United States Court of Appeals

For the Eighth Circuit

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No. 18-2850

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Joseph S. Von Kaenel

lllllllllllllllllllllPlaintiff - Appellant

v.

Armstrong Teasdale, LLP

lllllllllllllllllllllDefendant - Appellee

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Appeal from United States District Court

for the Eastern District of Missouri - St. Louis

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 Submitted: September 24, 2019

Filed: December 3, 2019

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Before SMITH, Chief Judge, BEAM and ERICKSON, Circuit Judges. 

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ERICKSON, Circuit Judge.

The law firm of Armstrong Teasdale, LLP (“Armstrong Teasdale” or “the

firm”) has a provision in its partnership agreement thatrequires mandatory retirement

at age 70. Joseph S. von Kaenel (“von Kaenel”), an equity partner at the firm, filed

this action alleging the firm’s mandatory requirement policy isin violation of the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. The district

court1granted judgment on the pleadingsin favor of Armstrong Teasdale. We affirm.

I. Background

Armstrong Teasdale employed von Kaenel as an attorney from June 1, 1972,

through December 31, 2014. He became a partner on January 1, 1978, and at the time

of his retirement was an equity partner.2 As an equity partner, von Kaenel had the

right to vote on changes to the partnership agreement. According to testimony von

Kaenel provided in state court proceedingsrelated to a discrimination claimhe sought

to pursue under the Missouri Human Rights Act (“MHRA”), his pay was based on a

“complicated calculation pursuant to the partnership agreement.” After becoming a

partner in the firm, von Kaenel’s compensation was reported on a Schedule K-1 for

tax purposes, rather than on a Form W-2. Premiums for health insurance and 401k

contributions were deducted from partner distributions. Although the firm assigned

a committee to set and review attorneys’ hourly rates, the one time that von Kaenel

requested that he be allowed to reduce his hourly rate for a particular client, his

request was approved. While not given unfettered discretion to set his hourly rate,

von Kaenel was responsible for the work performed on behalf of his clients and his

substantive work was not reviewed by the practice group leader. As an equity

partner, von Kaenel had the right to vote on accepting new partners into the

partnership. His employment could be terminated only by vote of the other partners

or by operation of the mandatory retirement policy. 

1The Honorable Henry Edward Autrey, United States District Judge for the

Eastern District of Missouri. 

2

It may be that it was actually von Kaenel’s professional corporation and not

von Kaenel himself that was the equity partner of the firm. He was the associated

shareholder of a professional corporation, Joseph S. von Kaenel, P.C., which von

Kaenel created and through which it appears he may have exercised his equity partner

rights. This technical issue has no impact on our analysis.

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One of the provisions in the partnership agreement required equity partners to

leave the firm at the end of the calendar year in which the equity partner turned 70

years of age, unless that managing partner allowed an exception. Another provision

entitled an equity partner to severance benefits for two years after retirement, so long

as the partner did not engage in the private practice of law. 

In November 2014, von Kaenel reached 70 years of age. He has alleged that

but for the firm’s mandatory retirement policy, he would have retired at or around age

75 and would have stopped practicing law at that time. Because von Kaenel

continued to practice law after leaving Armstrong Teasdale, under the partnership

agreement, von Kaenel was ineligible to receive the two year’s of severance benefits

that he would have been entitled to if he had not engaged in the private practice of

law. 

Believing that the firm’s mandatory retirement policy was discriminatory, on

December 11, 2014, von Kaenel filed a charge of age discrimination with the Equal

Employment Opportunity Commission (“EEOC”) and the Missouri Commission on

Human Rights(“MCHR”). The MCHR issued a notice of termination of proceedings

based on its finding that von Kaenel was 70 years old and, therefore, fell outside the

protected age group. After the termination notice, von Kaenel filed a petition for a

writ of mandamus in the Circuit Court for Cole County, Missouri, requesting that the

court order the MCHR to issue a notice of the right to sue or, in the alternative, to

direct the MCHR to reopen the case and complete a full investigation of his

complaint. The Cole County court held an evidentiary hearing on the issue of

whether von Kaenel was an “employee” protected by the MHRA. The court

determined that as an equity partner, von Kaenel was not a covered employee

protected by the MHRA and dismissed his mandamus petition. 

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On June 24, 2016, von Kaenel received a right to sue letter from the EEOC. 

He filed this action on September 1, 2016, alleging discriminatory termination in

violation of the ADEA. The district court granted judgment on the pleadingsin favor

of Armstrong Teasdale, concluding (1) von Kaenel is collaterally estopped from

relitigating the Cole County court’s decision that he is not an “employee” covered by

the MHRA, and (2) because, like the MHRA, the ADEA only applies to employees,

von Kaenel’s ADEA claim necessarily fails. 

On appeal, von Kaenel raisestwo issues: (1) collateral estoppel isinapplicable

because the state court’s decision was based upon three alternative findings and the

finding that von Kaenel was not an employee covered under the MHRA was not

essential to the court’s decision, and (2) a different result is warranted because

Missouri does not define the term “employee” under the MHRA in the same way as

the federal courts define that term under the ADEA. 

II. Discussion

We review a district court’s grant of judgment on the pleadings de novo. 

Clemons v. Crawford, 585 F.3d 1119, 1124 (8th Cir. 2009). The movant bears the

burden of “clearly establish[ing] that there are no material issues of fact and that it is

entitled to judgment as a matter of law.” Porous Media Corp. v. Pall Corp., 186 F.3d

1077, 1079 (8th Cir. 1999). At this stage in the proceedings, we view all facts pled

by von Kaenel as true and grant him all reasonable inferences. Clemons, 585 F.3d

at 1124 (quoting Poehl v. Countrywide Home Loans, Inc., 528 F.3d 1093, 1096 (8th

Cir. 2008)). 

While a court generally may not consider matters outside the pleadings on a

motion for judgment on the pleadings, exceptions include: “matters incorporated by

reference or integral to the claim, items subject to judicial notice, matters of public

record, orders, items appearing in the record of the case, and exhibits attached to the

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complaint whose authenticity is unquestioned.” Williams v. Employers Mut. Cas.

Co., 845 F.3d 891, 903–04 (8th Cir. 2017) (quoting Miller v. Redwood Toxicology

Lab., Inc., 688 F.3d 928, 931 n.3 (8th Cir. 2012)). Here, both parties have extensively

referenced and argued about the impact of the state court proceedings on von

Kaenel’s federal ADEA claim. A transcript of portions of von Kaenel’s testimony

given during the state court proceedings was made part of the record in this case

when it was attached to Armstrong Teasdale’s motion for judgment on the pleadings. 

At no time has von Kaenel questioned the authenticity of the portions of the transcript

submitted to the district court, sought to supplement the partial transcript, or asserted

that his state court testimony may not be considered in deciding whether he has

sufficiently pled a cognizable federal ADEA claim. We, therefore, find it permissible

to consider von Kaenel’s testimony when conducting our de novo review. 

The ADEA and the MHRA are similar statutory schemes that prohibit

discrimination in employment against protected classes. The ADEA makes it

unlawfulfor an employer to take adverse action against an employee “because of such

individual’s age.” 29 U.S.C. § 623(a). Subject to certain exceptions not relevant

here, the ADEA unhelpfully defines “employee” as “an individual employed by any

employer.” 29 U.S.C. § 630(f). An “employer” is defined as “a person . . . who has

twenty or more employees for each working day in each of twenty or more calendar

weeks in the current or preceding calendar year.” 29 U.S.C. § 630(b). As part of the

ADEA, Congress elected to allowcompulsory retirement policiesfor individuals who

have attained 65 years of age and who for the two years before retirement were

“employed in a bona fide executive or a high policymaking position” so long as the

individual is “entitled to an immediate nonforfeitable annual retirement benefit from

a pension, profit-sharing,savings, or deferred compensation plan, or any combination

of such plans, of the employer of such employee, which equals, in the aggregate, at

least $44,000.” 29 U.S.C. § 631(c). 

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Whether a partner in a firm may be deemed “an employee” of the firm and thus

an ADEA beneficiary is a matter of first impression for us. The United States

Supreme Court in the context of an Americans with Disabilities Act claim explained

that resolution of whether shareholder-director physicians that are part of a

professional corporation are employees “depends on ‘all of the incidents of the

relationship . . . with no one factor being decisive.’” Clackamas Gastroenterology

Associates, P.C. v. Wells, 538 U.S. 440, 450 (2003) (quoting Nationwide Mut. Ins.

Co. v. Darden, 503 U.S. 318, 324 (1992)). These factors include: (1) whether the

organization can hire or fire the individual or set rules and regulations for the

individual’s work; (2) whether and to what extent the organization supervises the

individual’s work; (3) whether the individual reports to someone higher in the

organization; (4) whether and to what extent the individual is able to influence the

organization; (5) whether the parties intended the individual to be an employee, as

expressed in written contracts or agreements; and (6) whether the individual shares

in the profits, losses, and liabilities of the organization. Id. (quoting EEOC

Compliance Manual § 605:0009). 

Other circuits relying on many of these factors have determined that partners

or shareholders vested with an ownership interest and/or authority to manage and

control the firm or corporation are not “employees” covered under the ADEA. See,

e.g., Schmidt v. Ottawa Med. Ctr., P.C., 322 F.3d 461, 468 (7th Cir. 2003) (a family

practice physician with the status of shareholder-director who had the opportunity to

share control of a closely held professional corporation was treated as a bona fide

employer, not an employee, for purposes of the ADEA); Fountain v. Metcalf, Zima

& Co., P.A., 925 F.2d 1398, 1401 (11th Cir. 1991) (a shareholder in an accounting

firm was a partner, not an employee permitted to sue under the ADEA); Wheeler v.

Hurdman, 825 F.2d 257, 277 (10th Cir. 1987) (bona fide general partners in an

accounting firm are not employees under federal anti-discrimination laws).

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Guided by the factors set out by the United States Supreme Court and our

review of the record, we find that von Kaenel’s role as equity partner at Armstrong

Teasdale was not simply a title that carried no legal significance. If we peer beneath

the title and probe the actual circumstances of von Kaenel’s relationship with the

firm, von Kaenel’s undisputed testimony establishes the following: (1) when von

Kaenel became a partner, he was required to make a capital contribution and sign the

partnership agreement; (2) von Kaenel had the right to vote on changes proposed to

the partnership agreement, which included the mandatory retirement provisions; (3)

von Kaenel benefitted in the firm’s profits and was disadvantaged by itslosses, albeit

through “a complicated calculation”; (4) von Kaenel had the right to vote on

admission of new partners to the partnership; (5) von Kaenel’s health insurance

premiums and 401k contributions were deducted from partner distributions; (6) the

practice group leader did not review von Kaenel’s substantive work; (7) while other

members of the firm participated in setting the attorneys’ hourly rates for a particular

client, the only time von Kaenel requested that he be allowed to reduce his hourly rate

to work with a particular client, his request was approved; and (8) once Von Kaenel

became an equity partner, he could only be expelled from the firm by vote of the

partners or by operation of the mandatory retirement provision. 

Although the district court focused on collateral estoppel when granting

judgment on the pleadings, “we may affirm a judgment on any ground supported by

the record.” Adam & Eve Jonesboro, LLC v. Perrin, 933 F.3d 951, 958 (8th Cir.

2019) (citing Ledergerber v. Stangler, 122 F.3d 1142, 1145 (8th Cir. 1997)). The

undisputed record establishes that as an equity partner, von Kaenel’s compensation

scheme which included sharing in the firm’s profits and losses, his ability to vote on

changes to the firm’s policies or admission of new partners, the lack of supervision

over his substantive work, the influence he had when requesting to lower his hourly

rate for a client, and the limited ways in which he could be expelled from the firm

simply do not bear a close relationship to that of an employee. Consistent with the

manner in which the term “employee” has been interpreted under federal anti-

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discrimination laws, we conclude von Kaenel was not an employee of the firm and,

therefore, is not covered by the ADEA. Armstrong Teasdale is entitled to judgment

as a matter of law. 

III. Conclusion

For the foregoing reasons, we affirm the judgment of the district court. 

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