A nurse at Springfield's Cox South hospital was terminated for refusing to wear a surgical mask because she did not get a flu shot. The nurse, who received a religious exemption from the flu shot, believs the mask requirement was imposed to punish those who refused the vaccine. Read the complete article here.

Unemployment Benefit Applications at 5 Year Low

According to the Department of Labor weekly applications for unemployment benefits dropped 12,000 to a seasonally adjusted 350,000 in the week ending Dec. 22nd. The four-week average, a less volatile measure, fell to a nearly five-year low of 356,750.

Former Particle Dynamics Supervisor Alleges Age Discrimination and Retaliation

Read Jim Doyle's complete article at stltoday.com

FBI Says St. Louis Employee Seemed Ideal But Wasn't Working

Read Robert Patrick's complete article at stltoday.com

Wage Gap Between Men and Women Widening in Missouri and Illinois According to New BLS Data

Read Jim Gallagher's complete article at stltoday.com

Reverse Race Discrimination Claim Fails Because Employee Voluntarily Resigned

Lonnie Dodge began his career with the City of Belton Police Department in 2001. Mr. Belton was arrested in 2007 for driving while intoxicated and eventually pled guilty to careless and imprudent driving. Mr. Dodge did not tell his supervisor of his arrest or conviction.

The Department discovered that Mr. Dodge had been arrested for DWI during a background check. Upon discovering this information, the Department gave Mr. Dodge a choice - resign or be terminated. Mr. Dodge refused to resign and was suspended with pay. However, shortly after submitting his resignation, Mr. Dodge attempted to rescind his resignation. The Department informed Mr. Dodge it had already accepted his resignation. Mr. Dodge claimed he resigned because the Department told him that, if he resigned, his police officer's license would not be revoked.

Mr. Dodge sued the City of Belton under the Missouri Human Rights Act and Title VII claiming he was terminated because of his race (white). Mr. Dodge alleged that an African-American employee also failed to report an arrest but was not terminated.

Granting the City's motion for summary judgment against Mr. Dodge, the court found that because Mr. Dodge had resigned and was not actually terminated, he was unable to show that he suffered an "adverse employment action." The court also noted that, because he resigned, the only way Mr. Dodge could have established an adverse employment action was to show that the City "constructively discharged him" by "deliberately creating intolerable working conditions with the intention of forcing [Mr. Dodge] to quit." Citing the Eighth Circuit Court of Appeals, the court concluded that "an employee's being told that he or she will be fired for cause does not, in and of itself, constitute constructive discharge."

Dodge v. City of Belton, Missouri, No. 10-0038-CV-W-ODS (W.D.Mo. Feb. 4, 2011).

U.S. Supreme Court Holds Adverse Action Against a Close Family Member of a Complainant Emloyee May Now Constitute Illegal Retaliation

The United States Supreme Court recently held in Thompson v. North American Stainless, LP, No. 09-291 (U.S. Jan. 24, 2011) that taking an adverse employment action against a close family member of an employee may constitute illegal retaliation.

This decision follows a recent trend of Supreme Court decisions expanding the scope of protection for employees in retaliation cases. The Court's conclusion that "close family members" may raise claims of their own, while "mere acquaintances" may not leaves a lot of room for disagreement over who can qualify as a "close family member" and will likely become the subject of significant litigation.

Eighth Circuit Finds Employee's Lawsuit Failed to Allege Actionable FLSA Retaliation

Lisa Ritchie filed a lawsuit against her former employer, St. Louis Jewish Light, and Larry Levin, her former supervisor under the Fair Labor Standards Act claiming that her employment was terminated in retaliation for insisting on recording her overtime work. Jewish Light and Levin filed a motion to dismiss arguing that informal complaints about overtime to a supervisor do not constitute “protected activity” under the FLSA. The trial court agreed and dismissed Ms. Ritchie’s complaint.

On appeal, the Eighth Circuit declined to decide whether informal complaints could, in fact, constitute “protected activity” under the FLSA finding instead that Ms. Ritchie’s complaint actually failed to allege that Ritchie made any sort of complaint to either Levin or St. Louis Jewish Light. Instead, the court found that “ the only complaining asserted in her pleading goes the other way--Levin complaining to Ritchie.” Concluding that “[R]ather than constituting an affirmative complaint that would trigger the anti-retaliation provision of the FLSA, [Ms. Ritchie’s] recording of overtime could be nothing more than mere insubordination, she having been instructed to the contrary . . . Insubordination is not protected under the FLSA,” the court affirmed the dismissal of the suit. The court further noted that “. . . if merely recording one's overtime is a ‘complaint’ that triggers the anti-retaliation provision of the FLSA, an employer would not be able to discipline an employee for working unauthorized overtime so long as the employee recorded the overtime.”

Ritchie v. St. Louis Jewish Light, No. 10-1356 (8th Cir. Jan. 4, 2011).

Allegations in Lawsuit Must be "Reasonably Related" to Allegations in Charge of Discrimination to Survive Motion to Dismiss

Joseph Abellard filed a charge of discrimination against Boeing, his employer, with the Missouri Commission on Human Rights and EEOC on June 15, 2008. The charge alleged discrimination on the bases of race, age and disability. Plaintiff's charge read as follows:

I was hired by [Boeing] in November 1995. My last position held was Engineer Specialist/Sr. Engineer. In December 2007 I went on medical leave. I returned to work on March 5, 2008. I worked through March 7, 2008 but was informed that I had not provided the required documents for a release to return to work. I provided the employer with a release to return to work from my Psychiatrist. I was told I had to get another release from my primary doctor. I provided all of the required documents as instructed. Around March 26, 2008 I received a termination letter stating that I was terminated for being on leave illegally. I believe that I have been discriminated against due to a record of and/or perceived disability. I also believe that I have been discriminated against due to my race (African American) and age (52). This is in violation of the Americans with Disabilities Act of 1990, Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967.

Sometime thereafter, Mr. Abellard filed suit against Boeing alleging harassment, retaliation, failure to transfer, failure to accommodate, and being subjected to different terms and conditions of employment. Boeing filed a motion to dismiss arguing that these allegations were outside the scope of Mr. Abellard's charge of discrimination and therefore must be dismissed. The trial court agreed and dismissed these allegations finding that the allegations were not "reasonably related" to Mr. Abellard's charge and that Mr. Abellard had therefore failed to exhaust his administrative remedies.
Abellard v. Boeing, No. 4:10CV724 JCH (E.D.Mo. 2010).

Court of Appeals Upholds Jury Verdict in Human Rights Act Age Discrimination Case

Glenda Claus started working as a room attendant at the Park Place Hotel in Kansas City, Missouri, in 1984. In 2006, the head of housekeeping promoted Ms. Claus to housekeeping supervisor. On December 7, 2007, Ms. Claus was fired. She was 63 years old at the time. Ms. Claus filed a Charge of Discrimination against her employer and supervisor with the Missouri Commission on Human Rights and, subsequently, filed suit claiming that the hotel and her supervisor discriminated against her based upon her age. Ms. Claus sought actual and punitive damages under the Missouri Human Rights Act.

A jury ultimately awarded Ms. Claus $50,000.00 in compensatory damages and $150,000.00 in punitive damages and the hotel appealed. Affirming the jury verdict, the reviewing court found that the jury could more than reasonably have rejected the hotel's claims that Ms. Claus was fired for performance deficiencies given (1) the hotel's failure to allege any performance deficiencies until after Ms. Claus filed her discrimination claim, (2) Ms. Claus' record of positive job performance evaluations and lack of "write-ups," and (3) the hotel's failure to warn Ms. Claus about deficiencies in her performance despite regularly "writing-up" other employees. The court was particularly troubled that the retained house keeping supervisor, who was in her thirties, had been written up multiple times for excessive absences.

Regarding the punitive damages award, the reviewing court noted that the jury had before it evidence that Ms. Claus' supervisor had an extensive knowledge of employment law and had engaged in consulting work in human resources. The supervisor also had also trained small to medium sized businesses in employment law and assisted other employers with drafting their antidiscrimination policies. Moreover, Ms. Claus' supervisor and the hotel's owner both testified that they knew it was against the law to fire an employee because of an employee's age.

Finally, the appellate court determined that Ms. Claus was entitled to an award of attorney's fees under the Missouri Human Rights Act and remanded the case to the trial court for an award of fees and costs.

Claus v. Intrigue Hotels, LLC, No. WD 71927 (W.D.Mo. Dec. 28, 2010).

Is your Business ADA Compliant?

Eighth Circuit Court of Appeals Sets High Bar for Hostile Work Environment Claims

Sheila Smith was one of two African American women employed as transportation aides for the Fairview emergency room ("ER") in Burnsville, Minnesota. Smith worked in the Fairview ER until June 7, 2006, when she resigned after filing a charge of discrimination with the EEOC. In July 2006, the EEOC determined that there was "reasonable cause to believe that Fairview subjected Ms. Smith to a hostile work environment and retaliated against her in violation of Title VII." Ms. Smith thereafter filed suit against Fairview alleging hostile work environment discrimination, constructive discharge and retaliation.

In her Complaint, Ms. Smith alleged the following specific incidents of racial discrimination:

1. Soon after she began working at Fairview, a nurse asked Ms. Smith if she was Puerto Rican because she spoke Spanish.

2. In April or May 2005, Ms. Smith brought fried chicken to a Fairview potluck. Ms. Smith overheard a nurse inquire as to who had brought the chicken and then receive the response, "Who else?" Ms. Smith reported the incident to a supervisor but no corrective action was taken.

3. In May 2005, a picture of "Buckwheat" was posted on a door in the ER, along with other employees' childhood photographs. The caption above the picture read, "Guess who this is?" Ms. Smith inferred that the Buckwheat picture was placed on the door to represent her. Ms. Smith reported the incident to a supervisor but no corrective action was taken.

4. In the summer of 2005, a nurse, who was not Smith's supervisor, grabbed a patient chart from Ms. Smith's hands and said, "[T]hese black aides don't know what they are doing." Ms. Smith reported the incident to a supervisor but no corrective action was taken.

5. In September or October 2005, Ms. Smith brought a meal for lunch and upon entering the break room with the food, a co-worker complained about a fish odor. The coworker was informed that Ms. Smith's meal contained fish, to which the coworker responded, "I smelled food that smelled better than that crap in my garbage." Ms. Smith then informed the coworker that it was an African dish.

6. In October 2005, Ms. Smith observed two co-workers using a work computer to view an article on the website, The Onion. The article discussed Hurricane Katrina and contained an image of a heli-copter hovering over houses that were flooded by the hurricane. On the front porch of one of the houses, three people, appearing to be African-American, were pictured. Ms. Smith reported the incident to a supervisor but no corrective action was taken.

7. In December 2005, Ms. Smith observed two co-workers using a work computer to view the website, www.getoffended.com. Ms. Smith claimed that one of her co-worker's had invited her to look at what they were viewing. The website contained a racial slur. Ms. Smith reported the incident to Fairview's HR Representative, who reminded the co-workers that personal internet use at work was inappropriate.

8. After Ms. Smith returned from a short leave, she overheard a nurse say, "If she's unhappy here, why does she come back?" Another nurse responded, "Just like a dog, you beat them and abuse them, they still come back. Just like any good runaway slave would." Ms. Smith reported the incident to a supervisor but no corrective action was taken.

9. When Ms. Smith and an ER technician were discussing skin care, Ms. Smith suggested to the technician that she could use a certain facial cleanser to help with acne, and the technician replied, "People can't see yours because you're black."

10. At one point, a co-worker referred to Ms. Smith as "gal." The co-worker told Ms. Smith that she called everyone "gal."

11. After overhearing Ms. Smith and a hospital volunteer from Somalia discussing ethnic foods and employment positions at Fairview, Ms. Smith's co-worker told the volunteer that what she and Ms. Smith were discussing was inappropriate. Ms. Smith reported the incident to a supervisor but no corrective action was taken.

12. Teyona Brown, an African-American co-worker of Ms. Smith's, testified that she overheard two white employees referring to Ms. Smith and stating, "She needs to go back to the ghetto where she came from."

Upholding the lower court's grant of summary judgment in favor of Fairview on all of Ms. Smith's claims, the court began by noting that "The stringent hostile work environment standard is designed to 'filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language ... and occasional teasing.'" The court also noted that several of the allegations made by Ms. Smith (specifically the comments regarding Ms. Smith's lunch, acne, and ability to speak Spanish; the co-worker's comment about Ms. Smith's conversation with the Somali volunteer; and the image on The Onion), at most only tenuously relate to race.

However, the court conceded that the picture of Buckwheat, the comment about fried chicken, and the reference to the ghetto (although not all shown or recited directly to Ms. Smith) did carry some inferences that they were racially motivated. Nevertheless, the court concluded that these incidents were not so severe and pervasive as to be actionable. For the same reason, the court concluded that Ms. Smith's constructive discharge claim failed as well.

Smith v. Fairview Ridges Hospital, No. 08-1942 (8th Cir. Oct. 27, 2010).

City not Entitled to Offset for Work. Comp. Benefits Paid to Former Employee

Alonzo Echols was fired by the City of Riverside in October of 2007. Mr. Echols claimed his discharge was in retaliation for a complaint of discrimination he made to the Missouri Human Rights Commission. A jury found that the City did retaliate against Mr. Echols and awarded him $463.00, which amounted to one week's salary.

The City then sought to offset the $463.00 verdict by the amount of unemployment benefits already paid to Mr. Echols. At a subsequent hearing, the trial court denied the City's request to amend its answer to add the affirmative defense of offset for unemployment benefits paid to Mr. Echols but nevertheless reduced Mr. Echols' award by the amount of unemployment benefits he had already received which reduced his actual damages verdict to zero.

On appeal, Mr. Echols argued that the trial court erred in reducing his $463.00 verdict to zero using unemployment benefits received as an offset because an offset is an affirmative defense that was waived by the City because it was not pled. The reviewing court agreed and further held that even if the affirmative defense of offset had been properly pled unemployment benefits received should not serve to mitigate a jury award for back pay where the employer is being punished for illegal conduct.

Echols v. The City of Riverside, No. WD 71560 (W.D.Mo. Dec. 21, 2010).

Eighth Circuit Court of Appeals Rejects County Employee's Disability Discrimination Claim

Roger Duello sued Buchanan County, Iowa for wrongful termination, in violation of the Americans with Disabilities Act ("ADA") and the Iowa Civil Rights Act. The district court found in favor of the County, holding that Mr. Duello could not prevail under either statute because he was not a "qualified individual" within the meaning of the ADA.

Mr. Duello appealed the District Court's grant of summary judgment in favor of the County and the Eighth Circuit Court of Appeals affirmed. Specifically, the reviewing court found that even assuming Mr. Duello met the essential prerequisites for his position, he was unable to perform the essential functions of his job because he had lost his driver's license. According to the court, driving and working around machinery were essential functions of Mr. Duello's job. The court noted Mr. Duello's own deposition testimony where he testified: "Q: You couldn't perform the functions or the duties of [an] Operator II? A: Correct." The court also found that, although other County employees who had lost their driver's licenses were not terminated, those employees were not "similarly situated" to Mr. Duello and thus their situations failed to create an issue of fact as to whether the County had an ongoing practice of excusing employees from driving and working around machinery when they were temporarily disabled from doing so.

Duello v. Buchanan County Bd. of Supervisors, No. 10-2016 (8th Cir. Dec. 20, 2010).

Missouri Supreme Court Recognizes the Public Policy Exception to the At-will Employment Doctrine

Michelle Fleshner was wrongfully terminated from her position at Pepose Vision Institute. The day before her termination, Ms. Fleshner received a phone call from the U.S Department of Labor seeking background information about Pepose to determine whether it failed to properly compensate its employees for overtime. The following morning, Ms. Fleshner immediately contacted her supervisor to tell him about her conversation with the investigator. The next day, Pepose terminated Ms. Fleshner’s employment. Ms. Fleshner sued Pepose asserting claims for wrongful termination of employment in violation of public policy and failure to pay overtime compensation in violation of Missouri law.

The Supreme Court of Missouri held that “[A]n at-will employee may not be terminated (1) for refusing to violate the law or any well-established and clear mandate of public policy as expressed in the constitution, statutes, regulations promulgated pursuant to statute, or rules created by a governmental body or (2) for reporting wrongdoing or violations of law to superiors or public authorities. If an employer terminates an employee for either reason, then the employee has a cause of action in tort for wrongful discharge based on the public-policy exception.”

The question then became which standard of causation was appropriate; the “exclusive cause” standard, the “because of” standard, or the “contributing factor” standard. Pepose argued that the trial court erred in instructing the jury that it had to find that Pepose terminated Fleshner “because she communicated with the United States Department of Labor.” Pepose argued that the appropriate causal standard was the more strict “exclusive cause” standard. The Court concluded however, that the exclusive causation standard is inconsistent with the proximate cause standard typically employed in tort cases. While prior cases indicated that “exclusive causation” is the appropriate standard for cases asserting retaliation in the workers' compensation statutory context, the Court determined that “exclusive causation” is not the proper standard for wrongful discharge based on the public-policy exception. Furthermore, the Court found that such a standard would result in an exception that fails to accomplish its task of protecting employees who refuse to violate the law or public policy.

Ultimately, the Missouri Supreme Court adopted the “contributing factor” standard noting that recent employment discharge cases articulate the “contributing factor” causation standard – whether an illegitimate purpose was a “contributing factor” in the employment decision – which was adopted in 2005 through MAI 31.24. This standard is used for cases filed under the Missouri Human Rights Act, which modifies the at-will employment doctrine similarly to the public-policy exception. Both types of cases turn on whether an illegal factor played a role in the employer’s decision to discharge the employee, and the evidence in both types directly relates to the employer’s intent or motivation.

Concluding, the Court held that:

[A]s used here, this Court cannot find error with the “because” instruction as it did not mislead, misdirect, or confuse the jury, nor did it prejudice the result. In the future, though, trial courts should use a modified MAI 31.24, applying the “contributing factor” analysis until this Court adopts a specific instruction for wrongful discharge based on the public-policy exception.

Fleshner v. Peopse Vision Institute, P.C., No. SC 90032 (Mo. 2010)
By: Christopher Fete, Saint Louis University School of Law

Eighth Circuit Court of Appeals Sides with Employee in Age Discrimination Case

Kathy Baker was terminated from her position as director of an assisted living center operated by Silver Oak Senior Living Management Company, L.C. Ms. Baker sued Silver Oak alleging that she was terminated because of her age and because she opposed age discrimination, in violation of the Age Discrimination in Employment Act and Missouri Human Rights Act. The trial court entered summary judgment in favor of Silver Oak and Ms. Baker appealed. The U.S. Court of Appeals for the Eighth Circuit reversed.

Particularly relevant to the court were numerous statements the employer allegedly made evidencing a preference for younger workers over ADEA protected employees.

We conclude that Baker has presented a submissible case of age discrimination for determination by a jury. Most significant are statements of Lindsey and Thomas, who participated in the decision to terminate Baker, evincing a preference for the employment of younger workers over persons in the class protected by the ADEA. Lindsey's statement to his management team that Silver Oak was "missing the boat by not hiring more younger, vibrant people," and that employees "should start looking over applications better and try to consider hiring younger people" is evidence that a reasonable jury could take to reflect a discriminatory attitude by one who participated in Baker's termination. A jury likewise could find that Thomas's attitude about employment at Silver Oak was biased against older workers, given her directions that Baker should fire certain workers in their 50s and 60s so that Thomas could hire "younger workers" who would be "better workers, have more energy, be more enthusiastic and stimulate the residents."

Other comments by Lindsey and Thomas are open to interpretation, but on a motion for summary judgment, they must be viewed in the context of the foregoing statements. Lindsey's desire to rid the company of "dead wood" could be a legitimate preference to terminate unproductive workers regardless of age, but it could also be a manifestation of a discriminatory attitude against older workers in general. Thomas's criticism of Baker for dressing "like an old lady," and exhortations to "keep up" with younger executives like Lindsey and Upshaw might be given a benign gloss, but they also could be seen reasonably as further evidence of age-based bias. In light of statements by Lindsey and Thomas that clearly reflect a discriminatory attitude against older workers, statements that might otherwise be dismissed as harmless workplace banter assume greater probative value on a motion for summary judgment.

Concluding, the court held that

[T]here is sufficient evidence for a jury to find that Baker engaged in protected activity under the ADEA and the MHRA before she was terminated. By protesting to Thomas that it was wrong to terminate older employees, and that Silver Oak could not discharge employees "just because they are old," Thomas clearly opposed conduct that she reasonably believed to be unlawful age discrimination.

Baker v. Silver Oak Senior Living Mgmt. Co., L.C., No. 08-1036 (W.D. Mo. Oct. 15, 2008).

Plaintiff's Allegation of Asthma Attacks Sufficient to Survive Employer's Motion to Dismiss

Louise Brewer sued her employer, the Missouri Department of Corrections (“DOC”), alleging employment discrimination in violation of the Americans with Disabilities Act ("ADA") and the Rehabilitation Act. Specifically, Ms. Brewer alleged that as the result of her asthma, she was harassed, discriminated and retaliated against in the terms and conditions of her employment. Along with the other documents Ms. Brewer provided to the court when she filed her lawsuit, Ms. Brewer filed a three page single-spaced document describing specific instances in which she believed her rights were violated by the DOC.

The DOC filed a motion to dismiss arguing that Ms. Brewer was not a “qualified individual with a disability” as defined by the ADA or the Rehabilitation Act. In support of its argument, the DOC claimed that because Ms. Brewer mentioned only eight asthma attacks in her lawsuit, the "episodic asthma attacks" could not form the basis of an actual disability. Additionally, the DOC argued that Ms. Brewer’s retaliation claim should be dismissed because she was unable to establish that she suffered an adverse employment action or that the DOC’s conduct actually violated the ADA.

The court denied the DOC’s motion to dismiss noting that to obtain relief under the ADA, a plaintiff must show that she (1) has a “disability” within the meaning of the ADA, (2) is a “qualified individual” under the ADA, and (3) “suffered an adverse employment action as a result of the disability.” The court held that Ms. Brewer was not required to specifically state in her lawsuit each and every instance that her alleged asthma affected her work or the facts surrounding each and every perceived act of harassment or retaliation.

Brewer v. Mo. Dpt. of Corrections, No. 4:08CV1883 (E.D.Mo. June 24, 2009).

Employee Terminated After Disclosing Cancer Diagnosis Survives Employer’s Motion to Dismiss

Wava A. Gunderson was employed by St. Louis Connectcare as a claims adjudicator in January of 2006 when she was diagnosed with cancer. Ms. Gunderson was terminated in July of 2006. In her recently filed lawsuit, Ms. Gunderson claims that when she notified her employer of the diagnosis, she was advised that she should resign. Ms. Gunderson further alleges that she refused to resign because she was able to perform her job with reasonable accommodations.

In response to Ms. Gunderson’s lawsuit, Connectcare filed a motion to dismiss. Connectcare argued that Ms. Gunderson’s claims under the Employee Retirement Security Act (“ERISA”) sections 502 and 510 failed to state claims upon which relief could be granted. The court agreed with Connectcare that Ms. Gunderson failed to state a claim under ERISA section 502 because that section provides remedies only against a defendant who has failed to comply with the terms of a benefits plan. The court recognized that Ms. Gunderson was not claiming in her lawsuit that Connectcare interfered with her ability to become eligible for further benefits, did not specify any particular benefits that were purportedly denied, and dismissed her claim under section 502.

However, the court held that Ms. Gunderson’s allegations that she was a participant under the terms of an employee benefit plan provided by the employer, and that she was fired for exercising her rights under that plan, properly pled all the elements of a claim under ERISA section 510. Although the court allowed Ms. Gunderson’s section 510 claim to proceed, it struck her claim for punitive damages finding that ERISA does not authorize the award of punitive damages.

Gunderson v. St. Louis Connectcare, No. 4:08CV01553 (E.D.Mo. Mar. 26, 2009).

Employer's Anti-Harassment Policies Provide No Protection If Not Properly Implemented

Lori Herndon was a police officer with the City of Manchester’s police department from October 8, 2001, until February 3, 2005. On several occasions between February and June of 2004, Sergeant Epps sexually harassed Ms. Herndon while acting as her relief supervisor. Sergeant Epps’s harassment involved making sexually suggestive comments, grabbing Ms. Herndon and pressing himself against her, and forcing Ms. Herndon to kiss him. Eventually, Ms. Herndon filed an action under the MHRA against the City of Manchester and Sergeant Epps based on Epps's conduct.

Prior to his employment with the City of Manchester, Sergeant Epps had been employed by the Northwoods police department and worked part-time as a security guard at a Schuncks Grocery Store. During that time, a female employee at Schnucks filed a sexual misconduct complaint against Epps with the St. Louis County police department. Although Manchester requested documentation of Epps’s employment, including his disciplinary record, from the Northwoods department when he applied to the Manchester department, the Northwoods department only provided Epps’s dates of employment and identifying information. After Epps became employed by the Manchester department, a citizen’s complaint was made against Epps by a husband who alleged Epps was inappropriately pursing his wife.

At the time Ms. Herndon filed her charge, the City of Manchester had a policy and procedure in place for dealing with allegations of sexual harassment. The policy forbade sexual harassment in the workplace and also contained a policy on how the police department was to deal with complaints lodged against officers by private citizens as well as other officers. With respect to complaints made by officers against fellow officers, the department’s policy provided that

Upon becoming aware of or receiving notification of potential rules violations by an officer under his command, a supervisor shall begin an immediate investigation of such allegations. The investigation must include questioning the officer, witnesses and complainants, and securing all relevant evidence. The supervisor must then forward a report of the alleged violations, all documents and evidence relating to the investigation, and recommendations for further investigation or other disposition of the matter through appropriate channels.

After learning of Epps's harassment, Epps's schedule was changed so that he would have no further contact with Ms. Herndon. After Ms. Herndon filed a formal complaint, the City of Manchester asked the Missouri State Highway Patrol to conduct an investigation of Sergeant Epps’s conduct. The City of Manchester police department also conducted an internal investigation. Upon completion of the investigation, Sergeant Epps was terminated from employment because of his conduct.

The City of Manchester filed a motion for summary judgment on Ms. Herndon’s claims arguing that it met the United States Supreme Court's requirements set forth in the Ellerth and Faragher cases for asserting an affirmative defense to vicarious liability which arises when an employee's supervisor sexually harasses the employee. The affirmative defense requires an employer to prove that (1) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. The City argued that it demonstrated that it met the Ellerth/Faragher criteria as a matter of law. The trial court agreed and granted the City’s motion for summary judgment.

The Appellate Court reversed and remanded finding that the City of Manchester was unable to establish the “prevention prong” of the defense by merely demonstrating the existence of a facially valid anti-harassment policy. The court was particularly troubled by the fact that Northwoods department had direct knowledge of Sergeant Epps’s misconduct that it could have passed on to Manchester if the Manchester department took additional steps to acquire the information. The court also found that Manchester did not act reasonably to prevent Sergeant Epps’s harassment in light of the citizen couple's prior complaint. The court noted that although the citizen was not a co-worker, Sergeant Epps either harassed her while on the job or used his position as a police officer to gain access to her for the purpose of harassment.

Lori Herndon v. The City of Manchester, No. ED91175 (Mo. Ct. App. 2009)

Plaintiff in Sexual Harassment Case Entitled to $3.75 Million in Punitive Damages

Kendra Lynn worked as an assembly line scanner for TNT at its Kansas City automobile parts warehouse. In August 2003, Michael Gill was hired as a supervisor for Lynn's shift. Beginning in October 2003, Gill made a number of sexually charged and otherwise inappropriate comments to Lynn. For example, when passing out paychecks, Gill told Lynn she was not going to get paid "until you bounce your ass." While passing her workstation, Gill commented on Lynn’s anatomy and made offensive remarks about his own anatomy and his plans for performing sex acts on her. Another supervisor witnessed Gill "dancing provocatively" behind Lynn while she worked at her station, and reported Gill's actions to a superior.

In late October 2003, in front of another supervisor, Gill hit Lynn on the buttocks with a belt and told her to "get your fat ass out of here." The supervisor who witnessed the incident reported it to his immediate superior, who later denied he was given the information.

Lynn complained about Gill's behavior to another shift supervisor. Her complaints were forwarded to the facility manager. When the facility manger failed to take any action, Lynn transferred to another shift to avoid Gill. After she was terminated, Lynn sued TNT alleging sexual harassment and wrongful termination. After a five day trial, the jury returned a verdict for Lynn on her sexual harassment claim and for TNT on her wrongful termination claim.

On appeal, TNT claimed that the jury's verdict should be "reversed outright" because Missouri law and federal anti-discrimination statutes are "not designed to purge the workplace of vulgarity" or "punish for boorish or even vulgar workplace conduct." TNT concluded that Lynn’s sexual harassment claim was of the type that should be "filtered out of the court system."

The Missouri Court of Appeals disagreed and found that Gill’s conduct went beyond the harmless comments or boorish conduct of a supervisor directed at a female employee. The court also noted that TNT seemingly disregarded its own egregious behavior in ignoring Gill’s behavior and doing absolutely nothing to curb or punish Gill’s conduct, even though TNT supervisors and others in TNT’s chain of command knew of the conduct.

With respect to damages, the appellate court affirmed the award of $50,000 in compensatory damages, plus interest, and reversed the trial court’s judgment reducing Lynn’s punitive damage award. Substituting its own award for that of the trial court, the appellate court held that if Lynn would agree to a reduction in the amount of punitive damages from $6.75 million to $3.75 million, the case would be remanded to the trial court for entry of a judgment in that amount, plus interest, on one-half that amount. Otherwise, the court held that the judgment for punitive damages would be reversed for a new trial.

Lynn v. TNT Logistics North America, Inc., Nos. WD 68096, WD 68135 (Mo. Ct. App. 2008)