Pollock v. Wetterau Food Distribution Group

• Decision Date: 14 December 1999
• Parties: (Mo.App W.D. 1999) Laura Pollock, Plaintiff/Appellant/Cross-Respondent, v. Wetterau Food Distribution Group, Defendant/Respondent/Cross-Appellant. Case Number: ED74309 & ED74344 Missouri Court of Appeals Eastern District Handdown Date:
• Court: Missouri Court of Appeals

11 S.W.3d 754 (Mo.App W.D. 1999)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court

Laura Pollock, Plaintiff/Appellant/Cross-Respondent, v. Wetterau Food Distribution Group, Defendant/Respondent/Cross-Appellant.

Case Number: ED74309 & ED74344

Missouri Court of Appeals Eastern District

Handdown Date: 12/14/99

Appeal From: Circuit Court of St. Louis County, Hon. Michael Joseph Hart

Counsel for Appellant: John Douglas Lynn

Counsel for Respondent: Kevin J. Lorenz, William B. Jones and Robert W. Stewart

Opinion Summary: Plaintiff Laura Pollock sued her former employer under the Missouri Human Rights Act claiming sexual harassment and constructive discharge. Before trial, the trial court struck Pollock's claim for damages for emotional distress as preempted by the Workers' Compensation Law. Following a bench trial, the trial court found her employer liable on both claims and awarded Pollock back pay for the period prior to the date on which she rejected an offer of reinstatement from her former employer, and also awarded attorneys' fees for services rendered until the date of Pollock's rejection. The trial court assessed the costs of the lawsuit one-half to each party. Both parties appeal.

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

Division Three holds: (1) The trial court did not erroneously consider time-barred allegations of harassment in connection with Pollock's sexual harassment claim. She proved a continuing violation, and thus the fact that some of the alleged instances of harassment occurred outside the 180-day filing period is irrelevant. Although a break in employment may have cut off liability for the continuing violation, evidence of harassment during Pollock's first period of employment would be admissible as background relevant to whether hew work environment during her second period of employment was intolerable. (2) Pollock's failure to give her employer a chance to remedy the situation prior to resigning is not fatal to her constructive discharge claim but, rather, is one circumstance properly considered in determining, upon a review of the totality of the circumstances, whether her working conditions were intolerable and whether her conduct was reasonable. (3) Pollock's failure to complain of the harassment to management is also not fatal to her sexual harassment claim because, pursuant to state regulation, employers are liable for sexual harassment by supervisors regardless of whether they had actual or constructive knowledge of the harassment. (4) The trial court erred in striking Pollock's claim for emotional distress damages as preempted by the Workers' Compensation Law, because claims brought under the Missouri Human Rights Act for such damages are an exception to the exclusivity provision of the Workers' Compensation Law. (5) The trial court properly limited Pollock's back pay award to the period commencing from the date of Pollock's constructive discharge through the date on which she rejected her employer's unconditional offer of reinstatement. (6) The trial court abused its discretion in refusing to award prejudgment interest on Pollock's back pay award. (7) Even though Pollock's attorney was disbarred during the pendency of the case, the trial court did not err in awarding his attorneys' fees for services the attorney rendered prior to his disbarment. Pollock's attorney was disbarred for reasons unrelated to the case and did not seek to recover directly from Pollock but from an adverse party. (8) The trial court erred in limiting the attorneys' fees award, like that of back pay, to the period prior to the date on which Pollock unreasonably rejected her employer's offer of reinstatement. Although back pay liability should cease at the time of an unreasonable rejection of an unconditional offer of reinstatement, an award of attorneys' fees should not. (9) The trial court did not abuse its discretion in using attorney's historic, as opposed to current, hourly rate in calculating the attorney's fees award. (10) The trial court erred in attempting to award the employer any portion of the costs of suit as it was not the "prevailing party," nor was the case "without foundation," but the court did not otherwise abuse its discretion in awarding Pollock only partial costs.

Opinion Author: Lawrence E. Mooney, Judge

Opinion Vote: AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. Simon, P.J., concurs, and Crane, J., concurs in result.

Opinion:

Opinion of August 17, 1999 is ordered set aside. New Opinion:

Laura Pollock ("Plaintiff") appeals from the judgment entered on her claim under the Missouri Human Rights Act ("MHRA"), Section 213.010, et seq., RSMo. (1994),¹ against her former employer, Wetterau Food Distribution Group ("Defendant"). On appeal, Plaintiff argues that the trial court erred in: 1) barring her from recovering back pay and benefits after the date on which she rejected Defendant's offer of reinstatement; 2) denying her prejudgment interest; 3) dismissing her claim for damages for emotional distress as preempted by the Workers' Compensation Law, Section 287.010, et seq.; 4) barring her from recovering attorneys' fees after the date on which she rejected Defendant's offer of reinstatement; and 5) taxing one-half of the filing fee and deposition costs to each Plaintiff and Defendant. Defendant cross-appeals, arguing that the trial court erred in: 1) considering time-barred allegations in finding that Plaintiff suffered a hostile work environment; 2) finding that Plaintiff was constructively discharged; 3) refusing to find that Plaintiff was estopped from asserting a claim for sexual harassment because she did not complain to Defendant prior to her resignation and refused to cooperate in the investigation; 4) holding Defendant strictly liable on Plaintiff's sexual harassment claim pursuant to a state regulation; and 5) awarding Plaintiff any attorneys' fees as her attorney had been disbarred by the time of the award of attorneys' fees. The parties have also filed various motions with this Court that have been taken with the case. We affirm in part, and reverse and remand in part.

FACTS

The facts viewed in the light most favorable to the trial court's judgment, Champion v. Frazier, 977 S.W.2d 61, 62 (Mo.App. E.D. 1998), are as follows:

In July 1984, Plaintiff, who was 20 years old at the time, began working as a part-time order filler in Defendant's grocery warehouse. She obtained a full-time position a few months later. About four months after she began working for Defendant, Plaintiff became aware that Jack Driskill ("Driskill"), the manager of the warehouse, had a sexual interest in her when he commented that she had a "sexy body," and told her that he wanted to go out with her. Plaintiff told Driskill that she would not go out with him, because he was her supervisor. Ignoring her rejection, Driskill continued to repeatedly pressure Plaintiff to go out with him. Each time, Plaintiff rebuffed his advances.

Driskill also began to follow Plaintiff around the warehouse. He would stand at the end of an aisle in the warehouse and watch Plaintiff while she worked. If she moved to another aisle, he would follow her. Sometimes he stood behind her, smoking a cigarette and staring at her.

Driskill gave Plaintiff numerous cards and letters in which he expressed his romantic feelings for her. The first time Plaintiff recalls receiving a written communication from Driskill, he handed her a piece of paper with his home telephone number on it and told her to call him for a drink. She refused. He gave some of these love notes to Plaintiff at work; others were mailed to Plaintiff's home. The cards and letters upset her. She was frustrated that Driskill would not leave her alone when she had repeatedly told him that she did not want anything to do with him.

Driskill also telephoned Plaintiff at home. At the time, she was living with her mother. Plaintiff told her mother that she did not want to speak with Driskill and instructed her mother to tell Driskill she was not home when he called. He sent flowers to Plaintiff's home and told her mother he was in love with Plaintiff. Driskill appeared at Plaintiff's home several times, despite the fact that he had never been invited nor told where she lived. On one occasion, Driskill stopped and spoke to Plaintiff, other times he would just drive by the house or would park his car on the street in front of the house.

This pattern of sexual harassment continued from the fall of 1984 until February 1986 when Plaintiff suffered an on-the-job injury to her wrist. Due to her injury, she was unable to work from February 5, 1986, to July 5, 1988. In the beginning of Plaintiff's period of absence from work, Driskill continued to send Plaintiff cards and telephone her, but eventually all contact between the two ceased. She recovered from her injury and returned to work at the warehouse in July 1988.

Following her return to work, Driskill began a new round of harassment that was more intense and frequent. Driskill now acted rejected and angry toward Plaintiff. On an almost daily basis, Driskill followed Plaintiff around the warehouse and stared at her, which upset Plaintiff. Several of Plaintiff's co-workers confirmed Driskill's stalking of Plaintiff at work.

Driskill resumed his telephone calls to Plaintiff at home. Plaintiff asked Driskill to stop calling her to no avail. Driskill also continued his onslaught of cards and letters. Again, Driskill sent some of the notes to Plaintiff's home and delivered others to her at work. Plaintiff now lived in her own apartment, and Driskill would park in the parking lot of Plaintiff's apartment complex to watch her comings and goings.

One evening, Driskill appeared at Plaintiff's door and pushed his way into her apartment. He had difficulty walking, slurred his words and had a bottle of Jack Daniels tucked in his pocket. Plaintiff told him to...