 31, 2015 the Missouri Court of Appeals for the Western District upheld a Jackson County court’s decision to grant of summary judgment in an employment discrimination and retaliation case.  In Case No. WD 77704, Appellant Eric Butkovich alleged that he was discriminated against, terminated and retaliated against for refusing to take actions which he believed were retaliatory in nature against a former employee who had filed a sexual discrimination case.  The Court determined that Derek’s client, the Lee’s Summit prosecutor, was entitled to summary judgment as a matter of law.
The Missouri Court of Appeals, Western District, ruled, Per Curiam, that an individual asked to fill in to perform the work duties of a person who has filed a sexual discrimination claim does not aid or abet any such discrimination or commit an act of retaliation against the claimant merely by following direction and performing ordinary work duties.  Rule 44.01(b) provides that when an act is required to be done at a specified time, "the court for cause shown may at any time in its discretion[,] . . . after the expiration of the specified period[,] permit the act to be done where the failure to act was the result of excusable neglect." In other words, after Brown failed to file the brief within the time specified, it was incumbent for the City to demonstrate excusable neglect in order to be granted leave to file a brief out of time. The only basis the City had for making that showing was to state the facts of what occurred, and it would not matter in doing so whether Brown was identified by name because she was listed on all court filings prior to that time. It can hardly be said that in trying to meet its burden of showing excusable neglect that the City was engaging in acts or a practice prohibited by Chapter 213 because regardless of whether Brown believed she had good reason for not filing a respondent's brief, she was most certainly "to blame" for the brief not being filed in that she was responsible for filing the brief and did not do so. Moreover, while there may be sound reasons for an attorney to decide not to file a respondent's brief in a given case, at the time he refused to handle the appeal, Appellant had no reason to believe such circumstances existed in the Cook appeal.
Appellant admitted having absolutely no knowledge of the nature of the harassment claim that had been made by Brown. He stated in his deposition that he had heard through rumors in the courthouse that Brown had filed a harassment complaint but that he had not heard any details regarding the nature of the claim and that he had not wanted to know any of the details. In light of his undisputed lack of knowledge related to the claims and the fact that there were clearly legitimate reasons for the filing of the requested motion for leave to file a respondent's brief out of time, Appellant cannot establish that he had a good faith, reasonable belief that the actions were retaliatory in nature.
In short, under the undisputed facts, when Appellant refused to handle the appeal, he had no reasonable good faith basis for believing that doing so would constitute a retaliatory act under the MHRA, and there was no factual basis that could support a finding that the Respondents attempted to coerce Appellant to aid and abet an act of retaliation against Brown.