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Good-faith requirement weighed in retaliation cases

Scott Lauck//October 31, 2019

Good-faith requirement weighed in retaliation cases

Scott Lauck//October 31, 2019

The Missouri Supreme Court is considering two employment discrimination cases that won significant verdicts without a jury ever deciding whether the plaintiffs actually faced discrimination.

The court on Oct. 23 heard arguments in a Jackson County case that resulted in a verdict of more than $10.1 million for a former employee of the pest-control company Orkin. Gary Gentry won the verdict, which was reduced to $3.7 million after trial due to Missouri’s cap on punitive damages.

Later the same morning, the court heard a case brought by a former medical researcher at Washington University who alleged she was fired her because she requested accommodation for chronic back pain. Plaintiff Li Lin won $769,000 from a St. Louis jury in 2017, which increased to more than $1.5 million after trial with the addition of front pay and attorneys’ fees. The Court of Appeals Eastern District, however, ordered a new trial.

Both cases proceeded to trial based only on claims of retaliation. Among other claims, the defendants in each case say the juries should have been required to determine if the plaintiffs brought their claims in good faith.

Gentry was a route manager for Orkin who was terminated after taking leave for a shoulder injury. Gentry filed a complaint with the Missouri Human Rights Commission alleging age and disability-discrimination but didn’t file a suit. Later, he applied for another job with Orkin and, after he didn’t receive a response, filed a new complaint alleging he faced retaliation for his initial discrimination complaint.

James Wyrsch of Wyrsch Hobbs & Mirakian in Kansas City, an attorney for Orkin, argued that the jury should have been required to determine if the company’s decision not to rehire Gentry was a business judgment, and if his claim of discrimination was reasonable.

“If you decide it’s not an element, fraudulent claims can be made and can go to a jury on the basis that when they didn’t get hired or interviewed, they win the case,” Wyrsch said.

But Gentry’s attorney, Kenneth Kinney of Ralston Kinney in Kansas City, urged the court to uphold the “overwhelming” verdict.

Judge Robin Ransom, a Court of Appeals judge who sat specially on the case, asked if requiring the jury to determine the nature of the original complaint would lead to “two trials in one.”

“The concern that I’d have is that you’d really start trying two different cases, when retaliation is really the main claim in this particular case,” she said. Ransom sat in place of Judge W. Brent Powell, whose sister-in-law, Circuit Judge Jennifer Phillips, presided over the trial.

Judge Laura Denvir Stith noted that Orkin raised “an important policy point.” But she noted that the Human Rights Act also allows defendants to recover attorneys’ fees if the complaint was without foundation.

“It does provide a remedy in that situation to avoid frivolous claims,” she said.

The case against Wash U similarly involved arguments about the good-faith nature of the claim. Lin dismissed her disability claim prior to trial and proceeded only on her claim that she’d lost her job because her supervisor, Dr. Matthew Ellis, had retaliated against her for requesting an accommodation. The university says Lin’s position was eliminated when the grant that funded it ran out; the parties dispute if she could have been given a job elsewhere in the university.

James Layton of Tueth Keeney Cooper Mohan & Jackstadt, who represented the university, said that seeking a disability accommodation in and of itself wasn’t a protected activity under the Human Rights Act.

“You don’t get to move that same set of facts out of the discrimination silo and into the retaliation silo,” he said.

Judge Breckenridge suggested to Lin’s attorney, Jonathan Berns of Dobson, Goldberg, Berns & Rich, that Lin’s requested accommodation had to be because of an underlying disability.

“The accommodation can’t just be because she felt like it,” she said.

But Berns said his client shouldn’t have to prove she had a disability to bring a retaliation claim.

“Being able to prevail on a retaliation claim is not conditioned on and is analytically divorced from the merits of the underlying discrimination,” he said. He added that allowing a retaliation claim for the denial of an accommodation “clearly falls within the spirit of the law.”

The university also argues that the verdict was inconsistent, as it held the university responsible for Ellis’ alleged conduct while exonerating Ellis himself of liability.

The cases are Gentry v. Orkin LLC, SC97696, and Lin v. Ellis et al., SC97641.

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