State ex rel. Anheuser-Busch, LLC, Relator v. The Honorable Joan L. Moriarty

SUPREME COURT OF MISSOURI
en banc
STATE EX REL. ANHEUSER-BUSCH, ) Opinion issued December 24, 2019
LLC, )
Relator, )
)
v. ) No. SC97845
)
THE HONORABLE JOAN L. )
MORIARTY, )
Respondent. )

ORIGINAL PROCEEDING IN PROHIBITION

Anheuser-Busch, LLC ("A-B"), filed a petition for a writ of prohibition directing

the circuit court to vacate the portion of its March 5, 2018, order overruling A-B's motion

to dismiss and to dismiss the underlying plaintiff's first amended petition with prejudice

for failure to state a claim upon which relief could be granted. This Court issued a

preliminary writ of prohibition. Because the plaintiff, John Esser, was neither aggrieved

nor adversely impacted in Missouri, the MHRA does not provide a remedy for his claims.

Considering neither the circuit court nor the court of appeals had the benefit of this Court's

opinion in Tuttle v. Dobbs Tire & Auto Centers, Inc., No. SC97721, __S.W.3d__ (Mo.

banc Dec. 24, 2019), also issued today, and because an adequate remedy can be provided

by appeal, the preliminary writ is quashed.
 Factual Background and Procedural History

Esser, a resident of Urbandale, Iowa, has worked for A-B since 1983, holding

several different positions since that time. 1 In 2007, Esser became a retail sales director

over a sales territory that included Iowa, Minnesota, Nebraska, North Dakota, and South

Dakota. 2 While Esser was a retail sales director, his direct supervisor, secretary, and other

support staff were located in A-B's regional sales office in St. Louis, Missouri. While

employed as a retail sales director, Esser made monthly trips to the St. Louis office for

meetings, reviews, and training.

Beginning in 2012, Esser alleged A-B began a pattern and practice of discriminating

against its older employees in favor of its younger employees. 3 Specifically, Esser alleges

the following in his first amended petition:

(1) In 2012, while in St. Louis, A-B's vice president of sales for the Midwest

region informed Esser he was going to receive a performance rating of 3B 4

on his annual performance review, which was lower than his rating the year

before;

1
From 1983 until 1988, Esser alleges he worked for A-B throughout Missouri, but he does not
allege what his actual job position was or what the extent of his contacts with Missouri were during
that time period.
2
When Esser was not traveling throughout his sales territory, he worked out of his home in
Urbandale, Iowa.
3
Esser was 55 years old at the time his petition was filed with the circuit court.
4
A performance rating of 3B means an employee is performing adequately and could move
laterally within the company. Esser's rating of 3B meant he would not be receiving a pay raise or
any stock options. Esser further alleges younger employees, who had a lower performance rating
than him, still received pay raises and stock options from A-B.
2
 (2) In 2013, Esser attended a meeting in St. Louis at which A-B's chief financial

officer—and later vice president of sales— made questionable remarks about

"experienced" and "mature" A-B employees;

(3) In 2013, A-B's vice president of sales for the midwest region informed Esser

he was going to receive a performance rating of 1A 5 on his annual

performance review;

(4) In 2013, Esser was given an "Expectations Letter" stating he could face

termination or other disciplinary action if his performance did not improve

in 90 days;

(5) In 2014, during a meeting in St. Louis, Esser was given another 3B rating in

his annual performance review, meaning Esser would not receive a pay

increase or stock options;

(6) In 2015, Esser's superior—who was located in St. Louis—informed him via

telephone call he was receiving a downgraded 1A performance rating on his

annual performance review;

(7) In 2015, Esser was informed via telephone call by three A-B directors—two

of whom were located in St. Louis—he could not keep his current job as a

retail sales director;

5
A rating of 1A means an employee needs to improve performance and would not receive stock
options for the current year.
3
 (8) In 2016, a memo was sent from the St. Louis office to all employees in Esser's

region stating, effective immediately, Esser was moving to a non-equity

market manager position.

Esser filed a charge of discrimination against A-B with the Missouri Commission

on Human Rights ("MCHR"). The MCHR provided Esser with a notice of right to sue,

and Esser filed suit in the St. Louis City circuit court, alleging age discrimination in

violation of § 213.055 6 and retaliation in violation of § 213.070. 7 A-B filed a motion to

dismiss, or, in the alternative to compel arbitration. After the first motion to dismiss was

filed, Esser amended his petition to include new allegations pertaining to his contacts with

Missouri. A-B filed a second motion to dismiss, arguing Esser could not invoke the

protections of the MHRA as an Iowa resident and employee. The circuit court overruled

both the motion to dismiss and the motion to compel arbitration. 8

The circuit court's order recognized Missouri's presumption against extraterritorial

application of laws, but ultimately concluded Esser stated a claim under the MHRA

because "the acts alleged did not occur wholly outside of Missouri." After the court of

appeals denied writ relief, A-B sought a writ of prohibition from this Court directing the

circuit court to vacate the portion of its order overruling A-B's motion to dismiss and to

6
All statutory references are to RSMo 2016, unless otherwise provided.
7
Esser's retaliation claim arose from a 2013 phone call he made to A-B directors located in
St. Louis. During the phone call, Esser expressed he was being discriminated against by A-B
because of his age. Esser also alleges he informed the vice president of sales for the Midwest
region of these complaints via a letter dated September 19, 2013.
8
Pursuant to § 435.440, A-B immediately appealed the portion of the circuit court's order denying
the motion to compel arbitration. The court of appeals affirmed the denial. See Esser v. Anheuser-
Busch, LLC, 567 S.W.3d 644 (Mo. App. 2018). Because this Court denied A-B's applications for
transfer as to that portion of the motion, it is not an issue considered in this opinion.
4
dismiss Esser's first amended petition with prejudice for failure to state a claim upon which

relief could be granted. This Court issued a preliminary writ of prohibition. At the time

of these rulings neither the circuit court nor the court of appeals had the benefit of this

Court's opinion in Tuttle v. Dobbs Tire & Auto Centers, Inc., __S.W.3d__ (Mo. banc 2019).

It is argued this Court could exercise its discretion to make the preliminary writ permanent

or, in the alternative, quash the preliminary writ to give the circuit court the opportunity to

reconsider the motion to dismiss in light of Tuttle. As demonstrated by Tuttle, A-B has an

adequate remedy on appeal. See Rule 84.22(a).

Standard of Review

This Court has jurisdiction to issue original remedial writs. Mo. Const. art. V, § 4.1.

A writ of prohibition is appropriate: (1) to prevent the usurpation of judicial
power when a lower court lacks authority or jurisdiction; (2) to remedy an
excess of authority, jurisdiction or abuse of discretion where the lower court
lacks the power to act as intended; or (3) where a party may suffer irreparable
harm if relief is not granted.

State ex rel. Key Ins. Co. v. Roldan, No. SC97623, 2019 WL 5558334, at *1 (Mo. banc

Oct. 29, 2019).

Analysis

I.

"The MHRA protects important societal interests by prohibiting unlawful

employment practices on the basis of . . . age." Tuttle, SC97721, at *4 (alterations in

original). "It shall be an unlawful employment practice . . . [f]or an employer, because of

the . . . age . . . of any individual . . . to discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of employment, because of such

5
individual's . . . age." § 213.055.1(1)(a). The MHRA requires a person be aggrieved by an

unlawful discriminatory practice before filing a complaint with the MCHR. See §

213.075.1 ("Any person claiming to be aggrieved by an unlawful discriminatory practice

may make, sign and file with the commission a verified complaint in writing[.]" (emphasis

added)); § 213.111.1 ("[T]he commission shall issue to the person claiming to be aggrieved

a letter indicating his or her right to bring a civil action[.]" (emphasis added)).

The MHRA defines the phrase "unlawful discriminatory practice" as "any act that

is unlawful under this chapter." § 213.010(18). "Aggrieved" is not defined by the MHRA.

"In the absence of statutory definitions, the plain and ordinary meaning of a term may be

derived from a dictionary, and by considering the context of the entire statute in which it

appears." Mantia v. Mo. Dep't of Transp., 529 S.W.3d 804, 809 (Mo. banc 2017)

(emphases omitted). The word aggrieved means "showing grief, injury, or offense; having

a grievance; specif: suffering from an infringement or denial of legal rights." WEBSTER'S

THIRD NEW INT'L DICTIONARY 41 (3d ed. 2002). This Court held in Kader v. Board of

Regents of Harris-Stowe State University, 565 S.W.3d 182 (Mo. banc 2019), and

reaffirmed most recently in Tuttle that "an allegedly discriminatory act must have had some

adverse impact on the plaintiff before it becomes actionable." Tuttle, SC97721, __ S.W.

3d at *5 (internal quotation and emphasis omitted); see also Kader, 565 S.W.3d at 189.

"Said another way, it is the adverse impact that is actionable under the MHRA, but only if

that adverse impact resulted from a prohibited discriminatory practice." Tuttle, SC97721,

__ S.W. 3d at *5.

6
 The relevant facts of this case are similar to Tuttle. In Tuttle, the plaintiff, an Illinois

resident, worked exclusively in Illinois for Dobbs Tire as a store manager. Tuttle alleged

Dobbs Tire discriminated against him because of his age by transferring him to a lower

performing store, transferring a number of illegitimate expenses to Tuttle's store to distort

its profit numbers, and making him sign certain documents younger store owners did not

have to sign. Tuttle alleged Dobbs Tire's actions amounted to his constructive discharge

from the company. Tuttle tendered his resignation and filed a lawsuit in the circuit court

of St. Louis County, claiming both age discrimination and retaliation in violation of the

MHRA.

In evaluating Tuttle's claims, this Court first looked to the language of the MHRA,

noting that a plaintiff must be aggrieved before having an actionable claim under the

MHRA. Next, the Court looked to its previous declaration in Kader, that a plaintiff must

have suffered an adverse impact from an allegedly discriminatory act before a claim is

actionable under the MHRA. Because Tuttle's claims of adverse impact—specifically the

loss of Illinois wages, loss of benefits of his Illinois employment, and mental anguish

arising from his discharge from his Illinois job—all occurred outside of Missouri, the

MHRA does not provide a remedy. Tuttle, at *6. Neither Esser nor the concurring opinion

7
pointed to any text in the MHRA suggesting it was intended to provide relief for Esser's

claims. As such, Tuttle's reasoning applies with equal force here. 9

Like Tuttle, Esser alleges he can invoke the protections of the MHRA because the

alleged discriminatory decision making process occurred in Missouri. Several adverse

impacts allegedly arose from this process, including lower performance reviews in regards

to his Iowa job, loss of wages and employment benefits from his Iowa job, emotional

distress because of actions taken toward his Iowa job, and demotion from his Iowa job. As

recently reaffirmed in Tuttle, however, it is not the decision making process giving rise to

relief under the MHRA. The right to relief comes from being aggrieved by or suffering an

adverse impact from the allegedly discriminatory practice. Taking all of Esser's allegations

9
As explained in Tuttle:

[T]his Court applies the long-standing presumption that Missouri statutes, absent
express text to the contrary, apply only within the boundaries of this state and have
no extraterritorial effect. Rositzky v. Rositzky, 46 S.W.2d 591, 595 (Mo. 1931) ("[I]t
is the settled law and almost axiomatic that the statutes of a state or country
prescribe the law within its boundaries only, and have no extraterritorial force or
effect.") . . . To evade the presumption, Tuttle alleges that he is not asking this Court
to apply the MHRA extraterritorially because certain decisions were made in
Missouri. While decisions may have occurred in Missouri, decisions are not
actionable under the MHRA; adverse impacts from discriminatory practices are
actionable. With no actionable adverse impact in Missouri, Tuttle is asking for this
Court to apply the MHRA to a purely extraterritorial event. Moreover, the MHRA
contains no express text evidencing the necessary intent to allow for its
extraterritorial application. While Tuttle may have been aggrieved, he was
aggrieved in Illinois. Therefore, the presumption against extraterritorial application
precludes the application of the MHRA to Tuttle's age discrimination and
retaliation claims.

Tuttle, at *6-7 (footnotes omitted).
8
as true, the only place where he may have been aggrieved or suffered an adverse impact

from an allegedly discriminatory practice is Iowa.

II.

"If relator has an adequate remedy by appeal, prohibition will be denied." State ex

rel. Baldwin v. Dandurand, 785 S.W.2d 547, 549 (Mo. banc 1990). "The right to appeal

did not exist at common law and is conferred by statute." Id. Section § 512.020 provides:

Any party to a suit aggrieved by any judgment of any trial court in any civil
cause from which an appeal is not prohibited by the constitution, nor clearly
limited in special statutory proceedings, may take his or her appeal to a court
having appellate jurisdiction from any:
....

(5) Final judgment in the case or from any special order after final judgment
in the cause; but a failure to appeal from any action or decision of the court
before final judgment shall not prejudice the right of the party so failing to
have the action of the trial court reviewed on an appeal taken from the final
judgment in the case.

A-B does not have the instant right to appeal the circuit court's overruling of its

motion to dismiss, as the circuit court's judgment did not dispose of any—much less all—

issues in the case. 10 However, § 512.020 provides A-B with the opportunity to appeal once

10
"A judgment may dispose of fewer than all claims against all parties. Rule 74.01(b).
Such a judgment is final for purposes of appeal if it disposes of at least one judicial
unit and the circuit court expressly finds there is no just reason for delay.
Otherwise, when a judgment is entered in the case disposing of the last claim, that
becomes the final judgment for purposes of appeal and it necessarily incorporates
all prior orders or judgments that adjudicated some – but fewer than all – of the
claims and the rights and liabilities of all the parties." State ex rel. Henderson v.
Asel, 566 S.W.3d 596, 598 n.2 (Mo. banc 2019) (Internal citations and quotations
omitted).

9
a final judgment is entered in the underlying case. "Because the remedy of appeal is

available, prohibition will be denied." Dandurand, 785 S.W.2d at 550.

Conclusion

An MHRA claim is not actionable until one is aggrieved by an allegedly

discriminatory practice. Because Esser was aggrieved solely in Iowa, the MHRA does not

provide him with relief. Even though it is argued this Court could exercise its discretion

to make the preliminary writ permanent, for prudential reasons it is more appropriate to

quash the preliminary writ to allow the circuit court to reconsider the motion to dismiss in

light of Tuttle. Additionally, "No original remedial writ shall be issued by an appellate

court in any case wherein adequate relief can be afforded by an appeal or by application

for such writ to a lower court." Rule 84.22(a). Because A-B may seek relief by appeal

after a final judgment, making the preliminary writ permanent would be inappropriate. The

preliminary writ was improvidently granted and the same is quashed.

___________________________
Zel M. Fischer, Judge

Wilson, Russell, and Powell, JJ., concur;
Draper, C.J., concurs in result only in separate opinion filed;
Breckenridge and Stith, JJ., concur in opinion of Draper, C.J.

10
 SUPREME COURT OF MISSOURI
en banc
STATE EX REL. ANHEUSER-BUSCH, )
LLC, )
)
Relator, )
)
v. ) No. SC97845
)
THE HONORABLE JOAN L. )
MORIARTY, )
Respondent. )

OPINION CONCURRING IN RESULT ONLY

The principal opinion quashed a preliminary writ of prohibition concerning the

circuit court’s dismissal of John Esser’s (hereinafter, “Esser”) age discrimination and

retaliation claims brought pursuant to the Missouri Human Rights Act (hereinafter,

“MHRA”) against Anheuser-Busch, LLC (hereinafter, “A-B”). Consistent with my

dissenting opinion in Tuttle v. Dobbs Tire & Auto Centers, Inc., No. SC97721, ___ S.W.3d

___ (Mo. banc December 24, 2019), I believe Esser’s petition states a claim for relief when

applying this Court’s standard of review. Further, I believe there is no legal support for

the principal opinion’s proposition that a claimant must demonstrate he or she was

“aggrieved” or incurred “an adverse impact” as an element of a discrimination claim or
that a decision is insufficient to satisfy this newly announced element. Therefore, I would

quash the writ for different reasons.

The MHRA regulates employer conduct by prohibiting employers from engaging

in unlawful discriminatory practices. Section 213.055.1(1)(a) 1 provides “[i]t shall be an

unlawful employment practice … [f]or an employer … to discriminate against any

individual … because of such individual’s … age ….” “Specifically, [section] 213.055 is

a remedial prohibition against discrimination in the employment context.” Howard v. City

of Kan. City, 332 S.W.3d 772, 779 (Mo. banc 2011). “Remedial statutes should be

construed liberally to include those cases which are within the spirit of the law and all

reasonable doubts should be construed in favor of applicability to the case.” Lampley v.

Mo. Comm’n on Human Rights, 570 S.W.3d 16, 23 (Mo. banc 2019) (quoting Mo. Comm’n

on Human Rights v. Red Dragon Rest., Inc., 991 S.W.2d 161, 166-67 (Mo. App. W.D.

1999)). This liberal construction comports with the standard of review when examining

the circuit court’s ruling on a motion to dismiss, which requires this Court to assume all

facts alleged in Esser’s petition are true and all reasonable inferences to be drawn from

those facts must be in Esser’s favor. Jackson v. Barton, 548 S.W.3d 263, 267 (Mo. banc

2018).

Although Esser pleaded the elements of an age discrimination claim, the principal

opinion inexplicably adds an additional hurdle requiring Esser to demonstrate he is

“aggrieved” or has incurred an “adverse impact” that occurred in Missouri to state a claim

1
All statutory references are to RSMo 2016.
2
under the MHRA. “In construing a statute, courts cannot ‘add statutory language where it

does not exist’; rather, courts must interpret ‘the statutory language as written by the

legislature.’” Peters v. Wady Indus., Inc., 489 S.W.3d 784, 792 (Mo. banc 2016) (quoting

Frye v. Levy, 440 S.W.3d 405, 424 (Mo. banc 2014)). At the time Esser filed his claim,

section 213.055 required a plaintiff alleging age discrimination to demonstrate only:

“(1) the plaintiff is a member of a protected class; (2) the defendant discharged plaintiff;

(3) plaintiff’s age was a contributing factor in such discharge; and (4) plaintiff was

damaged.” Thomas v. McKeever’s Enter. Inc., 388 S.W.3d 206, 214 (Mo. App. W.D.

2012). 2 Section 213.055 does not require a person to demonstrate he or she was

“aggrieved” or suffered an “adverse impact”—in Missouri—to state a claim for

discrimination.

The principal opinion’s reliance on section 213.075.1, which permits “any person

claiming to be aggrieved by an unlawful discriminatory practice may make, sign and file

with the commission a verified complaint in writing” is unavailing. This same statutory

section permits the attorney general to likewise file a complaint. 3 Certainly the attorney

general cannot demonstrate he or she is “aggrieved” or suffered “an adverse impact” when

filing a complaint challenging an unlawful discriminatory practice.

2
Thomas’ statement that a plaintiff must demonstrate his or her membership in a protected
class was a contributing factor in a plaintiff’s discharge was abrogated by the 2017 MHRA
amendments. However, Esser filed his discrimination petition before the 2017
amendments took effect.
3
This contrasts with the attorney general’s power to file a civil suit to challenge violations
of the MHRA pursuant to section 213.126.
3
 The principal opinion perpetuates its faulty reliance on Kader v. Board of Regents

of Harris-Stowe State University, 565 S.W.3d 182, 189 (Mo. banc 2019), for the

proposition that a discriminatory act “must have had some adverse impact on the plaintiff

before it becomes actionable” under the MHRA. Kader addressed whether the employer’s

action constituted an unlawful discriminatory practice as submitted in a jury instruction.

Id. at 186-90. Kader did not address where the unlawful discriminatory practice occurred.

The principal opinion also relies on Kader to support its holding that an employer’s

decision cannot give rise to a cause of action. However, contrary to the principal opinion’s

assertion, Kader contains no such language to this effect. This Court has held where an

employer’s decision making occurred is a relevant inquiry in determining where a

discriminatory practice occurred, not if a discriminatory practice occurred. Igoe v. Dep’t

of Labor & Indus. Relations of Mo., 152 S.W.3d 284, 288 (Mo. banc 2005).

When examining Esser’s petition under the appropriate standard of review, Esser

has pleaded copious facts demonstrating A-B engaged in unlawful discriminatory practices

in Missouri such that Esser’s claims should proceed. Esser reported to a regional sales

office located in St. Louis. From 2010 to 2016, Esser’s retail sales director position was

based out of the midwest sales office located in St. Louis. Esser’s immediate supervisor,

secretary, other support staff, and the human resources department were located in

St. Louis. Esser visited St. Louis at least monthly for meetings, training, and employee

reviews. Notably, Esser attended several employee reviews either in St. Louis or while

speaking with St. Louis personnel via telephone. At these meetings, Esser received the

lower job performance reviews, which impacted his salary, benefits, and stock options.

4
During one such review in St. Louis, Esser was told although he was eligible for a

promotion, A-B was looking to enhance the salary and incentives of employees who had a

“long term future” with A-B, ostensibly to the detriment of Esser, who was fifty-one years

old at the time. Esser attended training in St. Louis in which an A-B vice president told

managers to not be afraid to let “experienced” employees go because the company had a

“full bench of young people.” This same vice-president encouraged other vice presidents

to look for “mature” people in the company and find “a way to move them on.” Esser

formally complained to his supervisor and human resources about these instances

impacting older employees. Thereafter, Esser received a lower performance review, was

issued no stock options, and was demoted before he resigned. Esser also was told A-B was

“looking to replace positions with younger people” and became aware of a meeting with

employees under the age of forty from Esser’s region who were encouraged and enticed to

remain employed with A-B, while employees older than forty were not included. Hence,

I would hold the numerous decisions and practices that occurred in Missouri, which Esser

alleged constituted unlawful discriminatory practices, are actionable under the MHRA.

The principal opinions analogizes this case to Tuttle. Without diminishing Tuttle’s

factual pleadings, Esser undoubtedly presents an even stronger connection between A-B’s

alleged unlawful practices and Missouri than in Tuttle.

The principal opinion blithely dismisses Esser as merely working at “his Iowa job,”

but Esser worked for a Missouri employer for more than thirty years and performed

components of that job in Missouri. When taking his petition allegations as true, a Missouri

employer subjected Esser to unlawful discriminatory practices that occurred in Missouri

5
for several years. The principal opinion disregards the focus and purpose of the MHRA to

regulate the conduct of Missouri employers, not to require employees who have been

subjected to unlawful discriminatory practices to plead and prove elements not required by

the statute. Missouri employers should be held accountable for engaging in unlawful

discriminatory practices occurring in Missouri and causing harm to their employees, even

if those employees are located in another state. The principal opinion encourages Missouri

employers to engage in unlawful discriminatory practices against its out-of-state

employees with impunity, knowing their decision to engage in those insidious practices

will not be actionable in Missouri.

Based on the foregoing, I would quash A-B’s writ of prohibition and allow Esser’s

claims to proceed.

__________________________
GEORGE W. DRAPER III, JUDGE

6