Piers v. Dep't of Corr.

• Court: Missouri Court of Appeals
• Writing for the Court: Karen King Mitchell, Judge
• Citation: Piers v. Dep't of Corr., 688 S.W.3d 65 (Mo. App. 2024)
• Docket Number: WD 85939
• Decision Date: 09 April 2024
• Parties: Taryn PIERS, Respondent, v. State of Missouri DEPARTMENT OF CORRECTIONS, Appellant.

688 S.W.3d 65

Taryn PIERS, Respondent,

v.State of Missouri DEPARTMENT OF CORRECTIONS, Appellant.

WD 85939

Missouri Court of Appeals, Western District.

OPINION FILED: April 9, 2024

Appeal from the Circuit Court of Buchanan County, Missouri, The Honorable David L. Bolander, Judge Christina J. Nielsen, Arlington, VA, Attorney for Respondent.

Andrew Bailey, Attorney General, Jefferson City, MO, and Adam Merello, Assistant Attorney General, Kansas City, MO, Attorneys for Appellant.

Before Division Two: Anthony Rex Gabbert, Presiding Judge, and Karen King Mitchell and Janet Sutton, Judges

Karen King Mitchell, Judge

The Missouri Department of Corrections (DOC) appeals from a judgment entered against it on Taryn Piers’s claim of retaliation under the Missouri Human Rights Act (MHRA). DOC raises three points on appeal, two of which claim error based on the denial of its motion for judgment notwithstanding the verdict (JNOV), which claimed trial court error in submitting Piers’s claim to the jury because (1) Piers failed to prove DOC took any materially adverse action in transferring her to a new job; and (2) Piers failed to prove harm resulting from the job transfer. In its third point, DOC claims the trial court erred in allowing a previously undisclosed witness to testify at trial.¹ Finding that DOC failed to preserve its first two points and finding no error in the third, we affirm.

Background²

[1, 2] Piers filed an employment-discrimination action under the MHRA against DOC alleging retaliation, associational disability discrimination, and sex discrimination. Following an August 2022 trial, the jury returned a verdict in DOC’s favor on the counts of associational disability discrimination and sex discrimination and in Piers’s favor on her retaliation claim. The trial court entered judgment on September 14, 2022, for Piers in the amount of $500,000 in non-economic damages, $270,507.50 in attorneys’ fees, and $9,366.89 in costs. DOC then filed its Motion for JNOV or, in the Alternative, a New Trial, or Remittitur on October 14, 2022. The trial court denied the motion on December 17, 2022.

Piers was employed by DOC in 2011 as a Probation and Parole Officer I. Her goal from the beginning of her employment with DOC was to work as a Drug Court Officer. She testified that she was the child of an addict and wanted to witness how Drug Court programs help addicts. In 2018, she became a Drug Court Officer, which she found "more fulfilling" than her job as a "regular" probation officer, with a higher level of satisfaction from seeing clients complete the programs. She took on a full Drug Court caseload from a retiring Drug Court Officer. The person to whom she initially reported at Drug Court had no complaints or concerns about Piers’s work. Things changed when a new supervisor (Supervisor) took over.

Since her start date with DOC in 2011, Piers had used Family and Medical Leave Act (FMLA) leave to care for her son and sought approval to use flex time to put in 40 hours per week. Piers’s son, nineteen years old at the time of trial, was diagnosed as an infant with cystic fibrosis, a disease requiring regular care. Approval to use flex time was granted previously, but Supervisor denied Piers’s requests if the reason was to care for her son. When she informed Supervisor of the need to take FMLA leave, Supervisor would say things like "what’s wrong with him now?" and roll her eyes. Piers was accused of "stealing" from the state and not reporting all of her leave time. In early 2019, concerned that her son was depressed over his illness, Piers took FMLA leave and acknowledged that it inconvenienced her Drug Court coworkers.

Supervisor put several written notes of performance violations in Piers’s file. One was based on a photograph taken by another employee, causing Supervisor to accuse Piers of violating DOC’s dress code by wearing a skirt that was too short. Piers testified that she had worn the same clothing "hundreds of times" before without issue and was never shown the photograph. Supervisor issued another note to Piers’s file when Piers arrived late due to a medical issue with her son. Later that day, Piers worked after hours to finish a project needed by a judge the next day, even though Supervisor had denied Piers’s request to work late.

On July 19, 2019, Piers emailed a DOC District Administrator (to whom Supervisor reported) to report that Supervisor was subjecting Piers to a hostile work environment. On October 8, 2019, a "conflict resolution meeting" took place, attended by Piers, Supervisor, and two DOC employees holding the position of Civil Rights Officer II. After that meeting, Piers emailed one of the Civil Rights Officer II employees to ask for a chance to speak in person about her discrimination complaint and her fear of retaliation. In response, she was asked to provide written documentation of the instances of discrimination. Piers declined, fearing that a written response would lead to retaliation.

On November 14, 2019, Supervisor called Piers into Supervisor’s office, told Piers to "get [her] stuff out" and ordered her to "leave immediately" because Piers was being transferred by DOC. The transfer was to DOC’s Community Supervision Center, in a different location in St. Joseph from the Drug Court. On November 22, 2019, the District Administrator informally announced that a Drug Court Officer position was available. Piers emailed the District Administrator asking whether she could apply for the position, but he did not respond.

Piers was upset, embarrassed, and in shock at the loss of a job she loved, and she was unhappy with the work required at the Community Supervision Center. In addition, although her salary did not decrease, her caseload almost doubled at the new job, and DOC assigned her older cases with a significant backlog of clients and reports needing attention.

At trial, after Piers had testified, the court allowed Piers’s mother (Mother) to testify, although Piers had not included Mother on her witness list or disclosed Mother in responses to DOC’s interrogatories (to which Piers’s counsel had responded with objections).³ The jury found in favor of Piers on her retaliation claim and in favor of DOC on her claims of sex discrimination and associational disability discrimination.

Analysis

DOC appeals from the judgment entered against it on Piers’s claim of retalia- tion under the MHRA, § 213.070.1(2).⁴ DOC raises three points on appeal: (1)-(2) that the trial court erred in denying DOC’s motion for JNOV because Piers failed to prove DOC took materially adverse action in transferring her to a new job or that the transfer resulted in harm to her; and (3) that the trial court erred in allowing Piers to present a witness at trial who was not disclosed to DOC in discovery.

Points I and II

Preservation of Error

[3] Piers argues that, pursuant to Rule 72.01(a), DOC failed to preserve its claims of error in its motion for directed verdict at the close of all the evidence. We agree. "Rule 72.01 authorizes motions for directed verdict and for judgment notwithstanding the verdict." Pope v. Pope, 179 S.W.3d 442, 451 (Mo. App. W.D. 2005) (en banc). Under Rule 72.01(a), a motion for directed verdict must "state the specific grounds therefor." Under Rule 72.01(b), a party may move for JNOV only if it has previously moved for a directed verdict. The purpose of a JNOV motion is "to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with the motion for a directed verdict," thus "a motion for directed verdict that does not comply with … Rule 72.01(a) neither presents a basis for relief in the trial court nor preserves the issue in the appellate court." Pope, 179 S.W.3d at 451 (quoting Letz v. Turbomeca Engine Corp., 975 S.W.2d 155, 163 (Mo. App. W.D. 1997), overruled on other grounds by Badahman v. Catering St. Louis, 395 S.W.3d 29, 40 (Mo. banc 2013)).

[4] DOC’s directed verdict motion did not comply with the requirements of Rule 72.01(a). DOC orally moved⁵ for directed verdict both at the close of Piers’s evidence and at the close of all evidence. But in moving at the close of Piers’s evidence, DOC stated only that the evidence was "insufficient to establish sex discrimination, disability discrimination, or retaliation" and gave no specifics about which elements of those claims failed or why. In moving at the close of all the evidence, DOC stated no additional grounds and simply "renewed" its earlier motion for directed verdict. When the court raised the possibility of argument, DOC stated that it was not needed. The court denied both motions on the record immediately after they were made. DOC’s motion for JNOV was more specific, identifying the claims raised now on appeal and their factual basis: that Piers failed to prove any adverse employment action or resulting damages in being transferred to a different job because there had been no change in her title, pay, or supervisor.

[5] "Where an insufficient motion for directed verdict has been made, a subsequent post-verdict motion is without basis and preserves nothing for review." Pope, 179 S.W.3d at 451. The motion for JNOV is simply a request "to have judgment entered in accordance with the motion for directed verdict." Rule 72.01(b) (emphasis added). In Pope, the defendant’s motion for directed verdict failed to preserve error because it contained only "boilerplate generalities" about insufficient evidence of duty and causation to prove a claim of negligence, whereas its JNOV motion (and appeal) claimed a failure of evidence to support the formation of a partnership, which was the basis for a theory of vicarious liability for the direct negligence of appellant’s partner and the focus of his appeal. Id. at 452 (noting that when the court "expressly invited" defendant to elaborate on his grounds for directed verdict, he declined to do so). The Pope court recognized that Missouri’s court of appeals had...