Missouri Case Law
BRADY v. CURATORS OF THE UNIV OF MISSOURI, ED 86214
(Mo.App.E.D. 11-28-2006) JAMES W. BRADY, Respondent, v. THE
CURATORS OF THE UNIVERSITY OF MISSOURI, et al.,
Appellants. Nos. ED 86214, ED 86316, ED 86326 Missouri
Court of Appeals, Eastern District, Division Five. November
28, 2006
[EDITORS’ NOTE: THIS OPINION IS SUBJECT TO MODIFICATION OR
TRANSFER TO THE SUPREME COURT.]
Appeal from the Circuit Court of St. Louis County,
Honorable Steven H. Goldman.
Kelly S. Mescher, Michael E. Kaemmerer, Columbia, MO, for
Appellant.
Kathleen M. Markie, Kristen L. Maly, Jerome J. Dobson,
Gregory A. Rich, St. Louis, MO, for Respondent.
NANNETTE A. BAKER, Judge.
Introduction
The University of Missouri — St. Louis (“UMSL”)
appeals from a judgment of the trial court in favor of
James Brady (“Brady”) on his claim of age discrimination
and retaliation under the Missouri Human Rights Act
(“MHRA”). UMSL claims five points on appeal: (1) The trial
court erred in submitting punitive damages against UMSL to
the jury because punitive damages should not be assessed
against a state constitutional entity since it effectively
punishes the taxpayers who have done no wrong; (2) The
trial court erred in submitting the issue of punitive
damages to the jury because there was insufficient evidence
to support an award of punitive damages; (3) The trial
court erred in submitting the issue of punitive damages to
the jury and then denying UMSL’s motion for remittitur
because the amount of the award exceeds fair and reasonable
compensation for Brady’s alleged injury and damages; (4)
The trial court erred as a matter of law when it failed to
dismiss Brady’s claims against his supervisors and allowed
the jury to decide the issue of their liability under the
MHRA prohibiting discrimination by an employer because they
were not his employers; and (5) The trial court erred and
abused its discretion in awarding front pay to Brady
because the evidence was insufficient to support such an
award since Brady failed to present any evidence that his
full-time employment would have continued absent the
discrimination. We find no error and affirm.
Brady claims one point on cross-appeal. In his sole point,
he contends that the trial court erred in denying his
motion for attorneys’ fees because attorneys’ fees are
normally awarded to the prevailing party in a civil rights
case and that he was the prevailing party since the jury
found in his favor on all of his claims. On this point
only, we reverse and remand.
Factual Background and Proceedings Below
The evidence viewed in a light most favorable to the
verdict is as follows: Brady has been the head baseball
coach at UMSL since 1985. His teams have had a winning
record every year and nearly 80% of his players have
graduated. Brady was over forty years old when the events
at UMSL occurred.
Patricia Dolan (“Dolan”) became the Athletic Director at
UMSL in 1995. Vice Chancellor for Administrative Affairs,
Reinhard Schuster (“Schuster”), became responsible for the
Athletic Department in 1997. In 1998, Brady filed a
discrimination charge against UMSL with the Equal
Employment Opportunity Commission (“EEOC”) alleging age
discrimination and retaliation. UMSL terminated his
employment in June 1999. Brady filed a grievance and won.
He was reinstated as head baseball coach in the fall of
1999.
The 1998 suit was settled in December 2001. In May 2002,
Brady was called to a meeting with several people,
including Dolan and Schuster, where he was informed of
forthcoming changes in the Athletic Department. Dolan and
Schuster decided to initiate a system of tiers for the
various sports within the Athletic Department. Softball,
volleyball and baseball were all reduced to second tier
sports. Correspondingly, each of their head coach positions
was reduced to half time with no benefits and no retirement
participation. Basketball and soccer were put in Tier One.
In June 2002, UMSL reduced Brady’s job to a part-time
position, cut his pay in half and eliminated his benefits.
When he was reinstated after his termination in 1999, UMSL
had moved Brady’s office from the second floor of the
Athletics Department building to a small basement office
near the swimming pool that was hot and humid. He was never
moved back to the second floor near the other coaches.
During this time, the baseball field on which Brady’s teams
played deteriorated and was not kept in good playing
condition. Because of the condition of the baseball field,
UMSL’s baseball team was unable to host the National
Collegiate Athletic Association (“NCAA”) baseball tournament
in 2003 when it was the number one team in the league.
Recruiting was also difficult because of the condition of
the baseball field.
After he was reduced to part-time status, Brady continued
his medical benefits as long as he was able through
COBRA.[fn1] Brady testified that since he was diagnosed
with colon cancer in 1989, he is required to get
colonoscopies and other tests on a regular basis because he
still has cancer cells inside him. He testified that after
his COBRA benefits ran out, he had to pay these medical
costs out of pocket. Additionally, Brady testified that the
emotional impact of his reduction to part-time status
caused him to become depressed, sleepless and anxious. He
also lost more than sixty pounds.
During this same time, the Athletic Department’s
compliance officer, Scott Socha (“Socha”) was a full-time
employee. UMSL was the only school in the Great Lakes
Valley Conference (“GLVC”) to have a full-time compliance
officer. Socha was responsible for ensuring that student
athletes were NCAA compliant for sports. Although Socha was
supposed to be a full-time employee, in 2001, Dolan allowed
him to cut his hours back to accommodate caring for his
three young children. Socha was to work from eight until
two, at which point he could leave and count his lunch hour
as two to three in the afternoon. From three to five, he
was to be “available by cell phone and electronic
messaging.” During the summer months of June, July and part
of August, Socha’s hours were further reduced to 9:30 AM
until 12:30 PM so he could care for his children. He
continued to be classified as a full-time employee with
full pay and benefits. In 2004, during the school year,
Socha worked from 9:30 AM to 3:00 PM, just five and a half
hours per day, but he was still classified and paid as a
full-time employee.
In 2002, Deron Spink (“Spink”) was the assistant baseball
coach at UMSL. Spink was considered a ten percent full-time
equivalent (“FTE”) employee and paid $5000 per year. In
addition to being the assistant baseball coach, Spink was
the equipment manager, for which he was classified as a 75
percent FTE employee. This raised his total salary to
$1,937.50 per month and qualified him to receive health and
retirement benefits. When Spink began interviewing for
other jobs outside of UMSL, Dolan told Brady that if Spink
left the position of equipment manager, that position would
be contracted back to the university and would not be
available to Brady to raise him to a FTE employee. Both
Socha and Spink were “around thirty” years old.
Dolan testified that Deryn Carter (“Carter”), an assistant
basketball coach at UMSL for two or three years, was
currently being paid $24,000 while Brady was paid less for
his position as head baseball coach. Carter had less than a
half year’s experience as a student assistant coach at the
college level when UMSL hired him at a higher salary than
Brady’s.
Brady filed a complaint under the MHRA against UMSL,
Schuster and Dolan on February 26, 2004, claiming age
discrimination and retaliation. The case was tried by a
jury in January 2005. The jury returned a verdict for Brady
and against UMSL, Schuster and Dolan. The jury awarded
Brady $225,000 actual damages, $750,000 punitive damages
against UMSL, $200,000 punitive damages against Schuster
and $100,000 punitive damages against Dolan.
Following the jury verdict, Brady filed a motion for
equitable relief requesting that the trial court order UMSL
to reinstate him to full-time status as head baseball coach
with the same level of benefits as other full-time
employees. Brady’s motion also sought from UMSL the
difference between his current salary and the salary he
would have earned as a full-time employee from the date of
the verdict until the date of his reinstatement as a
full-time employee; contributions to his pension/retirement
account equal to the amount UMSL would have contributed if
he had been a full-time employee from September 1, 2002,
until the date of his reinstatement as a full-time
employee; and to be moved to an office on the same floor
and of comparable size as the other head coaches in the
Athletic Department.
On April 22, 2005, the trial court ruled on Brady’s Motion
for Equitable Relief. It denied Brady’s motion for
reinstatement as a full-time employee and ordered UMSL to
pay Brady, in regular monthly installments, an amount equal
to the cost of his health insurance, vacation, sick and
personal days, and the amount that would have been
contributed to, or apportioned for Brady’s retirement as if
he were a full-time employee. The trial court ordered that
the payments would cease if UMSL offered Brady full-time
employment within its Athletic Department or a full-time
recreation position. Further, the payments were to be
retroactive to January 14, 2005, the date of the jury
verdict.
Punitive Damages
I. Public Policy
UMSL claims that the trial court erred in allowing
punitive damages against UMSL to be submitted to the jury.
UMSL contends that the trial court interpreted and applied
Section 213.111[fn2] of the MHRA incorrectly. Further, UMSL
argues that punitive damages should not be assessed against
a state university because it effectively punishes the
taxpayers who have done no wrong.
Where the issue presented is one of statutory
interpretation, a question of law, our review is de novo.
Glasgow Enterprises, Inc. v. Bowers, 196 S.W.3d 625, 631
(Mo.App.E.D. 2006). When construing a statute, our primary
role is to ascertain the intent of the legislature from the
language used in the statute and, if possible, give effect
to that intent. Martinez v. State, 24 S.W.3d 10, 16
(Mo.App.E.D. 2000). In determining legislative intent,
words and phrases used in the statute are to be construed
in their plain, ordinary and usual sense. Id. There is no
room for construction when the words are plain and admit to
but one meaning. Id. Accordingly, where the language of a
statute is unambiguous, we will give effect to the language
as written and will not resort to rules of statutory
construction. Id. When no ambiguity exists, there is
nothing to construe. Id.
The MHRA, Section 213.010 et seq., protects important
societal interests in prohibiting discrimination in
employment, public accommodation, and other interests on
the basis of sex, race, color, religion, national origin,
ancestry, age as it relates to employment, disability, or
familial status as it relates to housing. State ex rel.
Dean v. Cunningham, 182 S.W.3d 561, 565 (Mo. banc 2006).
The Act provides for broad enforcement authority in the
Missouri Human Rights Commission and for administrative
remedies. Id. In addition, to further this societal interest
in eliminating discrimination, the Act allows a claimant to
seek damages for actual and punitive damages, court costs,
and reasonable attorney fees. Id. at 565-566. The Act, in
allowing a claim for damages, shows legislative intent to
include private claims for relief by aggrieved employees
and others, to further the enforcement of the statute. Id.
Section 213.111 reads, in pertinent part:
2. The court may grant as relief, as it deems
appropriate, any permanent or temporary injunction,
temporary restraining order, or other order, and may award
to the plaintiff actual and punitive damages, and may
award court costs and reasonable attorney fees to the
prevailing party, other than a state agency or commission
or a local commission; except that, a prevailing
respondent may be awarded court costs and reasonable
attorney fees only upon a showing that the case is without
foundation.
This court upheld an award of punitive damages assessed
against a state university in H.S. v. Board of Regents,
Southeast Missouri State University. 967 S.W.2d 665, 672
(Mo.App.E.D. 1998). In examining the issue of punitive
damages, we found that, under Missouri law, a plaintiff is
entitled to a punitive damages award if he shows that the
defendant’s conduct toward him was outrageous because of
the defendant’s evil motive or reckless indifference to the
rights of others. Id. Punitive damage awards have been
sustained when the Court found that (1) management
participated in the discriminatory conduct, and (2) treated
the Plaintiff differently from others. Id.
UMSL relies on Chappell v. City of Springfield, which is
not an MHRA case, for its holding that punitive damages are
not recoverable against a public entity. 423 S.W.2d 810,
813 (Mo. 1968). In Chappell, the Missouri Supreme Court
considered the issue of an award of punitive damages
against the City of Springfield for the operation of a
nuisance in connection with its sewage disposal plant. Id.
at 811. The court stated, “It is the general rule that in
the absence of a statute specifically authorizing such
recovery, punitive or exemplary damages are not recoverable
against a municipal corporation.” Id. at 813. Ultimately,
in Chappell, the court held, “[w]e find no statute
authorizing the recovery of punitive damages against a
municipality in the factual situation we have here.” Id. at
814. (emphasis added).
Unlike Chappell, here there is a statute specifically
authorizing such recovery. The MHRA includes among its
provisions the definition of employer: “Employer includes
the state, or any political or civil subdivision thereof,
or any person employing six or more persons within the
state, and any person directly acting in the interest of an
employer, but does not include corporations and
associations owned and operated by religious or sectarian
groups.” Section 213.010 (7). (emphasis added). The MHRA
also allows the court to award a plaintiff “actual and
punitive damages” in an action against an employer. Section
213.111.2.
UMSL contends that to interpret Section 213.111 to allow
punitive damages against a state entity “would in effect
mean that the General Assembly in promulgating [Section]
213.111 is granting public money to a private person
(Respondent) in violation of Article III, [Section] 38 (a)
of the Missouri State Constitution.” Citing to an opinion
letter written by the Missouri State Attorney General in
1985 stating that “gratuitous payments to injured parties
constituted a prohibited grant” under the Missouri
Constitution, UMSL attempts to persuade us that the
punitive damages awarded to Brady therefore violate the
State’s constitution. An Attorney General’s Opinion is not
binding on this court and we do not find it persuasive.
Smith v. Sheriff, 982 S.W.2d 775, 779 (Mo.App.E.D. 1998).
It is the experience of this court that legislative bodies
use a definition section to make the drafting of the
substantive law clear and easier to follow without having
to repeat the definition. Since the Missouri General
Assembly included the phrase “the state, or any political
or civil subdivision” in the definition of “employer” in
Section 213.010, it is clear to us that the legislature
intended to treat the state and its subdivisions in the
same manner that it treats other employers.
In Fortner v. City of Archie, Missouri, the United States
District Court interpreted the MHRA to mean that punitive
damages are recoverable against a municipality. 70 F. Supp.
2d 1028, 1031 (W.D. Mo. 1999). The court in Fortner stated
that, “the legislature must have intended the damages
provision, which includes punitive damages with no limiting
language, to apply to all `employers,’ . . .” Citing to
H.S., 967 S.W.2d at 672 and Kizer v. Curators of the Univ.
of Missouri, 816 F. Supp. 548 (E.D. Mo. 1993), the Fortner
Court held that from a reading of the plain language of the
MHRA, “municipal corporations are to be subject to the Act
in the same manner as any other employer, including the
award of punitive damages.”
Thus, the trial court interpreted and applied Section
213.111 of the MHRA correctly in allowing the award of
punitive damages against UMSL. Point denied.
II. Sufficiency of the Evidence
UMSL claims that the trial court erred in submitting the
issue of punitive damages to the jury and in denying its
motion for remittitur because there was insufficient
evidence to support such an award. UMSL argues that the
only evidence to support Brady’s award of punitive damages
was his reduction to half pay without benefits, his
assignment to an office near the swimming pool, the
condition of UMSL’s baseball field and the unimplemented
“goals and objectives” that were presented before the
relevant period. Also, UMSL contends that the acts were not
so outrageous as to shock the conscience nor so egregious as
to be tantamount to wrongdoing.
Whether there is sufficient evidence for an award of
punitive damages is a question of law. Hoyt v. GE Capital
Mortgage Servs., Inc., 193 S.W.3d 315, 322 (Mo.App.E.D.
2006). We review the evidence presented to determine
whether, as a matter of law, it was sufficient to submit
the claim for punitive damages. Id. In doing so, we view
the evidence and all reasonable inferences in the light
most favorable to submissibility. Id. A submissible case is
made if the evidence and the inferences drawn therefrom are
sufficient to permit a reasonable juror to conclude that
the plaintiff established with convincing clarity —
that is, that it was highly probable — that the
defendant’s conduct was outrageous because of evil motive
or reckless indifference. Id.
In the case before us, the jury had ample evidence to
determine that UMSL, Schuster and Dolan discriminated
against Brady because of his age and retaliated against him
each time he filed a complaint. Dolan testified that in
fiscal year 2003, the Athletic Department had additional
revenues of $72,000 over fiscal year 2002 and only $50,000
of additional expense that resulted from maintenance and
custodial costs being transferred to it from UMSL. Despite
this, Dolan and Schuster decided to cut the full-time
coaching positions for baseball, volleyball and softball in
order to ease what they claimed was a budget crisis. During
the same period, Socha was paid full-time for part-time
work and Spink was classified as a 75 percent FTE employee
for his jobs so he could receive benefits.
Additionally, Dolan testified that the condition of the
baseball field was not NCAA compliant, and it was “probably”
her job to make sure that sports facilities are NCAA
compliant. She also stated that UMSL did not put any money
into the baseball program although it spent nearly $500,000
to build a new facility for the women’s softball program.
Dolan acknowledged that this might make Brady’s job of
recruiting more difficult when recruits saw the waist-high
weeds in the batting cage, the non-compliant baseball field
and Brady’s small humid office near the swimming pool.
Dolan also testified that although other coaches who were
hired after Brady was reinstated in 1999 were given nicer
and more convenient offices on the second floor of the
athletic complex, he was not offered an office other than
his hot, humid and small office by the swimming pool.
The evidence also showed that Brady’s baseball team had a
better winning percentage than did the sports that were
classified as Tier One and still had full-time coaches.
There was also a proportionately smaller amount of
scholarship money allocated to the baseball program,
despite its superior record.
There was evidence before the jury that the much younger
Socha, Spink and Carter were treated better than Brady with
regards to pay, hours and benefits. They also had evidence
of the condition of the baseball field and its lack of NCAA
compliance; Brady’s office away from the other athletic
coaches; and the amount of scholarship money allocated to
Brady’s baseball program compared with other sports. In
light of the evidence before the court, we find that it was
not error for the trial court to submit the issue of
punitive damages to the jury. Point denied.
III. Fair and Reasonable Compensation
In its third point relied on, UMSL claims that the trial
court erred in submitting the issue of punitive damages to
the jury and denying its motion for remittitur because the
amount of the award exceeds fair and reasonable
compensation for Brady’s injury and damages. Further, it
contends that the amount of the award was not based on and
in relation to the degree of reprehensibility of its
conduct toward Brady. UMSL also argues that the amount of
punitive damages awarded to Brady was excessive and violated
the due process clause of the Fourteenth Amendment.
In BMW of North Amer., Inc. v. Gore, the Supreme Court
instructed courts reviewing punitive damages to consider
three guideposts: (1) the degree of reprehensibility of the
defendant’s misconduct; (2) the disparity between the
actual or potential harm suffered by the plaintiff and the
punitive damages award; and (3) the difference between the
punitive damages awarded by the jury and the civil
penalties authorized or imposed in comparable cases. 517
U.S. 559, 575 (1996). Appellate courts should review the
trial court’s application of these guidelines de novo.
State Farm Mutual Automobile Insurance Co. v. Campbell, 538
U.S. 408, 418 (2003).
“The most important indicium of the reasonableness of a
punitive damages award is the degree of reprehensibility of
the defendant’s conduct.” Id. at 419. (quoting Gore)
Courts should determine the reprehensibility of a defendant
by whether the harm caused was physical as opposed to
economic; whether the tortious conduct showed an
indifference to or a reckless disregard of the health or
safety of others; whether the target of the conduct had
financial vulnerability; whether the conduct involved
repeated actions or was an isolated incident; and whether
the harm was the result of intentional malice, trickery,
deceit, or mere accident. Id.
Looking first to the reprehensibility of the defendants’
conduct, the evidence supports the conclusion that the
defendants used trickery and deceit to cover up the
discrimination and retaliation under the guise of budget
cuts. Dolan testified that UMSL spent almost $500,000 to
build a new women’s softball facility in 1999 and put none
of that funding into the baseball program. Schuster
testified that the concept of tiered sports was presented
to the Athletic Committee in November 2000 as a possible
future idea, but that he implemented it on his own, without
committee approval, in June 2002. He also testified that he
did not have an “athletic background” and did not know that
Brady had had a winning season every year at UMSL. According
to Schuster, he considered the relative success of baseball
and soccer, which he said he believed was relatively equal
over the previous ten years, when he made his decision to
elevate soccer to Tier One and drop baseball to Tier Two.
In 2002, baseball had nearly double the attendance at games
that soccer had, despite the fact that the soccer field was
in better shape and had newer bleachers than the baseball
field. It also had restrooms and a concession wagon that
the baseball field did not. The evidence showed that soccer
had a winning season only four times in the previous ten
years while baseball had a winning season for all ten
years.
The defendants took away Brady’s medical insurance knowing
that he was a cancer survivor, paid a higher salary to his
relatively new and young assistant coach, gave an FTE
position to Spink and allowed Socha to work part-time hours
as a full-time employee. Brady was forced to find part-time
employment to support himself and two teenage sons and rely
on his former wife for financial help, thus making him
financially vulnerable. He was forced to pay out of pocket
for his medical expenses. The jury observed a systematic
campaign of age discrimination and retaliation and awarded
Brady punitive damages in an attempt to punish and deter
UMSL, Schuster and Dolan.
Under Gore’s second guidepost, the punitive damages award
to Brady is not so much greater than the award for
compensatory damages as to seem excessive. In Campbell, the
Supreme Court held that they were reluctant to identify
concrete constitutional limits on the ratio between harm,
or potential harm, to the plaintiff and the punitive
damages award. Campbell, 538 U.S. at 424. Declining to
impose a bright-line ratio not to be exceeded by a punitive
damages award, the Court nevertheless held that an award of
a single digit ratio would satisfy due process. Id. In the
case before us, the total ratio of punitive damages to
compensatory damages is less than five to one. We cannot say
that the award is constitutionally excessive under Gore’s
second guidepost.
The third Gore guidepost examines the difference between
the punitive damages awarded by the jury and the civil
penalties authorized or imposed in comparable cases. The
Southern District of this court recognized the difficulty
of applying the third guidepost in certain cases. “While
such comparisons may be possible when addressing conduct of
a fraudulent nature, this court does not find that factor
to be of assistance when reviewing punitive damages awarded
regarding tortious interference.” Environmental Energy
Partners, Inc. v. Siemens Bldg. Technologies, Inc., 178
S.W.3d 691, 708 (Mo.App.S.D. 2005). The factor of
comparative penalties is inconsequential in an action for
tortious interference with contract. Id. Likewise, this
factor is inconsequential in an MHRA case. An action for
damages under the MHRA seeks redress for an intentional
wrong done to a person. Diehl v. O’Malley, 95 S.W.3d 82, 87
(Mo. banc 2003).
Age discrimination and retaliation involve acts that are,
in a civil sense, legally wrongful, whereas fraud claims
founded in misrepresentation are akin to criminal conduct
for which sanctions might be identified and compared.
Because there are no comparable civil penalties for age
discrimination and retaliation, this guidepost provides
little assistance in our analysis. Thus, we do not find the
third guidepost to be applicable in the case before us.
Under the MHRA, punitive damages may be assessed against a
defendant with no stated limit. Section 213.111. The
Western District held that given a particular defendant’s
conduct, “it appears that the punitive damage award given
was the only way to deter the conduct of Turbomeca.”
Barnett v. La Societe Anonyme Turbomeca France, 963 S.W. 2d
639, 666 (Mo.App.W.D. 1997). This is the third time that
Brady has prevailed on an age discrimination claim against
UMSL, and each time the retaliation against him escalated.
As in Turbomeca, it appears that the punitive damage award
is the only way to deter the conduct of UMSL, Schuster and
Dolan. Therefore, we do not find that the size of the
punitive award is so disproportionate to the relevant
factors that it reveals improper motives or a clear absence
of the honest exercise of judgment. Nor do we find that the
amount is manifestly unjust. Point denied.
Employer Liability
In its fourth point, UMSL contends that the trial court
erred in submitting the issue of punitive damages against
Schuster and Dolan to the jury because they were Brady’s
supervisors and not his employers. UMSL argues that
individuals are not “employers” under the MHRA and cannot
be held liable.
As previously stated, where the issue presented is one of
statutory interpretation, a question of law, our review is
de novo. Glasgow, 196 S.W.3d at 631. Under the MHRA,
“Employer” includes the state, or any political or civil
subdivision thereof, or any person employing six or more
persons within the state, and any person directly acting in
the interest of an employer, but does not include
corporations and associations owned and operated by
religious or sectarian groups. Section 213.010. (emphasis
added).
UMSL relies on Lenhardt v. Basic Inst. of Technology, Inc.
for the proposition that individuals are not employers under
the MHRA and therefore cannot be held liable. 55 F.3d 377
(8th Cir. 1995). In Lenhardt, the Eighth Circuit tried to
predict how the Missouri Supreme Court would decide the
issue of whether individuals can be held liable under the
MHRA. Id. at 380. The Eighth Circuit stated that it would
“seek to construe the MHRA’s definition of `employer’ in a
manner consistent with analogous federal decisions
construing federal employment discrimination laws.” Id.
Using that reasoning, the Eighth Circuit opined “we believe
the Missouri Supreme Court would hold that the definition
of the term employer in the MHRA does not subject
employees, including supervisors or managers, to individual
liability. Id. at 381.
However, the language used in the MHRA is different from
that used in the federal employment discrimination
statutes. The MHRA defines “employer” as “. . . any person
directly acting in the interest of an employer . . .” among
other things. Section 213.010(7). (emphasis added). Under
Title VII, “the term `employer’ means a person engaged in
an industry affecting commerce who has fifteen or more
employees for each working day in each of twenty or more
calendar weeks in the current or preceding calendar year,
and any agent of such a person . . .” 42 USC 2000e(b).
Since Lenhardt was decided, its holding has been
questioned. In Hill v. Ford Motor Co., the plaintiff filed
an employment discrimination case under the MHRA in St.
Louis County, naming as defendants Ford Motor Company and
two individuals. 324 F. Supp. 2d 1028, 1030 (E.D. Mo.
2004). Ford removed the case from state court by asserting
that the plaintiff had fraudulently joined the two
individuals to defeat federal diversity jurisdiction,
claiming that the two people could not be held liable under
the MHRA. Id. at 1031. Ford used Lenhardt in support of
their contention. Id. at 1032. The Hill court stated,
“[w]ith all due respect to the Eighth Circuit, the Missouri
Supreme Court does not blindly follow the `predictions’ of
the federal courts.” Id. Additionally, the court drew
attention to other differences between the MHRA and Title
VII. Id. After reviewing recent case law from Missouri
state and federal courts, the district court concluded
that, “[u]nder the present circumstances, this Court
believes that a reasonable basis for predicting that the
Missouri Supreme Court might impose liability under the
MHRA against individual defendants . . . exists.” Id. at
1034.
The MHRA and Title VII are coextensive, but not identical,
acts. Hammond v. Municipal Correction Institute, 117 S.W.3d
130, 136 (Mo.App.W.D. 2003). (emphasis added). These
statutes create different causes of action. Id. Missouri
Courts have adopted federal Title VII case law when
interpreting analogous discrimination statutes in the
Missouri Human Rights Act. Id. at 137. However, the MHRA is
not merely a reiteration of Title VII. Id. The Act is in
some ways broader than Title VII, and in other ways is more
restrictive. Id. If the wording in the MHRA is clear and
unambiguous, then federal case law which is contrary to the
plain meaning of the MHRA is not binding. Id.
Our court recently addressed the issue of individual
liability in Cooper v. Albacore Holdings, Inc. and
recognized that this is an issue of first impression. 2006
WL 247650 (Mo.App.E.D. Aug. 29, 2006) (No. ED 87027). In
Cooper, we examined various interpretations of the
definition of “employer” in conjunction with the clear and
unambiguous language of the MHRA. Id. at 4. We stated that
the wording of the definition of “employer” within the MHRA
is more analogous to the Family Medical Leave Act (“FMLA”)
definition of “employer”[fn3] than it is to the Title VII
definition of the word.[fn4] Id. The Missouri legislature
chose to employ language within the MHRA definition of
“employer that is broader in scope than that found in Title
VII. Id. Therefore, we found that the plain and unambiguous
language within the definition of “employer” under the MHRA
imposes individual liability in the event of discriminatory
conduct. Id. at 5.
In the case before us, Schuster and Dolan, as Brady’s
supervisors at UMSL, fall within the definition of
“employer” under the MHRA. Therefore, Schuster and Dolan
may be found individually liable for age discrimination and
retaliation under the MHRA. Point denied.
Front Pay
In its fifth point relied on, UMSL claims that the trial
court erred and abused its discretion in awarding front pay
to Brady because the evidence was insufficient to support
the award. UMSL argues that Brady failed to present any
evidence that his full-time employment would likely have
continued absent the discrimination.
Both the trial court’s decision to award front pay and its
decision as to the amount of front pay are subject to review
only for abuse of discretion. Salitros v. Chrysler Corp.,
306 F.3d 562, 570 (8th Cir. 2002). Front pay is decided by
the court, not the jury. Id. Reinstatement is the preferred
remedy for unlawful employment discrimination, and front
pay is the disfavored alternative, available only when
reinstatement is impracticable or impossible. Id. at 572.
Trials should be conducted to allow claims at law to be
tried to a jury, with the court reserving for its own
determination only equitable claims and defenses, which it
should decide consistently with the factual findings made
by the jury. State ex rel. Leonardi v. Sherry, 137 S.W.3d
462, 473 (Mo. banc 2004). When reinstatement is not
feasible, the court may grant front pay as an alternative
equitable remedy. Altenhofen v. Fabricor, Inc., 81 S.W.3d
578, 594 (Mo.App.W.D. 2002).
UMSL argues that there are four factors that courts use to
determine the calculation of a front pay award: (1) the
likelihood the employment would have continued absent the
discrimination; (2) the length of time, with reasonable
effort, it will take plaintiff to secure comparable
employment; (3) the length of time other employees
typically hold the position lost; and (4) the plaintiff’s
efforts to mitigate damages. Each of these factors is
attributed to a different case and UMSL cites to no
authority that states a plaintiff must prove every one of
these in order to prevail on an award of front pay. Thus, we
do not find these factors applicable in the case at hand.
In the present case, the jury found that UMSL, Schuster
and Dolan discriminated against Brady because of his age,
retaliated against him after he complained of the
discrimination and that they were liable for actual and
punitive damages for reducing his full-time coaching
position to part-time. Consistent with those findings, on
April 22, 2005, the trial court issued an amended judgment,
ordering UMSL, in lieu of reinstatement, to pay Brady front
pay for the difference between his earlier full-time salary
and his present part-time salary. Additionally, the trial
court ordered UMSL to pay a monthly amount to Brady equal
to the cost of his health insurance, retirement, vacation,
sick and personal days as if he were a full-time employee.
This equitable relief was made retroactive to the jury’s
verdict on January 14, 2005. If UMSL offered Brady
full-time employment within the Athletic Department or
offered him a full-time recreation position, the
supplemental payments would cease.
Brady testified that he had been employed by UMSL as the
head baseball coach since 1985 and had a consistent winning
record with his teams each year. He was not terminated from
his position at UMSL and Dolan, for one, testified that his
reduction to part-time was due solely to budget cuts and
was not performance related. Brady testified that there are
no other Division II head baseball coach positions
available in St. Louis. The front pay award was only to be
paid so long as Brady remained a part-time coach. Examining
the totality of the evidence before the trial court, we
find that there was ample evidence to support its award of
front pay to Brady. This point is denied.
Attorneys’ Fees (Brady, Cross-Appeal)
In his sole point on cross-appeal, Brady claims that the
trial court erred in denying his motion for attorneys’ fees
because attorneys’ fees are normally awarded to the
prevailing party in a civil rights case. Brady contends
that he is the prevailing party in that the jury found in
his favor on all of his claims and awarded him a
substantial amount of damages.
The language of Section 213.111.2 allows a court to award
“court costs and reasonable attorney fees to the prevailing
party, other than a state agency.” H.S., 967 S.W. 2d at
673. The determination of reasonable attorneys’ fees is in
the sound discretion of the trial court and shall not be
reversed unless the amount awarded is arbitrarily arrived
at or is so unreasonable as to indicate indifference and a
lack of proper judicial consideration. Id. at 674. The
trial court [is] well within its authority to treat this as
a motion to amend under Rule 73.01 [now 78.04][fn5] and
award attorneys’ fees to . . . the prevailing party even
without evidence to support the award. Id. If a court
determines a plaintiff has prevailed it should award
attorney’s fees “unless special circumstances would render
such an award unjust.” Lippman v. Bridgecrest Estates I
Unit Owners Assoc., Inc., 4 S.W.3d 596, 598 (Mo.App.E.D.
1999). This exception is “extremely narrow” and applied
“only in unusual circumstances and then only upon a strong
showing by the party asserting it.” Id. A showing of
“outrageous” or “inexcusable conduct by plaintiffs (or
plaintiffs’ counsel) during the litigation of the case” has
been held sufficient to warrant a finding of “special
circumstances.” Id.
UMSL argues that there is a special circumstance that
supports the trial court’s denial of attorneys’ fees
because the motion was not timely filed. We examined the
relevant dates. On January 14, 2005, the jury returned a
verdict for Brady and a judgment was entered in accordance
with the verdict. On January 24, 2005, Brady filed a motion
for equitable relief, with a supplemental motion filed on
February 14, 2005. The trial court heard the motions on
February 18, 2005, and Brady’s supplemental motion for
equitable relief was granted in part. On March 18, 2005,
UMSL filed a motion for a judgment notwithstanding the
verdict or in the alternative a new trial, as well as a
motion for remittitur. Brady filed a memorandum in
opposition to the motion for remittitur on April 18, 2005.
On April 22, 2005, the trial court granted in part UMSL’s
motion for judgment notwithstanding the verdict with
respect to the issue of front pay awarded, and issued an
amended judgment.[fn6] Brady filed his motion for
attorneys’ fees on May 5, 2005.
UMSL maintains that the motion for attorneys’ fees should
have been filed within thirty days of the February 18, 2005
judgment based on an agreement between the parties’
attorneys. It references a letter from one of Brady’s
attorneys, Jerome Dobson, to Kelly Mescher, one of UMSL’s
attorneys. The letter confirms a conversation between the
parties that states they agree that when the trial court
rules on equitable relief, Brady will have thirty days from
that date to file his motion for attorneys’ fees. While we
understand UMSL’s interpretation of this to mean March 20,
2005, thirty days after the February 18, 2005 ruling, we
interpret that to mean a final judgment on the issue of
equitable relief. Since the trial court did not issue a
final judgment with regard to Brady’s motion for equitable
relief until April 22, 2005, we do not find that any
special circumstances existed for the trial court to deny
Brady’s motion for attorneys’ fees. Moreover, under Rule
78.07(d), “[u]nless an amended judgment shall otherwise
specify, an amended judgment shall be deemed a new judgment
for all purposes.” Thus, we find that Brady’s motion for
attorneys’ fees was both timely filed and filed in
accordance with the parties’ agreement.
Accordingly, we remand this issue to the trial court for
further proceedings consistent with this opinion.
On all other points, we affirm the judgment of the trial
court.
Glenn A. Norton, C.J., and Booker T. Shaw, J., concur.
[fn1] The Consolidated Omnibus Budget Reconciliation Act
gives workers who lose their health benefits the right to
choose to continue group health benefits provided by their
group health plan for limited periods of time under certain
circumstances such as voluntary or involuntary job loss,
reduction in the hours worked, transition between jobs,
death, divorce, and other life events. Qualified
individuals may be required to pay the entire premium for
coverage up to 102 percent of the cost to the plan.
[fn2] All statutory references are to RSMo. 2004, unless
otherwise indicated.
[fn3] The FMLA definition of “employer” includes “any person
who acts, directly or indirectly, in the interest of an
employer to any of the employees of such employer.” 29
U.S.C. Section 2611(4)(A)(ii)(I).
[fn4] Title VII states, “The term `employer’ means a person
engaged in an industry affecting commerce who has fifteen or
more employees for each working day in each of twenty or
more calendar weeks in the current or preceding calendar
year, and any agent of such a person . . .”
[fn5] All rule references are to Mo. Rules Civ. P. unless
otherwise indicated. Rule 78.04 states, in pertinent part,
“Any motion for new trial and any motion to amend the
judgment or opinion shall be filed not later than thirty
days after the entry of judgment.”
[fn6] In its brief, UMSL states that it filed a notice of
appeal from this amended judgment.