United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-3928

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Roseann Thorne, *

*

 Plaintiff - Appellee, *

*

 v. * Appeal from the United

* States District Court

Welk Investment, Inc.; William * for the Western District

Welk; Marcia Paul, * of Missouri

*

 Defendants - Appellants, *

*

Choice Hotel International, Inc. *

*

 Defendant. *

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No. 98-4048

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Roseann Thorne, *

*

 Plaintiff - Appellant, *

*

 v. * 

* 

Welk Investment, Inc.; William * 

Welk; Marcia Paul; Choice Hotel * 

International, Inc., *

*

 Defendants - Appellees. *
1The Honorable Andrew W. Bogue, United States Senior District Judge for the

District of South Dakota, sitting by designation.

2The Honorable Gary A. Fenner, United States District Judge for the Western

District of Missouri.

2

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Submitted: September 16, 1999

 Filed: November 22, 1999 

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Before FAGG, BEAM, Circuit Judges, and BOGUE,1 District Judge.

_________

BOGUE, District Judge.

Roseann Thorne worked as a desk clerk and manager of a Comfort Inn hotel in

Nevada, Missouri. The hotel is owned by Welk Investment, Inc., which in turn is a

franchisee of Choice Hotel International, Inc. Believing that she was a victim of sexual

harassment on the job, Thorne brought this case against the Defendants under Title VII,

42 U.S.C. § 2000e et seq. and the Missouri Human Rights Act (MHRA). Mo. Rev.

Stat. ch. 213. The district court2 dismissed franchisor Choice Hotel because it found

that Choice Hotel was not Thorne’s employer, and dismissed Thorne’s state law tort

claims on the ground that they were preempted by Missouri Workers’ Compensation

Law. Following a trial, the jury returned a verdict in favor of Thorne. Acting on posttrial motions, the court reduced the jury’s award in several respects and made an award

of attorneys’ fees to the Plaintiff. Both sides appeal. 

I. BACKGROUND

We recount the facts of this case by presenting the evidence submitted at trial in

a light most favorable to the judgment. Delph v. Dr. Pepper Bottling Co. of Paragould,
3

Inc., 130 F.3d 349, 351 (8th Cir. 1997). Thorne was hired as a desk clerk at a Nevada,

Missouri Comfort Inn in May 1995. Within three months, William Welk, the hotel’s

owner, invited Thorne to dinner to discuss a promotion to manager. Welk also offered

her a car and payment of her mortgage. Thorne declined these offers, but accepted the

job of manager, though it was obvious to her that Welk’s interest in her was more than

strictly professional.

Through the end of 1995 and into 1996, Thorne’s suspicions were confirmed by

a number of sexually suggestive comments and actions initiated by Welk. A

representative sample will suffice: Welk tried to kiss Thorne; Welk called her on his

car phone to ask if she was “horny;” Welk asked her to “get naked” in a jacuzzi; Welk

grabbed her breasts in his hotel room; and when Welk confronted Thorne about

maintenance issues at the Comfort Inn, he told her that she could have it “easy” like his

girlfriend and sometime employee Marcia Paul, or she could have it “the hard way.”

William Welk and Marcia Paul had a long-standing relationship which was at the

same time professional and intimate. In November 1995, Thorne had an uncomfortable

dinner with Paul and Welk where references were made about Welk’s sexual

relationships with some of his employees. A few days later, Paul told Thorne that there

were three ways her employment could be terminated – stealing, lying, and “f—ing Bill

Welk.” 

Around the same time, Becky Watkins visited the Nevada Comfort Inn and met

Thorne. Watkins was one of Welk’s employees from Arkansas. Watkins had been

told by Jeannie Phillips, a Welk manager, that Thorne and Welk had an ongoing sexual

relationship. Paul told Watkins that she would fire Thorne if this were true. When

Watkins reminded Paul that employees could not be terminated for this reason, Paul

responded that she would use the “dirty motel” excuse to justify her actions.
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In January 1996, Choice Hotel performed a review of its Nevada Comfort Inn

franchisee. The reviewer, Greg Scott, noted Thorne’s helpfulness and gave the hotel

a good housekeeping score. Thorne reported that she was being sexually harassed on

the job. Scott told her to contact the EEOC or William Welk. The following month,

Thorne filed her charge of discrimination with the EEOC.

When Paul learned of Thorne’s EEOC filing, she begged Thorne to remove her

name from the charge. Paul explained that she could fire Thorne if she had three

performance write-ups. In March, Paul called Thorne and told her that she could either

accept a demotion to desk clerk or be terminated. At a meeting the next day, Paul

presented Thorne with three performance write-ups. Paul told her that she wanted to

tape record her voluntarily agreeing to a demotion. Distraught, Thorne acquiesced. 

On April 1, 1996, Thorne telephoned Paul and told her that she was ill and

would not be in to work. Thorne’s psychologist provided a work release. As her two

week medical leave was about to expire, Thorne inquired as to when she would be

placed back on the work schedule. Thorne soon learned that she no longer worked at

the hotel. Paul had hired a replacement within a week of April 1.

II. DISCUSSION

A. Admissibility Issues

The Defendants challenge the admissibility of four separate items: the existence

of an Arkansas defamation suit brought by Welk against Becky Watkins and Sandra

Bullock; the testimony of Becky Watkins relating to this lawsuit; testimony regarding

Welk’s sexual relationships with other women; and reputation testimony regarding

Welk’s propensity for truthfulness. We have reviewed each item and find no reversible

error in the court’s rulings.
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In a similar vein, the Defendants contend that the jury’s verdict was based on

passion and prejudice, and that the trial court therefore abused its discretion when it

denied their motion for a new trial. Defendants claim that the improper jury verdict is

evidenced by the excessive damage awards. It was the trial court’s admission of the

above discussed “inflammatory” evidence which created the “incendiary” environment

in which the jury’s verdict was rendered, they argue.

When a punitive damage award is the result of passion and prejudice, a new trial

is usually required and remittitur is an inappropriate remedy. Hale v. Firestone Tire &

Rubber Co., 820 F.2d 928, 936 (8th Cir. 1987). Remittitur is often inadequate in this

situation because the passion and prejudice may have affected the jury’s decision on

the question of liability, as well as damages. 11 Charles A. Wright, et al., Federal

Practice & Procedure § 2815 (2nd ed. 1995). This is the exception to the general rule,

however, that “[t]he final determination of whether a new trial or remittitur is

appropriate . . . is committed to the sound discretion of the trial court.” Id. Our review

of the trial transcripts leads us to reject, as the district court did, Defendants’ assertion

that improper evidence and questioning “poisoned” the verdict.

Defendants also cite Triple R Indus., Inc. v. Century Lubricating Oils, Inc., 912

F.2d 234, 239 (8th Cir. 1990) for the proposition that a plaintiff’s consent is required

before a court will authorize remittitur. See also Hale, 820 F.2d at 936; Everett v. S.H.

Parks & Associates, Inc., 697 F.2d 250, 253 (8th Cir. 1983). In this case, the trial judge

ordered remittitur without Plaintiff’s waiver of her right to a new trial. That fact does

not entitle Defendants to a new trial, however. Nonconsensual remittitur implicates the

Plaintiff’s Seventh Amendment jury right, not the Defendants’ who lack standing to

raise the issue. See Morgan v. Woessner, 997 F.2d 1244, 1258 (9th Cir. 1993), cert.

dismissed, 510 U.S. 1033 (1993). We consider Plaintiff’s arguments concerning the

trial court’s order of remittitur separately below.

B. Welk’s and Choice Hotel’s Status as an Employer
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Next, Defendants argue that the trial court erred in concluding that Welk was

personally Plaintiff’s employer. Instead, Defendants claim, Thorne was actually

employed by Welk Investment, Inc. In a related issue, the trial court granted summary

judgment in Choice Hotel’s favor on the ground that Choice Hotel, as franchisor, was

not Thorne’s employer. The Plaintiff appeals this determination. We, however, see no

error of law or fact in either conclusion.

C. Retaliation

To establish a prima facie case of retaliation, a plaintiff must show participation

in a protected activity, subsequent adverse action by the employer, and a causal

connection between the two. 42 U.S.C. §2000e-3(a); Evans v. Kansas City, Mo. Sch.

Dist., 65 F.3d 98, 100 (8th Cir. 1995). Defendants claim that no reasonable jury could

have concluded that a causal link was established between Thorne’s demotion and

termination and her filing the EEOC charge of sexual discrimination. Instead,

Defendants point to evidence of Thorne’s poor performance and work related

misconduct as the cause of her demotion and ultimate termination. Defendants’ claim

of error is that the district court should have granted their motion for judgment as a

matter of law on this claim.

For a court to grant judgment as a matter of law, “[t]he evidence must point

unswervingly to only one reasonable conclusion.” Gardner v. Buerger, 82 F.3d 248,

251 (8th Cir. 1996), citing Johnson v. Cowell Steel Structures, Inc., 991 F.2d 474, 478

(8th Cir. 1993). Where, as here, a jury has been presented with conflicting testimony,

we will not ordinarily disturb the verdict on appeal. See Kim v. Nash Finch Co., 123

F.3d 1046, 1061 (8th Cir. 1997). “The evidence in this case presented inconsistent

inferences to the jury, and the resolution of this conflicting evidence was a matter for

the jury to resolve.” Id. at 1061-62. Accordingly, there was no error in the district
3That statute provides that when an employee requests a service letter from a

former employer, the employer shall within forty-five days issue a letter “setting forth

the nature and character of the service rendered by such employee to such corporation

and the duration thereof, and truly stating for what cause, if any, such employee was

discharged or voluntarily quit such service.” Mo. Rev. Stat. § 290.140.1. Employers

7

court’s order denying Defendants’ motion for judgment as a matter of law on Plaintiff’s

claim of retaliation.

D. Damages

The jury awarded Thorne $220,000 in actual damages, $200,000 of which was

designated for pain and suffering, and $725,000 in punitive damages on her Title VII

and MHRA claims. The court reduced the jury’s award and entered a judgment for

$135,000 in compensatory damages and $135,000 in punitive damages. The district

court also ordered that the Missouri service letter punitive damage award should be

reduced from $50,000 to $10,000. Two separate issues are presented within the

question of the district court’s order of remittitur. First, we examine the amount of

remittitur ordered. Next, we must determine whether the court was authorized to order

remittitur in this case.

The court ordered the jury award of punitive damages for Defendants’ violations

of Title VII and the MHRA reduced from $725,000 to $135,000. The court also

remitted the jury’s award of compensatory damages from $220,000 to $135,000. In

so doing, the court considered “the degree of malice, the financial worth of the parties,

the injury suffered and all the relevant facts and circumstances.” The court also noted

the Plaintiff’s sporadic work history and the fact that she was re-employed shortly after

her termination from the hotel.

Next, the court reduced the jury’s $50,000 award of punitive damages for the

Defendants’ violation of the Missouri Service Letter Statute3 to $10,000. The evidence
may be liable for nominal and punitive damages if the evidence establishes that a letter

was not issued. Mo. Rev. Stat. § 290.140.2.

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introduced at trial established that Thorne had sent two identical service letter requests

on June 3, 1996, one in a certified envelope, as required by the statute, and one in a

first class envelope on which she deliberately did not write a return address. She

received both letters back in the mail and never obtained a service letter.

The court found that an award of $50,000 was “far more than necessary to deter and

punish” and noted that there was no evidence that Thorne suffered any tangible

detriment because of the failure to provide a service letter.

We review the reduction of damages by a district court for an abuse of

discretion. Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 576 (8th Cir. 1997); see

also Delph, 130 F.3d at 351. A verdict is not excessive unless the result is “monstrous”

or “shocking.” Jenkins v. McLean Hotels, Inc., 859 F.2d 598, 600 (8th Cir. 1988),

quoting Stafford v. Neurological Medicine, Inc., 811 F.2d 470, 475 (8th Cir. 1987).

Thorne claimed to have suffered considerable emotional distress but we agree, after

carefully reviewing the evidence, that a compensatory award of $135,000 is not

excessive, though an award of $220,000 was excessive as a matter of law. See Kim,

123 F.3d at 1067, citing Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 1215-16 (6th

Cir. 1996) (citing cases where emotional distress damages ranged from $40,000 to

$150,000). Therefore we will not disturb the amount remitted on Thorne’s

compensatory damages. Insofar as the remittitur of punitive damages, it appears that

the district court considered the factors relevant to the reasonableness of a punitive

damages award, including the degree of reprehensibility of the defendant’s conduct,

and the ratio between the actual harm inflicted on the plaintiff and the punitive damages

award. Id. (citations omitted). We see no abuse of discretion with regard to the

remittited amount of punitive damages. 
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Having determined that the dollar figures remitted by the district court were

within the court’s discretion, we next turn to the question of whether the court was

authorized to order remittitur in the absence of the Plaintiff’s consent. The decision to

order remittitur is circumscribed by the Seventh Amendment. Bonura v. Sea Land

Serv., Inc., 505 F.2d 665, 669 (5th Cir. 1974). Here, the district court could have

ordered the remittitur in the amounts stated by conditioning the denial of a new trial on

Plaintiff’s consent to the remittitur. Yost v. Sauter, 420 F.2d 79, 81 n.2 (D.C. App.

1969), citing Dimick v. Schiedt, 293 U.S. 474, 482, 55 S. Ct. 296, 299, 79 L.Ed.2d 603

(1935). Instead, the district court simply ordered remittitur without the Plaintiff’s

consent. This was in error. But cf. Parsons v. First Investors Corp., 122 F.3d 525, 529

(8th Cir. 1997) (noting “unique circumstances” where remittitur may be ordered

unconditionally). Ordinarily, we would remand in order to allow the Plaintiff to elect

between the judgment as remitted and a new trial. In this case, however, the Plaintiff

has represented through her attorneys that she will waive her right to a new trial if given

the choice. See Appellee/Cross-Appellant’s Opening Brief at 53 n.10 (“Should the

Eighth Circuit, however, simply decide to uphold the district court’s remittitur and

remand to give Plaintiff a choice, Plaintiff represents [she] would accept the remitted

amount.”). We acknowledge and hereby accept Plaintiff’s waiver of her right to a new

trial. Therefore we will affirm the district court’s judgment as remitted.

E. Workers’ Compensation Exclusivity Defenses

The jury found against Marcia Paul and William Welk on Thorne’s state law tort

claims of intentional and negligent infliction of emotional distress. The district court

granted post-trial motions for judgment as a matter of law on these claims, reasoning

that under Missouri law, Welk and Paul were entitled to workers’ compensation

immunity. See Nichols v. American Nat’l Ins. Co., 945 F. Supp. 1242, 1248 (E.D. Mo.

1996). Thorne has appealed these rulings which we review de novo. Swanson v.

White Consol. Indus., Inc., 30 F.3d 971, 973 (8th Cir. 1994). 
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Missouri’s Workers’ Compensation Law provides for the liability of employers

for accidental injury of employees. Mo. Rev. Stat. § 287.120(1). The term “accident”

includes, but is not limited to “injury or death of the employee caused by the

unprovoked violence or assault against the employee by any person.” Id. The Act

provides an exclusive remedy and therefore preempts all other common law rights and

remedies on account of such accidents. Mo. Rev. Stat. § 287.120(2). The Act thereby

supplants and supersedes common law rights whenever the injury is “accidental” as

that term is used within the statute. Jones v. Jay Truck Driver Training Ctr., Inc., 709

S.W.2d 114, 115 (Mo. 1986) (en banc). 

It is well settled that it is the exclusive jurisdiction of the Missouri Labor and

Industrial Relations Commission to determine whether an employee’s injuries were the

product of an “accident” for purposes of Workers’ Compensation preemption.

Goodrum v. Asplundh Tree Expert Co., 824 S.W.2d 6, 8 (Mo. 1991) (en banc); Killian

v. J&J Installers, Inc., 802 S.W.2d 158, 161 (Mo. 1991) (en banc); Jones, 709 S.W.2d

at 115. The Commission made no such determination of the Plaintiff’s claims.

Because Missouri law deprives courts of the jurisdiction to decide the “accidental”

quality of common law state law tort claims, the district court was correct in granting

judgment as a matter of law. Accordingly, this aspect of the district court’s judgment

will be affirmed.

F. Attorneys’ Fees

Pursuant to Rule 54(d), Thorne moved for an award of attorneys’ fees and

related non-taxable expenses in the amount of $388,266.42. See Fed. R. Civ. P. 54(d);

42 U.S.C. §2000e-5(k). The district court awarded her $267,100.00. Both sides

appeal this determination; the Plaintiff claiming that the fees were improperly reduced,

the Defendants arguing that the fees awarded were excessive.
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The Plaintiff provided the court with over eighty pages of itemized billing which

reflected twenty-three individuals who worked on the case. She claimed 2,448.80

billable hours and $35,000 in expenses. In trimming this fee request by roughly

$121,000, the court expressed its opinion that Plaintiff’s counsel had taken “an

overbroad approach” to “a fairly straight forward claim of sexual harassment and

retaliation and not the myriad of other claims and charges that served to drive the

excessive time and expense of this litigation.” The court also believed that the hourly

rates for Plaintiff’s trial attorneys were unreasonable given their lack of objectivity and

duplicative efforts.

We review a district court’s award of attorneys’ fees under the abuse of

discretion standard. St. Louis Fire Fighters Ass’n v. St. Louis, Mo., 96 F.3d 323, 331

(8th Cir. 1996). There are a number of factors district courts should consider in

determining a reasonable fee award. Id. at 332 n.10. Although courts are to consider

the results obtained which, in this case the Plaintiff describes as “excellent,”

counterweights in this case were the time required, the novelty and difficulty of the

issues, and the requisite skills to perform the legal service properly, all of which the

court felt the Plaintiff had overstated. See id. The district court determined that these

factors did not warrant the fee request submitted and reduced the award accordingly.

One critical factor the district court should have also considered in a case like

this is the attorneys’ fees awards in similar cases. See, e.g., Delph, 130 F.3d at 358

(attorneys’ fees of $88,800 in a racially hostile work environment case); Shrader v.

OMC Aluminum Boat Group, Inc., 128 F.3d 1218, 1220 (8th Cir. 1997) (attorneys’ fees

of $44,137.50 in an ADA case); cf. Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1048

(5th Cir. 1998) ($81,000 in attorneys’ fees too high considering results obtained in Title

VII case); but see Bridges v. Eastman Kodak Co., 102 F.3d 56, 58 (2nd Cir. 1996), cert.

denied, 520 U.S. 1274, 117 S. Ct. 2453, 138 L.Ed.2d 211 (1997) (affirming Title VII

attorneys’ fees of $753,202.99). It appears that the court neglected to include this

factor in its calculations and as a result reached an attorneys’ fees award amount which
12

was too high under the circumstances. When, as here, the amount sought by the

prevailing party is far more than one would expect for a case of its complexity and

novelty, the court should reference awards in similar cases. While we are not imposing

an absolute pay scale for Title VII cases, we do believe that it was an abuse of

discretion for the court to overlook this factor. Therefore, we will remand with

instructions for the court to reconsider its award of attorneys’ fees with attention to this

neglected factor. 

G. Bifurcation

Finally, the Defendants claim error in the district court’s refusal to bifurcate the

punitive damages aspect of the case. See Fed. R. Civ. P. 42(b). Even if accepted, this

assertion, standing alone, will not typically warrant reversal. E.g., EEOC v. HBE

Corp., 135 F.3d 543, 551 (8th Cir. 1998). This the Defendants acknowledge, yet claim

that the court’s decision not to bifurcate constituted an abuse of discretion if considered

cumulatively with the other asserted evidentiary errors. We disagree. The decision

of whether to isolate the punitive damages phase of the trial is within the sound

discretion of the trial court. We can discern no abuse of that discretion in the record

before us.

III. CONCLUSION

For the foregoing reasons, we conclude that the case should be affirmed in part

and reversed in part. With respect to the attorneys’ fees, we reverse and remand for

reconsideration by the trial court as hereinbefore discussed. Upon reconsideration of

this award, the trial court shall enter an order reflecting its decision as to this issue. In

all other respects, the decision of the district court is affirmed. For further proceedings

consistent with this opinion, the case is remanded.

 
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A true copy.

 Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.