Kelley v. Dep't of Corr.

679 S.W.3d 69

Samantha KELLEY, Respondent,

v.State of Missouri, DEPARTMENT OF CORRECTIONS, Appellant.

No. ED 110609

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: September 26, 2023

Motion for Rehearing and/or Transfer to Supreme Court Denied October 30, 2023

Application for Transfer Denied December 19, 2023

Appeal from the Circuit Court of St. Francois County, Honorable Wendy L. Wexler Horn, Judge

FOR APPELLANT: Matthew J. Laudano, PO Box 899, Jefferson City, Missouri 65102.

FOR RESPONDENT: Gregory A. Rich, 5017 Washington Place, Suite 300, St. Louis, Missouri 63108.

Before Kelly C. Broniec, Sp.J., Philip M. Hess, J., and James M. Dowd, J.

PER CURIAM

I. Introduction

The Missouri Department of Corrections (the "Department") appeals the judgment of the Circuit Court of St. Francois County entered on a jury verdict in favor of plaintiff Samantha Kelley ("Kelley") on her claim of sexual harassment based on a hostile work environment brought under the Missouri Human Rights Act ("MHRA"), Chapter 213 RSMo. In her petition, Kelley alleged that she was subjected to unwelcome sexual harassment by two non-supervisory male co-workers, and that the Department, despite having actual and/or constructive knowledge of the sexual harassment, failed to take prompt and effective remedial action to stop it. The jury found in favor of Kelley, and awarded her actual and punitive damages. The trial court also awarded Kelley her reasonable attorneys’ fees, which included a 1.5 multiplier.

The Department raises four points on appeal: (1) Kelley failed to make a submissible case that the Department knew or should have known of the harassment and failed to take prompt and effective remedial action to stop it; (2) Kelley failed to establish that the Department’s conduct warranted punitive damages; (3) the punitive damages award was grossly excessive; and (4) the trial court erred in applying a 1.5 multiplier to the attorneys’ fees awarded to Kelley. Finding no error, we affirm the judgment in its entirety.

II. Factual and Procedural History

Viewed in the light most favorable to the judgment, and giving Kelley the benefit of all reasonable inferences, Newsome v. Kansas City, Mo. Sch. Dist., 520 S.W.3d 769, 775 (Mo. banc 2017) (quoting Fleshner v. Repose Vision Inst., P.C., 304 S.W.3d 81, 95 (Mo. banc 2010)), the record reveals the following relevant facts:

General Background

Pursuant to § 217.015.1,¹ the Department supervises and manages all correctional centers (i.e., prisons) in the State of Missouri, including the Farmington Correctional Center (the "FCC").

Kelley was hired by the Department in 2004 for the non-supervisory position of Corrections Officer I ("CO I") at the FCC. In November of 2014, Kelley was re-assigned to work as a "wing officer" in Housing Unit 25 ("HU 25") of the FCC, which involved patrolling the different wings of the unit to ensure that offenders were where they were supposed to be and to ensure the safety and security of the inmates and staff in the FCC.

Four CO I’s and one supervisory Corrections Officer II ("CO II" or "sergeant") typically worked each shift in HU 25. The entire time Kelley worked in HU 25, one CO II ("the current CO II" or "the CO II on duty") worked Kelley’s shift and served as her immediate supervisor. During her regular shifts, Kelley worked with CO I Dwight Yancey ("Yancey") approximately five days per week, and CO I Robert Pearson ("Pearson") approximately three days per week. Both Yancey and Pearson were working in HU 25 when Kelley was assigned to work there in November of 2014. Prior to reporting to the current CO II, Yancey and Pearson reported to a different CO II ("the former CO II") while working in HU 25.

The first floor of HU 25 contained a control room that housed an officer who handled communications to personnel and offenders and controlled offender movement within the unit. The first floor also contained a room primarily used by the sergeants as a shared office space, commonly called the "sergeant’s office." The sergeant’s office was frequently a gathering space for corrections officers on duty because it contained desks, tables, chairs, filing cabinets, a small refrigerator, a microwave oven, and a telephone, and most CO I’s used it during their shifts to perform paperwork, take breaks, and communicate with other CO I’s and the CO II on duty.

The Department’s policy prohibiting harassment, discrimination, and retaliation

At all relevant times, the Department had a written policy (the "Policy") that expressly prohibited harassment, discrimination, and retaliation on the basis of sex,² inter alia, and stated that all staff members are required to attend annual training over this topic. Under the Policy, if a staff member believes the conduct of a fellow staff member constitutes any form of harassment or discrimination, they are required to promptly report it to their immediate supervisor or other designated person. The Policy specifically requires any supervisors who experience, witness, or receive a report of discrimination or harassment to report it to the highest-ranking individual at the FCC (i.e., the Warden’s Office), whether or not the victim wished to have their complaint investigated.

The Policy also requires the Department to investigate complaints of harassment or discrimination, which is done by designated "human relations" personnel. Investigations include interviews with the complaining staff member, the alleged perpetrator, and any witnesses. All staff members are required "to cooperate and fully disclose all relevant information during the course of the official investigation."

Kelley’s interactions with Yancey and Pearson

Upon being assigned to HU 25, Kelley immediately began witnessing Yancey and Pearson making offensive jokes and comments of an explicit sexual nature, engaging in offensive discussions about female staff at the FCC, and engaging in a variety of other sexually-oriented crude and offensive behavior. The jokes, comments, discussions, and other behavior occurred "constantly" while Kelley worked in HU 25. Kelley summarized her working relationship with Yancey and Pearson to be "extremely uncomfortable, toxic." Yancey’s and Pearson’s behavior caused Kelley substantial emotional distress.

The following is a summary of the offensive language and behavior from Yancey and Pearson that Kelley was subject to during her time in HU 25. For purposes of this opinion, we have chosen to describe such instances as generally and sensitively as possible while still conveying the severity of harassment. The men frequently sat outside the control room, watching female staff members sign into HU 25, rating their physical appearances on a numerical scale, and discussing what sex acts they would like to do with the female staff members. Yancey discussed what sex positions he engaged in with his girlfriend, telling Pearson he would record his sexual encounters and send pictures to Pearson. Both Yancey and Pearson "constantly" made gestures simulating the act of masturbation, and on several occasions, Yancey unzipped his pants and pulled his shirt tail through the zipper area to simulate a penis. Finally, Yancey asked Kelley about the relationship status of another female staff member and asked for other female staff members’ personal contact information. When Kelley responded that such comments made new employees feel uncomfortable, Yancey appeared offended by the statement and said if that was the case, the employees should quit.

Although Kelley was the only one present for some of these incidents, the CO II on duty or other staff members were sometimes present, including during their frequent acts of simulating masturbation in the sergeant’s office and when Yancey asked for the female staff member’s relationship status and phone number. The CO II on duty never spoke to Yancey or Pear- son about their conduct. Kelley would sometimes tell Yancey and Pearson she believed their conduct was "disgusting," and ask them to "knock it off." However, anytime she asked them to stop, she believed they perceived it as a "challenge," and they would do it "10 times worse" the next day.

Kelley formally reports Yancey’s and Pearson’s conduct

On February 25, 2015, after working approximately three months in HU 25, Kelley made a formal complaint regarding Yancey’s and Pearson’s conduct to the "functional unit manager" of HU 25 (and the current CO II’s direct supervisor at the time). Kelley initially made her complaint orally and supplemented with a written statement containing specific examples of the offensive conduct two days later.

The final incident that compelled Kelley to formally report Yancey and Pearson’s offensive conduct was a conversation Yancey and Pearson had in the sergeant’s office involving a female therapist, who frequently came to HU 25 to counsel the inmates and had previously reported Yancey and Pearson for their conduct. The female therapist’s report had resulted in an investigation. Subsequent to the investigation, Kelley heard Yancey call the female therapist an expletive and say that she should have to perform a sex act on the two men in retribution for reporting their conduct. Only Kelley, Yancey, and Pearson were present for this conversation. As a result of the female therapist’s report, the situation escalated beyond simply making Kelley feel "uncomfortable," or even creating a "toxic" environment, but became "scary" for both Kelley and the female therapist.

After Kelley filed her written complaint with the functional unit manager, Kelley, the current CO II, Yancey, and Pearson were all reassigned to work elsewhere while a formal investigation was conducted pursuant to the Policy, which occurred in March and April of 2015. After being interviewed, Kelley returned to working in HU 25 approximately one week later, while the investigation was ongoing, along with the current CO II. At the conclusion of the investigation on April 22, 2015, the...