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Disabled Employee Wins Jury Trial; Reduction of Attorneys’ Fees Was Error

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In a recent Missouri Court of Appeals decision, the appellate court reversed and remanded the trial court’s calculation of the winning plaintiff’s attorneys’ fees. The plaintiff, Thomas Dewalt, did not receive the full amount of his attorneys’ fees ($125,000), but rather was awarded only awarded a little over half of his claimed attorneys’ fees the trial court, which provided no reasoning for reducing the amount of the fees. The plaintiff appealed the reduction in attorneys’ fees, and the appellate court agreed with the plaintiff and reversed and remanded the calculation for further findings.

In Dewalt v. Davidson Service, DeWalt began to work for the defendant (Davidson) and defendant company (Davidson Service) in April 2006 as a truck driver for local deliveries. Local deliveries typically took thirty minutes of drive time to complete, but also involved other tasks such as unloading and loading, or waiting to receive a dispatch.

The plaintiff would sometimes perform time-sensitive ‘over-the-road runs’, which had to completed as quickly as possible. He performed one in 2007 to Kentucky, and in the summer of the same year DeWalt, began experiencing symptoms such as nausea, headaches, sensitivity to light, impotence, and extreme fatigue. He was diagnosed with a large non-cancerous brain tumor that was too risky to remove surgically.

DeWalt and his doctor, Dr. Michael Berk, both testified that DeWalt suffered from a rather large brain tumor. DeWalt explained that he was substantially limited in his ability to drive because he could not drive for more than ninety minutes without taking a break and that the tumor greatly affected various bodily systems, specifically his adrenal, thyroid, and sexual systems. Dr. Berk medically corroborated DeWalt’s testimony and confirmed that DeWalt’s symptoms are the kind experienced with his condition. Dr. Berk continued that the tumor was not minor or temporary, and felt it was necessary to set restrictions on the plaintiff’s driving time to no more than ninety minutes at a time.

DeWalt then notified his supervisors when he received his diagnosis and presented his doctor’s note about his ninety-minute driving restriction. DeWalt’s supervisor at the time, Mr. Tubbs, confirmed this notification and accommodated his condition. However, Mr. Tubbs resigned from the defendant company in September of 2007, and at that time, DeWalt was assigned a new supervisor, Mr. Jestis.

That same month, DeWalt was asked to perform an “over-the-road” run to Indiana, but he declined citing his condition. Jestis told him to stay home if he wasn’t going to perform the run. A few days later, Jestis asked him to perform another run to Illinois, which DeWalt again declined, citing his medical condition. Jestis then demanded to see the doctor’s note. After DeWalt presented the note, Jestis (under Davidson’s direction) told DeWalt to take the day off without pay, and then proceeded to issue the first of four disciplinary write-ups that DeWalt would receive over the course of the next two weeks.

DeWalt’s hours then began to decrease because he didn’t receive much work. Over the next few weeks, his weekly hours were cut from 40 to 30, and eventually, DeWalt was receiving no work assignments or work hours. On October 5, 2007, DeWalt again declined to perform an over-the-road run due to his medical condition. He then didn’t receive any work for the next two weeks despite calling in every day asking for work. A dispatcher and a supervisor told him that he would not receive any work if he was not willing to perform any over-the-road runs. Jestis confirmed that he placed DeWalt at the bottom of the call list after DeWalt declined to do the previous over-the-road runs.

Jestis and the Davidson both testified that there were local routes available during this time, and the record showed that several other drives were driving over 40 hours a week during the time DeWalt received no work assignments.

On October 18, 2007, after not receiving work for weeks, DeWalt came to work and requested that he be given a work assignment. He was told again that no work was available, so DeWalt returned his uniform believing that no longer had a job. Upon completing paperwork when he returned his uniform, DeWalt crossed out language stating that he “voluntarily quit” and wrote that he was constructively terminated. Jestis then, prepared a memo saying DeWalt was terminated. After his employment with Davidson Service ended, DeWalt worked for several other firms driving local routes.

DeWalt filed suit against the company and Davidson individually, alleging disability discrimination in violation of the Missouri Human Rights Act (MHRA). A jury found in favor of the company on DeWalt’s claim that he was terminated or denied work based on his disability. However, on his claim against Davidson individually that he was terminated or denied work based on his disability, the jury found in favor of DeWalt and awarded DeWalt $7,500 in compensatory damages. In a post-trial motion, DeWalt sought to recover $133,198.50 in attorneys’ fees, but the trial court cut the fee award to $75,000 with no explanation. Davidson appealed the merits of the jury’s verdict rendered against him, and DeWalt cross-appealed the trial court’s reduction of his attorneys’ fees.

On appeal, all of Davidson’s arguments to overturn the jury’s verdict were rejected. DeWalt’s sole challenge was the calculation of attorneys’ fees. He argued that the trial court abused its discretion in awarding $75,000 instead of the requested $133,198.50 because the court arbitrarily arrived at the figure. The appellate court agreed, and stated that the trial court failed to make any findings of fact or conclusions of law or enumerate its reasons for reducing the attorneys’ fees. Thus, the court reversed and remanded the calculation of the plaintiff’s attorneys’ fee award but affirmed judgment in all other aspects.

This case highlights the risks that employers face in dealing with employees who are disabled. Not only was Davidson deemed to have handled DeWalt’s employment situation unlawfully, but Davidson was also ultimately ordered to pay DeWalt’s attorneys’ fees. This case turned out to be a very expensive mistake for an employer that should have worked harder to understand DeWalt’s physical capabilities and to find work that DeWalt could have performed within his doctor’s restrictions.

If you are an employee with a medical condition or disability and you believe your employer has violated your rights, or if you want to learn more about your rights, you should contact a St. Louis employment lawyer.

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