Labor and Employment

Editor:
Bryan Cavanaugh, Esquire

Summary judgment was not proper because the employee’s continued employment and continued access to customer relationships formed sufficient consideration and because genuine issues of material fact existed concerning the employer’s alleged prior material breach. JumboSack Corporation v. Buyck, No. 98134 (Mo. App. E.D., May 21, 2013), DePriest, J.

JumboSack sued Buyck, its former employee, for violation of his non-compete agreement.  The trial court granted Buyck summary judgment on the grounds that (1) the non-compete agreement lacked consideration, and (2) JumboSack committed a prior material breach of the non-compete agreement.  JumboSack appealed.

Held: Reversed and remanded.
  The first issue was whether the employee’s continued employment and continued access to customer relationships was sufficient consideration for the non-compete.  Buyck had signed the non-compete six months after starting work for Jumbo Sack.  The court of appeals first found that continued employment and continued access to the employer’s confidential information and customer relationships serve as adequate consideration for a non-compete, even if it is signed after employment begins.  The second issue was whether Jumbo Sack had committed a prior material breach, which would prevent it from enforcing the non-compete against Buyck.  These alleged prior material breaches involved JumboSack’s unilaterally changing Buyck’s compensation plan.  The court of appeals found there were genuine issues of fact about whether JumboSack materially breached the non-compete, so summary judgment was inappropriate.


The employee’s claims were so interrelated as to qualify for the “continuing violation” exception to the two-year statute of limitations under the MHRA. Plengemeier v. Thermadyne Industries, Inc. et al, No. 99193 (Mo. App. E.D., June 4, 2013), DePriest, J.

Plengemeier alleged she underwent a series of incidents motivated by her gender, including Thermadyne’s denying her a promotion in 2009 and failing to pay her as much as a similarly-situated male co-worker from 2006 to 2010.  Plengemeier’s last day working for Thermadyne was January 13, 2010.  She filed a charge of gender discrimination with the Missouri Commission on Human Rights on April 21, 2010.  She received a right-to-sue letter on October 14, 2011, and she filed her lawsuit on January 10, 2012.  Thermadyne filed a motion to dismiss on the basis that she filed her lawsuit after the two-year statute of limitations for violation of the Missouri Human Rights Act.  The trial court granted that motion and dismissed Plengemeier’s lawsuit.

Held: Reversed and remanded. 
The court of appeals found that Plengemeier’s lawsuit was timely based on the continuing violation exception to the two-year statute of limitations.  The last alleged incident of discrimination was January 13, 2010, and she filed her lawsuit on January 10, 2012.  Thermadyne argued that the failure to promote in 2009 was a discrete act, separate from the alleged discriminatory pay, which continued until January 13, 2010.  The court of appeals disagreed, finding that the alleged failure to promote was part of the same alleged pattern and practice of gender discrimination, which continued until January 13, 2010.  The court said, “Appellant has pled conduct that goes beyond a few isolated incidents and alleges an ongoing practice.  The discrimination asserted by Appellant is based on the cumulative effect of individual acts of disparate treatment over time.”  Considering the petition should be construed liberally, the court of appeals reversed and remanded to the trial court with instructions to reinstate Plengemeier’s discrimination claim.