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Mignone v. Missouri Department of Corrections

Court of Appeals of Missouri, Western District, Third Division

February 6, 2018

JANET MIGNONE, Respondent,

         Appeal from the Circuit Court of DeKalb County The Honorable J. Bartley Spear, Jr., Judge

          Before Alok Ahuja, P.J., and James Edward Welsh and Anthony Rex Gabbert, JJ.

          Alok Ahuja, Judge

         Respondent Janet Mignone was employed as a Corrections Officer I at the Department of Corrections' Western Missouri Correctional Center in Cameron. Mignone filed suit against the Department in December 2012. She alleged that she had been the victim of sexual harassment in her employment in violation of the Missouri Human Rights Act (or "MHRA"), § 213.010, RSMo et seq. Mignone also alleged that Department employees had retaliated against her for complaining about the sexual harassment.

         Following a five-day trial, a jury returned a verdict in favor of the Department on Mignone's sexual harassment claim. The jury found in Mignone's favor, however, on her two claims of retaliation. The jury awarded her $100, 000 in compensatory damages, and $1 million in punitive damages.

         The Department appeals. We affirm, and remand the case to the circuit court for it to award Mignone her reasonable attorney's fees and expenses on appeal.

         Factual Background

         From September 2008 to April 2013, Mignone worked for the Department of Corrections at the Western Missouri Correctional Center in Cameron. At the time of the events giving rise to this lawsuit, Mignone was employed as a Corrections Officer I in Housing Unit 6. Sergeant James Nuckols was Mignone's direct supervisor.

         In late 2010 or early 2011, Mignone began working with Kevin Fagan, another Corrections Officer I, in Unit 6. Mignone and Fagan initially got along, and she and Fagan had once gone out to dinner with their respective spouses. Their relationship changed, however, in the last six-to-nine months that they worked together.

         According to Mignone's testimony, by May 2011 Fagan had become obsessed with her. He called her nicknames, including "babe" and "Italian girl, " and told inmates not to bother "my Mignone." Fagan would follow Mignone to her car in the parking lot and clean her windows; inmates also told Mignone that Fagan stared at her. Fagan offered her motorcycle rides late at night, telling her that "[n]obody needs to know about it." Mignone asked Fagan to stop because she was feeling uncomfortable, but his familiar and flirtatious behavior continued.

         Mignone first reported Fagan's conduct to Sgt. Nuckols in October or November 2011, and told Nuckols that she wanted Fagan's conduct to stop. Nuckols testified that he addressed the issue with Fagan, but the behavior continued. Mignone did not make a written complaint at that time.

         In December 2011 and January 2012, a series of incidents occurred involving Mignone's use of a single-person bathroom in an area of the prison known as "the bubble." The bathroom had a dead-bolt on the inside which the occupant could lock, but the door could be unlocked from the outside with a key. In December 2011, on two different occasions, someone unlocked the bathroom door from the outside while Mignone was using the bathroom. She yelled "stop" on both occasions, and no one opened the door or entered. Mignone did not know who it was. On both occasions she asked co-workers who witnessed the incidents for the identity of the perpetrator, and on both occasions her colleagues identified Fagan.

         A similar incident occurred on January 15, 2012. As Mignone entered the bathroom three male employees were present, including Fagan and Nuckols. As Mignone was urinating, the bathroom door unlocked and began to open. Mignone lurched for the doorknob, grabbed it, and pulled the door shut, screaming, "Don't! Stop!" In reaching for the doorknob, Mignone urinated on her clothes. As she exited the bathroom, Nuckols laughed and spun around in his chair to avoid facing her. Mignone said that it was not funny.

         Nuckols admitted witnessing Fagan unlock the bathroom door on January 15, 2012. He also admitted that a few days prior to this incident, Mignone had told him that Fagan was unlocking the bathroom door. Nuckols admitted that he had not addressed the issue with Fagan prior to January 15, purportedly because their schedules had not overlapped, and because he forgot.

         Following the January 15, 2012 incident, two similar incidents occurred on the very next night. Both were witnessed by Corrections Officer I Dwayne Fidler. He testified that he saw Fagan unlock the bathroom door twice while Mignone was inside. On the second occasion, after unlocking the door Fagan said, "move over and make room for me in there."

         According to Mignone, Fagan opened the bathroom door, and this time she confronted him directly. Fagan did not respond, and never apologized.

         On January 17, 2012, Mignone reported the bathroom incidents to Captains Dusty Jones and Cody Ross. Although Fagan was briefly transferred out of Unit 6, the Department returned him to the unit during the first week of February 2012.

         Captain Jones asked Mignone to write an inter-office communication about the allegations involving Fagan, which she did on January 24. Following this written complaint, Jones collected statements from a number of witnesses. Jones drafted a memorandum and submitted it to Deputy Warden Chris McBee. The packet of information was forwarded to the Department's central Human Resources office in Jefferson City on January 27, 2012. After reviewing Jones' memorandum, the Human Resources department did not recommend an investigation. Because Fagan admitted to unlocking the bathroom door while Mignone was inside, Human Resources returned the matter to prison management for supervisory action, and recommended that Fagan be submitted for discipline. Fagan was suspended for one day without pay.

         On February 9, 2012, Mignone met with Function Unit Manager Paden and Lieutenant Penland. At the meeting, Mignone was asked to agree to continue working with Fagan. She refused.

         On February 16, 2012, Mignone was transferred out of Unit 6.[1] Over the following several months, she worked at housing units all over the facility, until she was placed in Unit 10 in Fall 2012. The explanation Mignone received at the time of her transfer was that inmates had made a death threat against her. According to Mignone, she was told that a "kite" (or note) with a threat had been found, along with a shank. Although Mignone requested to see the items, she was not shown either a kite or a shank, and was later told by Department supervisors that the threat was verbal, not written. Officer Jani Holt conducted an internal investigation into the threat, and issued a report on April 20, 2012. Holt reported that she "sincerely doubt[ed]" that "an actual 'hit' [had been] placed on COI J. Mignone." Holt's report stated that Mignone "thinks it is all a ploy to get her out of six (6) house and I would agree with that completely."

         When Mignone asked about the status of her request to be transferred back to Unit 6 in May 2012, she was informed by the Warden that the investigation into the death threat had not been completed, and that her request to return to Housing Unit 6 would be reevaluated after the investigation concluded. Despite the Warden's claim that the internal investigation of the threat was ongoing, Holt's investigative report had been sent to the Warden weeks earlier. Moreover, on May 23, 2012, the Warden's clerical assistant sent an email stating that "the administrative inquiry where the offender made a threat is complete. However, the matter between [Mignone] and Officer Fagan is not so they have not returned her to her post." The Warden acknowledged that, after completion of the investigation of the death threat, Mignone should have been returned to Unit 6, and Fagan should have been reassigned.

         On May 9, 2012, Mignone reported to Lieutenant Lorieann Hunter that Sgt. Nuckols had inappropriately touched her thigh in November 2011. According to Mignone's testimony at trial, Nuckols called her over to him at the beginning of a shift while he was seated in a chair, and placed his hand on her thigh. When Mignone jumped back and asked what he was doing, Nuckols said that there was something on her pants. Nuckols denied the allegation.

         Mignone was interviewed by Investigator Bill Johnson on August 7 and 15, 2012, concerning her complaint against Sgt. Nuckols. Mignone's co-worker Officer Keithly sat in on the second interview as a co-worker representative. During the second interview, Johnson pressured Mignone to put her statements in writing, even though she objected because she did not want to guess on dates. Mignone felt like Johnson wanted her to write something inaccurately so she could be punished. Johnson raised his voice, causing Mignone's heart to race. Keithly described Johnson's demeanor as "aggressive" because he was very pushy and would not give Mignone time to answer. Mignone became visibly upset. She hyperventilated and passed out, and struck her head as she fell, causing a concussion. Johnson did not get out of his seat to assist her. Mignone was transported to the hospital by ambulance, and was on leave for a week.

         Beginning on October 3, 2012, supervisors completed a series of five "Employee Performance Log" entries concerning alleged acts of misconduct by Mignone, which became part of her personnel file. Mignone had not received any such log entries prior to October 2012.

         The first entry concerned Mignone's alleged refusal on October 3, 2012 to report to Officer Holt to be interviewed as part of Holt's investigation. The log entry states that Mignone's conduct "demonstrate[d] blatant insubordination" and "a significant degree of unprofessionalism." The entry warned Mignone that "any further occurrences of this nature could result in further action being taken, " and that she would "be closely monitored for any further incidents of this nature." The log entry was signed by multiple supervisory employees.

         Mignone protested the log entry, contending that she did not refuse to meet with Holt, but instead merely asked for additional information. She also contended that the request that she meet with Holt should have been directed to her attorney, who had previously notified the Department by certified mail that he was representing Mignone in connection with her claims of sexual harassment. The Department denied Mignone's request to remove the log entry from her personnel file. It documented its refusal to rescind the earlier log entry both in a letter, and in a further Performance Log entry, which was once again signed by multiple supervisors.

         Mignone received a third log entry on December 12, 2012. This entry asserted that, in an interaction with an inmate, she "began making exaggerated gestures/movements with her arms and legs, " which were "visibly on display to the offenders assigned to the wing." The log entry also contended that, in later reaching across a desk for paperwork to sign, Mignone "entered [another Corrections Officer's] personal space with her arms and upper torso, " making her co-workers uncomfortable.

         On January 16, 2013, Mignone was subject to a further log entry, in which she was accused of "sharing information of a sensitive/confidential nature" by informing another Corrections Officer that this lawsuit was pending, and that a supervisor "gave me a write up for nothing." The log entry also noted that another Corrections Officer reported to a supervisor's office with two unsigned, printed copies of a report Mignone had prepared concerning a claim of sexual harassment.

         Finally, on January 30, 2013, a log entry was prepared contending that Mignone "was observed walking down the front walk at which time she turned around and skipped backwards halfway down the walk upon entering [Housing Unit] 10." The log entry contended that Mignone's conduct "poses a safety concern" and "appears unprofessional in nature."

         Mignone testified that none of the log entries were justified; she explained that the claimed conduct did not occur, or that it was subject to a benign explanation. The evidence indicated that the log entries constituted a formal counseling, were the most severe form of discipline a Sergeant could issue without approval of higher-level supervisors, and that the log entries were recorded in an employee's annual performance appraisals. Mignone testified that she understood the log entries to be formal documents telling her she had done something wrong, and that they negatively impacted her employment. With respect to the December 2012 entry, Mignone testified that it made her feel "[d]egraded like no other."

         Mignone was treated by a family-practice physician, Dr. Rodney Malisos, and by a clinical social worker, Christine Urie, in 2012 and 2013. Dr. Malisos testified that Mignone reported being "under a lot of stress, " and told him that she was there for follow-up on a recent urgent care visit for anxiety. Dr. Malisos diagnosed Mignone with anxiety and post-traumatic stress disorder, and prescribed her fluoxetine, an antidepressant medication, and the "herbal product" Sentra AM.

         Urie testified that Mignone's primary complaint on her first visit was that a coworker at WMCC had opened the bathroom door two times in January 2012. Mignone told Urie she was experiencing nightmares and physical symptoms, including a racing heart and fear at the workplace. Urie diagnosed Mignone with post-traumatic stress disorder. Urie also testified that the fact that Mignone "was getting written up directly caus[ed] or directly contribut[ed] to cause [her] to suffer emotional distress." Urie characterized Mignone as "affect scared" because she believed she was going to lose her job.

         Mignone submitted three claims to the jury: (i) sexual harassment based on Fagan's conduct and comments; (ii) retaliation for her complaints against Fagan, in the form of a job reassignment and Performance Log entries; and (iii) retaliation for complaint against Nuckols, in the form of Johnson's "hostile or intimidating" interview on August 15, 2012. The jury returned a verdict in favor of the Department and against Mignone on the sexual harassment claim, but found in her favor on both of her retaliation claims. The jury awarded Mignone $100, 000 in actual damages, and assessed punitive damages at $400, 000 on her claim of retaliation for reporting Fagan's conduct, and $600, 000 on her claim of retaliation for reporting Nuckols' conduct. In addition to the compensatory and punitive damages awarded by the jury, the circuit court's judgment also awarded Mignone $276, 186 in attorney fees and costs.

         The Department appeals.



         The Department's first three Points allege errors in the jury instructions.

Whether a jury was instructed properly is a question of law that this Court reviews de novo. This Court views the evidence in the light most favorable to submission of the instruction. The party challenging the instruction must show that the offending instruction misdirected, misled, or confused the jury, resulting in prejudice to the party challenging the instruction.

Ross-Paige v. St. Louis Metro. Police Dep't, 492 S.W.3d 164, 172 (Mo. banc 2016) (citations and internal quotation marks omitted). "Instructional errors are reversed only if the error resulted in prejudice that materially affects the merits of the action." Hervey v. Mo. Dep't of Corr., 379 S.W.3d 156, 159 (Mo. banc 2012) (citation omitted).


         The Department first argues that the trial court erred in submitting jury Instruction No. 12, the verdict director submitting Mignone's claim that she was subject to retaliation based on her complaints of sexual harassment by Kevin Fagan. Instruction No. 12 included six alleged retaliatory actions, stated in the disjunctive. According to the Department, Mignone failed to present sufficient evidence to support each of the alleged acts, and the disjunctive submission therefore constituted reversible error.

         Instruction No. 12, proffered by Mignone, read as follows:

Your verdict must be for plaintiff and against defendant on plaintiff's claim of unlawful retaliation if you believe:
First, Plaintiff reasonably believed that she was subjected to unwelcome comment(s) or conduct by Kevin Fagan, and
Second, either
Defendant reassigned Plaintiff from Housing Unit 6 to Administrative Segregation, or
Defendant issued Plaintiff a log entry for insubordination on or about October 11, 2012, or
Defendant issued Plaintiff a log entry on or about October 17, 2012, or
Defendant issued Plaintiff a log entry on or about Dec [sic] 12, 2012 for making exaggerated gestures/movements with her arms legs and for leaning across a desk, or
Defendant issued Plaintiff a log entry on or about January 16, 2013, for telling another officer she had a lawsuit ...

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