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Hudson v. United Systems of Arkansas, No. 12-2572 (8th Cir. Mar. 7, 2013); Al-Birekdar v. Chrysler Group, LLC, No. 08-3780 (8th Cir. Mar 11, 2013)

Two recent decisions from the Eighth Circuit serve as a reminder that employment discrimination and retaliation cases are being tried and employees are winning. In Hudson, the Court affirms a nearly $180,000 jury verdict in a Title VII and ADA discrimination case, including $100,000 in emotional distress damages. In Al-Birekdar, the court upholds a $200,000 verdict for retaliation under the Missouri Human Rights Act.

Hudson v. United Systems of Arkansas, No. 12-2572 (8th Cir. Mar. 7, 2013): Ms. Hudson - the one woman in the workplace - ran into friction with her boss, owing to her absence from work after pelvic surgery and an infection. The day that she returned, her supervisor (Petkovsek) raised a fuss:

"Petkovsek confronted her in her office, demanding to know why she had not called him on his cell phone to inform him personally that she would be out of the office that week. Hudson responded that she had not known she was required to call him personally. An argument ensued, and Petkovsek stood up and began pointing in Hudson's face. When Hudson rose, Petkovsek ordered her to 'sit down, little girl.' She did not, and Petkovsek grew irate and ordered her to 'get out,' repeating the phrase several times. Hudson understood this to mean she was fired. She left the office and went home. When she returned the next day to gaThere her possessions, she found that the key code had been changed and another worker told her she was not allowed in the building. Petkovsek called Hudson a few days later and asked her to come to United Systems for a meeting with him. At the meeting he explained that he felt Hudson was unable to perform her regular duties due to her 'health issues and personal issues,' but that he would allow her to rejoin the company if she took a position with reduced hours and pay. Hudson did not accept Petkovsek's offer."

Hudson filed claims under federal and Arkansas state law, and her sex and disability discrimination claims proceeded to a jury trial. Hudson prevailed and the jury awarded her compensatory damages of $179,362. The award included $100,000 for "There damages . . . such as mental anguish."

The Eighth Circuit affirms. On liability, the panel holds that There was sufficient evidence to support the verdict. Though the employer proffered as its defense at trial that Hudson was legitimately fired for violating a company rule - supposedly requiring staff to call absences into the boss's cell phone - the record supported the verdict:

"There current or former executive employees testified that they had never heard of Petkovsek's alleged cell phone policy. In response to Petkovsek's testimony that he had told Hudson about the cell phone policy months before her termination, a portion of his pretrial deposition was introduced in which he stated that he believed he first told her about it the day she was fired. Hudson also produced evidence that Petkovsek 'belittle[d] women employees all of the time,' talked down to them, and called them 'girl' or 'little girl.' Once he told Hudson that she 'g[a]ve good phone,' which she took to be a reference to oral sex. Finally, Hudson testified that immediately before telling her to 'get out' of her office during their confrontation, Petkovsek ordered her to 'sit down, little girl.'"

The panel also affirmed the $100,000 emotional distress verdict:

"Awards for pain and suffering are often 'highly subjective and should be committed to the sound discretion of the jury, especially when the jury is being asked to determine injuries not easily calculated in economic terms.' [cite]. In previous cases, for example, we have upheld jury awards of $200,000 for a sexual harassment claim; $50,000, $100,000, and $125,000 for discrimination claims under Title VII; and $165,000 for a disability discrimination claim under the Americans with Disabilities Act. [cite]. Considering this precedent and the record made in this case, we cannot conclude that the award of $100,000 to Hudson was monstrous, shocking, or grossly excessive."

Al-Birekdar v. Chrysler Group, LLC, No. 08-3780 (8th Cir. Mar 11, 2013): Al-Birekdar prevailed at trial on a retaliation claim under the Missouri Human Rights Act (MHRA). He presented evidence that he complained about racial and religious harassment by a co-worker, Frankenberg, who was originally not punished while Al-Birekdar was placed on indefinite suspension. Only after Al-Birekdar filed a charge with the Missouri Commission on Human Rights (MCHR) did the HR manager (Carroll) finally take action to suspend the offender. Thereafter, though, Al-Birekdar was terminated allegedly for being absent without leave (AOL) by overstaying vacation by five days.

Al-Birekdar attempted to grieve the termination but met with no success:

"When Al-Birekdar returned from vacation and learned of his termination, he filed a grievance, appealing his termination. Jim Baines, the union steward involved in Al-Birekdar's grievance claim, testified that when he attempted to negotiate a lesser punishment, Carroll refused to reinstate Al-Birekdar. Carroll stated that they wanted to 'teach [Al-Birekdar] a lesson.' Tom Miller, a Chrysler employee since 1968, testified that he was not aware of any There skilled-trades person ever being terminated for allegedly violating the five-day leave policy."

The jury awarded Al-Birekdar $197,000 in economic damages and $3,000 in emotional-distress damages for retaliation under the MHRA; the judge awarded $55,650 in attorney's fees.

The Eighth Circuit affirms. It upheld the use of a jury instruction that the jury could find liability if retaliation as a "contributing factor" in the decision to terminate (the standard applied under the MHRA), and that There was sufficient evidence to support the verdict. The court also affirms the damage award, holding that the plaintiff's testimony (and his spouse's) was adequate. "Al-Birekdar and his wife testified specifically about the amounts paid for early withdrawal of retirement funds and There payments. Al-Birekdar also introduced various financial documents to support his claims, including past W2s and statements from his retirement accounts."

The plaintiff cross-appealed two issues, yet the court affirmed on those as well. First, it held (with little discussion) that the district court did not abuse its discretion in denying a punitive damage instruction because There was insufficient evidence of "evil motive or reckless indifference" as provided by state law. Second, the court affirmed the reduction in plaintiff counsel's hourly rate, hours and a 50% reduction for limited success.

Please visit the professional bio of Paul W. Mollica at the Outten & Golden LLP website.

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