Dewalt v. Davidson Service/Air, Inc.

• Decision Date: 28 May 2013
• Docket Number: ED 97906.,Nos. ED 97905,s. ED 97905
• Citation: 398 S.W.3d 491
• Parties: Thomas DeWALT, Plaintiff–Respondent/Cross–Appellant, v. DAVIDSON SERVICE/AIR, INC., Defendant, and Donald Davidson, Defendant–Appellant/Cross–Respondent.
• Court: Missouri Court of Appeals

398 S.W.3d 491

Thomas DeWALT, Plaintiff–Respondent/Cross–Appellant,

v. DAVIDSON SERVICE/AIR, INC., Defendant,andDonald Davidson, Defendant–Appellant/Cross–Respondent.

Nos. ED 97905, ED 97906.

Missouri Court of Appeals,

Eastern District.

Feb. 5, 2013.

Application for Transfer to Supreme Court Denied March 14, 2013.

Application for Transfer Denied May 28, 2013.

Jack B. Spooner, St. Louis, MO, for appellant.

Mark Potashnick, Eli Karsh, St. Louis, MO, for respondent.

LAWRENCE E. MOONEY, Presiding Judge.

The defendant, Donald Davidson, appeals the judgment entered by the Circuit Court of St. Louis County following a jury verdict rendered against him and in favor of the plaintiff, Thomas DeWalt, on the plaintiff's claim of disability discrimination. The plaintiff cross-appeals his award of attorneys' fees. Finding no error in the appeal, we affirm the judgment for the plaintiff. As to the cross-appeal, the record contains nothing to explain the trial court's award of attorneys' fees in the amount of $75,000 and gives no indication of the factors the trial court considered in making its decision. Therefore, we reverse and remand the cause for findings of fact and conclusions of law on the calculation of the plaintiff's attorneys' fees.

Facts

The plaintiff obtained a commercial driver's license, and in April 2006 began work for Davidson Surface/Air, Inc. (“the company”) as a truck driver for local routes. The defendant owns and operates the company. The company's local deliveries typically required no more than thirty minutes of drive time to complete. However, the local deliveries also involved time spent on other tasks such as loading, unloading, or waiting to receive a dispatch.

While the plaintiff primarily performed local deliveries for the company, he would occasionally volunteer to handle time-sensitive over-the-road runs, which had to be completed as quickly as possible and without any breaks. The plaintiff had performed one such run in 2007 to Kentucky. In the summer of 2007, the plaintiff began experiencing nausea, headaches, sensitivity to light, impotence, and extreme fatigue. Doctors diagnosed him with a large noncancerous brain tumor that was too risky to attempt to remove surgically.

The plaintiff and his treating physician, Dr. Michael Berk, testified that the plaintiff suffers from a large pituitary brain tumor, sitting at the base of his skull between his eyeballs. The plaintiff explained that he was substantially limited in his ability to drive because he could not drive for more than ninety minutes without taking a break, that he could not read or use a computer for more than twenty to thirty minutes, and that the tumor greatly affected various bodily systems, namely his adrenal, thyroid, and sexual systems. Dr. Berk agreed with this testimony, and confirmed that headaches and fatigue are common symptoms of the plaintiff's condition. Dr. Berk testified that the brain tumor was neither minor nor temporary. Dr. Berk explained that he had restricted the plaintiff from driving more than ninety minutes at a time. He stated that he would not have imposed such a restriction unless he believed it to be necessary, and that the plaintiff could not perform over-the-road trucking jobs.

The plaintiff informed his supervisors, including the defendant directly, when he received his diagnosis, and he presented a doctor's note about the ninety-minute driving restriction. The plaintiff's direct supervisor, Mitchell Tubbs, confirmed that the plaintiff advised him of the brain tumor and provided a doctor's note, and that Mr. Tubbs immediately informed the defendant of the plaintiff's tumor and restriction. Mr. Tubbs accommodated the plaintiff's condition by assigning him only local routes, and Mr. Tubbs testified that local deliveries were always available for drivers at the company. He testified that in his thirteen years with the company, there was never a weekday when the company had no local routes to dispatch.

Mr. Tubbs resigned from the company on September 1, 2007, and the plaintiff then reported to a new supervisor, Tony Jestis. In early September 2007, one of the dispatchers asked the plaintiff to make an over-the-road run to Indiana, and the plaintiff declined, explaining his medical condition and restriction. His supervisor told the plaintiff to stay home if he was not going to perform the run to Indiana. On September 13, 2007, Mr. Jestis asked the plaintiff to make another long over-the-road run to Illinois the next day. The plaintiff again demurred, explaining his medical condition and restriction. Mr. Jestis demanded that the plaintiff present another doctor's note, which the plaintiff did within a few days, and the note contained the same ninety-minute driving restriction. Pursuant to the defendant's direction, Mr. Jestis told the plaintiff to take the day off without pay and issued the first of four disciplinary write-ups that the plaintiff would receive in the next two weeks.

The plaintiff's hours then began decreasing because he did not receive much work. Over the next few weeks, the plaintiff's work hours were cut from almost forty hours per week, to 25 hours per week, to less than 25 hours, to none. On October 5, 2007, the plaintiff yet again declined a long over-the-road run, explaining that his medical restriction prohibited such runs. The plaintiff was not assigned any work that day. For the next two weeks, the plaintiff received no work assignments despite calling in every day to request work. A dispatcher and supervisor told the plaintiff that he would not be assigned any work if he would not drive over-the-road runs. This supervisor also told the plaintiff not to call in because no work would be available for him, and that dispatchers would call the plaintiff if they needed him. Mr. Jestis confirmed that after the plaintiff declined the October 5, 2007 over-the-road-run, he placed the plaintiff at the bottom of the list, and told the other dispatchers to call the plaintiff only if they needed him. The defendant and Mr. Jestis testified that numerous local routes were available during this time. The evidence revealed that several other drivers worked over forty hours per week driving local routes during the time that the plaintiff received no assignments. The plaintiff also testified that he could have worked in the warehouse, which he had frequently done in the past.

On October 18, 2007, after unsuccessfully trying to obtain work assignments for two weeks, the plaintiff appeared at the company in person and requested work. He was again told none was available. The plaintiff testified that he believed he would be assigned no more work and no longer had a job. Consequently, he returned his uniforms and requested the refund of his uniform deposit so that he would have money to pay bills. In order to receive his uniform deposit, the plaintiff was required to sign a form stating that he voluntarily quit, but he crossed out this language, and instead wrote that he had been constructively terminated. At the defendant's direction, Mr. Jestis prepared a memo signed by the defendant informing the plaintiff that the company had no work for him on the days he had requested it, and that he was terminated. The plaintiff drove local routes for several other firms following his departure from the company.

The plaintiff filed suit against the company and the defendant individually, claiming disability discrimination under the Missouri Human Rights Act (“the MHRA”). A jury found in favor of the company on the plaintiff's claim that he was terminated or denied work based on disability, but found in the plaintiff's favor on his claim against the defendant individually that the defendant terminated him or denied him work based on disability. The jury awarded the plaintiff $7,500 in compensatory damages. The plaintiff requested $133,198.50 in attorneys' fees, and the trial court awarded $75,000. Both parties appeal.

The Defendant's Appeal

In four points and several subpoints, the defendant challenges the submissibility of the plaintiff's case, the trial court's rejection of two proposed jury instructions, its submission of two other instructions, and the award of attorneys' fees.

Point I

In his first point, the defendant challenges the submissibility of the plaintiff's case. He claims the trial court erred in denying his motions for directed verdict and for judgment notwithstanding the verdict because the plaintiff failed to present substantial evidence that: 1) he had a disability or that the defendant perceived him to have a disability; and 2) the plaintiff was constructively discharged or that the defendant refused to provide him with work. The defendant presents this argument through eight specific subpoints.

The standards of review for denial of a motion for directed verdict and denial of a motion for judgment notwithstanding the verdict are essentially the same. Keveney v. Mo. Military Academy, 304 S.W.3d 98, 104 (Mo. banc 2010). To defeat either motion, the plaintiff must make a submissible case by offering substantial evidence to support every fact essential to a finding of liability. Id. To determine whether the evidence was sufficient to support the jury's verdict, we view the evidence in the light most favorable to the verdict, and we give the plaintiff the benefit of all reasonable inferences. Id. We disregard conflicting evidence and inferences. Id. We will reverse the jury's verdict only where we find a complete absence of probative facts to support the jury's conclusion. Id.

The statutes governing an MHRA discrimination claim constitute the source of the substantive law in this case. Section 213.055 RSMo. (2000)¹ prohibits discrimination in the employment context because of a person's race, color, religion, national origin, sex, ancestry, age, or disability.

It shall be an unlawful employment practice:

(1) For an employer, because of the race, color, religion, national origin, sex,...