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Governor Nixon Vetoes Industry’s Efforts to Rein In Employment Discrimination Lawsuits

By Richard J. Behr

Richard J. BehrIn spite of strong opposition from the business community, Governor Jay Nixon recently vetoed Senate Bill 188.  The bill, which was championed by the Missouri Chamber of Commerce, was part of industry’s “Fix the Six” agenda.  Among other things, SB 188 was intended to bring Missouri law in line with the federal Civil Rights Act and cap damages in employment discrimination lawsuits.  Specifically, the bill would have replaced the current “contributing factor” burden of proof with the more stringent “motivating factor” standard.  The bill would have also limited individual supervisory liability for employment discrimination and removed a prevailing plaintiff’s ability to collect attorney’s fees in addition to other damages.

The Missouri Supreme Court explicitly adopted the “contributing factor” standard in 2007 following the case of Daugherty v. The City of Maryland Heights.  In the Daugherty case, the court found that the Missouri Human Rights Act defined discrimination as “any unfair treatment based on race, color, religion, national origin, ancestry, sex, age as it relates to employment . . . .”  The court found that there was nothing in the Act that required a plaintiff to prove that the protected characteristic was a “substantial” or “determining” factor in an employment decision. Relying on existing Missouri jury instructions, the court concluded the relevant inquiry was whether the protected characteristic was a “contributing factor” in the employer’s decision making. 

Had Governor Nixon not vetoed SB 188, the “contributing factor” standard of proof would have been abandoned in favor of the far more exacting “motivating factor” standard.  The “motivating factor” standard would have allowed employers to consider an employee’s race, religion, gender, age, or disability in making an employment related decision so long as none of those factors were a “motivating factor.”  Under the current “contributing factor” test, an employment decision may be found to be discriminatory (and thus unlawful) if an employee’s race, religion, gender, age, or disability contributes – even 1% – to the employment decision. Read the rest of this entry »

Attention on Deck! USERRA Gives Service Members and their Employers Additional Rights and Responsibilities

By Jason W. Kinser

Given our nation’s continued engagement in major military conflicts around the world and the lack of job opportunities here at home, it’s no surprise that both public and private employers are continuing to see an increase in claims being made under the Uniformed Services Employment and Reemployment Act (“USERRA”).  In broad terms, USERRA protects service members’ reemployment rights when returning from a period of service in the military, including those called up from the reserves or National Guard.  USERRA also prohibits employer discrimination based on military service or obligation. 

Unlike other federal employment related laws, USERRA applies to all employers regardless of the number of employees.  It applies to any person who: 1) is a past or present member of the uniformed service (Army, Navy, Marine Corps, Air Force, Coast Guard, and the Commissioned Corps of the Public Health Service); 2) has applied for membership in the service; 3) or who is otherwise obligated to serve.

 General Leave Requirements

One of the primary protections afforded by USERRA is its allowance of up to five years of cumulative leave from employment for active duty service which can be extended even further under some circumstances.  The five years of leave does not include “inactive” duty status such as drill weekends and annual trainings.  Although employees are required to provide reasonable notice of the need for the leave, the notice requirement may be waived when giving notice would be impossible, unreasonable, or precluded by military necessity.  Also, depending upon the length of the leave, the employee may be entitled to continue participating in the employer’s health insurance plan at no additional expense to the employee beyond the employee’s regular cost. Read the rest of this entry »

Sovereign Immunity: A Blanket of Protection for a Municipalities’ Bad Behavior?

By Liz Grana

Recently, in Brooks v. City of Sugar Creek, et al., the Missouri Court of Appeals, Western District, continued to uphold the finding that municipalities are generally entitled to  sovereign immunity in wrongful discharge actions brought by former employees against their municipal employers. More specifically, the Court reaffirmed that municipalities can not typically be held liable to former employees for wrongful termination, even if the former employee had a claim of intentional misconduct by the municipality.

A municipality has sovereign immunity from actions at common law tort “for those actions they undertake as a part of the municipality’s governmental functions—actions benefiting the general public.”  Kunzie v. City of Olivette, 184 S.W.3d 570, 574 (Mo. Banc 2006).  However, “municipalities have no immunity for torts while performing proprietary functions—actions benefiting or profiting the municipality in its corporate capacity.”  Id.  Often times, this “governmental” vs. “proprietary” functions distinction is difficult to decipher.  However, the Missouri Supreme Court  held that terminating a city employee is a governmental function and thus, a municipality is protected by sovereign immunity for terminations, unless a few rare exceptions apply. 

Read the rest of this entry »

The Regulation and Discipline of Physicians in Missouri

By Edward V. Crites

Missouri physicians are subject to a complex regulatory and disciplinary system.  As the grounds for physician discipline are many and varied, physicians and physicians’ attorneys must be prepared to respond to any disciplinary action that may arise.  Effective representation requires an understanding of the grounds and procedures for physician discipline as well as the proper utilization of constitutional and statutory arguments.  

Missouri Statutory and Regulatory Scheme

An attorney defending a Missouri physician in a disciplinary action must be familiar with the statutory and regulatory scheme.  The primary authority for physician discipline is Section 334.100.2 of the Revised Statutes of Missouri, which sets forth more than forty grounds for disciplinary action.  In accordance with the statute, the Missouri State Board of Registration for the Healing Arts (the “Board”) provides regulatory oversight for the medical profession.  The Board licenses physicians, investigates complaints filed against physicians, and imposes discipline.

Members of the public or the medical profession, or any federal, state or local official may file a complaint against a physician.  Once a complaint has been filed, the Board’s medical staff officer reviews the complaint and either requests an investigation or submits the complaint to the disciplinary committee.  Although the Board has wide-ranging discretion in disciplinary proceedings, its discretion is subject to review by the Administrative Hearing Commission (AHC).  Upon review of a complaint, the AHC hears evidence and decides whether the facts support the Board’s charges against the physician.  The AHC may also make a recommendation to the Board as to appropriate discipline.  Both AHC and Board decisions are subject to judicial review.  Read the rest of this entry »

St. Louis Contractor Referral NetworkSM/-4th “Meet and Greet”

On May 20, 2011, Behr, McCarter & Potter sponsored the St. Louis Contractor Referral NetworkSM fourth “Meet & Greet.”  The event, which was attended by over 150 members of the St. Louis construction industry, featured a presentation by Paul McKee of McEagle Properties and Steve Stone, on the history and current status of the St. Louis Lambert / China Hub project. The China Hub represents a tremendous opportunity for business development and economic growth for the St. Louis region.

The St. Louis Contractor Referral NetworkSM, which was founded by Behr, McCarter & Potter, has grown to nearly 1,700 members and includes general contractors, subcontractors, material suppliers, design professionals and service providers. The SLCRN provides networking and business development opportunities to those in the hard-hit construction industry and has been featured in the October 15, 2010 edition of the St. Louis Business Journal and in St. Louis Construction News and Real Estate.

Joplin Tornado

Our good friend and client, Con-Way Truckload (f/k/a CFI), as well as its past and present employees, were greatly affected by the May 22 tornado that devasted much of Joplin, Missouri. Below are two photographs sent to us by Dan Fowler of Con-Way Truckload.

Our thoughts and prayers will continue to be with all the people of Joplin. BMP and its employees are happy to have made a modest donation to the “Con-Way Truckload Employee Relief Fund” and to the American Red Cross to aid the victims of the tornado.

Meet Tom Hayek

Tom Hayek joined BMP in 1994 and since then has focused his practice on defending claims of professional negligence and products liability and representing clients in aviation litigation and personal injury cases. Tom originally studied engineering and obtained his B.S. in Electrical Engineering from the University of Missouri-Columbia in 1982 and his Masters degree in Engineering from Washington University in 1984. Tom attended law school at St. Louis University where he received the Everett Hullverson Award for Excellence in Trial Advocacy, and obtained his Juris Doctoris in 1989.

Tom also serves as a Colonel in the Missouri Air National Guard and was awarded the Air Force Meritorious Service Medal, Army and Air Force Commendation Medals, and Air Force Achievement Medal for his service as a Commander of the 732nd Expeditionary Civil Engineer Squadron in Al Asad, Iraq from December 2007 – June 2008.

When not in court or on deployment, Tom enjoys spending time with his wife Catherine and their two children, Ellen (17) and Tommy (15). Tom also maintains a Commercial Pilot’s Certificate with 900+ hours flight time and enjoys running marathons.

Firm News Summer 2011

Ed Crites and Jason Kinser represented Behr, McCarter & Potter, P.C. in the recent Keep Kids Safe 5k race to benefit the Kathy J. Weinman Advocacy Centre.  Ed set a blistering pace and was the second place finisher overall with a time of 20:46.

The Weinman Center is a multidisciplinary team comprised of representatives from child protection, law enforcement, prosecution, and the mental health community which coordinates services for victims of severe child abuse and neglect.  This coordination expedites the investigation and prosecution of abuse cases while ensuring that victims receive effective, sensitive and immediate support in a setting that puts their needs first.

Liz Grana was recently nominated to the Board of Directors for Microfinancing Partners in Africa and on Cor Jesu Academy Alumnae Board.

Brandon DeWitt was admitted to the Eastern District of Missouri Federal District Court and sworn in by the Honorable E. Richard Webber in June 2011.  Brandon also participated in the 2011 Bar of Metropolitan St. Louis (BAMSL) Annual Golf Outing.

Rich Behr recently obtained the dismissal with prejudice of a malpractice action filed in Madison County, Illinois against a physician and hospital client of Behr, McCarter & Potter.

This Missouri Spring Turkey Season was a wet one. Unfortunately, neither Steve Potter, Dudley McCarter or Stacy Jackson (the turkey-hunters in the office) were able to get a turkey this year. We hope our fellow hunters out there were able to fare better!

Ed Crites recently obtained summary judgment in favor of a municipality that was sued for injuries resulting from a vehicle leaving an unguarded T-intersection, going down an embankment and, eventually, over a 30 foot cliff.  Plaintiff’s experts claimed that the intersection should have had additional warnings or barricades to prevent vehicles from going off the roadway.  We successfully argued that we were entitled to judgment because: 1) under Section 537.500 RSMo the City had a complete defense because the intersection met the applicable construction and design standards that were in effect when it was constructed, and 2) the City owed no duty to make safe property off the traveled portion of the roadway.

The March-April 2011 issue of the Journal of the Missouri Bar featured an article by Ed Crites entitled, “The Regulation and Discipline of Physicians in Missouri.”  The article examines Missouri’s statutory scheme for discipline of physicians and outlines strategies for responding to disciplinary actions.

Ed Crites was re-elected President of the Warson Woods Running Club, which is in the process of planning this fall’s “Trot Thru the Woods” 5k run and 1/2 mile walk.  The event takes place the Saturday after Thanksgiving and goes through neighborhoods in Warson Woods.  Net proceeds are donated to charity.  BMP is again a proud founding sponsor.  Contact Ed Crites for details (ecrites@bmplaw.com).  Mark your calendars!

BMP Bar Results

Our BMP Bar Results rates St. Louis-area bars and restaurants with one (lowest) to five (highest) Scales of Justice.

Members of Behr, McCarter & Potter and their guests recently dined at Sage Urban American Grill, located at 1031 Lynch Street in historic Soulard across the street from the A-B Brewery.

The greeting was prompt and helpful and the ambience was a nice blend of an old building with a modern décor.  The lighting was sufficient, somewhat too dark and yet warm enough to suggest an evening house party.

We were seated, given menus, and our drink needs were promptly met with an assortment of local and familiar imported wines ($7-$10/glass). 

Our waitress was spread thin between several large dinner groups.  The wait staff was generally out of sync.  Water glasses were refilled slowly at first and those helping our server seemed to be less than prepared to follow through with details.  For example, the appetizers were set in the dining area by the kitchen staff, but did not make it to our table for 3-4 minutes when our server finally discovered them.  The assistant delivered the salads, but failed to offer fresh ground pepper.  However, another table experienced a spilled drink and the staff handled the incident with rapid grace.

The calamari, shrimp, and spinach dip appetizers fulfilled the expectations of the table.  The warm pita slices that accompanied the dip were particularly good.  The salads were fresh and flavorful, even without pepper.  The fire-roasted vegetable bisque was particularly good, a nice full texture and just enough spice.  The just-out-of-the-oven herb rolls that followed were light and very good.

Dinner entree portions were generous and the presentation of the food was pleasing.  Those enjoying the plank-grilled salmon noted how the flavor from the plank really enhanced the delicious fish.  The accompanying asparagus was pencil thin and tender.  The black bean hamburger was spicy and complemented with bright guacamole spread and accompanied by a side of sweet potato chips, which made for an outstanding light sandwich meal.

The finale hit a bull’s-eye; pie shots and fresh coffee!  The pie shots included German chocolate, key lime, crème brulee, banana, chocolate mousse and apple.

Overall, BMP gives Sage Urban American Grill 4 out of 5 SCALES OF JUSTICE.


Vendor: Microsoft Exam Code: 070-410 dumps Exam Name: Implementing a Data Warehouse with Microsoft SQL Server 2012 Version: DemoDEMO

QUESTION 1 You are developing a SQL Server Integration Services (SSIS) package to implement an incremental data load strategy. The package reads data from a source system. Depending on the value in a source column, the package redirects rows to one of five 70-696 dumps different data flow paths. You need to add a data flow transformation to support the package redirection. Which data flow transformation should you use? A. Conditional Split B. pjvot C. Multicast D. Lookup Correct Answer: A

QUESTION 2 You are developing a SQL Server 070-463 dumps Integration Services (SSIS) project that contains a project Connection Manager and multiple packages. All packages in the project must connect to the same database. The server name for the database must be set by using a parameter named ParamConnection when any package in the project is executed. You need to develop this project with the least amount of development effort. What should you do? (Each answer presents a part of the solution. Choose all that apply.) A. Create a package parameter named ConnectionName in each package. B. Edit each package Connection Manager. Set the ConnectionName property to @ [$Project::ParamConnection]. C. Edit the project Connection Manager 70-410 dumps in Solution Explorer. Set the ConnectionName property to @ [$Project::ParamConnection]. D. Set the Sensitive property of the parameter to True. E. Create a project parameter named ConnectionName. F. Set the Required property of the parameter to True. Correct Answer: BEF

QUESTION 3 You develop a SQL Server Integration Services (SSIS) package in a project by using the Project Deployment Model. It is regularly executed within a multi-step SQL Server Agent job. You make changes to the package that should improve performance. You need to establish if there is a trend in the durations of the next 10 successful executions of the package. You need to use the least amount of administrative effort to achieve this goal. What should you do? A. After 10 executions, view the job history for the SQL Server Agent job. B. After 10 executions, in SQL Server Management Studio, view the Execution Performance subsection of the All Executions report for the project. C. Enable logging to the Application Event Log in the package control flow for the Onlnformation event. After 10 executions, view the Application Event Log. D. Enable logging to an XML file in the package control flow for the OnPostExecute event. After 10executions, view the XML file. Correct Answer: B

QUESTION 4 A SQL Server Integration Services (SSIS) 2012 package currently downloads sales data from a Windows Azure SQL Database database. To improve sales data accuracy, exchange rates must be downloaded daily from a public HTTP website instead of from a weekly flat file. The public website hosts a comma- separated values (CSV) file that contains one row per currency. You need to download the CSV file to the environment. What should you use to retrieve the document from the website? A. a Script component B. a Web Service 70-331 dumps task C. a Web Service source D. a Script task Correct Answer: D

QUESTION 5 You are preparing to install SQL Server 2012 Master Data Services (MDS). You need to ensure that the database requirements are met. What should you install? A. Microsoft SharePoint Server 2010 Standard Edition SP1 B. Microsoft SharePoint Server 2010 Enterprise 070-489 dumps Edition SP1 C. SQL Server 2012 Data Center (64-bit) x64 on the database server D. SQL Server 2012 Enterprise (64-bit) x64 on the database server Correct Answer: D

QUESTION 6 You are designing an Extract, Transform and Load (ETL) solution that loads data into dimension tables. The ETL process involves many transformation steps. You need to ensure that the design can provide: Auditing information for compliance and business user acceptance Tracking and unique identification of records for troubleshooting and error correction What should you do? A. Develop a Master 70-414 dumps Data Services (MDS) solution. B. Develop a Data Quality Services (DQS) solution. C. Create a version control repository for the ETL solution. D. Develop a custom data lineage solution. Correct Answer: D

QUESTION 7 You are designing a SQL Server Integration Services (SSIS) project that uses the Project Deployment Model. The project will contain 10 packages. All the packages must connect to the same data source anddestination. You need to define and reuse the connection 70-486 dumps managers in all the packages by using the least development effort. What should you do? A. Implement parent package variables. B. Copy and paste connection managers from one package to the others. C. Implement project connection managers. D. Implement package connection managers. Correct Answer: C

QUESTION 8 You have a secured database that contains all of the customer data for your company. You plan to use a project deployment model. You need to create a SQL Server 1ntegration Services (SS1S) package that connects to the database by using a dedicated username and password. 70-487 dumps The solution must ensure that the password used for the connection string is encrypted. Which two actions should you perform? (Select Two) A. Select the Sensitive check box for the catalog environment. B. Set the sensitive property of the package parameter to True. C. Modify the set_execution parameter_value stored procedure. D. Set the package protection level to EncrypSensitiveWithPassword. Correct Answer: CD

QUESTION 9 You are developing a SQL Server 1ntegration Services (SS1S) package. The package sources data from an HTML web page that lists product stock levels. You need to implement a data flow task that reads the product stock levels from the HTML web page. Which data flow sources should 70-480 dumps you use? Select Two A. Raw File source B. XML source C. Custom source component D. Flat File source E. script component Correct Answer: CE

QUESTION 10 You develop a SQL Server Integration Services (SSIS) package in a project by using the Project Deployment Model. It is regularly executed within a multi-step SQL Server Agent job. You make changes to the package that should improve performance. You need to establish if there is a trend in the durations of the next 10 successful executions of the package. You need to use the least 70-412 dumps amount of administrative effort to achieve this goal. What should you do? A. Enable logging to an XML file in the package control flow for the Onlnformation event. After 10 executions, view the XML file. B. After 10 executions, view the job history for the SQL Server Agent job. C. After 10 executions, in SQL Server Management Studio, view the Execution Performance subsection of the All Executions report for the package.D. Enable logging to an XML file in the package control flow for the OnPostExecute event. After 10 executions, view the XML file. Correct Answer: C

QUESTION 11 You are editing a SQL Server Integration Services (SSIS) package that contains a task with a sensitive property. You need to create a project parameter and configure it so that its value is encrypted when it is deployed to the SSIS catalog. Which three steps should you perform in sequence? (To answer, move the appropriate actions from the list of actions to the answer area and arrange them in the correct order.) Select and Place: Correct Answer: QUESTION 12 You are building a SQL Server Integration Services (SSIS) package to load data from all files that are automatically copied to a directory each night through an external FTP process. You need to load data from all copied files to a destination table in SQL Server. Which three steps should you perform in sequence? (To answer, move the appropriate actions from the list of actions to the answer area and arrange 70-532 dumps them in the correct order.) Select and Place:Correct Answer:

QUESTION 13 You are creating a sales data warehouse. When a product exists in the product dimension, you update the product name. When a product does not exist, you insert a new record. In the current implementation, the DimProduct table must be scanned twice, once for the insert and again for the update. As a result, inserts and updates to the DimProduct table take longer than expected. You need to create a solution that uses a single 070-413 dumps command to perform an update and an insert. How should you use a MERGE T-SQL statement to accomplish this goal? (To answer, drag the appropriate answer choice from the list of options to the correct location or locations in the answer area. You may need to drag the split bar between panes or scroll to view content.)Select and Place:Correct Answer:

control flow is shown in the answer area.