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Bowolak v. Mercy E. Cmtys.

Court of Appeals of Missouri, Eastern District, Second Division

October 28, 2014

TIM W. BOWOLAK, Respondent/Cross-Appellant,
v.
MERCY EAST COMMUNITIES d/b/a MERCY HOSPITAL ST. LOUIS f/k/a ST. JOHN'S MERCY HEALTH SYSTEM d/b/a ST. JOHN'S MERCY MEDICAL CENTER, Appellant

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Appeal from the Circuit Court of St. Louis County. 11SL-CC02238. Honorable Thea Anne Sherry.

FOR Mercy East Communities d/b/a Mercy Hospital St. Louis, f/k/a St. John's Mercy Health System d/b/a St. John's Mercy Medical Center, APPELLANT: James Michael Paul, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., Joshua David Bortnick, Co-Counsel, Clayton, MO.

FOR Tim W. Bowolak, RESPONDENT/CROSS-APPELLANT: Robert Joseph Radice, HORAS, RADICE & ASSOCIATES, LLC., St. Louis, MO.

Mary K. Hoff, Judge. Sherri B. Sullivan, Presiding Judge, and Philip M. Hess, Judge, concur.

OPINION

Mary K. Hoff, Judge.

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Mercy East Communities d/b/a Mercy Hospital St. Louis f/k/a St. John's Mercy Health System d/b/a St. John's Mercy Medical Center (Mercy) appeals from the judgment entered following a jury verdict in favor of Tim W. Bowolak (Bowolak) in the amount of $50,000.00 compensatory damages, $500,001.00 punitive damages, attorneys' fees in the amount of $81,500.00 and court costs. Bowolak cross appeals the portion of the judgment assessing post-judgment interest at the rate of 5 percent, as opposed to 9 percent, regarding the award of compensatory and punitive damages. We affirm.

Factual and Procedural Background

In October 2004, Bowolak applied for the position of Supply Technician at Mercy. This was a manual labor job that involved transporting supplies and equipment to nurses. Bowolak's previous work experience was all in manual labor jobs.[1]

When Bowolak initially applied for employment with Mercy in October 2004, he was required to undergo a physical examination which was performed on October

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13, 2004 by Mercy through one of its registered nurses. As part of his physical examination on October 13, 2004, Bowolak was asked about his prior medical history. He indicated that he had suffered a work-related injury in October 2002, which resulted in a spinal fusion in May 2003. Bowolak also indicated that he was presently taking pain medications, Hydrocodone and Methocarbamol. Bowolak passed the physical examination, and he was accepted into the job with " no restrictions."

Bowolak worked as a Supply Technician from October 2004 until February 2008. During that time, he never missed work because of any physical problem, consistently received good job assessments, and never was told that he could not perform the essential functions of his job.

In February 2008, Bowolak was asked about transferring to the linen department as a Care Service Associate. The job involved providing linen and supplies to the nurses. Bowolak accepted the position and worked without incident from February 2008 to January 7, 2010. Bowolak testified that he suffered a minor shoulder injury sometime in 2009; however, he did not miss work as a result of that injury. Bowolak received good assessments as a Care Service Associate and was able to perform his job.

On January 7, 2010, Bowolak was at work pulling a cart of linen that weighed approximately 500 lbs. Bowolak noticed that one of the wheels on the cart was not functioning properly and he was having a difficult time moving the cart. He testified that as a result, while moving the cart, he " tweaked something" in his lower back. Although Bowolak finished his day of work, he informed his supervisor of the incident and was sent to Mercy's doctors for treatment. Bowolak was treated primarily by Dr. Sharon Godar, who placed Bowolak on light duty, and on March 23, 2010, released him back to " regular duty," without restrictions. Bowolak did not feel he was yet ready to return to work on March 23, 2010, but returned to full duty, without restrictions, in early May 2010. Between March 2010 and May 2010, Mercy refused worker's compensation benefits to Bowolak. As a result, he filed a worker's compensation claim, the only worker's compensation claim he filed while employed with Mercy.

Bowolak continued to work as a Care Service Associate, without restrictions and without missing work due to physical problems, from May 2010 until March 3, 2011. He continued to receive good assessments from Mercy. Notably, Mary Obermann (Obermann), Bowolak's direct supervisor, testified by deposition that he was a good worker and that he successfully performed his duties as a Care Service Associate. Michael Wyatt (Wyatt), who was Obermann's supervisor, also confirmed through his deposition testimony that Bowolak was able to perform the essential functions of his job as a Care Service Associate.

On March 3, 2011, Bowolak was called to a meeting by Mercy. Present at the meeting were Obermann, Wyatt, Ruth Brooks (Brooks), Mercy's Workers' Compensation Coordinator, and Lois Dodson (Dodson), Mercy's Human Resource Manager. At this meeting, Bowolak testified he was presented with an unsigned document marked " DRAFT," [2] that was dated December 10, 2003 and allegedly from the office of Dr. Allan Gocio, the physician who treated Bowolak and performed his back surgery as a

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result of a work-related injury that occurred in October 2002 while employed at Cardinal Scale Manufacturing, Inc. (Cardinal Scale).[3] The " DRAFT" document indicated " at the current time" Bowolak was limited to " lifting to 30 pounds on a repetitive basis and no greater than 50 pounds on an occasional basis." Frequent breaks were suggested but he was found to be " suitable for work on an immediate basis." Bowolak testified that he had never seen the document before this meeting but was informed that he could no longer continue in his job as a Care Service Associate because of the alleged restrictions contained in the document. Bowolak was told that he would be contacted after further investigation. Bowolak never worked for Mercy again and was never paid by Mercy.

At the meeting, Bowolak explained that Dr. Gocio never discussed the contents of the " DRAFT" document with him, he had never before seen the document, and that he was able to perform his job and that he had no physical restrictions. The unsigned document was not directed to Bowolak, and there was never any evidence presented at trial that Bowolak ever received this unsigned document. At trial, Bowolak reiterated that no doctor had ever recommended any permanent restrictions to him, and that he had never seen the unsigned document at any time before March 2011. Bowolak testified that although his previous back injury was serious and that his back was never normal after the injury, he was capable of performing his job at Mercy. In addition, Dr. Godar was aware of Bowolak's prior back injury from 2002, was aware of the physical requirements of Bowolak's job and was in possession of the unsigned " DRAFT" document dated December 10, 2003, when Dr. Godar released Bowolak back to full duty, without restrictions, on March 23, 2010.

On March 9, 2011, Bowolak was called in for a second meeting with Mercy and again the unsigned " DRAFT" document was discussed. Bowolak reiterated that he had no restrictions and that he could perform his job. Again, Bowolak was informed that he could no longer work in his job as a Care Service Associate; he was also was informed that he would not be paid. Neither at the March 3, 2011, meeting nor at the March 9, 2011, meeting was Bowolak offered a different position by Mercy. Moreover, he was never offered an opportunity to undergo a physical examination and was never told that he had any ability to be reinstated to his job. Instead, Bowolak was informed that he could go on the internet and if he found something, he could apply for a job at Mercy by contacting a person named Laura Austin. While he did go on the internet as instructed, he found no jobs that would meet the alleged restrictions.

On March 9, 2011, Bowolak was given a letter by Mercy that indicated that he was terminated. The letter stated that Bowolak could no longer work in his position as a Care Service Associate because " you are not able to perform the essential functions of your role." Bowolak's termination was based on the unsigned " DRAFT" document date December 10, 2003, purportedly from Dr. Gocio's office.

On April 7, 2011, pursuant to the Missouri Human Rights Act (MHRA), Bowolak appeared at the Equal Employment Opportunity Commission (EEOC) and filed both his Charge of Discrimination against Mercy with the EEOC and with the Missouri

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Commission on Human Rights (MCHR). After Bowolak filed his claim, a representative of the EEOC contacted Dodson and requested that Mercy reinstate Bowolak; Dodson responded that Mercy would not reinstate Bowolak. On April 14, 2011, Dodson wrote a letter to Bowolak, and " cc'd" to Wyatt, confirming that Bowolak was no longer employed by Mercy.

On October 11, 2011, Bowolak brought this action for disability discrimination pursuant to the MHRA. On May 2, 2013, following a jury trial, judgment was entered for Bowolak. The jury awarded Bowolak compensatory damages in the amount of $50,000.00 and punitive damages in the amount of $500,001.00. The trial court entered judgment in accordance with the jury's verdict.

On May 7, 2013, Bowolak filed a Motion to Amend Judgment to Include an Award of Attorneys' Fees. On June 3, 2013, Mercy filed its Combined Motions for Directed Verdict, Judgment Notwithstanding the Verdict, Remittitur, Amendment of Judgment and/or a New Trial. On July 8, 2013, prior to ruling on Mercy's combined post-trial motions, the trial court amended the original Judgment by including attorneys' fees in the amount of $81,500.00. On September 16, 2013, the trial court denied Mercy's post-trial motions and entered Judgment in favor of Bowolak in the amount of $550,001.00, with post-judgment interest at the rate of 5 percent, and entered judgment for attorneys' fees in the amount of $81,500.00, with post-judgment interest at the rate of 9 percent.

On September 25, 2013, Mercy filed its notice of appeal alleging that the trial court erred in denying Mercy's post-trial motions. Bowolak cross-appealed alleging that the trial court erred in ordering post-judgment interest at a rate of 5 percent, as ...


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