         IN THE MISSOURI COURT OF APPEALS
                 WESTERN DISTRICT
KURT D. ELLISON,                           )
                                           )
               Respondent,                 )
                                           )
vs.                                        )       WD77728
                                           )
O'REILLY AUTOMOTIVE                        )       Opinion filed: March 24, 2015
STORES, INC.,                              )
                                           )
               Appellant.                  )

      APPEAL FROM THE CIRCUIT COURT OF PLATTE COUNTY, MISSOURI
             THE HONORABLE JAMES W. VAN AMBURG, JUDGE

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


       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,”



                                               2
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.

       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



                                                 3
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.

                                                  4
       A few days later, Ms. Beck, Ms. Spigle, Mr. Weiskirch, and Mr. Kaiser had a 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 Mr. Ellison an amended letter of concern addressing commercial sales, store

appearance, and leadership.

       On August 3, 2010, Mr. Weiskirch emailed his district managers and noted that six of the

ten stores had increases in sales for July. Mr. Ellison’s store 1216 had the highest sales increase

in the district of 17.9%.

       On August 24, 2010, Mr. Weiskirch placed Mr. Ellison on 90-day probation and noted

three areas of concern: store appearance, leadership, and a new area of “employee training

compliance.”

       On October 1, 2010, Mr. Weiskirch emailed his district managers about September store

sales and noted that Mr. Ellison’s store had the second highest increase in the district of 15%.

Three days later on October 4, 2010, Mr. Weiskirch emailed Ms. Spigle and Mr. Kaiser and

stated that Mr. Ellison “continues to struggle” and had “completely lost his team” and asked for

approval to demote. He noted good sales but struggles in store appearance. Around this same

time, Mr. Weiskirch met with Khyla Bailey, an employee in Mr. Ellison’s store. He asked Ms.

Bailey if she felt Mr. Ellison was a good leader and whether he could keep up with his

management duties. Ms. Bailey replied that she did and that she did not see any areas of concern




                                                5
regarding Mr. Ellison’s management. Mr. Weiskirch also asked Ms. Bailey if she had ever seen

Mr. Ellison fall, and she said that she had not.

       On November 3, 2010, Mr. Weiskirch and Mr. Kaiser told Mr. Ellison that he was being

demoted. Mr. Weiskirch did not explain to Mr. Ellison why he was being demoted, and he did

not document anything about the conservation with Mr. Ellison. During the meeting, Mr. Ellison

asked if he could stay on as an assistant manager or in an ISS position but was told that he could

not because those were leadership positions. The next day, Mr. Weiskirch, Mr. Kaiser, and Ms.

Beck had a conference call with Mr. Ellison. Ms. Beck asked Mr. Ellison whether he had any

limitations or accommodation requests, and he replied that he did not.

       On November 7, 2010, O’Reilly Automotive officially demoted Mr. Ellison from his

store manager position to a parts specialist position. Mr. Ellison testified that the parts specialist

position is more physically demanding than the store manager position and that he has no

problems performing the essential functions of that position. Mr. Weiskirch testified that there

were two main reasons for the demotion: leadership and overall condition of the store. Mr.

Ellison’s demotion resulted in a significant pay cut. As a store manager, he earned a salary plus

commissions, bonuses, and stock options. As a parts specialist, he earns $12 an hour and has not

had a raise since his demotion.

       After Mr. Ellison was demoted, he was asked to take a Fitness for Duty medical exam.

He did and was cleared to do anything at the store that he needed to do. Also after Mr. Ellison’s

demotion, HR directed Mr. Weiskirch to document occurrences with Mr. Ellison on the job. Mr.

Weiskirch sent an email to HR on November 24, 2010, listing the following: customer not being

able to understand Mr. Ellison (November 8, 2010); Mr. Ellison dropped a strut assembly

(November 10, 2010); coworker heard Mr. Ellison fall while mopping (November 12, 2010); and



                                                   6
Mr. Ellison had fallen backwards at the counter (November 15, 2010). Ms. Beck responded to

the email the same day saying that Mr. Ellison “is now a safety issue.”

       In March 2011, Mr. Ellison sent a letter to HR complaining that he thought his demotion

was because of his disability. Thereafter, he filed a charge of discrimination with the Equal

Employment Opportunity Commission and the Missouri Commission on Human Rights.

Sometime after these charges, HR directed Mr. Weiskirch to document instances of customer

complaints about not being able to understand Mr. Ellison on the phone during the time when he

was a store manager. Per HR’s directive, Mr. Weiskirch asked Dan Neal, the territory sales

manager who serviced the commercial customers of the store managed by Mr. Ellison, to provide

such a list of customers. Mr. Neal assumed the request was made for “a legal issue” because he

could think of no other reason for it. On April 20, 2011, Mr. Neal faxed Mr. Weiskirch a list of

three customers with such complaints.

       Mr. Ellison brought this suit under the MHRA. He alleged that his disability was a

contributing factor in O’Reilly Automotive’s decision to demote him from store manager to a

lower-level parts specialist position. O’Reilly Automotive moved to bifurcate the trial under

section 510.263, and the request was unopposed.

       Mr. Ellison, Mr. Weiskirch, and Ms. Beck all testified that Mr. Ellison’s physical

impairments related to his disability did not interfere with his job performance as store manager

and that he could perform all of the essential job functions of that position. Mr. Ellison did not

need any accommodations to perform his job as store manager and never asked for any. Mr.

Weiskirch, Ms. Beck, and Ms. Spigle all acknowledged that discrimination is wrong and that

treating disabled employees differently in the terms or conditions of their employment is illegal.




                                                 7
        Mr. Ellison testified that his store was understaffed through much of 2010. He also

testified that with the high level of retail business that the store was doing all day, it was difficult

to find time to straighten and dust shelves. He said that he asked Mr. Weiskirch for help with

these issues but that Mr. Weiskirch responded that the store was adequately staffed and that he

would need to resolve the cleanliness issues on his own. Mr. Ellison explained that he did not

get the support from Mr. Weiskirch that he needed to run the store and that Mr. Weiskirch set

unattainable goals. Former employees, Ms. Bailey and Ms. Turner, also testified that they felt

the store was understaffed.

        Mr. Ellison further testified that he was aware at times that some customers had trouble

understanding him on the phone. He explained that when he felt it was a concern, he would go

to the customer and make certain their needs were met. He explained that it helped to meet the

customer face-to-face because they could understand him better and that understanding would

transfer back to the phone.

        Mr. Ellison also testified that he has felt worthless and depressed since the demotion in

2010.   His wife testified that after the demotion, Mr. Ellison became depressed, stopped

functioning as a parent, and withdrew from the family. Mr. and Mrs. Ellison also testified that

the change in Mr. Ellison’s hours causes him to miss a lot of the family and children’s activities

that he was able to do before.

        Finally, Mr. Ellison presented evidence regarding the performance reviews and discipline

of other store managers in the same district between 2008 and 2012. Like in Mr. Ellison’s 2010

review, five store managers received an overall rating of “needs improvement” during that time.

All had similar ratings in the individual categories as Mr. Ellison. One of these store managers

was placed on a 90-day probation. When he failed to improve in some of the areas of the first



                                                   8
probation, he was put on a second 90-day probation. He was not demoted. Another store

manager, who Mr. Weiskirch noted in the review had lost the confidence of his team and his

sales customers, was demoted from a store manager to an assistant store manager. The other

three store managers who received similar performance reviews did not receive a letter of

concern, were not put on probation, and were not demoted. Mr. Ellison also introduced evidence

that another store manager in the district had been put on probation after failing a store audit in

2008. While on probation, he was accused of making a sexual reference to a new employee. He

was not demoted but transferred to the store manager position of another store. Finally, Mr.

Ellison presented evidence of the store audit scores of other stores in 2010. Three other stores in

the district had lower scores than Mr. Ellison’s 87, and four other stores had similar scores to his

store in the 86 to 89 range. None of the other managers were demoted.

       In stage one of the trial, the jury found that O’Reilly Automotive was liable for disability

discrimination, awarded compensatory damages of $200,000, and found that O’Reilly was liable

for punitive damages. In stage two, the jury awarded punitive damages in the amount of

$2,000,000. Accordingly, the trial court entered judgment in favor of Mr. Ellison and also

awarded front pay of $40,297.45 and attorney’s fees/costs of $200,411.92 for a total award of

$2,440,709.37. This appeal by O’Reilly Automotive followed.

                              Submissibility of Punitive Damages

       In the first point addressed on appeal, O’Reilly Automotive contends that the trial court

erred in submitting punitive damages to the jury because Mr. Ellison failed to show that its

conduct was outrageous because of an evil motive or reckless indifference to the rights of others.

       Section 213.111, RSMo 2000, permits the recovery of punitive damages in an action

brought under the MHRA. Gilliland v. Missouri Athletic Club, 273 S.W.3d 516, 520 (Mo. banc



                                                 9
2009). Whether there was sufficient evidence for an award of punitive damages is a question of

law. Howard v. City of Kansas City, 332 S.W.3d 772, 788 (Mo. banc 2011). “A submissible

case for punitive damages requires clear and convincing proof that the defendant intentionally

acted ‘either by a wanton, willful or outrageous act, or reckless disregard for an act’s

consequences (from which evil motive is inferred).’” Id. (quoting Werremeyer v. K.C. Auto

Salvage Co., 134 S.W.3d 633, 635 (Mo. banc 2004)). In determining whether the evidence was

sufficient to submit the claim for punitive damages, the evidence and all reasonable inferences

are viewed in the light most favorable to submissibility. Id. A submissible case is made if the

evidence and inferences are sufficient to allow a reasonable juror to conclude that it is highly

probable that the defendant’s conduct was outrageous because of evil motive or reckless

indifference. Id.

       “The defendant must have intentionally committed a wrongful act without just cause or

excuse.”   Id. (internal quotes and citation omitted).   If the defendant intentionally does a

wrongful act and knows at the time the act is wrongful, it is done wantonly and with a bad

motive. Beggs v. Universal C.I.T. Credit Corp., 409 S.W.2d 719, 722-23 (Mo. 1966); Claus v.

Intrigue Hotels, LLC, 328 S.W.3d 777, 783 (Mo. App. W.D. 2010), overruled on other grounds

by Badahman v. Catering St. Louis, 395 S.W.3d 29 (Mo. banc 2013). Evil intent may also be

implied from reckless disregard of another’s rights and interests. Beggs, 409 S.W.2d at 723;

Claus, 328 S.W.3d at 783. Punitive damages awards have been upheld when the court found

management participated in the discriminatory conduct and treated the plaintiff differently from

others. Claus, 328 S.W.3d at 783. Most employment discrimination cases are inherently fact-

based and necessarily rely on inferences rather than direct evidence. Holmes v. Kansas City

Missouri Bd. of Police Comm’rs ex rel. Its Members, 364 S.W.3d 615, 628 (Mo. App. W.D.



                                              10
2012)(internal quotes and citation omitted). Direct evidence is not common in such cases

because employers are shrewd enough to not leave a trail of direct evidence. Id. at 628-29. In

the absence of direct evidence, a plaintiff may use circumstantial evidence to prove his case. Id.

at 629.

          “Proof offered to support an employee’s underlying substantive claim and the employee’s

additional claim for punitive damages need not be mutually exclusive, and often is not.” Claus,

328 S.W.3d at 783 (internal quotes and citation omitted). In this case, Mr. Ellison was required

to submit evidence allowing a reasonable fact-finder to conclude that his disability was a

contributing factor in O’Reilly Automotive’s decision to demote him.             Id. at 782-783 (if

consideration of age, disability, or other protected characteristics contributed to unfair treatment,

that is sufficient to prove discrimination under the MHRA). See also Hurst v. Kansas City

Missouri School Dist., 437 S.W.3d 327, 339 (Mo. App. W.D. 2014)(“A plaintiff can prove

discrimination by showing age or any protected characteristics was a contributing factor for the

employment action regardless if other factors also exist.”). Evidence that meets this burden may

potentially allow a reasonable juror also to conclude that the defendant acted with evil motive or

reckless indifference. Claus, 328 S.W.3d at 783.

          Such is the case here.      The evidence showed that every O’Reilly Automotive

management and HR employee involved in the decision to demote Mr. Ellison was aware of his

disability prior to his demotion.     O’Reilly Automotive has policies in place that prohibit

discrimination, and Mr. Weiskirch, Mr. Ellison’s supervisor, and Ms. Beck and Ms. Spigle of

HR acknowledged at trial that treating disabled employees differently in the terms or conditions

of their employment is illegal. Ms. Beck and Ms. Spigle further agreed that it would be wrong if

one of the reasons that an employer demotes an employee is the employee’s disability. Mr.



                                                 11
Ellison, Mr. Weiskirch, and Ms. Beck all testified that Mr. Ellison’s disability did not interfere

with his job performance as store manager. Mr. Ellison never asked for any accommodation to

perform his job—he didn’t need any accommodations. O’Reilly Automotive demoted Mr.

Ellison to a parts specialist position, which is physically more demanding than the store manager

position. Mr. Ellison was able to perform all of the essential job functions of both positions. Yet

O’Reilly Automotive management and HR discussed and considered Mr. Ellison’s disability

during the time he was being disciplined and ultimately demoted. Mr. Weiskirch first raised

concern over Mr. Ellison’s “paulsy [sic] or MS type disease” in an email to HR and his

supervisor on July 2, 2010. Four days later, members of HR and management had a conference

call and discussed Mr. Ellison’s “medical issues” and decided to draft an amended letter of

concern.

       At trial, O’Reilly maintained that it did not demote Mr. Ellison because of his disability

but instead because of his performance. Mr. Weiskirch testified that that there were two main

reasons for the demotion: leadership and overall condition of the store. A reasonable juror could

have concluded, however, that these stated reasons for the demotion were pretexual and that

O’Reilly Automotive’s conduct was outrageous because of evil motive or reckless indifference.

The record demonstrated that O’Reilly Automotive’s reasons for Mr. Ellison’s discipline leading

up to his demotion changed over time. The first letter of concern in May 2010 listed commercial

sales, store appearance, and store operations. Two months later, these areas of concern were

corrected except for store appearance. On July 7, 2010, one day after the conference call with

HR wherein Mr. Ellison’s disability was discussed, Mr. Weiskirch gave Mr. Ellison an amended

letter of concern addressing different issues than before including leadership. On August 24,

2010, Mr. Weiskirch placed Mr. Ellison on a 90-day probation with approval of his supervisor,



                                                12
Mr. Kaiser. The stated concerns then included two new categories, store morale and employee

training compliance.    Thirty-four days into the 90-day probation, Mr. Weiskirch asked for

approval to demote Mr. Ellison.

       Furthermore, during the time of his discipline, Mr. Ellison’s store had consistently good

sales, which, Mr. Weiskirch testified, was O’Reilly Automotive’s most important business

objective. In April 2010, his store had the second highest percentage sales increase in the

district. On both June 13 and July 1, 2010, Mr. Ellison was recognized for his store sales despite

having the worst retail store location in the district. On August 3, 2010, Mr. Weiskirch noted

that Mr. Ellison’s store had the highest sales increase in the district for the month of July; and

October 1, 2010, he noted that Mr. Ellison’s store again had the second highest sales increase in

the district for September.

       Significantly, Mr. Ellison’s performance reviews were similar to those of other store

managers in the district who were not demoted out of leadership positions. Some were not

disciplined at all—they did not receive letters of concern and were not placed on probation or

demoted. Another store manager that was put on probation was given more time than Mr.

Ellison to correct his performance issues. And the other store manager that was demoted was

demoted to an assistant manager position, which Mr. Ellison requested but was denied.

Similarly, the 2010 store audits for the district showed that three stores had a lower audit score

and four other stores had similar scores than Mr. Ellison’s store. None of those store managers

was demoted.

       Finally, O’Reilly Automotive’s conduct after the demotion further supported the

submission of punitive damages. Although O’Reilly denied that Mr. Ellison was demoted

because of his disability, it began to gather documentation after the demotion of customer



                                               13
complaints about Mr. Ellison’s speech and about his falling in the store. Dan Neal, the territory

sales manager who was directed by Mr. Weiskirch to gather such evidence, testified that he

assumed the request was made for “a legal issue” because he could think of no other reason for

it. O’Reilly Automotive also asked Mr. Ellison to take a Fitness for Duty medical exam after his

demotion. He did and was cleared to do anything at the store that he needed to do.

       All of these facts constitute clear and convincing evidence sufficient to allow a

reasonable jury to find that it was highly probable that O’Reilly Automotive’s conduct was

outrageous because of an evil motive or reckless indifference. Accordingly, the trial court did

not err in submitting punitive damages to the jury. The point is denied.

                                            Verdicts

       In the next point on appeal, O’Reilly Automotive contends that the trial court erred in

denying its motion for new trial because the punitive damages award was not rendered by three-

fourths of jurors as required by Article I, section 22 of the Missouri Constitution and section

494.490, RSMo 2000. Article I, section 22(a) of the Missouri Constitution and section 494.490

provide that three-fourths or more jurors may return a lawful verdict. In Stacy v. Truman Med.

Ctr., 836 S.W.2d 911, 924 (Mo. banc 1992), abrogated on other grounds by Southers v. City of

Farmington, 263 S.W.3d 603 (Mo. banc 2008), the Missouri Supreme Court stated that in a case

where nine or more jurors must agree on a verdict, the same nine jurors must agree upon all

elements necessary for a verdict for or against any particular party claiming damages. See also

State ex rel. Boyer v. Perigo, 979 S.W.2d 953, 956 (Mo. App. S.D. 1998). The same nine jurors

that agree upon liability must also agree on the amount of damages. Stacy, 836 S.W.3d at 924;

Boyer, 979 S.W.2d at 956. O’Reilly Automotive argues that because only seven of the twelve




                                               14
jurors agreed on both the issue of punitive damages liability and the amount of punitive damages,

the verdict was invalid.

        In this case, O’Reilly requested a bifurcated trial pursuant to section 510.263, RSMo

Cum. Supp. 2013. The request was unopposed, and the trial was bifurcated. The procedure for a

bifurcated trial where punitive damages are involved is set out in section 510.263:

       1. All actions tried before a jury involving punitive damages, including tort
       actions based upon improper health care, shall be conducted in a bifurcated trial
       before the same jury if requested by any party.

       2. In the first stage of a bifurcated trial, in which the issue of punitive damages is
       submissible, the jury shall determine liability for compensatory damages, the
       amount of compensatory damages, including nominal damages, and the liability
       of a defendant for punitive damages. Evidence of defendant’s financial condition
       shall not be admissible in the first stage of such trial unless admissible for a
       proper purpose other than the amount of punitive damages.

       3. If during the first stage of a bifurcated trial the jury determines that a defendant
       is liable for punitive damages, that jury shall determine, in a second stage of trial,
       the amount of punitive damages to be awarded against such defendant. Evidence
       of such defendant’s net worth shall be admissible during the second stage of such
       trial.

Section 510.263 requires the same twelve-person jury to determine all issues in both stages of the

bifurcated trial. The procedures of section 510.263 were followed in this case, and standard MAI

instructions for a MHRA case were given.

       Specifically, Instruction No. 5, patterned after MAI 2.04, provided in relevant part, “Nine

or more of you must agree in order to return any verdict. A verdict must be signed by each juror

who agrees to it.” Instruction No. 6, which was submitted by O’Reilly Automotive and patterned

after MAI 38.01(B), submitted liability for disability discrimination.           Instruction No. 7,

submitted by Mr. Ellison and patterned after MAI 4.01, was given as the standard compensatory

damages instruction. Instruction No. 8, submitted by Mr. Ellison and patterned after MAI 10.01

and modified by MAI Illus. 35.19, which provides guidance for the submission of punitive

                                                 15
damages in a bifurcated trial under section 510.263, was given as the standard punitive damages

liability instruction. Verdict A, MAI 36.11 modified by MAI Illus. 35.19, was the standard

liability verdict form. It allowed the jury to find in favor of either Mr. Ellison or O’Reilly

Automotive on Mr. Ellison’s claim of disability discrimination against O’Reilly Automotive,

assess the compensatory damages, and find O’Reilly Automotive liable or not liable for punitive

damages.

       In the first stage of the trial, the jury returned Verdict A finding O’Reilly Automotive

liable for compensatory damages, assessing compensatory damages at $200,000, and finding

O’Reilly Automotive liable for punitive damages. Ten of the twelve jurors signed Verdict A.

During stage two, a stipulation of the parties was read to the jury that O’Reilly Automotive has

assets in excess of $100 million. Instructions No. 9 and 10, submitted by Mr. Ellison, were then

read to the jury. Instruction No. 9 instructed that it, Instruction No. 10, and general instruction 1

through 5 would apply to determine the amount of punitive damages and that the jury would use

Verdict Form B. Instruction No. 10, MAI 10.04 and modified by MAI Illus. 35.19, was the

standard punitive damages instruction. Verdict B, not in MAI and modified by MAI Illus. 35.19,

allowed the jury to assess punitive damages. The jury returned Verdict B assessing $2 million in

punitive damages against O’Reilly Automotive. Nine of the twelve jurors signed Verdict B.

Two of the nine jurors who signed Verdict B did not sign Verdict A.

       O’Reilly Automotive argues that, as a result, only seven of the twelve jurors agreed on

the issue of punitive damages liability and the amount of punitive damages, therefore, the

verdicts were inconsistent and invalid under the general rule that nine of twelve jurors must

agree on both liability and damages. It did not, however, object to the verdict forms at trial. “If

a party disagrees with a verdict form, ‘specific objections must be made at the time the verdict



                                                 16
forms are given to the jury.’” Mackey v. Smith, 438 S.W.3d 465, 475 (Mo. App. W.D. 2014)

(quoting Stacy, 836 S.W.2d at 924).        Similarly, it did not object when the verdicts were

announced and accepted or before the jury was discharged.            “[A] claim that a verdict is

inconsistent to the point of being self-destructive must be presented to the trial court before the

jury is discharged or that claim is waived.” Lindahl v. State, 359 S.W.3d 489, 493 (Mo. App.

W.D. 2011)(internal quotes and citation omitted).

       Regardless, the general rule is not applicable where the jury is required to return more

than one verdict. Kemp v. Burlington Northern R. Co., 930 S.W.2d 10, 12 (Mo. App. E.D.

1996). “[W]here there are multiple counts and multiple defendants, a different group of nine

jurors can agree to all of the elements of each respective count. Mackey, 438 S.W.3d at 474

(where division of jurors in three verdicts regarding two physician defendants in medical

malpractice case met requirement that at least nine jurors agree on each element of a particular

claim against a particular defendant including the amount of damages). The Eastern District

explained in Kemp, “As to each count nine jurors were required to agree on both liability and

damages. That could have been two different groups of nine on each count, but for each count

the same nine had to agree on liability and damages.” 930 S.W.2d at 12.

       Additionally, in Powell v. Norman Lines, Inc., 674 S.W.2d 191, 199 (Mo. App. E.D.

1984), the Eastern District held that if nine jurors agree to liability and the amount of damages, a

different nine jurors may apportion fault among the defendants. It reasoned, “To hold otherwise

would be to prohibit jurors who dissent on the question of a party’s liability from participation in

the important remaining issue of allocating responsibility among the parties, a result that would

deny all parties the right to a jury of 12 persons deliberating on all issues.” Id. (internal quotes

and citation omitted). The Missouri Supreme Court in Stacy found that the result in Powell was



                                                17
correct because the apportionment of fault claim was a separate claim from the plaintiff’s main

claim. Stacy, 836 S.W.2d at 924.

        In this case, the two stages of the bifurcated trial created separate jury issues. Litchfield

By and Through Litchfield v. May Dept. Stores Co., 845 S.W.2d 596, 598-99 (Mo. App. E.D.

1992)(evidence of the independent and separable nature of punitive damages is found in the

bifurcation statute, section 510.263). “‘Punitive damages are mere incidents to the cause of

action and are considered separate and apart from and in addition to the assessment of

[compensatory] damages.’”          Id. (quoting Holcroft v. Missouri-Kansas-Texas R.R. Co., 607

S.W.2d 158, 163 (Mo. App. W.D. 1980)). “Compensatory damages and punitive damages serve

separate purposes.” Mansfield v. Horner, 443 S.W.3d 627, 643 (Mo. App. W.D. 2014). “While

compensatory damages ‘are intended to redress the concrete loss that the plaintiff has suffered by

reason of the defendant’s wrongful conduct,’ punitive damages ‘are aimed at deterrence and

retribution.’” Id. (quoting State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416

(2003)). The justification for the bifurcation of the issues of liability and punitive damages is to

avoid prejudice. Section 510.263.2 excludes evidence of the defendant’s financial condition

during the first stage of trial.

        What our system does is initially shield the evidence of the defendant’s wealth
        from the jury, until there has been a determination that the defendant’s conduct
        merits punitive damages. One commentator has mused, “It is a good guess that
        rich men do not fare well before juries, and the more emphasis placed on their
        riches, the less well they fare.”

Barnett v. La Societe Anonyme Turbomeca France, 963 S.W.2d 639, 654 (Mo. App. W.D. 1997)

overruled on other grounds by Badahman v. Catering St. Louis, 395 S.W.3d 29 (Mo. banc

2013)(quoting Morris, Punitive Damages in Tort Cases, 44 Harvard Law Review 1173, 1191

(1931)).



                                                 18
        Moreover, the verdict forms in MAI Illus. 35.19 for the submission of punitive damages

in a bifurcated trial provide for separate sets of signatures by jurors for the return of the verdict in

the first stage of the trial for determination of liability for compensatory damages, the amount of

compensatory damages, liability of a defendant for punitive damages and the return of the

verdict in the second stage for the assessment of punitive damages. Stacy, 836 S.W.2d at 924. If

nine jurors agree on liability for compensatory damages, the amount of compensatory damages,

and liability of a defendant for punitive damages in the first stage of the bifurcated trial, then any

nine jurors may decide the amount of punitive damages in the second stage. To hold otherwise

would forbid jurors who disagreed with the majority on the issues in the first stage from

deliberating on the important remaining issue of amount of punitive damages. Such result would

deny all parties the right to a jury of twelve persons deliberating on all issues and needlessly

complicate our system of trial by jury. Mackey, 438 S.W.3d at 474; Powell, 674 S.W.2d at 199.

Indeed, a defendant would want a juror who did not believe it was liable for compensatory and

punitive damages in the first stage to be able to present an argument to fellow jurors during

deliberations against a high punitive damages award. “A contrary holding would also cause

economic loss to the public, litigants, and attorneys because of mistrials and would further court

congestion and unfairness resulting from prolonged delay.” Powell, 674 S.W.2d at 199. The

punitive damages verdict was valid, and the trial court did not err in denying O’Reilly

Automotive’s motion for new trial. The point is denied.

                                 Remittitur of Punitive Damages

        In its final point on appeal, O’Reilly Automotive contends that the trial court erred in

failing to order remittitur of the jury’s punitive damages award. It argues that remittitur was




                                                  19
appropriate under section 510.263, RSMo Cum. Supp. 2013, because the award was excessive in

light of the facts of the case and punitive damages awards in other cases.1

         “Generally, the decision to award punitive damages is peculiarly committed to the jury

and the trial court’s discretion, and the appellate court will only interfere in extreme cases.”

Smith v. Brown & Williamson Tobacco Corp., 275 S.W.3d 748, 810 (Mo. App. W.D.

2008)(internal quotes and citation omitted). Section 510.263.6 allows the trial court to order

remittitur of punitive damages “based on the trial judge’s assessment of the totality of the

surrounding circumstances.”

         As with a compensatory-damage award, the trial court has broad discretion to
         remit a punitive-damage award if, “after reviewing the evidence in support of the
         jury’s verdict, the court finds that the jury’s verdict is excessive because the
         amount of the verdict exceeds fair and reasonable compensation for plaintiff’s
         injuries and damages.”

Blanks v. Fluor Corp., 450 S.W.3d 308, 412 (Mo. App. E.D. 2014) (quoting §537.068, RSMo

2000). “On appellate review, an abuse of discretion is established when the punitive damages

award is so disproportionate to the factors relevant to the size of the award that it reveals

improper motives or a clear absence of the honest exercise of judgment.” Call v. Heard, 925
1
  In the argument section of this point, O’Reilly Automotive cites State Farm Mutual Insurance Co. v. Campbell,
538 U. S. 408, 417 (2003), and other federal cases, which provide that a grossly excessive punitive damages award
violates a tortfeasor’s substantive due process rights. In determining whether a punitive damages award comports
with due process, three guideposts are reviewed: (1) the reprehensibility of the defendant’s misconduct; (2) the
disparity between the harm or potential harm suffered by the plaintiff and the punitive damages award; and (3) the
difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in
comparable cases. Blanks v. Fluor Corp., 450 S.W.3d 308, 410 (Mo. App. E.D. 2014) (citing BMW of North
America, Inc. v. Gore, 517 U.S. 559, 568 (1996)). In its post-trial motion and in its point relied on, O’Reilly argues
for a reduction in punitive damages based on statutory remitittur rather than a reduction based on due process
constitutional grounds. Although both potentially achieve the same result, statutory remittitur and a constitutionally
reduced verdict are in theory different. Id. at 412 n.71. A court orders a remittitur when it finds that the jury’s
award is excessive and unreasonable on the facts. Id. “A constitutional reduction, on the other hand, is a
determination that the law does not permit the award.” Id. O’Reilly Automotive did not raise a constitutional due
process claim below or in its point relied on here, therefore, any constitutional challenge it attempts to raise in the
argument portion of its brief was not preserved for appellate review. See Dooms v. First Homes Sav. Bank, 376
S.W.3d 666, 679 (Mo. App. S.D. 2012) (where defendants did not raise constitutional challenge to punitive damages
award in post-trial motion, it was not preserved for appellate review). Regardless, even if reviewed under the
constitutional criteria of State Farm and Gore, the facts of this case warranted the punitive damages award as
discussed below.


                                                         20
S.W.2d 840, 849 (Mo. banc 1996)(internal quote and citation omitted). Only when the amount

of punitive damages is manifestly unjust will an appellate court interfere with or reduce the size

of the verdict. Smith, 275 S.W.3d at 810.

       No bright-line test exists to determine whether a punitive damages award is excessive.

Blanks, 450 S.W.3d at 412. Such awards are evaluated on a case-by-case basis. Id. at 413.

“Punitive damages are intended to punish outrageous conduct and deter a future occurrence of

similar conduct.” Lynn v. TNT Logistics North America Inc., 275 S.W.3d 304, 311 (Mo. App.

W.D. 2008). “[T]he amount of punitive damages must somehow be related to the wrongful act

and the actual or potential injury resulting therefrom, although there is no fixed mathematical

relation between the amount of actual damages and the amount of punitive damages awarded.”

Call, 925 S.W.2d at 849. Missouri courts have identified a nonexclusive list of factors to

consider in determining whether the trial court abused its discretion in denying remittitur of a

punitive damages award:

       (1) the degree of malice or outrageousness of the defendant’s conduct, which has
       been deemed a critical factor; (2) aggravating and mitigating circumstances; (3)
       the defendant’s financial status, as an indication of the amount of damages
       necessary to punish the defendant; (4) the character of both parties; (5) the injury
       suffered; (6) the defendant’s standing or intelligence; (7) the age of the injured
       party; and (8) the relationship between the two parties.

Blanks, 450 S.W.3d at 413 (citing Call, 925 S.W.2d at 849; Smith, 275 S.W.3d at 811). On

review, the evidence is viewed in the light most favorable to the trial court’s decision. Id. (citing

Badahman v. Catering St. Louis, 395 S.W.3d 29, 39 (Mo. banc 2013).

       Here, Mr. Ellison was awarded $200,000 in compensatory damages and $2,000,000 in

punitive damages. O’Reilly Automotive’s actions in demoting Mr. Ellison were outrageous.

During the time Mr. Ellison was being disciplined and ultimately demoted, he was repeatedly

recognized for good sales and his performance reviews were similar to those of other store


                                                 21
managers who were not demoted out of leadership positions. Despite performing his job well,

O’Reilly Automotive management and HR discussed and considered Mr. Ellison’s disability in

demoting him to a parts specialist position, which is physically more demanding than the store

manager position. Mr. Ellison went from earning a salary plus commissions, bonuses, and stock

options to earning $12 an hour as a parts specialist and has not had a raise since his demotion.

O’Reilly Automotive’s demotion of Mr. Ellison was at a minimum reckless misconduct. Based

on the standard of review and comparable cases, the jury’s award of punitive damages was not

manifestly unjust in this case. See Bowolak v. Mercy East Communities, 2014 WL 5470262

(Mo. App. E.D. 2014)(in disability discrimination case, the Eastern District approved a punitive

damages award of $500,000 with $50,000 in actual damages); Peel v. Credit Acceptance Corp.,

408 S.W.3d 191, 213-14 (Mo. App. W.D. 2013)(in MMPA case, this court approved a punitive

damages award of $881,789.05 with actual damages totaling $176,357.81); Lynn, 275 S.W.3d at

310 (in sexual harassment case, the jury awarded $50,000 in compensatory damages and $6.75

million in punitive damages, which the trial court remitted to $450,000; this court held that trial

court remittitur was too low to attain purposes of punitive damages and increased the punitive

damages award to $3.75 million). O’Reilly Automotive is a large corporation employing 62,000

people with assets in excess of $100 million. The $2 million award accomplished the purposes

of punitive damages and was related to the wrongful act. The trial court did not err in failing to

order remittitur of the jury’s punitive damages award. The point is denied.




                                                22
         The judgment is affirmed.2



                                                       __________________________________________
                                                       VICTOR C. HOWARD, JUDGE

All concur.




2
  Mr. Ellison timely filed a motion for attorneys’ fees on appeal under section 213.111.2, RSMo 2000, and the
motion was taken with the case. Section 213.111.2 allows a court to “award court costs and reasonable attorney fees
to the prevailing party” in a human rights action. See also Claus, 328 S.W.3d at 789. The award of costs and
attorneys’ fees authorized by the statute was meant to fully compensate for the costs of prosecuting the matter to
final judgment. Claus, 328 S.W.3d at 789. “This includes any reasonable hours spent and expenses incurred in
connection with an appeal of the judgment below.” Id. Accordingly, Mr. Ellison’s motion for attorneys’ fee on
appeal is granted. While this court has expertise on the subject of appellate attorneys’ fees and authority to enter an
award, the trial court is also considered an expert on the subject of attorneys’ fees. Id. Moreover, it is generally in a
better position to take evidence and hear argument on the issue. Id. The case is, therefore, remanded to the trial
court for an award of reasonable attorneys’ fees on appeal.

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