EMPLOYMENT LAW FOR THE NON-EMPLOYMENT PRACTICE

EMPLOYMENT LAW FOR THE NON-EMPLOYMENT PRACTICE Solo & Small Firm Conference June 2013 Presented by Bridget Halquist Jonathan C. Berns Chackes Carlson & Halquist, LLP Dobson, Goldberg, Berns & Rich, LLP 906 Olive Street, Suite 200 5017 Washington Place, Third Floor St. Louis, MO 63101 St. Louis, MO 63108 (314) 880-4472 (314) 621-8363 I. INTRODUCTION Laws relating to the area of employment have expanded tremendously in the past few decades. Some areas of employment are exclusively governed by federal law, while others see employers covered by overlapping state laws. In general, federal law has established a threshold of what an employer must do at a minimum and what employees are entitled to in various situations. State law may govern if it either establishes a higher, more strict standard for employers than federal law, or applies to a class of employers not covered by federal law. This means that where both state and federal laws apply, state regulations must offer either the same or greater protections to employees than federal law. II. THE EMPLOYMENT RELATIONSHIP At-Will Employment in Missouri the general rule is that employment is at the will of the employee or employer and can be terminated at any time with or without cause. The exceptions to this rule are: where there is a contract of employment that limits the right to terminate the employment such as an employment contract or collective bargaining agreement; violations of the Missouri Human Rights Act ( MHRA ), Mo.Rev.Stat. 213.010 et seq.; where a statute specifically provides the employee with a remedy for the wrongful discharge (i.e., worker's compensation, reporting safety violations, jury service, voting) where the termination contravenes a public policy clearly stated in the Constitution, a statute, or regulation (i.e., reporting wrongdoing, refusing to

perform an illegal act, engaging in activities normally encouraged by public policy). III. EMPLOYMENT DISCRIMINATION A) The Missouri Human Rights Act (MHRA) makes it unlawful for an employer to refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions or privileges of employment because of the individual s race, color, religion, national origin, sex, ancestry, age or disability. B) MHRA covers employment practices of public & private employers which employ six (6) or more persons within the state. It does NOT apply to corporations and associations owned and operated by religious or sectarian groups. C) Remedies - Employees must exhaust administrative remedies, which means that in order to bring a complaint of illegal discrimination, the employee must file a charge of discrimination with the state or federal administrative agency Missouri Commission on Human Rights or the Equal Employment Opportunity Commission. The employee has 180 or 300 days from the discriminatory act to file a charge of discrimination with the MCHR or EEOC respectively. After investigation of claims or written request, the agencies issue a Notice of Right to Sue, and the employee has 90 days to file suit. IV. MHRA V. FEDERAL LAW A) Charge Filing 1. MHRA a charge must be filed within 180 days of the last alleged act of discrimination. 213.075.1, RSMo. Continuing violation exception: An employee may recover for acts of discrimination occurring prior to the 180-day filing period if the discrimination is a series of interrelated events. Wallingsford v. City of Maplewood, 287 S.W.3d 682, 685 (Mo. 2009). 2. Federal law a Title VII, ADEA and ADA charge must be filed within 300 days after the alleged unlawful employment practice occurred. See 42 U.S.C. 20003-5(e)(1). B) Statutes of Limitation 1. MHRA Any action brought in Court... shall be filed within 90 days from the date of the MCHR's Right to Sue Letter. 213.111.1, RSMo. Any action brought in Court... shall be filed... no later than two years after the alleged cause occurred or its reasonable discovery by the alleged injured party. Id.

The Missouri Savings Statute, Mo.Rev.Stat. 516.230 (under which a party has one year to refile a lawsuit after the first voluntary dismissal) does not apply to lawsuits filed under the MHRA. Hutcheson v. Electronic Data Access Technologies, Inc., 327 S.W.3d 622, 625 (Mo. App. E.D. 2010). 2. Federal law Must file suite within 90 days after the giving of such notice... 42 U.S.C. 20003-5(g)(1). C) Individual Liability 1. MHRA individual liability permitted. Hill v. Ford Motor Co., 277 S.W.3d 659, 669 (Mo. 2009); Cooper v. Albacore Holdings, Inc., 204 S.W.3d 238 (Mo. App. E.D. 2006). 2. Federal law under Title VII and most federal statutes, individual liability is not permitted. D) Summary Judgment Availability 1. MHRA State courts will generally be more hostile to Defendant's summary judgment motions than federal. Daughtery v. City of Maryland Heights, 231 S.W.3d 814 (Mo. 2007) (court stated summary judgment should seldom be used in employment discrimination cases, because such cases are inherently fact based and often depend on inferences rather than on direct evidence. ). 2. Federal law -Federal court precedent sometimes articulates the view that summary judgment is to be used sparingly, yet it is granted often. [T]here is no 'discrimination case exception' to the application of Fed.R.Civ.P. 56, and it remains a useful pretrial tool to determine whether or not any case, including one alleging discrimination, merits a trial. Berg v. Norand Corp., 169 F.3d 1140, 1144 (8 th Cir. 1999); Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 850 (8 th Cir. 2005); See also, Torgerson et al. v. City of Rochester, Case No. 09-1131 (8 th Cir. June 1, 2011). E) Summary Judgment Standard 1. MHRA Court in Daugherty v. City of Maryland Heights, 231 S.W.3d 814 (Mo. 2007) held that McDonnell Douglas burden shifting no longer applies. In order to prevail on a motion for summary judgment, the Defendant must prove that: Plaintiff's protected trait (race, sex, etc.) was not a contributing factor in the attacked employment decision. 2. Federal law thousands of federal cases decided since the landmark decision of

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) hold that where there is no direct evidence of discrimination, the three (3) phase, burden shifting analysis applies: First, Plaintiff must adduce evidence of a prima facie case of discrimination; Second, if a prima facie case is submitted, then the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the employment decision; Third, Plaintiff must then prove that the reason articulated by the employer is a pretext for the actual, discriminatory, but-for cause of the decision. F) Damage Caps Beyond Back Pay 1. MHRA No compensatory damage cap, but punitive damage cap per 510.265.1, RSMo. No punitive damage award agains any defendant shall exceed the greater of: $500,000; or Five times the net amount of the judgment awarded to the Plaintiff. 2. Federal law Title VII and ADA: 15 to 100 employees: $50,000 101 to 200 employees: $100,000 201 to 500 employees: $200,000 501 or more employees: $300,000 G) Jury Instructions Business Judgment 1. MHRA None. Refusal to give business judgment instruction is not reversible error. McBryde v. Ritenour School District, 207 S.W.3d 162 (Mo. App. E.D. 2006). 2. Federal law Defendants are entitled to the business judgment instruction: You may not return a verdict for the Plaintiff just because you might disagree with the Defendant's decision or believe it to be harsh or unreasonable. 8 th Cir. Civil Jury Instruction 5.94 (2007). Reversible error to refuse this instruction. Belk v. Southwestern Bell Telephone Co., 194 F.3d 946 (8 th Cir. 1999).

H) Jury Instructions Same Decision 1. MHRA No same decision instruction is available. Refusal to give same decision instruction is not reversible error. McBryde v. Ritenour School District, 207 S.W.3d 162 (Mo. App. E.D. 2006). 2. Federal law In order to avoid an award of damages, for many years Defendants have been entitled to the same decision instruction: If you find in favor of the Plaintiff under Instruction, then you must answer the following question in the verdict forms: Has it been proved by the preponderance of the evidence that the Defendant would have [insert employment decision] the Plaintiff regardless of her sex? Reversible error to refuse this instruction. I) Jury Instructions Verdict Director 1. MHRA The state court instruction, MAI 38.01, states: Your verdict must be for plaintiff and against defendant if you believe: First, defendant discharged plaintiff, and Second, plaintiff's [age] was a contributing factor in such discharge, and Third, as a direct result of such conduct, plaintiff sustained damage. 2. Federal law - Traditional Federal Jury Instruction used in discrimination cases requires a jury's verdict to be for plaintiff if plaintiff's [age] was a motivating factor in defendant's employment decision. V. CLOSER LOOK AT SIGNIFICANT CASES A) Right to Jury Trial Under MHRA - Diehl v. O Malley, 95 S.W.3d 82 (Mo. 2003). 1. In a case for damages under the Missouri Human Rights Act, Mo.Rev.Stat. 213.010 et seq., a plaintiff has a constitutional right to a jury trial under Article I, Section 22(a) of the Missouri Constitution. 2. Missouri Supreme Court finds that a claim for damages under the Missouri Human Rights Act seeks redress for an intentional wrong done to a person and is thus analogous to other tort actions to which individuals are entitled to jury trials. 95 S.W.3d at 87-88. B) Adoption of MAI 31.24 [now 38.01] In July 2005, the Missouri Supreme Court adopted MAI 31.24 (which has since been renumbered as 38.01) which set forth that the applicable causation standard for MHRA claims is a contributing factor

standard (i.e., that the plaintiff must prove that the protected characteristic, such as age, gender, race, disability, etc., was a contributing factor in the employer s challenged employment action against the plaintiff). C) New Burden of Proof McBryde v. Ritenour School Dist., 207 S.W.3d 162 (Mo. App. 2006). 1. Court held that MAI 31.24 correctly instructs under the law. 2. No right to business judgment or same decision instructions. 3. Court defines contributing factor as that contributes a share in anything or has a part in producing the effect. 207 S.W.3d at 170. 4. Court of Appeals finds that in enacting the MHRA, the legislature sought to prohibit any consideration of race or other improper characteristic no matter how slight in employment decisions. 207 S.W.3d at 170. D) Rejection of Federal Framework Daugherty v. City of Maryland Heights, 231 S.W.3d 814 (Mo. banc 2007). 1. Missouri Supreme Court affirms validity of MAI 31.24 and announces that the state courts should not strictly apply federal law to cases under the MHRA and that Missouri employment law should, and will, regularly deviate from federal precedent. The Supreme Court stated: Missouri employment discrimination law in a post-mai 31.24 environment should more closely reflect the plain language of the MHRA and the standards set forth in MAI 31.24 and rely less on analysis developed through federal case law. 231 S.W.3d at 819. Court finds that contributing factor is the sole consideration for a trial judge evaluating an MHRA claim at summary judgment. The contributing factor language used in MAI 31.24 is consistent with the plain meaning of the MHRA and that [a]nalyzing summary judgment decisions under the standards set forth in MAI 31.24 is appropriate because a plaintiff has no higher standard to survive summary judgment than is required to submit a claim to a jury. 231 S.W.3d at 820. 2. To survive summary judgment, there must be a genuine issue of material fact as to whether prohibited characteristic was a contributing factor to the challenged employment decision. E) Individual Liability: Hill v. Ford Motor Co., 277 S.W.3d 659, 669 (Mo. 2009); Cooper v. Albacore Holdings, Inc., 204 S.W.3d 238 (Mo. App. E.D. 2006). 1. Owners, supervisors, human resource managers, and harassers can be held individually liable under the MHRA. F) Contributing Factor Analysis Extended to Retaliation Cases Hill v. Ford Motor

Co., 277 S.W.3d 659 (Mo. 2009). 1. Reaffirmed contributing factor standard in discrimination cases and directed Missouri courts to use contributing factor standard in retaliation cases as well. 2. Held that individuals not named in the Charge of Discrimination must be able to demonstrate prejudice to obtain dismissal. 3. Statutory language: A plaintiff has the right to bring a civil action against the respondent named in the complaint. Mo.Rev.Stat. 213.111.1. Yet, if a party was not named in the charge can be a defendant in an MHRA lawsuit so long as there is a substantial identity of interest between the parties sued and those charged. Id. at 669-70. 4. The factors to consider to determine if there is a substantial identity of interest are: whether the role of the unnamed party could through reasonable effort be ascertained at the time of the filing of the lawsuit; whether the interests of a named party or so similar as the unnamed party s interests that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; whether the unnamed party s absence from the proceedings resulted in actual prejudice to the interests of the unnamed party; whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party. 5. Best Practice: If you might want to name a person or entity as a defendant in the lawsuit, make sure you name the person/entity as a respondent in the charge and describe what action the person/entity took that you alleged was discriminatory in the body of the charge. 6. Individual liability reaffirmed: Court held an individual can be held personally liable if he/she is directly acting in the interest of an employer under Mo.Rev.Stat. 213.010(7) if he/she engages in discriminatory conduct. employer is defined to include any person directly acting in the interest of an employer. Mo.Rev.Stat. 213.010(7). Because an employer is prohibited from engaging in discrimination, the plain language of the statute allows for individual liability.

A supervisor clearly falls into that category [of persons who can be held individually liable under the MHRA]. Supervisor must have directly oversaw or been actively involved in the discriminatory conduct. Reed v. McDonalds Corp., 363 S.W.3d 134, 139 (Mo. App. E.D. 2012)(when President of the Defendant did not directly oversee the harasser or actively engaged of any of the alleged unlawful conduct, the President could not be held individually liable under the MHRA). Non-supervisory employees no reported appellate cases have ever held a non-supervisor individually liable, but there is no reason that the plain language of the statute could not encompass non-supervisory employees. The Missouri Supreme Court s language that supervisors are clearly liable might suggest that the individual liability provision encompasses significantly more than just supervisors. In addition, in Reed, the Court of Appeals suggested a rule that would seem to impose liability on nonsupervisors who engaged in discriminatory conduct. Id. at 139-40 (individuals can be held liable under MHRA if they were actively involved in the discriminatory conduct ). VI. VENUE A) Two Potentially Applicable Statutory Provisions: 1. Special Venue Provision under the MHRA, Mo.Rev.Stat. 213.111.1: [A]n action [under the MHRA] may be brought in any circuit court in any county in which the unlawful discriminatory practice is alleged to have occurred... Under this provision, venue is appropriate in any county in which the decisionmaking process occurred. See Igoe v. The Department of Labor and Industrial Relations, 152 S.W.3d 284 (Mo. 2005). 2. General Venue Provision under Mo.Rev.Stat. 508.010.4: Notwithstanding any other provision of law, in all actions in which there is any count alleging a tort and in which the plaintiff was first injured in the state of Missouri, venue shall be in the county where the plaintiff was first injured by the wrongful acts or negligent conduct alleged in the action. (Emphasis supplied). B) With the enactment of Mo.Rev.Stat. 508.010.4 in 2005 (which was after the Supreme Court s decision in Igoe), it is now unclear whether this general provision supercedes the specific venue provision in the MHRA 1. City of Jennings v. Riley, 236 S.W.3d 630 (Mo.2007)(Court holds that, in tort cases, Mo.Rev.Stat. 508.010.4 superseded the specific venue

provision relating to actions against municipalities such that case against City of Jennings could be brought in City of St. Louis). 2. State ex rel. Hollins v. Prtichett, 395 S.W.600 (Mo.App.S.D. 2013)(Court of Appeals follows the Igoe decision and applies MHRA s specific venue provision to determine proper venue; Supreme Court denies transfer). VII. PUBLIC POLICY WRONGFUL DISCHARGE CASES A) Missouri Supreme Court has recognized a public policy wrongful discharge claim. Fleshner v. Pepose Vision Institute, 2010 Mo. LEXIS 11 (Mo. 2010); Margiotta v. Christian Hospital Northeast, 2010 Mo.LEXIS 12 (Mo. 2010). 1. Such claims may be brought by both at-will employees and employees who have employment contracts. Keveney v. Missouri Military Academy, 2010 Mo. LEXIS 10 (Mo. 2010). 2. Causation standard: An employee must show that his refusal to perform an illegal act or whistleblowing was a contributing factor in his termination. Exclusive causation eliminated. 3. Elements of a Public Policy Wrongful Discharge Claim: the employee engaged in protected activity; Defendant discharged (or took other adverse action against) the employee; Plaintiff s protected activity was a contributing factor in his or her discharge; and as a direct result of his or her discharge, Plaintiff sustained damage. See MAI 38.03. 4. Types of Protected Activity: refusing to violate the law or any well-established and clear mandate of public policy as expressed in the constitution, statutes, regulations promulgated pursuant to statute, or rules created by a government body. Fleshner v. Pepose Vision Institute, 304 S.W.3d 81, 92 (Mo. 2010); Margiotta v. Christian Hospital Northeast, 315 S.W.3d 342, 346 (Mo. 2010). reporting wrongdoing or violations of law to superiors or public authorities (commonly referred to as whistleblower claims. Fleshner v. Pepose Vision Institute, 304 S.W.3d 81, 92 (Mo. 2010); Margiotta v. Christian Hospital Northeast, 315 S.W.3d 342, 346 (Mo. 2010).

acting in a manner public policy would encourage. Delaney v. Signature Health Care Foundation, 376 S.W.3d 55 (Mo.App.E.D. 2012). 5. Persons to whom a report of illegal conduct must be made in whistleblower cases: For an employee s report of illegal conduct to constitute protected activity, the employee must report the conduct to superiors or other proper authorities [such as federal or state officials]. Fleshner, 304 S.W.3d, at 97 n.13. There is no requirement that an employee s report be made to outside authorities. An employee s superior can constitute the proper authority to whom to blow the whistle. Fleshner, 304 S.W.3d, at 97 n.13. It is not protected activity for an employee to report misconduct to the wrongdoer(s); the employee must report to a superior about wrongdoing by other employees. Drummond v. Land Learning Foundation, 358 S.W.3d 167 (Mo.App.W.D. 2011). 6. Showing of a Clear Mandate of Public Policy A plaintiff must show that the alleged misconduct at issue violated a clear and well-established mandate of public policy. Fleshner, 304 S.W.3d at 96; Margiotta, 315 S.W.3d at 346-47. The existence of a public policy is the legislature s decision to provide a comprehensive statutory scheme to regulate the conduct at issue. Fleshner, 304 S.W.3d at 96 (Missouri Supreme Court emphasized the existence of the statutory scheme that regulates the payment of overtime compensation as a factor relevant to determining whether a well-established public policy exists). X. COMMON DISCOVERY ISSUES IN MHRA LAWSUITS A) Garden Variety Emotional Distress - Dean v. Cunningham, 182 S.W.3d 561, 568 (Mo. 2006). 1. Missouri Supreme Court held that, in a MHRA claim, evidence of [a plaintiff s] medically or psychologically diagnosable mental or physical condition is irrelevant to the question of whether she suffered garden variety emotional distress as a result of the allegedly unlawful acts. 182 S.W.3d at 568. 2. Where the MHRA plaintiff chooses not to offer any evidence that she sought treatment for emotional distress [or] any evidence that she has any

diagnosable condition allegedly resulting from the actions of discrimination or harassment then the employer is not entitled to obtained her medical records or seek discovery on her medical/mental condition. 182 S.W.3d at 568-69. 3. Case provides a plaintiff with choice of whether he wants to provide medical evidence/testimony from treaters or whether he wants to assert a garden variety emotional distress claim and preclude defendant from being able to conduct discovery into client s medical and psychological history. 4. But: If the Employer can show that the medical records or discovery is relevant to some other issue in the lawsuit, then the medical records or discovery may still be discoverable. State ex rel. BNSF Railway Co. v. Neill, 356 S.W.3d 169 (Mo. 2011)(in personal injury case where plaintiff only sought garden variety emotional distress, Missouri Supreme Court nevertheless permitted discovery of plaintiff s psychiatric records when defendant established that those records were relevant to the issue of whether defendant s alleged negligence was the cause of plaintiff s injuries). B) Discovery of Employee Personnel Files - Delmar Gardens North Operating, LLC v. Gaertner, 239 S.W.3d 608 (Mo. 2007). 1. Missouri Supreme Court held that a right of privacy exists in personnel records and that such records should only be produced in a civil action to the extent that the documents produced are limited to information that relates to matters put at issue in the pleadings, especially in relation to sensitive personal information. 239 S.W.3d at 611-12, quoting Madlock v. O Malley, 8 S.W.3d 890, 891 (Mo. 1999). 2. Courts should take actions to protect the confidentiality of the personnel records including in camera inspections and protective orders. 239 S.W.3d at 611-12. 3. As plaintiff s counsel, must narrowly tailor the document requests to seek relevant information and make clear in your petition that certain issues or allegations are at issue. 4. Using Delmar Gardens as a Shield: Limits on Employers Ability to Subpoena Employment Records of Plaintiff: Common practice: Defense counsel will send out subpoenas to companies for the plaintiff worked before and after he/she worked for the Defendant employer. Plaintiff has a fundamental right of privacy in their personnel records, thus, Defendant only has right to issue subpoenas that are limited to information that relates to matters put at issue in the pleadings, especially in relation to sensitive personal information. 239 S.W.3d at 611-12, quoting Madlock v. O Malley, 8 S.W.3d 890, 891 (Mo. 1999). A subpoena seeking the plaintiff s entire personnel file and any

other materials in your possession in any form relating to the employee is clearly improper. Delmar Gardens, 239 S.W.3d at 612; Madlock, 8 S.W.3d at 892. subpoena should be limited to relevant information such as wage information (for subsequent employers), application by plaintiff, information regarding end of employment, if applicable (usually relevant to lost wage claim). Defense counsel is not permitted to send out subpoena for employment records and simply have those personnel records mailed to them; the documents must be produced at a formal deposition, unless you consent otherwise. If defense counsel engages in such conduct, it is an ethical violation. State ex rel. Crowden v. Dandurand, 970 S.W.2d 340, 343 (Mo. 1998)( it is professional misconduct for a requesting attorney to review or otherwise use privileged records that a provider mails contrary to a subpoena requiring production of documents at a deposition. ). C) Discoverability of Information Concerning Similarly Situated Employees 1. In order to demonstrate that protected characteristic was a contributing factor in the alleged harassment or allegedly discriminatory action, a plaintiff must show members within the protected class were exposed to disadvantageous terms of conditions of employment to which [employees outside the protected class] were not exposed. Barekman v. City of Republic, 232 S.W.3d 675, 680-81 (Mo. App. S.D. 2007). This statement of law should make clear that discovery and evidence relating to how the employer treated other employees outside the plaintiff s protected class are relevant to the plaintiff s claim. Korando v. Mallinckrodt, Inc., 239 S.W.3d 647, 650 (Mo.App.E.D. 2007)(in determining whether plaintiff could show that sex was a contributing factor in termination, Court of Appeals found relevant the evidence that other male employees engaged in same conduct as plaintiff but were not fired). Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 824 (Mo. 2007) (Missouri Supreme Court finds that plaintiff showed a genuine issue of material fact as to whether his disability was a contributing factor in termination decision when he presented evidence that nondisabled employees were not subjected to a fitness-for-duty examination). Williams v. Trans States Airlines, Inc., 281 S.W.3 854 (Mo.App.E.D.2009) ( instances of disparate treatment can support a claim of pretext so long as the employees are similarly situated. );

see also Young v. Am. Airlines, Inc., 182 S.W.3d 647, 654 (Mo.App.E.D. 2005). D. Evidence of Other Acts of Discrimination by Defendant Employer 1. Other allegedly discriminatory/retaliatory actions by defendant employer are relevant to establish that protected characteristic was a contributing factor in adverse action taken against plaintiff employee. Williams v. Trans States Airlines, Inc., 281 S.W.3 854 (Mo.App.E.D.2009)(in sexual harassment retaliatory discharge case, evidence that employer fired another woman who filed a sexual harassment complaint was relevant to show that employer had a retaliatory animus against plaintiff employee). 2. Evidence of other complaints of sexual harassment is relevant in a hostile work environment case. See Mason v. Wal-Mart Stores, Inc., 91 S.w.3d 738, 743 (Mo.App.W.D. 2002) ( Evidence that a co-worker complained to management about harassment by another co-worker may have probative value of whether management had at least constructive notice of the harassment of a plaintiff. ). XI. REMEDIES A) Economic Damages 1. Unemployment benefits: An employer is not entitled to a reduction of a back pay award or economic damage claim based upon the plaintiff s receipt of unemployment benefits. Echols v. The City of Riverside, 332 S.W.3d 207, 212 (Mo. App. W.D. 2010). 2. Collateral source rule applies and such information should not be discoverable. B) Emotional Distress Damages C) Punitive Damages 1. Submissibility Standard: A submissible case is made if the evidence and the inferences drawn therefrom are sufficient to permit a reasonable juror to conclude that the plaintiff established with convincing clarity that is, that it was highly probable that the defendant s conduct was outrageous because of evil motive or reckless indifference. Williams v. Trans States Airlines, Inc., 281 S.W.3d 854, 870 (Mo.App.E.D. 2009); Brady v. Curators of the University of Missouri, 213 S.W.3d 101, 109 (Mo.App.E.D. 2006); see also Kelly v. Bass Pro Outdoor World, LLC, 245 S.W.3d 841, 849 (Mo.App.E.D. 2007)(public policy wrongful discharge claim). 2. Defendant must have engaged in the unlawful conduct intentionally and with the knowledge that the conduct was unlawful. Williams v. Trans

States Airlines, Inc., 281 S.W.3d 854, 870 (Mo.App.E.D. 2009). 3. The same evidence used to establish the underlying discrimination or retaliation can be used to establish the submissibility of punitive damages. Williams v. Trans States Airlines, Inc., 281 S.W.3d 854, 870 (Mo.App.E.D. 2009). 4. Punitive damages under the MHRA are recoverable against state governmental entities. Brady v. Curators of the University of Missouri, 213 S.W.3d 101, 107-08 (Mo.App.E.D. 2006). 5. Appellate decisions addressing submissibility of punitive damages: Brady v. Curators of the University of Missouri, 213 S.W.3d 101, 108-10 (Mo.App.E.D. 2006)(plaintiff made a submissible case of punitive damages when he presented evidence that budget cuts were made to plaintiff s program despite increased revenues, younger employees were treated better than plaintiff with regards to pay, hours, benefits, and employer took other actions designed to humiliate and denigrate plaintiff). Kelly v. Bass Pro Outdoor World, LLC, 245 S.W.3d 841, 849-50 (Mo.App.E.D. 2007)(in whistleblower case, employee made submissible case for punitive damages because the allegedly unlawful action was a wrongful act done intentionally by a manager, the manager knew that the conduct was inappropriate, the manager threatened to fire an employee for reporting him to the police, and employer failed to conduct any meaningful investigation into the complaint of unlawful conduct). Lynn v. TNT Logistics North America, Inc., 275 S.W.3d 304 (Mo. App.W.D. 2008)(in sexual harassment case, employee made submissible case for punitive damages when she presented evidence that employer disregarded its sexual harassment policies and procedures, failed to properly investigate claims of sexual harassment, and had direct knowledge of sexual harassment by supervisor but ignored it). Williams v. Trans States Airlines, Inc., 281 S.W.3 854 (Mo.App.E.D.2009) (in retaliatory discharge case, employee made submissible punitive damage case when she presented evidence that she had good work record prior to complaint, allegations of poor performance arose after complaint, employer failed to document claims of performance problems, the termination happened close in time to the complaint, and employer fired another women who had complained about sexual harassment). Alhalabi v. Missouri Department of Natural Resources, 300 S.W.3d 518, 529 (Mo.App.E.D. 2009)(In racially hostile work environment case, plaintiff made submissible case for punitive damages when