In the Missouri Court of Appeals Eastern District DIVISION IV
SAMANTHA KELLEY, ) No. ED110609 ) Respondent, ) Appeal from the Circuit Court of ) St. Francois County vs. ) ) Honorable Wendy L. Wexler Horn STATE OF MISSOURI, DEPARTMENT OF ) CORRECTIONS, ) ) Appellant. ) Filed: September 26, 2023
Before Kelly C. Broniec, Sp.J., Philip M. Hess, J., and James M. Dowd, J.
I. Introduction
The Missouri Department of Corrections (the “Department”) appeals the judgment of the
Circuit Court of St. Francois County entered on a jury verdict in favor of plaintiff Samantha Kelley
(“Kelley”) on her claim of sexual harassment based on a hostile work environment brought under
the Missouri Human Rights Act (“MHRA”), Chapter 213 RSMo. In her petition, Kelley alleged
that she was subjected to unwelcome sexual harassment by two non-supervisory male co-workers,
and that the Department, despite having actual and/or constructive knowledge of the sexual
harassment, failed to take prompt and effective remedial action to stop it. The jury found in favor
of Kelley, and awarded her actual and punitive damages. The trial court also awarded Kelley her
reasonable attorneys’ fees, which included a 1.5 multiplier. The Department raises four points on appeal: (1) Kelley failed to make a submissible case
that the Department knew or should have known of the harassment and failed to take prompt and
effective remedial action to stop it; (2) Kelley failed to establish that the Department’s conduct
warranted punitive damages; (3) the punitive damages award was grossly excessive; and (4) the
trial court erred in applying a 1.5 multiplier to the attorneys’ fees awarded to Kelley. Finding no
error, we affirm the judgment in its entirety.
II. Factual and Procedural History
Viewed in the light most favorable to the judgment, and giving Kelley the benefit of all
reasonable inferences, Newsome v. Kansas City, Mo. Sch. Dist., 520 S.W.3d 769, 775 (Mo. banc
2017) (quoting Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 95 (Mo. banc 2010)), the
record reveals the following relevant facts:
General Background
Pursuant to § 217.015.1,1 the Department supervises and manages all correctional centers
(i.e., prisons) in the State of Missouri, including the Farmington Correctional Center (the “FCC”).
Kelley was hired by the Department in 2004 for the non-supervisory position of
Corrections Officer I (“CO I”) at the FCC. In November of 2014, Kelley was re-assigned to work
as a “wing officer” in Housing Unit 25 (“HU 25”) of the FCC, which involved patrolling the
different wings of the unit to ensure that offenders were where they were supposed to be and to
ensure the safety and security of the inmates and staff in the FCC.
Four CO I’s and one supervisory Corrections Officer II (“CO II” or “sergeant”) typically
worked each shift in HU 25. The entire time Kelley worked in HU 25, one CO II (“the current CO
II” or “the CO II on duty”) worked Kelley’s shift and served as her immediate supervisor. During
1 All statutory references are to RSMo (2016), unless otherwise noted.
2 her regular shifts, Kelley worked with CO I Dwight Yancey (“Yancey”) approximately five days
per week, and CO I Robert Pearson (“Pearson”) approximately three days per week. Both Yancey
and Pearson were working in HU 25 when Kelley was assigned to work there in November of
2014. Prior to reporting to the current CO II, Yancey and Pearson reported to a different CO II
(“the former CO II”) while working in HU 25.
The first floor of HU 25 contained a control room that housed an officer who handled
communications to personnel and offenders and controlled offender movement within the unit.
The first floor also contained a room primarily used by the sergeants as a shared office space,
commonly called the “sergeant’s office.” The sergeant’s office was frequently a gathering space
for corrections officers on duty because it contained desks, tables, chairs, filing cabinets, a small
refrigerator, a microwave oven, and a telephone, and most CO I’s used it during their shifts to
perform paperwork, take breaks, and communicate with other CO I’s and the CO II on duty.
The Department’s policy prohibiting harassment, discrimination, and retaliation
At all relevant times, the Department had a written policy (the “Policy”) that expressly
prohibited harassment, discrimination, and retaliation on the basis of sex,2 inter alia, and stated
that all staff members are required to attend annual training over this topic. Under the Policy, if a
staff member believes the conduct of a fellow staff member constitutes any form of harassment or
discrimination, they are required to promptly report it to their immediate supervisor or other
designated person. The Policy specifically requires any supervisors who experience, witness, or
receive a report of discrimination or harassment to report it to the highest-ranking individual at the
FCC (i.e., the Warden’s Office), whether or not the victim wished to have their complaint
investigated.
2 The Department’s policy actually uses the term “gender,” but since the parties have exclusively used the term “sex” in their briefing, we regard it as a synonym for purposes of this opinion and use it accordingly.
3 The Policy also requires the Department to investigate complaints of harassment or
discrimination, which is done by designated “human relations” personnel. Investigations include
interviews with the complaining staff member, the alleged perpetrator, and any witnesses. All
staff members are required “to cooperate and fully disclose all relevant information during the
course of the official investigation.”
Kelley’s interactions with Yancey and Pearson
Upon being assigned to HU 25, Kelley immediately began witnessing Yancey and Pearson
making offensive jokes and comments of an explicit sexual nature, engaging in offensive
discussions about female staff at the FCC, and engaging in a variety of other sexually-oriented
crude and offensive behavior. The jokes, comments, discussions, and other behavior occurred
“constantly” while Kelley worked in HU 25. Kelley summarized her working relationship with
Yancey and Pearson to be “extremely uncomfortable, toxic.” Yancy’s and Pearson’s behavior
caused Kelley substantial emotional distress.
The following is a summary of the offensive language and behavior from Yancey and
Pearson that Kelley was subject to during her time in HU 25. For purposes of this opinion, we
have chosen to describe such instances as generally and sensitively as possible while still
conveying the severity of harassment. The men frequently sat outside the control room, watching
female staff members sign into HU 25, rating their physical appearances on a numerical scale, and
discussing what sex acts they would like to do with the female staff members. Yancey discussed
what sex positions he engaged in with his girlfriend, telling Pearson he would record his sexual
encounters and send pictures to Pearson. Both Yancey and Pearson “constantly” made gestures
simulating the act of masturbation, and on several occasions, Yancey unzipped his pants and pulled
his shirt tail through the zipper area to simulate a penis. Finally, Yancey asked Kelley about the
4 relationship status of another female staff member and asked for other female staff members’
personal contact information. When Kelley responded that such comments made new employees
feel uncomfortable, Yancey appeared offended by the statement and said if that was the case, the
employees should quit.
Although Kelley was the only one present for some of these incidents, the CO II on duty
or other staff members were sometimes present, including during their frequent acts of simulating
masturbation in the sergeant’s office and when Yancey asked for the female staff member’s
relationship status and phone number. The CO II on duty never spoke to Yancey or Pearson about
their conduct. Kelley would sometimes tell Yancey and Pearson she believed their conduct was
“disgusting,” and ask them to “knock it off.” However, anytime she asked them to stop, she
believed they perceived it as a “challenge,” and they would do it “10 times worse” the next day.
Kelley formally reports Yancey’s and Pearson’s conduct
On February 25, 2015, after working approximately three months in HU 25, Kelley made
a formal complaint regarding Yancey’s and Pearson’s conduct to the “functional unit manager” of
HU 25 (and the current CO II’s direct supervisor at the time). Kelley initially made her complaint
orally and supplemented with a written statement containing specific examples of the offensive
conduct two days later.
The final incident that compelled Kelley to formally report Yancey and Pearson’s offensive
conduct was a conversation Yancey and Pearson had in the sergeant’s office involving a female
therapist, who frequently came to HU 25 to counsel the inmates and had previously reported
Yancey and Pearson for their conduct. The female therapist’s report had resulted in an
investigation. Subsequent to the investigation, Kelley heard Yancey call the female therapist an
expletive and say that she should have to perform a sex act on the two men in retribution for
5 reporting their conduct. Only Kelley, Yancey, and Pearson were present for this conversation. As
a result of the female therapist’s report, the situation escalated beyond simply making Kelley feel
“uncomfortable,” or even creating a “toxic” environment, but became “scary” for both Kelley and
the female therapist.
After Kelley filed her written complaint with the functional unit manager, Kelley, the
current CO II, Yancey, and Pearson were all reassigned to work elsewhere while a formal
investigation was conducted pursuant to the Policy, which occurred in March and April of 2015.
After being interviewed, Kelley returned to working in HU 25 approximately one week later, while
the investigation was ongoing, along with the current CO II. At the conclusion of the investigation
on April 22, 2015, the Department’s investigator issued a written memorandum detailing his
findings, including the following conclusion: “Through the interview process, there was testimony
to support [Kelley’s] allegation that she was subjected to inappropriate behavior by Yancey and
Pearson.” However, the investigator did not issue or recommend any discipline, which was
subsequently determined by other Department officials.
As a result of the investigator’s findings, the Department suspended Pearson for three days,
without pay, and he did not return to HU 25. The Department issued Yancey a letter of caution,
which is not considered discipline under the Policy; rather, it is “notification … for the employee
not to engage in those types of behaviors again or they would be subjected to further potential
discipline.” The Department returned Yancey to HU 25 in April of 2015. When the functional
unit manager informed Kelley that Yancey would be returning, she was “crushed” and “went home
and cried.” Kelley subsequently requested reassignment to a different wing in HU 25 to avoid
working with Yancey, and the functional unit manager granted her request. Kelley then requested
reassignment out of HU 25 at her earliest opportunity and was moved to the dining shift from 3:00
6 a.m. to 11:00 a.m. After her reassignment, Kelley did not experience or report any further
harassment by Yancey or Pearson. Kelley eventually moved out of the FCC altogether and as of
trial, worked at the Potosi Correctional Center.
Prior Instances of Harassment
Prior to Kelley’s arrival at HU 25, Yancey and Pearson each received at least one prior
letter of caution for their inappropriate behavior. On June 3, 2014, the Department issued letters
of caution to Yancey and Pearson for observing a sergeant touch a female employee on the
buttocks, in violation of the Policy, but failing to report that conduct, as required under the Policy.
Furthermore, other employees who had worked in HU 25, before Kelley started in
November of 2014, made separate complaints of sexual harassment against Yancey and Pearson.
Sexual harassment complaint against Pearson
In November of 2013, a female therapist working at the FCC filed a complaint of sexual
harassment against Pearson,3 alleging that he had “been making inappropriate sexual innuendos
toward her for approximately one and a half years.”4 After an investigation, the Department
concluded that although there was insufficient evidence to conclude that Pearson made unwanted
sexual comments to warrant a finding that he committed sexual harassment under the Policy, there
was evidence he had engaged in “flirtatious” behavior with the female therapist, which violated
the Department’s policy regarding staff conduct. Thus, the Department issued Pearson a “letter of
caution” under the Policy, warning him that his flirtatious conduct was “inappropriate in the
workplace.”
3 This is a different female therapist than that which Kelley worked with as discussed in the section titled, “Kelley formally reports Yancey’s and Pearson’s conduct.” 4 The quoted summary of the female therapist’s allegations was contained in the written report, dated December 26, 2013, prepared by the Human Resources officer who conducted the investigation of the female therapist’s complaint. However, we note that the record does not contain a copy of the female therapist’s written complaint, which is referenced elsewhere in the record on appeal. It is unclear why the female therapist’s written complaint was not made a part of the record on appeal.
7 The record also demonstrates that the former CO II observed Pearson’s inappropriate
comments and conduct on several occasions, including Pearson commenting on the physical
appearance of the female therapists and Pearson simulating the act of masturbation, but never
reported Pearson’s behavior, requested an investigation, or disciplined Pearson regarding this
conduct.
Sexual harassment complaint against Yancey
On January 20, 2014, a female CO I who started working in HU 25 around 2008 filed a
complaint of sexual harassment against Yancey alleging that he had made offensive comments of
a sexual nature, as well as engaged in other conduct she found offensive during the time they
worked together in HU 25. The offensive comments and conduct began a few months after she
started working as a CO I in HU 25, and continued for approximately five or six years.
The following are specific examples of Yancey’s offensive comments and conduct
witnessed by the female CO I, some of which were the same types of harassment witnessed by
Kelley. We have again omitted graphic details for purposes of this opinion while attempting to
convey the seriousness of Yancey’s persistent offensive behavior. On several occasions, Yancey
bragged about the size of his penis, discussed various women he dated or with whom he had sex
in a graphic sexual nature, commented on which female staff members he wanted to have sex with,
and made sexually charged comments about staff members’ daughters. When a female staff
member asked Yancey if she could borrow his lighter, he gave it to her but said she owed him a
sexual favor. Yancey simulated sex acts, made gestures simulating the act of masturbation, put
substances on his hands to pretend like he had just masturbated, and unzipped his pants so he could
put his finger through his pants and simulate a penis. Lastly, Yancey sent the female CO I a picture
of himself sitting in a chair, naked and holding his penis; this picture “shocked” and “disgusted”
8 the female CO I, and she promptly deleted it; the next day she told him never to send her anything
like that again.
Several of the foregoing incidents occurred in the sergeant’s office or in the control room.
Although the female CO I was the only one present for some of these incidents, the former CO II
was present for many and another CO I was present when Yancey unzipped his pants, using his
finger to simulate a penis. The female CO I complained to the former CO II about Yancey’s
conduct, including a specific complaint about Yancey’s comments regarding her two daughters.
Although the former CO II listened to her complaint, he did not tell her what, if anything, he would
do about it, and he did not otherwise comment on her complaint. The former CO II “took Mr.
Yancey aside” and told him that his comments upset the female CO I and needed to stop. Although
the former CO II was aware of the Policy, had received numerous trainings on the Policy, and
knew the Policy required him to report any violative behavior, the former CO II failed to report
these comments to his supervisors, never requested an investigation, and never formally
disciplined or reprimanded Yancey for this behavior. Yancey’s offensive conduct continued after
the female CO I complained to the former CO II and after the current CO II became her supervisor.
The female CO I filed a written complaint, summarizing the offensive comments and
conduct listed above, as well as a few other incidents she found annoying or harassing. The
Department thereafter conducted a formal investigation and temporarily reassigned Yancey to a
different housing unit. A Human Relations investigator from Jefferson City conducted the
investigation and interviewed the female CO I, the current CO II, Pearson, Yancey, and five other
witnesses the female CO I identified. On February 27, 2014, at the conclusion of his investigation,
the investigator prepared a memorandum which detailed his findings and conclusions. The
investigator concluded that the female CO I’s’ sexual harassment allegation “was not
9 substantiated,” noting that, “[n]one of the witnesses [the female CO I] listed were able to
corroborate any of her allegations.” Allegedly, the fellow corrections officers the female CO I
identified as witnesses to Yancey’s conduct “were there every day,” and “they saw it; they heard
it.” Specifically, the female CO I believed if her co-workers had been “truthful” during the
investigation, they would have corroborated her allegations. Thus, the investigator further
concluded, “[t]his investigation found no direct evidence that Yancey has acted in a sexually
harassing manner.” Although the investigator’s final report determined that the female CO I’s
sexual harassment allegation was not substantiated because the witnesses she had identified failed
to corroborate any of her allegations, the investigator made the following observation: “It is
concerning that many of the witnesses used the exact same terminology in their interviews, making
their statements appear to be planned and rehearsed.”
Following the investigation, the Department returned Yancey to HU 25, which surprised
the female CO I. She personally spoke with the warden of the FCC about why Yancey was
returned to HU 25. The warden told her, “they didn’t have enough evidence to keep him out, so
he was put back at his post.”5 The female CO I thereafter requested a transfer out of HU 25 because
she felt Yancey was “retaliating” against her for filing the complaint, and she did not feel
comfortable working with him.
Relevant Procedural Posture
In February of 2017, Kelley commenced this action in the Circuit Court of St. Francois
County, alleging sexual harassment based on a hostile work environment during her time working
in HU 25. Kelley’s claim was based on the foregoing conduct of Yancey and Pearson she had
5 Although the investigator’s statement regarding the apparent rehearsed interviews “probably” concerned the warden at the time, the warden did not remember taking any action to try to determine whether any of the witnesses who were interviewed as a part of the investigation were being truthful. He also was not aware whether anyone re-interviewed these witnesses to see whether their stories had changed any.
10 personally witnessed and which she found offensive and caused her emotional distress and days
missed from work, and the Department’s failure to take remedial action, demonstrating their evil
motive or reckless indifference to her right to not be sexually harassed or retaliated against. The
case was tried to a jury from January 10-12, 2022. At the close of evidence, the Department moved
for a directed verdict, or alternatively for judgment notwithstanding the verdict (the “Motion for
Directed Verdict”), which the trial court denied. The case was submitted to the jury, which
returned a verdict in favor of Kelley, awarding her $120,000 in actual damages and $750,000 in
punitive damages. On January, 18, 2022, the trial court entered judgment in accordance with the
jury’s verdict. On January 21, 2022, Kelley filed a post-trial motion to amend the judgment to
include an award of attorneys’ fees and costs of litigation, which she supplemented on March 21,
2022 (the “Motion to Amend”).
On February 17, 2022, the Department filed a motion for judgment notwithstanding the
verdict or, alternatively, for a new trial or remittitur (the “Motion for JNOV”). Relevant to this
appeal, the Department argued that the jury never should have considered the issue of punitive
damages, or at a minimum, the amount of the punitive damages awarded should be reduced. On
March 25, 2022, the trial court denied the Department’s Motion for JNOV.
On April 20, 2022, the trial court granted Kelley’s Motion to Amend, and entered an
amended judgment that awarded Kelley $216,256.87 in attorneys’ fees and $4,150.49 in litigation
costs, resulting in a total judgment against the Department of $1,090,407.36 (the “Final
Judgment”). With respect to the attorneys’ fees award, the trial court found that a lodestar of
$144,171.25 was a reasonable amount based on the actual hours expended by Kelley’s attorneys
and the hourly rates requested, which the trial court found reasonable. The trial court also found
that it was appropriate to apply a 1.5 multiplier to the lodestar because Kelley’s attorneys had
11 demonstrated that their fee was always contingent, and further, “taking this case precluded them
from accepting other employment that would have been less risky, and that the time required by
the demands of preparing this case for trial delayed work on their other cases.” This appeal
followed.
III. Discussion
The Department brings four points on appeal, which we discuss in turn below.
Point I
In its first point, the Department contends the trial court erred in denying its Motion for
JNOV because Kelley did not establish that it knew or should have known of the hostile work
environment and failed to take proper remedial action in that the Department did not have actual
or constructive notice of the hostile work environment before Kelley formally reported it in
February of 2015. We disagree.
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) (overruled on other grounds by Wilson
v. Kansas City, 598 S.W.3d 888, 895 (Mo. banc 2020)); accord Smith v. Brown & Williamson
Tobacco Corp., 410 S.W.3d 623, 630 (Mo. banc 2013). “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. “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.
12 “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.; accord Smith, 410 S.W.3d at 630. “A jury verdict will not be overturned unless
there is a complete absence of probative facts to support the jury’s verdict.” Williams, 281 S.W.3d
at 866; Sanders v. Ahmed, 364 S.W.3d 195, 208 (Mo. banc 2012). “Where reasonable minds can
differ on the question before the jury, this Court will not disturb the jury’s verdict.” Williams, 281
S.W.3d at 866. Whether the plaintiff made a submissible case is a question of law that we review
de novo. Ellison v. Fry, 437 S.W.3d 762, 768 (Mo. banc 2014).
Analysis
The MHRA prohibits an employer from discriminating against an individual with respect
to “compensation, terms, conditions, or privileges of employment because of such individual’s
…sex….” Section 213.055.1(1)(a). “To prevail on a claim of discrimination due to a hostile work
environment, a plaintiff must show: (1) she is a member of a protected class; (2) she was subjected
to unwelcome sexual harassment; (3) her gender was a contributing factor in the harassment; and
(4) the harassment affected a term, condition, or privilege of employment.” M.W. by and through
K.W. v. Six Flags St. Louis, LLC, 605 S.W.3d 400, 409 (Mo. App. E.D. 2020) (citing Cooper v.
Albacore Holdings, Inc., 204 S.W.3d 238, 244 (Mo. App. E.D. 2006)). Furthermore, in a case of
non-supervisory co-worker harassment, as in this case, a plaintiff must also show “that the
employer knew or should have known of the conduct and failed to take proper remedial action.”
Id. (citing Mason v. Wal-Mart Stores, Inc., 91 S.W.3d 738, 742 (Mo. App. W.D. 2002)). “An
employer can obtain knowledge of harassment in two ways.” Mason, 91 S.W.3d at 742. “First,
an employer may receive actual notice where the employee has reported the harassing conduct.”
13 Id. “Second, an employer may be charged with constructive notice where the sexual harassment
is so pervasive that the employer should have known of its existence.” Id.; Six Flags, 605 S.W.3d
at 414.
In this case, the Department challenges the sufficiency of the evidence supporting the fifth
element of Kelley’s claim – that the Department knew or should have known of Yancey’s and
Pearson’s conduct and failed to take proper remedial action. Kelley presented substantial evidence
at trial that permitted the jury to conclude the Department had actual notice of Yancey’s and
Pearson’s harassing conduct. As noted above, the record demonstrates that Kelley’s supervisor
witnessed Yancey and Pearson’s offensive conduct and, although knowledgeable of the Policy
requiring reporting, failed to do so. See Six Flags, 605 S.W.3d at 416 (finding that an employer
can be charged with constructive notice when information of the harassment “comes to the
attention of an employee who has ‘a duty to pass on the information to someone within the
company who has the power to do something about it.’”) (quoting Diaz v. AutoZoners, LLC, 484
S.W.3d 64, 84-85 (Mo. App. W.D. 2015)). The same can be said for Yancey and Pearson’s prior
supervisor, who witnessed their behavior that was the subject of prior complaints against the two
men and failed to report it. Additionally, the pattern of persistent harassment spanning over several
years, as demonstrated by the prior and then-recent complaints regarding Yancey and Pearson’s
conduct, is sufficient evidence for the jury to find that the Department had constructive notice of
the sexual harassment because the harassment was “so pervasive that the [Department] should
have known of its existence. Mason, 91 S.W.3d at 742.
Conclusion
We find the record, when viewed in the light most favorable to the judgment, reveals that
Kelley presented substantial evidence from which the jury could have concluded that the
14 Department knew or should have known of the hostile work environment before Kelley formally
reported it to the functional unit manager on February 25, 2015, and that the Department failed to
take prompt remedial action to stop it. For these reasons, the trial court did not err in denying the
Department’s motion for JNOV on the issue of whether the Department knew or should have
known of Yancey’s and Pearson’s conduct and failed to take appropriate remedial action. Point I
is denied.
Point II
In its second point, the Department contends the trial court erred in denying its Motion for
JNOV because Kelley failed to establish by clear and convincing evidence that its conduct made
it susceptible to a punitive damages award in that its conduct was “not outrageous due to evil
motive or reckless indifference.” However, the Department concedes that this point is not properly
preserved for appellate review because although the Department raised the issue during the jury
instructions conference on punitive damages and in its Motion for JNOV, it did not raise the issue
in its Motion for Directed Verdict. Therefore, under Wilkins v. Bd. of Regents of Harris-Stowe
State Univ., 519 S.W.3d 526, 544-45 (Mo. App. E.D. 2017), this claim is not preserved for our
review. The Department requests plain error review under Rule 84.13(c).6
Rule 84.13(c) provides that “[p]lain errors affecting substantial rights may be considered
on appeal, in the discretion of the court, though not raised or preserved, when the court finds that
manifest injustice or miscarriage of justice has resulted therefrom.” Although the rule makes clear
that we have discretion to review an unpreserved claim for plain error, our Supreme Court has
6 All rule references are to Missouri Supreme Court Rules (2022), unless otherwise specified. We also note that in its brief, the Department cited to Rule 84.14(c), which does not exist. We presume the Department intended to cite to Rule 84.13(c), and address Point II accordingly.
15 expressly stated that such review is “rarely” granted in civil cases. See Mayes v. St. Luke’s Hosp.
of Kansas City, 430 S.W.3d 260, 269 (Mo. banc 2014); see also Flood ex rel. Oakley v. Holzwarth,
182 S.W.3d 673, 680 (Mo. App. S.D. 2005) (recognizing that we should only “rarely” reverse for
plain error in civil cases, and should only do so “in those situations when the injustice [] of the
error is so egregious [sic] as to ‘weaken the very foundation of the process,’ and ‘seriously
undermine confidence in the outcome of the case’” (quoting Davolt v. Highland, 119 S.W.3d 118,
136 (Mo. App. W.D. 2003))).
Missouri courts will only review an unpreserved point for plain error if there are
“substantial grounds for believing that the trial court committed error that is evident, obvious and
clear,” and where the error “resulted in manifest injustice or miscarriage of justice.” Mayes, 430
S.W.3d at 269 (quoting In re Adoption of C.M.B.R., 332 S.W.3d 793, 809 (Mo. banc 2011));
accord Cooper v. Chrysler Group, LLC, 361 S.W.3d 60, 64 (Mo. App. E.D. 2011). “This process
involves two steps: First, we must determine whether the trial court actually committed evident,
obvious and clear error that affected substantial rights; and second, we must determine whether
the evident, obvious, and clear error resulted in manifest injustice or a miscarriage of justice.”
Cooper, 361 S.W.3d at 64.
Whether there is sufficient evidence to support an award of punitive damages is a question
of law. Drury v. Mo. Youth Soccer Ass’n, Inc., 259 S.W.3d 558, 573 (Mo. App. E.D. 2008); Brady
v. Curators of Univ. of Mo., 213 S.W.3d 101, 109 (Mo. App. E.D. 2006). In making this
determination, “we view the evidence and all reasonable inferences in the light most favorable to
submissibility and we disregard all evidence and inferences which are adverse thereto.” Drury,
259 S.W.3d at 573. Furthermore, “[o]nly evidence that tends to support the submission should be
considered.” Id.
16 Analysis
In arguing the trial court erred in denying its Motion for JNOV, the Department contends
the trial court committed two specific errors: (1) submitting the issue of punitive damages to the
jury; and (2) failing to set aside the jury’s punitive damages award. In support of both sub-points,
the Department argues that the record does not provide a sufficient factual basis for the punitive
damages award.
“Section 213.111 authorizes the trial court to award punitive damages in an action under
the MHRA.” Holmes v. Kansas City Mo. Bd. of Police Comm’rs, ex rel. Its Members, 364 S.W.3d
615, 628 (Mo. App. W.D. 2012). “For punitive damages to be submitted to the jury, the evidence
and its reasonable inferences must allow a reasonable juror to conclude that it was highly probable
that the defendant acted with ‘evil motive or reckless indifference.’” Id. (citing Howard v. Kansas
City, 332 S.W.3d 772, 788 (Mo. banc 2011)). “An evil intent may also be inferred where a person
recklessly disregards the rights and interests of another person.” Drury, 259 S.W.3d at 573.
Finally, we recognize that “[p]unitive damages are an extraordinary and harsh remedy and should
be applied only sparingly.” Id.
In this case, we decline to conduct plain error review of Point II because we do not believe
substantial grounds facially appear to believe that the trial court committed evident, obvious, or
clear error that resulted in “manifest injustice or miscarriage of justice.” Cooper, 361 S.W.3d at
64. After reviewing the entire record, and viewing that evidence in the light most favorable to the
judgment, the jury was presented with clear and convincing evidence that the Department’s
conduct was with “reckless indifference.” See Holmes, 364 S.W.3d at 628. Point II is denied.
Point III
17 In its third point, the Department contends the trial court erred in denying its motion for
remittitur with respect to the punitive damages award because it was grossly excessive and
arbitrary in that the degree of reprehensibility of its conduct was low and the ratio of actual harm
to the punitive damages award was impermissibly high. We disagree.
“Generally, the decision to award punitive damages is peculiarly committed to the jury and
trial court’s discretion, and the appellate court will only interfere in extreme cases.” Poage v.
Crane Co., 523 S.W.3d 496, 522 (Mo. App. E.D. 2017). “Accordingly, we review the denial of
remittitur of punitive damages using an abuse of discretion standard.” Id. (citing Call v. Heard,
925 S.W.2d 840, 849 (Mo. banc 1996)).
“For punitive damages, an abuse of discretion is established only when the size of the award
is manifestly unjust, and so disproportionate to the relevant factors that it reveals improper motives
or a clear absence of the honest exercise of judgment.” Id. (quoting Martin v. Survivair
Respirators, Inc., 298 S.W.3d 23, 35 (Mo. App. E.D. 2009)). “We view the evidence and all
reasonable inferences therefrom in the light most favorable to the trial court’s decision.” Id.
Furthermore, we do not weigh the evidence and our inquiry is limited to determining whether the
jury’s verdict is supported by substantial evidence. Id. “[W]hen the trial court approves a jury’s
verdict, its discretion is practically conclusive.” Id. (quoting Delacroix v. Doncasters, Inc., 407
S.W.3d 13, 36 (Mo. App. E.D. 2013)). “However, we review the constitutionality of the
imposition of punitive damages de novo.” Id.
Standard for Considering a Request for Remittitur of Punitive Damages
“Punitive damages are subject to the limitations of the Due Process Clause of the
Fourteenth Amendment, which ‘prohibits the imposition of grossly excessive or arbitrary
18 punishments on a tortfeasor.’” Mignone v. Mo. Dept. of Corr., 546 S.W.3d 23, 43 (Mo. App. W.D.
2018) (quoting Lewellen v. Franklin, 441 S.W.3d 136, 145 (Mo. banc 2014)); accord Wilkins, 519
S.W.3d at 546. When a punitive damages award is grossly excessive, it no longer furthers the
legitimate purposes of punishing unlawful conduct and deterring its repetition, and instead
constitutes an arbitrary deprivation of property. Wilkins, 519 S.W.3d at 546 (quoting State Farm
Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003)); see also Diaz, 484 S.W.3d at 89.
“Accordingly, punitive-damage awards that are grossly excessive violate a tortfeasor’s substantive
right of due process.” Wilkins, 519 S.W.3d at 546.
[C]ourts reviewing punitive damages [are instructed] to consider three guideposts: (1) the 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 award and penalties authorized or imposed in comparable cases.
Mignone, 546 S.W.3d at 43 (citing State Farm, 538 U.S. at 418)); accord Wilkins, 519 S.W.3d at
546. However, in MHRA cases, such as this one, only the first two guideposts are considered, as
the third—comparative penalties—is “inconsequential.” Mignone, 546 S.W.3d at 43; Wilkins, 519
S.W.3d at 546.
Based on our review of the entire record, and viewing the evidence and all reasonable
inferences therefrom in the light most favorable to the jury’s punitive damages award, we cannot
say that the trial court abused its discretion in denying the Department’s motion for remittitur of
the award. We discuss the first two “guideposts” for considering such a motion.
(1) Degree of Reprehensibility
The first guidepost—the degree of reprehensibility of the defendant’s conduct—is
generally considered “the most important indicium of the reasonableness of a punitive-damage
19 award.” Wilkins, 519 S.W.3d at 546 (citing Blanks, 405 S.W.3d at 410). In evaluating the
reprehensibility of the defendant’s conduct, we consider whether:
[T]he harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health and safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.
Id. (quoting Estate of Overbey v. Chad Franklin Nat’l Auto Sales North, LLC, 361 S.W.3d 364,
373 (Mo. banc 2012)); Mignone, 546 S.W.3d at 43-44 (quoting State Farm, 538 U.S. at 419).
In this case, the Department argues that the jury’s award was arbitrary and grossly
excessive because its conduct did not cause Kelley any “direct physical harm.” Although the
Department acknowledges that Kelley experienced “physical problems brought on by stress,” it
attempted to minimize this harm by suggesting that it was not so serious that she sought medical
attention. Although Kelley concedes there was no physical harm, she emphasizes that she indeed
suffered emotional and psychological harm, and further noted that Missouri courts have found this
to be a relevant factor in evaluating the reprehensibility of a defendant’s conduct, citing Diaz, 484
S.W.3d at 96; Mignone, 546 S.W.3d at 43-44; and Wilkins, 519 S.W.3d at 546-47.
Next, the Department acknowledges that Yancey and Pearson’s conduct “involved
repeated actions,” but suggests that its own conduct did not. However, there was evidence
presented to the jury that the Department “enabled” the harassing conduct of Yancey and Pearson
by “repeatedly failing to take action to stop their conduct from occurring even though [the
Department’s] supervisors were aware of it.” By allowing their inappropriate conduct to continue
for several years, it became more severe and aggressive, and Kelley specifically testified that she
became concerned not only for her own safety and welfare, but also that of a female coworker who
previously reported their harassment. Finally, even after Kelley formally reported Yancey’s and
20 Pearson’s conduct and the Department found that some of her allegations were corroborated, the
Department allowed Yancey to return to HU 25 with her and did not take any “meaningful action”
to ensure the harassing conduct stopped.
Therefore, we find that there was sufficient evidence presented at trial regarding the
reprehensibility of the Department’s conduct that the jury’s punitive damages award was not
grossly excessive.
(2) Ratio
“The second and perhaps most commonly cited indicium of an unreasonable or excessive
punitive damages award is its ratio to the actual harm inflicted on the plaintiff.” Diaz, 484 S.W.3d
at 91 (quoting BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 580 (1996)). However, “[t]he [United
States] Supreme Court has ‘consistently rejected the notion that the constitutional line is marked
by a simple mathematical formula, even one that compares actual and potential damages to the
punitive award.’” Id. (quoting BMW, 517 U.S. at 582). Other Missouri courts have similarly
recognized that, “[n]o ‘rigid benchmarks’ or ‘mathematical formulas’ exist, and we must consider
the precise award based on the ‘peculiar facts and circumstances of the defendant’s conduct and
the harm to the plaintiff.’” Wilkins, 519 S.W.3d at 547 (quoting Blanks v. Fluor Corp., 450 S.W.3d
308, 411 (Mo. App. E.D. 2014)). Missouri courts have also recognized that although there is no
“precise formula,” the United States Supreme Court has held that “an award of a single-digit ratio
would be more likely to comport with due process requirements and still achieve the state’s goals
of deterrence and retribution.” Id. (citing State Farm, 538 U.S. at 416). In this regard, “[l]ow
awards of compensatory damages may properly support a higher ratio than high compensatory
awards, if, for example, … the injury is hard to detect or the monetary value of noneconomic harm
might have been difficult to determine.” Diaz, 484 S.W.3d at 91 (quoting BMW, 517 U.S. at 582).
21 “In most cases, the ratio will be within a constitutionally acceptable range, and remittitur will not
be justified on this basis.” Id. (quoting BMW, 517 U.S. at 583).
In this case, the ratio of punitive damages ($750,000) to the actual damages ($120,000)
was 7:1, which is well within the single-digit range that is generally considered by the United
States Supreme Court to comport with due process. State Farm, 538 U.S. at 416. Furthermore,
we believe that Kelley’s injuries were hard to detect and their value was difficult to determine,
which further supports the constitutionally of the jury’s award. Diaz, 484 S.W.3d at 91.
The trial court did not abuse its discretion in denying the Department’s motion for
remittitur with respect to the jury’s $750,000 award of punitive damages. Point III is denied.
Point IV
In its fourth point, the Department contends that the trial court erred in applying a 1.5
multiplier to the attorneys’ fees award because Kelley’s application for attorneys’ fees did not
provide any factual basis to support the trial court’s finding that taking this case precluded Kelley’s
attorneys from accepting other employment that would have been less risky.7 We disagree.
A trial court is considered to be an expert on attorney fees in a given case “because of its
familiarity with all of the issues and the character of the legal services rendered.” Harrison v.
Harris-Stowe State Univ., 626 S.W.3d 843, 860 (Mo. App. E.D. 2021). Therefore, “[t]he trial
court’s award of attorneys’ fees is reviewed for an abuse of discretion.” Berry v. Volkswagen Grp.
of Am., Inc., 397 S.W.3d 425, 430 (Mo. banc 2013). “To demonstrate an abuse of discretion, the
7 The Department does not take issue with the lodestar amount determined by the trial court. Rather, the Department only challenges the 1.5 multiplier to the lodestar amount, which the trial court applied in recognition of the risk undertaken by Kelley’s counsel.
22 complaining party must show the trial court’s decision was against the logic of the circumstances
and so arbitrary and unreasonable as to shock one’s sense of justice.” Id. at 431. We should not
reverse an attorneys’ fee award unless “the amount awarded is arrived at arbitrarily or is so
unreasonable that it indicates indifference and a lack of proper judicial consideration.” Harrison,
626 S.W.3d at 853. Furthermore, “[w]e presume an award of attorneys’ fees is correct, and the
complaining party has the burden to prove otherwise.” Id. at 860.
Attorneys’ Fees Awards under the MHRA
The General Assembly enacted § 213.111.2 “to authorize an award of ‘reasonable attorney
fees’ to the prevailing party in an MHRA action.” Harrison, 626 S.W.3d at 860 (citing Wilson,
598 S.W.3d at 896). Specifically, “[u]nder [§] 213.111.2, prevailing employees receive an award
of attorney fees ‘as a matter of course[.]’” Id. (quoting Gilliland v. Mo. Athletic Club, 273 S.W.3d
516, 523 (Mo. banc 2009)). “The authorization for an award of attorney fees under [§] 213.111.2
is similar to a federal counterpart, 42 U.S.C. 1988, under which attorneys’ fees are recovered unless
circumstances exist that would render an award of such fees unjust.” Id.
Factors relevant to a trial court’s award of fees pursuant to § 213.111.2 are: (1) the
customary rates charged by the attorneys involved in the case and those charged by other attorneys
in the community for similar services; (2) the number of hours reasonably 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. Id. (citing Wilson, 598 S.W.3d at 896).
The Department argues that nothing in Kelley’s attorney’s affidavit asserts that rejected
cases were less risky than Kelley’s case, and further, does not establish that they would have
23 engaged in hourly billing for any of the rejected cases. The Department focuses on the following
statement in the affidavit: “[B]ecause of the time commitment required to adequately represent
[Kelley] in this case, the attorneys in my firm were forced to reject other potential fee-generating
cases and postpone work on other pending cases.” While hourly-billed cases are generally
considered to be less risky than contingent-fee cases (such as this one), hourly billing is far from
the only factor in assessing the relative risk assumed by counsel in representing clients, as we take
judicial notice that each case has a unique risk profile, and there can be varying degrees of risk
even among contingent fee cases.
The Department also discusses the Supreme Court’s analysis in Berry v. Volkswagen
Group of America, which found that a 2.0 multiplier was warranted to fully compensate plaintiff’s
counsel. 397 S.W.3d at 432. In addressing the defendant’s argument that the trial court erred in
applying this multiplier, Berry initially rejected adopting the multi-factor approach taken by the
United States Supreme Court in Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010). Rather,
the only clear rule adopted in Berry with respect to applying a multiplier is that a trial court should
“avoid awarding a multiplier based upon facts that it considered in its initial determination of the
lodestar amount.” Id. at 432 (citing Perdue, 559 U.S. at 553). In this regard, Berry noted that the
trial court premised its application of a multiplier on “a list of enumerated factors,” but further
noted that several of them were duplicative of the factors utilized in its initial calculation of the
lodestar amount. Id. More to the point, Berry noted that the following three factors “directly
support” the application of a multiplier and demonstrated that the trial court did not abuse its
discretion: (1) that class counsel’s fee was always contingent (unlike those of defendant’s counsel);
(2) that “taking this case precluded class counsel from accepting other employment that would
have been less risky;” and (3) that “the time required by the demands of preparing this cause for
24 trial delayed work on class counsel’s other work.” Id. at 432-33.8 However, as Kelley correctly
noted, the foregoing three factors were not held to be strict requirements or elements requiring the
absence of any one element to preclude the application of a multiplier. Rather, reading Berry (and
its progeny)9 in proper context, we believe that each case should be decided on a case-by-case
basis, with due regard given to the three aforementioned factors relied upon by the trial court in
Berry. See also Zweig v. Metro. St. Louis Sewer Dist., 412 S.W.3d 223, 249-50 (Mo. banc 2013)
(recognizing that “Berry analyzed—and affirmed—the trial court’s use of a multiplier under
Missouri’s time-tested abuse of discretion standard). Therefore, we reject a reading of Berry
whereby these three factors are deemed requirements, as the Department suggests.
In this case, after reviewing the evidence before the trial court in connection with Kelley’s
request or attorneys’ fees, we cannot say that the court abused its discretion in applying a 1.5
multiplier to the lodestar amount, where there was certainly evidence before the court consistent
with two of the three factors set forth in Berry. Point IV is denied.
Kelley’s Motion for Attorneys’ fees on Appeal
Prior to submission of this case on appeal, as the prevailing party below, Kelley filed a
motion seeking her attorneys’ fees on appeal pursuant to § 213.111.2 and Local Rule 400, arguing
8 We note that Berry involved a class action claim brought under the Missouri Merchandising Practices Act, Chapter 407, RSMo (2016), which, like the MHRA, permits an award of attorneys’ fees to a prevailing party pursuant to § 407.025.2. Although the principles discussed in Berry regarding the award of attorneys’ fees are not binding in MHRA cases, we nonetheless find Berry to be highly instructive here. 9 See, e.g., Terpstra v. State, 565 S.W.3d 229, 251-52 (Mo. App. W.D. 2019) (holding that the trial court did not abuse its discretion in applying a 1.5 multiplier in an MHRA case); Williams v. Kansas City, 641 S.W.3d 302, 333-34 (Mo. App. W.D. 2021) (holding that the trial court did not abuse its discretion applying a 1.5 multiplier in an MHRA case); Gray v. Mo. Dept. of Corrections, 635 S.W.3d 99, 105-06 (Mo. App. W.D. 2021) (holding that the defendant did not preserve its argument that the trial court erred in adopting a 1.5 multiplier in an MHRA case, but further recognizing that a trial court may determine attorneys’ fees “without the aid of evidence”); Alhalabi v. Mo. Dept. of Corr., 662 S.W.3d 180, 197 (Mo. App. W.D. 2023); Westmoreland v. Midwest St. Louis, LLC, 623 S.W.3d 618, 641-42 (Mo. App. E.D. 2021) (holding that the trial court did not abuse its discretion in adopting a 3.0 multiplier in a case brought under the Motor Fuel Marketing Act, § 416.635).
25 that the MHRA permits courts to award court costs and reasonable attorney fees to prevailing
parties and that if we affirm the judgment of the trial court, she will continue to be the prevailing
party. Kelley requests $23,095.00 for her reasonable attorneys’ fees and $763.50 for her costs of
litigation in connection with this appeal. The Department has objected to the hourly rate requested
by Kelley.
Under § 213.111.2, “the court should award attorneys’ fees unless special circumstances
would render such an award unjust.” See also Turner v. Kansas City Pub. Sch., 488 S.W.3d 719,
726 (Mo. App. W.D. 2016) (quoting McCrainey v. Kansas City Mo. Sch. Dist., 337 S.W.3d 746,
756 (Mo. App. W.D. 2011)). This provision applies to fees incurred on appeal from the trial court’s
judgment. Id. The Department does not claim that an award would be unjust, just that the award
would be an unreasonable amount. “In the absence of any showing of special circumstances to
render an award unjust,” we must grant Kelley’s motion for attorneys’ fees on appeal. Id.
“While ‘appellate courts have the authority to allow and fix the amount of attorneys’ 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.’” Berry, 397 S.W.3d at 433 (quoting Rosehill Gardens, Inc. v. Luttrell, 67 S.W.3d 641,
648 (Mo. App. W.D. 2002)). Therefore, we remand this case to the trial court to determine the
appropriate amount of attorneys’ fees for counsel’s appellate work.
IV. Conclusion
For the reasons set forth herein, we affirm the judgment of the trial court and grant Kelley’s
motion for attorneys’ fees on appeal. The cause is remanded to the trial court for further
determination of the appropriate amount of attorneys’ fees on appeal to which Kelley is entitled.
PER CURIAM