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Date: 12-26-2018
Case Style:
Gary Gentry v. Orkin, LLC and Danny Biron
Case Number: WD81069
Judge: Edward RT. Ardini, Jr.
Court: Missouri Court of Appeals Western Division on appeal from the Circuit Court, Jackson County
Plaintiff's Attorney: Kenneth D. Kinney
Defendant's Attorney: James R. Wyrsch
Description:
Gary Gentry was employed at Orkin, LLC as a pest-control route manager. Gentry was
terminated by his supervisor, Danny Biron, after taking a leave of absence due to an injury. Despite
this termination, he was eligible for rehire and Biron provided a positive letter of recommendation.
Following his termination, Gentry filed a complaint with the Missouri Commission on Human
Rights (Commission) alleging age and disability discrimination. He received a right-to-sue letter,
but did not file suit.
Nearly a year later, Gentry sent Biron an email seeking reemployment. Biron replied that
there were no open positions, but he would keep Gentry’s resume on file. Gentry saw a job posting
in the newspaper for an experienced pest technician. Orkin did not contact Gentry, but Gentry
applied by faxing his resume to Orkin. Gentry did not receive a response from Orkin.
Gentry filed a second complaint with the Commission, this time for retaliation. Gentry
was again issued a right-to-sue letter and filed suit against Orkin and Biron, alleging retaliation
under the Missouri Human Rights Act (MHRA). Following a trial, the jury found in favor of
Gentry and awarded both compensatory and punitive damages.
Orkin and Biron appealed. Gentry filed a motion for attorneys’ fees on appeal that was
taken with the case.
AFFIRMED AND REMANDED.
Division One Holds:
(1) The trial court did not err in overruling Orkin and Biron’s objection to the verdict
directing instructions based on their failure to require the jury to find that Gentry had a
good faith, reasonable belief that he had been discriminated against when he filed his
first complaint with the Commission. Under section 213.070(2), RSMo, a jury is not
required to find that the plaintiff had a good faith, reasonable belief to file a complaint
with the Commission as an element of a retaliation claim.
(2) The trial court did not commit plain error by submitting the verdict directing
instructions that included failure to interview as an act of retaliation. Orkin and Biron
argue on appeal that the failure to interview is not actionable and that there was not
sufficient evidence to support the jury’s verdict on the failure to interview. These were
not the specific grounds argued at trial rendering these arguments unpreserved.
(3) The trial court did not abuse its discretion in refusing to submit the business judgment
instruction requested by Orkin and Biron. The requested instruction was not a Missouri
Approved Instruction, and the lawful justification instruction, which was a Missouri
Approved Instruction and was submitted, accurately instructed the jury.
(4) The trial court did not commit plain error during the testimony of Orkin’s human
resources manager in the punitive damages phase of trial related to questioning of
whether the witness accepted responsibility for the actions of Orkin.
(5) The trial court did not abuse its discretion or commit plain error during Gentry’s closing
argument.
(6) The trial court did not err in denying Orkin and Biron’s motion for judgment as a matter
of law on punitive damages alleging that Gentry had failed to properly plead his claim
for punitive damages. This claim of error was not raised until after the jury’s verdict
on punitive damages and was thus waived.
(7) The trial court did not err in rejecting Orkin and Biron’s offer of proof and proffered
instruction regarding Gentry’s failure to mitigate damages. The trial court’s refusal to
allow the admission of evidence of failure to mitigate damages and to instruct the jury
on this issue was based on its finding that Orkin and Biron failed to properly plead the
mitigation of damages affirmative defense; a finding that was not challenged on appeal.
(8) Gentry’s motion for attorneys’ fees on appeal is granted. The case is remanded for the
trial court to hold a hearing to determine the reasonableness of the fees requested and
to enter an appropriate award.
Opinion by: Edward R. Ardini, Jr., Judge Date: December 26, 2018
This summary is UNOFFICIAL and should not be quoted or cited.
Outcome: AFFIRMED AND REMANDED.
Plaintiff's Experts:
Defendant's Experts:
Comments: