In Tisch v. DST Systems, Inc., the plaintiff employee brought an action against his employer for reverse gender discrimination, age discrimination, and retaliation in violation of the Missouri Human Rights Act (“MHRA”), Section 213.010, RSMo., et seq. Specifically, the plaintiff alleged that he suffered from numerous discriminatory and retaliatory acts, including: (1) in 2003, the plaintiff was demoted and his salary was reduced by thirty-eight percent; (2) in 2005, the plaintiff was denied a transfer within the DST company structure in favor of a younger female co-employee; and (3) in 2006, the plaintiff was denied a promotion within the employment structure of DST in favor of a much younger male co-employee. Despite DST’s alleged discriminatory conduct dating back to 2003, the plaintiff did not file a Charge of Discrimination with the Missouri Commission on Human Rights until April 21, 2006.
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 Missouri appellate 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.