Darks v. Jackson Cnty.

• Decision Date: 02 June 2020
• Docket Number: WD 82797,C/w WD 82849
• Parties: Lavanden DARKS, Appellant-Respondent, v. JACKSON COUNTY, Missouri, et al., Respondent-Appellant.
• Court: Missouri Court of Appeals

601 S.W.3d 247

Lavanden DARKS, Appellant-Respondent,

v.JACKSON COUNTY, Missouri, et al., Respondent-Appellant.

WD 82797

C/w WD 82849

Missouri Court of Appeals, Western District.

Filed: June 2, 2020

Katherine Myers, Alexander Edelman, Peggy A Wilson, Deborah F. O'Connor, Kansas City for Appellant-Respondent.

Ashley N. Garrett, Tara L. Moreland, Kansas city for Respondent-Appellant.

Before Division One: Lisa White Hardwick, Presiding Judge, Cynthia L. Martin and Thomas N. Chapman, Judges

Lisa White Hardwick, Judge

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 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 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 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 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...