Welshans v. Boatmen's Bancshares, Inc., 62511

• Citation: 872 S.W.2d 489
• Decision Date: 18 January 1994
• Docket Number: No. 62511,62511
• Parties: 2 A.D. Cases 1855, 4 NDLR P 354 Arthur E. WELSHANS, Plaintiff-Appellant, v. BOATMEN'S BANCSHARES, INC., Defendant-Respondent.
• Court: Court of Appeal of Missouri (US)

Page 489

872 S.W.2d 489

2 A.D. Cases 1855, 4 NDLR P 354

Arthur E. WELSHANS, Plaintiff-Appellant, v. BOATMEN'S BANCSHARES, INC., Defendant-Respondent.

No. 62511.

Missouri Court of Appeals,

Eastern District,

Division Three.

Jan. 18, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Feb. 23, 1994.

Application to Transfer Denied April 26, 1994.

Anderson, Gilbert & Garvin, Francis X. Duda, St. Louis, for plaintiff-appellant.

Lewis, Rice & Fingersh, Curtis C. Calloway, John J. Moellering, St. Louis, for defendant-respondent.

PUDLOWSKI, Judge.

Appellant, Arthur Welshans, brought an action alleging respondent, Boatmen's Bancshares, Inc., discharged him because of a perceived handicap in violation of § 213.055 RSMo 1986. ¹ After a bench trial, the court entered judgment for the respondent. On appeal, appellant argues the trial court erred: 1) in entering judgment for respondent because the probative evidence demonstrated respondent discharged appellant because of a perceived handicap and there was evidence appellant's handicap was subject to accommodation; 2) in admitting and relying upon inadmissible and irrelevant evidence; and 3) to the extent the court found appellant's cause of action collaterally or judicially estopped. We affirm.

On April 27, 1987, appellant began working as a vice president in respondent's corporate investment department. Appellant's duties included, in part, measuring interest rate sensitivity, reviewing subsidiaries' balance sheets, recommending funding strategies, and development and implementation of an asset/liability computer model. Fred Byrne, a senior vice president, suggested to respondent that it hire appellant and he worked with appellant until June, 1987. Thomas Pahl, another vice president, subsequently served as appellant's supervisor until late September, 1987. Appellant spent approximately thirty to fifty percent of his time working on the computer model. He had recommended to Byrne that a computer model, developed by Morgan Stanley, be used for asset/liability management. In late September, 1987, respondent hired James Brickley as chief investment officer. In this position, Brickley directed the activities of the investment department.

Appellant began experiencing headaches on September 27, 1987, and four days later was admitted to the hospital. He was diagnosed as suffering from a cerebral aneurysm, and Dr. William Coxe, a neurosurgeon, performed a bifrontal craniotomy on October 5, 1987. After the surgery, appellant exhibited confusion and severe memory loss. Sometime in October and after the surgery, Brickley visited appellant at the hospital. During this visit, appellant made certain remarks which indicated he was confused about his condition. The same or following day Brickley allegedly told Pahl "he's [referring to appellant] never going to make it back here." ²

Dr. Bruce Crosson, a neuropsychologist, evaluated appellant in early November, 1987. Dr. Crosson served as the director of the Head Injury Resource Center for the Irene Walter Johnson Rehabilitation Institute (Institute). Dr. Crosson found appellant's memory deficit so severe that he could only orient to person but not to place and time. Appellant could recall he had an aneurysm and operation, but was confused regarding where and when these events occurred.

Appellant was discharged from the hospital on November 20, 1987, and began treatment as an outpatient at the Institute. His treatment included, in part, occupational therapy and learning compensation techniques for his diminished memory. In January, 1988, he applied for long-term disability benefits pursuant to respondent's insurance plan. Appellant received these benefits through the time of trial.

Dr. Crosson evaluated appellant again in late January, 1988. According to Dr. Crosson, appellant still suffered from a gross memory impairment, difficulties in problem solving, and some subtle signs of frontal lobe dysfunction. In March, 1988, the Institute's staff evaluated appellant for possible participation in a comprehensive day treatment program. As part of the evaluation, Diane Werts, a vocational rehabilitation counselor, discussed with appellant his previous job duties. The staff prepared reports which indicated that appellant still suffered from memory problems.

On April 20, 1988, Dr. Crosson wrote Dr. Coxe summarizing the March evaluation. Dr. Crosson asserted that appellant's memory problems continued and were likely to cause appellant difficulty in his vocational functioning. Dr. Crosson also asserted that appellant's other difficulties included deficits in problem solving, visual intellectual functioning, impulsivity, and attention. Dr. Crosson expressed concern that appellant did not see his memory difficulties as a significant problem despite the fact he "remembers less than one quarter of what an average high school graduate would remember in long-term memory on testing." The Institute's staff believed appellant would benefit from the program but he declined to participate in any further treatment.

After leaving the hospital, appellant continued to be treated by Dr. Coxe. On April 16, 1988, Dr. Coxe examined appellant primarily for the purpose of determining if appellant could return to work. Ten days later, appellant notified Patti Dower, an employee in respondent's human resources department, that he would be medically released to return to work as of May 2, 1988. Dower then called Brickley who stated that appellant's position had been eliminated. Brickley also stated there was an open position, but he did not feel appellant was qualified to fill it. At appellant's request, Dr. Coxe sent a letter to Dower on May 12, 1988. In this letter, Dr. Coxe approved appellant's return to work provided appellant discussed his memory problems with respondent. Dr. Coxe also wrote that the Institute's staff was concerned about appellant's memory problems.

In late May, 1988, appellant met with Brickley and was informed that his job no longer existed. The investment department had been restructured under Brickley's direction. At some point Brickley had decided not to use the Morgan Stanley computer model but when this occurred is disputed by the parties. Appellant also met with John Wells, a senior vice president in respondent's human resources department, to ascertain whether there were any jobs available outside the investment department. Appellant never told anyone that he had any memory problems or required any accommodation to perform his job. On June 7, 1988, Wells wrote appellant informing him there were no suitable job openings at that time. Wells also asserted that appellant's long-term disability benefits would cease because Dr. Coxe had released appellant to return to work. On July 1, 1988, Dr. Coxe wrote respondent stating that the May 12th letter was not intended as an "unqualified release to return to work" or that appellant had recovered, but rather that appellant could return to work only with the advice and consent of respondent. Appellant's benefits were not interrupted. Respondent formally terminated appellant on September 25, 1988.

In January, 1988, appellant had applied for Social Security disability benefits. Appellant certified in October, 1988 he was unable to work because of his memory problems. The Social Security Administration contracted with Dr. F. Timothy Leonberger, a neuropsychologist, to evaluate appellant. Dr. Leonberger evaluated appellant on November 17, 1988, and in a subsequent report stated appellant demonstrated a "severe deficit in memory functioning" and that it was "very doubtful" whether appellant could return to his former career. The Social Security Administration initially denied benefits but an administrative law judge subsequently found appellant unable to perform his past relevant work and awarded benefits.

In December, 1988, appellant filed a claim with the Missouri Commission on Human Rights alleging respondent terminated him because of a perceived handicap. Appellant claimed he requested to return to work in April and May, 1988, had recovered from his aneurysm, and was able to perform his job duties. The Commission issued appellant a notice of right to sue on October 2, 1989. Appellant filed his petition on December 29, 1989 within the statutory ninety day period as provided in § 213.111 RSMo Cum.Supp.1992.

After a bench trial, the court entered findings of fact and conclusions of law. The trial court found appellant was the only person to assert he could perform his former job duties. The court did not find appellant credible on this issue. The court also found that while appellant was seeking and receiving long-term and Social Security disability benefits he repeatedly signed statements indicating he was unable to work. The court concluded that appellant failed to prove he had a protected handicap or that respondent's reason for appellant's discharge, the investment department's restructuring, was a pretext for handicap discrimination. The court subsequently concluded appellant failed to prove the necessary elements for a handicap discrimination action.

In a court tried case, the trial court's judgment will be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. We defer to the trial court's resolution of witness credibility, Rule 73.01(c)(2), and only consider those facts and inferences favorable to the prevailing party. Heigert v. Londell Manor, Inc., 834 S.W.2d 858, 863 (Mo.App.E.D.1993).

It is an unlawful employment practice for an employer to discriminate against or discharge an employee because of a handicap. § 213.055. The essential elements of a prima facie case of handicap discrimination under § 213.055 are: 1) the plaintiff is a member of a protected class because he/she is handicapped under the act; 2) the plaintiff was discharged; and 3) there...