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Wilkins v. Board of Regents of Harris-Stowe State University

Court of Appeals of Missouri, Eastern District, Fourth Division

June 6, 2017


         Appeal from the Circuit Court of the City of St. Louis Honorable Julian L. Bush

          KURT S. ODENWALD, Judge


          The Board of Regents of Harris-Stowe State University ("the Board") appeals from the judgment of the trial court entered following a jury trial. The jury found the Board liable for violating the Missouri Human Rights Act ("MHRA")[1] when it terminated the employment of Beverly W. Wilkins ("Wilkins"). The jury awarded Wilkins $1, 350, 000 in compensatory damages and $3, 500, 000 in punitive damages. On appeal, the Board raises five points. First, the Board alleges instructional error with regard to Wilkins's claim for future damages. The Board next asserts evidentiary error in allowing the presentation of a Missouri statute, Section 174.150, to the jury.[2] The Board's remaining points each claim error with regard to the compensatory and punitive damages award.

         The trial court did not err in instructing the jury on future damages because sufficient evidence of lost future income and future emotional distress was introduced at trial to support the instruction. The record shows that the Board did not object to the discussion of Section 174.150 at trial and also did not preserve its challenge to the submissibility of punitive damages. Finally, we hold that the trial court acted within its discretion and did not en* in refusing to remit the jury's compensatory-damage and punitive-damage awards. Accordingly, we affirm the judgment of the trial court.

         Factual and Procedural History

         In 2001, Wilkins, a Caucasian woman, was hired to teach at Harris-Stowe State University ("HSSU") as an adjunct instructor in its Teacher Education Department. HSSU is a "historically black college." The majority of the faculty members in HSSU's Teacher Education Department were African-American. Wilkins later became a full-time instructor and began to teach additional classes over the summer. From 2001 to 2009, Wilkins's employment contract was regularly renewed, and Wilkins successfully taught as a non-tenure-track professor. In her final year of employment, the Board paid Wilkins $62, 776 in salary and benefits. Wilkins also earned on average an additional $4, 000 to $5, 000 a year for teaching summer classes. Wilkins received excellent reviews and was considered an important member of HSSU's Teacher Education Department.

         In 2009, the Board sought a new dean for HSSU's Teacher Education Department. During its search, the Board appointed Dr. Latisha Smith ("Dr. Smith"), an African-American woman, as a temporary co-chair for the department. After Dr. Smith's appointment, a faculty member within the Teacher Education Department sent an email to HSSU administrators, including the president, vice-president, and the human resources director. This email reported that Dr. Smith had repeatedly proclaimed her belief in "black power." The faculty member claimed to be upset "to know that we have an interim leader that has voiced her prejudice so openly to me and others. This flagrant prejudice should not be tolerated or accepted." A high-ranking HSSU official instructed the faculty member not to press her complaints or her ability to obtain tenure would be jeopardized. The Board subsequently promoted Dr. Smith to Dean of the Teacher Education Department. Dr. Smith, in her capacity as dean, became Wilkins's supervisor.

         In April 2010, the Board learned that its state funding for the next fiscal year would be reduced by approximately $566, 000. To balance HSSU's revenues with its expenditures, HSSU's financial administrators prepared an operating budget that eliminated open and unfilled positions. The operating budget also required the termination of two staff employees. The savings from these processes totaled $572, 000.

         The operating budget further provided for the "reorganization" of certain staff and faculty positions. The reorganization proposed the termination of eight additional employees, including two faculty members. Notably, the reorganization budget provided for the eventual replacement of the two terminated faculty members. As a result, the reorganization was conceptualized as budget-neutral because it would result in "a wash" with no overall savings derived by the university.

         Dr. Smith recommended to HSSU's vice-president that the Board terminate Wilkins. HSSU's vice-president then composed a draft layoff list which included Dr. Smith's recommendation that Wilkins be terminated. Wilkins was included on the layoff list presented to the Board by HSSU officials. The Board approved the budget on June 22, 2010. The Board also sanctioned the purported reorganization, including Dr. Smith's recommendation to terminate Wilkins, as well as the corresponding plan to hire a replacement for Wilkins's position. The termination of Wilkins did not comport with HSSU's existing promulgated policy on reducing its work force. The Board, the entity responsible for providing oversight to HSSU, previously issued policies and procedures for the university to follow in its employment decisions. Under the reduction-in-force policy, HSSU was required to terminate non-adjunct faculty by seniority.[3]In comparison to other non-tenure-track faculty, Wilkins had more seniority than two African-American instructors.

         Contrary to its internal policies, HSSU officials terminated Wilkins over the less senior African-American instructors. On June 30, 2010, Wilkins met with HSSU officials, including the vice-president and human resources director. The human resources director handed Wilkins a letter informing her that she would be terminated as part of a reorganization effort due to a reduction in state funding. Wilkins was initially permitted to finish her summer class. Wilkins asked why she was selected for termination. The vice-president and human resources director refused to explain to Wilkins why she was terminated over other faculty with less seniority.

         Wilkins notified the president, vice-president, Dr. Smith, and the human resources director by email that her termination did not comply with HSSU's policies and that she was contemplating legal action. HSSU's officials considered this email to be a complaint of race discrimination. HSSU policy required that all complaints of race discrimination in the employment process were to be investigated. The Board and top-level HSSU administrators never investigated Wilkins's complaint.

         Upon returning to teach her summer class, Wilkins was asked by her students if she had been fired. Wilkins told her students that, although she would finish the summer course, she would not return the following semester. Knowing that Wilkins's daughter was an attorney, the students asked Wilkins if her daughter could help her. Wilkins acknowledged that her daughter was "not that kind of an attorney."

         Wilkins was summoned the following week to attend a meeting with HSSU administrators, including the human resources director, the vice-president, and the assistant vice-president of academic affairs. At the meeting, HSSU officials fired Wilkins from teaching her summer class and instructed her to leave campus immediately. The human resources director gave Wilkins a letter informing her that she was terminated for "inappropriate activities." Wilkins pressed HSSU officials to explain her "inappropriate activities." HSSU officials refused to tell her. HSSU officials placed Wilkins's termination letter, including the notation that she was fired for "inappropriate activities, " in her employment file.

         The president of HSSU and a representative of the Board both testified that they had heard allegations that Wilkins told her students that she had been discriminated against by HSSU, that she was going to sue HSSU, and that she would impede HSSU's accreditation process. No individual student was identified as making these allegations, and no investigation was conducted by HSSU officials or the Board to discover the truth of these claims. HSSU's usual practice was to investigate any claims of employee misconduct. HSSU's conduct regarding Wilkins deviated from its standard practice, which often included interviews of witnesses and the accused employee, hearings with evidence presented, and decisions containing formal findings.

         After Wilkins was fired from her summer course, the Board immediately moved forward with hiring Wilkins's replacement as a part of its purported reorganization plan. On August 2, 2010, an HSSU official, the assistant vice-president of academic affairs, listed Dr. Betty Porter Walls ("Dr. Walls") as a potential replacement in an email to HSSU administrators. In the email, Dr. Walls was expressly identified as being "black." The identification of Dr. Walls's race was included in HSSU's Academic Affairs Reorganization Plan. Ultimately, the Board hired Dr. Walls to a full-time contract. The Board also hired Dr. Savannah Young, another African-American instructor, to assume some of Wilkins's other teaching duties. In this period of budget-cutting, the net additional cost to HSSU for replacing Wilkins was approximately $23, 000.

         Wilkins filed suit against HSSU and the Board, claiming that her termination was in violation of the MHRA.[4] In Count I, Wilkins alleged that HSSU and the Board discriminated against her because of her race in deciding to terminate or not renew Wilkins's annual teaching contract. In Count II, Wilkins alleged that HSSU and the Board terminated her summer-teaching assignment in retaliation for raising a race-discrimination claim.

         During discovery, the trial court ordered the Board to preserve Dr. Smith's email account. In violation of this order, the Board deleted Dr. Smith's email account. Because of this violation, the trial court ruled, as a sanction, that the following allegations were deemed admitted: Dr. Smith's email account contained statements expressing her desire to make the Teacher Education Department "blacker" and that she recommended terminating Wilkins's employment.

          The case proceeded to a jury trial. At trial, Wilkins testified about the impact of the termination on her life. Wilkins testified that, since a very early age, she wanted to be a teacher. Growing up in a poor family, it was Wilkins's public school teachers who instilled confidence in her and made her feel smart. This experience imparted in Wilkins a desire to become a teacher and to help children from similar backgrounds.

         After graduating from high school, Wilkins attended Harris Teacher's College (the precursor to HSSU). Wilkins explained how Harris Teachers College (HSSU) made such a difference in her life. After graduating from college, Wilkins taught at an elementary school and later became a principal. Wilkins subsequently accepted a teaching position at HSSU because she wanted to teach others to become educators and she knew that many of the students at HSSU shared her background. Wilkins testified that she loved teaching future educators and that teaching was her life.

         When the Board terminated her annual contract, Wilkins recalled being in shock and continuing disbelief, especially because she had received an excellent evaluation from administrators just prior to her termination. Wilkins testified that the termination was very personal, as previously friendly administrators refused to explain why she was selected for termination or how she had committed the alleged misconduct. After Wilkins was fired from her summer-teaching position, HSSU's vice-president personally escorted Wilkins to her cubicle. The vice-president then rifled through Wilkins's fifes, ripped pictures off the wall, and ignored Wilkins repeated pleas for information. Wilkins was then marched to her car and off the campus. Wilkins was embarrassed and humiliated by this process; she felt that she was treated similarly to a former HSSU professor who had been fired and escorted from campus after lying about a previous child-molestation conviction.

          Wilkins expressed concern that her firing for "inappropriate activities" tarnished her professional reputation. Before her termination, Wilkins had planned to teach at HSSU for at least ten to twelve more years. Wilkins, though, was hopeful that she could work even longer- at least into her upper seventies-because many people of that age were still teaching at HSS U.Since her termination, Wilkins testified that she regularly checked for comparable jobs in higher education within commuting distance of St. Louis; however, no such openings were available. Wilkins could have applied for work as a principal in the city school districts. However, Wilkins did not seek these positions because principals generally work twice as many hours, experience significantly more stress, are on-call for school-related emergencies, are tasked with administering student discipline, must interact with parents, and are required to complete significant amounts of paperwork.

         The Board vigorously challenged its liability and Wilkins's damages at trial. In its defense, the Board pointed out that none of the board members, or any HSSU senior administrators, stated that race factored into the decision to terminate or hire employees. The Board maintained that Wilkins's firing was the product of HSSU's outdated operating structure. Further, HSSU officials testified that reorganization was required to balance the budget, even though new employees were hired to fulfill the eliminated teaching positions. The Board also stated that nine of the twelve layoffs were African-Americans. Notably, the only eliminated faculty member in the Teacher Education Department was Caucasian. Finally, the Board asserted that Wilkins did not provide sufficient evidence to support her claim for lost future income because she did not apply for any other employment since her termination.

         At the close of all the evidence, the Board moved for a directed verdict, arguing, among other things, that there was insufficient evidence of future damages because Wilkins could still obtain subsequent employment. The trial court denied the Board's motion. In the instruction conference, the Board objected to jury instructions permitting the jury to consider future damages and punitive damages. The trial court overruled the Board's objections, and instructed the jury with regard to both future and punitive damages.

         The jury found in Wilkins's favor and against the Board on both Count I and Count II. The jury awarded Wilkins $1, 350, 000 in compensatory damages and $3, 500, 000 in punitive damages. The trial court also awarded Wilkins her attorney's fees and costs. The Board filed post-trial motions, arguing for judgment notwithstanding the verdict ("JNOV"), remittitur, and for a new trial. The trial court denied the Board's post-trial motions. This appeal follows. On appeal, Wilkins moved for reasonable attorney's fees and costs, which we will address infra.

         Points on Appeal

         The Board raises five points. Point One alleges that the trial court erred in instructing the jury on future damages. In Point Two, the Board argues that the trial court erroneously permitted Wilkins to discuss and explain Section 174.150 to the jury because the statute was irrelevant to Wilkins's claim and misled the jury to the applicable law. Point Three charges the trial court with error for failing to remit the jury's award of compensatory damages because the verdict was grossly excessive and not supported by the evidence. Finally, the Board claims that the trial court erred in submitting the issue of punitive damages to the jury (Point Four) and that the trial court erred in failing to remit the jury's award of punitive damages (Point Five).


         I. Final Judgment

         Initially, we must sua sponte determine if the Board has appealed from a final judgment. Neither party contends that the trial court failed to enter a final judgment or that we lack jurisdiction to resolve the appeal. However, some confusion exists regarding the finality of the trial court's judgment because the trial court entered judgment on Wilkins's claims against the Board, but not on Wilkins's claims against HSSU.

         Before addressing the merits of the appeal, we must first determine whether we have jurisdiction. Johnston v. Saladino Meclu, 504 S.W.3d 138, 140 (Mo. App. W.D. 2016). The right to appeal is purely statutory, and therefore no right to appeal exists unless specifically delineated by statute. Buemi v. Kerckhoff, 359 S.W.3d 16, 20 (Mo. banc 2011). Applicable here, Section 512.020 provides in part that "any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his or her appeal to a court having appellate jurisdiction from any:... (5) [f]inal judgment in the case . .. ." Under this provision, therefore, "[a]ppellate review requires a final judgment, and where the judgment appealed lacks finality, we lack jurisdiction and must dismiss the appeal." Shea v. Gaither, 389 S.W.3d 725, 728 (Mo. App. E.D. 2013) (citing Columbia Mut. Ins. Co. v. Epstein. 200 S.W.3d 547, 549 (Mo. App. E.D. 2006)).

         In order to constitute a final judgment, [5] "the judgment must dispose of all parties, resolve all issues, and leave nothing for future determination." Lane House Constr., Inc.. v. Sithole. 504 S.W.3d 102, 106 (Mo. App. E.D. 2016). Initially, Wilkins sued the Board, HSSU, and three different individual administrators. Wilkins dismissed the three different individual administrators from the suit and tried its case against the Board and HSSU. At trial, the parties identified the Board as the proper defendant. Wilkins indicated that she would dismiss HSSU. However, she never did. In its judgment, the trial court only entered judgment against the Board.

         Despite not addressing Wilkins's claims against HSSU, the trial court adjudicated all claims against all parties when it entered judgment against the Board. HSSU is not a separate legal entity from the Board. See Bd. of Regents of Southwest Mo. State Univ. v. Harriman. 792 S.W.2d 388, 391 (Mo. App. S.D. 1990) (finding that a public university is not a separate legal entity from its statutorily established governing board). Accordingly, describing a public university's governing board by its fictitious name does not name a legal entity separate from the board, but rather identifies the board by its misnomer. Id. at 392-93.

         Here, Wilkins expressly identified the Board as a party in the pleadings and correctly alleged that the Board was responsible for the operation of HSSU. Wilkins's naming of HSSU only identified the Board by its misnomer. See id. As HSSU is not a separate legal entity, but rather only a duplicative name for the Board, the judgment adjudicated all claims against the sole remaining defendant. Therefore, the trial court's judgment was a final, appealable judgment, and we have authority to review the appeal on its merits.[6]

          II. Point One-Instructional Error on Future Damages

         In Point One, the Board charges the trial court with instructional error pertaining to Jury Instruction No. 8.[7] Instruction No. 8, which was patterned after MAI 4.01, [8] instructed the jury on Wilkins's compensatory damages.[9] The instruction called for the jury to award Wilkins a sum that it believed would fairly and justly compensate her for damages that she sustained "and is reasonably certain to sustain in the future" as a direct result of her termination. MAI 4.01 permits the addition of the elective phrase, "and is reasonably certain to sustain in the future [, ]" to the instruction if the phrase is "supported by the evidence." MAI 4.01, Notes on Use 2.

         Wilkins's proffered jury instruction included the elective phrase-"and is reasonably certain to sustain in the future"-which was given by the trial court over the Board's objection. Here, the Board argues that the elective phrase in Instruction No. 8 erroneously permitted the jury to award future damages because ...

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