Ross-Paige v. Saint Louis Metro. Police Dep't

• Decision Date: 28 June 2016
• Docket Number: No. SC 95214,SC 95214
• Parties: Tanisha Ross–Paige, Respondent, v. Saint Louis Metropolitan Police Department, Steven A. Gori, Michael A. Deeba, Sr., Saint Louis Board of Police Commissioners, Richard H. Gray, Bettye Battle–Turner, Thomas J. Irwin, and Francis G. Slay, Appellants.
• Court: Missouri Supreme Court

492 S.W.3d 164

Tanisha Ross–Paige, Respondent,

v.Saint Louis Metropolitan Police Department, Steven A. Gori, Michael A. Deeba, Sr., Saint Louis Board of Police Commissioners, Richard H. Gray, Bettye Battle–Turner, Thomas J. Irwin, and Francis G. Slay, Appellants.

No. SC 95214

Supreme Court of Missouri, en banc .

Opinion issued June 28, 2016

The police defendants were represented by P. Benjamin Cox of the attorney general's office in Kansas City, (573) 751–3321.

Ross–Paige was represented by Edward D. Robertson Jr., Mary D. Winter and Anthony L. DeWitt of Bartimus, Frickleton, Robertson & Goza in Jefferson City, (573) 659–4454; Jeremy D. Hollingshead and Jonathan M. Eccher of Hollingshead, Paulus & Fletcher in St. Louis, (314) 480–5474; and Ryan M. Paulus of Hollingshead, Paulus & Fletcher in Kansas City, (816) 581–4040.

George W. Draper III

, Judge

The Saint Louis Metropolitan Police Department (hereinafter, “SLMPD”), Steven A. Gori (hereinafter, “Sgt. Gori”), Michael A. Deeba, Sr. (hereinafter, “Lt. Deeba”), the Saint Louis Board of Police Commissioners (hereinafter, “the Board”) and its individual members (hereinafter and collectively, “Defendants”) appeal the circuit court's judgment in favor of Tanisha Ross–Paige (hereinafter, “Ross–Paige”), a former police officer. Ross–Paige alleged Defendants retaliated against her in violation of the Missouri Human Rights Act, section 213.010, et seq., RSMo 2000

,¹ after she filed a complaint of sexual harassment and retaliation with SLMPD. Defendants raise two points on appeal, alleging instructional error and juror misconduct warrant a new trial. This Court holds the circuit court erred in tendering Jury Instruction No. 8 because there was no substantial evidence to support a finding that the Board unjustly refused or delayed paying Ross–Paige's disability claim. Accordingly, this Court need not address Defendants' juror misconduct claim. The circuit court's judgment is reversed, and the cause is remanded.²

Factual and Procedural History

In 2007, Ross–Paige worked as a police officer for SLMPD in the sixth district. Sgt. Gori was one of Ross–Paige's immediate supervisors. Sgt. Gori made numerous inappropriate sexual comments toward Ross–Paige, including commenting about her body and asking her out on dates. Sgt. Gori gave Ross–Paige a mock “wanted” poster that contained her photograph, her name, an alias of “Apple Bottom,” and stated, “Subject wanted for having the ‘BADDEST BODY’ in the St. Louis area. Use extreme caution when approaching this subject. Approach this subject from behind for your protection.” The “wanted” poster was forwarded from Sgt. Gori's work e-mail account. Ross–Paige complained about the comments, telling Sgt. Gori they were unwelcome and inappropriate. However, Sgt. Gori would laugh and tell Ross–Paige that she “was in a man's position and [she] needed to deal with it.”

In 2009, Ross–Paige was transferred to the canine unit. Lt. Deeba was the commander of the canine and SWAT units. In 2011, Sgt. Gori also transferred to the canine unit and became Ross–Paige's immediate supervisor again. Sgt. Gori resumed making inappropriate sexual comments and overtures to Ross–Paige. On one occasion, Sgt. Gori told Ross–Paige that he could “push everything off of his desk and just have his way with [her]....” When Ross–Paige interacted with an openly gay female officer, Sgt. Gori asked Ross–Paige if she “switched teams on him.” Sgt. Gori stated that he assumed Ross–Paige's husband, who was a firefighter, was not “putting out the fires like he used to” but that Sgt. Gori could “handle that.”

Ross–Paige felt uncomfortable reporting Sgt. Gori's advances because she was aware of other instances in which officers were retaliated against for complaining. Sgt. Gori told Ross–Paige that if she did not do what he wanted and did not stop “being so hard,” he would have her transferred from the canine unit, she would lose her dog, and he would make her life “a living hell.” Further, Ross–Paige attended a meeting in which Lt. Deeba threatened other officers for stepping out of line. Lt. Deeba then sent out an e-mail informing the canine unit members that he would not tolerate them “throw[ing] each other under the bus” and directing them to work together and treat each other like family.

At the beginning of her shift on June 2, 2011, Ross–Paige responded to a hostage situation with her dog. After the scene was secured, Sgt. Gori reprimanded Ross–Paige for failing to report to him when she arrived and informed her that he was changing her shift. Ross–Paige became angry and argued with Sgt. Gori in the presence of other commanding officers, including Sgt. Craig Chromoga (hereinafter, “Sgt. Chromoga”), who was the acting commander at the hostage situation. When Sgt. Gori spoke to Ross–Paige later that day, he told her, “all gloves are off now,” which Ross–Paige interpreted to mean the end of her opportunities with the canine unit.

On June 3, 2011, Ross–Paige filed an “equal employment opportunity complaint form” with SLMPD's human resources department, claiming she was subject to sexual discrimination and retaliation. Ross–Paige indicated Sgt. Gori retaliated against her because she would not accept his sexual advances. Ross–Paige remained in the canine unit but began reporting to a different supervisor after filing the complaint.

On June 6, 2011, Sgt. Chromoga completed a performance observation form regarding Ross–Paige's actions during the hostage situation. The form alleged Ross–Paige committed misconduct by failing to notify her supervisor upon arrival at the scene and that she was reluctant to accept a shift change. Ross–Paige was told she needed to improve her “knowledge/compliance with rules and authority” and “communication skills.” Ross–Paige was never disciplined prior to this incident.

That same day, Ross–Paige received an e-mail from Lt. Deeba admonishing her that it was not a subordinate's job to question an order or to wonder where the sergeant is during a call. The e-mail further informed Ross–Paige that a subordinate should not be “disrespectfully insubordinate and act irrational.” Lt. Deeba informed Ross–Paige that he tries to supervise the canine unit “like a Marine Corps unit” and that he “bark[s] his orders, say[s his] piece, then we move on as a team.” The e-mail also referenced that Ross–Paige had “other issues.” Ross–Paige interpreted “other issues” as a reference to the complaint she filed against Sgt. Gori.

In mid-June 2011, Ross–Paige went on approved medical leave and returned in late September 2011. While Ross–Paige was on leave, Lt. Deeba received a report from an outside equal employment opportunity investigator that found Ross–Paige's allegations against Sgt. Gori were without merit. However, the investigator recommended that SLMPD's human resources department refer the matter to internal affairs for further action related to the “wanted” poster, that Sgt. Gori receive counseling regarding SLMPD policy and how to communicate professionally and legally with employees, and have Ross–Paige continue to report to someone other than Sgt. Gori.

Lt. Deeba subsequently sent two e-mails to his supervisors and members of the canine unit informing them that Ross–Paige's complaints were found to be without merit and requesting that Ross–Paige be transferred from the canine unit. Lt. Deeba alleged that “since the beginning of this erroneous complaint to the completion of this investigation, this officer has disrupted the operations of both SWAT and Canine.” Lt. Deeba indicated other canine unit members felt unsafe, did not trust Ross–Paige, and did not want to work with her. Lt. Deeba cited Ross–Paige's “poor work ethic” and insubordination as further grounds to be removed from the canine unit. Lt. Deeba also indicated Ross–Paige would have to complete remedial training with her dog before returning to work due to the poor upkeep of her dog while she was out on leave.

After returning to work, Ross–Paige completed four weeks of remedial training with her dog. Lt. Deeba later sent an e-mail to his supervisors and the entire canine unit prohibiting Ross–Paige from using the computers in the canine unit office.

On January 4, 2012, Ross–Paige was injured when another officer's canine attacked her during a training exercise. Ross–Paige sustained injuries to her left ankle and knee. The knee injury

required surgery. Ross–Paige required ongoing treatment for her knee injury, and she worked in SLMPD's communication department during that time. Ross–Paige's dog was kenneled, and Ross–Paige was denied permission to visit him.

In October 2012, SLMPD informed Ross–Paige that she had reached maximum medical improvement and had sustained permanent injuries that would preclude her from resuming her duties as a police officer. The letter informed Ross–Paige she would be dismissed from the officer rolls and had fifteen days to file for a “disability pension.” If Ross–Paige failed to file for a disability pension, SLMPD would file the claim on her behalf. A subsequent letter informed Ross–Paige to contact the Police Retirement System of St. Louis (hereinafter, “police retirement system”) regarding her disability pension and SLMPD's human resources department regarding long-term disability. Ross–Paige subsequently applied for a disability pension and long-term disability.

Ross–Paige filed claims with the Missouri Human Rights Commission in October and November 2012. After receiving right to sue letters, Ross–Paige filed suit under the Missouri Human Rights Act, alleging Defendants discriminated against her on the basis of sex and retaliated against her for filing an equal employment opportunity complaint.

In March 2014, the circuit court held a five-day, bifurcated jury trial. The jury found in Defendants' favor on the discrimination claim but found in Ross–Paige's favor on her retaliation claim. The jury awarded Ross–Paige $300,000 in compensatory damages and $7.2 million in punitive damages...