                 In the Missouri Court of Appeals
                                   Western District

 LAVANDEN DARKS,                   )
            Appellant-Respondent, )
                                   )                    WD82797 Consolidated with
 v.                                )                    WD82849
                                   )
 JACKSON COUNTY, MISSOURI, et al., )                    FILED:
        RESPONDENT-APPELLANT. )

      APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY
              THE HONORABLE ROGER M. PROKES, JUDGE

           BEFORE DIVISION ONE: LISA WHITE HARDWICK, PRESIDING JUDGE,
               CYNTHIA L. MARTIN AND THOMAS N. CHAPMAN, JUDGES
       Lavanden Darks appeals the circuit court’s grant of a motion for judgment

notwithstanding the verdict (“JNOV”), which set aside the jury’s award of punitive

damages on his sexual harassment and retaliation claims against Jackson County.

Jackson County cross appeals the denial of its motion for a JNOV on three grounds,

asserting: (1) that Darks failed to plead sexual harassment; (2) that Darks failed to

present substantial evidence supporting two elements of sexual harassment; and (3)

that Darks failed to present substantial evidence supporting the elements of retaliation.

For reasons explained herein, we affirm the circuit court’s judgment in part, reverse in

part, and remand with instructions to enter judgment in accordance with the jury’s

verdict.
                           FACTUAL AND PROCEDURAL HISTORY

       Since February 2012, Darks has worked as a deputy with the Jackson County

Sheriff’s Department and is one of four black deputies employed as sworn officers.

Jackson County employs approximately 100 total sworn officers. At the time in question

during 2014, Jackson County required all sworn officers appearing in uniform to be

clean shaven with the exception of moustaches. Darks experienced pain with shaving

and was medically diagnosed with an inflammatory skin condition known as

psuedofolliculitis barbae (“PFB”).

       After attempting several treatments and other shaving methods, Darks sought an

accommodation allowing him to appear in uniform with a manicured beard. He

complained after the leadership of the Sheriff’s Department displayed open hostility to

the idea and informed him that he could take sick leave to address the issue. Sheriff

Mike Sharp, after discussing the issue with the county counselor, eventually relented

and agreed to the accommodation. Darks, however, stated that even after granting the

accommodation, leadership within the department expressed open displeasure with his

facial hair and insinuated that he should seek employment at another law enforcement

agency if shaving was too difficult.

       In August 2015, Sergeant Ronda Montgomery became Darks’s direct supervisor

after both she and Darks were transferred into Road Patrol, Midnight Squad 1. In

October 2015, Montgomery encountered Darks in the concealed carry permitting office

(“the CCP”). At the request of Captain David Epperson, Darks had been intermittently

stopping by the office to check on the civilian staff. Epperson had requested these trips

because he believed a uniformed law enforcement presence would help protect the



                                            2
civilian staff in the CCP. As will be discussed in greater detail infra, Montgomery asked

Darks and two civilian employees “if he always comes in to bother us and flirt[] with [the

female employees].” Darks was embarrassed and left the office but the civilian staff

said Darks was never inappropriate and indicated that they were friends. Montgomery,

however, continued, stating that she “knows how men in law enforcement can be[,]” and

that “[y]ou know he’s married with a kid.” One civilian employee later complained about

Montgomery’s comments in a memorandum to Sergeant Dale Covey.

       Shortly after being informed by Sergeant John Payne on November 19, 2015,

that Darks had reported the incident and that Payne had been assigned to complete an

internal affairs investigation, Montgomery recommended that Darks receive a written

reprimand for an incident in which he missed the start time of assigned training. The

memorandum recommending the reprimand stated that Darks had never been on time

to any training, a claim not contained in any other document, and that he had engaged

in dishonesty for lying about the reason he was late to the specific training at issue.

       Also, within hours of learning about the internal affairs investigation, the

department leadership initiated plans to reassign Darks to the unit providing security for

the county’s courthouses. Montgomery informed Darks of the transfer four days later.

Darks stated, and Payne later confirmed, that a courthouse assignment was viewed as

a punishment detail reserved for misbehaving employees.

       In January 2016, Colonel Hugh Mills asked Montgomery to complete an

“efficiency report” regarding Darks. Montgomery acknowledged that the request “just

came out of the blue” because she had never heard of an efficiency report and she no

longer was Darks’s supervisor. Two other supervisors, Captain Scott Goodman and



                                              3
Undersheriff Colonel Benjamin Kenney reported that they were not familiar with an

efficiency report being used in the Jackson County Sheriff’s Department. In response to

Mill’s request, Montgomery submitted an efficiency report that contained several

negative statements regarding Darks’s job knowledge and performance that were not

supported by other records.

      Later in January, Mills asked Montgomery to conduct a performance review for

Darks. Despite the general policy that these reviews occur annually, Montgomery was

directed to review only three months – the period between August 8, 2015, and

November 11, 2015. Montgomery’s performance review of Darks contained new

allegations of unsatisfactory performance, including references insinuating that Darks

was a “Brady cop,” which is a reference indicating that prosecutors would have to

disclose that Darks is dishonest when prosecuting any cases originating from him.

      Darks filed a petition for damages against Jackson County, Sharp, Mills, and

Montgomery alleging claims of discrimination based on race, sex, and disability,

retaliation pursuant to the Missouri Human Rights Act (“MHRA”) and retaliation pursuant

to Missouri Workers’ Compensation Statute. Prior to trial, Darks voluntarily dismissed

Sharp, Mills, and Montgomery as well as his claim for retaliation pursuant to Missouri’s

Workers’ Compensation Statute. After the presentation of evidence and argument, the

jury found in favor of Darks on his claims of sexual harassment and retaliation. The jury

awarded Darks $75,000 in actual damages and determined that Jackson County was

liable for punitive damages. After the bifurcated proceeding on punitive damages, the

jury assessed $300,000 in punitive damages against Jackson County. The circuit court




                                            4
subsequently awarded Darks $371,610 in attorney fees and ordered Jackson County to

remove from its files the negative performance review authored by Montgomery.

        Jackson County filed a motion for a JNOV. The circuit court partially granted the

motion and set aside the jury’s verdict awarding $300,000 in punitive damages. The

court, however, denied the remaining requests for a JNOV made by Jackson County.

Darks appeals the circuit court’s partial grant of Jackson County’s motion for judgment

notwithstanding the verdict. Jackson County cross appeals the circuit court’s partial

denial of its motion for a JNOV.

                                                ANALYSIS

I.      JACKSON COUNTY’S POINTS ON APPEAL

        Jackson County’s three points on appeal challenge the circuit court’s denial of its

motion for a JNOV on Darks’s sexual harassment and retaliation claims.1

        A.      STANDARD OF REVIEW

        “The standard of review of the denial of a JNOV is essentially the same as the

overruling of a motion for directed verdict.” W. Blue Print Co., LLC v. Roberts, 367

S.W.3d 7, 14 (Mo. banc 2012). “A case may not be submitted unless each and every

fact essential to liability is predicated upon legal and substantial evidence.” Moore v.

Ford Motor Co., 332 S.W.3d 749, 756 (Mo. banc 2011) (quoting Inv’rs Title Co. v.

Hammonds, 217 S.W.3d 288, 299 (Mo. banc 2007)). Whether a plaintiff has made a

submissible case is a question of law subject to de novo review, id., but “the evidence is

viewed in the light most favorable to the result reached by the jury, giving the plaintiff

the benefit of all reasonable inferences and disregarding evidence and inferences that


1For the sake of clarity, we will address Jackson’s County’s appeal first, and we will address its points in
a different order than they were presented to this court.

                                                      5
conflict with that verdict.” Clevenger v. Oliver Ins. Agency, Inc., 237 S.W.3d 588, 590

(Mo. banc 2007). Indeed, “[t]he jury's verdict will be reversed only if there is a complete

absence of probative facts to support the jury's conclusion.” Keveney v. Mo. Military

Acad., 304 S.W.3d 98, 104 (Mo. banc 2010).

       B.     PLEADING SEXUAL HARASSMENT

       In Point II, Jackson County asserts that the circuit court erred in denying its

motion for a JNOV because Darks failed to adequately plead the theory of sexual

harassment. It is a well-settled principle “that a party cannot recover for a cause of

action not pleaded.” Miken Techs., Inc. v. Traffic Law Headquarters, P.C., 494 S.W.3d

609, 612 (Mo. App. 2016) (citation and quotations omitted). Similarly, “[t]he rule is well

established in Missouri that the character of a cause of action is determined from the

facts stated in the petition and not by the prayer or name given the action by the

pleader.” State ex rel. BP Prods. N. Am. Inc. v. Ross, 163 S.W.3d 922, 927 (Mo. banc

2005) (citation and quotations omitted). However, in determining the nature of the

cause of action, the court must also consider the relief sought by the party in

conjunction with the stated facts. Id.

       Despite citing cases that recognize that the sufficiency of a pleading elevates

substance over form, Jackson County’s second point focuses almost exclusively on the

form of Darks’s petition. In support of its claim of error, Jackson County directs our

attention to a “Table of Claims” contained on page 2 of Darks’s petition, which serves as

a quasi-table of contents with page references for the petition. Jackson County asserts

that, within that table, Darks lists all of his claims and that the term “sexual harassment”

is “noticeably absent.” In response, Darks notes that the title of the sex discrimination



                                             6
count, as displayed in the body of the petition, states that Count II is alleging

“Harassment and Discrimination based on Sex.” Such form-based or title-based

arguments are inconsequential to the point on appeal, because the nature of the pled

cause of action is determined by the stated facts and requested relief, not by any

invocation of the specific word “harassment.” See id.

        In regard to the sufficiency of the pleading, Jackson County argues that there

was no evidence presented to support the facts pled. This focus on the evidence

presented at trial mirrors Jackson County’s Point I, discussed infra, regarding the

ultimate submission of sexual harassment to the jury and does nothing to contest the

validity of Darks’s pleading. Instead, Jackson County makes the conclusory allegation

that “there are no facts contained in the Petition alleging that Montgomery sexually

harassed Plaintiff.” “When an appellant fails to support contentions with relevant law

and analysis beyond conclusory statements, we deem the point abandoned.” Wallace

v. Frazier, 546 S.W.3d 624, 628 (Mo. App. 2018). To the extent that Jackson County’s

argument that the word “harassment” occurs only in paragraphs 45 and 50 of Darks’s

petition presents an identifiable issue for appeal, we review the point of error ex gratia

and determine such claim is without merit.

        A plaintiff makes a prima facie case of hostile work environment sexual

harassment involving a supervisory employee2 by pleading facts demonstrating that:


2Jackson County asserts that to prevail under a sexual harassment cause of action, a plaintiff must
demonstrate that:

        (1) he was a member of a protected class; (2) he was subjected to unwelcome sexual
        harassment; (3) the harassment was based on his sex; (4) this harassment affected a
        term, condition, or privilege of employment in a manner sufficiently severe to create an
        abusive work environment and (5) the employer knew or should have known of the
        harassment and failed to take proper remedial action.


                                                    7
        (1) she (or he if the claim is brought by a male) is a member of a protected
        group; (2) she was subjected to unwelcome sexual harassment; (3) her
        gender was a contributing factor in the harassment; and (4) a term,
        condition or privilege of her employment was affected by the harassment.

Hill v. Ford Motor Co., 277 S.W.3d 659, 666 (Mo. banc 2009) (footnote omitted). “A

plaintiff can meet the requirement of proving that the harassment affected a term or

condition of [his] employment by showing that the harassment contributed to cause a

‘tangible employment action.’” Id. “Examples of tangible employment actions include

but are not limited to: hiring and firing; promotion and failure to promote; demotion;

undesirable reassignment; a decision causing a significant change in benefits;

compensation decisions; and work assignments.” Id. (quoting 8 CSR 60-

3.040(17)(D)(4)).

        In his petition, Darks alleged facts from which the court and Jackson County

could ascertain that he was raising a claim of sexual harassment. These alleged facts

include that (1) he is male; (2) that Montgomery harassed him by filing a false report

after observing his interactions with female employees and making the comment that

the female employees “know how men are in law enforcement”; (3) that he believed

these actions were taken because he was a male; and (4) that due to Montgomery’s

false report and his attempts to challenge the false report he was reassigned to a less

desirable position at the courthouse. Further, Darks specifically asserted that, due to

Montgomery’s actions, he has suffered, inter alia, “a detrimental job record.” Those




(citing Diaz v. Autozoners, LLC, 484 S.W.3d 64, 83 (Mo. App 2015)). This is incorrect. An employer’s
knowledge of the harassment and subsequent failure to rectify does not apply where the alleged harasser
is the plaintiff’s supervisor. See id. at 76; see also Hill, 277 S.W.3d at 666 n.6 (recognizing the fifth
element addressing an employer’s knowledge of the harassment applies where the alleged harassers are
“co-workers”).

                                                   8
pled facts, taken as true, track the elements of sexual harassment regardless of what

the specific count was entitled. Therefore, Jackson County’s Point II is denied

        B.      SUBMISSION OF SEXUAL HARASSMENT

        In Point I, Jackson County asserts that the circuit court erred in denying its

motion for a JNOV because Darks failed to elicit substantial evidence necessary to

support the elements of his sexual harassment claim. Particularly, Jackson County

asserts that Darks failed to present evidence that demonstrated that any comments

from Montgomery were “sexual in nature [or] based on Plaintiff’s sex or gender” or that

they affected a term, condition or privilege of Darks’s employment.

                I.      JACKSON COUNTY’S ASSIGNMENT OF ERROR APPLIES WRONG
                STANDARD

        Jackson County first asserts that Darks did not provide substantial evidence to

support the jury’s determination that Montgomery’s comments were sexual in nature or

based on Darks’s sex or gender. This allegation of error applies the elements of sexual

harassment as set forth in Diaz v. Autozoners, LLC, 484 S.W.3d 64, 83 (Mo. App 2015).

As Darks has argued and as we have addressed supra, this is not the correct standard

because the Diaz formulation of sexual harassment does not apply where the alleged

harassers are supervisory employees. See id. at 76; see also Hill, 277 S.W.3d at 666

n.6. We will, however, address Jackson County’s allegation that the court erroneously

denied its motion for a JNOV because Darks failed to demonstrate that his gender was

a contributing factor in his harassment by Montgomery, to the extent it was presented in

Jackson County’s brief.3


3 In its reply brief, Jackson County does not concede that the Diaz elements are inapplicable here;
instead, it argues that Darks failed to provide substantial evidence to support the Hill element of
unwelcome sexual harassment. This argument arrives too late. “A reply brief is to be used only to reply

                                                   9
        Erin Adair, a civilian employee working in the CCP when the harassment

allegedly occurred, stated that in October 2015, Darks “popped his head into the CCP

office to say hello.” During that period of time, Darks would intermittently stop by the

CCP at the request of Epperson, the captain overseeing Staff Services and the CCP.

Epperson stated that he encouraged Darks and other sheriff deputies to stop by and

make their presence known in the CCP because he believed it would help protect the

civilian staff from “irate members of the public” that would sometimes pass through the

CCP.

        On the particular day that Adair mentioned Darks’s “popping his head” into the

office, Montgomery had also stopped into the CCP. When Montgomery observed Darks

in the office, she asked him “why he was [in the CCP]” and then asked Adair and

another civilian employee, Sparkle Pounds, “if he always comes in to bother us and flirt[]

with us.” Adair stated that she told Montgomery that they were not bothered by Darks

and that he never treated them inappropriately. Adair stated that Darks looked very

uncomfortable and “left right after that part of the conversation.” Montgomery, however,

continued, stating that she “knows how men in law enforcement can be[,]” and that

“[y]ou know he’s married with a kid.” Adair later complained about Montgomery’s

conduct in a memorandum to Covey.

        Further, Darks stated that he was later made aware of Montgomery’s statements

and felt demeaned and degraded by the comments. He stated that, even though they


to arguments raised by respondents, not to raise new arguments on appeal.” Arch Ins. Co. v.
Progressive Cas. Ins. Co., 294 S.W.3d 520, 524 n.5 (Mo. App. 2009) (citation and quotations omitted).
‘[W]e do not review an assignment of error made for the first time in the reply brief.” 66, Inc. v. Crestwood
Commons Redevelopment Corp., 130 S.W.3d. 573, 584 (Mo. App 2003). While it is true that Jackson
County made the conclusory statement that “all five sexual harassment elements were not proven with
substantial evidence[,]” it specifically assigned error for the two reasons mentioned supra. Therefore, we
decline to address Jackson County’s allegation of error on this ground.

                                                     10
had never had any previous issues, the comments made it so that he almost no longer

wanted to work under Montgomery’s supervision. Darks reported the incident, and an

internal affairs investigation was assigned to Payne. After reviewing memorandums

from Adair, Darks, Covey, and Epperson, Payne conducted an investigation that

included interviewing witness and speaking with and receiving a memorandum from

Montgomery. During this investigation, Payne stated that Pounds believed that

Montgomery’s comments “[i]nsinuated that Deputy Darks and men in law enforcement

are some kind of sexual predators.” After completing his investigation, Payne

concluded that sufficient evidence existed to sustain the allegations that Montgomery

had, inter alia, violated the Jackson County personnel rule prohibiting sexual

harassment.

       Jackson County provides no reason why the jury could not consider this

evidence. These probative facts support the jury’s determination that Darks’s gender

was a contributing factor to his harassment. Indeed, Montgomery’s comments

expressed to Darks and the female civilian employees in the CCP that men in law

enforcement were not to be trusted around women because sexual misconduct would

surely follow from their presence. Jackson County’s alternative explanation of the

evidence is immaterial, because our standard for reversal requires not that there is no

other alternative meaning of the evidence but that there is a complete absence of

probative facts to support the jury’s finding. See Keveney, 304 S.W.3d at 104. A

review of the record plainly demonstrates that there is a wealth of evidence supporting

the jury’s finding.




                                           11
              II.    SUFFICIENT EVIDENCE WAS PRESENTED ON “AFFECTED” ELEMENT

       Next, Jackson County asserts that Darks did not provide substantial evidence

from which the jury could determine that Montgomery’s sexual harassment of Darks

affected a term, condition, or privilege of his employment. In support of this assertion,

Jackson County argues that Sharp was the “sole individual with the authority to hire,

fire, promote, and/or discipline employees” and that Montgomery could only recommend

discipline. Jackson County further contends that the record is bereft of any evidence

demonstrating that Montgomery took any action against Darks.

       Our review of the record indicates that Darks presented ample evidence to

submit the issue to the jury. “Discriminatory harassment affects a term, condition, or

privilege of employment if it is sufficiently severe or pervasive enough to alter the

conditions of a plaintiff[‘]s employment and create an abusive working environment.”

Alhalabi v. Mo. Dept’t of Nat. Res., 300 S.W.3d 518, 527 (Mo. App. 2009). As

described supra, Darks, after hearing Montgomery’s comments, stated that he felt

demeaned and degraded and no longer wanted to work under her supervision. Further,

Adair, Pounds, and Covey all stated that they believed Montgomery’s statements were

inappropriate and that the statements made both Darks and the civilian employees feel

different about interacting with one another. “Once there is evidence of improper

conduct and subjective offense, the determination of whether the conduct rose to the

level of abuse is largely in the hands of the jury.” Cooper v. Albacore Holdings, Inc.,

204 S.W.3d 238, 245 (Mo. App. 2006) (citation and quotations omitted). Therefore, the




                                             12
circuit court did not err in denying Jackson County’s motion for a JNOV on Darks’s

sexual harassment claim. Jackson County’s Point I is denied.

       C.     SUBMISSION OF RETALIATION

       In Point III, Jackson County asserts that the circuit court erred in denying its

motion for a JNOV because Darks failed to elicit substantial evidence necessary to

support the elements of his retaliation claim. Particularly, Jackson County asserts that

Darks failed to present evidence that demonstrated he “made a reasonable good faith

complaint of discrimination.”

       “Under the MHRA, it is an unlawful discriminatory practice to retaliate ‘in any

manner’ against an employee who ‘has opposed any practice prohibited by this chapter’

or ‘has filed a complaint ... pursuant to this chapter.’” Soto v. Costco Wholesale Corp.,

502 S.W.3d 38, 47-48 (Mo. App. 2016) (quoting § 213.070(2), RSMo 2016). To make a

submissible case of retaliation, Darks was required to demonstrate: “(1) he complained

of discrimination; (2) [his employer] took adverse action against him; and (3) a causal

relationship existed between the complaint and the adverse action.” Id. at 48. Although

Jackson County initially asserts that Darks failed to complain about the harassment, the

nature of its argument clearly asserts that the actions taken by the supervisory

employees against Darks were not retaliation but, instead, were justified by Darks’s

work performance. Based upon the record before this court, a jury could determine

otherwise.

       As discussed in detail supra, Darks reported his allegations of sexual harassment

against Montgomery. Shortly after Montgomery was made aware of Darks’s report and

the subsequent internal investigation, Montgomery filed a disciplinary memorandum



                                             13
accusing Darks of never being on time to any training and of lying about the reasons for

his tardiness. Additionally, Darks was transferred to the unit providing security for the

courthouse four days after Montgomery learned of the internal investigation. Evidence

was presented that this unit was considered a punishment detail or one that was an

employee’s last stop before being forced out. Further evidence was presented that

Montgomery, after learning of the sexual harassment investigation, authored a negative

performance review for Darks that hurt his chances for a raise or promotion.

       Jackson County shows no reason why the jury could not consider this evidence

and, instead, argues that there was other, contrary evidence that supported a finding

that any action taken by Montgomery or any other supervisory employee was justified

based on Darks’s performance. This argument ignores our standard of review. See

Keveney, 304 S.W.3d at 104. Evidence probative of every element was presented, and

the jury ultimately believed Darks’s presentation of such evidence. Jackson County,

therefore, has failed to demonstrate why the court should have granted its motion for a

JNOV on Darks’s retaliation claim. Jackson County’s Point III is denied.

II.    DARKS’S POINT ON APPEAL

       In his sole point on appeal, Darks asserts that the circuit court erred in granting

Jackson County’s motion for a JNOV on the punitive damages award because

substantial evidence was presented from which a jury could find that Darks clearly and

convincingly demonstrated that Jackson County engaged in outrageous conduct.

       A.     STANDARD OF REVIEW

       “The trial court's decision to grant a motion for JNOV is a question of law that we

review de novo, and in doing so, we review to determine whether a submissible case



                                            14
was made.” Mercer v. BusComm, Inc., 515 S.W.3d 238, 242 (Mo. App. 2017). Darks

must provide “substantial evidence for every fact essential to recovery in order to make

a submissible case.” Id. “Substantial evidence is that which, if true, has probative force

upon the issues, and from which the trier of fact can reasonably decide a case.” Ark.-

Mo. Forest Prods., LLC v. Lerner, 486 S.W.3d 438, 447 (Mo. App. 2016) (citation and

quotation omitted).

       We presume the evidence presented by the plaintiff is true, Eidson v. Reprod.

Health Servs., 863 S.W.2d 621, 626 (Mo. App. 1993), and view it “and all inferences

drawn therefrom in the light most favorable to the verdict[.]” Ark.-Mo. Forest Prods., 486

S.W.3d at 447. In reviewing the court’s action, we indulge “a presumption favoring the

reversal of a JNOV, and we will not overturn a jury verdict unless there is a complete

absence of probative facts to support the verdict.” Id. This presumption exists because

“[a] JNOV is a drastic action that can only be granted if reasonable persons cannot

differ on the disposition of the case.” Id.

       Whether the plaintiff has provided evidence sufficient to support an award of

punitive damages is a question of law, which we review de novo. Diaz, 484 S.W.3d at

88. Similar to the standard for reviewing the grant of a JNOV, however, [w]e view the

evidence and all reasonable inferences in the light most favorable to submissibility [of

punitive damages] and disregard all evidence and inferences which are adverse

thereto.” Id.

       B.       PUNITIVE DAMAGES GENERALLY

       “Punitive damages require clear and convincing proof of a culpable mental state,

either from a wanton, willful, or outrageous act, or from reckless disregard for an act's



                                              15
consequences such that an evil motive may be inferred.” Drury v. Mo. Youth Soccer

Ass’n, Inc., 259 S.W.3d 558, 573 (Mo. App. 2008). “The necessary mental state is found

when a person intentionally does a wrongful act without just cause or excuse.” Id.

“When someone intentionally commits a wrong and knew that it was wrong at the time,

an evil motive and wanton behavior is exhibited.” Id. A jury, however, may also infer an

evil intent “where a person recklessly disregards the rights and interests of another

person.” Id. Punitive damages are a harsh and extraordinary remedy and should be

awarded sparingly. Romeo v. Jones, 144 S.W.3d 324, 334 (Mo. App. 2004).

       C.     THE COURT ERRED IN GRANTING JACKSON COUNTY’S JNOV

       In support of his point of error, Darks exhaustively recounts the evidence

presented at trial, and we will not address all of it. However, material to the point at

issue here, Darks presented evidence from which a jury could have determined that

Darks was employed as a sheriff’s deputy and that his performance, while not without

difficulties, satisfactorily met the standards expected of that position. The jury could

also find that Darks reported his pain associated with shaving and that he sought

medical treatment for the condition of PFB. After a doctor provided a treatment plan

that required that Darks refrain from shaving, he sought an accommodation from the

Sheriff. The accommodation was initially refused, and Darks was required to shave

despite the pain that accompanied the action. It was only after he filed an official

memorandum asserting that this refusal was unlawful, and a discussion between the

Sheriff and the county counselor occurred, that Darks’s accommodation was granted.

       Darks stated that, after the accommodation was made, Sharp and Mills

repeatedly and openly expressed their displeasure with his facial hair. He stated that



                                             16
they continued to inform him that shaving was necessary and that he could work at

another law enforcement agency if shaving was too difficult. The jury could reasonably

infer that this open hostility, in conjunction with Darks’s reporting of Montgomery for

harassment, led to a targeted campaign against Darks.

       Further supporting this inference, the jury heard evidence of an investigation into

Darks’s residency. Jackson County has a policy that all deputies must reside within the

county. Evidence was presented that an individual from the Blue Springs School

District, former Jackson County Sheriff Tom Phillips, informed Jackson County that

Darks had enrolled his son in classes and that Phillips believed Darks no longer resided

in Jackson County. It was later discovered the Darks and his wife were separated and

his wife had taken up residence outside Jackson County, but Darks continued to live

within the county.

       The jury could reasonably infer that such investigation was a pretext, especially

in light of an email, sent from Phillips to Montgomery, in which Phillips stated: “Since

[Darks] withdrew [his child], we concluded our investigation. That’s what we normally

do. Sorry. Probably not enough to terminate yet. Start your file. He will give you

plenty of ammo.” (Emphasis added). Further, Montgomery was less than forthcoming

regarding the opening of “a file” on Darks, initially stating that, at the time she received

the email from Phillips, she had not yet opened any such file. This statement, however,

was immediately contradicted by Darks’s presenting an email, in the chain with Phillips,

in which Montgomery stated: “P.S. My file is already thick for only having him not quite

two months.” Additionally, the jury heard that, after being informed that Darks had




                                             17
withdrawn his child from Blue Springs, Montgomery responded, inter alia, with the

acronym “LOL[,]” which she confirmed meant laughing out loud.

       This was not the only evidence presented to support punitive damages. In

addition to the sexual harassment investigation detailed supra, the jury heard evidence

from which it could have inferred that supervisory employees within the Jackson County

Sheriff’s Department attempted to interfere with the investigation and punish the

investigator for his conclusions. Payne stated that he completed the investigation into

the reports of sexual harassment by Montgomery. As discussed in detail supra, that

document memorialized Payne’s conclusion that Montgomery had violated the county’s

policy against sexual harassment. Colonel Benjamin Kenney, the undersheriff in charge

of investigations, stated that this document, like all internal affairs investigations, would

have been reviewed by Sharp. Despite this information, evidence was presented that

Jackson County did not inform Darks of its findings or produce the document during

discovery.

       Further, Payne stated that he was reticent to testify and that he believed the

investigation had hurt his career. Approximately a year and a half after authoring the

investigatory memorandum concluding that Montgomery had violated the policy against

sexual harassment, Payne was reassigned to provide security to the court. He, like

Darks, believed this assignment was a punishment detail. Payne remained in that

assignment until a month before trial.

       “The employee’s evidence in support of [his] MHRA claim may also meet [his]

burden for submitting punitive damages to the jury.” Holmes v. Kansas City Mo. Bd. of

Police Comm’rs ex rel. Its. Members, 364 S.W.3d 615, 629 (Mo. App. 2012). Further,



                                              18
“[d]irect evidence is not common in discrimination cases because employers are shrewd

enough to not leave a trail of direct evidence.” Id. at 628 (citation and quotations

omitted). “In the absence of direct evidence, a plaintiff may use circumstantial evidence

to prove [his] case.” Id. at 629. Indeed, ‘[t]he rationale for allowing the jury to make

reasonable inferences in determining liability for punitive damages is the same as that

for the substantive claim: employers may act to prevent the development of direct

evidence and a clear evidentiary trail of discriminatory intent is rare.” Id. From the

evidence adduced at trial, a jury could plainly infer that supervisory employees in

Jackson County engaged in outrageous conduct either through the intentional

completion of any number of wrongful acts or through the reckless disregard of Darks’s

rights. Darks’s point on appeal is granted. The circuit court’s entry of JNOV on the

punitive damages award is reversed, and the cause is remanded for entry of judgment

in accordance with the jury’s verdict.

III.   MOTION FOR ATTORNEYS’ FEES

       Prior to submission of his case, Darks made a motion requesting attorneys’ fees

on appeal pursuant to Missouri Court of Appeals, Western District Special Rule 29.4 In

awarding attorneys’ fees, we follow the “American Rule,” which provides that “orders

requiring one party to pay another party's attorney’s fees or other expenses ordinarily

are not permitted unless the parties' contract or a statute authorizes the court to make

such an award.” Birdsong v. Children’s Div., Mo. Dep’t of Soc. Servs., 461 S.W.3d 454,

459 (Mo. App. 2015) (internal citation and quotations omitted). The MHRA contains a


4
  Western District Court of Appeals Special Rule 29 provides, in pertinent part: “Any party
claiming an amount due for attorney's fees on appeal pursuant to contract, statute or otherwise
and which this Court has jurisdiction to consider, must file a separate written motion before
submission of the cause.”
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fee-shifting provision that authorizes this court to make an award of attorneys’ fees to

the prevailing party. See § 213.111.2, RSMo 2016. “A prevailing party is one that

succeeds on any significant issue in the litigation which achieved some of the benefit

the parties sought in bringing suit.” Hurst v. Kansas City, Mo. Sch. Dist., 47 S.W.3d

327, 344 (Mo. App. 2014) (citation and quotations omitted), overturned on other

grounds by legislative action, L. 2017, S.B. No. 43. “Where a plaintiff has prevailed in

an action under the MHRA, the court should award attorneys' fees unless special

circumstances would render such an award unjust.” McCrainey v. Kansas City Mo.

Sch. Dist., 337 S.W.3d 746, 756 (Mo. App. 2011) (citations and quotations omitted).

       Here, Darks has prevailed on both his allegation of error and Jackson County’s

cross-appeal. Therefore, we grant his motion for attorneys’ fees on appeal. “Although

this court has the authority to allow and fix the amount of attorney's fees on appeal, we

exercise this power with caution, believing in most cases that the trial court is better

equipped to hear evidence and argument on this issue and determine the

reasonableness of the fee requested.” Id. (citation and quotation omitted).

Consequently, the case is remanded for the purpose of entering judgment in

accordance with this appeal and to conduct a hearing to determine the reasonableness

of the attorneys’ fees requested on appeal.

                                        CONCLUSION


       The circuit court’s judgment is affirmed with regard to the issues raised in

Jackson County’s appeal. On the issue raised by Darks, the judgment is reversed and

the cause is remanded with instructions to enter judgment in accordance with the jury’s




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verdict on the punitive damages award and to conduct a hearing to determine the

reasonableness of the attorneys’ fees requested on appeal.




                                       ____________________________________
                                       LISA WHITE HARDWICK, JUDGE
ALL CONCUR.




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