In the Missouri Court of Appeals Western District
LAVANDEN DARKS, ) Appellant-Respondent, ) ) WD82797 Consolidated with v. ) WD82849 ) JACKSON COUNTY, MISSOURI, et al., ) FILED: RESPONDENT-APPELLANT. )
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY THE HONORABLE ROGER M. PROKES, JUDGE
BEFORE DIVISION ONE: LISA WHITE HARDWICK, PRESIDING JUDGE, CYNTHIA L. MARTIN AND THOMAS N. CHAPMAN, JUDGES Lavanden Darks appeals the circuit court’s grant of a motion for judgment
notwithstanding the verdict (“JNOV”), which set aside the jury’s award of punitive
damages on his sexual harassment and retaliation claims against Jackson County.
Jackson County cross appeals the denial of its motion for a JNOV on three grounds,
asserting: (1) that Darks failed to plead sexual harassment; (2) that Darks failed to
present substantial evidence supporting two elements of sexual harassment; and (3)
that Darks failed to present substantial evidence supporting the elements of retaliation.
For reasons explained herein, we affirm the circuit court’s judgment in part, reverse in
part, and remand with instructions to enter judgment in accordance with the jury’s
verdict. FACTUAL AND PROCEDURAL HISTORY
Since February 2012, Darks has worked as a deputy with the Jackson County
Sheriff’s Department and is one of four black deputies employed as sworn officers.
Jackson County employs approximately 100 total sworn officers. At the time in question
during 2014, Jackson County required all sworn officers appearing in uniform to be
clean shaven with the exception of moustaches. Darks experienced pain with shaving
and was medically diagnosed with an inflammatory skin condition known as
psuedofolliculitis barbae (“PFB”).
After attempting several treatments and other shaving methods, Darks sought an
accommodation allowing him to appear in uniform with a manicured beard. He
complained after the leadership of the Sheriff’s Department displayed open hostility to
the idea and informed him that he could take sick leave to address the issue. Sheriff
Mike Sharp, after discussing the issue with the county counselor, eventually relented
and agreed to the accommodation. Darks, however, stated that even after granting the
accommodation, leadership within the department expressed open displeasure with his
facial hair and insinuated that he should seek employment at another law enforcement
agency if shaving was too difficult.
In August 2015, Sergeant Ronda Montgomery became Darks’s direct supervisor
after both she and Darks were transferred into Road Patrol, Midnight Squad 1. In
October 2015, Montgomery encountered Darks in the concealed carry permitting office
(“the CCP”). At the request of Captain David Epperson, Darks had been intermittently
stopping by the office to check on the civilian staff. Epperson had requested these trips
because he believed a uniformed law enforcement presence would help protect the
2 civilian staff in the CCP. As will be discussed in greater detail infra, Montgomery asked
Darks and two civilian employees “if he always comes in to bother us and flirt[] with [the
female employees].” Darks was embarrassed and left the office but the civilian staff
said Darks was never inappropriate and indicated that they were friends. Montgomery,
however, continued, stating that she “knows how men in law enforcement can be[,]” and
that “[y]ou know he’s married with a kid.” One civilian employee later complained about
Montgomery’s comments in a memorandum to Sergeant Dale Covey.
Shortly after being informed by Sergeant John Payne on November 19, 2015,
that Darks had reported the incident and that Payne had been assigned to complete an
internal affairs investigation, Montgomery recommended that Darks receive a written
reprimand for an incident in which he missed the start time of assigned training. The
memorandum recommending the reprimand stated that Darks had never been on time
to any training, a claim not contained in any other document, and that he had engaged
in dishonesty for lying about the reason he was late to the specific training at issue.
Also, within hours of learning about the internal affairs investigation, the
department leadership initiated plans to reassign Darks to the unit providing security for
the county’s courthouses. Montgomery informed Darks of the transfer four days later.
Darks stated, and Payne later confirmed, that a courthouse assignment was viewed as
a punishment detail reserved for misbehaving employees.
In January 2016, Colonel Hugh Mills asked Montgomery to complete an
“efficiency report” regarding Darks. Montgomery acknowledged that the request “just
came out of the blue” because she had never heard of an efficiency report and she no
longer was Darks’s supervisor. Two other supervisors, Captain Scott Goodman and
3 Undersheriff Colonel Benjamin Kenney reported that they were not familiar with an
efficiency report being used in the Jackson County Sheriff’s Department. In response to
Mill’s request, Montgomery submitted an efficiency report that contained several
negative statements regarding Darks’s job knowledge and performance that were not
supported by other records.
Later in January, Mills asked Montgomery to conduct a performance review for
Darks. Despite the general policy that these reviews occur annually, Montgomery was
directed to review only three months – the period between August 8, 2015, and
November 11, 2015. Montgomery’s performance review of Darks contained new
allegations of unsatisfactory performance, including references insinuating that Darks
was a “Brady cop,” which is a reference indicating that prosecutors would have to
disclose that Darks is dishonest when prosecuting any cases originating from him.
Darks filed a petition for damages against Jackson County, Sharp, Mills, and
Montgomery alleging claims of discrimination based on race, sex, and disability,
retaliation pursuant to the Missouri Human Rights Act (“MHRA”) and retaliation pursuant
to Missouri Workers’ Compensation Statute. Prior to trial, Darks voluntarily dismissed
Sharp, Mills, and Montgomery as well as his claim for retaliation pursuant to Missouri’s
Workers’ Compensation Statute. After the presentation of evidence and argument, the
jury found in favor of Darks on his claims of sexual harassment and retaliation. The jury
awarded Darks $75,000 in actual damages and determined that Jackson County was
liable for punitive damages. After the bifurcated proceeding on punitive damages, the
jury assessed $300,000 in punitive damages against Jackson County. The circuit court
4 subsequently awarded Darks $371,610 in attorney fees and ordered Jackson County to
remove from its files the negative performance review authored by Montgomery.
Jackson County filed a motion for a JNOV. The circuit court partially granted the
motion and set aside the jury’s verdict awarding $300,000 in punitive damages. The
court, however, denied the remaining requests for a JNOV made by Jackson County.
Darks appeals the circuit court’s partial grant of Jackson County’s motion for judgment
notwithstanding the verdict. Jackson County cross appeals the circuit court’s partial
denial of its motion for a JNOV.
ANALYSIS
I. JACKSON COUNTY’S POINTS ON APPEAL
Jackson County’s three points on appeal challenge the circuit court’s denial of its
motion for a JNOV on Darks’s sexual harassment and retaliation claims.1
A. STANDARD OF REVIEW
“The standard of review of the denial of a JNOV is essentially the same as the
overruling of a motion for directed verdict.” W. Blue Print Co., LLC v. Roberts, 367
S.W.3d 7, 14 (Mo. banc 2012). “A case may not be submitted unless each and every
fact essential to liability is predicated upon legal and substantial evidence.” Moore v.
Ford Motor Co., 332 S.W.3d 749, 756 (Mo. banc 2011) (quoting Inv’rs Title Co. v.
Hammonds, 217 S.W.3d 288, 299 (Mo. banc 2007)). Whether a plaintiff has made a
submissible case is a question of law subject to de novo review, id., but “the evidence is
viewed 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
1For the sake of clarity, we will address Jackson’s County’s appeal first, and we will address its points in a different order than they were presented to this court.
5 conflict with that verdict.” Clevenger v. Oliver Ins. Agency, Inc., 237 S.W.3d 588, 590
(Mo. banc 2007). Indeed, “[t]he jury's verdict will be reversed only if there is a complete
absence of probative facts to support the jury's conclusion.” Keveney v. Mo. Military
Acad., 304 S.W.3d 98, 104 (Mo. banc 2010).
B. PLEADING SEXUAL HARASSMENT
In Point II, Jackson County asserts that the circuit court erred in denying its
motion for a JNOV because Darks failed to adequately plead the theory of sexual
harassment. It is a well-settled principle “that a party cannot recover for a cause of
action not pleaded.” Miken Techs., Inc. v. Traffic Law Headquarters, P.C., 494 S.W.3d
609, 612 (Mo. App. 2016) (citation and quotations omitted). Similarly, “[t]he rule is well
established in Missouri that the character of a cause of action is determined from the
facts stated in the petition and not by the prayer or name given the action by the
pleader.” State ex rel. BP Prods. N. Am. Inc. v. Ross, 163 S.W.3d 922, 927 (Mo. banc
2005) (citation and quotations omitted). However, in determining the nature of the
cause of action, the court must also consider the relief sought by the party in
conjunction with the stated facts. Id.
Despite citing cases that recognize that the sufficiency of a pleading elevates
substance over form, Jackson County’s second point focuses almost exclusively on the
form of Darks’s petition. In support of its claim of error, Jackson County directs our
attention to a “Table of Claims” contained on page 2 of Darks’s petition, which serves as
a quasi-table of contents with page references for the petition. Jackson County asserts
that, within that table, Darks lists all of his claims and that the term “sexual harassment”
is “noticeably absent.” In response, Darks notes that the title of the sex discrimination
6 count, as displayed in the body of the petition, states that Count II is alleging
“Harassment and Discrimination based on Sex.” Such form-based or title-based
arguments are inconsequential to the point on appeal, because the nature of the pled
cause of action is determined by the stated facts and requested relief, not by any
invocation of the specific word “harassment.” See id.
In regard to the sufficiency of the pleading, Jackson County argues that there
was no evidence presented to support the facts pled. This focus on the evidence
presented at trial mirrors Jackson County’s Point I, discussed infra, regarding the
ultimate submission of sexual harassment to the jury and does nothing to contest the
validity of Darks’s pleading. Instead, Jackson County makes the conclusory allegation
that “there are no facts contained in the Petition alleging that Montgomery sexually
harassed Plaintiff.” “When an appellant fails to support contentions with relevant law
and analysis beyond conclusory statements, we deem the point abandoned.” Wallace
v. Frazier, 546 S.W.3d 624, 628 (Mo. App. 2018). To the extent that Jackson County’s
argument that the word “harassment” occurs only in paragraphs 45 and 50 of Darks’s
petition presents an identifiable issue for appeal, we review the point of error ex gratia
and determine such claim is without merit.
A plaintiff makes a prima facie case of hostile work environment sexual
harassment involving a supervisory employee2 by pleading facts demonstrating that:
2Jackson County asserts that to prevail under a sexual harassment cause of action, a plaintiff must demonstrate that:
(1) he was a member of a protected class; (2) he was subjected to unwelcome sexual harassment; (3) the harassment was based on his sex; (4) this harassment affected a term, condition, or privilege of employment in a manner sufficiently severe to create an abusive work environment and (5) the employer knew or should have known of the harassment and failed to take proper remedial action.
7 (1) she (or he if the claim is brought by a male) is a member of a protected group; (2) she was subjected to unwelcome sexual harassment; (3) her gender was a contributing factor in the harassment; and (4) a term, condition or privilege of her employment was affected by the harassment.
Hill v. Ford Motor Co., 277 S.W.3d 659, 666 (Mo. banc 2009) (footnote omitted). “A
plaintiff can meet the requirement of proving that the harassment affected a term or
condition of [his] employment by showing that the harassment contributed to cause a
‘tangible employment action.’” Id. “Examples of tangible employment actions include
but are not limited to: hiring and firing; promotion and failure to promote; demotion;
undesirable reassignment; a decision causing a significant change in benefits;
compensation decisions; and work assignments.” Id. (quoting 8 CSR 60-
3.040(17)(D)(4)).
In his petition, Darks alleged facts from which the court and Jackson County
could ascertain that he was raising a claim of sexual harassment. These alleged facts
include that (1) he is male; (2) that Montgomery harassed him by filing a false report
after observing his interactions with female employees and making the comment that
the female employees “know how men are in law enforcement”; (3) that he believed
these actions were taken because he was a male; and (4) that due to Montgomery’s
false report and his attempts to challenge the false report he was reassigned to a less
desirable position at the courthouse. Further, Darks specifically asserted that, due to
Montgomery’s actions, he has suffered, inter alia, “a detrimental job record.” Those
(citing Diaz v. Autozoners, LLC, 484 S.W.3d 64, 83 (Mo. App 2015)). This is incorrect. An employer’s knowledge of the harassment and subsequent failure to rectify does not apply where the alleged harasser is the plaintiff’s supervisor. See id. at 76; see also Hill, 277 S.W.3d at 666 n.6 (recognizing the fifth element addressing an employer’s knowledge of the harassment applies where the alleged harassers are “co-workers”).
8 pled facts, taken as true, track the elements of sexual harassment regardless of what
the specific count was entitled. Therefore, Jackson County’s Point II is denied
B. SUBMISSION OF SEXUAL HARASSMENT
In Point I, Jackson County asserts that the circuit court erred in denying its
motion for a JNOV because Darks failed to elicit substantial evidence necessary to
support the elements of his sexual harassment claim. Particularly, Jackson County
asserts that Darks failed to present evidence that demonstrated that any comments
from Montgomery were “sexual in nature [or] based on Plaintiff’s sex or gender” or that
they affected a term, condition or privilege of Darks’s employment.
I. JACKSON COUNTY’S ASSIGNMENT OF ERROR APPLIES WRONG STANDARD
Jackson County first asserts that Darks did not provide substantial evidence to
support the jury’s determination that Montgomery’s comments were sexual in nature or
based on Darks’s sex or gender. This allegation of error applies the elements of sexual
harassment as set forth in Diaz v. Autozoners, LLC, 484 S.W.3d 64, 83 (Mo. App 2015).
As Darks has argued and as we have addressed supra, this is not the correct standard
because the Diaz formulation of sexual harassment does not apply where the alleged
harassers are supervisory employees. See id. at 76; see also Hill, 277 S.W.3d at 666
n.6. We will, however, address Jackson County’s allegation that the court erroneously
denied its motion for a JNOV because Darks failed to demonstrate that his gender was
a contributing factor in his harassment by Montgomery, to the extent it was presented in
Jackson County’s brief.3
3 In its reply brief, Jackson County does not concede that the Diaz elements are inapplicable here; instead, it argues that Darks failed to provide substantial evidence to support the Hill element of unwelcome sexual harassment. This argument arrives too late. “A reply brief is to be used only to reply
9 Erin Adair, a civilian employee working in the CCP when the harassment
allegedly occurred, stated that in October 2015, Darks “popped his head into the CCP
office to say hello.” During that period of time, Darks would intermittently stop by the
CCP at the request of Epperson, the captain overseeing Staff Services and the CCP.
Epperson stated that he encouraged Darks and other sheriff deputies to stop by and
make their presence known in the CCP because he believed it would help protect the
civilian staff from “irate members of the public” that would sometimes pass through the
CCP.
On the particular day that Adair mentioned Darks’s “popping his head” into the
office, Montgomery had also stopped into the CCP. When Montgomery observed Darks
in the office, she asked him “why he was [in the CCP]” and then asked Adair and
another civilian employee, Sparkle Pounds, “if he always comes in to bother us and flirt[]
with us.” Adair stated that she told Montgomery that they were not bothered by Darks
and that he never treated them inappropriately. Adair stated that Darks looked very
uncomfortable and “left right after that part of the conversation.” Montgomery, however,
continued, stating that she “knows how men in law enforcement can be[,]” and that
“[y]ou know he’s married with a kid.” Adair later complained about Montgomery’s
conduct in a memorandum to Covey.
Further, Darks stated that he was later made aware of Montgomery’s statements
and felt demeaned and degraded by the comments. He stated that, even though they
to arguments raised by respondents, not to raise new arguments on appeal.” Arch Ins. Co. v. Progressive Cas. Ins. Co., 294 S.W.3d 520, 524 n.5 (Mo. App. 2009) (citation and quotations omitted). ‘[W]e do not review an assignment of error made for the first time in the reply brief.” 66, Inc. v. Crestwood Commons Redevelopment Corp., 130 S.W.3d. 573, 584 (Mo. App 2003). While it is true that Jackson County made the conclusory statement that “all five sexual harassment elements were not proven with substantial evidence[,]” it specifically assigned error for the two reasons mentioned supra. Therefore, we decline to address Jackson County’s allegation of error on this ground.
10 had never had any previous issues, the comments made it so that he almost no longer
wanted to work under Montgomery’s supervision. Darks reported the incident, and an
internal affairs investigation was assigned to Payne. After reviewing memorandums
from Adair, Darks, Covey, and Epperson, Payne conducted an investigation that
included interviewing witness and speaking with and receiving a memorandum from
Montgomery. During this investigation, Payne stated that Pounds believed that
Montgomery’s comments “[i]nsinuated that Deputy Darks and men in law enforcement
are some kind of sexual predators.” After completing his investigation, Payne
concluded that sufficient evidence existed to sustain the allegations that Montgomery
had, inter alia, violated the Jackson County personnel rule prohibiting sexual
harassment.
Jackson County provides no reason why the jury could not consider this
evidence. These probative facts support the jury’s determination that Darks’s gender
was a contributing factor to his harassment. Indeed, Montgomery’s comments
expressed to Darks and the female civilian employees in the CCP that men in law
enforcement were not to be trusted around women because sexual misconduct would
surely follow from their presence. Jackson County’s alternative explanation of the
evidence is immaterial, because our standard for reversal requires not that there is no
other alternative meaning of the evidence but that there is a complete absence of
probative facts to support the jury’s finding. See Keveney, 304 S.W.3d at 104. A
review of the record plainly demonstrates that there is a wealth of evidence supporting
the jury’s finding.
11 II. SUFFICIENT EVIDENCE WAS PRESENTED ON “AFFECTED” ELEMENT
Next, Jackson County asserts that Darks did not provide substantial evidence
from which the jury could determine that Montgomery’s sexual harassment of Darks
affected a term, condition, or privilege of his employment. In support of this assertion,
Jackson County argues that Sharp was the “sole individual with the authority to hire,
fire, promote, and/or discipline employees” and that Montgomery could only recommend
discipline. Jackson County further contends that the record is bereft of any evidence
demonstrating that Montgomery took any action against Darks.
Our review of the record indicates that Darks presented ample evidence to
submit the issue to the jury. “Discriminatory harassment affects a term, condition, or
privilege of employment if it is sufficiently severe or pervasive enough to alter the
conditions of a plaintiff[‘]s employment and create an abusive working environment.”
Alhalabi v. Mo. Dept’t of Nat. Res., 300 S.W.3d 518, 527 (Mo. App. 2009). As
described supra, Darks, after hearing Montgomery’s comments, stated that he felt
demeaned and degraded and no longer wanted to work under her supervision. Further,
Adair, Pounds, and Covey all stated that they believed Montgomery’s statements were
inappropriate and that the statements made both Darks and the civilian employees feel
different about interacting with one another. “Once there is evidence of improper
conduct and subjective offense, the determination of whether the conduct rose to the
level of abuse is largely in the hands of the jury.” Cooper v. Albacore Holdings, Inc.,
204 S.W.3d 238, 245 (Mo. App. 2006) (citation and quotations omitted). Therefore, the
12 circuit court did not err in denying Jackson County’s motion for a JNOV on Darks’s
sexual harassment claim. Jackson County’s Point I is denied.
C. SUBMISSION OF RETALIATION
In Point III, Jackson County asserts that the circuit court erred in denying its
motion for a JNOV because Darks failed to elicit substantial evidence necessary to
support the elements of his retaliation claim. Particularly, Jackson County asserts that
Darks failed to present evidence that demonstrated he “made a reasonable good faith
complaint of discrimination.”
“Under the MHRA, it is an unlawful discriminatory practice to retaliate ‘in any
manner’ against an employee who ‘has opposed any practice prohibited by this chapter’
or ‘has filed a complaint ... pursuant to this chapter.’” Soto v. Costco Wholesale Corp.,
502 S.W.3d 38, 47-48 (Mo. App. 2016) (quoting § 213.070(2), RSMo 2016). To make a
submissible case of retaliation, Darks was required to demonstrate: “(1) he complained
of discrimination; (2) [his employer] took adverse action against him; and (3) a causal
relationship existed between the complaint and the adverse action.” Id. at 48. Although
Jackson County initially asserts that Darks failed to complain about the harassment, the
nature of its argument clearly asserts that the actions taken by the supervisory
employees against Darks were not retaliation but, instead, were justified by Darks’s
work performance. Based upon the record before this court, a jury could determine
otherwise.
As discussed in detail supra, Darks reported his allegations of sexual harassment
against Montgomery. Shortly after Montgomery was made aware of Darks’s report and
the subsequent internal investigation, Montgomery filed a disciplinary memorandum
13 accusing Darks of never being on time to any training and of lying about the reasons for
his tardiness. Additionally, Darks was transferred to the unit providing security for the
courthouse four days after Montgomery learned of the internal investigation. Evidence
was presented that this unit was considered a punishment detail or one that was an
employee’s last stop before being forced out. Further evidence was presented that
Montgomery, after learning of the sexual harassment investigation, authored a negative
performance review for Darks that hurt his chances for a raise or promotion.
Jackson County shows no reason why the jury could not consider this evidence
and, instead, argues that there was other, contrary evidence that supported a finding
that any action taken by Montgomery or any other supervisory employee was justified
based on Darks’s performance. This argument ignores our standard of review. See
Keveney, 304 S.W.3d at 104. Evidence probative of every element was presented, and
the jury ultimately believed Darks’s presentation of such evidence. Jackson County,
therefore, has failed to demonstrate why the court should have granted its motion for a
JNOV on Darks’s retaliation claim. Jackson County’s Point III is denied.
II. DARKS’S POINT ON APPEAL
In his sole point on appeal, Darks asserts that the circuit court erred in granting
Jackson County’s motion for a JNOV on the punitive damages award because
substantial evidence was presented from which a jury could find that Darks clearly and
convincingly demonstrated that Jackson County engaged in outrageous conduct.
“The trial court's decision to grant a motion for JNOV is a question of law that we
review de novo, and in doing so, we review to determine whether a submissible case
14 was made.” Mercer v. BusComm, Inc., 515 S.W.3d 238, 242 (Mo. App. 2017). Darks
must provide “substantial evidence for every fact essential to recovery in order to make
a submissible case.” Id. “Substantial evidence is that which, if true, has probative force
upon the issues, and from which the trier of fact can reasonably decide a case.” Ark.-
Mo. Forest Prods., LLC v. Lerner, 486 S.W.3d 438, 447 (Mo. App. 2016) (citation and
quotation omitted).
We presume the evidence presented by the plaintiff is true, Eidson v. Reprod.
Health Servs., 863 S.W.2d 621, 626 (Mo. App. 1993), and view it “and all inferences
drawn therefrom in the light most favorable to the verdict[.]” Ark.-Mo. Forest Prods., 486
S.W.3d at 447. In reviewing the court’s action, we indulge “a presumption favoring the
reversal of a JNOV, and we will not overturn a jury verdict unless there is a complete
absence of probative facts to support the verdict.” Id. This presumption exists because
“[a] JNOV is a drastic action that can only be granted if reasonable persons cannot
differ on the disposition of the case.” Id.
Whether the plaintiff has provided evidence sufficient to support an award of
punitive damages is a question of law, which we review de novo. Diaz, 484 S.W.3d at
88. Similar to the standard for reviewing the grant of a JNOV, however, [w]e view the
evidence and all reasonable inferences in the light most favorable to submissibility [of
punitive damages] and disregard all evidence and inferences which are adverse
thereto.” Id.
B. PUNITIVE DAMAGES GENERALLY
“Punitive damages require clear and convincing proof of a culpable mental state,
either from a wanton, willful, or outrageous act, or from reckless disregard for an act's
15 consequences such that an evil motive may be inferred.” Drury v. Mo. Youth Soccer
Ass’n, Inc., 259 S.W.3d 558, 573 (Mo. App. 2008). “The necessary mental state is found
when a person intentionally does a wrongful act without just cause or excuse.” Id.
“When someone intentionally commits a wrong and knew that it was wrong at the time,
an evil motive and wanton behavior is exhibited.” Id. A jury, however, may also infer an
evil intent “where a person recklessly disregards the rights and interests of another
person.” Id. Punitive damages are a harsh and extraordinary remedy and should be
awarded sparingly. Romeo v. Jones, 144 S.W.3d 324, 334 (Mo. App. 2004).
C. THE COURT ERRED IN GRANTING JACKSON COUNTY’S JNOV
In support of his point of error, Darks exhaustively recounts the evidence
presented at trial, and we will not address all of it. However, material to the point at
issue here, Darks presented evidence from which a jury could have determined that
Darks was employed as a sheriff’s deputy and that his performance, while not without
difficulties, satisfactorily met the standards expected of that position. The jury could
also find that Darks reported his pain associated with shaving and that he sought
medical treatment for the condition of PFB. After a doctor provided a treatment plan
that required that Darks refrain from shaving, he sought an accommodation from the
Sheriff. The accommodation was initially refused, and Darks was required to shave
despite the pain that accompanied the action. It was only after he filed an official
memorandum asserting that this refusal was unlawful, and a discussion between the
Sheriff and the county counselor occurred, that Darks’s accommodation was granted.
Darks stated that, after the accommodation was made, Sharp and Mills
repeatedly and openly expressed their displeasure with his facial hair. He stated that
16 they continued to inform him that shaving was necessary and that he could work at
another law enforcement agency if shaving was too difficult. The jury could reasonably
infer that this open hostility, in conjunction with Darks’s reporting of Montgomery for
harassment, led to a targeted campaign against Darks.
Further supporting this inference, the jury heard evidence of an investigation into
Darks’s residency. Jackson County has a policy that all deputies must reside within the
county. Evidence was presented that an individual from the Blue Springs School
District, former Jackson County Sheriff Tom Phillips, informed Jackson County that
Darks had enrolled his son in classes and that Phillips believed Darks no longer resided
in Jackson County. It was later discovered the Darks and his wife were separated and
his wife had taken up residence outside Jackson County, but Darks continued to live
within the county.
The jury could reasonably infer that such investigation was a pretext, especially
in light of an email, sent from Phillips to Montgomery, in which Phillips stated: “Since
[Darks] withdrew [his child], we concluded our investigation. That’s what we normally
do. Sorry. Probably not enough to terminate yet. Start your file. He will give you
plenty of ammo.” (Emphasis added). Further, Montgomery was less than forthcoming
regarding the opening of “a file” on Darks, initially stating that, at the time she received
the email from Phillips, she had not yet opened any such file. This statement, however,
was immediately contradicted by Darks’s presenting an email, in the chain with Phillips,
in which Montgomery stated: “P.S. My file is already thick for only having him not quite
two months.” Additionally, the jury heard that, after being informed that Darks had
17 withdrawn his child from Blue Springs, Montgomery responded, inter alia, with the
acronym “LOL[,]” which she confirmed meant laughing out loud.
This was not the only evidence presented to support punitive damages. In
addition to the sexual harassment investigation detailed supra, the jury heard evidence
from which it could have inferred that supervisory employees within the Jackson County
Sheriff’s Department attempted to interfere with the investigation and punish the
investigator for his conclusions. Payne stated that he completed the investigation into
the reports of sexual harassment by Montgomery. As discussed in detail supra, that
document memorialized Payne’s conclusion that Montgomery had violated the county’s
policy against sexual harassment. Colonel Benjamin Kenney, the undersheriff in charge
of investigations, stated that this document, like all internal affairs investigations, would
have been reviewed by Sharp. Despite this information, evidence was presented that
Jackson County did not inform Darks of its findings or produce the document during
discovery.
Further, Payne stated that he was reticent to testify and that he believed the
investigation had hurt his career. Approximately a year and a half after authoring the
investigatory memorandum concluding that Montgomery had violated the policy against
sexual harassment, Payne was reassigned to provide security to the court. He, like
Darks, believed this assignment was a punishment detail. Payne remained in that
assignment until a month before trial.
“The employee’s evidence in support of [his] MHRA claim may also meet [his]
burden for submitting punitive damages to the jury.” Holmes v. Kansas City Mo. Bd. of
Police Comm’rs ex rel. Its. Members, 364 S.W.3d 615, 629 (Mo. App. 2012). Further,
18 “[d]irect evidence is not common in discrimination cases because employers are shrewd
enough to not leave a trail of direct evidence.” Id. at 628 (citation and quotations
omitted). “In the absence of direct evidence, a plaintiff may use circumstantial evidence
to prove [his] case.” Id. at 629. Indeed, ‘[t]he rationale for allowing the jury to make
reasonable inferences in determining liability for punitive damages is the same as that
for the substantive claim: employers may act to prevent the development of direct
evidence and a clear evidentiary trail of discriminatory intent is rare.” Id. From the
evidence adduced at trial, a jury could plainly infer that supervisory employees in
Jackson County engaged in outrageous conduct either through the intentional
completion of any number of wrongful acts or through the reckless disregard of Darks’s
rights. Darks’s point on appeal is granted. The circuit court’s entry of JNOV on the
punitive damages award is reversed, and the cause is remanded for entry of judgment
in accordance with the jury’s verdict.
III. MOTION FOR ATTORNEYS’ FEES
Prior to submission of his case, Darks made a motion requesting attorneys’ fees
on appeal pursuant to Missouri Court of Appeals, Western District Special Rule 29.4 In
awarding attorneys’ fees, we follow the “American Rule,” which provides that “orders
requiring one party to pay another party's attorney’s fees or other expenses ordinarily
are not permitted unless the parties' contract or a statute authorizes the court to make
such an award.” Birdsong v. Children’s Div., Mo. Dep’t of Soc. Servs., 461 S.W.3d 454,
459 (Mo. App. 2015) (internal citation and quotations omitted). The MHRA contains a
4 Western District Court of Appeals Special Rule 29 provides, in pertinent part: “Any party claiming an amount due for attorney's fees on appeal pursuant to contract, statute or otherwise and which this Court has jurisdiction to consider, must file a separate written motion before submission of the cause.” 19 fee-shifting provision that authorizes this court to make an award of attorneys’ fees to
the prevailing party. See § 213.111.2, RSMo 2016. “A prevailing party is one that
succeeds on any significant issue in the litigation which achieved some of the benefit
the parties sought in bringing suit.” Hurst v. Kansas City, Mo. Sch. Dist., 47 S.W.3d
327, 344 (Mo. App. 2014) (citation and quotations omitted), overturned on other
grounds by legislative action, L. 2017, S.B. No. 43. “Where a plaintiff has prevailed in
an action under the MHRA, the court should award attorneys' fees unless special
circumstances would render such an award unjust.” McCrainey v. Kansas City Mo.
Sch. Dist., 337 S.W.3d 746, 756 (Mo. App. 2011) (citations and quotations omitted).
Here, Darks has prevailed on both his allegation of error and Jackson County’s
cross-appeal. Therefore, we grant his motion for attorneys’ fees on appeal. “Although
this court has the authority to allow and fix the amount of attorney's fees on appeal, we
exercise this power with caution, believing in most cases that the trial court is better
equipped to hear evidence and argument on this issue and determine the
reasonableness of the fee requested.” Id. (citation and quotation omitted).
Consequently, the case is remanded for the purpose of entering judgment in
accordance with this appeal and to conduct a hearing to determine the reasonableness
of the attorneys’ fees requested on appeal.
CONCLUSION
The circuit court’s judgment is affirmed with regard to the issues raised in
Jackson County’s appeal. On the issue raised by Darks, the judgment is reversed and
the cause is remanded with instructions to enter judgment in accordance with the jury’s
20 verdict on the punitive damages award and to conduct a hearing to determine the
reasonableness of the attorneys’ fees requested on appeal.
____________________________________ LISA WHITE HARDWICK, JUDGE ALL CONCUR.