James Trickey v. Kaman Industrial Technologies , 705 F.3d 788 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-1061
___________________________
James Trickey
lllllllllllllllllllll Plaintiff - Appellee
v.
Kaman Industrial Technologies Corp.
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 12-1177
___________________________
James Trickey
lllllllllllllllllllll Plaintiff - Appellant
v.
Kaman Industrial Technologies Corp.
lllllllllllllllllllll Defendant - Appellee
____________
Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
____________
Submitted: September 19, 2012
Filed: February 5, 2013
____________
Before RILEY, Chief Judge, SMITH and COLLOTON, Circuit Judges.
____________
SMITH, Circuit Judge.
A jury found in favor of James Trickey in his employment-discrimination suit
under the Missouri Human Rights Act (MHRA), § 213.010 of the Missouri Revised
Statutes, against Kaman Industrial Technologies Corporation ("Kaman"). The jury
awarded Trickey $160,000 for his age-discrimination claim; $100,000 for his
retaliation claim; and $500,000 in punitive damages. The district court1 awarded
Trickey attorneys' fees at the Cape Girardeau, Missouri rate, which is less than the St.
Louis, Missouri rate that Trickey requested. On appeal, Kaman argues that the district
court erred in submitting the issue of punitive damages to the jury because Trickey
failed to present clear and convincing evidence of outrageous conduct. It also asserts
that the punitive-damages award violates the Due Process Clause of the Fourteenth
Amendment. And, it maintains that the district court erred in denying its motion for
new trial on Trickey's discrimination and retaliation claims because the court (1)
improperly admitted hearsay testimony from Trickey's wife on a central issue in the
case and (2) failed to weigh the evidence or make credibility findings in evaluating
Kaman's motion for new trial. Trickey cross-appeals the district court's denial of his
post-trial motion to alter or amend the judgment to include an attorneys' fees award
consistent with the lodestar rates in the St. Louis area. We affirm.
1
The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.
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I. Background2
In May 2000, Kaman hired Trickey as a branch manager of its Cape Girardeau,
Missouri office. Trickey reported directly to Tom Caputo, a district manager. When
Kaman hired Trickey, he was 57 years old, and Caputo was 52 years old.
As branch manager, Trickey hired Ken Higgins as an outside salesperson or
"professional accounts manager" (PAM). Higgins told Trickey that his career goal
was to become a branch manager at Kaman. On March 16, 2006, Higgins sent Caputo
an email inquiring whether Kaman had a "[b]ranch [m]anager training program [that
he] could be taking to prepare [himself] for a [b]ranch [m]anager position if one
should arise." He also inquired as to "the chances . . . of a position coming available
in the next couple of years." In reply, Caputo explained that Kaman did have a
"formal training program for [branch managers]" and offered to assist Higgins "on
learning key aspects of Branch and Operations Management positions." Higgins then
responded that a competitor had "offered [him] about 20,000 more than" Higgins
currently made at Kaman and also offered "to pay for [Higgins's] move." Higgins
indicated that he would "much rather be a [b]ranch [m]anager for Kaman." Caputo
did not respond to Higgins; instead, he forwarded Higgins's email to Mike Kelly,
Kaman's vice president. Caputo's email to Kelly stated, "See latest below from Ken
Higgins. I think we're going to have to do something. Ken is a 'must retain[.']" Caputo
also proposed a new base salary for Higgins "to get [the competitor's] offer off the
table." Finally, he stated, "Have to do something here anyway, since Jim Trickey has
about 4 years before retiring. And should anything happen to Jim in the meantime,
we must have continuity with P&G [(Proctor & Gamble)]. Ken's mastery of Doc
Savings could also solidify our position with P&G."
2
"We recite the facts in the light most favorable to the jury's verdicts." White
v. McKinley, 605 F.3d 525, 528 (8th Cir. 2010) (quotation and citation omitted).
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Until 2007, Trickey's yearly performance reviews indicated that he met or
exceeded expectations each year. In 2005, Trickey received a leadership award. In
2006, Kaman asked Trickey to manage the Jonesboro, Arkansas branch, in addition
to the Cape Girardeau branch. Under Trickey's leadership, the Cape Girardeau branch
improved its performance and performed well through 2007 and into 2008.
In the summer of 2007, Trickey was playing golf with Caputo when Caputo
informed Trickey that "the average age of management in Kaman is 59-years old and
we got to get some new blood." Trickey was 64 years old at the time. In the fall of
2007 when Caputo was at the Cape Girardeau branch, Trickey again heard Caputo say
"that the average age of management in Kaman was 59 and we need[ ] to get some
new blood in here." In September or October 2007, Caputo invited Trickey to dinner.
At the dinner, Caputo told Trickey "that the branch personnel were not supporting
[Trickey]; that there was a lot of . . . animosity in the branch and that it was
. . . becoming an impossible situation." Trickey replied that "if [Caputo would] get
out of [Trickey's] branch and let [Trickey] run it, [Trickey] could run it better than
[Caputo] could." Caputo did not agree that he was the problem; instead, Caputo
asserted that "the problem was that [Trickey] . . . had emotional problems." Caputo
suggested that Trickey seek professional help for depression.3 Trickey, however,
believed that he "was doing just fine" and that he was "getting great results for the
branch." Caputo never indicated to Trickey that Trickey's position as branch manager
was in jeopardy.
In September 2007, Caputo sent a letter to Laura Reeves, a district human
resources representative for Kaman, setting forth his concerns with Trickey's
performance as branch manager. In the letter, Caputo never mentioned that "the
performance of the Cape Girardeau branch in 2007 under Jim Trickey's leadership
3
Trickey's son died in April 2007. Trickey was absent from work a total of two
weeks.
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was excellent." Caputo did not share the contents of the letter with Trickey, nor did
Caputo give Trickey an opportunity to respond.
On December 5, 2007, Caputo completed a "Performance Appraisal" (PA) for
Trickey. Caputo gave Trickey an "overall rating" of "Needs Improvement" and
designed and implemented a "Performance Improvement Plan" (PIP) for Trickey.
Although Caputo gave an "overall rating" of "Exceeding Expectations" to Trickey's
branch team, he nonetheless rated Trickey's "skills and abilities" as "Needs
Improvement" or "Meets Expectations." On Trickey's PA, Caputo commented, inter
alia, that Trickey failed to "understand the factors that contribute to key business
metrics such as ROCA [Return on Controllable Assets] and PPI." Caputo's comment
that Trickey did not understand these factors surprised Trickey, "considering the fact
that [his] branch had been ranked number five out of 166 branches in ROCA." In past
years, Trickey's skills and abilities had met or exceeded expectations.
Trickey's PIP required him to, among other things, (1) hold a meeting with the
branch team by December 10, 2007, "to make a renewed personal commitment to
restore their confidence"; (2) "hold a weekly progress review meeting with the branch
team using a pre-communicated agenda"; (3) "[i]nvolve the branch team in the
development of the 2008 Branch Business Plan" and "submit [that plan] by January
4[, 2008]"; (4) "submit [his] personal weekly plan [and] call report to [Caputo] by the
end of business each Friday"; (5) "[s]ubmit thorough [and] timely Monthly Activity
Reports"; (6) attend training on computer and management skills by the end of the
first quarter of 2008; and (7) "[d]evote [a] minimum [of] 3 days per week conducting
sales calls on [his] personal TMP accounts," "[s]pend[ing] no more than 1 day per
week in the office." Trickey signed the PIP, "agree[ing] to meet the above
expectations." He acknowledged "that if [he] d[id] not meet these expectations over
the next 90 days further disciplinary action may result[,] up to and including
termination."
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On January 2, 2008, Trickey mailed a written rebuttal to his 2007 PA to dispute
Caputo's evaluation. He sent the rebuttal to Reeves; Bob Goff, Kaman's vice president
of human resources; and Jack Cahill, Kaman's president. The rebuttal addressed
Caputo's criticism that, inter alia, Trickey spent too much time in the office instead
of generating new business. Trickey explained that because the branch was short-
handed, he often worked in the office to support inside sales. He requested authority
to hire more employees. Trickey never received a response to his rebuttal letter.
As required, Trickey met with his branch team by December 10, 2007, to
discuss improving branch communication and the branch members' role in developing
the 2008 business plan. Despite a "significant shortage of personnel in the branch to
fill existing orders," Caputo made no staff adjustment to fill orders in Trickey's
absence to enable Trickey to meet Caputo's directive for Trickey to "[s]pend no more
than 1 day per week in the office." To comply with computer- and management-
training requirements, Trickey contacted Reeves and inquired where he could take the
classes. But Reeves "didn't know what [Trickey] was talking about." Reeves provided
no assistance to Trickey.
Trickey concluded that Kaman was planning to replace him as branch manager,
as Trickey had turned 65 a few months prior. On January 18, 2008, Trickey spoke
with Goff. During that conversation, Trickey told Goff that Caputo had "lost
. . . confidence in [Trickey]." Trickey expressed his belief that Caputo was "looking
and digging for everything he can find that I do wrong." Trickey felt that there was
"a lot of betrayal and backstabbing going on." He expressed his belief that Caputo
was "getting ready to fire [him]" and that Caputo had "cut some deals with some of
the other guys in the office to take over when [Trickey was] gone." Trickey asked
Goff whether there was "anything we can do just to end it somehow"; that is, whether
Trickey could "go ahead and retire." In response, Goff asked Trickey his age, and
Trickey replied that he was 65. Goff stated that Trickey was "obviously eligible to
retire then . . . if [he] wanted to." Trickey then stated, "I don't really want to. I've got
a good branch. We're doing very well. We're number five in the company ROCA
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number." Goff replied, "Yeah. Branch is doing exceptionally well." Trickey informed
Goff that the branch had been "shorthanded for some time" and was "struggling."
Trickey's impression was that Kaman wanted to "get Ken [Higgins] in here" and "get
rid of Trickey." Goff then stated, "Yeah. I don't think that's the case. Ken . . . might
likely be a candidate if you were to choose to leave, but I think . . . you have the
opportunity here to continue on if you can meet . . . the expectations of Tom
[Caputo]." Trickey expressed concern that Caputo was "constantly calling in the
office, talking to the office manager, talking with Linda Davis, talking to Ken
Higgins, and bypassing [Trickey]." Trickey inquired about "a retirement package or
a buyout" so that he could "step out of the way." Trickey indicated that he would take
"[a] year's salary" to leave. Goff replied that it was possible that the company could
pay five months' salary.
The next day, Trickey sent Goff an email alleging that he was "being single[d]
out and discriminated against due to [his] age." Trickey requested that Goff advise
him of a company policy regarding how he should proceed with his complaint. On
January 21, 2008, Goff called Trickey "to assure [him] there was no age
discrimination going on." Goff also sent Trickey a follow-up email confirming the
lack of "discriminatory motives or actions." Trickey then contacted Reeves to inquire
about Kaman's grievances policy and how to submit a grievance. Reeves replied that
the company had no such policy. After speaking with Reeves, Trickey talked with
Goff again, and Goff offered Trickey three months of severance pay. Trickey asked
for one year of severance pay, and Goff replied that he "may be able to go five
months." Trickey rejected the offer.
After his conversation with Goff, Higgins confronted Trickey about Goff's
offer. Higgins "walked in [the office] and said, 'Man, if they offered me three months'
severance, I'd take it.'" Trickey had never told Higgins about Goff's severance offer.
On January 24, 2008, Higgins sent Caputo an email in which Higgins claimed that
Trickey had told him that "the company offered him 3 months pay and benefits."
According to Higgins, Trickey told him that "there [was] no reason for [Trickey] to
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do anything else for Kaman, because he knows he is leaving, it is just a matter of
when." Caputo forwarded Higgins's email to Reeves and Kelly, stating that "[t]his is
yet another inappropriate action for a manager." Caputo "made no effort to confirm"
what Higgins had told him because he had no "reason to disbelieve [Higgins]."
On January 26, 2008, Trickey filed a charge of age discrimination and
retaliation with the Missouri Commission on Human Rights.
In January 2008, Trickey's branch had "a very good month." Trickey believed
that he had complied with the PIP because his branch's "ROCA ranking went to
number four" with "[s]ales of [$]600,000 for January at 27 percent [gross profit]."
Nevertheless, Trickey received no congratulations from Caputo. Instead, on January
28, 2008, Caputo sent Higgins an email congratulating him on the branch's success.
Caputo stated, "Cape had a phenomenal January!!! The Noranda projects put it over
the top. Great work!" Caputo advised Higgins to "[k]eep up the good work. The team
down there is doing very well." Caputo did not copy Trickey on the email. On
January 30, 2008, Higgins forwarded the email to the rest of the branch, including
Trickey. When Trickey saw that Caputo had congratulated Higgins, his subordinate,
on the branch's success without congratulating him, Trickey "thought [Caputo] was
sending the email to the new branch manager."
Also on January 28, 2008, Higgins sent Caputo an email stating, "Since the
company can't settle an offer with Trickey and all he does is walk around saying he
is just waiting to get fired[,] Lindy, Linda and me would like you to make us an offer,
we will accept." Within two minutes of receiving the email, Caputo forwarded the
email to Kelly, stating, "This is getting bad. Need your help here. Let's discuss."
Caputo did not speak with anyone in the branch to confirm what Higgins had told
him. An hour later, Caputo sent an email to Reeves, stating:
Ken Higgins just got a call from [J]im Trickey. Ken advised that Jim
told him he would not be back in today. He's picking up his
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granddaughter and spending the rest of the day with her.
Not exactly a demonstration of effort to meet the Performance Plan.
This is a slap in our collective faces. He's acting "untouchable"
intentionally.
On February 4, 2008, Kaman demoted Trickey to a PAM. Trickey was less than
60 days into the 90-day PIP. Caputo was named acting branch manager.
As a PAM, Trickey was required to submit a sales plan, called a Territorial
Management Plan. In an email to Caputo dated February 7, 2008, Trickey requested
that his customers include SEMO Stone, Havco Wood Products, Standley Batch, and
"a portion of P&G." The following day, Caputo denied Trickey's request, stating,
"SEMO Stone, Havco, Standley Batch, and P&G will remain as currently assigned
to Darren Bell, Ken Higgins, and Linda Davis." Caputo never explained to Trickey
why he refused to give Trickey any of the requested customers. In an email to Reeves
on February 11, 2008, Caputo explained, "I have no problem with Jim [Trickey]
selecting accounts for himself, provided that the selections are not already covered
and reflecting growth and hard work by others. That is the case with SEMO Stone,
P&G, & Havco. They must stay as already assigned." But, at trial, Caputo could not
recall "any basis for believing that Darren Bell or Ken Higgins had worked very
diligently on SEMO Stone when [he] refused to assign that to Jim Trickey." Although
Trickey had brought SEMO Stone to Caputo's attention as a customer on January 30,
2008, Caputo had nonetheless refused to assign SEMO Stone to Trickey. Caputo also
explained that he "denied Jim Trickey's request to have Standley Batch as a customer
because [he] w[as] not going to shift customers from Bell or Higgins to Trickey."
However, a month prior, Caputo had approved the decision to take "General
Dynamics away from Higgins and give [it] to Linda Davis." And, although in an
email to Reeves on February 8, 2008, Caputo stated that he "ha[d] no idea what
[Trickey] means by 'a portion of P&G[,']" he later admitted that he had "presume[d]
that [Trickey] was referring to the tractor shop."
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On February 8, 2008, Caputo advised Trickey that his "[gross profit] dollar
goal [was] $300,000, pro-rated for 2008 to February." This meant that if Trickey's
sales generated a 25 percent profit, then he needed to sell $1.2 million, prorated, to
meet Kaman's sales expectations. Caputo assigned Trickey between 21 and 24
customers. The biggest customer assigned to Trickey was Kagmo Electric, which
purchased "between [$]125 and [$]150,000 in 2007." "[T]he total amount of the sales
in '07 from customers [that Caputo] gave Trickey was less than $200,000." The
remaining customers that Caputo assigned to Trickey had purchased less than
$50,000 combined from Kaman in 2007. As a result, to meet his gross-profit goal of
$300,000 and sell $1.2 million, "Trickey would have to take [$]50,000 in sales from
the remaining customers and increase those to a million dollars in one year." This
equates to a "1,900 percent increase that [Trickey] would have to generate in one year
in order to meet the goal that [Caputo] had given him." Trickey knew that it was
"virtually impossible" to achieve this goal. Goff knew of Trickey's emails advising
him that if Trickey did not have the additional customers that he had requested, then
he would fail to meet his sales goal. Goff made no changes to Trickey's customer
assignments.
Following Trickey's complaint of age discrimination, Caputo began forwarding
emails that he received from Higgins about Trickey to Kelly and Kaman's human
resources department. Caputo never verified what Higgins told him before forwarding
Higgins's allegations. Caputo confirmed that "whether the allegations were true or
false was irrelevant." He also admitted that "a consideration" in forwarding Higgins's
emails to Caputo's superior and human resources "was because [of] the fact that
Trickey had filed a charge of discrimination." Higgins admitted that he took it upon
himself to report to Caputo "every negative piece of information [that he] heard
. . . [or] thought about Jim Trickey."
Caputo authorized Trickey to work from home. On March 14, 2008, Higgins
emailed Caputo and Kelly that "Jim Trickey is not making any sales calls and has
zero contact with the branch." Higgins stated that he "ha[d] been keeping everything
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going on a day to day basis" and that "[t]he year looks great for [the branch]." He
claimed that Kaman "just need[ed] to get this one problem out of the way." Caputo
forwarded the email to Goff, Kelly, and Reeves, requesting help in responding to the
email. Caputo made no effort to substantiate Higgins's claims about Trickey because
Caputo had come to his own conclusion that Trickey was not working. On April 1,
2008, Higgins sent Caputo an email, in which Higgins stated that Trickey
told Darren [Bell] that he was leaving the company some day, but not
until he was ready. He said he is enjoying pissing you off and he has you
so mad you don't know what to do with yourself. He is proud of the fact
he is getting paid for doing nothing. He told me the same thing when I
talked to him. He is enjoying the game he is playing with our company
and it really pisses me off.
Caputo forwarded Higgins's email to Goff, Kelly, and Reeves despite "ma[king] no
effort to verify what Higgins told [Caputo] was true."
On April 18, 2008, Higgins emailed Caputo that Bell told Higgins that Trickey
drank beer during lunch at a restaurant everyday and "[t]he rest of the time
. . . work[ed] on his house, watche[d] TV and th[ought] of ways to piss [Caputo] off."
Caputo forwarded the email to Goff and Kelly.
Higgins, who by this time had assumed some duties of branch manager,
including finishing the branch's 2008 business plan, drove by Trickey's house one
morning in April 2008 and observed Trickey carrying a tree or bush in the backyard.
Higgins "promptly reported" the information "because . . . there was [also] mulch in
the back of the company truck." Caputo told Goff what Higgins had reported to him
about Trickey working in the yard. Higgins did not tell Caputo that Trickey spent the
entire day landscaping his yard. Following Higgins's report, Kaman decided to place
Trickey under surveillance and hired a private investigator to report on Trickey's
activities. During a three-day period from April 29, 2008, to May 1, 2008, the private
investigator did not see what Trickey was doing during other working hours on those
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days, could not tell what Trickey was doing inside his home office during the periods
of surveillance, and did not observe Trickey doing personal chores. The private
investigator was unaware that Trickey maintained an office in his home.
On May 8, 2008, Trickey received a call from Caputo requesting Trickey's
presence at the branch. Trickey anticipated that Kaman was going to fire him. When
Trickey arrived, Caputo and Goff were present. Goff told Trickey that he had not
been performing properly and that Kaman was placing him on indefinite suspension.
Goff gave Trickey a letter explaining the indefinite suspension, three corrective-
action reports, and a general release and agreement. The letter provided that Trickey
was "observed throughout the day on April 21st planting trees and bushes in [his]
yard with [his] wife"; "observed throughout the day on April 30th attending to
personal chores including visiting with a family member at his home, going out to
brunch with this family member, and doing various chores at both of [Trickey's]
respective homes throughout the day"; and "observed throughout the day on May 1st
attending to personal chores around [his] home including receiving visitors at [his]
home in the middle of the day." The letter also stated that Trickey failed to pay sales
tax on something that he had purchased using the company credit card. The first
corrective action report dated May 8, 2008, stated that "[o]n the weekend of April
19–20[, 2008,] [Trickey] surreptitiously used the branch delivery vehicle without
authorization to haul personal landscaping materials including trees and bushes." It
also provided that on April 21, 2008, Trickey "spent the entire day landscaping his
yard, planting the trees and bushes that had been hauled in the company delivery
vehicle." According to the report, Trickey lied to Caputo when he asked about
Trickey's activities. A second corrective action report dated May 8, 2008, stated that
Trickey left his home at 9:00 a.m. and drove to a friend or family member's home and
then to eat at a restaurant. It alleged that Trickey "spent the day with his guest, first
at [Trickey's] home and later at the home of his guest. [Trickey] also attended to a
number of personal chores in and around his house." The report stated that Trickey
lied to Caputo about his activities. The final corrective action report dated May 8,
2008, detailed Trickey's use of a company credit card without paying sales tax.
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During his deposition, Goff explained that Caputo reported to him that Higgins
was the individual who observed Trickey multiple times during the day on April 21,
2008. But, at trial, Goff testified that he had "misunderstood what Mr. Caputo had
told [him]" and "that Linda Davis [also] saw him on the same date." According to
Goff, at 1:00 p.m. on April 21, 2008, "Davis observed Mr. Trickey in his shorts, short
pants, a little bit dirty and spreading mulch around the yard." Davis was never asked,
nor did she testify, about whether she observed Trickey doing landscaping work on
April 21, 2008. Likewise, Caputo never testified that Davis reported to him that she
had seen Trickey doing landscaping work on April 21, 2008.
Trickey refused to sign the release and was suspended indefinitely without pay.
Trickey remained on unpaid suspension until mediation efforts failed. Kaman
terminated Trickey in June 2010.
On February 6, 2009, Trickey filed suit in the Circuit Court of Jackson County,
Missouri, alleging one claim of age discrimination and another claim of retaliation
under the MHRA, § 213.010 of the Missouri Revised Statutes. On March 19, 2009,
Kaman removed the action to the district court. After a five-day jury trial, the jury
awarded Trickey $160,000 for his age-discrimination claim; $100,000 for his
retaliation claim; and $500,000 in punitive damages. The district court entered
judgment on the verdict. Kaman then filed a renewed motion for judgment as a matter
of law, for a new trial, or to reduce or remit damages, which the district court denied.
Trickey v. Kaman Indus. Techs. Corp., No. 1:09CV26 SNLJ, 2011 WL 5900993 (E.D.
Mo. Nov. 23, 2011). The district court awarded Trickey $201,375.50 in attorneys'
fees using the prevailing rates in Cape Girardeau, Missouri, as opposed to the St.
Louis, Missouri rate that Trickey had requested. Thereafter, Trickey moved under
Federal Rule of Civil Procedure 59(e) for the district court to alter or amend its
judgment and award him attorneys' fees in accordance with the prevailing rates in St.
Louis. The district court denied the motion.
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II. Discussion
On appeal, Kaman argues that the district court erred in submitting the issue
of punitive damages to the jury because Trickey failed to present clear and convincing
evidence of outrageous conduct. It also asserts that the punitive-damages award
violates the Due Process Clause of the Fourteenth Amendment. And, it maintains that
the district court erred in denying its motion for new trial on Trickey's discrimination
and retaliation claims because the court (1) improperly admitted hearsay testimony
from Trickey's wife on a central issue in the case and (2) failed to weigh the evidence
or make credibility findings in evaluating Kaman's motion for new trial. Trickey
cross-appeals the district court's denial of his post-trial motion to alter or amend the
judgment to include an attorneys' fees award consistent with the lodestar rates in the
St. Louis area.
"In a diversity action such as this, we are required to apply Missouri law."
Bazzi v. Tyco Healthcare Grp., LP, 652 F.3d 943, 946 (8th Cir. 2011) (quotation and
citation omitted).
A. Punitive Damages
1. Sufficiency of the Evidence
Kaman argues that insufficient evidence supports the jury's $500,000 punitive-
damages award because Trickey failed to present clear and convincing evidence that
Kaman engaged in outrageous conduct that "shocks the conscience." According to
Kaman, the district court's conclusion that Kaman's conduct was shocking and
outrageous "effectively ensures that punitive damages will be submitted to the jury
in virtually every case involving arguable evidence of liability—even though liability
need only be established by a mere preponderance of the evidence, rather than by
clear and convincing proof." Kaman asserts that the district court ignored the
Missouri Supreme Court's directive "that punitive damages are a harsh and
extraordinary remedy that must be applied sparingly."
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"Section 213.111.2 [of the Missouri Revised Statutes] permits recovery of
punitive damages in claims brought under the [MHRA]." Gilliland v. Mo. Athletic
Club, 273 S.W.3d 516, 520 (Mo. 2009) (en banc). "Before punitive damages can be
considered, a plaintiff must present clear and convincing evidence of evil motive and
reckless indifference to the plaintiff's rights." Romeo v. Jones, 144 S.W.3d 324, 334
(Mo. Ct. App. 2004). If the evidence "instantly tilts the scales in the affirmative when
weighed against the evidence in opposition and if it causes the fact finder to have an
abiding conviction that the evidence is true," then it is considered "clear and
convincing." Id. The court only submits the issue of punitive damages to the jury if
the "plaintiff . . . prevail[s] on his or her underlying claim." Id. "Punitive damages are
an extraordinary and harsh remedy and should be applied only sparingly." Id."Whether there is sufficient evidence to support an award for punitive damages
is a question of law, which we review de novo." Williams v. Trans States Airlines,
Inc., 281 S.W.3d 854, 869 (Mo. Ct. App. 2009). In evaluating whether a submissible
case exists for punitive damages, we "review[] the evidence in the light most
favorable to submissibility, while disregarding all adverse evidence inferences." Id.
at 870.
To make a submissible case for punitive damages, there must be
"clear and convincing proof of [a defendant's] culpable mental state."
Drury v. Mo. Youth Soccer Ass'n, 259 S.W.3d 558, 573 (Mo. App. E.D.
2008). Thus, "a plaintiff makes a submissible case for punitive damages
when he presents clear and convincing evidence from which a
reasonable jury could conclude that the defendant had an evil motive."
Horizon Memorial Grp.[, L.L.C. v. Bailey], 280 S.W.3d [657,] 663 [(Mo.
Ct. App. 2009)].
A plaintiff establishes a defendant's culpable mental state "by
showing either that the defendant committed an intentional wanton,
willful, and outrageous act without justification or acted with reckless
disregard for the [plaintiff's] rights and interest." Id. (emphasis added).
Thus, a jury can infer the defendant's evil motive when the defendant
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recklessly disregards the interests and rights of the plaintiff. Drury, 259
S.W.3d at 573. Likewise, "'[i]f a defendant intentionally does a wrongful
act, and knows at the time the act is wrongful, it is done wantonly and
with a bad motive.'" Claus v. Intrigue Hotels, LLC, 328 S.W.3d 777, 783
(Mo. App. W.D. 2010) (quoting Williams v. Trans States Airlines, Inc.,
281 S.W.3d 854, 870 (Mo. App. E.D. 2009)).
J.M. Neil & Assocs., Inc. v. Alexander Robert William, Inc., 362 S.W.3d 21, 24 (Mo.
Ct. App. 2012) (first, fifth, and sixth alterations in original).
Under Missouri law, "direct evidence of intentional conduct is not required:
punitive damages awards are evaluated on a case-by-case basis and '[a]n evil intent
may . . . be implied from reckless disregard of another's rights and interests.'" Holmes
v. Kansas City Mo. Bd. of Police Comm'rs ex rel. Its Members, 364 S.W.3d 615, 628
(Mo. Ct. App. 2012) (alterations in original) (quoting Claus, 328 S.W.3d at 783, 785).
"Most employment discrimination cases are 'inherently fact-based' and necessarily
rely on inferences rather than direct evidence." Id. (quoting Williams, 281 S.W.3d at
867). A plaintiff is therefore permitted to "use circumstantial evidence to prove [his
or] her case." Id. at 629.
Moreover, "the evidence supporting the employee's substantive claim and [his
or] her claim for punitive damages 'need not be mutually exclusive, and often is not.'"
Id. (quoting Claus, 328 S.W.3d at 783). As a result, a plaintiff's "evidence in support
of [his or] her MHRA claim may also meet [his or] her burden for submitting punitive
damages to the jury." Id. "As there is no bar to proof of the employer's liability also
providing the basis for punitive damages, it follows that the plaintiff may also show
the discriminatory conduct supporting punitive damages by circumstantial evidence."
Id. (citing Williams, 281 S.W.3d at 870).
Here, Trickey alleged retaliation under the MHRA. "[T]o prove a claim of
retaliation under Missouri state law, a plaintiff need only prove the elements required
by the MHRA." Williams, 281 S.W.3d at 870 (citing Hill v. Ford, 277 S.W.3d 659-16-
(Mo. 2009) (en banc)). Trickey need only produce evidence that would permit a
reasonable jury "to conclude that making [his] claim of [age discrimination] was a
contributory factor in [Kaman's] decision to terminate [his] employment, nothing
more." Id. The jury found in favor of Trickey on his retaliation claim. In denying
Kaman's motion for judgment as a matter of law, for a new trial, or to reduce or remit
damages, the district court found that the following evidence supported Trickey's age-
discrimination and retaliation claims:
(1) evidence of Caputo's email "ask[ing] for a salary increase for Ken
Higgins—Kaman's successor manager in waiting who was in his mid-
40s—in order to retain Higgins until [Trickey's] retirement, which
Caputo expected within four years";
(2) evidence that after implementing Trickey's PIP, "Caputo undermined
[Trickey's] ability to reestablish his authority as branch manager by
congratulating Higgins—not [Trickey]—for the branch's excellent
performance in an e-mail";
(3) evidence that when Trickey attempted to satisfy his sales goals by
requesting "additional customer accounts, Caputo refused on the
grounds that others had worked diligently on those accounts" even
though "Caputo admitted that there was no evidence other employees
had worked diligently on the accounts he denied [Trickey]" and, one
month prior, "Caputo had transferred an account from Higgins to
another Cape branch employee";
(4) evidence that "two weeks after [Trickey] complained about [age]
discrimination to Robert Goff, and only 58 days into the '90-day' PIP,
Kaman demoted [Trickey] to a sales position and gave him a gross sales
target of $1.2 million" when Kaman had only "assigned [Trickey]
customer accounts for customers that had purchased only $200,000 total
from Kaman the previous year";
(5) "evidence that Kaman failed to meaningfully investigate [Trickey's]
claims of discrimination and retaliation";
-17-
(6) evidence that after Trickey "filed his charge of discrimination,
Caputo began forwarding any negative remarks about [Trickey] that
were sent to him to executive management without verifying their truth
or accuracy" because Caputo felt "that the truth or falsity of the
damaging remarks were 'irrelevant'";
(7) evidence that prior to Trickey's demotion, "there had been no
increase in complaints [about Trickey] other than from Higgins, who
actively and openly sought [Trickey's] position";4
(8) evidence that although Kaman "suggested that [Trickey] had
alienated an important customer, . . . that customer [had] denied it";
(9) evidence that Trickey's branch was performing "very well in 2007
and into 2008" despite Kaman's claim that Trickey "was not performing
adequately as branch manager";5
(10) evidence that Trickey "had done everything he could to comply
with the PIP" despite Kaman's claim that Trickey had "'missed nearly
every deadline' set by his PIP."
Trickey, 2011 WL 5900993, at *5.
Kaman has not appealed the district court's conclusion that sufficient evidence
supported Trickey's retaliation claim. Therefore, Trickey's evidence satisfying "this
4
See Williams, 281 S.W.3d at 871 ("Second, [the plaintiff] was able to show
that, for the vast majority of the alleged performance deficiencies upon which [the
employer] claims to have based its decision to terminate [the plaintiff], there was little
evidence supporting the alleged deficiencies other than the testimony of [the
employer's] witnesses [without written documentation].").
5
See Williams, 281 S.W.3d at 871 ("First, [the plaintiff] presented evidence that
prior to filing her claim for sexual harassment, [her employer] had no complaints
regarding her job performance, but in fact had commended her on three separate
occasions for outstanding service.").
-18-
burden [to prove retaliation] may potentially allow a reasonable fact-finder also to
conclude that [Kaman] acted with evil motive or reckless indifference when it
retaliated against [Trickey]." Williams, 281 S.W.3d at 870.5
"Our review of the record shows that much of the same evidence supporting
[Trickey's] retaliatory discharge claim also supports [his] claim for punitive
damages." Id. at 871. We agree with the district court that the aforementioned
evidence "supports [a conclusion] that Kaman executives actively thwarted
[Trickey's] attempts to comply with the [PIP] that Kaman put into place." Trickey,
2011 WL 5900993, at *6. Additionally, Trickey "presented evidence that Goff based
a disciplinary action ([Trickey's] suspension) on information that the jury could
reasonably conclude Goff knew to be false." Id. While Goff testified in his deposition
that Higgins observed Trickey "landscaping his yard throughout a workday,"
"Higgins testified that he drove by [Trickey's] home only once, in the morning." Id.At trial, Goff testified that it was Davis—not Higgins—who observed Trickey
landscaping that day. But Davis was never asked, nor did she testify, about whether
she observed Trickey doing landscaping work on the day in question.
Based on our review of the evidence, we hold that Trickey made a submissible
case for punitive damages by providing clear and convincing proof from which "a
reasonable fact-finder [could] conclude that [Kaman] acted with evil motive or
5
Kaman suggests that Williams fails to follow the Missouri Supreme Court's
decision in Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104 (Mo. 1996) (en banc).
In that case, the Missouri Supreme Court concluded that "[p]unitive damages . . . are
like other cases requiring the clear and convincing standard of proof: the remedy is
so extraordinary or harsh that it should be applied only sparingly." Id. at 110. The
Missouri Supreme Court was only deciding whether a higher standard of proof was
required for punitive-damages claims and ultimately determined that "[f]or common
law punitive damage claims, the evidence must meet the clear and convincing
standard of proof." Id. at 111. The court did not discuss what evidence would satisfy
this burden of proof in a MHRA retaliation case.
-19-
reckless indifference when it retaliated against [Trickey]." Williams, 281 S.W.3d at
870.
2. Due Process
Kaman also asserts that the $500,000 punitive-damages award violates the Due
Process Clause of the Fourteenth Amendment. First, Kaman argues that none of the
"reprehensibility" factors are present in this case, i.e., infliction of physical harm,
indifference to the health or safety of others, financial vulnerability of the plaintiff,
repeated discriminatory conduct, and malicious or deceitful conduct. Second, Kaman
contends that the ratio between the punitive and compensatory damages—5:1—is too
great. According to Kaman, "[a] ratio of 1:1 or less is required in this case not just
because Trickey failed to establish that Kaman's conduct was highly reprehensible,
but also because Trickey received a substantial compensatory award that likely
already contained a punitive element." Finally, Kaman contends that the $500,000
punitive-damages award exceeds the most comparable civil penalty.
"Juries have considerable flexibility in determining the level of punitive
damages." Ondrisek v. Hoffman, 698 F.3d 1020, 1028 (8th Cir. 2012) (citing BMW
of N. Am., Inc. v. Gore, 517 U.S. 559, 568 (1996)). Under the Fourteenth
Amendment's Due Process Clause, "grossly excessive civil punishment" is prohibited.
Id. (quotation and citation omitted). We review de novo "the constitutionality of
punitive damages." Id. "Similar to compensatory damages, punitive damages are
grossly excessive if they 'shock the conscience of this court or . . . demonstrate
passion or prejudice on the part of the trier of fact.'" Id. (alteration in original)
(quoting Stogsdill v. Healthmark Partners, L.L.C., 377 F.3d 827, 832 (8th Cir.
2004)). We consider the following factors in analyzing "whether a punitive award
shocks the conscience or demonstrates prejudice":
(1) the degree of reprehensibility of the defendant's conduct;
(2) the disparity between actual or potential harm suffered and the
-20-
punitive damages award (often stated as a ratio between the amount of
the compensatory damages award and the punitive damages award); and
(3) the difference between the punitive damages award and the civil
penalties authorized in comparable cases.
Id. (quotation and citation omitted). These factors collectively serve as "guideposts
. . . to ensure proper notice of the penalty associated with [the defendant's] conduct."
Id."Perhaps the most important indicium of the reasonableness of a punitive
damages award is the degree of reprehensibility of the defendant's conduct." Gore,
517 U.S. at 575. We consider five factors in evaluating the degree of reprehensibility:
whether . . . the harm caused was physical as opposed to economic; the
tortious conduct evinced an indifference to or a reckless disregard of the
health or safety of others; the target of the conduct had financial
vulnerability; the conduct involved repeated actions or was an isolated
incident; and the harm was the result of intentional malice, trickery, or
deceit, or mere accident.
State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003).
In the present case, scant evidence substantiates the first four reprehensibility
factors. As to the fifth factor, the jury determined that Kaman retaliated against
Trickey for filing his age-discrimination charge. And, as previously explained,
sufficient evidence exists that Kaman acted with evil motive or reckless indifference
in retaliating against Trickey. See supra Part II.A.1. "The reprehensibility in this case
should not, however, be overstated" given the lack of evidence as to the first four
factors. Parrish v. Sollecito, 280 F. Supp. 2d 145, 163 (S.D.N.Y. 2003).
-21-
"The second and perhaps most commonly cited indicium of an unreasonable
or excessive punitive damages award is its ratio to the actual harm inflicted on the
plaintiff." Gore, 517 U.S. at 580. Here, Kaman asserts that the 5:1 ratio6 between the
punitive and compensatory damages is too great. In analyzing damage-award ratios,
[t]he Supreme Court has "consistently rejected the notion that the
constitutional line is marked by a simple mathematical formula, even
one that compares actual and potential damages to the punitive award."
Gore, 517 U.S. at 582. But, "in practice, few awards exceeding a
single-digit ratio between punitive and compensatory damages, to a
significant degree, will satisfy due process." Campbell, 538 U.S. at 425.
"A higher ratio may . . . be justified in cases in which the injury is hard
to detect or the monetary value of noneconomic harm might have been
difficult to determine." Gore, 517 U.S. at 582. Conversely, "[wh]en
compensatory damages are substantial, then a lesser ratio, perhaps only
equal to compensatory damages, can reach the outermost limit of the due
process guarantee." Campbell, 538 U.S. at 425.
Ondrisek, 698 F.3d at 1029 (second and third alterations in original). The Supreme
Court has previously "concluded that an award of more than four times the amount
of compensatory damages might be close to the line of constitutional impropriety."
6
The jury awarded Trickey $160,000 for his age-discrimination claim;
$100,000 for his retaliation claim; and $500,000 in punitive damages for his
retaliation claim. Kaman argues that we may only consider the $100,000 that Trickey
received for his retaliation claim in evaluating whether the $500,000 punitive-
damages award comports with due process. Trickey apparently agrees, stating that
"[t]he ratio of punitive damages to actual damages on the issue of retaliation is 5 to
1." This conclusion is supported by our precedent. See JCB, Inc. v. Union Planters
Bank, NA, 539 F.3d 862, 875 (8th Cir. 2008) ("The district court's separate treatment
of the torts [of trespass and conversion] at trial was consistent with Missouri law, and
we conclude that it is similarly appropriate to consider the individual punitive damage
awards separately on the Bank's challenge [to the constitutionality of the punitive-
damages award] on appeal.").
-22-
Campbell, 538 U.S. at 425 (citing Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1,
423–24 (1991)). It "cited that 4-to-1 ratio again in Gore, 517 U.S., at 581, 116 S. Ct.
1589." Id. Thus, "the Supreme Court has repeatedly intimated that a four-to-one ratio
is likely to survive any due process challenges given the historic use of double, treble,
and quadruple damages as a punitive remedy." Wallace v. DTG Operations, Inc., 563
F.3d 357, 363 (8th Cir. 2009).
While these ratios are not binding, they are instructive. They
demonstrate what should be obvious: Single-digit multipliers are more
likely to comport with due process, while still achieving the State's goals
of deterrence and retribution, than awards with ratios in range of 500 to
1, [Gore, 517 U.S. at 582], or . . . of 145 to 1.
Campbell, 538 U.S. at 425.
Post-Gore, we upheld as constitutional a 5.7:1 ratio between punitive and
compensatory damages. Morse v. S. Union Co., 174 F.3d 917 (8th Cir. 1999). In
Morse, the plaintiff brought age-discrimination claims under the Age Discrimination
in Employment Act and MHRA against his former employer. Id. at 921. We
concluded that the remitted punitive-damages award of $400,000 to the plaintiff was
not grossly excessive under the Due Process Clause where the remitted
compensatory-damages award was $70,000, explaining:
[The plaintiff's] evidence, which the jury credited, shows that [the
employer's] top management expressed a preference for younger
workers while challenging its supervisors to exercise their firing powers
to achieve company objectives. Such age-based animus in top
management likely may affect other employees of the company. The
award of $400,000 is less than one one-thousandth of [the employer's]
approximately $500,000,000 net worth and the ratio of punitive to
compensatory damages (not including the separate awards of back pay
-23-
and front pay) is less than 6:1, a ratio that in these circumstances does
not set off any alarm bells.
Id. at 925.
As in Morse, Trickey presented evidence of Kaman expressing a preference for
younger workers and its retaliatory conduct against him. See supra Part II.A.1. We
conclude that a 5:1 ratio is within constitutional limits. This is not a case involving
a ratio exceeding single digits. Nor does this case involve a "significant variance
between [a] large actual damage award and the resulting punitive award." Conseco
Fin. Servicing Corp. v. N. Am. Mortg. Co., 381 F.3d 811, 825 (8th Cir. 2004)
(emphases added) (holding that "$18 million punitive award does not comport with
the requirements of the Due Process Clause" where the compensatory-damages award
was $3,500,000).
"Addressing the third Gore guidepost, this court must also compare damages
awarded in similar civil cases." Ondrisek, 698 F.3d at 1030. As we explained in
Morse,
[w]e have approved large punitive damages awards in the past to deter
employment discrimination. See Denesha [v. Farmers Ins. Exch.], 161
F.3d [491,] 504 [(8th Cir. 1998)] ($700,000); EEOC v. HBE Corp., 135
F.3d 543, 556–57 (8th Cir. 1998) ($380,000 and $100,000); Kim [v.
Nash Finch Co.], 123 F.3d [1046,] 1067 [(8th Cir. 1997)] ($300,000);
Kimzey [v. Wal-Mart Stores, Inc.], 107 F.3d [568,] 576–78 [(8th Cir.
1997)] ($350,000); Kientzy [v. McDonnell Douglas Corp.], 990 F.2d
[1051,] 1062 [(8th Cir. 1993)] ($400,000).
174 F.3d at 925–26; cf. Rowe v. Hussmann Corp., 381 F.3d 775, 784 (8th Cir. 2004)
(holding that punitive-damages award of $1 million in employee's Title VII hostile
work environment action against employer was supported under federal and state law
-24-
and that district court did not abuse its discretion in not ordering remittitur of punitive
damages).
Certainly, we will see punitive-damages cases involving conduct more
reprehensible than the present case. Nonetheless, given Kaman's deliberate acts
against Trickey, the award does not shock the conscience. Therefore, the $500,000
in punitive damages that the jury awarded to Trickey does not violate due process.
B. New Trial
Kaman argues that the district court erred in refusing to grant a new trial on
Trickey's discrimination and retaliation claims because it (1) improperly admitted
hearsay testimony from Trickey's wife on one of the central issues in the case and (2)
failed to apply the appropriate new-trial standard.
1. Hearsay
Prior to trial, Kaman "move[d] the [district] [c]ourt for an order in limine
precluding anticipated hearsay testimony of [Trickey] and his wife[, Tina Trickey,]
related to the statements purportedly made by Tom Caputo regarding the average age
of management at Kaman." According to Kaman, Tina "claimed to have heard Mr.
Ray Malhiwsky[, a branch manager,] on a telephone call tell Mr. Trickey that he
heard Mr. Caputo say 'the average age of management at Kaman is 59' and that the
company needs to 'get some new blood.'" Kaman argued that Tina "was not present
when Mr. Caputo purportedly made these statements" and that "any testimony by
[Tina] in this regard is inadmissible hearsay."
The district court denied the motion. First, it found that "Mr. Caputo's alleged
statements would be admissible as an admission against interest." Second, it found
that Malhiwsky's statements "could also be an admission against interest." According
to the court, "branch managers[, such as Malhiwsky,] have some say at least in the
hiring and firing [of] employees." Therefore, it found that the present case was
-25-
"distinguishable from . . . case[s] . . . addressed to mere co-employees as opposed to
mere co-branch managers."
During trial, Trickey testified that in the summer of 2007, Caputo "announced
quite proudly that the average age of management in Kaman is 59-years old and we
got to get some new blood." He also testified that Caputo repeated the statement in
the fall of 2007.
Tina recalled her husband "asking other branch managers if they had heard
[Caputo] making that statement." When Trickey's counsel asked "Tina to describe
what she witnessed another branch manager say he heard Mr. Caputo say," Kaman's
counsel lodged a hearsay objection. The district court overruled the objection. Tina
then testified as follows:
We were back—out on the back porch and Jim called to Ray
Malhiwsky, I think is how you pronounce it, and he motioned for me to
come over, he got right on the telephone. He asked Ray at that time if he
had overheard Tom Caputo say that the age average of management at
Kaman was 59 and they needed to find new blood and then Ray
proceeded to—Jim proceeded to say, "Would you mind repeating that
to my attorney?" and Ray said, "Oh, Jim," he said, "I don't know." He
said, "You're the most successful branch in the district. I'm close to the
same age you are and what will they do to me?" and at that time I got off
the telephone.
On appeal, Kaman argues that Tina's testimony was hearsay because she
"impermissibly relayed out-of-court statements by Malhiwsky and Caputo to prove
the truth of the matter asserted." According to Kaman, the testimony does not qualify
as a hearsay exception under Federal Rule of Evidence 801(d)(2)(D)7—a party
7
Rule 801(d)(2)(D) provides that a "statement . . . offered against an opposing
party" that "was made by the party's agent or employee on a matter within the scope
-26-
admission—because even though Malhiwsky was a branch manager, Trickey
produced no evidence that Malhiwsky "worked in Cape Girardeau or had any
authority over Caputo or Trickey." It also asserts that no evidence exists that
"Malhiwsky played any role in demoting, suspending, or terminating Trickey" or
"that Malhiwsky had any responsibility for employment decisions or employment
policies at the Cape Girardeau branch." As a result, Kaman concludes that
"Malhiwsky's alleged recounting of Caputo's age-related communications during a
private conversation with Trickey fell outside the scope of Malhiwsky's employment."
Kaman contends that Tina's testimony was unduly prejudicial because "[a]ttributing
age-related comments to Caputo was a central feature of Trickey's case."
"A district court's rulings on admissibility of evidence are entitled to great
deference, and we will reverse only if the district court has committed a clear abuse
of discretion." Safety Nat'l Cas. Corp. v. Austin Resolutions, Inc., 639 F.3d 498, 503
(8th Cir. 2011). Nor will we disturb a jury's verdict "absent a showing that the
evidence was so prejudicial as to require a new trial which would be likely to produce
a different result." Id. (quotation and citation omitted).
Here, even assuming that Tina's testimony was hearsay, we conclude that it was
not "so prejudicial as to require a new trial which would be likely to produce a
different result." Id. (quotation and citation omitted). First, Trickey had already
testified that Caputo made age-discriminatory comments directly to him on two
occasions. Second, Tina never testified about what Malhiwsky said that Caputo had
said; instead, she testified to what she heard Trickey say to Malhiwsky over the phone
regarding Caputo's statements. The only responses that Tina relayed from Malhiwsky
were "Oh, Jim . . . I don't know" and "You're the most successful branch in the
district. I'm close to the same age you are and what will they do to me?" Third,
Kaman's counsel cross-examined Tina about her testimony, pointing out that she had
of that relationship and while it existed" "is not hearsay."
-27-
"never once mentioned this call with Ray Malhiwsky" in her "deposition about
conversations with Kaman employees." Fourth, even if Tina's testimony is viewed as
buttressing Trickey's testimony, Malhiwsky rebutted her account. Specifically, he
testified8 that he (1) did not recall "hear[ing] Tom Caputo say that the average age of
managers or employees in Kaman is 59"; (2) did not "hear Tom Caputo say, 'We need
new blood in the company'"; (3) did not "recall telling Jim Trickey that [he] heard
Tom Caputo say that the average age of managers in the company is 59-years-old";
(4) did not "say[ ] to Jim Trickey that [he] heard Tom Caputo say, 'We need new
blood in the company'"; and (5) did not "tell Jim Trickey that other managers heard
Tom Caputo say, 'The average age of our managers is 59 and we need new blood.'"
2. New-trial Standard
Additionally, Kaman asserts that although the district court correctly stated the
general standard for evaluating a motion for a new trial, it is not clear whether the
district court actually applied the standard because it "lumped together its analysis of
Kaman's alternative requests for judgment as a matter of law or a new trial" and then
"denied the [motion for new trial] on the ground that there was 'sufficient evidence'
to support Trickey's claims." Kaman contends that the district court failed to "make
any assessment of credibility or plausibility, even though Kaman argued in its
post-trial papers that Trickey's testimony was not worthy of belief." Therefore, it
contends that this court must remand to the district court for a proper consideration
of Kaman's request for a new trial.
In denying Kaman's motion for judgment as a matter of law, for a new trial, or
to reduce or remit damages, the district court set forth the proper standard for a new
trial, explaining:
8
Kaman's counsel "read the deposition testimony of Ray Malhiwsky" into the
record.
-28-
The district court may grant a new trial when the first trial resulted
in a miscarriage of justice, through a verdict against the weight of the
evidence, an excessive damage award, or legal errors at trial. Gray v.
Bucknell, 86 F.3d 1472, 1480 (8th Cir. 1996); see also Fed. R. Civ. P.
59(a). With respect to legal errors, a "miscarriage of justice" does not
result whenever there are inaccuracies or errors at trial; instead, the party
seeking a new trial must demonstrate that there was prejudicial error.
Buchholz v. Rockwell International Corp., 120 F.3d 146, 148 (8th Cir.
1997). Errors in evidentiary rulings are prejudicial only where the error
likely affected the jury's verdict. Diesel Machinery, Inc. v. B.R. Lee
Industries, Inc., 418 F.3d 820, 833 (8th Cir. 2005).
Trickey, 2011 WL 5900993, at *3.
Thereafter, it specifically found that "Kaman cannot meet either the standard
for a judgment notwithstanding the verdict or a new trial." Id. at *6 (emphases
added). This conclusion does not contravene our precedent. In concluding that Kaman
failed to satisfy the new-trial standard, it implicitly found that no miscarriage of
justice would occur. We agree.
C. Attorneys' Fees
In his cross-appeal, Trickey argues that the district court abused its discretion
in restricting his recovery of attorneys' fees to the prevailing rates in Cape Girardeau,
Missouri, rather than St. Louis, Missouri, where Trickey's counsel practices. Trickey
contends that this court has taken a much broader view of "community" from which
to draw the attorneys' fees lodestar, particularly in a complex case that requires
special expertise. According to Trickey, the evidence was uncontroverted that he
diligently sought, but was unable to find, experienced employment counsel in Cape
Girardeau. He also asserts that because St. Louis and Cape Girardeau are within the
same federal district, restricting the appropriate community from which to draw the
attorneys' fees lodestar to a small corner of that district was an abuse of discretion.
-29-
After the district court concluded that Trickey was entitled to $210,375.50 in
attorneys' fees, which reflected the prevailing market rate in Cape Girardeau instead
of St. Louis, Trickey filed a motion to alter or amend the judgment under Federal
Rule of Civil Procedure 59(e). The district court denied this motion without comment.
The MHRA permits the trial court to award "reasonable attorney fees to the
prevailing party." Mo. Rev. Stat. § 213.111(2). "When determining reasonable hourly
rates, district courts may rely on their own experience and knowledge of prevailing
market rates." Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005). The district court has
"broad discretion" in awarding attorneys' fees, and we will not reverse the district
court "absent an abuse of discretion." Id.In the present case, after the district court awarded Trickey $210,375.50 in
attorneys' fees, Trickey filed a Rule 59(e) motion. "Rule 59(e) authorizes a district
court to alter or amend a judgment based on newly discovered evidence." Briscoe v.
Cnty. of St. Louis, Mo., 690 F.3d 1004, 1015 (8th Cir. 2012). We "review[] a denial
of a Rule 59(e) motion for abuse of discretion." Id. "A district court has broad
discretion in determining whether to grant or deny a motion to alter or amend
judgment pursuant to Rule 59(e)." Id. (quotation and citation omitted).
To succeed on a Rule 59(e) motion, the movant must show (1) the
evidence was discovered after the summary judgment hearing; (2) the
movant exercised due diligence to discover the evidence before the end
of the summary judgment hearing; (3) the evidence is material and not
merely cumulative or impeaching; and (4) a new hearing considering the
evidence would probably produce a different result.
Id. at 1015–16 (quotation and citation omitted).
-30-
Rule 59(e) was not the appropriate vehicle for Trickey to contest the attorneys'
fee award. "[F]ederal courts generally have invoked Rule 59(e) only to support
reconsideration of matters properly encompassed in a decision on the merits." White
v. N.H. Dep't of Emp't Sec., 455 U.S. 445, 451 (1982) (concluding that "a request for
attorney's fees under § 1988 raises legal issues collateral to the main cause of
action—issues to which Rule 59(e) was never intended to apply" and holding that
Rule 59(e) was inapplicable "to the postjudgment fee request"); cf. Reyher v.
Champion Int'l Corp., 975 F.2d 483, 489 (8th Cir. 1992) (holding that motion for
attorney's fees in Age Discrimination in Employment Act case "was not governed by
Rule 59 and its ten-day time limit"). "'[A] motion for attorney's fees is unlike a motion
to alter or amend a judgment. It does not imply a change in the judgment, but merely
seeks what is due because of the judgment. It is, therefore, not governed by the
provisions of Rule 59(e).'" White, 455 U.S. at 452 (alteration in original) (quoting
Knighton v. Watkins, 616 F.2d 795, 797 (5th Cir. 1980)).
According to the Supreme Court, applying "Rule 59(e) to postjudgment fee
requests could yield harsh and unintended consequences." Id. The Court noted that
"it may be unclear even to counsel which orders are and which are not 'final
judgments.'" Id. at 453. As a result,
[i]f Rule 59(e) were applicable, counsel would forfeit their right to fees
if they did not file a request in conjunction with each "final" order.
Cautious to protect their own interests, lawyers predictably would
respond by entering fee motions in conjunction with nearly every
interim ruling. Yet encouragement of this practice would serve no useful
purpose. Neither would litigation over the "finality" of various interim
orders in connection with which fee requests were not filed within the
10-day period.
The 10-day limit of Rule 59(e) also could deprive counsel of the
time necessary to negotiate private settlements of fee questions. If so,
the application of Rule 59(e) actually could generate increased litigation
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of fee questions — a result ironically at odds with the claim that it
would promote judicial economy.
Id.
By seeking relief through a Rule 59(e) motion, Trickey knocked on the wrong
door before the district court. It remains the wrong door on appeal.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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