Jury favors ex-employee in sex harassment suit

A Jackson County jury returned a $420,000 verdict for a former employee of the Missouri Department of Mental Health who alleged that her supervisor harassed her.

Brenda Kisner worked for DMH’s Alcohol and Drug Abuse Division in Kansas City. Her immediate supervisor, David Fleming, was district administrator of the Alcohol and Drug Abuse western division and was located in Jefferson City.

Kisner alleged that Fleming subjected her to unwelcome sexual comments and conduct. Kisner’s lawyer, Kirk Holman, of Holman Schiavone, explained that Fleming said Kisner was “naive about many things but probably not about sex, inquired into her personal sex life, talked about the lack of sex in his life, commented on Ms. Kisner’s buttocks, and on one occasion forcibly took her by the hair and pulled her to him.”

On May 1, 2008, Kisner complained about Fleming’s conduct to the agency’s human resources department. Fleming was not informed of the complaint until a week later when he was interviewed about the allegations.

Fleming was not placed on leave and continued to work with Kisner. On May 22, a report concluded that he had subjected Kisner and two other females to sexual harassment. The other women were not DMH employees but were part of the investigation because one worked in the building and another frequently came into the building.

DMH placed Fleming on two weeks’ paid leave to be followed by termination. He resigned before the two weeks were up.

Kisner submitted her resignation the day after the report was issued, effective June 6, 2008. She said that from May 1 until her resignation, she was never advised of the status of the investigation, despite her inquiries.

Fleming was dismissed as a party before trial, Holman said. At trial against the department, Kisner argued that DMH had not taken reasonable care to prevent harassment. The department responded that Kisner failed to take advantage of its administrative remedies for workplace complaints, but Kisner countered that no training in how to do so had been offered.

“The uncontroverted evidence was that she’d never received even a handbook,” Holman said. “The same was true for Mr. Fleming.”

Holman said the department did show a training video, but it dated to 1992.

On Dec. 9, the jury awarded Kisner $20,000 in compensatory damages and $400,000 in punitive damages. The judgment was delayed while the two sides negotiated attorney fees.

In an April 29 order, Circuit Judge John Torrence affirmed the jury’s award and approved $188,173 in plaintiff’s attorney fees, plus about $5,680 in costs.

Nanci Gonder, a spokeswoman for the Attorney General’s Office, declined to comment on the case.

■ $420,000 verdict

SEXUAL HARASSMENT

■ Court: Jackson County Circuit Court at Independence

■ Case Number/Date: 0916-CV24495/Dec. 9, 2010

■ Judge: John Torrence

■ Last Pretrial Demand: $180,000

■ Last Pretrial Offer: $150,000

■ Caption: Brenda Kisner v. Missouri Department of Mental Health

■ Plaintiff’s Attorneys: Kirk D. Holman and Thomas F. Ralston, Holman Schiavone, Kansas City

■ Defendant’s Attorneys: Virginia H. Murray and Lauren Horsman, Missouri Attorney General’s Office, Kansas City