Joan M. Swartz: ‘They’re not above the law’

Joan Swartz opened her own firm in 2000, where she now focuses her practice on matters relating to employment law and sexual harassment claims. Photo by T.L. Witt.

Lawyer of the Year

March 2022 was a milestone in Joan Swartz’s career, and for the state of employment discrimination law in Missouri.

After more than 11 years of litigation, including an initial victory overturned by the Missouri Supreme Court and a second trial dashed by the pandemic, Swartz won an award now worth nearly $3 million on behalf of a former administrative law judge who faced discrimination on the job — and who had died while waiting for his day in court.

As that trial was underway, Swartz prevailed in an appellate case for a separate client, allowing his discrimination suit to proceed and clarifying a key deadline that let innumerable other Missouri plaintiffs to get their claims into court.

Swartz’s victories occurred on both sides of the state, at opposite ends of the litigation process and on either side of a substantial change in Missouri law. But they share an irony. Swartz, Missouri Lawyers Media’s 2023 Lawyer of the Year, went to battle with the very state agency that was supposed to have vindicated her client’s rights.

“Both of these cases are about holding these governmental entities accountable,” Swartz said. “They’re not above the law. They have to follow rules too.”

‘He was devastated’

Swartz remembers when her one-time law school classmate Matthew Vacca came to her office in 2011, shortly after he had been terminated as an administrative law judge.

“He was devastated,” she said. “His emotional state was very fragile.”

Vacca had been a judge with the Missouri Department of Labor and Industrial Relations since 1992 and had been diagnosed with a chronic form of muscular dystrophy for most of that time. Initially, he had received accommodations, including the ability to work from home some days.

But after a change in leadership in Division of Workers’ Compensation, Vacca alleged that his accommodations were questioned and that he received unfair evaluations. He was terminated in 2011.

Vacca had been in Swartz’s section at Saint Louis University School of Law, where Swartz earned her degree in 1987. They weren’t close, she said, but they had a number of mutual friends, and she agreed to take his case.

“Quite frankly, I helped him because I felt compelled to help him,” she said. “I knew him, and I knew what had happened to him was wrong and I couldn’t look away. I couldn’t turn him down.”

That launched a case that would ultimately be tried three times and span half of Swartz’s career as a solo practitioner.

“I had no idea that something like 12 years later I would be talking to someone about this case,” she said.

In 2015, Swartz won a $7 million award for her client following a two-week trial in St. Louis. According to Missouri Lawyers Media’s annual Verdicts & Settlements rankings, it tied for the 20th largest plaintiff’s win of the year. Swartz was named an Influential Lawyer at the 2016 Missouri Lawyers Awards for her role in the case.

Inconsistent claims

But things turned sour on appeal. In 2017, the Court of Appeals Eastern District partly affirmed the verdict but said Vacca had failed to present evidence to justify the jury’s $3 million punitive damage award — a portion of which had been rendered against the department’s former director, Brian May, who is now a circuit judge in neighboring St. Louis County.

The Supreme Court then agreed to review the case and took an even dimmer view. Vacca had claimed in his discrimination suit that could have continued working for the next 20 years, but he had taken the opposite position in the simultaneous dissolution of his marriage, in which was awarded maintenance because he said he was totally unable to work.

In 2019, the Supreme Court unanimously held that Vacca was judicially estopped from making such inconsistent claims — which the court said was particularly concerning given his legal background and “intimate familiarity with the world of disability.”

The court nonetheless said the case could be retried, so long as the claims were limited to those that didn’t require Vacca to show he was able to continue working. So Swartz returned to St. Louis Circuit Court, with a trial that began March 9, 2020.

A week later, another Supreme Court order would upend the case once again, though for entirely different reasons. As the COVID-19 pandemic swept Missouri, the court strictly limited in-person hearings. Judge Bryan Hettenbach was forced to declare a mistrial.

From left to right, paralegal Jodi Carpenter, managing attorney Joan Swartz and trial attorney Jenifer Snow outside The Law Offices of Joan M. Swartz in St. Louis. (Photo by T.L. Witt)

A two-year delay

Swartz said she had been nearly done presenting her side of the case, including putting her client on the stand for two days of questions and cross examination. Her frustration matched her client’s, and she was left to wonder what that apparently attentive and engaged jury might have done with the case.

“That’s all you can ask for as a trial attorney — a jury that’s going to hear the evidence and weigh the evidence and really pay attention to what’s happening,” she said.

Status conferences were set and then delayed nearly monthly for two years before the court system opened back up. In late 2021, Hettenbach set the rescheduled trial for March 2022.

The trial setting came too late for Vacca, who had died that October. Nonetheless, though her client didn’t live to see it, Swartz said she believes she did win a measure of justice for him. Vacca’s daughter, Dr. Francesca Vacca, who was substituted as the plaitiff, read her father’s testimony from the 2020 trial.

On March 16 — two years to the day after the earlier mistrial was declared — jurors sided with Vacca’s estate on a claim of retaliation, awarding $160,000 in actual damages and $1.2 million in punitive damages. In late January, the court more than doubled that award by approving $1.56 million in attorneys’ fees and costs, which included much of the work from the earlier trials.

“When the original judgment was reversed and remanded by the Supreme Court, the practical legal work of Plaintiff’s attorneys did not disappear,” Hettenbach wrote. “Rather, the preparation and presentation of Plaintiff’s attorneys at the third and (for now) final trial, resulting in a substantial jury verdict, were built upon the discovery, research, evidentiary and testimonial platforms of the first two trials.”

Making an impact

Even if it is resolved tomorrow, Vacca’s case will easily be the longest running effort Swartz has pursued for an individual client. Yet it’s also emblematic of the kind she’s tailored her practice to take.

After working for larger law firms such as Lashly & Baer and Herzog Crebs, Swartz struck out on her own and opened the Law Offices of Joan M. Swartz in 2000. In the more than two decades that have followed, she has established herself as one of a small number of female trial litigators in Missouri. She’s also led the legal community through her roles on The Missouri Bar Board of Governors, the Bar Association of Metropolitan St. Louis, the St. Louis Bar Foundation and the American Bar Association.

Her practice is influenced by both professional interest and personal tragedy. Her eldest son, David, was diagnosed with malignant melanoma at 14. He died in 2008 at age 19.

“After that occurrence in our lives, I sifted out what I loved and didn’t love about all kinds of things,” she said. “In my practice, I decided I was going to focus on that which I could make an impact.”

As it turned out, just as Vacca’s trial was getting underway in St. Louis, the Kansas City-based Court of Appeals Western District ruled favorably in another of her cases — and forced a key state agency to change its practices.

Following the rules

Mohammad Najib, who alleges he faced discrimination while working at a southwestern Missouri hospital, had brought his claims to the Missouri Commission on Human Rights, which is required by Missouri law to review the claims before a lawsuit can proceed. However, the agency kept Swartz’s client waiting for more than a year before deciding that no suit could be filed.

In 2017, the state legislature overhauled the state’s employment discrimination statutes. Among other changes, the new law requires plaintiffs to prove that discrimination was the employer’s “motivating factor,” rather than the less stringent “contributing factor” standard previously recognized. The law also exempts some entities, including those owned or operated by religious or sectarian organizations, from such suits.

The commission said the religious exemption applied to the hospital system where Najib worked. But the Western District held that the agency’s administrative review period is just 180 days. If the commission isn’t finished with its investigation at that point, the court said, it must issue the plaintiff a right-to-sue letter if one is requested.

Once the Supreme Court declined the state’s request to review the case, the commission said it would adhere to the six-month deadline. In a recent interview, Timothy Faber, the chairman of the Human Rights Commission, said the agency is now conducting a pilot project to speed up claims.

Najib, meanwhile, has been repeatedly cited in similar cases in the appellate courts, aiding other plaintiffs whose claims had been languishing. Swartz called it a “crucial” decision.

“Najib is really a reminder that you are a creature of statute and regulations, and you must follow them,” she said.