McKee et al v. Reuter et al

Filing 182

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that defendant Michael Reuter's Renewed Motion for Judgment as a Matter of Law, for a New Trial or, Alternatively, for Remittitur 172 is DENIED to the extent Reuter seeks judgment as a matter of l aw or a new trial in this action. The motion is GRANTED to the extent Reuter seeks a reduction of the punitive damages award. IT IS FURTHER ORDERED that the jurys award of punitive damages to plaintiff Jeanette McKee is reduced to $125,000.00. IT IS FURTHER ORDERED that plaintiff Sharon "Beckie" Hickman's Motion for a New Trial 164 and plaintiff Jeanette McKee's Motion for a New Trial on Her Claims Against Christy Scrivner 165 are DENIED. IT IS FURTHER ORDERED th at plaintiff Jeanette McKee's Motion and Supplemental Motion for an Award of Attorney's Fees Against Defendant Michael Reuter 159 160 are GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that plaintiff Jeanette McKee shall re cover from defendant Michael Reuter $66,792.24 in attorneys fees and expenses recoverable in this action under 42 U.S.C. § 1988. IT IS FURTHER ORDERED that the Clerk of Court shall forthwith tax plaintiff Jeanette McKee's bill of costs 158 as defendant Michael Reuter did not object to the bill. An Amended Judgment is entered herewith. Signed by District Judge Catherine D. Perry on 11/22/2019. (TMT)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JEANETTE MCKEE, et al.,
Plaintiffs,
v.
MICHAEL REUTER, et al.,
Defendants.

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No. 4:16 CV 207 CDP

MEMORANDUM AND ORDER
This matter was tried to a jury on plaintiff Jeanette McKee’s claims of
constructive discharge against Jefferson County Circuit Clerk Michael Reuter and
Chief Deputy Clerk Christy Scrivner, and on plaintiff Sharon “Beckie” Hickman’s
claim of constructive discharge against Reuter. The jury returned a verdict in
McKee’s favor on her claim against Reuter, awarding her $25,000 in actual damages
and $200,000 in punitive damages. The jury returned a verdict in favor of
defendants on McKee’s remaining claim against Scrivner and on Beckie’s 1 claim
against Reuter.
Now before the Court is defendant Reuter’s renewed motion for judgment as a
matter of law under Rule 50(b), Federal Rules of Civil Procedure, and motion for
new trial under Rule 59 on McKee’s successful claim. I will deny these motions. I
1

I previously dismissed the claims of a third plaintiff, Susan Hickman. Given that she and
Beckie Hickman share the same surname, I will refer to them by their first names in this
memorandum to avoid confusion. No disrespect is intended.

will, however, grant in part Reuter’s alternative motion to reduce the punitive
damages award and will reduce the punitive award to $125,000. McKee and
Beckie also move for a new trial on their respective claims against Scrivner and
Reuter. I will deny these motions. Finally, because McKee prevailed on her claim
against Reuter brought under 42 U.S.C. § 1983, I will award $66,792.24 in
attorney’s fees and expenses to McKee on this claim.
Background
Evidence and testimony adduced at trial showed that McKee began working
in the clerk’s office for the Circuit Court of Jefferson County, Missouri, in 1989. In
1998, she became the chief deputy clerk. In 2014, she was both the highest ranking
and highest paid deputy clerk. She was the Democratic candidate to replace the
outgoing clerk of court in the November 2014 general election. Defendant Reuter
was the Republican candidate in that election. During the course of the campaign,
McKee publicly commented that Reuter had been accused of domestic violence and
that his wife had earlier obtained an order of protection against him. Several deputy
clerks, but not McKee, signed a letter to the editor indicating that they would be
uncomfortable working for Reuter given the allegations of domestic abuse.
Reuter won the election and took office on January 2, 2015.
On Reuter’s first day on the job, he called McKee into his office immediately
upon her arrival at work and told her to vacate her semi-private office and to relocate

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to a cubicle located right outside his office. Although he assured McKee that her
duties would remain the same and that she would retain the title of chief deputy, he
announced at an employee meeting the following work day that Christy Scrivner,
Reuter’s personal friend and a newcomer to the office with no relevant experience,
was the new chief deputy clerk. Reuter directed McKee to not attend this meeting,
telling her that it did not pertain to her and that she was to work at the front counter
while the meeting was going on. On his third day in office, Reuter loudly directed
McKee in front of other deputy clerks to surrender her office keys and parking pass
because she was no longer chief deputy. Although the parking pass was reserved
for the chief deputy, Reuter required no other supervisor to surrender their office
keys.
During his first week in office, Reuter installed security cameras in and near
his office. He also contacted the Office of State Courts Administrator in Jefferson
City and directed that McKee’s access to the statewide court-operated computer
system be reduced, in some instances to the lowest level available. He did not
reduce any other supervisor’s access to the system. McKee told Reuter that she
needed access at certain levels in the system in order to perform her duties as a unit
manager, but Reuter never restored her access.
McKee worked in the clerk’s office under Reuter from January 2 to January 8,
2015. At her doctor’s recommendation, McKee then went on medical leave for

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stress and anxiety. She was on medical leave for three full weeks and then worked
part-time for one week before returning on a full-time basis.
On the day McKee returned from medical leave, Reuter gave her a Notice of
Corrective Action based on an email written by Scrivner on January 9 stating that
McKee refused to train her and help her with her duties as directed by Reuter. The
Notice stated that McKee’s attitude was creating a hostile work environment and
that if she was unable to obey Reuter’s orders or perform her job duties, she would
be subject to discipline, including dismissal.
McKee filed a formal grievance with Reuter regarding the Notice, asserting
that its issuance was politically motivated. Reuter referred the grievance to an
outside factfinder, an attorney who had previously worked with Reuter’s wife. In
the meanwhile, Reuter reassigned McKee to an isolated, windowless office (a
converted vault) and instructed her to perform microfiche tasks while the grievance
was being investigated. McKee did not have access to a telephone or computer
while assigned to that room. After investigation, the factfinder recommended to
Reuter that he withdraw the Notice of Corrective Action and permit McKee to return
to her desk outside Reuter’s office. Reuter withdrew the Notice on February 25,
and he permitted McKee to return to her desk. Upon her return, McKee noticed that
other deputy clerks would not talk to her. McKee testified that this silent treatment
lasted for weeks.

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On April 2, 2015, McKee was involved in an argument with other deputy
clerks about office gossip. When Reuter questioned McKee about it, she told him
that he condoned this “shit.” Reuter terminated McKee’s employment and had her
escorted from the building. When leaving, McKee saw the word “karma” written
on Scrivner’s bulletin board outside her office. McKee contested her termination
with Reuter, but he upheld her dismissal. McKee appealed to the court’s presiding
judge, who referred the matter to a state-wide budget committee, who in turn
referred it to a panel of three judges from outside counties. After a hearing, the
panel overturned Reuter’s decision on June 5 and reinstated McKee with backpay.
McKee met with Reuter on June 11 regarding her anticipated return to work,
whereupon Reuter told her that she would be performing entry level work in the
traffic division, which was located on another floor in the courthouse. The traffic
supervisor then informed McKee that Reuter had instructed that McKee was not
allowed in the main clerk’s office on the second floor, and that she was to make
arrangements with another employee if she needed something from the clerk’s
office. Upon being advised of these employment conditions, McKee resigned.
On June 15, 2015, McKee began employment as a deputy clerk in the Eighth
Circuit Court of Appeals, having interviewed for and been offered a position there
before her ordered reinstatement to the Jefferson County Clerk’s Office.
On July 1, 2015, shortly after McKee resigned, Reuter transferred plaintiff

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Beckie Hickman to the traffic division. Beckie was a Democrat and campaigned
for and supported McKee leading up to the November 2014 election. Beckie had
worked in the clerk’s office support division for four years, was assigned to the
criminal division in April 2015, and had had no negative performance evaluations.
In May 2015, she filed a worker’s compensation claim for carpal tunnel syndrome.
After her assignment to the traffic division, Beckie began receiving negative
performance reviews from the traffic supervisor, Teresa Cusick. Cusick also
belittled Beckie, calling her “stupid” and telling her that she could never learn the
job. Beckie testified that Cusick did not provide her appropriate training and gave
her conflicting instructions on how to perform the job. Beckie complained to
Reuter that Cusick was mistreating her and not providing adequate training, and she
requested that she be reassigned back to the support division. She also told Reuter
that, with her pain, she thought she would be better in a different department.
Reuter told Beckie that she would be fine, and he did not transfer her. Cusick
eventually recommended to Reuter that Beckie be terminated because of her
negative performance.
Beckie received a Notice of Termination on October 13, 2015, after which she
wrote a letter to Reuter stating that Cusick’s treatment of her constituted harassment,
discrimination, and abuse, and that she thought Cusick acted this way because of her
worker’s compensation claim. Reuter terminated Beckie’s employment on

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October 28.
Beckie contested her termination with Reuter, but Reuter upheld her
dismissal. Beckie appealed to the court’s presiding judge, who referred the matter
to a state-wide budget committee, who in turn referred it to a panel of three judges
from outside counties. After a hearing, the panel overturned Reuter’s decision and
reinstated Beckie with backpay. When Beckie returned to the clerk’s office in
March 2016, she remained in the traffic division. Cusick’s negative conduct
continued and Beckie again asked Reuter that she be transferred, but he denied her
request.
Beckie underwent additional carpal tunnel surgery in April 2016. When she
attempted to return to work after surgery, she suffered a nervous breakdown and was
hospitalized. While she was on medical leave, Reuter told her that the court
authorized her to take unpaid extended leave if she faxed in a written request. She
faxed such a request and Scrivner received it. On October 5, 2016, Scrivner told
Beckie that because the request was not dated, she was expected to return to work
the next day or she would lose her job. Beckie resigned.
Discussion
A.

Reuter’s Renewed Motion for Judgment as a Matter of Law
At the close of all the evidence in the case, Reuter moved for judgment as a

matter of law on McKee’s claim of constructive discharge, which I denied. Fed. R.

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Civ. P. 50(a). Reuter raised four arguments in that motion, specifically: 1) that
Reuter’s actions in supervising, directing, assigning duties to, and dismissing
McKee were within the scope of his statutory authority; 2) that McKee’s working
conditions were not so intolerable that she had no choice but to resign; 3) that
McKee presented no evidence of Reuter’s motives and therefore could not establish
that Reuter retaliated against her because of her political affiliation; and 4) that
Reuter was entitled to qualified immunity because a) McKee had no clearly
established right to be retained on the staff of the official to whom she lost an
election, and b) it was reasonable for Reuter to believe he could dismiss McKee
because of her disruptive behavior in the clerk’s office that occurred on April 2,
2015. (ECF 148.)
In his renewed motion for judgment as a matter of law under Rule 50(b),
Reuter contends that he is entitled to judgment on McKee’s claim for three reasons:
1) that McKee failed to present sufficient evidence to show that she suffered a
“constitutional injury,” which, in the context of this case, must be an adverse
employment action; 2) that McKee failed to establish that her work conditions were
so intolerable that she had no choice but to resign; and 3) that Reuter was entitled to
qualified immunity because he reasonably believed that McKee’s public comments
made in October 2014 – that his wife accused him of domestic abuse in 2000 and
obtained an order of protection – were disruptive to the efficient and effective

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operation of the clerk’s office, and therefore were not protected under the First
Amendment. Because this last argument was not raised in Reuter’s pre-verdict
Rule 50(a) motion, I consider it waived and will not address it here. Klingenberg v.
Vulcan Ladder USA, LLC, 936 F.3d 824, 834 (8th Cir. 2019); Canny v. Dr.
Pepper/Seven-Up Bottling Grp., Inc., 439 F.3d 894, 900-01 (8th Cir. 2006).2 I
therefore turn to Reuter’s arguments that the evidence failed to establish that McKee
suffered an adverse employment action, and namely, constructive discharge.
A motion for judgment as a matter of law should be granted only if the jury’s
verdict is utterly lacking in evidentiary support. In re Prempro Prods. Liab. Litig.,
586 F.3d 547, 571 (8th Cir. 2009). When deciding a Rule 50 motion, I must
construe the evidence most favorably to the prevailing party and draw all inferences
in her favor, denying the motion “if reasonable persons could differ as to the
conclusions to be drawn from the evidence.” Western Am., Inc. v. Aetna Cas. &
Sur. Co., 915 F.2d 1181, 1183 (8th Cir. 1990). I may not make credibility
determinations or weigh the evidence. In re Prempro, 586 F.3d at 572 (citing
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). Under
2

I disagree with Reuter’s assertion that it was not until trial when McKee first suggested that her
October 2014 public comments about Reuter’s domestic abuse issues were among the campaign
activities for which Reuter took adverse employment action against her. This allegation was
raised in the amended complaint and addressed in my September 2017 Memorandum and Order
and the court of appeals’ January 2019 opinion. Regardless, even if it was first raised or fleshed
out at trial, Reuter nevertheless did not bring this qualified immunity argument in his pre-verdict
motion for judgment as a matter of law. Indeed, during argument on his Rule 50(a) motion,
Reuter’s counsel represented to the Court that he was not pursuing an argument that McKee’s
campaign activities disrupted the office.
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these standards, Reuter’s motion must be denied.
First, where an employer’s actions or inactions make the employee’s working
conditions intolerable and the employer either intended the employee to resign or
could have reasonably foreseen that the employee would resign, the employee is said
to have been constructively discharged, and the employee’s resignation is
considered an adverse employment action. Fenney v. Dakota, Minn. & E.R. Co.,
327 F.3d 707, 717 (8th Cir. 2003); Turner v. Honeywell Fed. Mfg. & Techs., LLC,
336 F.3d 716, 724 (8th Cir. 2003), abrogated on other grounds by Torgerson v. City
of Rochester, 643 F.3d 1031 (8th Cir. 2011). This is because the employee’s
resignation is not truly voluntary. Fenney, 327 F.3d at 717. Accordingly,
regardless of whether, as Reuter argues, the relocation of McKee’s desk, the loss of
her title of “chief deputy,” her exclusion from meetings, and her reassignment to
microfiche and to the traffic division without being demoted or suffering a pay
reduction did not themselves constitute actionable “adverse employment actions,”
her involuntary resignation itself constituted the adverse employment action for
which she sought and obtained redress. Reuter’s first ground for relief is denied.
Further, the evidence presented at trial, in its totality and upon review,
supports the jury’s verdict that McKee’s working conditions were so intolerable that
she had no choice but to resign. 3 Exhibits and witness testimony presented to the
3

Reuter challenges only whether the working conditions were intolerable. He does not challenge
the evidence showing his intent or that McKee’s political affiliation or activities during the
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jury showed a series of adverse events that occurred to McKee immediately upon
Reuter’s taking office and continuing into the weeks and months that followed.
Despite McKee’s being a long-term, knowledgeable, and senior management
employee, Reuter immediately ordered her to vacate her office and to relocate to a
cubicle outside his office; Reuter excluded her from meetings, including
management meetings; Reuter stripped her of her title and relegated her to low level
assignments; Reuter denied her computer access that was necessary to perform her
job duties; she was the only supervisory employee ordered to surrender office keys;
she was ostracized by other deputy clerks; Reuter relocated her to a windowless
room without a computer or telephone for a period of weeks while her grievance
regarding unwarranted disciplinary action was investigated – disciplinary action that
was later withdrawn; and Reuter terminated her after an office disagreement, which
termination was later rescinded by a three-judge panel. Reuter’s conditions placed
on McKee’s reinstatement after being fired included being assigned entry level work
in the traffic division, being banned from the clerk’s office, and having to make
arrangements with other employees if she needed something from the clerk’s office.
After having been subjected to unwarranted disciplinary actions as well as targeted
humiliation on a near-daily basis that had already led to stress and anxiety, to have
these conditions of employment imposed for her return to work was the proverbial
campaign was a motivating factor in his decision to make McKee’s working conditions
intolerable.
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straw that broke the camel’s back. From this evidence, a jury could reasonably
conclude that McKee experienced a series of adverse events that eventually
culminated in her having no choice but to resign.
Reuter argues that McKee failed to take steps short of resigning to improve
her working conditions, such as accepting her assignment in the traffic division and
waiting to see if the conditions were tolerable, or asking Reuter for a different
assignment, or lodging a formal complaint and demanding relief. The evidence at
trial, however, was sufficient to support a conclusion that a reasonable person would
find such attempts to be futile, especially given the adverse conditions that Reuter
continued to impose upon McKee even after she was successful on her formal
complaints.
Nothing Reuter presents in his renewed motion for judgment as a matter of
law changes my previous conclusion on his pre-verdict motion or serves as a basis
for disturbing the jury’s verdict. I will therefore deny the motion.
B.

Motions for New Trial
Under Rule 59(a)(1)(A), “[a] new trial is appropriate when the first trial,

through a verdict against the weight of the evidence, an excessive damage award, or
legal errors at trial, resulted in a miscarriage of justice.” Gray v. Bicknell, 86 F.3d
1472, 1480 (8th Cir. 1996). A miscarriage of justice does not result whenever there
are inaccuracies or errors at trial; instead, the party seeking a new trial must

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demonstrate that there was prejudicial error. Buchholz v. Rockwell Int’l Corp., 120
F.3d 146, 148 (8th Cir. 1997). A new trial based on errors in evidentiary rulings
will only be granted where the error likely affected the jury’s verdict. Diesel
Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 823 (8th Cir. 2005).
1.

Defendant Reuter’s Motion for New Trial on McKee’s Claim

Reuter seeks a new trial on McKee’s successful claim against him, arguing
that I erred in permitting Michael Gans, Clerk of Court for the Eighth Circuit Court
of Appeals, to testify to McKee’s job duties in the Eighth Circuit as well as to her
character and work ethic. Reuter contends that such testimony provided an
improper benchmark for determining whether McKee’s working conditions under
Reuter were intolerable and, further, improperly painted McKee in a favorable light,
to Reuter’s prejudice.
I did not err in permitting Gans to testify. I agree with McKee that his
testimony to the nature of the work and her ability to perform the work was relevant
to the jury’s determination of whether the emotional distress for which she sought
compensatory damages in this action was caused by the working conditions she
experienced under Reuter. Contrary to Reuter’s argument, Gans did not testify as
to causation of McKee’s emotional distress; rather, he testified to his factual
observation of McKee’s work performance as a deputy clerk for the Eighth Circuit.
Reuter’s motion for new trial is denied.

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2.

Plaintiff McKee’s Motion for New Trial Against Scrivner

McKee argues that she is entitled to a new trial on her claim against Scrivner,
asserting that the jury’s verdict was against the weight of the evidence. I disagree.
“[T]he prevention of injustice is the overriding principle in deciding whether
to grant a new trial on the ground that the verdict was against the weight of the
evidence.” Leichihman v. Pickwick Int’l, 814 F.2d 1263, 1267 (8th Cir. 1987). “A
motion for new trial is addressed to the judicial discretion of the district court and
will not be reversed except for a clear abuse of that discretion.” Id. at 1267-68.
“The court should reject a jury’s verdict only where, after a review of all the
evidence giving full respect to the jury’s verdict, the court is left with a definite and
firm conviction that the jury has erred.” Ryan v. McDonough Power Equip., Inc.,
734 F.2d 385, 387 (8th Cir. 1984). Where reasonable minds can differ in evaluating
the credible evidence, a new trial based on the weight of the evidence should not be
granted. Jacobs Mfg. Co. v. Sam Brown Co., 19 F.3d 1259, 1267 (8th Cir. 1994).
Here, the evidence and testimony presented at trial supported the jury’s
verdict that McKee failed to meet her burden of proving that Scrivner’s conduct was
motivated by McKee’s political affiliation and activities and that she acted with the
necessary intent to force McKee to resign. Indeed, in her motion, McKee avers that
Scrivner’s adverse actions of filing a complaint against McKee on January 9 and
permitting the word “karma” to remain on her bulletin board when McKee was fired

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in April were done as part of Reuter’s effort to force McKee to resign, not her own.
Based on all the evidence adduced at trial, and upon consideration of the arguments
of the parties, I do not find that the verdict against McKee on her claim against
Scrivner is against the clear weight of the evidence. Nor am I convinced that the
jury erred in reaching this verdict. To the contrary, this case involved conflicting
evidence regarding Scrivner’s conduct and the reasons for her conduct, “and it is the
jury’s function to choose between plausible versions of the evidence.” Jacobs Mfg.,
19 F.3d at 1267. The jury had ample basis to reach the decision it did.
I will also deny McKee’s motion for new trial to the extent she argues that I
erred in excluding certain evidence showing that Reuter’s conduct created
intolerable working conditions. Given that McKee prevailed on her claim of
constructive discharge against Reuter, it cannot be said that the exclusion of this
evidence affected the jury’s verdict to her prejudice.
McKee’s motion for new trial is denied.
3.

Plaintiff Beckie Hickman’s Motion for New Trial Against Reuter

Plaintiff Beckie Hickman argues that she is entitled to a new trial on her claim
of constructive discharge against Reuter, asserting that the jury’s verdict was against
the weight of the evidence. I disagree.
The evidence and testimony presented at trial supported the jury’s verdict that
Beckie failed to meet her burden of proving that Reuter made her working

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conditions intolerable, that he acted with the necessary intent to force her to resign,
and that he was motivated by Beckie’s political affiliation and activities in forcing
her to resign. First, while there was evidence of Cusick’s engaging in
less-than-admirable conduct toward Beckie, there was little evidence that such
conduct was politically motivated or was done at the behest of Reuter. To the
extent evidence showed that Reuter denied Beckie’s request for transfer and
terminated her at Cusick’s recommendation, again there was little if any evidence
that these actions were motivated by political animus. Indeed, evidence showed
that when Beckie challenged her termination, she stated that it was Cusick who
mistreated her and that such mistreatment was because of her worker’s
compensation claim.
Beckie also claims that I erred in excluding certain evidence of Reuter’s
conduct toward another deputy clerk, Susan Hickman, and specifically that Reuter
had a habit of leaning over Susan and staring at her. Although Beckie argues that
such evidence was admissible and necessary to show Reuter’s propensity, practice,
and intent to create intolerable working conditions for Jeanette McKee’s political
supporters, there was plenty of other evidence and testimony adduced at trial,
including from Susan, that showed how Reuter treated McKee supporters. Indeed,
Susan testified that after Reuter took office, she retained her position as a supervisor
but all of her reports were reassigned to another supervisor, thus making her a

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supervisor of no one. She also testified that she was removed from a private office,
received several reassignments, and was moved to many different positions in the
office; that when she returned to the office after being absent, all of her things had
been moved to and piled on a table with no place to set up her computer; that Reuter
looked at her inappropriately, and that when she questioned why he was engaging in
this inappropriate behavior, he simply responded that it was because he could.
Given all the evidence presented to the jury of Reuter’s conduct in relation to McKee
supporters, Beckie has failed to show how the exclusion of additional evidence that
Reuter had a habit of leaning over Susan and staring at her likely affected the jury’s
verdict.
Beckie’s motion for new trial is denied.
C.

Defendant Reuter’s Alternative Motion for Remittitur
Reuter asserts that the $200,000 punitive damages award violates the Due

Process Clause of the Fourteenth Amendment, arguing that the 8:1 ratio between the
punitive and compensatory damages is too great. Reuter asks that I reduce the
punitive damages award to an amount less than $100,000.
As an initial matter, I note that although Reuter requests a due process review
of the punitive damages award, he captions his alternative motion as one seeking
“remittitur.” “Remittitur” is “[a]n order awarding a new trial, or a damages amount
lower than that awarded by the jury, and requiring the plaintiff to choose between

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those alternatives.” Black’s Law Dictionary “remittitur” (9th ed. 2009) (emphasis
added). See also Miller v. Huron Reg’l Med. Ctr., 936 F.3d 841, 846 (8th Cir.
2019). Because remittitur is a substitution of the court’s judgment for that of the
jury regarding the appropriate award of damages, “the traditional remedy of
remittitur . . . require[s] the plaintiff’s consent in order to comport with the Seventh
Amendment right to jury trial[.]” Ross v. Kansas City Pwr. & Light Co., 293 F.3d
1041, 1049 (8th Cir. 2002). A constitutionally-reduced verdict, however, is
“‘really not a remittitur at all.’” Id. (quoting Johansen v. Combustion Eng’g, Inc.,
170 F.3d 1320, 1331 (11th Cir. 1999)). “‘A constitutional reduction . . . is a
determination that the law does not permit the award. Unlike a remittitur, which is
discretionary with the court . . . a court has a mandatory duty to correct an
unconstitutionally excessive verdict so that it conforms to the requirements of the
due process clause.’” Id. (quoting Johansen, 170 F.3d at 1331) (omission in Ross)
(citations in Johansen omitted). Because Reuter asks me only to conduct a due
process review of the punitive damages award, I will limit my consideration to that
request.
“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)). However, due process prohibits
“grossly excessive civil punishment.” Id. (internal quotation marks and citation

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omitted). The Constitution provides an upper limit on punitive damage awards so
that a person has “fair notice not only of the conduct that will subject him to
punishment but also of the severity of the penalty that . . . may [be] impose[d].”
BMW, 517 U.S. at 574. “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.” Ondrisek, 698 F.3d at 1028
(internal quotation marks and citations omitted) (omission in Ondrisek).
In determining whether a punitive damages award shocks the conscience of
demonstrates prejudice, I consider the following factors:
(1) the degree of reprehensibility of the defendant’s conduct;
(2) the disparity between actual or potential harm suffered and the
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.
Boerner v. Brown & Williamson Tobacco Co., 394 F.3d 594, 602 (8th Cir. 2005)
(citing BMW, 517 U.S. at 574-75); see also May v. Nationstar Mortg., LLC, 852 F.3d
806, 815-16 (8th Cir. 2017). These factors collectively serve as “guideposts . . . to
ensure proper notice of the penalty associated with [the defendant’s] conduct.”
Ondrisek, 698 F.3d at 1028.
“Perhaps the most important indicium of the reasonableness of a punitive
damages award is the degree of reprehensibility of the defendant’s conduct.”

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BMW, 517 U.S. at 575. I 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).
Here, McKee was not financially vulnerable nor did she suffer significant
economic harm. She did, however, suffer emotional harm. Given that she had
taken a medical leave of absence for stress and anxiety, Reuter’s continued
mistreatment upon McKee’s return from leave shows a reckless disregard to her
mental health. Moreover, as described above, Reuter subjected McKee to a series
of adverse events that culminated in her constructive discharge; her involuntary
resignation did not arise from a singular event. Finally, as demonstrated by the
jury’s verdict, Reuter was motivated by an unlawful factor in subjecting Reuter to
intolerable working conditions. Nothing shows Reuter’s conduct to have been
accidental. The reprehensibility factor therefore favors the jury’s punitive damages
award.
In considering the ratio factor in conjunction with comparable cases,
however, I find that the 8:1 ratio of punitive to compensatory damages is excessive.
“[A]n award of more than four times the amount of compensatory damages might be
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close to the line of constitutional impropriety.” Campbell, 538 U.S. at 425 (citing
Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23-24 (1991)). In Campbell, the
Supreme Court observed that legislatively-imposed sanctions of double, treble, or
quadruple damages, while not binding, are instructive in determining whether a
given punitive award serves its objective purpose, that is, to deter and punish. Id.
“[C]ourts must ensure that the measure of punishment is both reasonable and
proportionate to the amount of harm to the plaintiff and to the general damages
recovered.” Id. at 426.
A deliberate violation of well-settled law prohibiting discrimination and
retaliation on the basis of political affiliation and political activities deserves both
punishment and deterrence, but a penalty eight times that of non-economic
compensatory damages is excessive. After considering the nature and extent of
Reuter’s misconduct, the short term and long term impact such conduct had on
McKee, a reasonable relation between the compensatory and punitive damages, and
an amount sufficient to punish and deter, I find that a punishment of $125,000
satisfies the broad function of punitive damages. See Campbell, 538 U.S. at 416;
E.E.O.C. v. HBE Corp., 135 F.3d 543, 557 (8th Cir. 1998). Not only will it punish
Reuter for his reprehensible conduct, but it will serve the important purpose of
deterring him and other public officials, including elected officials, from punishing
their employees for engaging in constitutionally-protected activities. “The

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constitutional harm at issue in the ordinary case consists in large part of
discouraging employees . . . from engaging in protected activities.” Heffernan v.
City of Paterson, N.J., 136 S. Ct. 1412, 1419 (2016). Adverse action against one
“tells the others that they engage in protected activity at their peril.” Id.
Although the resulting ratio of 5:1 is more than four times the amount of
compensatory damages, this ratio does not offend the notions of due process in the
circumstances of this case. Requiring a modest punitive damages award merely
because compensatory damages themselves were modest would diminish and
indeed have the potential to negate the purpose of punitive damages in the first
place, that is, to punish the wrongdoer and deter future unlawful conduct. McKee
was fortunate in this case to have timely secured other employment in a non-abusive
environment and to have received timely mental health treatment, both of which
resulted in significant mitigation of damages. But McKee’s successful mitigation
of damages does not lessen the wrongfulness of Reuter’s conduct or the
constitutional harm he inflicted. To significantly reduce the punitive damages
award because of McKee’s resourcefulness would serve more to punish McKee than
Reuter in the circumstances here and would do little to deter future unlawful
conduct.
I will therefore grant Reuter’s alternative motion to the extent he seeks to
reduce McKee’s award of punitive damages under due process considerations, but I

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will deny the motion to the extent he seeks to reduce it to an amount less than
$100,000. For the reasons set out above, I will reduce McKee’s punitive damages
award from $200,000 to $125,000.
D.

Plaintiff McKee’s Motion for Award of Attorney’s Fees
As a party prevailing in a § 1983 case, plaintiff McKee is entitled to recover

reasonable attorney’s fees and expenses under 42 U.S.C. § 1988 in relation to her
successful claim against Reuter. Asserting two alternate theories to recover fees
(i.e., lodestar or contingent fee agreement), McKee seeks attorney’s fees and
expenses totaling either $122,007.24 or $126,307.24.4 Because McKee seeks fees
and expenses for work performed on unsuccessful claims, including unsuccessful
claims pursued by other plaintiffs, I will reduce her request and award $66,792.24 in
fees and expenses.
This lawsuit began in February 2016 with two plaintiffs pursuing separate
claims against five defendants. Specifically, plaintiff Jeanette McKee brought her
claim of constructive discharge against Michael Reuter, Renee Reuter, Christy
Scrivner, Missouri Jefferson County Republican Central Committee, and Jefferson
County. McKee sought compensatory damages totaling $360,000, plus $200,000
in punitive damages against each defendant (other than Jefferson County). Plaintiff
Susan Hickman brought a claim of constructive discharge against these same five
4

McKee also submitted a separate bill for taxable costs (ECF 158) to which Reuter has not
objected.
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defendants. Plaintiffs dismissed the Central Committee on March 2, 2016. An
amended complaint filed July 21, 2016, added Beckie Hickman as a plaintiff with a
claim of constructive discharge against all remaining defendants as well as against a
newly named defendant, Teresa Cusick. In a Memorandum and Oder entered
November 17, 2016, I dismissed defendants Jefferson County and Renee Reuter
from the action.
On September 5, 2017, I granted in part and denied in part the remaining
defendants’ motion for summary judgment. As a result, Susan Hickman’s claims
were dismissed in their entirety, and Beckie Hickman’s claims against Scrivner and
Cusick were dismissed on the basis of qualified immunity. My determination to
deny qualified immunity to Reuter and Scrivner on McKee’s claim, as well as to
Reuter on Beckie’s claim, was affirmed January 8, 2019, on interlocutory appeal.
McKee’s and Beckie’s claims therefore proceeded to trial and, on June 20, 2019, the
jury returned its verdicts as described at the beginning of this memorandum.
Accordingly, of the several combinations of claims brought by three plaintiffs
against six defendants named at one point or another in this case, only one claim
prevailed – that of McKee against Michael Reuter.
For McKee’s success against Reuter, she seeks to recover attorney’s fees and
expenses. For attorney’s fees, she pursues two alternate theories of recovery.
First, she contends that under her one-third contingency-fee contract with counsel,

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she should recover as attorney’s fees one-half of the judgment entered in her favor so
that, when one-third is deducted from the total amount of judgment and fees, she will
retain the full amount of the judgment. Under this theory, she seeks attorney’s fees
in the amount of $112,500. Alternatively, McKee requests a lodestar fee of
$116,800, which she contends represents the number of hours reasonably expended
at a reasonable hourly rate of $400. McKee submitted her attorney’s timesheet to
support this lodestar figure. McKee avers that time expended for counsel’s work
solely for Susan Hickman and Beckie Hickman – as shown by circled entries on the
timesheet – has been excluded from her lodestar calculation.
In response, Reuter argues that counsel’s lodestar calculation includes fees for
work performed on unsuccessful claims and that such fee should be reduced by
either 1) the hours attributable to those unsuccessful claims, or 2) a set amount that
accounts for the degree of unsuccessful claims compared to the overall case. Given
the difficulty of performing either calculation because of the circumstances of this
case, Reuter suggests that a reasonable attorney’s fee would be one that meets the
reasonable expectations of McKee and her attorney as set out in their contract, that
is, one-third of the judgment rendered by the jury’s verdict.
The lodestar approach is the centerpiece of attorney’s fee awards. Blanchard
v. Bergeron, 489 U.S. 87, 94 (1989). Accordingly, I must make an initial estimate
of reasonable attorney’s fees by applying prevailing billing rates to the hours

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reasonably expended “on successful claims.” Id. (citing Hensley v. Eckerhart, 461
U.S. 424 (1983)). I may consider a contigent-fee agreement between counsel and
the prevailing party in determining the overall reasonableness of a fee award, but
such an agreement does not impose an automatic ceiling on the award. Id.
Here, I have carefully reviewed counsel’s timesheet and agree with Reuter
that several entries for which McKee seeks to recover fees include time expended on
unsuccessful claims. Although counsel voluntarily excluded some entries
attributed to work performed “solely” for Susan Hickman and Beckie Hickman,
there are dozens of other entries that include work performed throughout the
litigation on not only Susan’s and Beckie’s claims but on McKee’s unsuccessful
claims. Some entries for which McKee seeks fees also include work performed on
state-court litigation. However, because counsel’s entries contain only the total
time expended on several tasks and do not itemize the time spent on specific tasks, I
am unable to discern what amount of time was spent on McKee’s successful claim
against Reuter, for which attorney’s fees are recoverable under § 1988 – as opposed
to unsuccessful claims brought by McKee and the other plaintiffs against the several
defendants in the case. When faced with this “block-billing” method, district courts
are authorized to apply an overall reduction for inadequate documentation that
hinders the court’s ability to conduct a meaningful review. Miller v. Woodharbor
Molding & Millworks, Inc.,174 F.3d 948, 949-50 (8th Cir. 1999) (per curiam);

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Bishop v. Pennington Cty., No. CIV. 06-5066-KES, 2009 WL 1364887, at *3-4
(D.S.D. May 14, 2009). I will do so here.
As described above, this case involved multiple claims pursued by multiple
plaintiffs against multiple defendants, and final disposition of the several claims
occurred on varied dates over a period of years. To calculate a precise reduction in
fees based on McKee’s degree of success in these circumstances would be nearly
impossible.
Reuter concedes that the bulk of legal work in the case was devoted to the
preparation and prosecution of McKee’s successful claim against him. Of the
$116,800 in lodestar fees McKee seeks to recover, I find that half of this amount is
reasonable given the limited degree of overall success, counsel’s block-billing
method, and the expectations of McKee and her counsel as set out in their fee
contract. Indeed, with the adjusted judgment of $150,000, an award of $58,400 in
attorney’s fees exceeds the one-third contingency fee they agreed to.
McKee also requests $9507.24 in expenses. As with counsel’s timesheet,
several requested expenses are in block-billed entries that include expenses
attributed to unsuccessful claims and long-ago dismissed parties. Reuter
specifically objects to $1680.23 in requested expenses. Of these challenged
expenses, I will disallow $450 in “expenses” for service of process upon the
defendants given that McKee seeks to recover this expense in her bill of costs, to

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which Reuter did not object. (See ECF 158.) I will also disallow $99.78 in
additional challenged expenses because they are attributed solely to dismissed
parties and/or dismissed claims. (E.g., copies of transcripts of Sharon Hickman’s
grievance appeal, medical reports for Susan Hickman, etc.) Of the remaining
$1130.45 in challenged expenses, I will disallow half ($565.22) given that the billing
entries include expenses incurred on matters other than the sole claim on which
McKee prevailed. Accordingly, deducting $450, $99.78, and $565.22 from
McKee’s requested expenses, I will award McKee $8392.24 in total expenses.
Therefore, I will grant in part and deny in part McKee’s motion for award of
attorney’s fees and expenses, and will award such fees and expenses in the total
amount of $66,792.24.
Accordingly,
IT IS HEREBY ORDERED that defendant Michael Reuter’s Renewed
Motion for Judgment as a Matter of Law, for a New Trial or, Alternatively, for
Remittitur [172] is DENIED to the extent Reuter seeks judgment as a matter of law
or a new trial in this action. The motion is GRANTED to the extent Reuter seeks a
reduction of the punitive damages award.
IT IS FURTHER ORDERED that the jury’s award of punitive damages to
plaintiff Jeanette McKee is reduced to $125,000.00.
IT IS FURTHER ORDERED that plaintiff Sharon “Beckie” Hickman’s

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Motion for a New Trial [164] and plaintiff Jeanette McKee’s Motion for a New Trial
on Her Claims Against Christy Scrivner [165] are DENIED.
IT IS FURTHER ORDERED that plaintiff Jeanette McKee’s Motion and
Supplemental Motion for an Award of Attorney’s Fees Against Defendant Michael
Reuter [159] [160] are GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that plaintiff Jeanette McKee shall recover
from defendant Michael Reuter $66,792.24 in attorney’s fees and expenses
recoverable in this action under 42 U.S.C. § 1988.
IT IS FURTHER ORDERED that the Clerk of Court shall forthwith tax
plaintiff Jeanette McKee’s bill of costs [158] as defendant Michael Reuter did not
object to the bill.
An Amended Judgment is entered herewith.

_______________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 22nd day of November, 2019.

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