Leeper v. Scorpio Supply IV, LLC

• Decision Date: 02 September 2011
• Docket Number: No. SD 29686.,SD 29686.
• Citation: 351 S.W.3d 784,113 Fair Empl.Prac.Cas. (BNA) 292
• Parties: Heather LEEPER n/k/a Heather Haiar, and Hillary Woods, Plaintiffs–Respondents, v. SCORPIO SUPPLY IV, LLC, d/b/a NAPA Auto Parts of Joplin, Scorpio Supply III, LLC, d/b/a NAPA Auto Parts of Monett, and James Entrikin, Defendants,andAlvin Briscoe, Defendant–Appellant.
• Court: Missouri Court of Appeals

113 Fair Empl.Prac.Cas. (BNA) 292

351 S.W.3d 784

Heather LEEPER n/k/a Heather Haiar, and Hillary Woods, Plaintiffs–Respondents,

v.SCORPIO SUPPLY IV, LLC, d/b/a NAPA Auto Parts of Joplin, Scorpio Supply III, LLC, d/b/a NAPA Auto Parts of Monett, and James Entrikin, Defendants,andAlvin Briscoe, Defendant–Appellant.

No. SD 29686.

Missouri Court of Appeals, Southern District, Division One.

Sept. 2, 2011.Motion for Rehearing or Reconsideration

and Transfer Denied Sept. 26, 2011.

Application for Transfer Denied

Dec. 6, 2011.

Jessica M. Bernard, Overland Park, KS, for Appellants.

Tammy L. Horn, Overland Park, KS, for Respondents.

JEFFREY W. BATES, Presiding Judge.

Heather Leeper and Hillary Woods (hereinafter referred to individually by surname and collectively as Plaintiffs) brought suit against Scorpio Supply IV, LLC d/b/a NAPA Auto Parts of Joplin (Joplin NAPA); Scorpio Supply III, LLC d/b/a NAPA Auto Parts of Monett (Monett NAPA); James Entrikin (Entrikin); and Alvin Briscoe (Briscoe). The multi-count petition included a Missouri Human Rights Act (MHRA) claim by each plaintiff based upon sexual harassment resulting in a hostile work environment. See §§ 213.010–.137.¹ Plaintiffs' hostile work environment claims were tried to a jury, which found in their favor and awarded them compensatory and punitive damages, attorney's fees and costs. Only Briscoe has appealed from the judgment. He contends that the trial court erred by: (1) imposing vicarious liability on him for sexual harassment committed by his supervisory employee; (2) giving a verdict-directing instruction that imposed a nonexistent legal duty on him; and (3) submitting his liability for punitive damages to the jury. Finding no merit in Briscoe's contentions, we affirm the trial court's judgment.

Point I

In Briscoe's first point, he contends the trial court erred in denying his motion for directed verdict at the close of all of the evidence and his motion for judgment notwithstanding the verdict (JNOV) because he could not be held vicariously liable for sexual harassment committed by his supervisory employee. Our review of the trial court's denial of a motion for a directed verdict and a motion for JNOV is essentially the same. Hadley v. Burton, 265 S.W.3d 361, 374 (Mo.App.2008). Our task is to determine whether Plaintiffs made a submissible case against Briscoe. See id. “A directed verdict is a drastic action to be taken sparingly and only where reasonable persons in an honest and impartial exercise in their duty could not differ on a correct disposition of the case.” Oak Bluff Partners, Inc. v. Meyer, 3 S.W.3d 777, 783 (Mo. banc 1999). “If the facts are such that reasonable minds could draw differing conclusions, the issue becomes a question for the jury, and a directed verdict is improper.” Lasky v. Union Elec. Co., 936 S.W.2d 797, 801 (Mo. banc 1997). An appellate court will only reverse a jury's verdict for insufficient evidence when there is a complete absence of probative facts to support the jury's conclusion. Giddens v. Kansas City Southern Ry. Co., 29 S.W.3d 813, 818 (Mo. banc 2000). On appeal, we view the evidence and reasonable inferences therefrom in the light most favorable to Plaintiffs, the prevailing parties; all contrary evidence and inferences are disregarded. See D.R. Sherry Constr., Ltd. v. American Family Mut. Ins. Co., 316 S.W.3d 899, 907 (Mo. banc 2010); Hadley, 265 S.W.3d at 374. Our summary of the evidence has been prepared in accordance with these principles.

Briscoe owned and operated NAPA auto parts stores in Joplin, Monett, Nevada and Butler, Missouri. Briscoe set up a limited liability company (LLC) to operate each store. He was the sole managing member of each LLC and was actively involved in the operation of each store. He personally hired the sales manager, who was in charge of the overall operations of all four stores, as well as the manager and assistant manager for each individual store. He sometimes was involved in the hiring of other, lower-level employees at various stores. Each individual store had eight to ten employees, depending on sales volume. Entrikin was hired as the sales manager, and his immediate supervisor was Briscoe. They had known each other for 30 years and were very close. Entrikin lived in a house that he rented from Briscoe.

Leeper's Employment at Monett NAPA and Joplin NAPA

Leeper began working at Monett NAPA in March 2005 when she was 28 years old. She worked as a delivery driver and counter person. She sometimes performed the same duties at Joplin NAPA. There was no policy in place at either store to prevent sexual harassment. Neither managers nor employees received any training or education on what type of behavior was appropriate for the workplace. Employees were not given any education or training about who was to receive complaints about inappropriate behavior or how to report such occurrences.

In the summer of 2005, Jason Hardwick (Hardwick) was the manager of Monett NAPA. Leeper was in a back room getting something from a shelf when Hardwick came up behind her and rubbed his penis against her buttocks. Leeper reported the incident to Entrikin, who was Hardwick's immediate supervisor. Entrikin's only response was to tell Leeper that she needed to watch how she behaved. Hardwick was not disciplined for what he had done. No record of this incident was placed in Hardwick's personnel file.

Thereafter, Hardwick was fired for theft. Entrikin told Leeper that he finally would get a chance with her because Hardwick was gone. Entrikin started making crude, sexually offensive comments to Leeper. Entrikin would whisper things in her ear like, “I want to fuck you” and “I wouldn't mind getting a piece of ... [your] rear end.” When Leeper was leaving the store to go home for lunch, Entrikin would offer to go with her and say “an hour would be long enough to get some action.” He would call her when she was at home. While staring at Leeper's crotch, Entrikin would say that he was hungry and move his tongue in a manner suggestive of oral sex. When Entrikin stayed in a hotel, he would give his room number to Leeper and ask if she was coming over that night. She would make excuses for not doing so because she was afraid of losing her job.

Entrikin began following Leeper around the store. When Leeper went to the restroom, Entrikin would stand outside and jiggle the door handle. He started touching Leeper inappropriately. He would massage her shoulders and then run his hands over her breasts when no other employees were around. When he was sitting in a chair, he would grab her by the waist and pull her down onto his lap. After making sure that Leeper was watching him, he would pretend to unzip his zipper. On numerous occasions, he would make gestures using his tongue and hands to simulate oral sex.

Entrikin's actions became more aggressive over time. On one occasion, he reached inside Leeper's shirt and squeezed her breasts. On another occasion, he pulled her into a bathroom and stuck his hand down the front of her pants. She was afraid he intended to rape her. On a third occasion, Entrikin grabbed Leeper's hand and made her touch his penis.

Entrikin's behavior created a hostile and intimidating work place for Leeper. This behavior continued for 10 or 11 months. Because Entrikin was the immediate supervisor of all of the store managers, Leeper did not know who she should tell about his behavior or what procedures to follow. She knew that Briscoe and Entrikin were really close friends, and she believed she would get in trouble if she said anything.

Woods' Employment at Joplin NAPA

Woods began working at Joplin NAPA in August 2005 when she was 20 years old. She was hired by store manager David Vandiver. Woods worked full-time as a parts delivery driver. When not making deliveries, she stocked parts, worked the counter, answered the phone and did paperwork.

In December 2005, Vandiver was fired. Entrikin became the temporary store manager for Joplin NAPA and Woods' immediate boss. While Entrikin was acting as store manager at Joplin NAPA, he often stayed at a motel instead of driving home to Rich Hill, Missouri. When he did so, he would give Woods the motel room number and ask her to come by in the evening if she was interested. Woods realized that Entrikin wanted a sexual relationship with her.

Woods intended to go to college, but her full-time position as a driver interfered with day classes. In January 2006, Woods moved to the counter. This allowed her to take morning classes and still work from 11:00 a.m. to 7:00 p.m. at the store. Entrikin began asking Woods to go to lunch with him two or three times each week. No other employees were invited to these lunches. Initially, Woods and Entrikin engaged in friendly conversations about matters other than work. Beginning in February 2006, Entrikin began calling these lunches “Hillary days[.]” Entrikin said that Woods looked stressed and needed to go to lunch with him to relax. Over time, the nature of the conversations changed from casual to personal. Entrikin was very interested in Woods' relationship with her boyfriend. Entrikin also complained about his wife and said he had considered leaving her. The lunches began to last as long as two hours, although Woods was only allowed one hour for lunch. When she mentioned this to Entrikin, he told her not to worry about it. Her paychecks were adjusted to show that she had only taken one hour for lunch. When Woods tried to talk about work during the lunches, Entrikin would steer the conversation back to personal matters like Woods' relationship with her boyfriend and Entrikin's relationship with his wife. Between February and June 2006, Woods had lunch with Entrikin 50 to 60 times.

During this same time frame, Entrikin began following Woods around in the store. Besides Entrikin, Woods was the only employee there between 5:00 p.m. and 7:00 p.m. when the store closed. Wherever Woods went in the store,...