PHILIP MORRIS, INC. v. MARY WILSON
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RENDERED:
January 22, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
MODIFIED: February 12, 1999; 10:00 a.m.
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
NO. 1997-CA-000675-MR
1997-CA-000965-MR CROSS-APPEAL
PHILIP MORRIS, INC.
v.
APPELLANT/
CROSS-APPELLEE
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ELLEN B. EWING, JUDGE
ACTION NO. 94-CI-000921
MARY WILSON
APPELLEE/
CROSS-APPELLANT
AND
NO. 1997-CA-001043-MR
PHILIP MORRIS, INC.
V.
MARY WILSON
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ELLEN B. EWING, JUDGE
ACTION NO. 94-CI-921
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, DYCHE, AND GARDNER, JUDGES.
GARDNER, JUDGE: Philip Morris, Incorporated D/B/A Philip Morris,
USA (Philip Morris) appeals from a judgment of the Jefferson
Circuit Court in favor of Mary Wilson (Wilson) on her claim of
constructive discharge from employment.
Wilson cross-appeals on
the issue of whether the trial court properly denied her motion
to amend the complaint to include a claim for lost wages.
We
affirm.
Wilson began her employment with Philip Morris in 1978,
and was promoted to a supervisory position the following year.
Wilson would later allege that beginning in 1986, Bob Webber
(Webber), who became Wilson’s superior, began making uninvited
sexual
comments
and
inappropriate manner.
overtures
and
would
touch
Wilson
in
an
Wilson stated on the record that Webber
would place his finger in her ear, make sexual comments, blow in
her ear, and rub her leg and thigh.
Wilson apparently issued no
complaint to either Webber or Philip Morris regarding Webber’s
alleged behavior.
In 1992, Wilson was transferred to a different section of
Philip Morris referred to in the record as “Guardite.”
She would
later allege that three employees in that section over whom she had
supervisory authority began making a number of sexually explicit
comments and threatening behaviors designed to intimidate her. The
alleged comments are contained in the record and will not be
restated herein.
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Wilson
subsequently
reported
her
allegations
of
harassment to two of her supervisors, one of whom reported the
matter to Philip Morris’s affirmative action specialist.
It
appears that the employees of Wilson’s section were then instructed
on the elements of sexual harassment and advised to stop any such
behavior.
It was alleged by Wilson that shortly thereafter, the
three employees in question sought revenge against Wilson by
engaging in work slowdowns, by doing the work improperly, and by
complaining over routine requests. The alleged retaliatory conduct
was again reported to a superior, as well as to the affirmative
action specialist and the head of Philip Morris’s human resources.
The record is not clear as to what action, if any, was taken as a
result of Wilson’s complaints.
Wilson
allegedly
began
experiencing
symptoms
of
depression, and was hospitalized at Our Lady of Peace Hospital for
approximately one week. Wilson also allegedly became suicidal, and
also purchased a weapon and went to the home of one of the
employees with thoughts of shooting him.
stopped working at Philip Morris.1
In November 1993, Wilson
She sought and received both
social security disability income and Philip Morris disability
benefits.
Wilson subsequently filed the instant action in Jefferson
Circuit
Court
subordinates.
against
Philip
Morris
and
three
of
Wilson’s
She alleged therein that the subordinates subjected
1
Wilson maintains that she is no longer employed at Philip
Morris. Philip Morris maintains that Wilson is on a leave of
absence.
-3-
her to sexually offensive conduct which created a hostile work
environment in violation of Kentucky Revised Statute (KRS) Chapter
344, and that Philip Morris failed to take appropriate remedial
action.
Wilson also sought damages for the tort of outrage.
The
claim of outrage and the claims against the three subordinates were
dismissed by way of partial summary judgment.
Prior to trial,
Wilson’s complaint was amended to include the claim of constructive
discharge.
The matter proceeded to trial, where the jury found in
favor of Philip Morris on Wilson’s claim that Philip Morris created
a hostile work environment,2 and also found in favor of Philip
Morris on Wilson’s claim of quid pro quo sexual harassment.3
On
the question of whether Wilson was constructively discharged,4 the
jury found in Wilson’s favor and awarded Wilson $2,000,000 in
2
The instruction on the claim of hostile work environment
required a finding that the three subordinates subjected Wilson
to verbal or physical conduct of a sexual nature, and/or that
Wilson’s complaint to Philip Morris brought about a retaliatory
work slowdown, that the conduct had the purpose or effect of
unreasonably interfering with Wilson’s work performance, that the
conduct was severe and pervasive, that Wilson suffered
psychologically, and that Philip Morris failed to take the proper
remedial action.
3
The instruction on the claim of sexual harassment required
a finding that Webber subjected Wilson to verbal or physical
conduct of a sexual nature, that he was Wilson’s superior, that
submission to the conduct was a term of Wilson’s employment, that
Webber assigned Wilson to a different department because she
rejected his advances, and that the transfer was an adverse job
action.
4
The instruction on the claim of constructive discharge
required a finding that Wilson resigned her employment at Philip
Morris, and that at the time she left the employment, her working
conditions were so intolerable as a result of sexual harassment
or retaliation that a reasonable person would have felt compelled
to resign.
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damages.
A judgment was entered reflecting the verdict, and this
appeal followed.
Philip Morris now argues that the trial judge committed
reversible error in denying its motion for a directed verdict on
the issue of constructive discharge.
Specifically, it maintains
that Wilson improperly failed to state a claim for lost wages, that
the verdict was contrary to the evidence, and the claim must fail
as a matter of law in light of the jury’s findings on the questions
of hostile work environment and quid pro quo sexual harassment.
Alternatively, Philip Morris argues that it is entitled to a new
trial.
As a basis for this contention, it offers a litany of
supporting arguments addressing issues ranging from prejudicial
evidentiary rulings to the alleged misconduct of Wilson’s counsel.
Wilson cross-appeals on the sole issue of whether the trial court
erred in failing to allow her complaint to be amended to include a
claim for lost wages. Having closely studied the issues presented,
the facts, and the law, as well as having heard the oral arguments
of counsel, we find no error and must affirm the judgment from
which the parties appeal.
We will first address Philip Morris’s contention that it
was entitled to a directed verdict on the issue of constructive
discharge.
When either a directed verdict motion or a judgment
notwithstanding
(JNOV)
motion
is
made,
the
trial
court
must
consider the evidence in its strongest possible light in favor of
the party against whom the motion is made and must give him or her
the advantage of every fair and reasonable intendment that the
evidence can justify.
(1991).
Lovins v. Napier, Ky., 814 S.W.2d 921, 922
In reviewing the decision of a trial court regarding a
-5-
motion for a directed verdict, the reviewing court must also
ascribe to the evidence all reasonable inferences and deductions
which support the claim of the prevailing party.
Id.; Meyers v.
Chapman Printing Co., Ky., 840 S.W.2d 814, 821 (1992).
A directed
verdict is appropriate if the only reasonable inference from the
evidence fails to sustain the claim.
Meyers v. Chapman Printing
Co., 840 S.W.2d at 822, citing Horton v. Union Light, Heat and
Power Co., Ky., 690 S.W.2d 382 (1985).
See also Lovins v. Napier,
814 S.W.2d at 922.
Philip
Morris
maintains
that
it
was
entitled
to
a
directed verdict because Wilson failed to make a claim for lost
wages; because the verdict was contrary to the evidence; and,
because the claim must fail as a matter of law in light of the
jury’s decision on the questions of hostile work environment and
sexual harassment.
On the question of lost wages, we are aware of
no requirement arising from either state or federal case law or
statutory law that an action alleging constructive discharge must
be grounded on a claim of lost wages.
It is our conclusion that
the failure to claim lost wages merely results in a bar to the
recovery of lost wages.
Philip Morris relies on a single footnote
in Knabe v. The Boury Corporation, 114 F.3d 407, 408 (3rd Cir.
1997), to support its assertion that a claim for lost wages is a
necessary prerequisite to recovery under the theory of constructive
discharge.5
We do not agree that such a conclusion can be drawn
5
Footnote one states in relevant part that, “[Knabe’s
constructive discharge claim, as presented here, is not a
separate ground for relief, but rather would factor into the
damages (e.g., back pay) available to Knabe had she prevailed in
proving Boury’s liability for sexual harassment.”
-6-
from Knabe.
the
The footnote cited by Philip Morris merely stands for
proposition
that
a
party
cannot
sustain
a
claim
for
constructive discharge under discrimination law unless there is a
causal relation between the discrimination and the discharge.
See
generally Lindale v. Tokheim Corporation, 145 F.3d 953 (7th Cir.
1998).
As to Philip Morris’s claim that the jury’s verdict for
Wilson on her constructive discharge claim was contrary to the
evidence, we again are not persuaded.
error
is
the
contention
that
employment and did not resign.
The basis for this claim of
Wilson
went
on
leave
from
her
As such, Philip Morris maintains
that Wilson could not have been discharged, constructively or
otherwise, and cannot prevail on her claim as a matter of law.
We
must note that evidence exists in the record sufficient to support
either party’s argument on this issue.
Philip Morris offered
testimony that Wilson was merely on leave, while Wilson offered
evidence that she had resigned.
As the parties are well aware, the
trial judge is in the best position to judge the weight and
credibility of the witnesses (for purposes of determining whether
the evidence supported submitting the matter to the jury), and
similarly the jury’s duty as finder of fact is inviolate.
Caudill
v. Maloney’s Discount Stores, Ky., 560 S.W.2d 15 (1977). We cannot
examine the facts de novo, and must conclude from our review of the
record that the trial judge did not err in submitting the issue of
resignation to the jury (see footnote 1).
Accordingly, we find no
error.
We are also not persuaded by Philip Morris’s argument
that Wilson’s claim of constructive discharge must fail as a matter
-7-
of law in light of the jury’s verdicts on the claims of hostile
work environment and sexual harassment.
Philip Morris argues that
since neither a hostile work environment nor sexual harassment were
proven, they could not serve as a basis for the jury’s conclusion
that Wilson was constructively discharged.
cannot
sustain
a
claim
for
We agree that a party
constructive
discharge
under
discrimination law unless there is a causal relation between the
discrimination and the discharge. See generally Lindale v. Tokheim
Corporation, supra.6
sexual
harassment
Since neither a hostile work environment nor
was
found
in
the
matter
at
bar,
it
would
apparently follow that a claim of constructive discharge could not
be maintained.
However, a hostile work environment and sexual
harassment
not
are
the
only
bases
constructive discharge may be grounded.
retaliatory
conduct
is
violative
of
upon
which
a
claim
of
KRS 344.280 provides that
Chapter
344,
stating
in
relevant part that,
It shall be an unlawful practice for a person
. . . (1) To retaliate or discriminate in any
manner against a person because he has opposed
a practice declared unlawful by this chapter,
or because he has made a charge, filed a
complaint,
testified,
assisted,
or
participated
in
any
manner
in
any
investigation, proceeding, or hearing under
this chapter. . . .
KRS 344.450 provides that any person injured by an act in violation
of Chapter 344 may institute a civil cause of action to recover
actual damages sustained.
Thus, retaliatory conduct may form a
basis for maintaining an action for constructive discharge.
6
Federal law which interprets Title VII is applicable to
Chapter 344. Hall v. Transit Authority of Lexington-Fayette
Urban County Government, Ky. App., 883 S.W.2d 884 (1994).
-8-
Instruction
No.
4,
which
addressed
constructive
discharge, expressly included retaliatory conduct as a basis upon
which the jury could have concluded that Wilson was constructively
discharged, and there is sufficient evidence in the record to
support the jury’s conclusion in this regard.
Wilson testified as
to retaliation that occurred after she reported the allegedly
harassing conduct of the second-shift Guardite employees, and this
claim was supported, in whole or in part, by the testimony of
Barbara Crockett and Dr. Daniel Garst.
Again, while we cannot
examine the facts de novo nor reach our own conclusion as to
whether retaliatory conduct occurred, it is clear that ample
evidence exists upon which the jury could have reasonably concluded
that said conduct occurred. Since retaliatory conduct is violative
of Chapter 344 and therefore is a proper basis for maintaining a
claim of constructive discharge, we cannot conclude that Philip
Morris was entitled to a directed verdict on this issue.
Alternatively, Philip Morris argues that it is entitled
to a new trial.
As a basis for this contention, it offers the
following supporting arguments: 1) the jury’s verdict was contrary
to the evidence; 2) the verdict was contrary to the instructions
and the law; 3) the trial court erred in its evidentiary rulings;
4) the trial court erred in allowing the introduction of medical
records; 5) the trial court erred by excluding evidence which
established alternative causation for any disability and depression
suffered by Wilson; 6) the damages were excessive and were awarded
under the influence of passion and/or prejudice; 7) Philip Morris
was prejudiced by erroneous instruction No. 5; and, 8) Philip
Morris was prejudiced by the misconduct of Wilson’s attorney.
-9-
We must conclude that the first and second of these
arguments (i.e., that the verdict was contrary to the evidence, the
instructions, and the law) simply restate the arguments which we
resolved above in favor of Wilson.
On the question of whether the
trial court erred in its evidentiary rulings, we also find no
error.
Philip Morris maintains that the court erred in allowing
Wilson
to
admit
evidence
of
thirteen
consensual
relationships between Philip Morris employees.
romantic
It argues that
Wilson introduced this evidence for the improper purpose of causing
the
jury
to
infer
that
unlawful
harassment
discrimination resulted from the relationships.
and/or
sexual
It further argues
that even if preferences were given to employees based on their
participation
in
consensual
romantic
relationships,
no
discrimination under Title VII and KRS Chapter 344 could have
resulted because the preferences would have adversely impacted both
male and female employees. Having closely examined Philip Morris’s
contention, we believe this argument is moot in light of the fact
that the jury returned verdicts in favor of Philip Morris on
Wilson’s
claims
of
a
hostile
work
environment
and
sexual
harassment. If any error occurred in the admission of the evidence
at issue, it was proven to be harmless since the jury found in
favor of Philip Morris on these issues.
CR 61.01; Callis v.
Owensboro-Ashland Company, Ky. App., 551 S.W.2d 806 (1977).
Philip Morris next argues that it is entitled to a new
trial because the trial court erred in allowing Wilson to admit
into evidence medical records containing opinions.
It notes that
Wilson could not call her psychiatrists or psychologists to testify
at trial based on her failure to comply with a pretrial order, but
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that she nevertheless was allowed to offer their medical records
into evidence.
As such, Philip Morris maintains that Wilson was
allowed to submit expert opinion without subjecting those experts
to cross-examination.
Philip
Morris
relies
on
Young
v.
J.
B.
Hunt
Transportation, Inc., Ky., 781 S.W.2d 503 (1989), which held in
relevant
part
that
voluminous
hospital
records
could
not
be
admitted if a physician was not available to explain them because
counsel would have been free to draw whatever conclusion he wished
without fear of evidentiary contradiction.
We believe that Young
is distinguishable from the matter at bar for at least two reasons.
First, it cannot be said that Wilson’s medical records are properly
described as voluminous, and the harm which the court sought to
avoid in Young, (i.e., records too complex for the jury to study)
therefore is not present.
Second, and more important, Philip
Morris’s own treating physician, Dr. Daniel Garst (Garst), examined
the
medical
deposition.
records
at
issue
and
addressed
them
by
way
of
As such, we find the instant facts distinguishable
from those of Young, and accordingly find no error on this issue.
Philip Morris’s fifth claim upon which it seeks a new
trial is that the trial court erred by excluding evidence which
established alternative causation for any depression and disability
suffered by Wilson.
allowed
to
introduce
It briefly argues that it should have been
evidence
of
Wilson’s
alleged
tumultuous
relationship with her daughter’s boyfriend and to argue that the
stress resulting from this relationship was a contributing factor
to her depression and disability.
The sole case relied upon for
this contention is Hall v. Arnett, Ky. App., 709 S.W.2d 860 (1991).
-11-
Hall stands for the proposition that a party may be entitled to a
new trial where the exclusion of evidence appears to have produced
a result inconsistent with substantial justice. We cannot conclude
that the exclusion of evidence relating to the alleged tumultuous
relationship
between
Wilson
and
her
daughter’s
boyfriend
can
reasonably be said to have produced a verdict inconsistent with
substantial justice, and accordingly we find no error on this
issue.
Philip Morris also argues that the damages were excessive
and were awarded under the influence of passion and/or prejudice.
This argument is a restatement of earlier arguments wherein Philip
Morris maintained that the verdict was contrary to the evidence,
and we again find no error.
Philip Morris’s seventh basis for arguing that it is
entitled to a new trial is that it was materially prejudiced by
Instruction No. 5.
That instruction provided that if the jury
found for Wilson on the claim of hostile work environment and/or
sexual harassment and/or constructive discharge, it was required to
award her damages for humiliation, embarrassment and mental anguish
not to exceed $3,000,000.
instruction
erroneously
Philip Morris maintains that this
misled
the
jury
to
consider
Wilson’s
constructive discharge claim as an independent claim.
We have
previously found that no error occurred when the jury returned a
verdict in favor of Wilson on the constructive discharge claim even
though
it
failed
to
find
in
her
favor
on
the
hostile
work
environment or sexual harassment claims. As such, we find no basis
for tampering with the judgment on this issue.
-12-
The final argument offered by Philip Morris to support
its claim that it is entitled to a new trial is that it was
materially prejudiced by the misconduct of Wilson’s attorney.
It
points to three instances where Wilson’s counsel allegedly ignored
the court’s instructions at trial, and maintains that this alleged
misconduct should result in the matter being remanded for a new
trial.
The three instances to which it directs our attention
generally relate to alleged attempts by Wilson’s counsel to ask a
question of a witness when counsel had been instructed not to ask
the question.
Philip Morris does not, however, disclose what
questions were asked or how the answers improperly influenced the
jury.
In
a
separate
instance,
Philip
Morris
complains
that
Wilson’s counsel improperly began to play a videotape in his
closing argument, but it does not reveal what the tape was offered
to prove or why it was improper.
Furthermore, it does not indicate
if these alleged errors are preserved for appellate review, nor
does it cite any case law or statutory law in support of its claim.
We cannot conclude that the conduct complained of prejudiced the
proceeding against Philip Morris, and as such find no error.
Finally, Wilson briefly argues that the trial court erred
in denying her motion to amend her complaint to state a claim for
lost wages.
She notes that amendments to the pleadings are to be
liberally allowed where no prejudice to the opposing party results,
and seeks the opportunity to present her claim if a new trial is
ordered for any reason proposed by Philip Morris.
Wilson has not
overcome the strong presumption that the trial court is correct in
its rulings, City of Louisville v. Allen, Ky., 385 S.W.2d 179
-13-
(1964), and in any event the matter is moot in light of our
conclusion that Philip Morris is not entitled to a new trial.
For
the
foregoing
reasons,
this
Court
affirms
the
judgment of the Jefferson Circuit Court.
COMBS, JUDGE, CONCURS AND FILES A SEPARATE OPINION.
COMBS,
JUDGE
CONCURRING:
The
majority
decision
underlines and reinforces the viability of a cause of action based
upon
retaliation
perpetrated
against
an
employee
for
having
exercised his statutory right to pursue a claim pursuant to KRS
344.
The critical issue is not the success or failure of the
underlying action based on discrimination but rather the reality
that retaliation is a distinct and separate offense arising from
the same occurrences or transactions. The fact that it is separate
in no way renders it a nullity - - especially in this case.
I
concur separately for the sake of emphasis as to this important
point.
DYCHE, JUDGE, DISSENTS AND FILES A SEPARATE OPINION.
DYCHE, JUDGE, DISSENTING.
I must respectfully dissent.
While I find the behavior of the individuals involved herein
disgusting and unacceptable, appellee has not established her
entitlement to a judgment for constructive discharge.
The evidence in the record does not support a finding by
the
jury
of
retaliatory
behavior
by
appellant.
The
record
indicates that the actions taken by Philip Morris in response to
her
complaints,
limited
as
they
were
due
bargaining agreement, satisfied appellee.
to
the
collective
She refused lateral
transfers which would have alleviated her uncomfortable situation
or removed her from her tormentors.
-14-
It further appears that appellee engaged, at times, in
less than wholesome behavior toward these same employees, using
sexual terms and racial epithets.
She should not be allowed to
participate in such shenanigans, and then call “foul!” when others
do.
The jury found no basis for her complaints of sexual
harassment and retaliation; I cannot see how the same jury could
find that she was subjected to an intolerable workplace, based upon
retaliation.
I would reverse the judgment.
BRIEF AND ORAL ARGUMENT
APPELLANT/CROSS-APPELLEE:
FOR
BRIEF APPELLEE/CROSSAPPELLANT:
Douglas W. Becker
David A. Calhoun
Louisville, Kentucky
Sean Ragland
Louisville, Kentucky
ORAL ARGUMENT FOR APPELLEE/
CROSS-APPELLANT:
Thomas Clay
Louisville, Kentucky
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