Vaughan v. Taft Broadcasting Co.

• Decision Date: 15 April 1986
• Docket Number: No. 67424,67424
• Parties: 106 Lab.Cas. P 55,762 Joe H. VAUGHAN, Plaintiff-Respondent, v. TAFT BROADCASTING COMPANY, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 656

708 S.W.2d 656

106 Lab.Cas. P 55,762

Joe H. VAUGHAN, Plaintiff-Respondent, v. TAFT BROADCASTING COMPANY, Defendant-Appellant.

No. 67424.

Supreme Court of Missouri,

En Banc.

April 15, 1986.

John R. Cleary, Jeffrey D. Fridkin, Kansas City, for defendant-appellant.

G. Stephen Long, Thomas J. Whittaker, William E. Quirk, Kansas City, for plaintiff-respondent.

HIGGINS, Chief Justice.

Plaintiff, Joe Vaughan, sued Taft Broadcasting Company, owner of WDAF radio station, alleging violation of the service letter statute, section 290.140, RSMo 1978. The jury awarded plaintiff $1.00 in actual damages and $173,670.83 in punitive damages; the Court of Appeals, Western District, affirmed. This Court transferred the case to determine whether plaintiff can recover actual and punitive damages under the service letter statute. Judgment for actual damages affirmed; judgment for punitive damages reversed.

Appellant contends: (1) the trial court erred in submitting a punitive damages instruction because section 290.140(2), RSMo Cum.Supp.1982, denies recovery for punitive damages; (2) the trial court erred in submitting a punitive damages instruction because there was not substantial evidence of malice; (3) the verdict for punitive damages was excessive and the result of bias and prejudice; (4) the jury verdict for punitive damages was improper because it resulted from an agreement to be bound by a quotient verdict; (5) the trial court erred in admitting a letter into evidence because it was prejudicial; (6) the trial court erred in denying defendant's motion for a directed verdict because there was insufficient evidence that the service letter did not correctly state the true cause of plaintiff's termination; and (7) the trial court erred in allowing defendant to argue as substantive evidence in closing argument deposition testimony used to refresh recollection.

Plaintiff was first employed by defendant in the summer of 1976 as a part-time employee filling in for various employees. Plaintiff was doing on-air broadcasting and had other duties connected with the radio station. During this time, plaintiff received positive comments from management regarding his performance.

In May of 1978, plaintiff was offered a full-time position with WDAF. Plaintiff had been eager to become full time and immediately accepted the offer. Plaintiff's manager, Charles Gray, told him to keep quiet about becoming full time because the next person hired at WDAF needed to be black in order to meet EEOC requirements. In order to meet EEOC requirements, Gray prepared a recruitment source log detailing the twelve people he had interviewed for the position, even though the job had been filled. On June 16, 1978, Gray issued a memorandum stating, "After interviewing many applicants for the job, it became quite obvious that the best and most qualified candidate was right here in the building."

After becoming full time, plaintiff was not advised of any dissatisfaction with his performance. To the contrary, WDAF used plaintiff's coverage of a cave-in during construction of the Hyatt-Regency Hotel to promote its radio station. In addition, WDAF filmed a television commercial touting its news staff, including plaintiff.

Defendant's FCC license was scheduled for renewal in 1980; its renewal application was to be filed by October 1979. Defendant understood that the FCC could use the station's EEO hiring practices to deny the license renewal and that hiring a black would help the station meet EEOC guidelines.

In November 1978, the Missouri Commission on Human Rights began an investigation into hiring practices at Kansas City radio and television stations. The Commission wished to meet with defendant's management; however, defendant refused to meet with the Commission until June 1979. ¹

In February 1979, Ted Griffin, Executive Vice President of the Missouri Broadcasters Association (MBA), circulated a letter to all Kansas City MBA stations, including WDAF. The letter advised the stations that the Human Rights Commission planned to evaluate employment practices and that although he had tried to convince the Commission there was no problem at the Kansas City stations, the Commission refused to back down from its investigation. Griffin also stated he thought the broadcasters would have a problem at license renewal time.

On March 28, 1979, Gray told plaintiff that he was no longer employed at WDAF because Gray did not like his "air sound." Gray and David Martin, the general manager of WDAF, testified they decided to fire plaintiff in November of 1978 because he was performing inadequately. In December of 1978, Gray began recruiting Cecil Hickman, a black newsman with radio station KCMO. The effort to recruit Hickman failed initially; but after defendant increased the salary offer and guaranteed Hickman a raise in six months, he accepted the position. No other person on the staff had ever been offered a guaranteed pay increase. Gray documented his recruitment efforts in a memorandum to offer proof to the government that WDAF was trying to hire a black reporter.

Following his termination, plaintiff requested Gray to write a letter stating his employment to show a potential future employer. After an inadequate response by Gray and a second request by plaintiff, Gray wrote to plaintiff stating he would prefer to respond to specific inquiries from prospective employers. On June 4, plaintiff again wrote Gray and Martin requesting a letter setting forth the three areas covered by the service letter statute. On June 19, 1979, Gray wrote a letter stating that plaintiff had been employed by WDAF from June 19, 1978, to March 28, 1979. ² The letter listed plaintiff's duties and stated that he had been terminated because he had not adequately responded to emergency situations and that defendant was dissatisfied with plaintiff's performance of air duties.

Plaintiff filed his action in April of 1980 alleging defendant had not stated the true cause for his termination in the service letter. Judgment in his favor was entered in November of 1983.

Appellant asserts that the trial court erred in submitting an instruction on punitive damages because the service letter statute specifically denies recovery of punitive damages in plaintiff's situation.

The service letter statute was originally enacted in 1905 to remedy the evil of blacklisting of employees by railways and other corporations. Cheek v. Prudential Insurance Co., 192 S.W. 387 (Mo.1917). Although the statute itself did not specifically create a private cause of action in the employee, the Court in Cheek reasoned that since the duty imposed by the statute was for the benefit of a class of individuals as well as the public good, a right of action would be given to any member of the class damaged by a breach of that duty. Id. at 389. Punitive damages could be awarded although the recovery of actual damages be nominal. State ex rel. St. Joseph Belt Railway Co. v. Shain, 341 Mo. 733, 108 S.W.2d 351, 356 (1937).

In 1982, section 290.140 was amended and reads as follows:

290.140. Letter of dismissal, when--failure to issue, damages--punitive damages, limitations.--1. Whenever any employee of any corporation doing business in this state and which employs seven or more employees, who shall have been in the service of said corporation for a period of at least ninety days, shall be discharged or voluntarily quit the service of such corporation and who thereafter within a reasonable period of time, but not later than one year following the date the employee was discharged or voluntarily quit, requests in writing by certified mail to the superintendent, manager or registered agent of said corporation, with specific reference to the statute, it shall be the duty of the superintendent or manager of said corporation to issue to such employee, within forty-five days after the receipt of such request, a letter, duly signed by such superintendent or manager, setting forth the nature and character of service rendered by such employee to such corporation and the duration thereof, and truly stating for what cause, if any, such employee was discharged or voluntarily quit such service.

2. Any corporation which violates the provisions of subsection 1 of this section shall be liable for compensatory but not punitive damages but in the event that the evidence establishes that the employer did not issue the requested letter, said employer may be liable for nominal and punitive damages; but no award of punitive damages under this section shall be based upon the content of any such letter.

(Emphasis added.)

Appellant contends the 1982 statute applies to this case and prevents an award of punitive damages. Respondent argues the 1982 statute does not apply because his cause of action accrued and his case was filed prior to the effective date, August 13, 1982, of the amended service letter statute.

Appellant contends that section 1.160, RSMo 1978, governs this issue because section 290.140 has been construed to be a penal statute. See Barrows v. Riss & Co., 238 Mo.App. 334, 179 S.W.2d 473 (1944); Walker v. St. Joseph Belt Railway Co., 102 S.W.2d 718 (Mo.App.1937). Section 1.160 provides:

1.160. Effect of repeal of penal statute.--No offense committed and no fine, penalty or forfeiture incurred, or prosecution commenced or pending previous to or at the time when any statutory provision is repealed or amended, shall be affected by the repeal or amendment, but the trial and punishment of all such offenses, and the recovery of the fines, penalties or forfeitures shall be had, in all respects, as if the provision had not been repealed or amended, except (1) that all such proceedings shall be conducted according to existing laws; and (2) that if the penalty or punishment for any offense is reduced or lessened by any alteration of the law creating the offense, the penalty or punishment shall be assessed according to the amendatory...