McKinney v. Mercy Hosp. St. Louis

• Decision Date: 17 March 2020
• Docket Number: No. ED 107400,ED 107400
• Citation: 604 S.W.3d 680
• Parties: Tammie MCKINNEY, Plaintiff/Respondent, v. MERCY HOSPITAL ST. LOUIS, Defendant/Appellant.
• Court: Missouri Court of Appeals

604 S.W.3d 680

Tammie MCKINNEY, Plaintiff/Respondent,

v.MERCY HOSPITAL ST. LOUIS, Defendant/Appellant.

No. ED 107400

Missouri Court of Appeals, Eastern District, Eastern District. DIVISION THREE.

Filed: March 17, 2020

Motion for Rehearing and/or Transfer to Supreme Court Denied April 30, 2020

Application for Transfer to Supreme Court Denied September 1, 2020

Edward D. Robertson, Jr., Edward D. Robertson, III, Kelly C. Frickleton, 11150 Overbrook Road, Suite 200, Leawood, KS 66211, Jeremy D. Hollingshead, Nicholas J. Dudley, 7777 Bonhomme Avenue, Suite 2401, St. Louis, MO 63105, For Plaintiff/Respondent.

James M. Paul, Andrew L. Metcalf, 7700 Bonhomme, Suite 650, St. Louis, MO 63105, For Defendant/Appellant.

SHERRI B. SULLIVAN, J.

Introduction

Mercy Hospital East Communities d/b/a Mercy Hospital St. Louis (Appellant) appeals from the trial court's judgment, following a jury trial, in favor of Tammie McKinney (Respondent) on Respondent's claim for disability discrimination under the Missouri Human Rights Act (MHRA). We affirm.

Facts and Background

On appeal, Appellant contests the sufficiency of the evidence. In the light most favorable to the verdict reached, the facts at trial showed the following:

Respondent began her employment with Appellant as a housekeeper in 1999. She received numerous positive performance reviews followed by merit raises and by most accounts satisfactorily performed the tasks of her employment. In a 2013 performance evaluation Respondent's supervisor commented, "[Respondent] is a great co[-]worker, she works hard to ensure her job is done and takes pride in her work." Respondent also received praise from individuals whose workspace she cleaned, who said her work was "fabulous," and that she "did a very good job...."

Over the years of her employment, Respondent took a number of leaves of absence in order to address her health issues. Some of these health issues were related to arthritis

and degenerative lumbar disease.

In 2013, Appellant instituted a policy requiring certain employees to perform a "functional job screen" test. Respondent testified that when employees were informed of the new policy, they were told they would have to take the functional job screen test if they were off work for six weeks or longer. However, Appellant introduced evidence at trial suggesting other circumstances would prompt the test, such as leave for certain medical reasons. The screening test for housekeepers was developed by Sara Crain (Crain), a physical therapist employed by Appellant.

On March 27, 2014, Respondent requested a leave of absence for March 28 through March 31 to obtain a cortisone shot for back pain. Respondent returned to work on March 31, 2014, and worked for several days. On April 3, 2014, Respondent was called to the functional job screen department, where she was required to take a test under Crain's supervision. The test, devised by Crain, required not only that Respondent perform physical tasks related to her employment duties, but that she complete them in a specified way. Crain required Respondent to touch the floor by squatting with her knees 15 times. While Respondent was able to reach the floor by bending at her waist, she was unable to squat in the way Crain demanded. Respondent was informed she had failed the functional screen test and was told to leave work.

Respondent testified Appellant told her she could return to work if she received approval from her physician. Respondent went to see her physician, Dr. Victoria Ojascastro (Dr. Ojascastro), a board-certified internal medicine specialist and Respondent's physician since 1997. Respondent obtained a note from Dr. Ojascastro stating that although Respondent was unable to squat at her knees or bend her back, she was able to safely bend at the waist with a straight back and was medically able to return to work. However when Appellant was given this note, Appellant told Respondent it was insufficient. Appellant placed Respondent on leave for 45 days, at the end of which Respondent would be required to retake and pass the functional job screen test to continue her employment. The test was scheduled to take place in May 2014. However, Respondent chose to reschedule the test because she was not feeling well on the day of, and feared she would fail her last opportunity to take it. The test was rescheduled for June 6, 2014. In the meantime, because Respondent had already exhausted her paid leave, she was not paid for the period between April 3, 2014 and June 6, 2014.

Prior to the June 6 test, Respondent participated in physical therapy sessions provided by Appellant. On May 27, 2014, Respondent obtained another note from Dr. Ojascastro approving her return to work on June 6 with no restrictions. On June 6, 2014, Respondent retook the functional job screen test under the supervision of Crain. Respondent was again unable to squat at her knees as required by Crain, causing her to fail the test.

Appellant informed Respondent she was unable to return to work as a housekeeper because she had failed the test. Appellant sent Respondent a letter stating pursuant to their displaced worker policy, Respondent was not being terminated at that time. Rather, Respondent would have 45 days to work with Appellant's recruiter to determine whether another position might be available to her. Respondent and Appellant present conflicting accounts as to what happened next. Respondent testified Appellant did not make contact and work with her as promised to find Respondent a new position; Appellant argues Respondent did not fully participate in the recruitment process. After 45 days passed and Respondent did not obtain a new position with Appellant, Appellant officially terminated Respondent on November 12, 2014.

Social Security Benefits Application

During the period leading up to the functional job screen test and Respondent's eventual termination, she had been receiving periodic cortisone injections. These injections alleviated the symptoms of her arthritis

, improving her ability to perform everyday physical tasks, including tasks associated with her employment as a housekeeper. Respondent testified that as of the time she stopped receiving a paycheck from Appellant, and subsequently lost her health insurance contributions, she became unable to afford these cortisone injections. As a result, her arthritis symptoms worsened and interfered with her ability to perform day-to-day tasks.

On July 15, 2014, Respondent applied to the Social Security Administration (SSA) for Social Security Disability (SSD) benefits. Her application averred she had become disabled May 18, 2014. In a later amendment Respondent asserted March 27, 2014, as the day she had become unable to work due to her disabling condition. Respondent's application listed various everyday activities that were negatively impacted by the arthritis

in her back, knees, and hips. Respondent obtained the aid of a third-party company to complete her SSD application. Respondent's application resulted in her obtaining monthly SSD benefits.

MHRA Claim

In October 2015, Respondent filed a disability claim against Appellant under the MHRA. Respondent alleged she was "disabled" within the meaning of the MHRA because she had a qualifying condition, chronic arthritis

throughout her body, but was able to perform the essential functions of her job with or without reasonable accommodation. Respondent alleged her termination and other treatment by Appellant entitled her to damages under the MHRA. As evidence, Respondent offered her own testimony and the testimony of Dr. Ojascastro via video deposition, as well as testimonial evidence regarding Respondent's satisfactory work performance. Respondent also examined Crain regarding the functional job screen test. After a five-day trial, the jury returned a verdict in favor of Respondent, awarding her $17,000 in compensatory damages. The trial court also awarded $347,550 and $12,174 in attorney's fees and costs, respectively.

This appeal follows.

Points Relied On

Appellant's first point claims the trial court erred by denying its motion for judgment notwithstanding the verdict (JNOV) because Respondent failed to present substantial evidence Respondent had a "disability" under the MHRA. Appellant's second point claims the trial court erred by denying its motion for JNOV because Respondent failed to present substantial evidence showing she was discriminated against because of her disability. Finally, Appellant's third point claims the trial court, and this Court, should apply the doctrine of judicial estoppel against Respondent for her MHRA claim because she made conflicting claims to the SSA in order to obtain SSD benefits.

Standard of Review – Points I and II

"[G]ranting a motion for JNOV is a drastic action and should only be granted when reasonable persons could not differ on the correct disposition of the case." Merseal v. Farm Bureau Town & Country Ins. Co. of Mo., 396 S.W.3d 467, 470 (Mo. App. E.D. 2013). "A case may not be submitted [to the jury] unless legal and substantial evidence supports each fact essential to liability." Sanders v. Ahmed, 364 S.W.3d 195, 208 (Mo. banc 2012). "Substantial evidence is evidence, which, if true, is probative of the issues and from which the jury can decide the case." Holliday Investments, Inc. v. Hawthorn Bank, 476 S.W.3d 291, 297 (Mo. App. W.D. 2015). "In determining whether the evidence was sufficient to support the jury's verdict, 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." Dhyne v. State Farm Fire and Cas. Co., 188 S.W.3d 454, 456-57 (Mo. banc 2006). "This Court will reverse the jury's verdict for insufficient evidence only where there is a complete absence of probative fact to support the jury's conclusion." Id. at 457.

Discussion

Point I

In order to make a...