Wentz v. Industrial Automation

• Decision Date: 29 December 1992
• Docket Number: 60830,Nos. 60816,s. 60816
• Citation: 847 S.W.2d 877
• Parties: 3 A.D. Cases 1315, 3 NDLR P 215 Dorothy WENTZ, Appellant/Cross-Respondent, v. INDUSTRIAL AUTOMATION, Respondent/Cross-Appellant.
• Court: Missouri Court of Appeals

Page 877

847 S.W.2d 877

3 A.D. Cases 1315, 3 NDLR P 215

Dorothy WENTZ, Appellant/Cross-Respondent, v. INDUSTRIAL AUTOMATION, Respondent/Cross-Appellant.

Nos. 60816, 60830.

Missouri Court of Appeals,

Eastern District,

Division Two.

Dec. 29, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Jan. 28, 1993.

Application to Transfer Denied March 23, 1993.

Gray & Ritter, P.C., Jeffrey J. Lowe, St. Louis, for appellant/cross-respondent.

Eric Taylor & Associates, P.C., Eric Taylor, Elliott I. Goldberger, St. Louis, George E. Schaff, Clayton, for respondent/cross-appellant.

PUDLOWSKI, Judge.

Plaintiff-appellant, Dorothy Wentz, appeals, claiming the trial court's judgment awarding her $10,000 in damages and $15,000 in attorney's fees in her handicap discrimination suit is inadequate. Appellant argues, in the alternative, that the trial court abused its discretion in failing to grant appellant a new trial on the issue of damages. Respondent, Industrial Automation, Inc. (Automation), cross appeals claiming the award of attorney's fees and damages excessive. Additionally, respondent contends the verdict directing instruction used at trial misstated the law. Respondent also claims it was plain error to try a cause based on the Missouri Human Rights Act to a jury. § 213.010 et seq., RSMo 1986. Finally, respondent contests the exclusion of certain items of evidence tending to demonstrate appellant unfit for employment at Automation. Reversed and remanded.

Facts

In 1965, appellant was involved in a motorcycle accident in southern Illinois. Appellant's left leg was severed above the knee, and she was fitted with an artificial limb soon after the accident. She currently experiences only minor difficulty of movement.

In July 1987, Automation lost its office manager of 8 1/2 years and began to interview replacement candidates. One of the candidates was appellant. Automation's president, Russel Nemer, hired appellant conditionally for a two week trial period to determine her suitability for the job. Her starting salary was to be $18,000 per year with a promise that she would advance to a higher salary based on merit. Appellant's employment lasted 8 1/2 days at which point she was terminated by Russel Nemer. Appellant stated that her termination was based upon Mr. Nemer's inability to adjust to her handicap. At trial, respondent vigorously argued that appellant was terminated due to her deficient typing, handwriting, grammar, and office skills.

During 1987, appellant earned a total of $4,523.63 and worked for three different companies including Automation. Appellant claims she is entitled to $63,195 in lost wages. Appellant arrives at this figure by subtracting her total earnings after termination by Automation ($7,530) from her presumed earnings had she remained as the office manager at $18,000 per year ($70,500). The calculations were based on a period running from appellant's termination in August 1987 to a week before the July 1991 trial. Additionally, appellant's attorney claims he earned $48,534.50 in fees representing 459.65 hours of billable time spent in preparation for appellant's trial.

Shortly after her termination, appellant filed a complaint with the Missouri Commission on Human Rights. She was issued a right-to-sue letter by that body in March 1988 and commenced the instant civil suit. Appellant's case was tried to a jury in the Circuit Court of St. Louis County.

Additional facts will be developed as necessary.

Standards

In employment discrimination actions brought under the Missouri Human Rights Act, Missouri courts have adopted federal case law from Title VII cases as well as state case law interpreting analogous discrimination statutes from other jurisdictions. Midstate Oil v. Missouri Comm'n on Human Rights, 679 S.W.2d 842, 845-46 (Mo. banc 1984); Laclede Cab v. Comm'n on Human Rights, 748 S.W.2d 390, 393-94 (Mo.App.1988); Missouri Comm'n on Human Rights v. Southwestern Bell Telephone, 699 S.W.2d 75, 77-78 (Mo.App.1985). Midstate Oil, Laclede Cab, and Bell Telephone dealt with chapter 296 of the 1978 Missouri Revised Statutes. Those statutes were the predecessors of Missouri's current Human Rights Act. § 213.010 et seq., RSMo 1986. Federal case law and state case law from other jurisdictions continue to offer guidance under the current Human Rights Act. See, e.g., Pickett v. Emerson Electric, 830 S.W.2d 459, 460 n. 1 (Mo.App.1992). However, Missouri courts have departed from federal case law where that law is not in accord with the thrust of our own state's statute. Id. See generally State ex rel. Tolbert v. Sweeney, 828 S.W.2d 929 (Mo.App.1992) (finding no constitutional or statutory right to a jury trial under the Missouri Human Rights Act).

Appeal

We decline addressing appellant's points because based on respondent's cross-appeal, we are remanding the case to the trial court for a new trial.

Cross Appeal

Respondent raises four points on cross appeal. The judgment in this case was entered on July 5, 1991. Respondent filed its conditional motion for a new trial on July 22, 1991. ¹ The new trial motion conditioned its submission upon the success of either appellant's motion for a new trial on damages only or appellant's motion for additur. Because the trial court overruled both motions, respondent's new trial motion is treated as withdrawn. In order to properly preserve a point on appeal, a timely post-trial motion must be filed. Mosher v. Levering Investments, Inc., 806 S.W.2d 675, 676 (Mo. banc 1991) . Because respondent's new trial motion was withdrawn, respondent effectively failed to file a new trial motion, and we are limited to plain error review of respondent's points.

Rule 84.13(c) provides that plain error review is available whenever manifest injustice or a miscarriage of justice occurs. We believe that the trial court committed plain error in allowing a case brought under the Missouri Human Rights Act to be tried to a jury.

The current Human Rights Act became law in 1986 and replaced chapter 296. The Human Rights Act offers alternative procedures for resolution of discrimination claims. One procedure allows a claim to be heard by the Commission on Human Rights and the alternative procedure allows the claimant to request a right-to-sue letter from the Commission if after 180 days the Commission has not resolved the matter. See § 213.111.1, RSMo 1986. In the instant case, we confront a situation in which appellant obtained a right-to-sue letter and proceeded in the circuit court.

The Southern District of this court has considered the question of whether a constitutional or statutory right exists under the Missouri Human Rights Act to a trial by jury. In Tolbert v. Sweeney, 828 S.W.2d 929 (Mo.App.1992), the court held there was no constitutional or statutory right to a jury trial under the Missouri Human Rights Act. The case came before the court in the context of a writ demanding a jury trial. Id. at 930. The court concluded that even if only monetary relief is sought there was no constitutional or statutory right to a jury trial. See id. at 930-35. The Eastern District considered the question of a jury trial under the Missouri Human Rights Act in the case of Picket v. Emerson Electric, 830 S.W.2d 459 (Mo.App.1992). We extended Tolbert by holding it reversible error to try a case brought under the Missouri Human Rights Act to a jury. Id. at 460. In light of the precedent in Missouri, we now hold that it is plain error for a case brought under the Missouri Human Rights Act, even if requesting only monetary relief, to be tried to a jury and reverse and remand accordingly. ²

Respondent's next point was included in its conditional motion for a new trial. We review this point to offer guidance to the trial court upon remand. Respondent argues that pieces of evidence demonstrating appellant's predisposition to typographical errors were erroneously excluded from evidence. The evidence was excluded by the trial court because respondent's president did not see this evidence before he terminated her.

The instant case is denominated a "mixed-motives" employment discrimination case. A mixed-motives case exists when the employer arguably fired the plaintiff for legitimate reasons as well as an impermissible discriminatory reason. See Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 1791, 104 L.Ed.2d 268 (1989). Once the plaintiff has advanced evidence of discrimination in the termination decision, the employer is responsible for advancing evidence of his legitimate motive, Id. at 1787-88, but "[a]n employer may not ... prevail in a mixed-motives case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision." Id. at 1791. It follows that evidence of legitimate motive in a mixed-motives case is only relevant and therefore admissible if it was known to the employer at the time he made the decision. To hold otherwise would...