Primitivo Soto v. Costco Wholesale Corp
2016 Mo. App. LEXIS 1025
| Mo. Ct. App. | 2016Background
- Soto, a long-time Costco assistant general manager, reported perceived discrimination against Latino employees at a different Costco warehouse to his superior (Warren) and a regional manager (McMurray) in mid-2011.
- After reporting, Soto’s relationship with Warren soured; Warren later compiled performance criticisms and shared them with McMurray.
- In November 2011 an inventory discrepancy (a missing seafood pallet) occurred; Soto initially instructed provisional counting, then sought supervisors’ guidance; the inventory entry was corrected within one day.
- Costco suspended Soto (two weeks, one unpaid) and subsequently demoted him to a lower-paid front-end manager position, costing him about $85,000 and other benefits; Soto alleged the actions were retaliatory under the Missouri Human Rights Act (MHRA).
- A jury awarded Soto $250,000; the trial court also awarded attorney’s fees, costs, and pre- and post-judgment interest. Costco appealed raising seven points; the court of appeals affirmed the judgment as modified and remanded on appellate fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for retaliation (JNOV) | Soto argued he made reports of discrimination and produced circumstantial and direct evidence that those reports contributed to suspension/demotion. | Costco argued evidence was insufficient; action was for inventory misconduct, not retaliation. | Court denied JNOV: evidence (complaints, timing, changed treatment, similar unpunished incidents, management testimony) made a submissible retaliation case. |
| Disjunctive liability instruction (suspension or demotion) | Soto sought relief for both adverse actions and court submitted both theories. | Costco argued insufficient evidence that suspension was retaliatory, so disjunctive submission was improper. | Court held both submissions had substantial evidence; instruction proper. |
| Future damages instruction / sufficiency | Soto sought compensatory damages including future losses and emotional distress. | Costco argued future damages were speculative and instruction improper (but did not preserve some claims). | Court rejected preserved challenges; unpreserved claim not reviewed. Jury award sustained. |
| Verdict form (lumping damages) | Soto used MAI-general verdict form for money damages. | Costco argued lack of separate lines allowed unauthorized future wage awards and tax obscuring. | Court held MAI general verdict required for money-only case; form proper; tax-withholding argument moot. |
| Tax/withholding concern re verdict allocation | Soto relied on standard verdict; tax consequences irrelevant to liability. | Costco argued verdict failed to segregate taxable vs. non-taxable elements, violating federal tax law. | Court found issue moot (tax rules make allocation immaterial to relief) and declined relief. |
| Remittitur / excessiveness of verdict | Soto presented lost wages (~$85,000) plus emotional distress testimony to support amount. | Costco argued $250,000 was grossly excessive. | Court denied remittitur: award not so excessive as to shock conscience given economic and emotional damages. |
| Attorney’s fees and post-judgment interest rate | Soto sought full statutory fees and costs plus pre- and post-judgment interest; requested appellate fees. | Costco challenged reasonableness of fees, some costs, and interest rate applied to fee award (argued non-tort rate). | Court affirmed fee award as within trial court discretion, modified post-judgment interest on attorney-fee award to tort-rate (Federal Funds Rate + 5%), granted appellate-fee motion and remanded to determine amount. |
Key Cases Cited
- Peel v. Credit Acceptance Corp., 408 S.W.3d 191 (Mo. App. W.D. 2013) (standard for JNOV/directed verdict review)
- Minze v. Mo. Dep’t of Pub. Safety, 437 S.W.3d 271 (Mo. App. W.D. 2014) (elements of MHRA retaliation claim; protected activity need only be reasonably made)
- Templemire v. W & M Welding, Inc., 433 S.W.3d 371 (Mo. banc 2014) (retaliation causation: complaint must be a "contributing factor")
- Turner v. Kansas City Pub. Sch., 488 S.W.3d 719 (Mo. App. W.D. 2016) (circumstantial evidence and submissibility standards for retaliation claims)
- Walsh v. City of Kansas City, 481 S.W.3d 97 (Mo. App. W.D. 2016) (retaliation: "contributing factor" standard reiterated)
- Williams v. Trans States Airlines, Inc., 281 S.W.3d 854 (Mo. App. E.D. 2009) (direct evidence vs. circumstantial evidence definitions in discrimination context)
- Bowolak v. Mercy East Communities, 452 S.W.3d 688 (Mo. App. E.D. 2014) (treatment of MHRA claims as analogous to torts for post-judgment interest on damages)