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Ellison v. O'Reilly Auto. Stores, Inc.

Court of Appeals of Missouri, Western District, Third Division

March 24, 2015

KURT D. ELLISON, Respondent,

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[Copyrighted Material Omitted]

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Joseph K. Eischens, for Respondent.

Randall W. Brown, Co-counsel for Respondent.

William C. Martucci, for Appellant.

Carrie A. McAtee, Co-counsel for Appellant.

Larry M. Schumaker, Co-counsel for Appellant.

Before Division Three: Victor C. Howard, Presiding Judge, James E. Welsh, Judge and Gary D. Witt, Judge. All concur.



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O'Reilly Automotive Stores, Inc. appeals the judgment of the trial court awarding Kurt Ellison $2,000,000 in punitive damages in his action under the Missouri Human Rights Act for employment discrimination based on disability. It contends that (1) Mr. Ellison did not make a submissible case for punitive damages, (2) the punitive damages award was the result of a constitutionally invalid verdict, and (3) the punitive damages award was excessive. The judgment is affirmed. The case is remanded to the trial court for an award of reasonable attorney's fees on appeal.

Factual and Procedural Background

Viewed in the light most favorable to the plaintiff and the trial court's decision in accordance with the applicable standard of review for the issues in this appeal, the following evidence was presented at trial. Mr. Ellison was diagnosed in 1994 with myotonic dystrophy, a form of muscular dystrophy (MD). It is a progressive disease that affects his walking, balance, and speech among other things. He has worn leg braces to help with his balance and walking since 2008.

In 1997, Rob Weiskirch, a district manager for O'Reilly Automotive, hired Mr. Ellison as an assistant store manager/manager in training, a position that Mr. Ellison remained in until 2008. During his time as an assistant manager, Mr. Ellison received good performance evaluations, consistently meeting or exceeding requirements. In March 2008, Mr. Weiskirch directed Mr. Ellison's store manager to prohibit Mr. Ellison from answering the commercial customer phone line because customers had difficulty understanding him. Three months later in June 2008, Mr. Ellison expressed an interest in becoming a store manager to Mr. Weiskirch. Mr. Weiskirch told Mr. Ellison that because he was too slow in completing daily tasks, O'Reilly Automotive would not be promoting him to store manager, he was not promotable, and he would not be considered for any management position. Despite this conversation, Mr. Weiskirch promoted Mr. Ellison to interim store manager for store 1216 in Platte County in August 2008 when the store manager resigned. Mr. Ellison became the permanent store manager in November 2008.

In his first performance review as a store manager in March 2009, Mr. Ellison received an overall rating of " meets requirements." In comment sections of the review, Mr. Weiskirch wrote, " Great job on retail sales," " Kurt displays good leadership and holds team accountable," and " Kurt has made a very positive impact on the store in his first management effort." In his second performance review in March 2010, Mr. Weiskirch gave Mr. Ellison an overall rating of " needs improvement." He rated Mr. Ellison a " meets requirements" on five of the eight review topics--company objective/strategic plan, overall sales ability, leadership/management skills, training, and operational procedures. Mr. Ellison received a " needs improvement" rating on the remaining three topics--customer service, store and team member appearance, and goal achievement. On his 2010 store audit, which is performed once a year and evaluates the overall performance of a store manager in terms of their operational leadership, Mr. Ellison's store received a score of 87. A passing score on a store audit is 80 but a higher score is better.

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In April 2010, Mr. Ellison's store had the second highest percentage sales increase from the year before in the district. On May 4, 2010, Mr. Weiskirch gave Mr. Ellison a letter of concern naming three areas of concern: commercial sales, store appearance, and store operations (specifically, outside purchase invoices piling up).

A few weeks later, on June 13, 2010, an O'Reilly Automotive regional sales manager recognized Mr. Ellison's store sales in an email to him stating, " Kurt, good job. Your hard work and persistence is finally paying off at Ashby's [a commercial customer] and some others." On July 1, 2010, Mr. Weiskirch emailed the store managers in his district congratulating six stores for record June sales. In the email, he highlighted store 1216's successful 21% increase over the previous year's same-month sales and its highest retail sales in the district despite having the worst retail location. Mr. Weiskirch also noted that store 1216 was one of only four stores in the district to show growth in commercial sales.

The next day, on July 2, 2010, Mr. Weiskirch emailed Mandy Spigle, a member of O'Reilly Automotive's Human Resources Department, about Mr. Ellison and attached the May letter of concern. The email was copied to Chuck Kaiser, the regional manager and Mr. Weiskirch's supervisor. Mr. Weiskirch first discussed Mr. Ellison's performance, specifically noting commercial sales were strong in the previous month with a gain of $10K over previous year in same month and improvement of attention to detail to outside purchase invoices. Mr. Weiskirch then discussed a complaint by an exiting employee, Becky Turner, that Mr. Ellison was a poor leader. Specifically, she had complained that Mr. Ellison would take lunches and go out on sales calls while other employees were not able to go to lunch. Mr. Weiskirch then raised concern about Mr. Ellison's " paulsy[sic] or MS type disease:"

Another area of concern this TM [team member] brought up was Kurt's physical ability to do the job. Kurt has some sort of paulsy[sic] or MS type disease. He wears braces on his legs to assist with his walking and his speech is impeded. Kurt has had this for a long time during his employment with us, but it seams[sic] to have worsened over the last couple of years. We have noted him falling down on several occasions and complaints have been received from customers stating they can't understand his speech. Basically, I'm not sure of when or if we could be looking at issuing a fitness for duty form. Mandy, in close we feel we are compromised right now with this manager, but are unsure of how to proceed. Any recommendation is appreciated.

At the time of this email, O'Reilly Automotive had no documentation of customer complaints about Mr. Ellison's speech or his falling in the store.

In response to this email, Ms. Spigle contacted Jodi Beck, another member of HR, who was responsible for working with employees with non-work-related medical conditions that may impact job performance. That same day, Ms. Beck contacted Mr. Weiskirch, and he told her that Mr. Ellison had a condition since the early 1990s that affects his speech, his speech was getting worse, customers can't understand him, and he was falling in the store. Ms. Beck advised Mr. Weiskirch that they needed to have a conversation with Mr. Ellison about the effect his speech is having on operations and look for a solution or accommodation and that they needed to discuss whether a fitness for duty form was necessary.

A few days later, Ms. Beck, Ms. Spigle, Mr. Weiskirch, and Mr. Kaiser had a

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conference call to discuss Mr. Ellison's performance and " medical issues." Regarding performance, the group decided to issue an addendum to the letter of concern addressing morale and communication with team members. Regarding her " ADA conclusions," Ms. Beck advised that after job performance issues have been addressed, they should sit down with Mr. Ellison to address concerns about his falling and to provide him a fitness for duty form. On July 7, 2010, Mr. Weiskirch gave ...

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