negligence is to be determined," Hiett v. Dir. of Revenue, 899 S.W.2d 870, 873 (Mo. banc 1995), the "good faith" defense to punitive damages is unavailable in third-party harassment actions premised on negligence. In this case, Diaz has sued Defendants under a negligence theory, arguing that the harassment by Mark and Jimmy created a hostile work environment, that Defendants knew or should have known of the harassment, and that they failed to take prompt and effective remedial action. Diaz further argued that she was entitled to punitive damages because the Defendants acted with evil motive or in reckless disregard of Diaz's rights. Because her action is based in negligence, neither the Burlington affirmative defense nor the Kolstad "good faith" defense is applicable. The sole questions pertaining to liability are whether the Defendants knew of the harassment and, if so, whether they responded promptly and effectively; and if there is liability
13 for compensatory damages, whether the heightened mental state is present to support an award of punitive damages. B. AutoZone, Inc., was not Diaz's employer (Defendants' Points I, V, and VII). In their first point on appeal, Defendants argue that AutoZone, Inc., had no liability whatsoever because it was not Diaz's employer for purposes of the MHRA. 13 We agree. The MHRA defines "employer" as "any person [14] employing six or more persons within the state, and any person directly acting in the interest of an employer." § 213.010(7). Though we are guided by federal Title VII cases, we also recognize that "[t]he Missouri legislature chose to employ language within the MHRA definition of 'employer' that is broader in scope than that found in Title VII." Cooper v. Albacore Holdings, Inc., 204 S.W.3d 238, 244 (Mo. App. E.D. 2006). Defendants argue that AutoZone, Inc., did not meet the definition of employer because it has no employees, is not licensed to do business in Missouri, and does not directly act in the interest of AutoZoners, LLC. Diaz counters that AutoZone, Inc., did directly act in the interest of AutoZoners, LLC, and therefore was an employer under the MHRA. In support of her argument, Diaz claims that AutoZone, Inc., engaged in certain acts that benefitted AutoZoners, LLC, and she claims that AutoZone, Inc., and AutoZoners, LLC, were "joint employers," such that both are liable. To begin, the parties agree that AutoZoners, LLC, is an employer under the MHRA. They also agree that AutoZone, Inc., does not meet the definition of "employer" insofar as it does not employ six or more persons within the state. They disagree, however, as to whether
13 Because Defendants raise this point as a challenge to the sufficiency of the evidence, we review the claim de novo, accepting all facts and reasonable inferences in the light most favorable to the verdicts. Blanks v. Fluor Corp., 450 S.W.3d 308, 364-65 (Mo. App. E.D. 2014). 14 "Person" is defined as "one or more individuals, corporations, partnerships, associations, organizations, labor organizations, legal representatives, mutual companies, joint stock companies, trusts, trustees, trustees in bankruptcy, receivers, fiduciaries, or other organized groups of persons." § 213.010(14).
14 AutoZone, Inc., can be considered a "person directly acting in the interest of an employer," with that employer being AutoZoners, LLC. "Person" for purposes of the "directly acting in the interest of an employer" provision of the MHRA, is defined to include both individuals and corporations. § 213.010(14). Courts have held that "the plain and unambiguous language under this definition of employer imposes individual liability in the event of discriminatory conduct," Reed v. McDonald's Corp., 363 S.W.3d 134, 139 (Mo. App. E.D. 2012), but only "when the individuals directly oversaw or were actively involved in the discriminatory conduct." Id. We have found no Missouri cases applying the "directly acting in the interest of" definition outside the context of a supervisory employee. See, e.g., Hill v. Ford Motor Co., 277 S.W.3d 659, 669 (Mo. banc 2009); Reed, 363 S.W.3d at 139; Leeper v. Scorpio Supply IV, LLC, 351 S.W.3d 784, 792 (Mo. App. S.D. 2011). Here, Diaz seeks to apply the definition to the parent corporation of her employer. 15 In doing so, Diaz argues that—contrary to our prior cases involving individuals—she need not prove that AutoZone, Inc., directly oversaw or was actively involved in the discriminatory conduct. Instead, she argues that a corporation can be deemed an employer for purposes of the MHRA if it "act[ed] on behalf" of the employer-in-fact corporation in any way. We disagree. In her brief, Diaz presents what she deems alternative theories to support her argument that AutoZone, Inc., directly acted in the interests of AutoZoners, LLC. She first argues that AutoZone, Inc., took direct actions benefitting AutoZoners, LLC, and thereby became a statutory employer. She then argues that, under federal employment law cases, AutoZone, Inc., could be deemed to be acting in the interests of AutoZoners, LLC, because they were "joint employers." 16
15 "[A] parent corporation is normally not liable for the acts of its subsidiary corporations." Blanks, 450 S.W.3d at 375. "The mere existence of a parent-subsidiary relationship, without more, does not subject a parent corporation to liability for the acts of the subsidiary." Id. 16 The verdict-director provided to the jury regarding AutoZone, Inc.'s liability required the jury to find that "AutoZone, Inc. was an employer of plaintiff in the actions alleged in paragraphs second through fifth." It also
15 Though she presents these as alternative arguments, they are really one in the same because Missouri uses only one multi-factor test when determining whether a particular work relationship constitutes an employment one. And that test requires more than simply acting on behalf of the employer-in-fact. 17
"In cases involving multiple alleged employers, Missouri courts have utilized several factors to ascertain whether a particular work relationship qualifies as an employer-employee relationship . . . ." Tolentino v. Starwood Hotels & Resorts Worldwide, Inc., 437 S.W.3d 754, 758 (Mo. banc 2014) (analyzing whether the defendant constituted the plaintiff's employer for purposes of the Missouri Minimum Wage Law (MMWL)). 18 This test is generally known as the "economic realities" test. Much like the definition in the MHRA, under the MMWL, "[a]n 'employer' is 'any person acting directly or indirectly in the interest of an employer in relation to an employee.'" 19 Id. at 757 (quoting § 290.500(4)). There are five factors courts generally look to in the economic realities test: (1) who has the power to hire and fire the worker; (2) who supervises and controls the worker's work schedule and conditions of work; (3) who determines the rate and method of payment of the worker; (4) who maintains work records; and (5) whether the alleged employers' premises and equipment were used for the plaintiff's work.
indicated that "[t]he phrase, 'employer' as used in this Instruction includes a corporation who directly acts in the interest of an employer." Neither the term, "joint employer," nor any of the factors associated with the doctrine are identified anywhere within the instructions. Under federal law, the joint employer doctrine is a means by which "an entity other than an employee's formal employer can be held liable . . . because the two entities 'handle certain aspects of their employer-employee relationship jointly.'" Shiflett v. Scores Holding Co., Inc., 601 Fed. Appx. 28, 30 (2d Cir. 2015) (quoting Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d 193, 198 (2d Cir. 2005)). Under this doctrine, "a court may conclude that 'the employee is . . . constructively employed by' the defendant." Id. (quoting Arculeo, 425 F.3d at 198). 17 The MHRA does not use the language, acting "on behalf" of; the language used is "directly acting in the interests of." § 213.010(7). To the extent Diaz is attempting to articulate a less stringent standard, that argument is rejected. 18 In Tolentino, the Missouri Supreme Court was asked to apply the "joint employer" doctrine to the MMWL claim. Tolentino v. Starwood Hotels & Resorts Worldwide, Inc., 437 S.W.3d 754, 757 (Mo. banc 2014). Though Diaz argues that the Supreme Court adopted the "joint employer" doctrine, the Court did not actually address it other than to note that "[t]he MMWL does not use or define the term 'joint employer.'" Id. 19 Arguably, the MMWL is broader, given that it also covers those acting indirectly in the interest of an employer, while the MHRA covers only individuals acting directly in the interests of the employer. But this is a question we need not answer.
16
Id. at 758. Though these factors are highly relevant to MMWL claims, they are less relevant to MHRA claims, and they fail to account for the requirement that one "directly acting in the interests of an employer" must either directly oversee or be actively involved in the discriminatory conduct. See Hill, 277 S.W.3d at 669; Reed, 363 S.W.3d at 139; Leeper, 351 S.W.3d at 792-93. Accordingly, when applying the economic realities test in the context of the MHRA, it must be modified to account for the statutory requirement that an entity that is not the employer-in-fact "directly act[s] in the interest of" the employer-in-fact. § 213.010(7). Under the modified version, the court should consider the following factors: (1) who was responsible for establishing policies and training employees concerning harassment; (2) who was responsible for receiving, investigating, and responding to harassment complaints; and (3) who had the power to discipline employees who may have failed to comply with anti-harassment policies. These factors are relevant to determining whether an entity may be properly considered an "employer" for purposes of the MHRA, because it is only when these factors are present that an entity can be deemed to be "directly acting in the interest of an employer," as that phrase has been interpreted in prior cases. To support her claim that AutoZone, Inc., was directly acting in the interest of AutoZoners, LLC, Diaz asserts that there was sufficient evidence from which the jury could have concluded that: (1) AutoZone, Inc., was the public face of the enterprise as a whole; (2) AutoZone, Inc., provided AutoZoners, LLC, with the Store Handbook and Code of Conduct, which was provided to every employee during orientation; (3) AutoZone, Inc., provided the documents used for human resource and loss prevention investigations; (4) AutoZone, Inc., responded to Diaz's charge of discrimination; and (5) AutoZone, Inc., was responsible for an
17 unwritten rule of nonenforcement of the anti-harassment policy when the alleged harassers were customers of the business. None of these allegations demonstrate that AutoZone, Inc., was Diaz's employer. First, simply being the public face of the enterprise, as a whole, does not demonstrate that AutoZone, Inc., either directly oversaw or was actively involved in the discrimination insofar as it does not show that AutoZone, Inc.: (1) was responsible for establishing policies or training employees; (2) was responsible for the receipt, investigation, and response to harassment claims; or (3) had the power to discipline noncompliant employees. Thus, the simple fact that AutoZone, Inc., was the public face of the enterprise does not support Diaz's argument that AutoZone, Inc., was her employer. Likewise, the provision of either the Store Handbook and Code of Conduct, or the various human resources and loss prevention documents, in and of itself, does not make AutoZone, Inc., Diaz's employer because—again—it does not establish that AutoZone, Inc., either directly oversaw or was actively involved in the discrimination. Though it may support a determination that AutoZone, Inc., was responsible for establishing policies, it does not demonstrate that AutoZone, Inc., was responsible for training employees; receiving, investigating, and responding to complaints; or disciplining noncompliant employees. And the simple provision of training manuals has been held insufficient to establish employer status. See, e.g., Conrad v. Waffle House, Inc., 351 S.W.3d 813 (Mo. App. S.D. 2011) (rejecting, as "misguided," the argument that the provision of a training manual by a franchisor to a franchisee rendered the franchisor an employer for purposes of the MMWL); 20 In re Enterprise Rent-A-Car
20 In Conrad v. Waffle House, Inc., 351 S.W.3d 813 (Mo. App. S.D. 2011), the Southern District, explained its rationale, noting that:
A franchisor does have a legitimate interest in retaining some degree of control in order to protect the integrity of its marks; however, the existence of those requirements does not necessarily mean
18 Wage & Hour Employment Practices Litigation, 683 F.3d 462, 466, 471 (3d Cir. 2012) (rejecting claim that corporate holding company was the plaintiff's employer under the Fair Labor Standards Act, 29 U.S.C. § 207, merely because it provided guidelines and manuals to its subsidiaries); Schlotzsky's, Inc. v. Hyde, 538 S.E.2d 561, 562 (Ga. App. 2000) (rejecting argument that the provision of an operations manual rendered franchisor liable for acts of franchisee). Furthermore, the fact that AutoZone, Inc., responded to Diaz's charge of discrimination—after the harassment occurred and had been remedied—does not establish that AutoZone, Inc., was Diaz's employer at the time of the harassment or that it directly oversaw or was actively involved in the discrimination, as outlined in the modified economic realities test laid out above. See Eckert v. Schroeder, Joseph & Assoc., 364 F. Supp. 2d 326, 327-28 (W.D. N.Y. 2005) (rejecting claim that attorneys retained to represent employer in litigation brought by former employee under FMLA were "person[s] who act[], directly or indirectly, in the interest of an employer"); Conrad, 351 S.W.3d at 821 (rejecting the argument that franchisor became the plaintiff's employer under the MMWL once it took over the franchisee's operation a year and a half after the plaintiff resigned because the ability to terminate a franchise agreement was in no way related to whether the franchisor maintained control over the plaintiff's schedule or conditions of employment).
a franchisor has a role in supervising and controlling an employee's work schedule or conditions of employment to qualify the franchisor as a statutory employer. In fact, various courts considering the economic real[i]ties test have found that when a franchisor retains certain rights— such as the right to enforce standards, the right to terminate the agreement for failure to meet standards, the right to inspect the premises, the right to require that franchisees undergo certain training, or the mere making of suggestions and recommendations—along with actions taken to enforce those rights, did not amount to sufficient control to subject the franchisor to liability for franchisee's actions.
Id. at 821-22. Here, though AutoZone is not a franchise establishment, the same rationale applies. AutoZone, Inc., is a copyrighted name that represents the public face of AutoZone establishments. Thus, it has an interest in protecting the integrity of the AutoZone name and associated standards, as well as maintaining a consistency across its various subsidiaries.
19 Only one of Diaz's assertions regarding the conduct of AutoZone, Inc., could be characterized as having anything to do with oversight or involvement in the discrimination, and that is the allegation that AutoZone, Inc., was responsible for an unwritten rule of nonenforcement of the anti-harassment policy when the alleged harassers were customers of the business. Though this allegation suggests that AutoZone, Inc., was responsible for policies and training, as well as receipt, investigation, and responding to complaints, this assertion was not supported by the evidence presented at trial. To the extent the evidence may have supported the existence of an unwritten policy, there was no evidence presented connecting AutoZone, Inc., to such a policy. Rather than attempt to apply the relevant factors identified above, Diaz identifies different factors, which she claims are relevant for determining whether two separate entities may be considered "joint employers." She argues that the following four factors are relevant to the determination: "(1) the degree of interrelation between the operations of the entities in question; (2) the degree to which those entities share common management; (3) the degree of centralized control of labor relations as between those entities; and (4) the degree of common ownership or financial control of the entities." The factors Diaz cites, however, are not relevant to the "joint employer" test. Rather, they are factors used for the "single employer" test, where "'superficially distinct entities may be exposed to liability upon a finding they represent a single, integrated enterprise: a single employer.'" Schweitzer v. Advanced Telemarketing Corp., 104 F.3d 761, 763 (5th Cir. 1997) (quoting Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir. 1983)). We have found no Missouri case recognizing or applying the "single employer" doctrine. In fact, it appears that Missouri recognizes only "two doctrines by which to hold a parent corporation liable for the acts of a subsidiary: piercing the corporate veil and agency." Blanks v. Fluor Corp., 450 S.W.3d
20 308, 374 (Mo. App. E.D. 2014). And neither doctrine can properly be characterized as the "joint employer" test Diaz suggests we apply. 21
In Missouri, "two separate corporations are regarded as wholly distinct legal entities, even if one partly or wholly owns the other." Id. at 375. "[T]he parent-subsidiary separation should be 'ignored with caution and only when the circumstances clearly justify it.'" Id. at 376 (quoting Doe 1631 v. Quest Diagnostics, Inc., 395 S.W.3d 8, 18 (Mo. banc 2013)). 22 Here, Diaz has failed not only to apply the factors relevant to the employer analysis but also to cite any factors relevant to either of the recognized Missouri doctrines used to hold a parent corporation liable for the acts of its subsidiary. Thus, she has wholly failed to meet her burden of proving that AutoZone, Inc., was an employer for purposes of the MHRA.
21 Furthermore, there was no instruction given to the jury laying out the factors Diaz now relies upon for AutoZone, Inc.'s liability. 22 Numerous federal cases have refused to find mere holding companies, like AutoZone, Inc., liable as employers under various federal employment laws. See, e.g., Sobelman v. Commerce Bancshares, Inc., 444 F. Supp. 84, 85 (E.D. Mo. 1977) (ADEA; finding no significance to the fact that the plaintiff was covered in a benefit plan in the name of the holding company); Williams v. Asbury Auto. Grp., Inc., 998 F. Supp. 2d 769, 783 (E.D. Ark. 2014) (ADEA); Dollman v. Mast Indus., Inc., 731 F. Supp. 2d 328, 341 (S.D. N.Y. 2010) (dismissed holding company from Title VII and Pregnancy Discrimination Act case); Heinrich v. Serv. Corp. Int'l, 2009 WL 2177229, *3-5 (W.D. Pa. July 22, 2009) (finding no personal jurisdiction over holding company in FMLA action; rejecting arguments based upon use of a common trademark/logo, common employee handbook, and common human resources management); Cooper v. Southern Co., 260 F. Supp. 2d 1258, 1262 n.1 (N.D. Ga. 2003) (finding existence of company-wide human resources department "irrelevant" in Title VII and § 1981 case); Bass v. Lifecare Holdings, Inc., 2000 WL 377815, *3-5 (E.D. La. April 12, 2000) (Title VII and Louisiana anti-discrimination law; "Common management and ownership between a corporation and its subsidiaries 'are ordinary aspects of a parent-subsidiary relationship' and are insufficient by themselves to establish single employer status." (quoting Lusk v. FoxMeyer Health Corp., 129 F.3d 773, 778 (5th Cir. 1997))); Mitchell v. Abercrombie & Fitch, Co., 428 F. Supp. 2d 725, 744-45 (S.D. Ohio 2006) (Fair Labor Standards Act); Rudy v. Walter Coke, Inc., 21 F. Supp. 3d 1228, 1235-36 (N.D. Ala. 2014) (finding holding company not to be employer under either FMLA or ERISA); In re Enterprise Rent-A-Car Wage & Hour Employment Practices Litigation, 683 F.3d 462, 466, 471 (3d Cir. 2012) (rejecting claim that corporate holding company was the plaintiff's employer for purposes of FLSA merely because it provided guidelines and manuals to its subsidiaries); but see Jones v. FMSC Leasehold, LLC, 2009 WL 1663967, *2-3 (W.D. Tenn. June 12, 2009) (finding holding company liable under FLSA because holding company identified itself as plaintiff's employer on plaintiff's W-2 tax form).
21 Because Diaz failed to prove that AutoZone, Inc., was her employer, Defendants' Point I is granted. The verdict and judgments rendered against AutoZone, Inc., are hereby reversed. In light of this disposition, we need not reach Defendants' Points V and VII. 23
C. Diaz made a submissible case for sexual harassment (Defendant's Points II and III). Defendants challenge the trial court's determination that Diaz made a submissible claim for sexual harassment. A party alleging sexual harassment is tasked with establishing that: (1) she was a member of a protected class; (2) she was subjected to unwelcome sexual harassment; (3) the harassment was based on her sex; (4) this harassment affected a term, condition, or privilege of employment in a manner sufficiently severe to create an abusive work environment and (5) [the employer] knew or should have known of the harassment and failed to take proper remedial action.
Lynn v. TNT Logistics N. Am. Inc., 275 S.W.3d 304, 308 (Mo. App. W.D. 2008). Defendants challenge only the fourth and fifth elements, arguing that Diaz did not prove that the harassment was sufficient to affect a term, condition, or privilege of her employment (Point II), or that AutoZoners, LLC, was aware of the harassment and failed to take prompt action when made aware (Point III). 24
The harassment affected a term, condition, or privilege of Diaz's employment. Defendants argue that Diaz failed to prove that any harassment that took place was sufficient to affect a term, condition, or privilege of her employment, in that she continued to successfully perform her job, did not require a leave of absence due to the conduct, and only
23 In Defendants' Point V, they argue that the court erred in denying their motion for judgment notwithstanding the verdict on the ground that there was insufficient evidence to support a punitive damage award against AutoZone, Inc. In their Point VII, they argue that the court erred in denying their motion for new trial in that the verdict forms failed to identify specific conduct warranting punitive damages attributable to AutoZone, Inc., that differed from the conduct of AutoZoners, LLC. Because AutoZone, Inc., was not Diaz's employer, it cannot be held liable on Diaz's claims for either compensatory or punitive damages. Further, in addressing other points, we will refer to arguments made by the "defendants" because the arguments were made to this court by both AutoZoners, LLC, and AutoZone, Inc. However, the remainder of these points are relevant only to AutoZoners, LLC, as AutoZone, Inc., is not subject to liability. 24 "We review the denial of a motion for directed verdict by reviewing the evidence and all permissible inferences in the light most favorable to the plaintiff, and by disregarding contrary evidence and inferences." Poloski v. Wal-Mart Stores, Inc., 68 S.W.3d 445, 448 (Mo. App. W.D. 2001).
22 sought medical treatment for symptoms arising from the harassment on a single occasion, and then only after she was transferred to a different store. The primary flaw in Defendants' argument is that it overstates Diaz's burden to prove that the harassment affected a term or condition of the employment. Defendants imply that, absent a showing that Diaz's work performance dropped precipitously, or that she missed substantial work, she cannot show that harassment affected a term, condition, or privilege of her employment. This is not the case. "Sexual harassment creates a hostile work environment when sexual conduct either creates an intimidating, hostile, or offensive work environment or has the purpose or effect of unreasonably interfering with an individual's work performance." Lynn, 275 S.W.3d at 308 (emphasis added) (quoting Barekman v. City of Republic, 232 S.W.3d 675, 679 (Mo. App. S.D. 2007)); 8 C.S.R. § 60-3.040(17)(A)3 ("conduct of a sexual nature constitute[s] sexual harassment when . . . [s]uch conduct has the . . . effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment"). In a hostile work environment case, the question is "whether a reasonable person would objectively consider [the] behavior . . . severe enough to alter the conditions of her employment and create an abusive working environment." Cooper v. Albacore Holdings, Inc., 204 S.W.3d 238, 245 (Mo. App. E.D. 2006). In order to meet this standard, "[t]he conduct must be sufficient to create a hostile work environment, both as it was subjectively viewed by the plaintiff and as it would be objectively viewed by a reasonable person." Id. at 244-45. "Once evidence of 'improper conduct and subjective offense' is introduced, it is largely up to the jury to determine if the conduct rose to the level of being abusive." Lynn, 275 S.W.3d at 308. It is clear that Diaz's evidence as to AutoZoners, LLC, demonstrated both improper conduct and subjective offense. Diaz testified to conduct that went "beyond [] harmless
23 comments or boorish conduct." Id. It included repeated harassment that bordered on sexual assault, which the jury could have concluded was ignored when reported to AutoZoners, LLC. See infra. Accordingly, the jury was entitled to conclude, as it did, that the conduct created an intimidating, hostile, or offensive working environment, meeting the standard for this element. Diaz also testified to the subjective effects that the conduct had on her. We are unaware of any standard requiring, as Defendants propose, that the harassment must require multiple trips to a doctor and repeatedly missing work. Nevertheless, Diaz did see a doctor, either while she was at, or mere days after leaving, the Truman Road location. Her doctor prescribed antidepressants due to the stress caused by the harassment. And Diaz testified that she "cried a lot, had really bad headaches, . . . got sick from being stressed all the time," that her "hair started falling out by the handfuls," and that Diaz's daughter walked into Diaz's room to find her cutting herself. These subjective manifestations were certainly sufficient for the jury to conclude that Diaz was negatively affected by the hostile workplace environment. AutoZoners, LLC, knew or should have known about the harassment and did not take prompt action.
Defendants next argue that Diaz failed to prove the fifth element of sexual harassment in that AutoZoners, LLC, did not know about the harassment and, when it found out about the harassment, it took prompt remedial action. "The plaintiff establishes a primary element of a cause for sexual harassment where she can show that the employer knew, or should have known, of the harassment and failed to take appropriate action." Lynn, 275 S.W.3d at 308. "An employer [knew or should have known] of sexual harassment if information about the harassment came 'to the attention of someone who (a) has under the terms of his employment, or (b) is reasonably believed to have . . . a duty to pass on the information to someone within the company who has the power to do something about
24 it.'" Sims v. Health Midwest Physician Servs. Corp., 196 F.3d 915, 919 (8th Cir. 1999) (quoting Young v. Bayer Corp., 123 F.3d 672, 674 (7th Cir. 1997)). There was sufficient evidence to support a finding that Diaz timely informed AutoZoners, LLC, of the harassing conduct as it occurred. Diaz reported Mark's harassment to Williams as early as April of 2010, soon after the conduct began. And she continued to report every incident of unwanted physical contact to Williams. Defendants argue that this was insufficient to put AutoZoners, LLC, on notice because Williams was not Diaz's direct supervisor, and they fault Diaz for not going up the management chain when Williams's response was insufficient. But Brown, AutoZoners, LLC's regional human resources manager at the time of the conduct, testified that employees were told that they could report harassment to "anyone in management," which includes "commercial sales manager[s]," such as Williams. "If the employer has structured its organization such that a given individual has the authority to accept notice of a harassment problem, then notice to that individual is sufficient to hold the employer liable." Weger v. City of Ladue, 500 F.3d 710, 732 (8th Cir. 2007) (quoting Williamson v. City of Houston, Tex., 148 F.3d 462, 467 (5th Cir. 1998)). Additionally, the record reflects that Williams was eventually terminated for his failure to report this conduct to higher management, reflecting that AutoZoners, LLC, believed Williams had a duty to report the conduct to higher management. In short, there was ample evidence for the jury to conclude that Williams was an employee who was authorized to receive complaints of harassment, thus providing notice to AutoZoners, LLC. The record also supports the conclusion that, contrary to AutoZoners, LLC's assertions, Diaz did report the harassment to George, the store manager, immediately following the first inappropriate physical touching, and following each event thereafter. And when she did report
25 this harassment, George repeatedly told Diaz either that he would, or that Diaz should, "talk to Shane [Williams]," because the issues were with commercial customers. There was also evidence sufficient to support a finding that AutoZoners, LLC, failed to take proper remedial action. It is undisputed that Williams did nothing to help prevent the unwanted harassment and, in fact, there was evidence that he occasionally encouraged it. Additionally, George, despite knowing of physical harassment as early as November 2010, did not report anything to Brown until January 2011. And even then, despite Diaz reporting conduct that bordered on sexual assault, George told Brown only that some customers had made "rude" comments, and then he inaccurately reported that the conduct had stopped a couple of weeks later. It was not until several months after the conduct was first reported to him that George made any effort to confront the customers responsible for the harassment. Moreover, when Diaz, dissatisfied with the lack of response by management, took it upon herself to contact Brown, it took multiple contacts, and months of time, before an investigation was initiated. By the time AutoZoners, LLC, transferred Diaz to another store, finally providing an effective remedy for the situation, it had been over a year since Diaz first reported unwanted harassment, and at least five months since she had reported inappropriate physical touching to the store manager. From this, the jury reasonably could have concluded that AutoZoners, LLC, did not take proper remedial action. Defendants' Points II and III are denied.
26 D. The trial court did not err in failing to submit vicarious liability as an element in jury instructions 7 and 8 (Defendants' Point VI).
Defendants next argue that the trial court erred in submitting instructions 7 and 8 to the jury without additional language offered by Defendants. 25 Both instructions stated that the jury must find, as an element of Diaz's claim of sexual harassment, that Defendants "knew or should have known of the harassment and failed to take appropriate action." Defendants argue that these instructions "failed to submit the controverted fact of vicarious liability to the jury," because the instructions failed to clarify that Defendants must have acted "through one or more of [their] managerial employees who were acting within the scope and course of his or her employment with" Defendants in order to subject Defendants to vicarious liability. Defendants misunderstand the nature of Diaz's claim. Where, as here, the claim alleges a discriminatory hostile work environment, "an employer's liability . . . is not based on an application of respondeat superior." Wright v. Over-the-Rd. & City Transfer Drivers, Helpers, Dockmen & Warehousemen, Local Union No. 41, Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 945 S.W.2d 481, 499 (Mo. App. W.D. 1997). Rather, liability is imposed when "the employer knew or should have known of the harassment and failed to take prompt remedial action reasonably calculated to end the harassment." Id. In other words, liability is imposed where the employer has violated its own, independent duty under the MHRA to maintain a work environment free from discrimination based upon any of its employees' protected classifications. Meritor, 477 U.S. at 66-67; Mason, 91 S.W.3d at 742. The employer's liability arises from the knowledge imputed from its supervisors because "the only way of communicating actual notice to a corporation," a
25 "Whether a jury was instructed properly is a question of law this court reviews de novo." Bowolak v. Mercy E. Cmtys., 452 S.W.3d 688, 700 (Mo. App. E.D. 2014). "'Review is conducted in the light most favorable to the record,'" and "the party challenging the instruction [must] show that the offending instruction 'misdirected, misled, or confused the jury' and resulted in prejudice to the party challenging the instruction." Id. (quoting Hervey v. Mo. Dep't of Corr., 379 S.W.3d 156, 159 (Mo. banc 2012)).
27 legal fiction that lacks sentience, "is through its agents." Scrivner v. Am. Car & Foundry Co., 50 S.W.2d 1001, 1014 (Mo. banc 1932); Green Tree Farm, Inc. v. Dir. of Revenue, 10 S.W.3d 220, 224 (Mo. App. W.D. 2000) ("a corporation obtains its knowledge only through its officers and agent, thus information as to matters within the scope of the authority of its officers and agents is imputed to it"). But that is in no way the same as being held vicariously liable for the actions of the supervisors. Williamson, 148 F.3d at 465 ("employer liability for harassment by co-workers is direct liability for negligently allowing harassment, not vicarious liability for the harassing actions of employees"). Contrary to Defendants' assertion, vicarious liability was not at issue in the case. Rather, Defendants' own actions, or failures to act, were at issue. Accordingly, the trial court did not err in refusing to add Defendants' proposed language to the instructions. Defendants' Point VI is denied. E. The trial court did not err in refusing to reduce the award of compensatory damage (Defendants' Point VIII).
Defendants next claim that the trial court erred in denying their motion for remittitur, arguing that the jury's compensatory damage award should be reduced from $75,000 to $10,000 because it was not supported by substantial evidence. Defendants argue that Diaz "admitted that she did not seek medical treatment until after she left the Truman Road store and there was ample evidence that [Diaz]'s alleged emotional distress was not work-related." 26 Specifically, Defendants argue that the evidence showed that other sources of stress in Diaz's life, including moving a number of times, a turbulent relationship with her boyfriend, incidents of domestic
26 Defendants also cite to a number of MHRA cases in which lower monetary awards have been awarded for compensatory damages, arguing that the verdict in this case is inconsistent with those cases. But Defendants never mentioned this theory in their point relied on, in which they point to only the purported lack of evidence supporting the damage award. "[A]n appellant abandons any claim of error as to an issue not raised in its points relied on in its appellant's brief." Kabir v. Mo. Dep't of Soc. Servs., 845 S.W.2d 102, 103 (Mo. App. W.D. 1993).
28 abuse, a bankruptcy, an abusive childhood, and an abusive marriage, were the real reasons for any emotional distress. "Intangible damages, such as pain, suffering, embarrassment, emotional distress, and humiliation do not lend themselves to precise calculation." Van Den Berk v. Mo. Comm'n on Human Rights, 26 S.W.3d 406, 413 (Mo. App. E.D. 2000). "Each case requires individualized contemplation and consideration by the trier of fact." Id. at 414. "Fair and reasonable compensation is the ultimate goal in awarding damages." Id. "We disregard all evidence and inferences that conflict with the verdict, . . . [and] will reverse the jury's verdict for insufficient evidence only if there is a complete absence of probative facts to support the jury's conclusion." Blanks, 450 S.W.3d at 365. Evidence of the extent of Diaz's injuries, as set out supra, included: suffering very bad headaches, constantly being sick, experiencing a great deal of stress and anxiety, losing patches of hair, difficulty sleeping and eating, attempting to cut herself, becoming very angry, and having a doctor place her on antidepressant medication. Diaz testified that she dreaded going to work, and she attributed the problems listed above to the harassment that she was experiencing at work. Her doctor agreed. Defendants attributed the problems to other factors and had the opportunity to make that argument to the jury. Indeed, the jury may have accepted Defendants' explanation, at least in part, because Diaz argued that her damages were "$350,000 to $500,000," but the jury awarded only a relatively small fraction of that amount. There is evidence supporting Diaz's claim that she was emotionally harmed, that the harm manifested itself in a number of physical and non-physical forms, and that it was attributable to the harassment that she endured at work. Viewing the evidence in the light most favorable to the verdict, as our standard of review demands, we cannot say that the jury's compensatory damage award is unsupported by substantial evidence.
29 Defendants' Point VIII is denied. F. The evidence was sufficient to support the jury's award of punitive damages against AutoZoners, LLC (Defendants' Point IV).
In their fourth point on appeal, Defendants argue that the evidence was insufficient to support the jury's award of punitive damages against AutoZoners, LLC, because the evidence showed that AutoZoners, LLC, had a policy prohibiting sexual harassment, it provided training to employees regarding how to handle sexual harassment, and it responded promptly and successfully to Diaz's complaints. Diaz argues that AutoZoners, LLC, is attempting to rely on an inapplicable "good faith" defense. 27
"Punitive damages require clear and convincing proof of a culpable mental state, either from a wanton, willful, or outrageous act, or from reckless disregard for an act's consequences such that an evil motive may be inferred." Alhalabi, 300 S.W.3d at 529. "Whether there is sufficient evidence to support an award of punitive damages is a question of law." Id. at 528. "[W]e view the evidence and all reasonable inferences in the light most favorable to submissibility and we disregard all evidence and inferences which are adverse thereto." Id. at 528-29. Though we do not quarrel with AutoZoner, LLC's claims that it had a policy precluding discrimination, that it provided training to its employees on this topic, or that these facts might support a "good faith" defense to punitive damages under Kolstad, these facts are ultimately irrelevant to the question before us: whether Diaz presented a submissible case for punitive damages here. As discussed above, Diaz brought her claim as a negligence action; in light of this fact, the Kolstad "good faith" defense is inapplicable because "reasonableness rather than
27 We review challenges to the sufficiency of the evidence de novo, accepting all facts and reasonable inferences in the light most favorable to the verdicts. Blanks, 450 S.W.3d at 364-65.
30 good faith is the standard by which negligence is to be determined." Hiett v. Dir. of Revenue, 899 S.W.2d 870, 873 (Mo. banc 1995). Under the MHRA, "[a] submissible case [for punitive damages] is made if the evidence and the inferences drawn therefrom are sufficient to permit a reasonable juror to conclude that the plaintiff established with convincing clarity that the defendant's conduct was outrageous because of evil motive or reckless indifference." Alhalabi, 300 S.W.3d at 529. "Reckless disregard can be shown by evidence that an employer knew of the harassment and failed to adequately remedy the situation, or by evidence of the failure to properly investigate complaints of discrimination." Hill, 371 S.W.3d at 71 (internal citations omitted). Here, Diaz argued that she was entitled to punitive damages not only because AutoZoners, LLC, failed to promptly and effectively remedy the harassment but also because AutoZoners, LLC, had an unwritten rule of nonenforcement of the anti-harassment policy when the alleged harassers were customers of the business. Diaz suggested that AutoZoners, LLC, valued profits over the safety and security of employees. To support her assertions, Diaz presented evidence that she repeatedly complained to both Williams and George about the harassment and that neither individual did anything to stop the harassment. Further, she presented evidence of discrepancies in the handling of investigations related to human resources versus those related to loss prevention. Diaz also presented evidence of an incident occurring in Wichita, Kansas, at another AutoZone store where AutoZoners, LLC, provided staff, wherein a commercial sales customer's employees assaulted a female AutoZone driver. That particular store continued to do business with the commercial sales customer to avoid losing profits. And as to the Truman Road location, Diaz presented evidence that Williams refused to respond to her complaints precisely because he did not want to lose commercial sales customers and that Mark believed nothing would be done to stop him from harassing her because he was a commercial
31 account holder. Finally, Diaz presented evidence that both Williams and George viewed her as a "problem child" and a "crybaby," suggesting that they did not take her complaints seriously. "Recklessness and outrageousness may be inferred from evidence of . . . an employee's repeated complaints to supervisors fall[ing] on deaf ears." Rowe v. Hussmann Corp., 381 F.3d 775, 784 (8th Cir. 2004). Where the employer knows of abusive conduct, repeatedly fails to take effective action to stop the conduct, and defends or makes excuses for the conduct, the evidence is sufficient to support submission of punitive damages. Id. Here, Diaz repeatedly complained to both Williams and George and claimed that both individuals witnessed incidents of harassment; Williams repeatedly brushed off Diaz's complaints, excusing Mark's conduct by noting that Mark was "just a pervert" and encouraging Jimmy's conduct by remarking that Jimmy got to "grab her butt before [Williams] did." Though George reported that Diaz was having problems with some commercial accounts, he failed to report the nature of Diaz's complaints and told Brown that Diaz was the source of a lot of "drama" in his store. This evidence was sufficient to submit the issue of punitive damages to the jury. Defendants' Point IV is denied. G. The punitive damage award against AutoZoners, LLC, did not violate due process (Defendants' Point IX).
In its ninth point on appeal, AutoZoners, LLC, argues that the trial court erred in denying its motion for remittitur of the punitive damage award. AutoZoners, LLC, claims that the $1,000,000 award is unconstitutionally large in violation of its right to due process. 28 We disagree.
28 "Remittitur and a constitutionally reduced verdict, though potentially achieving the same result, are in theory different." Blanks, 450 S.W.3d at 412 n.71. "A remittitur is a substitution of the court's judgment for that of the jury regarding the appropriate award of damages." Id. "The court orders a remittitur when it finds that the jury's award is excessive and unreasonable on the facts." Id. (citing § 537.068). "In other words, the court may order remittitur relief when the jury awards a verdict that is simply 'too bounteous' under the evidence." Id. (quoting Moore v. Missouri-Nebraska Exp., Inc., 892 S.W.2d 696, 714 (Mo. App. W.D. 1994)). "A constitutional reduction,
32 "The rationale for permitting punitive damages is the furthering of society's interests of punishing unlawful conduct and deterring its repetition, and punitive damages are constitutionally permissible." Peters v. Gen. Motors Corp., 200 S.W.3d 1, 25 (Mo. App. W.D. 2006). "The imposition of a punitive award implicates Fourteenth Amendment due process concerns," which "are both procedural and substantive." 29 Id. "Only when an award can fairly be categorized as 'grossly excessive' in relation to these interests does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment." BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 568 (1996). In determining whether an award is "grossly excessive," we generally consider the following factors: (1) the degree of reprehensibility of the conduct at issue; (2) the ratio of actual harm to punitive damages; and (3) the difference between the punitive damage award and the civil penalties authorized or imposed in comparable cases. Id. at 575. "The factor of comparative penalties is inconsequential," however, "in an MHRA case." Brady v. Curators of Univ. of Mo., 213 S.W.3d 101, 111 (Mo. App. E.D. 2006). Thus, we will examine solely the first two factors. Degree of Reprehensibility "Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct." BMW, 517 U.S. at 575. To determine reprehensibility, we consider whether: "the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others;
on the other hand, is a determination that the law does not permit the award." Id. "Unlike a remittitur, which is discretionary with the court, a court has a mandatory duty to correct an unconstitutionally excessive verdict so that it conforms to the requirements of the due-process clause." Id. The distinction, though a fine one, affects our standard of review. The denial of a motion for remittitur is reviewed for an abuse of discretion, Call v. Heard, 925 S.W.2d 840, 849 (Mo. banc 1996), while "a constitutional challenge to a punitive damages award [is reviewed] de novo." The Fireworks Restoration Co., LLC v. Hosto, 371 S.W.3d 83, 91 (Mo. App. E.D. 2012). Here, the basis for Defendants' motion at trial and the substance of their argument on appeal involves a purely constitutional challenge; thus, we will review this claim de novo. 29 AutoZoners, LLC's challenge relates solely to the substantive aspect.
33 the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an insolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident."
Estate of Overbey v. Chad Franklin Nat'l Auto Sales N., LLC, 361 S.W.3d 364, 373 (Mo. banc 2012) (quoting State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003)). AutoZoners, LLC, argues that its conduct was not sufficiently reprehensible to justify the large punitive damage award. It argues that Diaz's harm was neither physical nor economic, that George and Brown credited Diaz's complaints and responded promptly and in good faith, and that there was no evidence of deceit by AutoZoners, LLC. Though it is true that Diaz's harm was neither physical nor economic, it was certainly emotional and psychological. And, contrary to AutoZoners, LLC's claim, the evidence supported a determination that neither George nor Brown acted promptly in response to Diaz's complaints. And, during this delayed response, Mark's conduct escalated, progressing from mere verbal comments to physical contact, potentially constituting sexual assault. Furthermore, while there was no evidence of deceit on behalf of AutoZoners, LLC, it overlooks the second factor of the reprehensibility analysis: whether its conduct evinced indifference or a reckless disregard to Diaz's health and safety. Mark's behavior became increasingly aggressive and had the potential to become dangerous to Diaz's health and safety. And as noted supra, there was sufficient evidence from which the jury could have found that AutoZoners, LLC, acted with reckless disregard for its employees' well-being by failing to remedy a hostile work environment, of which it was aware, in favor of maintaining commercial sales accounts (potentially a pattern of AutoZoners, LLC, as demonstrated from the Wichita incident), 30 or by not taking Diaz's complaints seriously, given
30 Though due process does not allow an award of punitive damages based upon other parties' hypothetical claims against a defendant as part of the reprehensibility analysis, "due process does permit considering the wrongfulness of the conduct and whether it is part of a pattern and practice of misconduct." Estate of Overbey v. Chad Franklin Nat'l Auto Sales N., LLC, 361 S.W.3d 364, 373 (Mo. banc 2012).
34 the fact that she was labeled a "problem child" and a "crybaby." Thus, there was a sufficient degree of reprehensibility on the part of AutoZoners, LLC, to justify a sizeable award. Ratio "The second and perhaps most commonly cited indicium of an unreasonable or excessive punitive damages award is its ratio to the actual harm inflicted on the plaintiff." BMW, 517 U.S. at 580. The Supreme Court has "consistently rejected the notion that the constitutional line is marked by a simple mathematical formula, even one that compares actual and potential damages to the punitive award." Id. at 582. "[L]ow awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, . . . the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine." Id. "In most cases, the ratio will be within a constitutionally acceptable range, and remittitur will not be justified on this basis." Id. at 583. The ratio here of punitive to compensatory damages is roughly 13:1. AutoZoners, LLC, argues that ratios exceeding single digits are generally unconstitutional and urges us to remit the award to a 1:1 ratio. "While 'few awards exceeding a single digit ratio between punitive damages and compensatory damages . . . will satisfy due process,' greater ratios may 'comport with due process where a particularly egregious act has resulted in only a small amount of economic damages.'" Lewellen v. Franklin, 441 S.W.3d 136, 147 (Mo. banc 2014) (quoting State Farm, 538 U.S. at 425). Additionally, where the defendant's conduct was economically motivated and the defendant is a large corporation, or where the defendant is particularly recalcitrant, it very well may be that a large award is the only means by which to sufficiently ensure that its illegal conduct will be deterred. See Barnett v. La Societe Anonyme Turbomeca France, 963 S.W.2d 639, 666 (Mo. App. W.D. 1997) (defendant motivated purely by economic considerations), overruled on other grounds by Badahman v. Catering St. Louis, 395 S.W.3d 29,
35 40 (Mo. banc 2013); Brady, 213 S.W.3d at 111 (plaintiff had prevailed in three separate age discrimination suits against the defendant, and each time, the defendant's retaliation escalated); Blanks, 450 S.W.3d at 411 ("High-ratio punitive-damage awards are sometimes necessary in order to have a sufficient deterrent effect."). Here, though the ratio exceeds single digits and Diaz's compensatory award was not as small as other awards justifying a higher ratio, we find AutoZoners, LLC's argument that Diaz was entitled to, at most, a 1:1 ratio unavailing. First, this argument ignores the Supreme Court's admonition that "the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct." BMW, 517 U.S. at 575. To accept AutoZoners, LLC's argument is to elevate the ratio analysis above the reprehensibility factor. Though a punitive damage award must be related to the harm caused, as noted above, the jury could have found, at best, that AutoZoners, LLC, was dismissive of Diaz's complaints because it viewed her as a "problem child," and, at worst, that Diaz's case was merely part of AutoZoners, LLC's pattern of valuing profits over the health and safety of its employees, as evidenced by the Wichita case. Second, the jury could have determined that AutoZoners, LLC's conduct was motivated by purely economic concerns. And the evidence demonstrated that AutoZoners, LLC, was a large and financially well-off company. Thus, it very well may have felt that a large award was necessary in order to deter what it found to be AutoZoners, LLC's illegal conduct. In light of these factors, we cannot say that the punitive damage award against AutoZoners, LLC, was arbitrary so as to violate AutoZoners, LLC's right to due process. Defendants' Point IX is denied.
36 H. The punitive damage award did not exceed the statutory cap provided by § 510.265 (Defendants' Point X).
In the tenth point on appeal, Defendants claim that the trial court erred in denying their motion for remittitur of the punitive damage awards because the awards exceeded the statutory cap imposed by § 510.265. 31 We disagree. Section 510.265.1 provides that "[n]o award of punitive damages against any defendant shall exceed the greater of: (1) Five hundred thousand dollars; or (2) Five times the net amount of the judgment awarded to the plaintiff against the defendant." The "net amount of the judgment" is not limited to the amount of compensatory damages but instead includes all monetary awards to the plaintiff provided for in the judgment, such as attorneys' fees. Hervey v. Mo. Dep't of Corr., 379 S.W.3d 156, 165 (Mo. banc 2012). Here, in the judgment, Diaz was awarded $75,000 in compensatory damages, $243,826.25 in attorneys' fees, and $10,075.05 in costs, for a total award of $328,901.30. Five times this amount is well over the $1,000,000 punitive damage award Diaz received against AutoZoners, LLC. Thus, the punitive damage award against AutoZoners, LLC, did not exceed the statutory cap. Because we have already determined that AutoZone, Inc., was not a proper party to this action, we need not address Defendants' assertion that all punitive damage awards should be considered cumulatively for purposes of determining whether the statutory cap has been exceeded. Defendants' Point X is denied. I. The trial court did not abuse its discretion in its award of attorneys' fees (Defendants' Point XI and Diaz's Point I).
After trial, the court granted Diaz's initial motion for attorneys' fees, awarding her $243,826.25 in fees and assessing costs against Defendants in the amount of $10,075.05 (both
31 The denial of a motion for remittitur is reviewed for an abuse of discretion. Call, 925 S.W.2d at 849.
37 sums representing the entire amount that Diaz requested in her initial motion). Following the denial of all of Defendants' post-trial motions, in a supplemental motion, Diaz sought an additional $32,097.50 in attorneys' fees and $703.98 in costs associated with responding to Defendants' post-trial motions. The trial court denied the supplemental motion, noting that its initial award of attorneys' fees and costs "took into account and included anticipated fees and costs related to post[-]judgment pleadings." Diaz, in her sole point on appeal, claims that the trial court erred in denying her supplemental motion for attorneys' fees. Defendants, in their final point, argue that the trial court erred in awarding $243,826.25 in attorneys' fees. Because these points present interrelated issues, they will be addressed together. Defendants argue that the award of $243,826.25 was unreasonably high because both the hourly rate and the number of hours underlying the award were unreasonable. Defendants point to evidence they presented that they claim shows the reasonable market rates for similarly experienced civil rights attorneys in comparable cases range from $270 to $375 per hour; far less than the $400 to $475 per hour that was the basis for Diaz's fee request. Defendants also argue that the hours Diaz's attorneys submitted were unreasonable because Diaz voluntarily dismissed her claims against Smith, George, and Williams on the day of trial, and the jury returned verdicts against Diaz on her counts of retaliation. Accordingly, Defendants argue, because Diaz did not prevail either on the majority of her claims, or against most of the original defendants, the hours submitted should be reduced by at least 50%. In response to Defendants' arguments, Diaz points to affidavits she presented that she argues prove that the hourly rates her attorneys charged were reasonable. She also argues that the claims against Smith, George, and Williams, as well as the claims for retaliation, all "involved a common nucleus of facts which were inextricably related to one another." Thus, Diaz argues that there was no reason to award less than the fees requested.
38 In her single point on appeal, Diaz focuses on the trial court's alleged denial of fees for time spent responding to post-trial motions. Diaz argues that the trial court actually awarded her the full amount on her initial motion for fees and then refused to award any fees at all for the work performed post-trial. But that is inconsistent with what the trial court stated. In refusing to award Diaz any additional fees in response to her supplemental motion, the trial court noted that it had included in its initial attorneys' fee award some amount in anticipation of Diaz's counsel expending some time in responding to post-trial motions. 32 We take the trial court at its word, and therefore do not accept Diaz's mischaracterization of the trial court's award. 33 In evaluating the parties' claims, we will combine the two requests for fees, and compare the total amount requested to the amount awarded. Diaz requested a total of $275,923.75 in attorneys' fees. The trial court's award of $243,826.25 (a reduction of approximately eleven percent) was intended to fully compensate her for the cost of bringing suit, including responding to post-trial motions. The question for this court is whether the trial court abused its discretion in entering this award. The MHRA "allows a court to award 'court costs and reasonable attorney fees to the prevailing party, other than a state agency.'" Alhalabi, 300 S.W.3d at 530 (quoting § 213.111.2). "The reasons are twofold: '(1) to fully make the plaintiff whole by compensating him or her for the costs of bringing suit and (2) to deflect that discrimination may result in nominal or small monetary damages.'" DeWalt v. Davidson Surface Air, 449 S.W.3d 401, 404 (Mo. App. E.D. 2014) (quoting Coyle v. City of St. Louis, 408 S.W.3d 281, 291 (Mo. App. E.D. 2013)). Courts have set forth a number of factors to be used in determining the appropriate amount of fees to award:
32 We do not know the exact hourly rate or the number of hours awarded because the trial court did not make findings in support of the attorneys' fee award. While such findings would have been helpful to our review, neither party requested findings. 33 This is not to say that such an anticipatory award is to be encouraged. Nevertheless, neither party has challenged the method as error.
39 (1) the rates customarily charged by the attorneys involved in the case and by other attorneys in the community for similar services; (2) the number of hours reasonably expended on the litigation; (3) the nature and character of the services rendered; (4) the degree of professional ability required; (5) the nature and importance of the subject matter; (6) the amount involved or the result obtained; and (7) the vigor of the opposition.
Id. "'The determination of reasonable attorneys' fees is in the sound discretion of the trial court and shall not be reversed unless the amount awarded is arbitrarily arrived at or is so unreasonable as to indicate indifference and a lack of proper judicial consideration.'" Tate v. AutoZoners, L.L.C., 363 S.W.3d 179, 182 (Mo. App. S.D. 2012) (quoting Brady, 213 S.W.3d at 114). "When dealing with an award of attorneys' fees, the trial court is considered an expert and may make an award at its discretion." Id. "Where there is no contrary showing, the trial court is presumed to know the character of the services rendered in duration, zeal, and ability." Alhalabi, 300 S.W.3d at 530. "If the plaintiff's claims for relief are based on different legal theories and facts and counsel's work on one claim is unrelated to his work on another claim, the unrelated claims must be treated as if they had been raised in separate lawsuits, and, therefore, no fee may be awarded for services on the unsuccessful and unrelated claims." Id. "On the other hand, if the claims for relief have a common core of facts and are based on related legal theories and much of counsel's time is devoted generally to the litigation as a whole making it difficult to divide the hours expended on a claim-by-claim basis, such a lawsuit cannot be viewed as a series of distinct claims." Id. at 530-31. "[W]here a plaintiff's claims are related and [she] has obtained excellent results overall, [her] counsel should recover a fully compensatory fee that should not be reduced simply because [she] has not prevailed on every litigated claim." Id. at 531.
40 Here, the trial court reduced Diaz's total requested fee award by approximately eleven percent. Neither party has convinced us that the trial court did not properly take into consideration the necessary factors or that it abused its discretion in making the award that it did. The trial court acted within its discretion in making a modest reduction, to the hourly rate, Hill, 371 S.W.3d at 81-82 (trial court was within its discretion in awarding hourly rates ranging from $100 to $350 per hour, when counsel requested fees of $250 to $450 per hour), the number of hours billed, Alhalabi, 300 S.W.3d at 530-31 (trial court did not abuse its discretion in reducing number of hours billed by fifteen percent where plaintiff was successful on discrimination claim but not retaliation), or a combination thereof. Tate, 363 S.W.3d at 182 ("A trial court may attempt to identify specific hours that should be eliminated or may simply reduce the award to account for a prevailing party's limited success."). "While the trial court did not award the exact amount suggested by either party, there is no evidence that it abused its discretion by submitting an unreasonable or illogical award." Id. "The abuse of discretion standard gives us little room to second guess, even if we were so inclined, which we are not." Grau Contracting, Inc. v. Captiva Lake Invs., LLC, 429 S.W.3d 472, 477 (Mo. App. S.D. 2014). However, on appeal we reversed the judgment against AutoZone, Inc. Because this represents a significant percentage of the initial judgment, we remand the issue of attorneys' fees to the trial court for further consideration in light of this opinion. This remand is not intended to suggest that this court has determined that the award of fees was excessive in light of the reversal of the judgment against AutoZone, Inc. Rather, we simply acknowledge that there has been a significant change to the amount of the judgment, which may have affected the trial court's fee award, and that the trial court is in a better position to evaluate whether this change should affect the award of fees. Claus v. Intrigue Hotels, LLC, 328 S.W.3d 777, 789 (Mo. App. W.D. 2010) ("trial courts are generally in a better position to take evidence and hear argument relating to
41 attorney fees"). Additionally, Diaz has filed a request for fees incurred on appeal, which the trial court shall determine on remand. Defendants' Point XI and Diaz's Point I are denied. The issue of the proper award of attorneys' fees is remanded to the trial court for further consideration in light of this opinion. Conclusion Because Diaz failed to prove that AutoZone, Inc., was her employer, we grant Defendants' Points I, V, and VII. Defendants' remaining points are denied, as is Diaz's single point. The entire judgment as to AutoZone, Inc., is reversed, the awards of both compensatory and punitive damages against AutoZoners, LLC, are affirmed, and the case is remanded to the trial court for further proceedings as to attorneys' fees, consistent with this opinion.
Karen King Mitchell, Presiding Judge
Lisa White Hardwick and Anthony Rex Gabbert, Judges, concur.