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Vacca v. Missouri Department of Labor and Industrial Relations

Court of Appeals of Missouri, Eastern District, Second Division

November 7, 2017

MATTHEW D. VACCA, Plaintiff/Respondent/ Cross-Appellant,

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



         The Missouri Department of Labor and Industrial Relations (DOLIR or Department), Division of Worker's Compensation (Division); and Brian May (May) (collectively Appellants) appeal from the trial court's judgment in favor of Matthew D. Vacca (Vacca) on his claim alleging retaliation under the Missouri Human Rights Act (MHRA) in his Second Amended Petition. Vacca cross-appeals from the trial court's judgment granting May's motion for new trial on damages or in the alternative remittitur and reducing the punitive damages awarded against May. We affirm in part and reverse in part.

         Factual and Procedural Background

         Vacca filed suit against Appellants and former defendant Administrative Law Judge (ALJ) Karla Boresi (Judge Boresi) claiming the defendants violated the MHRA by discriminating against him on the basis of disability, creating a hostile work environment for him, and retaliating against him for complaining of discrimination. The parties tried the case to a jury between September 14, 2015, and September 25, 2015. At the conclusion of the evidence, Vacca elected to submit to the jury only his claim of retaliation against the Division and May. The evidence viewed in the light most favorable to the jury's verdict is as follows.

         Vacca was an ALJ with the Division from 1992 through June 2011. In the mid-1990's Vacca was diagnosed with muscular dystrophy, a chronic illness. He reported his condition to his employer in 1996.

         On February 5, 2008, Vacca asked then-chief ALJ of the Division, Judge Edward Kohner (Judge Kohner) and Division Director Jeff Buker (Director Buker) to upgrade the Division restroom to comply with Americans with Disabilities Act (ADA) standards as part of a potential remodel of the Division's office space. On February 14, 2008, in an email to Judge Kohner and Director Buker, Vacca alleged the Division's recent decision not to remodel the offices due to costs was part of a calculated effort to turn the other Division ALJs against him in retaliation for requesting ADA compliance. Vacca stated if the Division did not proceed with the office remodel as a whole, he would file a "complaint for violations of the ADA, the Human Rights Act, Retaliation under both Acts and [] conspiracy on the parts of many to violate [the MHRA]." Although the record does not contain Vacca's complaint, the evidence indicates Vacca lodged an ADA charge with the Equal Employment Opportunity Commission (EEOC) regarding the Division restroom in 2008. The restroom was upgraded in March or April of 2009 when the Division paid to install an ADA-compliant toilet and properly affix the grab bar.

         In 2008, ALJ Kathleen Hart (Judge Hart) became chief judge. Around August 2008, Judge Hart and Director Buker discussed modifying Vacca's duties and office hours to accommodate his disability. Under the arrangement, Vacca worked from home three days a week, and held trials and kept office hours the other two days. On August 14, 2008, in a personal memorandum for her own records, Judge Hart wrote she informed Director Buker during a telephone call that Vacca would focus on conducting trials and would handle fewer daily dockets and other duties. Judge Hart wrote "the 'essential function' of his job" would be to conduct trials and complete his awards quickly, and that "[h]e will conduct more trials than all the other judges and will not have the duty and floating judge assignments." The Division set up a home office for Vacca with a fax number, a computer, and dictation software for the computers at each of his offices.

         In April 2009, Judge Boresi became chief judge. In July 2010, Judge Boresi completed the 2010 Performance Management Plans (PMPs) for the ALJs in the St. Louis office. Judge Boresi rated ten judges, four of which received "successful" ratings, including herself. Judge Boresi rated Vacca as "successful." Vacca testified he believed this was a mediocre review and he should have been rated as "highly successful, " one level higher. After receiving his evaluation, Vacca emailed Judge Boresi indicating he believed her rating was "highly discriminatory" and reflected her "belief that a disabled person under a disability accommodation cannot be successful [or] highly successful."

         On August 10, 2010, Vacca started claims paperwork with Standard Insurance, Missouri's disability insurance carrier. In an accompanying letter to a DOLIR human resources employee, Vacca stated he was making a claim for long-term disability indicating he "may be disabled from performing material duties of my job [] at my employer's usual place of business on a sustained and permanent basis." Vacca stated he was enrolling in physical therapy and hoped to sufficiently recover to enable himself to perform his duties but he was initiating the disability claim "out of an abundance of caution." Vacca stated, "I plan to continue working as best I can under my Reasonable Accommodation pursuant to the ADA."

         On August 17, 2010, Vacca emailed DOLIR's Acting Director Peter Lyskowski (Director Lyskowski) stating he believed Judge Boresi was discriminating against him based on his disability and retaliating against him based on his discrimination complaint to the EEOC, asserting she was using her evaluation of his performance to take an adverse job action against him and was not honoring the terms of his reasonable accommodation. On August 20, 2010, Vacca again emailed Director Lyskowski alleging Judge Boresi was practicing favoritism by fabricating evidence in the PMP to raise the ratings of ALJs she liked and using the PMP to harass him based on his disability and prior EEOC complaint. In the email, Vacca indicated he filed preliminary papers for disability benefits due to Judge Boresi's "hostility and harassment[.]" Director Lyskowski directed Cornell Dillard (Dillard), a DOLIR human resources employee, to investigate Vacca's claims against Judge Boresi.

         On September 23, 2010, Vacca emailed Director Lyskowski, Dillard, and Judge Boresi alleging Judge Boresi was not assigning him enough trials for him to meet the requirements of his reasonable accommodation as retaliation for his allegations of age, sex, and disability discrimination in her performance evaluations of him and other older, white male ALJs. On September 30, 2010, Vacca emailed Director Lyskowski and Dillard again stating Judge Boresi committed an act of retaliation against him by assigning the one trial available on September 28, 2010, to another judge.

         On October 8, 2010, Dillard completed his investigation into Vacca's August 17, 2010 complaint and concluded Vacca's claims of discrimination and retaliation against him by Judge Boresi were unsubstantiated. Dillard found the PMP "successful" rating was not an unfavorable evaluation, was appropriate and fair, and there was no evidence the rating would be used to detrimentally alter the terms or conditions of Vacca's employment. Dillard noted Vacca's ADA complaint against the Division was filed prior to Judge Boresi becoming chief judge when she did not serve in any supervisory capacity and she was not involved in responding to the complaint. Dillard reported Judge Boresi stated Vacca frequently arrived after 9:30 a.m. on the days he came into the office, which resulted in him not being assigned cases. At that time, Dillard noted there was no evidence Vacca made a formal request for a reasonable accommodation due to disability as outlined under the ADA or that the proper procedure for making such an accommodation was followed. Dillard reported Vacca's modified work schedule and duties were devised by Judge Hart and former Director Buker, and there was no record of Vacca requesting a modification based on an inability to perform certain functions of his job and no submission of medical documentation to support the accommodation. Dillard suggested DOLIR's procedure be followed for approving the accommodation since it appeared it would be ongoing.

         That day, Director Lyskowski informed Vacca of the result of Dillard's investigation; supplied Vacca with a contact in DOLIR's human resources office in order to properly request a work accommodation in line with his current modified duties; and advised Vacca to follow the Department's formal grievance process and contact Dillard to file a grievance in the event of future or ongoing claims of discrimination.

         Vacca then filed a formal grievance with the Department complaining Judge Boresi was using the case assignment process to retaliate against him. On October 14, 2010, Dillard met with Vacca to discuss his allegation Judge Boresi retaliated against him by refusing to assign him sufficient cases to meet his performance goals. On October 27, 2010, Dillard issued his decision finding there was no evidence to substantiate Vacca's claim of retaliation, noting Vacca had averaged the same number of case assignments every year since 2008.

         Meanwhile, on October 25, 2010, Vacca filed a charge with the Missouri Commission on Human Rights (Commission) and the EEOC against Judge Boresi, Dillard, and Director Lyskowski, all related to Judge Boresi's evaluation rating based on alleged race, sex, age, and disability discrimination and retaliation for his prior complaint about the restroom facilities. Vacca also alleged Dillard was conspiring with Judge Boresi to deprive him of his reasonable work accommodation and was purposefully making the complaint process difficult by refusing to "take any action" on his claims of discrimination and retaliation unless Vacca filed his requests and complaints on the Department's forms. Vacca's claim against Director Lyskowski was premised upon his failure to take reasonable measures to stop the alleged retaliation.

         Sometime during the last week of December 2010, May became Director of the Division.

         On January 3, 2011, Vacca renewed his application for long-term disability benefits with Standard Insurance. In a letter to the insurer, Vacca referenced his August 2010 application which was not completed because he was able to continue working and indicated he was renewing his claim because, "[u]nfortunately, I am no longer able to work." In his January 3, 2011 application, Vacca stated his last full day of work was December 7, 2010; he was unable to work as of January 1, 2011; and that he continued "to work for my current employer to the extent of my abilities and to finish work I have begun."

         On January 5, 2011, the ALJ Review Committee (Committee) convened to conduct a performance audit review of several ALJs. On that date, May and Lyskowski, who was no longer DOLIR's Director but was now a member of the Committee, instructed Judge Boresi to supplement her performance review of Vacca by addressing Vacca's work hours, accessibility, professionalism, and a lawsuit Vacca filed challenging Judge Boresi's position as chief judge.

         Judge Boresi completed the supplemental PMP on January 7, 2011. In the supplement, Judge Boresi defended her review of Vacca based on the outlined areas of concern. This included information as to Vacca's office hours and his availability when working outside the office; allegations Vacca had yelled, used profanity, and called attorneys practicing before the Division "trailer trash, " "pathetic, " and "scum" in a staff meeting; and, in a follow-up meeting with Judge Boresi, labeled the attorneys as "bottom feeders" and "pedophiles." Judge Boresi's supplemental report and enclosed materials included two references to Vacca's discrimination claim against her filed with the Commission and the EEOC; a single page from Vacca's discrimination complaint against Judge Boresi in which Vacca defends his comments about attorneys practicing before the Division based on his constitutional right to free speech; a general reference to the prior ADA complaint regarding the Division bathrooms in a personal memo written by Judge Hart; and copies of documents from Vacca's lawsuit against Judge Boresi challenging her position as chief judge which included allegations she was using the PMP to retaliate against him for filing the first discrimination claim, including the court's order dismissing his action.

         Vacca was provided with Judge Boresi's supplemental PMP and, on January 11, 2011, sent his response to the Committee for its consideration. Vacca alleged Judge Boresi was again retaliating and she included the information on the lawsuit in order to make him look bad, as the lawsuit was irrelevant to his evaluation and the Committee's involvement in the case was improper and constituted an infringement on his first amendment rights and his freedom to access the courts to determine legal disputes. Vacca accused Judge Boresi of using the Committee to retaliate against him because she filed the supplemental information after he filed the lawsuit and the EEOC complaint, and asserted she provided the information in a calculated attempt to bias the Committee and smear his reputation and alternatively accused the Committee's seeking of additional information as being politically motivated.

         On January 12, 2011, the Committee reconvened. During the meeting, the Committee discussed the propriety of Vacca filing a lawsuit against a fellow ALJ; Vacca's modified work duties and schedule; Vacca's refusal to complete requested grievance and accommodation forms; Vacca's application for long-term disability benefits; and the October 2010 EEOC charge of discrimination. The Committee issued a vote of no confidence against Vacca in a 4-1 vote. The minutes indicate May was going to discuss with Vacca his office hours and that he "[s]hould not run over people, " and May would provide Vacca with the necessary "forms" and offer their "concerns."

         On January 13, 2011, May informed Vacca of the no confidence vote. On January 19, 2011, May personally delivered a letter to Vacca acknowledging Vacca was currently working under a modified schedule and duties and that the current arrangement was approved by Judge Hart as reasonable and necessary. May requested Vacca complete an enclosed Request for Accommodation Form to advise the Division of any particular reasonable accommodation he might require and provide medical information to support the accommodation. In a follow-up email on January 27, 2011, May again acknowledged Vacca's current modified work schedule and duties but indicated his disagreement with Vacca that he had a "reasonable accommodation" as it was not properly requested and documented, and requested Vacca begin the process to do so.

         On February 14, 2011, Vacca responded to May's email indicating he needed to continue his current modified work duties and office hours and requested additional accommodations. Vacca stated his condition had deteriorated since the original accommodation began; he needed to sleep when necessary, usually at 10:30 a.m. and at 2:00 or 3:00 p.m.; he must lie down or recline or lie in a tub of hot water when necessary; he experienced exhaustion, pain, and swelling; he cannot walk, stand, take notes or type for more than 10 to 15 minutes; he needed to lie down frequently and change positions; he sleeps 12 hours a day and is exhausted after being awake 6 hours; and "I find it very difficult to work in the office the two days that I currently do[.]" In his letter, Vacca advised May that the physician's statement he was relying on from the Mayo Clinic "declined to determine work limitations or suggest accommodations because he does not have any first-hand knowledge of my work and is not an ergonomic expert. He rightfully suggested to me that limitations and accommodations" are matters for the employer and employee to decide and not the physician. On February 16, 2011, Vacca returned the Request for Accommodation Form to May.

         On February 28, 2011, Vacca submitted to Standard Insurance two physician's statements, neither from the Mayo Clinic, supporting his claim for long-term disability benefits indicating he was currently working under a reasonable accommodation but that he could no longer work with any "reasonable work or job site modification" and that he had a regressive condition with no expectation of improvement.

         On March 14, 2011, Tammy Cavender (Cavender), the Department's Director of Administration and the human resources manager who handles requests for work accommodations, contacted Vacca seeking additional information from Vacca's physician regarding Vacca's limitations in support of his request for workplace accommodations. On April 26, 2011, Vacca emailed Cavender requesting additional time to secure the necessary physician's statement.

         On May 16, 2011, as a result of Vacca's application for long-term disability benefits and the representations contained therein, Standard Insurance awarded Vacca long-term disability benefits. Cavender testified Vacca called her the following day and she explained to him that the Department treats the application for and approval of long-term disability benefits as a voluntary resignation because the benefits are intended for persons unable to do their jobs. Cavender testified Vacca informed her during their telephone call and later by email that he wanted to continue to work.

         Cavender then met with May and the Division's legal counsel to discuss the implications of Vacca receiving long-term disability benefits. May testified following this meeting it was his understanding that receipt of long-term disability benefits amounted to a resignation by operation of law. Cavender testified when people apply for long-term disability it is because they can no longer do their job and the Department treats it as a voluntary resignation.

         On May 24, 2011, the Division's human resources department received a letter dated April 26, 2011, from Dr. Sean Taylor of the Mayo Clinic, one of Vacca's physicians, responding to Cavender's March 14, 2011 request for additional information to support Vacca's request for workplace accommodations. Dr. Taylor opined Vacca could continue working under his current modified work hours and duties.

         On June 7, 2011, May hand-delivered a letter to Vacca informing him he no longer worked at the Division based on his being granted long-term disability benefits and the determination pursuant to Section 287.855[1] the application for and obtaining of long-term disability benefits amounted to a resignation. Up until this time, Vacca had continued to work under his modified work schedule and duties. The letter stated in part:

Under [Section] 287.855, long-term disability benefits may only be awarded based upon the total incapacity of an administrative law judge to perform any duties of that position. For this reason, the award of long-term disability benefits to an administrative law judge is inconsistent with the judge continuing to serve in that position. Your application for and obtaining of a decision granting you long-term disability benefits is a resignation from your position as an [ALJ].

         In August 2011, Vacca amended his charge of discrimination with the Commission and the EEOC to include his termination.

         In January 2012, Vacca stated in his verified dissolution petition that he could not work, averring he was permanently and completely disabled and was no longer capable of being employed. Vacca made a claim for maintenance in his dissolution petition asserting he was unable to support himself through appropriate employment due to his total and permanent disability and he should not be required to seek employment outside the home. In May 2012, in his dissolution proceeding, Vacca testified he did not have the ability from a mental or emotional standpoint to work in any type of employment, stating:

I just can't keep facts straight anymore, and it's just difficult to do that type of thing any longer. You know, I sleep so much. I'm generally always exhausted.
Anybody who wants to hear I'm like a cellphone that's constantly running in the red with a battery about to die. It's just - - you know, it's an exhausting day, and just getting through the daily, you know, things associated with just getting food on the table and getting up, having some kind of routine, it's just, you know, I tried to do it as long as I could, but I just - - I can't do it anymore.

         After the trial in his dissolution and before trial in this case, Vacca amended his dissolution petition from asserting he was permanently and completely disabled and incapable of any employment to stating he was permanently and completely disabled and incapable of being employed other than as an ALJ.

         In September 2015, during trial in this case, Vacca testified he could have worked as an ALJ every day "virtually" until his death and until he was at least 75 years old, and his total lost salary and benefits was more than $2.8 million, based on an additional 20 years of working full-time.

         At the beginning of the seventh and last day of testimony, Vacca abandoned all of his claims against Judge Boresi. At the conclusion of the evidence, Vacca abandoned his discrimination and hostile work environment claims against Appellants. The sole issue submitted to the jury for consideration was Vacca's claim of retaliation against May and the Division, alleging Vacca's complaint of employment discrimination based on disability was a contributing factor in May's termination of Vacca's employment.

         The jury returned a verdict in favor of Vacca and awarded him $4 million in compensatory damages, $2.5 million in punitive damages against the Division, and $500, 000 in punitive damages against May. The trial court granted May's request for remittitur, reducing the punitive damages award against him to $5, 000. This appeal follows. ...

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