Waller v. Blast Fitness Group, LLC et al

Filing 73

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that Plaintiff's motion for default judgment is GRANTED in the amount of $148,435.72 in damages ($28,435.72 + $45,000 in compensatory damages and $75,000 in punitive damages) a gainst Defendants Edgar Thompson, Blast Fitness Group, LLC, Blast Fitness Group Personal Training, LLC, and Blast Fitness Acquisition, LLC. IT IS FURTHER ORDERED that attorneys fees and costs are awarded in the amount of $47,364.20; and costs are awarded in the amount of $2,338.63. A separate Judgment shall accompany this Memorandum and Order.. Signed by District Judge Audrey G. Fleissig on 12/29/2017. (NEP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TERRY WALLER,
Plaintiff,
vs.
BLAST FITNESS GROUP, LLC;
BLAST FITNESS GROUP PERSONAL
TRAINING, LLC; BLAST FITNESS
ACQUISITION, LLC; and EDGAR A.
THOMPSON II,
Defendants.

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Case No. 4:15CV00586 AGF

MEMORANDUM AND ORDER
Currently before the Court are Plaintiff’s motions for entry of final default judgment
against the four remaining Defendants in the case, and for attorney’s fees. Plaintiff Terry
Waller brought this action for damages alleging that Defendants sexually harassed Plaintiff
in violation of the Missouri Human Rights Act (“MHRA”), Mo. Rev. Stat. § 213.010, et.
seq. Plaintiff initially filed this action in state court against seven defendants: Blast
Fitness Group, LLC, Blast Fitness Group Personal Training, LLC, and Blast Fitness
Acquisition, LLC (collectively, “Blast Fitness”); two other related entities; Edgar
Thompson; and Annette Miller. Plaintiff brought two claims under the MHRA (hostile
work environment and quid pro quo harassment) against all Defendants; and a claim of
negligent infliction of emotional distress against Thompson only.
Plaintiff alleges that on February 12, 2013, Thompson, a regional manager for Blast
Fitness, interviewed Plaintiff for a position he had applied for and offered Plaintiff the job

“on the spot.” Shortly thereafter, Thompson began contacting Plaintiff on his cell phone
via text messages, repeatedly invited Plaintiff to spend time with him outside of work, and
emphasized his authority as a regional manager. On February 21, 2013, during an
in-person conversation at Blast Fitness, Thompson told Plaintiff that he would get the job
only in return for sexual favors. Plaintiff did not accede and was not hired. On February
27, 2013, Plaintiff filed a charge of sexual harassment and retaliation with the Missouri
Human Rights Commission and the Equal Employment Opportunity Commission.
Defendants removed the case to this Court on April 6, 2015, based on diversity
jurisdiction. Plaintiff eventually dismissed Miller and the two other related entities
referred to above, as well as the negligent infliction of emotional distress claim against
Thompson. On June 10, 2016, the Clerk of Court entered default against Blast Fitness and
Thompson as to liability on the remaining claims. By Memorandum and Order dated June
10, 2016, the Court found Blast Fitness and Thompson liable on Plaintiff’s quid pro quo
claim. The Court held that Plaintiff’s hostile work environment claim failed because
Plaintiff never commenced working for Blast Fitness. The Court set a hearing on
damages that was later vacated as the matter was stayed on June 22, 2016, due to the
bankruptcy of Blast Fitness Group, LLC. The stay was lifted on March 13, 2017, and a
new hearing on damages was set for June 19, 2017.
At the June 19, 2017 hearing, Plaintiff, his fiancé, and his mother testified.
Defendants did not appear in person or through counsel. Plaintiff testified about his
lifelong struggle with asthma and how an exercise regimen eventually allowed him to live
without inhalers and medication. He testified that he aspired to be a personal trainer, a
dream he hoped would be furthered by a job with Blast Fitness, but after being harassed by
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Thompson, Plaintiff stopped exercising and began suffering asthmatic symptoms once
again, which culminated in a hospital stay, his first hospital stay since he began exercising
as a teenager. Plaintiff testified to isolating himself socially, mood changes, other
emotional suffering including depression and anxiety, and to seeking professional
treatment for these issues.
Plaintiff also testified that he experienced financial troubles after the incident,
including a period of homelessness caused by an inability to maintain steady employment.
Plaintiff testified that he applied to numerous jobs, but that he struggled with nervousness
during job interviews, particularly when he was interviewed by men. Plaintiff testified
that this difficulty with job interviews was a result of being harassed by Thompson.
During the hearing, Plaintiff admitted a spreadsheet into evidence detailing the jobs he has
held since February of 2013 and the wages he earned. Plaintiff testified that this
spreadsheet accurately reported his wage and employment history since being harassed by
Thompson. His wage loss was calculated as the difference between the wages he would
have earned had he been employed by Blast Fitness and the wages he actually earned. He
also included gym fees, which he would not have paid had he been employed by Blast
Fitness, in his economic damages calculation.
Plaintiff testified that he is now employed. Plaintiff also admitted into evidence
before and after photographs showing considerable physical changes as a result of not
exercising, documents evidencing his psychotherapy treatment, and spreadsheets showing
the hours billed and costs incurred by his attorneys in support of Plaintiff’s motion for
attorney’s fees and costs. At the hearing, Plaintiff’s fiancé and mother offered
corroborating testimony.
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Plaintiff filed his proposed judgment on June 22, 2017, and an amended proposed
judgment on July 25, 2017, wherein Plaintiff requested total judgment of $2.5 million in
damages (economic damages in the amount of $28,435.72, compensatory damages for pain
and suffering of approximately $1 million, and $1.5 million in punitive damages),
$94,728.40 in attorney’s fees, and $2,338.63 in costs, along with post-judgment interest
assessed at 9.0% pursuant to Mo. Rev. Stat. § 408.040.
DISCUSSION
Damages
Plaintiff has provided sufficient evidence in support of his economic damages, and
the Court accordingly awards Plaintiff the $28,435.72 he requested for these damages. As
to compensatory damages for emotional distress, “actual damages recoverable under the
MHRA may include awards for emotional distress and humiliation.” Soto v. Costco
Wholesale Corp., 502 S.W.3d 38, 54 (Mo. Ct. App. 2016). Emotional distress damages
may be “established by testimony or inferred from the circumstances.” Id. at 55.
“Intangible damages, such as pain, suffering, embarrassment, emotional distress, and
humiliation do not lend themselves to precise calculation.” Van Den Berk v. Mo. Comm’n
on Human Rights, 26 S.W.3d 406, 413 (Mo. Ct. App. 2000). “Each case requires
individualized contemplation and consideration by the trier of fact.” Id. at 414. “Fair and
reasonable compensation is the ultimate goal in awarding damages.” Id.
Here, the Court finds, based on the evidence including Plaintiff’s testimony, that he
is entitled to compensatory damages for pain and suffering, but the Court cannot sustain
Plaintiff’s request for approximately $1 million in such damages. Upon review of the
record and analogous MHRA cases, the Court will award Plaintiff an additional $45,000 in
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compensatory damages for emotional distress. See, e.g., Diaz, 484 S.W. 3d at 87
(affirming award of $75,000 in emotional distress damages where workplace verbal and
physical sexual harassment lasted almost one year).
Punitive damages are available under the MHRA if the plaintiff “adduce[s] clear
and convincing proof of a culpable mental state, either from a wanton, willful, or
outrageous act, or from reckless disregard for an act’s consequences such that an evil
motive may be inferred.” Diaz v. Autozoners, LLC, 484 S.W.3d 64, 77 (Mo. Ct. App.
2015) (citation omitted). Here, the Court concludes that Thompson’s conduct was quite
egregious and that he acted with a reckless disregard for the negative consequences his
conduct would have upon Plaintiff. Upon review of punitive damages awards in
comparative cases, the Court will award Plaintiff an additional $75,000 in punitive
damages.
Blast Fitness, as Thompson’s employer, is vicariously liable for the above
damages. See id. at 76-77; Leeper v. Scorpio Supply IV, 351 S.W.3d 784, 793 (Mo. Ct.
App. 2011).
If the harassed employee suffers a tangible employment action resulting
from supervisory harassment, the tangible employment action taken by the
supervisor becomes for [MHRA] purposes the act of the employer, and the
employer is liable for the discriminatory conduct. If, on the other hand, no
tangible employment action occurs (for example, when an employee is
subjected to a hostile work environment), the employer is entitled to an
affirmative defense to liability. The defense comprises two necessary
elements: (a) that the employer exercised reasonable care to prevent and
correct promptly any sexually harassing behavior, and (b) that the plaintiff
employee unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer to avoid harm otherwise.
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When an employer’s liability is vicarious, the employer may raise a ‘good
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faith’ defense to punitive damages by proving that the discriminatory
employment decisions of managerial agents are contrary to the employer’s
good-faith efforts to comply with [the MHRA].
Diaz, 484 S.W.3d at 76-77 (citations omitted).
Here, Blast Fitness has not established an affirmative defense to liability or a good
faith defense with respect to punitive damages. Accordingly, damages will be assessed
jointly and severally against Blast Fitness and Thompson.
Attorney’s Fees
Counsel for Plaintiff seeks $94,728.40 in attorney’s fees and an additional
$2,338.63 in costs. The MHRA states that a court “may award court costs and reasonable
attorney fees to the prevailing party.” Mo. Rev. Stat. § 213.111. Missouri courts have
set out seven factors to guide courts in determining what fees are reasonable under the
MHRA:
(1) the rates customarily charged by the attorneys involved in the case and by other
attorneys in the community for similar services; (2) the number of hours reasonably
expended on the litigation; (3) the nature and character of the services rendered; (4)
the degree of professional ability required; (5) the nature and importance of the
subject matter; (6) the amount involved or the result obtained; and (7) the vigor of
the opposition.
Gilliland v. Mo. Athletic Club, 273 S.W.3d 516, 523 (Mo. 2009) (citing, in addition to the
seven factors above, Hensley v. Eckerhart, 461 U.S. 424, 429-30 n. 3 (1983), which sets
out 12 factors for courts to consider when awarding fees in federal civil rights cases). The
degree of success obtained is the most important of these factors. Id. The trial court is
presumed to know “the character of the services rendered in duration, zeal, and ability.”
Ferguson v. Curators of Lincoln Univ., 498 S.W.3d 481, 498 (Mo. Ct. App. 2016) (citation
omitted). Because the trial court is considered an expert under Missouri law for setting
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attorney’s fees, it may “fix the amount of attorneys’ fees without the aid of evidence.” Id.
The starting point for determining fees is the lodestar: the hourly rate of the
attorneys and staff working the case multiplied by the number of hours expended in the
representation. Alhalabi v. Mo. Dep’t. of Nat. Resources, 300 S.W.3d 518, 531 n. 6 (Mo.
Ct. App. 2009). According to Plaintiff’s filings, attorney Gretchen Myers worked 91.35
hours at an hourly rate of $450 through September 1, 2016, at which point she raised her
rate to $575 per hour and worked an additional 4.55 hours. Attorney Jennifer Matthew
worked 94.75 hours at a rate of $377 per hour. Paralegal fees were assessed at a rate of
$150 per hour for 100.1 hours worked. Counsel provided the Court with data showing the
average rates charged by attorneys in the St. Louis, Missouri, area, and Myers’ and
Matthew’s rates are within the range. As to the number of hours recorded, the
reasonableness of many of the billing entries is difficult to assess. Rather than scrutinize
each billing line item, the Court will consider the other factors in assessing the
reasonableness of the overall amount sought. See Trout v. State, 269 S.W.3d 484, 489
(Mo. Ct. App. 2008) (explaining that the trial court may attempt to identify specific hours
that should be eliminated, or it may also choose to assess an award based on the relevant
factors).
Though civil rights cases under anti-discrimination statutes deal with important
policy considerations, this case did not present particularly difficult legal or procedural
issues for counsel to address, and, as Defendants have not appeared through counsel or pro
se for approximately one year during the pendency of the case, there has been little
opposition for Plaintiff to contend with. Upon review of the entire record, the Court
reduces the fees requested by 50% to $47,364.20. See Quigley v. Winter, 598 F.3d 938,
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958 (8th Cir. 2010) (reducing overall fees by one-third in part because “the complexity of
the issues in this case simply did not warrant the requested amount of ‘lawyering’ ”) (cited
with approval in Banks v. Slay, 875 F.3d 876, 882 (8th Cir. 2017). This amount is not
inconsistent with fee awards in other MHRA cases. See, e.g., Betton v. St. Louis Cty., No.
4:05CV01455 JCH, 2010 WL 2025333, at * (E.D. Mo. May 19, 2010) (awarding
approximately $189,000 in attorney’s fees in an MHRA for a case lasting four years and
culminating in a seven-day jury trial and a verdict for the plaintiffs of approximately
$30,000 in damages and approximately $50,000 in punitive damages). The full amount of
costs, $2,338.63, will be awarded as requested.
CONCLUSION
IT IS HEREBY ORDERED that Plaintiff’s motion for default judgment is
GRANTED in the amount of $148,435.72 in damages ($28,435.72 + $45,000 in
compensatory damages and $75,000 in punitive damages) against Defendants Edgar
Thompson, Blast Fitness Group, LLC, Blast Fitness Group Personal Training, LLC, and
Blast Fitness Acquisition, LLC.
IT IS FURTHER ORDERED that attorney’s fees and costs are awarded in the
amount of $47,364.20; and costs are awarded in the amount of $2,338.63.
A separate Judgment shall accompany this Memorandum and Order.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 29th day of December, 2017

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