In the Missouri Court of Appeals
Eastern District
DIVISION TWO
TIM W. BOWOLAK, ) No. ED100502
)
Respondent/Cross-Appellant, ) Appeal from the Circuit Court
) of St. Louis County
vs. ) 11SL-CC02238
)
MERCY EAST COMMUNITIES d/b/a ) Honorable Thea Anne Sherry
MERCY HOSPITAL ST. LOUIS f/k/a )
ST. JOHN’S MERCY HEALTH SYSTEM )
d/b/a ST. JOHN’S MERCY MEDICAL )
CENTER, )
)
Appellant. ) FILED: October 28, 2014
OPINION
Mercy East Communities d/b/a Mercy Hospital St. Louis f/k/a St. John’s Mercy Health
System d/b/a St. John’s Mercy Medical Center (Mercy) appeals from the judgment entered
following a jury verdict in favor of Tim W. Bowolak (Bowolak) in the amount of $50,000.00
compensatory damages, $500,001.00 punitive damages, attorneys’ fees in the amount of
$81,500.00 and court costs. Bowolak cross appeals the portion of the judgment assessing post-
judgment interest at the rate of 5 percent, as opposed to 9 percent, regarding the award of
compensatory and punitive damages. We affirm.
Factual and Procedural Background
In October 2004, Bowolak applied for the position of Supply Technician at Mercy. This
was a manual labor job that involved transporting supplies and equipment to nurses. Bowolak’s
previous work experience was all in manual labor jobs. 1
When Bowolak initially applied for employment with Mercy in October 2004, he was
required to undergo a physical examination which was performed on October 13, 2004 by
Mercy through one of its registered nurses. As part of his physical examination on October 13,
2004, Bowolak was asked about his prior medical history. He indicated that he had suffered a
work-related injury in October 2002, which resulted in a spinal fusion in May 2003. Bowolak
also indicated that he was presently taking pain medications, Hydrocodone and Methocarbamol.
Bowolak passed the physical examination, and he was accepted into the job with “no restrictions.”
Bowolak worked as a Supply Technician from October 2004 until February 2008. During
that time, he never missed work because of any physical problem, consistently received good job
assessments, and never was told that he could not perform the essential functions of his job.
In February 2008, Bowolak was asked about transferring to the linen department as a
Care Service Associate. The job involved providing linen and supplies to the nurses. Bowolak
accepted the position and worked without incident from February 2008 to January 7, 2010.
Bowolak testified that he suffered a minor shoulder injury sometime in 2009; however, he did
not miss work as a result of that injury. Bowolak received good assessments as a Care Service
Associate and was able to perform his job.
On January 7, 2010, Bowolak was at work pulling a cart of linen that weighed
approximately 500 lbs. Bowolak noticed that one of the wheels on the cart was not
functioning properly and he was having a difficult time moving the cart. He testified that as a
result, while moving the cart, he “tweaked something” in his lower back. Although Bowolak
finished his day of work, he informed his supervisor of the incident and was sent to Mercy’s
1
The record shows that at the time of trial, Bowolak was 41 years old, that he had not completed
high school, but did obtain a GED. He had little if any formal education beyond the GED.
2
doctors for treatment. Bowolak was treated primarily by Dr. Sharon Godar, who placed
Bowolak on light duty, and on March 23, 2010, released him back to “regular duty,” without
restrictions. Bowolak did not feel he was yet ready to return to work on March 23, 2010, but
returned to full duty, without restrictions, in early May 2010. Between March 2010 and May
2010, Mercy refused worker’s compensation benefits to Bowolak. As a result, he filed a worker’s
compensation claim, the only worker’s compensation claim he filed while employed with Mercy.
Bowolak continued to work as a Care Service Associate, without restrictions and without
missing work due to physical problems, from May 2010 until March 3, 2011. He continued to
receive good assessments from Mercy. Notably, Mary Obermann (Obermann), Bowolak’s direct
supervisor, testified by deposition that he was a good worker and that he successfully performed
his duties as a Care Service Associate. Michael Wyatt (Wyatt), who was Obermann’s supervisor,
also confirmed through his deposition testimony that Bowolak was able to perform the essential
functions of his job as a Care Service Associate.
On March 3, 2011, Bowolak was called to a meeting by Mercy. Present at the meeting
were Obermann, Wyatt, Ruth Brooks (Brooks), Mercy’s Workers’ Compensation Coordinator,
and Lois Dodson (Dodson), Mercy’s Human Resource Manager. At this meeting, Bowolak
testified he was presented with an unsigned document marked “DRAFT,” 2 that was dated
December 10, 2003 and allegedly from the office of Dr. Allan Gocio, the physician who treated
Bowolak and performed his back surgery as a result of a work-related injury that occurred in
October 2002 while employed at Cardinal Scale Manufacturing, Inc. (Cardinal Scale). 3 The
“DRAFT” document indicated “at the current time” Bowolak was limited to “lifting to 30
2
This document was discovered by Wanda Clark, one of Mercy’s workers’ compensation
specialists, in connection with her investigation of Bowolak’s worker’s compensation claim
relating to the January 7, 2010 incident.
3
Bowolak filed a worker’s compensation claim regarding this injury which resulted in a 32%
permanent partial disability rating and a settlement payment with Cardinal Scale of $54,720.00.
3
pounds on a repetitive basis and no greater than 50 pounds on an occasional basis.” Frequent
breaks were suggested but he was found to be “suitable for work on an immediate basis.”
Bowolak testified that he had never seen the document before this meeting but was informed
that he could no longer continue in his job as a Care Service Associate because of the alleged
restrictions contained in the document. Bowolak was told that he would be contacted after
further investigation. Bowolak never worked for Mercy again and was never paid by Mercy.
At the meeting, Bowolak explained that Dr. Gocio never discussed the contents of the
“DRAFT” document with him, he had never before seen the document, and that he was able to
perform his job and that he had no physical restrictions. The unsigned document was not
directed to Bowolak, and there was never any evidence presented at trial that Bowolak ever
received this unsigned document. At trial, Bowolak reiterated that no doctor had ever
recommended any permanent restrictions to him, and that he had never seen the unsigned
document at any time before March 2011. Bowolak testified that although his previous back
injury was serious and that his back was never normal after the injury, he was capable of
performing his job at Mercy. In addition, Dr. Godar was aware of Bowolak’s prior back injury
from 2002, was aware of the physical requirements of Bowolak’s job and was in possession
of the unsigned “DRAFT” document dated December 10, 2003, when Dr. Godar released
Bowolak back to full duty, without restrictions, on March 23, 2010.
On March 9, 2011, Bowolak was called in for a second meeting with Mercy and again
the unsigned “DRAFT” document was discussed. Bowolak reiterated that he had no restrictions
and that he could perform his job. Again, Bowolak was informed that he could no longer work in
his job as a Care Service Associate; he was also was informed that he would not be paid. Neither
at the March 3, 2011, meeting nor at the March 9, 2011, meeting was Bowolak offered a
4
different position by Mercy. Moreover, he was never offered an opportunity to undergo a
physical examination and was never told that he had any ability to be reinstated to his job. Instead,
Bowolak was informed that he could go on the internet and if he found something, he could
apply for a job at Mercy by contacting a person named Laura Austin. While he did go on the
internet as instructed, he found no jobs that would meet the alleged restrictions.
On March 9, 2011, Bowolak was given a letter by Mercy that indicated that he was
terminated. The letter stated that Bowolak could no longer work in his position as a Care Service
Associate because “you are not able to perform the essential functions of your role.” Bowolak’s
termination was based on the unsigned “DRAFT” document date December 10, 2003,
purportedly from Dr. Gocio’s office.
On April 7, 2011, pursuant to the Missouri Human Rights Act (MHRA), Bowolak
appeared at the Equal Employment Opportunity Commission (EEOC) and filed both his Charge
of Discrimination against Mercy with the EEOC and with the Missouri Commission on Human
Rights (MCHR). After Bowolak filed his claim, a representative of the EEOC contacted
Dodson and requested that Mercy reinstate Bowolak; Dodson responded that Mercy would not
reinstate Bowolak. On April 14, 2011, Dodson wrote a letter to Bowolak, and “cc’d” to Wyatt,
confirming that Bowolak was no longer employed by Mercy.
On October 11, 2011, Bowolak brought this action for disability discrimination pursuant
to the MHRA. On May 2, 2013, following a jury trial, judgment was entered for Bowolak. The
jury awarded Bowolak compensatory damages in the amount of $50,000.00 and punitive damages
in the amount of $500,001.00. The trial court entered judgment in accordance with the jury’s
verdict.
On May 7, 2013, Bowolak filed a Motion to Amend Judgment to Include an Award of
5
Attorneys’ Fees. On June 3, 2013, Mercy filed its Combined Motions for Directed Verdict,
Judgment Notwithstanding the Verdict, Remittitur, Amendment of Judgment and/or a New
Trial. On July 8, 2013, prior to ruling on Mercy’s combined post-trial motions, the trial court
amended the original Judgment by including attorneys’ fees in the amount of $81,500.00. On
September 16, 2013, the trial court denied Mercy’s post-trial motions and entered Judgment in
favor of Bowolak in the amount of $550,001.00, with post-judgment interest at the rate of
5 percent, and entered judgment for attorneys’ fees in the amount of $81,500.00, with post-
judgment interest at the rate of 9 percent.
On September 25, 2013, Mercy filed its notice of appeal alleging that the trial court erred
in denying Mercy’s post-trial motions. Bowolak cross-appealed alleging that the trial court erred in
ordering post-judgment interest at a rate of 5 percent, as opposed to 9 percent, as to the award of
$550,001.00. This appeal follows.
Standard of Review
In reviewing a denial of a motion for judgment notwithstanding the verdict, we review
the record to determine whether the plaintiff made a submissible case. Williams v. Trans States
Airlines, Inc., 281 S.W.3d 854, 865 (Mo. App. E.D. 2009). To make a submissible case, a
plaintiff must demonstrate that each and every fact essential to liability is predicated upon legal
and substantial evidence. Williams, 281 S.W.3d at 865-66. “Substantial evidence is that which,
if true, has probative force upon the issues, and from which the trier of fact can reasonably
decide the case.” Id. at 866. In determining whether the evidence was sufficient to support the
jury’s verdict, we review the evidence in the light most favorable to the result reached by the
jury, giving the plaintiff the benefit of all reasonable inferences and disregarding evidence and
inferences that conflict with the verdict. Id. A jury verdict will not be overturned unless there is
6
a complete absence of probative facts to support the jury’s verdict. Id. Where reasonable minds
can differ on the question before the jury, we will not disturb the jury’s verdict. Id.
We review the trial court’s denial of a motion for new trial for “abuse of discretion,”
which occurs when the trial court’s ruling is “clearly against the logic of the circumstances
before the court at the time and is so unreasonable and arbitrary that is shocks one’s sense of
justice and indicates a lack of careful consideration.” Id. We will reverse the trial court’s
decision only if we find a substantial or glaring injustice. Id.
Disability Discrimination under the MHRA
In Point I, Mercy argues the trial court erred in denying his motions for directed verdict
and judgment notwithstanding the verdict because Bowolak failed to make a submissible
disability discrimination case under the MHRA. Specifically, Mercy argues that Bowolak failed
to show he was disabled under the MHRA, that he was discharged, or that he was discharged as a
result of his disability. We disagree.
A claim of disability discrimination under Section 213.111, RSMo 2000, 4 of the MHRA
requires the plaintiff to show that: 1) he is legally disabled; 2) he was discharged; and 3) the
disability was a factor in his discharge. Hervey v. Mo. Dept. of Corrections, 379 S.W.3d 156,
160 (Mo. banc 2012). First, a plaintiff must establish that he is legally disabled. Id. In other
words, a plaintiff must establish that he had a disability, or that the defendant regarded him as
having a disability, or that he has a record of having a disability. In its first five subpoints,
Mercy contends that Bowolak failed to establish either that he had a disability or that Mercy
perceived Bowolak to have a disability. Bowolak established that he, in fact, had a disability or
was perceived to have an impairment.
A “disability” means: “[A] physical or mental impairment which substantially limits one
4
Unless otherwise indicated, all further statutory references are to RSMo 2000, as amended.
7
or more of a person's major life activities, being regarded as having such an impairment, or a
record of having such an impairment, which with or without reasonable accommodation does not
interfere with performing the job, utilizing the place of public accommodation, or occupying the
dwelling in question.” Section 213.010(4).
Mercy alleges that Bowolak’s case should be viewed only as a claim of actual impairment,
as opposed to being regarded as having an impairment, and/or having a record of an impairment,
because Bowolak only pled actual impairment. However, Bowolak’s petition states that he was
disabled “as defined by Section 213.010(4),” which would include being regarded as having an
impairment and having a record of an impairment. More importantly, the evidence at trial was
sufficient to allow the jury to find a record of impairment, and/or being regarded as having an
impairment and/or actual impairment. 5
First, there was sufficient evidence to allow the jury to find that Bowolak had a record of
impairment in connection with the severe back injury that he sustained in 2002 while working
for Cardinal Scale that resulted in a back fusion. Bowolak filed a worker’s compensation
claim in connection with the 2002 injury, and a settlement was reached reflecting 32 percent
permanent partial disability to Bowolak’s low back; the jury was aware of this settlement. There
was also sufficient evidence to allow the jury to find that Bowolak had an actual impairment
relating to the 2002 back injury and resulting back fusion, as is reflected in the 32 percent
disability. Bowolak also admitted at trial and during his physical examination for employment
with Mercy that his back was never the same and that he was on pain medications. Finally, there
was sufficient evidence to allow the jury to find that Bowolak was being regarded as having an
impairment by Mercy. Specifically, the discharge letter of March 9, 2011, indicates that Bowolak
5
We agree with Bowolak that contrary to Mercy’s position, these are not inconsistent and/or
mutually exclusive conditions.
8
had permanent restrictions, and that Bowolak was “not able to perform the essential functions” of
his job.
Mercy next alleges that Bowolak failed to establish that he was discharged. This
argument is contradicted by the record. Prior to March 2011, Bowolak worked for Mercy as a
Care Service Associate and was paid for his work. In March 2011, Bowolak was informed in
person and by letter that he could no longer work in his job, and that he no longer was going to be
paid. Bowolak was informed that since he was “not able to perform the essential functions of
[his] role and there’s no accommodation that could be made for these essential functions, [he
was] allowed 30 days to pursue a position where [he could] perform the essential functions.”
Besides this directive, Mercy never offered Bowolak another appropriate position or even gave
assistance in finding one. All evidence in the record indicates Bowolak was terminated.
Finally, Mercy alleges that Bowolak failed to present sufficient evidence that his
disability, as defined by the MHRA, contributed to the discharge. Again, the record belies
Mercy’s argument. In the two meetings in March 2011, as well as in the March 9, 2011
discharge letter, it was set out plainly to Bowolak that he was being discharged because of his back
injury of 2002. Pursuant to the MHRA, Bowolak was only required to “show that a protected
characteristic contributed to the adverse employment decision.” Holmes v. Kansas City Mo. Bd.
of Police Comm’rs ex rel. Its Members, 364 S.W.3d 615, 627 (Mo. App. W.D. 2012). A
“contributing factor” is a factor that “contributed a share in anything or has a part in producing the
effect.” Holmes, 364 S.W.3d at 627 (quoting Williams, 281 S.W.3d at 867); see also Daugherty
v. City of Maryland Heights, 231 S.W.3d 814, 819 (Mo. banc 2007) (the MHRA provision
defining discrimination does not require a plaintiff to prove that discrimination was a substantial
or determining factor in an employment decision but rather that consideration of age, disability,
9
or other protected characteristics contributed to the unfair treatment).
Viewing the evidence in the light most favorable to the verdict and disregarding contrary
evidence, Bowolak made a submissible case on each element needed to prove disability
discrimination. Point I is denied.
Punitive Damages
In Points II, III, and IV, Mercy raises arguments with respect to the issue of punitive
damages. As these points are interrelated, we address them together. In Point II, Mercy argues
the trial court erred in submitting the issue of punitive damages to the jury because there was
insufficient evidence that Mercy’s conduct was outrageous as a result of evil motive or reckless
indifference. In Point III, Mercy argues the trial court erred in upholding the award of punitive
damages because such award was unconstitutionally excessive. In Point IV, Mercy argues the
trial court erred in prohibiting Mercy from presenting any evidence of its “religious ownership.”
When reviewing whether a plaintiff has made a submissible case for punitive damages,
we review the evidence in the light most favorable to submissibility, while disregarding all
adverse evidence inferences. Williams, 281 S.W.3d at 870. Section 213.111.2 permits recovery
of punitive damages in claims brought under the MHRA; a plaintiff is entitled to punitive
damages if he proves by clear and convincing evidence that the defendant’s conduct was
outrageous because of the defendant’s evil motive or reckless indifference to the rights of
others.” Gilliland v. Missouri Athletic Club, 273 S.W.3d 516, 520 (Mo. banc 2009). “[P]roof
offered to support an employee’s underlying substantive claim and the employee’s additional
claim for punitive damages need not be mutually exclusive, and often is not.” Williams, 281
S.W.3d at 870-71. Punitive damages may be proven by circumstantial evidence and there is no
requirement of direct evidence of intentional misconduct as most employment discrimination
10
cases are “inherently fact-based” and necessarily rely on inferences rather than direct evidence.
Holmes, 364 S.W.3d at 628-629. “[P]unitive damages awards are evaluated on a case-by-case
basis and ‘[a]n evil intent may ... be implied from reckless disregard of another’s rights and
interests.’” Id. at 628.
Here, Bowolak worked for Mercy, without restrictions, from October 2004 until his
discharge on March 9, 2011. The record indicates that throughout that time, Bowolak was able
to perform the essential functions of his job. The record further indicates that Bowolak passed
Mercy’s physical examination, performed by Mercy staff, on October 13, 2004, and was
accepted into his job with “no restrictions.” After Bowolak’s injury on January 7, 2010,
Mercy’s own doctor released Bowolak back to full duty, without restrictions.
The sole basis for discharging Bowolak was the “DRAFT” document, which Mercy
claims set forth permanent restrictions. However, the letter was unsigned and over seven years
old. At trial, Bowolak presented a letter from Dr. Gocio’s office that was not marked “DRAFT”
and was signed by Dr. Gocio. The letter indicated that Bowolak was doing well and that Dr.
Gocio anticipated releasing Bowolak back to his employment at Cardinal Scale in four weeks.
Mercy never called Dr. Gocio to testify as a witness.
Bowolak also presented a report dated January 14, 2004, authored by Dr. Daniel Kitchens
(Dr. Kitchens), a neurosurgeon, which was part of the document from the work injury Bowolak
sustained in 2002. Dr. Kitchens concluded in his report that Bowolak could return to “heavy
work,” including returning to Cardinal Scale “without restrictions.”
Here, the record indicates that Mercy performed a physical examination of Bowolak in
October 2004, with knowledge of Bowolak’s prior back injury, the prior back fusion, and
Bowolak’s current pain medications. Despite knowledge of all these facts, Mercy still accepted
11
Bowolak into his job with “no restrictions.” After Bowolak’s January 2010 incident, Mercy’s
own doctor, Dr. Godar, who treated Bowolak, was in possession of the “DRAFT” document
dated December 10, 2003, and was aware of Bowolak’s job requirements, released Bowolak
back to full duty “without restrictions.” Under these facts, the jury could have concluded that
Mercy acted outrageously towards Bowolak. Viewing the evidence and all reasonable
inferences in the light most favorable to submissibility, the evidence presented was sufficient, as
a matter of law, to submit the claim for punitive damages to the jury. Holmes, 364 S.W.3d at
628. We find that Bowolak proved by clear and convincing evidence that Mercy’s conduct was
outrageous and carried out with evil motive or reckless indifference to Bowolak’s rights. Point II
is denied.
With respect to Point III, the trial court’s award of punitive damages was not unconstitutionally excessive.
Section 510.265 provides that: “No award of punitive damages against any defendant
shall exceed the greater of: (1) Five hundred thousand dollars; or (2) Five times the net amount
of the judgment awarded to the plaintiff against the defendant.” Section 510.265.1. Our review
of the trial court’s determination regarding constitutionality of the punitive award is de novo,
deferring to the trial court’s findings of fact, unless they are clearly erroneous. Peel v. Credit
Acceptance Corp., 408 S.W.3d 191, 211 (Mo. App. W.D. 2013). There is no precise
constitutional line or simple mathematical formula with regard to determining whether a
punitive damages award is grossly excessive; instead, the imposition of punitive damages
requires a proper balance be struck between the need for punishment to deter future
misconduct and the severity of the award. Peel, 408 S.W.3d at 211. Accordingly, courts
reviewing an award of punitive damages consider three factors in determining whether a
punitive damages award is grossly excessive: (1) the degree of reprehensibility of the
defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the
12
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. Id. at
212 (citing Estate of Overbey v. Chad Franklin Nat’l Auto Sales N., LLC, 361 S.W.3d 364,
372 (Mo. banc 2012)).
Here, Bowolak was awarded $50,000.00 in compensatory damages and $81,500.00 in
attorneys’ fees and $500,001.00 in punitive damages. Mercy’s actions in terminating Bowolak
were reprehensible and outrageous. The evidence at trial indicated that Bowolak had been a
good employee who performed his job well for over six years. On March 9, 2011, he was
brought into a meeting and was terminated; he was no longer paid, and he was not offered any
alternative position by Mercy. The use of a seven-year-old document as a basis for termination
of a good employee was at a minimum reckless misconduct by Mercy. Based on our standard of
review and research of comparable cases, we conclude that the jury’s award of punitive damages
was not clearly erroneous or constitutionally excessive in this case. See Peel, 408 S.W.3d at
213-14 (Mo. App. W.D. 2013) (the court approved a punitive damage award of $881,789.05,
with actual damages totaling $176,357.81; see also Overbey, 361 S.W.3d at 373 (the court
approved a punitive damage award of $500,000.00 where the actual damages were $4,500.00);
see also The Fireworks Restoration Co., LLC v. Hosto, 371 S.W.3d 83, 1-93 (Mo. App. E.D.
2012) (the court approved an award of $150,000.00 in punitive damages, where the actual
damages were $1.00); see also Heckadon v. CFS Enterprises, Inc., 400 S.W.3d 372, 383-86 (Mo.
App. W.D. 2013) (the court approved punitive damages totaling $500,000.00, where the actual
damages were $2,144.87). Point III is denied.
With respect to Point IV, the trial court did not err in prohibiting evidence of Mercy’s
“religious ownership” and non-profit status.
13
A trial court has considerable discretion in deciding whether to admit or exclude
evidence. Williams, 281 S.W.3d at 872. We defer to the trial court’s evidentiary rulings and will
reverse only if the court clearly abused its discretion. Id. Upon finding an abuse of discretion,
this court will reverse only if the prejudice resulting from the improper admission or exclusion of
evidence is outcome-determinative. Id.
Here, Mercy’s counsel presented evidence at trial and argued in closing argument, and
during the second phase of the trial, relating to the assessment of punitive damages, both about
Mercy’s religious affiliation and non-profit status. Additionally, Mercy was not prevented from
presenting evidence relating to “charitable giving and community activities.” We find no abuse
of discretion or resulting prejudice. Point IV is denied.
Jury Instructions
In Point V, Mercy argues the trial court erred in accepting Bowolak’s proffered
instructions because the resulting instructions created a “roving commission” and confused the
jury as to his definition of disability and discharge. We disagree.
Whether a jury was instructed properly is a question of law this court reviews de novo.
Hervey v. Missouri Dept. of Corrections, 379 S.W.3d 156, 159 (Mo. banc 2012). “Review is
conducted in the light most favorable to the record, and, if the instruction is supported by any
theory, then its submission is proper.” Hervey, 379 S.W.3d at 159. “Instructional errors are
reversed only if the error resulted in prejudice that materially affects the merits of the action.”
Id. It is the burden of the party challenging the instruction to show that the offending instruction
“misdirected, misled, or confused the jury” and resulted in prejudice to the party challenging the
instruction. Id.
Here, Bowolak’s Instruction No. 6 was based on MAI 38.01 (2007 Revision), the verdict
14
directing instruction for MHRA cases which was in effect at the time of trial. Instruction No. 6
read as follows:
INSTRUCTION NO. 6
Your verdict must be for plaintiff if you believe:
First, defendant discharged plaintiff, and
Second, at the time of discharge plaintiff suffered a disability as defined in
Instruction No. 8, and
Third, disability was a contributing factor in such discharge, and
Fourth, as a direct result of such conduct, plaintiff sustained damage.
At the time of trial, MAI 38.01 6 needed to be modified in order for the jury to find the disputed
fact of Bowolak’s status as legally disabled; however, the caselaw did not set forth the language
of the needed modification. Hervey, 379 S.W.3d at 163. 7 As a result, the trial court modified
MAI 38.01 by adding, “Second, at the time of discharge plaintiff suffered from a disability as
defined in Instruction No. 8.”
Instruction No. 8 read as follows:
INSTRUCTION NO. 8
“Disability” as used in these instructions means a physical or mental
impairment which substantially limits one or more of a person’s major life
activities, being regarded as having such an impairment, or a record of having
such an impairment, which with or without reasonable accommodation does not
interfere with performing the job.
6
Subsequent to the trial of this case, and in light of the ruling in Hervey, the Missouri Supreme
Court formulated MAI 38.01(b), which integrates the definition of disability set forth in Section
213.010(4) in disability discrimination cases pursuant to the MHRA wherein the defendant is
contesting legal disability.
7
In Hervey, the Missouri Supreme Court held that a similarly-worded verdict director did not
instruct the jury adequately about the substantive law in a MHRA case because it assumed as
true a disputed fact: that the plaintiff was disabled. Hervey, 379 S.W.3d at 163. As such, the
Court reasoned, plaintiff was relieved of her burden of proving an essential element of her
disability discrimination claim under the MHRA: whether the plaintiff was legally disabled at
the time of her discharge. Id. The Court held that the verdict-directing instruction must require
the jury to find that plaintiff was disabled under a separately enumerated paragraph. Id. The
Court concluded that the submission of a verdict director that did not hypothesize all essential
elements of plaintiff’s claim was “prejudicial error and require[ed] that the trial court’s judgment
be reversed and the cause be remanded.” Id.
15
This definition of disability is taken directly from Section 213.010(4) of the MHRA, which
defines disability as follows: “’Disability’, a physical or mental impairment which substantially
limits one or more of a person's major life activities, being regarded as having such an
impairment, or a record of having such an impairment, which with or without reasonable
accommodation does not interfere with performing the job, … “ Section 213.010 (4).
Finally, Mercy argues that the t rial court erred in failing to instruct the jury on
constructive discharge. Bowolak has never contended that he was constructively discharged, but
rather he was terminated from his job. Additionally, the evidence at trial supported Bowolak’s
contention that he was terminated in March 2011.
In conclusion, the trial court did not err in giving Instruction No. 6 and Instruction No. 8
to the jury. Bowolak pled and presented sufficient evidence for a jury to find that he was
disabled as defined by the MHRA, which included a record of impairment, having an actual
impairment, and/or being regarded as having such an impairment. Moreover, the evidence was
overwhelming that any impairment Bowolak may have had did not interfere with the
performance of his job. Point V is denied.
Attorneys’ Fees
In Point VI, Mercy argues the trial court erred in awarding Bowolak excessive attorneys’
fees given his failure to prevail on all his claims and the lack of evidence presented before the
trial court to support such an award. We disagree.
“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.” Brady v. Curators of
University of Missouri, 213 S.W.3d 101, 114 (Mo. App. E.D. 2006). “The trial court is
16
considered an expert on the issue of attorneys’ fees such that, in the absence of a contrary
showing, the trial court is presumed to know the character of the attorneys’ services rendered in
duration, zeal and ability.” Williams, 281 S.W.3d at 878. Moreover, the MHRA expressly
permits the trial court to award to a prevailing party court costs and reasonable attorneys’ fees.
Id.; Section 213.111.2.
Here, the prevailing party, Bowolak filed his Motion to Amend Judgment to include
Award of Attorneys’ Fees in the amount of $92,850.00. The motion contained affidavits
supporting damages and attorneys’ fees; it also contained multiple pages of detailed billing for
the services performed by Bowolak’s attorneys beginning on March 10, 2011 and ending on
May 2, 2013 when the original judgment was entered by the trial court. On July 8, 2013, the trial
court amended the judgment and awarded attorneys’ fees in the amount of $81,500.00, thereby
reducing Bowolak’s request by $11,350.00.
While the determination of reasonable attorneys’ fees is within the trial court’s sound
discretion, there are a number of factors that may be considered to determine the amount of
attorneys’ fees to award, including: 1) the rates customarily charged by the attorneys involved in
the case and by other attorneys in the community for similar services; 2) the number of hours
reasonably expended on the litigation; 3) the nature and character of the services rendered; 4) the
degree of professional ability required; 5) the nature and importance of the subject matter; 6) the
amount involved or the result obtained; and 7) the vigor of the opposition. Gilliland, 273 S.W.3d
at 523. In Hensley v. Eckerhart, the U.S. Supreme Court stated, “the most critical factor is the
degree of success obtained.” Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76
L.Ed.2d 40 (1983)). A court might also consider the extent to which a plaintiff prevailed on
some claims and not on others. Gilliland, 273 S.W.3d at 523-24. If the plaintiff’s claims for
17
relief are based on different legal theories and facts, and counsel’s work on one claim is
unrelated to work on another, then the court should treat the unrelated claims as if they had been
raised in separate lawsuits. Alhalabi v. Mo. Dept. of Natural Resources, 300 S.W.3d 518, 530
(Mo. App. E.D. 2009). Therefore, the court may award no fee for services on the unsuccessful
and unrelated claims. Alhalabi, 300 S.W.3d at 530. On the other hand, if the claims for relief
have a common core of facts and are based on related legal theories, so that much of counsel’s
time is devoted generally to the litigation as a whole and rendering it difficult to divide the hours
expended on a claim-by-claim basis, such a lawsuit cannot be viewed as a series of distinct
claims. Id. at 530-31. In short, the efforts of the prevailing attorneys should not be discounted
where the effort and proof were the same for the claims on which the plaintiff prevailed and
those on which he did not. Gilliland, 273 S.W.3d at 524 (citing Hensley, 461 U.S. at 451, 103
S.Ct. 1933). This is especially true where counsel obtained complete relief for the plaintiff on
the successful claims. Id.
Here, in its Amended Judgment, the trial court carefully explained what factors it
considered in awarding Bowolak $81,500.00 in attorneys’ fees. The trial court stated as
follows:
Following trial, plaintiff, as the prevailing party, filed his request for attorneys’
fees in the amount of $92,850.00 (MHRA) Section 213.111.2 RSMo. Both parties
filed their memoranda for the Court’s consideration. Determination of attorneys’
fees is within the sound discretion of the Court. Gilliland v. Mo. Athletic Club,
273 S.W.3d 516, 523 (Mo. banc 2009). In arriving at an amount for plaintiff’s
reasonable attorneys’ fees, the Court has considered the following factors: 1) the
reasonableness of plaintiff’s attorneys’ hourly rates (250.00/150.00); 2) the
number of hours expended; 3) the nature and character of the services rendered;
4) the degree of professional ability required; 5) the nature and importance of the
subject matter; 6) the amount involved or the result obtained; and 7) the vigor of
the opposition. Dewalt v. Davidson Service/Air, Inc., 398 S.W.3d 491, 501 (Mo.
App. E.D. 2013). Defendant does not dispute that plaintiff is entitled to attorneys’
fees as the prevailing party; it disputes only the amount. The Court finds that a
reduction is warranted as the time records were not contemporaneously made,
18
the summary of the time expended on preparation for pleadings and for summary
judgment and the like, were in some instances insufficiently specific and
excessive in others. The Court finds that plaintiff’s counsel was professional, able,
and the services rendered were more than adequate. Although the issue of
retaliation was not presented to the jury, the Court finds that both claims were
sufficiently related and required the same amount of time in preparation. The
Court notes that the time records do not include any time spent by plaintiff’s
counsel on the separate worker’s compensation claims. The Court takes note of
the vigorous opposition by defendant from the beginning of this case until its
conclusion to which plaintiff had to respond. In the final analysis, the most
critical factor is the degree of success obtained. Hensley v. Eckerhart, 461 U.S.
424, 436 (1983); Trout v. State, 269 S.W.3d 484, 488 (Mo. App. W.D. 2008).
Although defendant argues that plaintiff asked for $62,000.00 and the jury
awarded only $50,000.00, this is still a significant verdict. Coupled with punitive
damages in the amount of $500,001.00, a reduction in fees is not warranted.
Bowolak obtained a verdict of $550,001.00 and the record shows that the trial court
considered all the relevant factors in arriving at its award of attorneys’ fees. We find no abuse of
discretion. Point VI is denied.
Redaction of Worker’s Compensation Settlement Amount
In Point VII, Mercy’s last point on appeal, Mercy argues the trial court erred in redacting
the dollar amounts from Bowolak’s worker’s compensation settlement against his former
employer. Mercy contends that the dollar amounts were relevant to its defenses to show the
extent of Bowolak’s injury and resulted in prejudice against Mercy. We disagree.
A trial court has considerable discretion in deciding whether to admit or exclude
evidence. Williams, 281 S.W.3d at 872. We defer to the trial court’s evidentiary rulings and will
reverse only if the court clearly abused its discretion. Id. It is within the trial court’s discretion
to weigh the probative value of the evidence against its prejudicial effect. Mitchell v. Kardesch,
313 S.W.3d 667, 674-75 (Mo. banc 2010). If reasonable minds can differ about the propriety of
the trial court’s action, then it cannot be said that the trial court abused its discretion. Williams,
281 S.W.3d at 872. An abuse of discretion compels reversal only if “the prejudice resulting from
19
the improper admission of evidence is outcome-determinative.” Id.
At trial, Mercy entered Exhibit E into evidence that was Bowolak’s worker’s
compensation settlement in connection with his injury of October 2002. The trial court redacted
from the settlement the dollar amount while the remaining portions of the settlement were
unredacted, including the 32 percent permanent partial disability. Mercy contends that the
introduction of the monetary award of Bowolak’s settlement would show that Bowolak had
“permanent restrictions.” Although there is no dispute that Bowolak suffered a serious injury in
2002, nothing in Exhibit E, including the dollar amount, reflects that Bowolak had permanent
restrictions. In fact, on the first page of Exhibit E, the settlement reflects a “Return-to-work
date” of January 27, 2004.
Here, the jury was aware that Bowolak’s 2002 injury resulted in a 32 percent permanent
partial disability. There was no probative value to the introduction of the monetary amount, and
any potential probative value was far outweighed by the potential prejudice to Bowolak. Mitchell,
313 S.W.3d at 674-75. We find no abuse of discretion. Point VII is denied.
Post-Judgment Interest
In his cross-appeal, Bowolak argues that the trial court erred in its award of 5 percent
post-judgment interest, as opposed to 9 percent, with respect to the award of compensatory and
punitive damages. We disagree.
In its Amended Judgment and Order, the trial court found as follows with respect to this
issue:
[Bowolak’s] counsel argued that the Judgment should reflect post judgment
interest accruing at the statutory rate of a non tort action of 9%; [Mercy’s] counsel
argued that as the matter is a tort action, the statutory rate is 5%. The parties
agree that there is no determinative case law on this issue. The Court finds that
[Bowolak’s] cause of action is more akin to a tort.
20
Under Missouri law, the interest rate for any money due upon any judgment in a non-tort action
is set at 9 percent. Section 408.040.2. However, if the judgment is based on a tort action, the
interest rate is the Federal Funds Rate plus 5 percent. Id. As the trial court noted, no Missouri
decision has specifically determined the proper post-judgment interest rate for a MHRA claim.
However, in State ex rel. Diehl v. O’Malley, 95 S.W.3d 82, 87 (Mo. banc 2003), the Missouri
Supreme Court analogized a MHRA claim to a tort claim in assessing whether a plaintiff in a
MHRA claim has the right to a jury trial:
The present case—an action for damages for discrimination based upon
age, sex and retaliation for filing a discrimination complaint—is analogous to
those kinds of actions triable by juries at the time of the Constitution of 1820.
Actions for trespass, which included actions for a variety of wrongs to the person,
were tried to juries in the courts in 1820. This form of action, now commonly
referred to categorically as torts, fits into the analytical framework described in
the Briggs case because it was an action for recovery of money only and involved
issues of fact, “whether the right or liability is one at common law or is one
created by statute.”
An action for damages under the Missouri Human Rights Act seeks
redress for an intentional wrong done to a person. It is a modern variant of claims
for relief, called forms of action, known to the courts in 1820 for redress of
wrongs done to a person.
Diehl, 95 S.W.3d at 87. In Diehl, the Court specifically recognized that “[a]n action for
damages under the [ MHRA] seeks redress for an intentional wrong done to a person.” Id. at 87.
As the Missouri Supreme Court has treated discrimination actions as analogous to tort claims,
the trial court did not err in awarding post-judgment interest at a 5 percent rate. 8 Point denied.
Conclusion
8
Although this is an issue of first impression in Missouri, Mercy directs us to one other
jurisdiction that has concluded that discrimination actions are akin to torts in the context of
post-judgment interest. In Valdez-Zontek v. Eastmont Sch. Dist., 154 Wash. App. 147, 173,
225 P.3d 339, 353 (2010), the court faced the precise issue presented by this case: whether
post-judgment interest should be applied at the rate for tort actions, or at the rates for other
actions. The court concluded that state law discrimination actions are best viewed as “arising
from tortious conduct.” Valdez-Zontek at 175; 225 P.3d at 353. Therefore, the court held
that the prevailing employee was entitled to post-judgment interest on the award of damages
under the rate for tort judgments. Id.
21
The judgment is affirmed. 9
_________________________________
Mary K. Hoff, Judge
Sherri B. Sullivan, Presiding Judge, and Philip M. Hess, Judge, concur.
9
Bowolak’s motion for attorneys’ fees in the amount of $17,625.00, filed on July 7, 2014, is
granted.
22
Tim W. Bowolak, Respondent/Cross-Appellant v. Mercy East Communities d/b/a Mercy Hospital St. Louis f/k/a St. John's Mercy Health System d/b/a St. John's Mercy Medical Center
Combined Opinion