332 S.W.3d 207
Mo. Ct. App.2010Background
- Echols was employed as a custodian by the City of Riverside and was terminated in October 2007.
- Echols claimed retaliation for a discrimination complaint he filed with the Missouri Human Rights Commission.
- Before May 1, 2007, Echols had unwritten performance concerns; on May 1, he filed a written complaint about a supervisor’s derogatory remarks.
- The City hired an independent firm; the investigation found the complaint not credible, and Echols stated he was satisfied with the process.
- After a new supervisor was hired on May 6, 2007, Echols received at least twenty written performance complaints within six months.
- In September 2007 Echols was suspended for an outstanding warrant; after resolving it, he returned to work; Echols filed an EEOC charge on Oct. 4, 2007, which was officially filed Nov. 8, 2007.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether unemployment benefits offset was properly applied. | Echols argues offset was improperly used and waived. | City argues offset was an available defense, not waived. | Offset not properly pled; reversal of offset. |
| Whether the City validly pled or proved an offset/credit defense. | Waived due to lack of proper pleading. | Affirmative defense existed; trial implied consent. | Waiver; affirmative defense not properly pled; recognized as error. |
| Whether Echols’ unemployment benefits could mitigate backpay in retaliatory discharge. | Benefits should not reduce backpay for employer wrongdoing. | If properly pled, benefits may offset backpay. | Even if pled, offset not allowed; not necessary to decide due to waiver. |
Key Cases Cited
- Roth v. Roth, 176 S.W.3d 735 (Mo. App. E.D.2005) (credit/offset must be pled and proved; not raised by verdict)
- Norman v. Wright, 100 S.W.3d 783 (Mo. banc 2003) (credit under § 537.060 is an affirmative defense; must be pled)
- Mobley v. Baker, 72 S.W.3d 251 (Mo. App. W.D.2002) (pleading required for affirmative defenses)
- CADCO, Inc. v. Fleetwood Enters., Inc., 220 S.W.3d 426 (Mo.App. E.D.2007) (pleadings define issues; relief limited to pleadings)
- Phipps v. School District of Kansas City, 645 S.W.2d 91 (Mo.App. W.D.1982) (collateral source rule; employer source matters)
- Washington by Washington v. Barnes Hosp., 897 S.W.2d 611 (Mo. banc 1995) (collateral source rule; avoid windfall)
- E.E.O.C. v. Fin. Assurance, Inc., 624 F. Supp. 686 (Mo.App. W.D.1985) (review of backpay offset abuse of discretion)