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Supervisor’s Sex Harassment of Women Workers Costs Missouri Employer

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Award of actual damages, punitive damages, attorney’s fees and costs upheld

By Geri L. Dreiling, Esq.

An employer’s reckless response to the sexual harassment complaints of two women who claimed their supervisor’s conduct created a hostile work environment merited a Jasper County jury’s award of actual damages, punitive damages, attorney’s fees and costs, the Missouri Court of Appeals, Southern District has ruled.

The decision in Leeper, et al. v Scorpio Supply IV LLC d/b/a NAPA Auto Parts of Joplin, et al., written by Jeffrey W. Bates, the presiding judge of the Missouri Court of Appeals, Southern District, was handed down on Sept. 2.

Overland Park, Kan.-based lawyer Jessica M. Bernard represented the employer. Tammy L. Horn, an attorney in Overland Park, Kansas, represented the employees.

Workplace Harassment

The employer owned and operated auto parts stores in Joplin, Monett, Nevada and Butler, Missouri. The owner hired a sales manager who was the sole supervisor of all four stores which employed eight to ten workers.

One female employee worked at the auto parts store located in Monett. Over the course of about ten or eleven months, the 28-year-old worker was subjected to repeated and unwanted sexual comments from her supervisor. He groped her and touched her in offensive ways.

The other female employee, a 20-year-old college student, worked at the auto parts store in Joplin.  Over an extended period of time, the supervisor would invite the worker to his hotel room, followed her around the store, pretended to unzip his pants, made offensive sexual gestures, groped her and tried to kiss her at least 20 times.

The two women eventually met and discovered they were both targets of the supervisor’s unwanted behavior. They complained to store managers who were afraid to document the behavior because the supervisor was a close friend of the owner-employer.

The owner-employer did not have a sexual harassment policy. When the conduct was finally reported to him, he contacted an outside firm to conduct an investigation but concluded the cost was too high. Although he did not have any training on how to conduct a sexual harassment investigation, the owner-employer decided to do it himself.

After a brief investigation that included statements by the owner that suggested the workers were at fault, and, despite one store manager’s statement that he had seen and heard the harassing activity, the owner-employer concluded the claims could not be substantiated.

The women filed a multi-count lawsuit in Missouri state court against the company, the supervisor and the owner. The petition included claims under the Missouri Human Rights Act that alleged the sexual harassment produced a hostile work environment.

A Jasper County jury found in favor of the women’s claims and awarded actual and punitive damages, attorney’s fees and costs. The jury concluded that the employer was vicariously liable for his supervisor’s conduct and therefore he was jointly and severally liable.

An Employer’s Vicarious Liability

Pursuant to the Missouri Human Rights Act, an employer may liable for a supervisor’s sexual harassment. Missouri regulation 13 C.S.R. 60-3.040(17)(D) provides:

An employer is subject to vicarious liability to a victimized employee with respect to sexual harassment by a supervisor with immediate (or successively higher) authority over an employee or other supervisor who the employee reasonably believes has the ability to significantly influence employment decisions affecting him or her even if the harasser is outside the employee’s chain of command.

The Court concluded that there was “ample evidence presented that they were sexually harassed by their supervisor” that the owner met the definition of an employer as defined by state statute.

Punitive Damages for Employer’s Reckless Disregard

The employer challenged the jury’s punitive damages award. He argued the women failed to present evidence of the employer’s malice or reckless indifference which is required in order to merit an award of punitive damages

After reviewing the record on appeal, Judge Bates stated, “that there was sufficient evidence from which a reasonable juror could conclude that [the employer] acted with reckless disregard for Plaintiffs’ rights” and therefore the trial court did not err in submitting the issue of the employer’s liability to the jury.

The Missouri Court of Appeals Southern District affirmed the trial court’s judgment.