Employment retaliation verdict affirmed, along with sanctions against employer

Brianne Thomas represented Hicks, said the court “sent a message” by issuing its decision just two weeks after oral argument.

“An attorney who has an aggrieved client has a duty to make sure that their client’s claims are valid and credible before filing a motion for new trial, for example, and attacking the integrity of the court,” she said.

A jury’s verdict in favor of an employee whom her former employer retaliated against for filing a workers’ compensation claim in violation of section 287.780 should be affirmed, the Missouri Court of Appeals, Western District ruled on October 28, additionally affirming a sanctions award against the employer.

Kathleen Hicks began working for Commercial Metals Company as a rebar bender operator in January 2017. Her full-time duties included bending, stacking and bundling fabricated reinforced metal bars and regularly lifting 50-100 pounds.

From the time she started, one of the objectives at CMC was “no recordables and no lost time,” which Hicks interpreted as not getting hurt or, in the case of injury, “suck it up and keep going.”

On Jan. 15, 2018, Hicks was struck on the right shoulder and right side of her head and knocked unconscious while operating a new piece of equipment that was being tested at her workstation. When she regained consciousness, her ears were ringing, she had face pain, neck pain, pain along the right side of her body and she was unable to move her right arm.

The shop superintendent put Hicks in the backseat of his truck and drove her to the emergency room. He stayed in the exam room with Hicks for all medical evaluations, in spite of being asked multiple times to leave the room.

When Hicks was discharged, he took her to the company clinic to be drug tested.

The next day, the shop superintendent picked Hicks up from her home and took her to the company clinic, where the doctor released her to work with no restrictions. The shop superintendent then drove her to the plant, placing her in a darkened room for her eight-hour shift.

When Hicks next saw a doctor on Jan. 22, her symptoms were a lot worse. For the next three weeks, Hicks either sat alone in a darkened room at work, or took vacation days, sick days or previously earned PTO.

Initially, the shop superintendent escorted Hicks to all of her appointments and remained in the room during all evaluations and treatments. In February, the nurse case manager then took over; she also met privately with the treating doctor and emailed summaries to CMC’s workers’ compensation company after each appointment.

On Feb. 8, a neurologist diagnosed Hicks with post-concussive syndrome and she stayed home, with her employment then designated as an “accident on the job.”

Hicks received workers’ compensation benefits until she received a termination letter from CMC on Aug. 31, 2018. The employer claimed the reason for her termination was “failure to communicate with us and to provide proof of disability.”

She sued. After a three-day trial, the jury returned a verdict in favor of Hicks, awarding $90,000 for back pay and $300,000 for non-economic damages.

CMC moved for judgment notwithstanding the verdict, directed verdict, a new trial and/or remittitur. The trial court denied all the motions.

Roughly two months after the verdict, CMC moved again for a new trial, alleging jury misconduct. CMC’s trial counsel advised the court that Hicks’ legal counsel’s father, who attended the final day of trial, had spoken extensively to two of the jurors during trial. CMC attached sworn affidavits of two of CMC’s employees.

At the request of Hick’s counsel, the courthouse produced surveillance video of the alleged misconduct. Video evidence contracted the allegations made by the CMC employees and Hicks moved for sanctions.

Following a hearing where the court found the affidavits to be “complete fabrications” and a “fraud upon the Court,” the trial court award sanctions in the amount of $312,450.

CMC appealed.

In an opinion authored by Judge Gary D. Witt and joined by Judges Janet Sutton and W. Douglas Thomson, the court affirmed the verdict.

Hicks presented substantial evidence demonstrating that her workers’ compensation claim was the motivating factor in her termination, the court found, as she presented evidence that CMC knew her health status and treatment because the nurse case manager hired by CMC’s workers’ compensation insurer was documenting every one of Hicks’ medical appointments — and sending that documentation to CMC’s area safety coordinator.

“It is for the jury to believe or reject the evidence that the plaintiff was fired in retaliation for exercising her workers’ compensation rights and to ‘accept or discard as pretext’ the evidence that the employer terminated the employee for a legitimate, non-discriminatory reason,” the court wrote. “Reviewing the evidence in the light most favorable to Hicks, there was sufficient evidence to submit Hick’s retaliatory discharge claim to the jury.”

Nor was the court persuaded that the sanctions judgment against CMC was excessive.

“CMC did not properly investigate the truthfulness of the allegations before filing the motion for a new trial based on the affidavits,” the court said. “As the trial court noted during the hearing, if the video evidence had not surfaced, he ‘absolutely’ would have granted the motion for new trial because the allegations of juror misconduct were so egregious. The trial court found the affidavits to be ‘complete fabrications’ and were submitted in bad faith with the intent to defraud the court and obtain a new trial. …

“Under the exceptional circumstances before the trial court, we do not find the trial court’s ruling was so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.”

Finally, the court found the damages awarded to Hicks were appropriate.

Although CMC argued that the award of back pay should be reduced because Hicks did not mitigate her damages, the jury discounted the award sought by Hicks. As for the non-economic damages award, Hicks presented evidence that after her termination, she became more reclusive, less social, standoffish and no longer wanted to be around people.

“When the evidence is viewed in the light most favorable to the trial court’s judgment, we cannot say the jury’s verdict was excessive nor that the trial court abused its discretion in denying CMC’s motion for remittitur,” the court concluded.

Credit: Correy E. Stephenson, Special to Missouri Lawyers Media