Laura Pollock (“Plaintiff’) appeals from the judgment entered on her claim under the Missouri Human Rights Act (“MHRA”), Section 213.010, et seq., RSMo. (1994), 1 against her former employer, Wet-terau Food Distribution Group (“Defendant”). On appeal, Plaintiff argues that the trial court erred in: 1) barring her from recovering back pay and benefits after the date on which she rejected Defendant’s offer of reinstatement; 2) denying her prejudgment interest; 3) dismissing her claim for damages for emotional distress as preempted by the Workers’ Compensation Law, Section 287.010, et seq.; 4) barring her from recovering attorneys’ fees after the date on which she rejected Defendant’s offer of reinstatement; and 5) taxing one-half of the filing fee and deposition costs to each Plaintiff and Defendant. Defendant cross-appeals, arguing that the trial court erred in: 1) considering time-barred allegations in finding that Plaintiff suffered a hostile work environment; 2) finding that Plaintiff was constructively discharged; 3) refusing to find that Plaintiff was estopped from asserting a claim for sexual harassment because she did not complain to Defendant prior to her resignation and refused to cooperate in the investigation; 4) holding Defendant strictly liable on Plaintiffs sexual harassment claim pursuant to a state regulation; and 5) awarding Plaintiff any attorneys’ fees as her attorney had been disbarred by the time of the award of attorneys’ fees. The parties have also filed various motions with this Court that have been taken with the case. We affirm in part, and reverse and remand in part.
FACTS
The facts viewed in the light most favorable to the trial court’s judgment,
Champion v. Frazier,
In July 1984, Plaintiff, who was 20 years old at the time, began working as a part-time order filler in Defendant’s grocery warehouse. She obtained a full-time position a few months later. About four months after she began working for Defendant, Plaintiff became aware that Jack Driskill (“Driskill”), the manager of the warehouse, had a sexual interest in her *760 when he commented that she had a “sexy body,” and told her that he wanted to go out with her. Plaintiff told Driskill that she would not go out with him, because he was her supervisor. Ignoring her rejection, Driskill continued to repeatedly pressure Plaintiff to go out with him. Each time, Plaintiff rebuffed his advances.
Driskill also began to follow Plaintiff around the warehouse. He would stand at the end of an aisle in the warehouse and watch Plaintiff while she worked. If she moved to another aisle, he would follow her. Sometimes he stood behind her, smoking a cigarette and staring at her.
Driskill gave Plaintiff numerous cards and letters in which he expressed his romantic feelings for her. The first time Plaintiff recalls receiving a written communication from Driskill, he handed her a piece of paper with his home telephone number on it and told her to call him for a drink. She refused. He gave some of these love notes to Plaintiff at work; others were mailed to Plaintiffs home. The cards and letters upset her. She was frustrated that Driskill would not leave her alone when she had repeatedly told him that she did not want anything to do with him.
Driskill also telephoned Plaintiff at home. At the time, she was living with her mother. Plaintiff told her mother that she did not want to speak with Driskill and instructed her mother to tell Driskill she was not home when he called. He sent flowers to Plaintiffs home and told her mother he was in love with Plaintiff. Dris-kill appeared at Plaintiffs home several times, despite the fact that he had never been invited nor told where she lived. On one occasion, Driskill stopped and spoke to Plaintiff, other times he would just drive by the house or would park his car on the street in front of the house.
This pattern of sexual harassment continued from the fall of 1984 until February 1986 when Plaintiff suffered an on-the-job injury to her wrist. Due to her injury, she was unable to work from February 5,1986, to July 5, 1988. In the beginning of Plaintiffs period of absence from work, Driskill continued to send Plaintiff cards and telephone her, but eventually all contact between the two ceased. She recovered from her injury and returned to work at the warehouse in July 1988.
Following her return to work, Driskill began a new round of harassment that was more intense and frequent. Driskill now acted rejected and angry toward Plaintiff. On an almost daily basis, Driskill followed Plaintiff around the warehouse and stared at her, which upset Plaintiff. Several of Plaintiffs co-workers confirmed Driskill’s stalking of Plaintiff at work.
Driskill resumed his telephone calls to Plaintiff at home. Plaintiff asked Driskill to stop calling her to no avail. Driskill also continued his onslaught of cards and letters. Again, Driskill sent some of the notes to Plaintiffs home and delivered others to her at work. Plaintiff now lived in her own apartment, and Driskill would park in the parking lot of Plaintiffs apartment complex to watch her comings and goings.
One evening, Driskill appeared at Plaintiffs door and pushed his way into her apartment. He had difficulty walking, slurred his words and had a bottle of Jack Daniels tucked in his pocket. Plaintiff told him to leave, but he refused. He was loud and called Plaintiff a “fucking bitch.” He yelled, “.. .you don’t know what you want... [b]ut I know what I want... I want to fuck your brains out.” After Plaintiff repeatedly threatened to call the police, Driskill finally left.
Another night, Plaintiff received numerous unwanted phone calls from Driskill. Driskill slurred his words and rambled incoherently during the phone calls. She described his tone as belligerent, angry and scary. Frightened and worried that Driskill would make a return visit to her apartment, Plaintiff called Rick Seaman (“Seaman”), a male co-worker, to get advice on the situation. Seaman stated that *761 Plaintiff was crying, frightened and upset during the telephone call. Plaintiff told Seaman that she did not want to report Driskill to management, because she was frightened for her job. Seaman called Driskill and told him to leave Plaintiff alone. According to Seaman, Driskill became argumentative, so Seaman ended the call abruptly.
When Plaintiff arrived at work the next morning, Driskill was waiting in the parking lot kicking around a paper cup. As Plaintiff walked by him to go to work, Driskill hollered, “You slut.” When Seaman arrived at work, he also saw Driskill kicking the cup around in the parking lot. Seaman believed that Driskill wanted to pick a fight with him, so he waited in the car for awhile to collect himself. Once in the warehouse, Driskill watched Seaman’s every move. That morning, Driskill found Plaintiff and Seaman speaking to each other and angrily informed them that if he caught the two of them talking again, “it will be your ass.” Later that day, Driskill informed Plaintiff, “If you’re going to have somebody fight your battles, he’d better be bigger than Rick.”
Driskill began to use his authority as warehouse manager to keep Plaintiff separated from other male employees, especially Seaman. Driskill enlisted the help of several line supervisors to keep Plaintiff away from male co-workers. Driskill also used the supervisors to help keep track of Plaintiff. Plaintiff assumed that Driskill instructed these supervisors to inform him whenever she called in sick, because as soon as she would do so, Driskill would immediately phone her at home, asking why she was absent from work and whether she had a date or if someone was there with her.
Zeke Davis (“Davis”), the chief union shop steward, also aided Driskiirs pursuit of Plaintiff. When Plaintiff told Davis that Driskill was harassing her, he laughed and told her to give Driskill a chance because he was “a nice guy.” One time, Davis relayed an invitation from Driskill to Plaintiff to leave work and meet him at a bar and that if she did so, Driskill would “take care of her time card.” She refused.
DrisMll’s harassment of Plaintiff continued until the day of her resignation. On June 5, 1989, Plaintiff decided she could no longer cope with the harassment and resigned. She met with the company’s personnel director, Helen Felts (“Felts”), before leaving that day. Felts asked Plaintiff why she was resigning, and Plaintiff initially told her that the warehouse was “no place for a woman” and that she was going back to school. However, Felts pressed for an explanation and asked, “Is it Jack Driskill?” Plaintiff then outlined DriskfU’s sexual harassment of her over the years. She told Felts she did not want to get Driskill in trouble by filing a complaint against him for fear of retaliation by Driskill. Plaintiff admits that this was the first time she officially reported Driskiirs harassment to Defendant.
Although Defendant appears to have had a sexual harassment policy in place during Plaintiffs tenure at the warehouse, many employees who testified at trial, including Plaintiff, stated that they were unaware of it and never saw the policy posted on the company bulletin board.
Following her resignation, Plaintiff had several meetings with Dennis Duker (“Duker”), an attorney who served as Defendant’s Director of Labor Relations. During the first meeting, Duker asked Plaintiff if she wanted Defendant to investigate her allegations of harassment against Driskill. Plaintiff stated that she did not, because she was afraid that Dris-kill would discover she was involved and retaliate against her. The next time Plaintiff met with Duker, Plaintiff advised Duker that Driskill was using drugs and alcohol at work. Driskill was well known to have violated the company rule against the use of alcohol and illegal drugs at work. Several employees of the warehouse, including Plaintiff, testified that they witnessed Driskill drinking alcohol or smok *762 ing marijuana on the premises during work hours on more than one occasion. Defendant subsequently fired Driskill for failing a drug test.
After Driskill was fired, Duker called Plaintiff to offer her reinstatement to her former position at the warehouse. Plaintiff testified that Duker orally offered her “$10,000.00 cash or my job back if I would sign a release.” Plaintiff interpreted this to mean that the offer of reinstatement was conditioned upon her signing a release of all claims against Defendant. Duker testified that he made Plaintiff two offers: “One was $10,000, provide (sic) she signed a release which would sever her employment relation with [Defendant], or number two, an unconditional offer of reinstatement without loss of seniority.” In any event, Plaintiff refused the offer of reinstatement, explaining that she felt she could not return to the warehouse even though Driskill was gone because his friends remained. She was worried that Driskill’s friends would inform him that she had returned to work at the warehouse and the harassment would begin anew.
Plaintiff timely filed a Charge of Discrimination with the Missouri Commission on Human Rights (“MCHR”) alleging that Driskill’s sexual harassment created a hostile work environment and caused her to involuntarily resign from her position with Defendant. The MCHR issued Plaintiff a Notice of Right to Sue. Plaintiff filed this lawsuit against Defendant on August 17, 1990, claiming violations of the MHRA based on hostile environment sexual harassment and constructive discharge. As relief, Plaintiff sought damages for emotional distress, as well as other actual, compensatory and punitive damages, and attorneys’ fees, costs and interest. On December 16, 1993, the trial court sustained Defendant’s Motion to Strike Plaintiffs claim for emotional distress damages on the ground that such claim was preempted by the Workers’ Compensation Law.
Following a three-day bench trial in January 1996, the trial court concluded that Defendant was liable to Plaintiff for hostile environment sexual harassment and constructive discharge. The court held that even though Plaintiff had not reported the harassment to management until the day of her resignation, Defendant was liable either because the MHRA imposes a system of strict liability or because the harassment was pervasive enough that Defendant knew or should have known of the harassment. The trial court also found that Defendant failed to have in effect a sexual harassment policy that was made known to its employees. It found that Defendant failed to post notice of the policy where it could readily be seen by employees, the policy had no guarantees against retaliation, Defendant hosted no training programs about sexual harassment and did nothing to give employees reason to believe the policy would be enforced.
The trial court awarded Plaintiff back pay, but limited the amount to the period from the date of Plaintiff’s resignation to the date on which she rejected Defendant’s offer of reinstatement. The trial court held that the offer of reinstatement was unconditional and that Plaintiff unreasonably rejected the offer. Further, the trial court refused to award punitive damages or prejudgment interest on the award. Both Plaintiff and Defendant have timely appealed this judgment.
ANALYSIS
As this case was bench-tried, we must affirm the judgment of the trial court unless there is no evidence to support the judgment, the judgment is clearly against the weight of the evidence, or the judgment erroneously declares or applies the law.
Murphy v. Carron,
We initially address Defendant’s first four points on appeal as they relate to Defendant’s liability in this case. Next, we consider Plaintiffs claims of error which primarily challenge the relief awarded by the trial court. Finally, we address the parties’ contentions with respect to attorneys’ fees and costs.
I. DEFENDANT’S APPEAL
A. Continuing Violation Theory
In its first point of error, Defendant disputes the trial court’s finding of liability on Plaintiffs sexual harassment claim, arguing initially that the trial court erroneously considered time-barred allegations of harassment in support of this finding.
A victim of discrimination asserting claims based on the MHRA must file an administrative charge with the MCHR within one hundred and eighty (180) days of the discriminatory act and must bring a civil action no later than two years after the alleged cause occurred. Sections 213.075.1 and 213.111.1. Any act of discrimination occurring outside this 180-day period is considered “merely an unfortunate event in history which has no present legal consequences.”
United Air Lines, Inc. v. Evans,
One such equitable exception is the continuing violation theory, under which a victim of discrimination may pursue a claim for an act occurring prior to the statutory period, if she can demonstrate the act is part of an ongoing practice or pattern of discrimination by her employer. Id. A plaintiff must establish two things to take advantage of the continuing violation theory. Id. First, she must demonstrate that at least one act occurred within the filing period. Id. Further, she must establish that the harassment is a series of interrelated events, rather than isolated or sporadic acts of intentional discrimination. Id. at 755. Once the plaintiff has alleged sufficient facts to support the use of the continuing violation theory, the 180-day filing period becomes irrelevant. She may then offer evidence of the entire continuing violation. Id.
Defendant argues that Plaintiff failed to establish a continuing violation in this case, and that therefore the trial court improperly considered events occurring 180 days prior to the filing of the Charge of Discrimination on May 16, 1989. We disagree.
There is no question that Plaintiff established a continuing violation in this case. “As in most claims of hostile work environment harassment, the discriminatory acts were not always of a nature that could be identified individually as significant events; instead, the day-to-day harassment was primarily significant, both as a legal and as a practical matter, in its cumulative effect.”
Draper v. Coeur Rochester, Inc.,
Again, Plaintiff must also prove that the violation continued into the limitations period.
Gipson v. KAS Snacktime Co.,
Defendant also contends the trial court erroneously considered evidence of harassment occurring outside the workplace in its finding of liability on Plaintiffs sexual harassment claim. However, the fact that some of the incidents occurred outside of the workplace does not relieve Defendant of liability. Defendant cites one case,
Candelore v. Clark County,
To the contrary, courts frequently consider incidents occurring outside the workplace in determining whether the work situation was intolerable.
E.g., Meritor Savings Bank v. Vinson,
Finally, Defendant claims the trial court erred in considering any allegations of harassment from Plaintiffs first period of employment, because the break in employment cut off the continuing violation. We disagree. Although the break in employment may have cut off Defendant’s liability for the continuing violation, evidence of harassment occurring during Plaintiffs first period of employment would still be admissible as background evidence relevant to the question of whether Plaintiffs work environment during her second period of employment was intolerable.
West v. Philadelphia Elec. Co.,
Thus, the trial court did not err in finding a continuing violation in this case. Point denied.
B. Constructive Discharge
Next, Defendant argues that Plaintiff cannot claim she was constructively discharged because she jumped to the conclusion that Defendant would not take action to stop Driskill’s harassment and because she quit without giving Defendant an opportunity to remedy the situation. In support of this argument, Defendant relies heavily upon the fact that Plaintiff failed to complain of Driskill’s harassment to management prior to her resignation.
An employer constructively discharges an employee when the employer “deliberately renders the employee’s working conditions intolerable and thus forces [her] to quit [her] job.”
Bell v. Dynamite Foods,
*765
To act reasonably, an employee has an obligation not to assume the worst and not to jump to conclusions too quickly.
Tidwell v. Meyer’s Bakeries, Inc.,
Here, the trial court found that Plaintiff faced working conditions that a reasonable person would find intolerable, and further that she acted reasonably in resigning, despite her failure to complain of the harassment or take steps to internally resolve the situation prior to resigning. The evidence adduced at trial supports this finding. For years, Plaintiff suffered daily sexual harassment by Driskill, the top-ranking manager at the warehouse. He harassed her not only at work, but also at home. As the years passed, the harassment became more severe and threatening in nature. In fact, Plaintiff was so intimidated by Driskill that she indicated on the day of her resignation that she did not want to participate in any investigation into the matter out of fear of retaliation by Driskill. Further, a reasonable person confronted with the situation Plaintiff faced at the warehouse would have reason to believe that she had nowhere to turn for help with this situation. First, we note that this case arose in the late 1980’s, an era when society was much less cognizant of workplace sexual harassment. Thus, Plaintiff may have been unaware that Defendant had a legal duty to stop Driskill’s harassment. Further, Plaintiff asked Driskill, who again was the general manager of the warehouse, to leave her alone on numerous occasions to no avail. There is evidence that Driskill recruited other managers to aid in his stalking of her. When she reported the situation to her union shop steward, he trivialized the situation and told her to “give Driskill a chance.” Also, there is evidence that Defendant failed to implement an adequate sexual harassment policy and that few employees were aware of its existence. Given that Defendant failed to make its employees aware it had instituted internal procedures to remedy any complaints of sexual harassment, it should not now complain that Plaintiff failed to take advantage of such procedures. Even if Plaintiff had been aware of Defendant’s sexual harassment policy, she might have reasonably concluded that company rules were not enforced against Driskill, given that he often flouted the company rule against drug and alcohol use with impunity.
All of these circumstances, viewed in their totality, support the trial court’s finding that Plaintiff was faced with intolerable working conditions and that she acted reasonably in resigning, despite her failure to *766 complain. Thus, we cannot say the trial court erred in imposing liability on Plaintiffs constructive discharge claim. Point denied.
C. Strict liability in supervisory sexual harassment claims
Defendant’s next two points of error are interrelated. First, Defendant contends that Plaintiff is estopped from seeking damages on her sexual harassment claim, because in neglecting to report the harassment until the day of her resignation, she failed to afford Defendant an opportunity to remedy any harassment. Second, Defendant claims that the trial court erroneously subjected it to strict liability on Plaintiffs sexual harassment claim in accordance with a state regulation. The resolution of both issues turns on whether an employer is strictly hable for supervisory sexual harassment pursuant to that state regulation.
The trial court held Defendant strictly liable for Driskill's sexual harassment of Plaintiff under 8 C.S.R. 60-3.04(17)(c), a state regulation promulgated by the MCHR. Section 8 C.S.R. 60-3.04(17)(c) provides:
“[a]n employer ... is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence.”
(emphasis added.) Defendant, relying on
Williamson v. Arvin Industries, Inc.,
Under the federal analysis of administrative regulations, an interpretive regulation is persuasive, but not binding on courts, whereas a legislative regulation is binding. Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law Treatise § 6.3 (3d. ed.1994). The line of demarcation between the two types is whether the legislature, in its statutory grant of authority, intended the agency to have broad rule-making power. Kenneth Culp Davis, Administrative Law Text, § 5.03, p. 128 (3d. ed.1972). Those regulations promulgated pursuant to a statutory grant of authority are considered of the legislative variety, and “[a] court may no more substitute its judgment as to the content of a legislative rule than it may substitute its judgment as to the content of a statute.” Davis, p. 126. We see no sound reason to afford the administrative agencies of this State any less deference.
Although the U.S. Supreme Court in a 5-to^4 decision in
Meritor Savings Bank v. Vinson, 477
U.S. 57,
In contrast, the MCHR regulation is clearly of the legislative variety. Our state legislature, in the same legislation that created Plaintiffs statutory cause of action, granted the MCHR the broad authority to “adopt, promulgate, amend, and rescind suitable rules and regulations to carry out the provisions of this chapter and the policies and practices of the commission in connection therewith.” Section 213.030.1(6). In so doing, the legislature obviously intended that the MCHR have the power to issue legislative regulations that, as discussed above, are binding on courts.
As Defendant has not challenged the procedure used to promulgate 8 C.S.R. 60-3.04(17)(c), nor alleged that it is constitutionally infirm, we are not at liberty to ignore 8 C.S.R. 60-3.04(17)(c) at Defendant’s behest. We cannot apply federal standards when the state agency charged with the duty of promulgating regulations to further the goals of the MHRA has adopted a contrary standard.
The language of the regulation is unambiguous. Employers are liable for any sexual harassment perpetrated by their supervisors regardless of principles of notice or fault. Because this case involved supervisory sexual harassment, the trial court correctly applied 8 C.S.R. 60-3.04(17)(c) and held Defendant strictly liable regardless of whether it knew or should have known of DriskilTs harassment. 3
Defendant next claims that even if it is strictly hable for the harassing acts of its supervisors, it is entitled to assert various affirmative defenses, namely the estoppel defense outlined in
Torris v. Pisano,
We rely on the same principles of construction when interpreting regulations that we use to interpret statutes.
Trumble v. Director of Revenue,
Points denied.
II. PLAINTIFF’S APPEAL
A. Defendant’s Motion to Dismiss Plaintiffs Appeal
At the outset, we address Defendant’s Motion to Dismiss Plaintiffs appeal.
First, Defendant argues that Plaintiffs statement of facts violates Rule 84.04(c) in that it misstates facts and omits material facts adverse to Plaintiff. We have carefully reviewed the Statement of Facts contained in Plaintiffs opening brief and find it to be relatively fair and free of argument. We therefore decline to invoke the harsh remedy of striking Plaintiffs brief.
Willis v. Most Worshipful Prince Hall,
Next, Defendant argues that Plaintiff fails to mention the standard of review in her brief. However, Plaintiff was not required to state the standard of review at the time she filed her opening brief in November 1998. Rule 84.04(e), which requires the parties to identify the applicable standard of review, went into effect in January 1999, two months after Plaintiff filed her opening brief. Contrary to Defendant’s assertion, there was no formal requirement that the parties identify the appropriate standard of review prior to the promulgation of Rule 84.04(e). Although it would have been helpful had Plaintiff provided such information to us, she was not obligated to do so.
Finally, Defendant argues that several of Plaintiffs points relied on violate the “wherein and why” requirement of Rule 84.04(d). We hereby grant Plaintiffs motion to file an amended brief in which she corrects any deficiencies in her Points Relied On. Thus, Defendant’s argument is moot.
Defendant’s Motion to Dismiss Plaintiffs appeal is denied.
B. Preemption of Emotional Distress Claim by Workers’ Compensation Act
We now turn to Plaintiffs assertion that the trial court erroneously struck her claim for emotional distress damages as preempted by the Workers’ Compensation Law, Section 287.010, et seq.
We must first consider Defendant’s claim that Plaintiff failed to properly preserve this issue for our review. 4 Defendant notes that the trial court struck Plaintiffs emotional distress claim from the pleadings in December 1993, a little over two years prior to the date of trial. Defendant contends that because Plaintiff made no attempt to renew her objection to the court’s ruling on the motion to strike at trial, the claim is not preserved. We disagree.
Pretrial rulings striking or dismissing pleadings become appealable when the court enters final judgment in the case, unless certified for immediate appeal, and do not need to be raised at trial to be preserved. Plaintiff was not required to file a motion for new trial to preserve the issue for review because this case was bench-tried. Rule 78.07.
Turning to the merits of Plaintiffs argument, the exclusivity provision of the Workers’ Compensation Law provides:
The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee... at common law or otherwise, on account of such accidental injury or death, ex *769 cept such rights and remedies as are not provided for by this chapter.
Section 287.120.2 (RSMo.Cum.Supp.1992).
In construing statutes, our goal is to ascertain the intent of the legislature, considering the plain meaning of the words used, and to give effect to that intent if possible.
State ex rel. Baumruk v. Belt,
The Workers’ Compensation Law has long provided remedies for mental conditions suffered while acting within the scope of employment.
Wilhite v. Hurd,
Moreover, the MHRA expressly states that any law inconsistent with it “shall not apply.” Section 213.101. The plain and ordinary meaning of these words is that any prior law inconsistent with the provisions of the MHRA does not affect the rights and remedies created by the MHRA.
This idea is further supported by recent case law. Since at least 1992, federal courts have held that the Workers’ Compensation Law does not preempt claims of emotional distress under the MHRA.
Varner v. National Super Markets, Inc.,
Defendant finds significance in the fact that
Varner, Karcher, Gruben
and
Sullivan
were decided after Congress amended Title VII in 1991 to specifically allow victims of discrimination to recover damages for emotional distress. Defendant’s argument is not well taken as each of these cases dealt with preemption under the MHRA, not Title VII. Further, the remedy provision of the MHRA is modeled after the remedy provision of the Fair Housing Act, 42 U.S.C. Section 3613(c)(1), rather than that of Title VII. Victims of housing discrimination have always been allowed to recover damages for emotional distress under the remedy provision of the Fair Housing Act, which, like the MHRA, allows the victim to recover “actual damages.”
Smith v. Anchor Bldg. Corp.,
The cases Defendant cites for the proposition that the Workers’ Compensation Law preempts claims for emotional distress are inapposite.
5
All of these cases
*770
involve common law claims for intentional or negligent infliction of emotional distress rather than claims under the MHRA. Although Missouri courts have held such common law claims to be barred by the exclusivity provision of the Workers’ Compensation Law, they have not extended the bar of the exclusivity provision to cases under the MHRA.
Varner,
Finally, Defendant makes several arguments based on a 1992 amendment to the Workers’ Compensation Law that acts to exclude from coverage any mental injuries resulting from “disciplinary action, work evaluation, job transfer, layoff, demotion, termination or any similar action taken in good faith by the employer.” Section 287.120. First, based on the concept of expressio unius exclusio alterus (the expression of one thing is the exclusion of another), Defendant argues that because the legislature expressly excluded mental injuries resulting from good faith acts, injuries resulting from bad faith acts, such as harassment or discrimination, were intended to remain preempted. In the alternative, Defendant argues that even if we believe Section 287.120 acts to presently exclude claims such as Plaintiffs from coverage under the Workers’ Compensation Law, it obviously affected a change in the law in 1992 and that prior to that time, such claims were included within coverage of the Workers’ Compensation Law. Thus, Defendant contends that since Plaintiffs claim arose prior to the 1992 change in the Workers’ Compensation Law it was preempted at the time it arose.
The flaw in the reasoning of both arguments is that, under our analysis above, the Workers’ Compensation Law never preempted claims for mental injuries under the MHRA. Thus, Plaintiffs claim for emotional distress damages was never preempted, not even prior to 1992, because it was brought under the MHRA which acts as an exception to the Workers’ Compensation Law. The trial court erred in holding otherwise.
Nonetheless, Defendant contends that such error was harmless, because in any event the trial court made a finding of no causation on this issue. Defendant argues that the trial court’s statement that it did not conclude from the testimony of Plaintiffs expert that “the harassment caused the depression [the expert] found [Plaintiff] to be suffering from” is a finding of no causation on the issue of emotional distress. We find this argument untenable. We cannot read a finding on the issue of causation into the trial court’s action striking the claim for emotional distress damages as preempted.
The trial court’s error in striking Plaintiffs emotional distress claim was clearly prejudicial. Because of this ruling, she was not allowed to present evidence of any emotional distress she suffered except to the extent that such evidence was relevant to whether Plaintiffs work environment was intolerable. The case must be remanded to allow Plaintiff to proceed on her claim for emotional distress damages.
We now turn to the remaining points on appeal, all of which raise various objections to the relief awarded by the trial court.
C. Effect of Offer of Reinstatement on Back Pay Award
First, Plaintiff takes issue with the fact that the trial court barred her from recovering back pay and benefits after the date on which she rejected Defendant’s offer of reinstatement.
In general, a victim of constructive discharge is entitled to back pay from the date of her discharge until the date of final judgment.
EEOC v. Massey Yardley Chrysler,
Plaintiff argues that the trial court erred in finding that Defendant’s offer of reinstatement was unconditional and that her rejection of it was unreasonable. First, Plaintiff claims that the two witnesses who testified on Defendant’s behalf on this issue gave conflicting accounts of the terms of the offer of reinstatement. According to Plaintiff, although one witness stated that he had made an unconditional offer of reinstatement, the other conditioned the offer upon Plaintiffs signing a release. Further, Plaintiff contends that if there was any valid reason for her to Reject Defendant’s offer of reinstatement, she was free to do so without a suffering a diminution of her back pay award. She claims that because returning to the warehouse would have exacerbated her post-traumatic stress disorder, and more importantly, would have revealed her whereabouts to Driskill, her rejection of the offer of reinstatement was reasonable.
In making these arguments, Plaintiff essentially asks us to review these questions de novo. However, in a bench-tried case, we review the judgment of the trial court only to see if it is supported by substantial evidence. Murphy v. Carrón, supra.
The trial court determined that Duker’s offer to Plaintiff of $10,000, if she would sign a release, or reinstatement to her previous job at the warehouse, was unconditional. The resolution of this issue turned on a conflict between the testimony of Plaintiff and two defense witnesses. Conflicts in evidence are for the trial court to resolve,
Kennedy v. Jasper,
Also, the trial court clearly considered Plaintiffs various explanations for rejecting Defendant’s offer of reinstatement and found them unreasonable. It is the duty of the trial court to weigh the evidence to determine whether a reasonable person would have rejected the offer.
Fiedler v. Indianhead Truck Line, Inc.,
Thus, the trial court correctly limited the award of back pay to the period commencing from the date of Plaintiffs constructive discharge through the date on which Plaintiff rejected Defendant’s offer of reinstatement. Point denied.
D. Prejudgment Interest
Plaintiff next argues that the trial court erred in denying her prejudgment interest. Although the MHRA does not explicitly authorize prejudgment interest, it is modeled after federal anti-discrimination laws, and thus federal law on the issue is strong persuasive authority.
Swyers v. Thermal Science, Inc.,
Defendant likens this case to
Philipp,
III. ATTORNEYS’ FEES AND COSTS A. Attorneys’Fees
Both parties complain about the trial court’s award of attorneys’ fees to Plaintiff. The MHRA explicitly authorizes the trial court to award reasonable attorneys’ fees to the prevailing party. Section 213.111.2. However, Defendant argues that, in this case, the trial court erred in awarding any fees to Plaintiffs attorney, Michael Hoare, because he was disbarred prior to final resolution of the case. Defendant contends that disbarred attorneys are not entitled to recover fees incurred prior to disbarment.
There are two schools of thought on the issue of a disbarred attorney’s entitlement to recover fees for work performed prior to his disbarment. The first theory suggests that when an attorney is disbarred he, through his own misconduct, voluntarily abandons any pending cases and thus should not be allowed to recover for fees incurred prior to disbarment.
See, Kimmie v. Terminal R.R. Ass’n of St. Louis,
The leading Missouri case on this issue, Kimmie v. Terminal R.R. Ass’n of St. Louis, supra, adopted this approach. In Kimmie, an attorney agreed to represent an injured man in a suit against his employer on a contingent fee basis. The attorney tried the case two times, but each time, the case was reversed and remanded by the Court of Appeals. Id. at 1198. During settlement discussions pending the third trial, the attorney was suspended from the practice of law. Id. The client retained the services of a new attorney who successfully settled the case. Id. The original attorney then made a claim against the settlement proceeds based on contract and quantum meruit theories. Id. The court denied recovery on either basis, stating that by virtue of his own misconduct, the attorney could not continue to serve as plaintiffs counsel. Id. at 1201. The court considered the attorney’s suspension to be a voluntary abandonment of the contract of employment by which he forfeited any right to payment for services rendered previous to disbarment. Id.
Only one other case in Missouri appears to have addressed the issue of whether a
*773
disbarred attorney can recover fees.
Sympson v. Rogers,
Neither Kimmie nor Sympson dictates the result in this case. Contrary to the facts in Kimmie, Hoare seeks to recover from an adverse party, not his own client, and Plaintiff has indeed agreed to his recovery of fees. Contrary to the facts in Sympson, Hoare is not seeking to recover from a successor attorney, but again from an adverse party. Thus, the precise issue presented in this case is unanswered in Missouri. Although Missouri courts have not revisited the issue since the Kimmie and Sympson decisions, another theory as to the recovery of fees by disbarred attorneys has developed in other jurisdictions and was cited with favor by the Sympson court.
The second theory is that disbarment acts as an automatic termination of employment by operation of law, much like death or disability. Under this theory, an attorney is allowed to recover for the reasonable value of services rendered prior to disbarment so long as he was not disbarred for misconduct associated with the case.
Rutenbeck v. Grossenbach,
We find the second line of cases to be well reasoned. If the rule were otherwise, the imposition of discipline by the state bar would also have the unintended effect of retroactive monetary punishment. “The purpose of disciplinary action is not to punish the attorney, but rather to protect the public.”
In re Sabath,
Attorney Hoare does not seek to recover directly from Plaintiff, and his recovery of fees will not diminish any award to Plaintiff. Further, he was disbarred for reasons wholly unrelated to this case. We conclude that in this situation, Plaintiffs attorney is not precluded from recovering attorneys’ fees by virtue of his disbarment. Thus, the trial court did not err in awarding attorneys’ fees.
Next, Plaintiff argues that the trial court erred in limiting the award of attorneys’ fees, like that of back pay, to those fees incurred prior to the date on which Plaintiff unreasonably rejected Defendant’s offer of reinstatement. We agree. Although as noted above, back pay liability should cease at the time of an unreasonable rejection of an unconditional offer of reinstatement, an award of attorneys’ fees should not.
*774
In general, counsel for the prevailing plaintiff should be compensated for all time reasonably expended on a matter.
Hensley v. Eckerhart,
Plaintiff also complains that in calculating the attorneys’ fee, the trial court used Mr. Hoare’s 1989 billing rate, the rate applicable at the time Mr. Hoare rendered the services, rather than the billing rate in effect at the time the trial court rendered judgment. Plaintiff cites to several cases from the federal courts for the proposition that the current rate is to be used.
See, e.g., Missouri v. Jenkins,
The determination of a reasonable attorneys’ fee is in the sound discretion of the trial court.
H.S. v. Board of Regents,
B. Award of Costs
Plaintiff next argues that the trial court erred in taxing one-half of the filing fee and one-half of the cost of depositions to Plaintiff and Defendant. Plaintiff contends that her award was inadequate because it did not reimburse her for all recoverable costs and that the award to Defendant was improper because the action was not frivolous.
With respect to the award of costs to Defendant, Section 213.111.2 provides that “a prevailing respondent may be awarded court costs and reasonable attorneys fees only upon a showing that the case is without foundation ” (emphasis added). Defendant was not a prevailing party and the case clearly was not “without foundation” because the trial court found in favor of Plaintiff on both of her theories of liability sexual harassment and constructive discharge. Accordingly, the award to Defendant was improper, and we reverse the trial court’s judgment to the extent that it attempts to order Plaintiff to bear any of Defendant’s deposition expenses.
Plaintiff also complains that she was only allowed to recover one-half of the filing fee and one-half of the deposition costs, even though she had provided the trial court with evidence of various other expenses she incurred during the course of this litigation. Plaintiff appears to believe that once she is determined to be the prevailing party and entitled to an award for costs, the trial court must award the total costs of suit. However, Section 213.111.2 provides that the trial court “may award court costs... to the prevailing party.” Thus, pursuant to Section 213.111.2, the amount of costs to be award *775 ed is within the discretion of the trial court. As we have been given no reason why the award of one-half of the filing fee and deposition costs was an abuse of the trial court’s discretion, we affirm that part of the judgment of the trial court awarding costs.
Plaintiff has filed a Verified Motion for Attorneys’ Fees for work her counsel has performed in connection with this appeal. Plaintiff has also filed a Verified Motion for Costs seeking reimbursement for expenses associated with this appeal. Given that we are remanding the case for a variety of reasons, including the recalculation of attorneys’ fees and costs, it would be premature to grant either
of
Plaintiffs Motions at this point.
Wentz v. Industrial Automation,
SUMMARY
In summary, we affirm the trial court’s judgment against Defendant on Plaintiffs claims of constructive discharge and sexual harassment. We also affirm the trial court’s judgment awarding attorneys’ fees. We remand the case for a recalculation of reasonable attorneys’ fees incurred up to the date of final judgment, prejudgment interest and costs in accordance with the principles set forth in this opinion. Further, that part of the trial court’s judgment striking Plaintiffs claim for emotional distress is preempted by the Workers Compensation Act is reversed, and the case remanded to allow Plaintiff to proceed with this claim. Plaintiffs Motion to File an Amended Brief is granted. Defendant’s Motion to Dismiss Plaintiffs Appeal is denied. Plaintiffs Motions for Attorneys’ Fees and Costs on Appeal are dismissed as premature.
Notes
. All statutory references herein are to RSMo. (1994), unless otherwise noted.
. In two recent cases, the U.S. Supreme Court has altered the position adopted by the
Mentor
majority that employers are not automatically liable for the sexual harassment of their supervisors. In
Faragher v. City of Boca Raton,
. Defendant urges rejection of strict liability noting that in September 1999, the MCHR, in an appearance before the Joint Committee on Administrative Rules, announced an Emergency Amendment to 8 C.S.R. 60-3.04(17)(c), deleting the strict liability language. However, in adopting this new rule, which instructs the trier of fact to employ federal standards of liability, the Commission has continued to assert before the legislature its authority to establish principles of liability. The legislature was and is, of course, free to invalidate either regulation pursuant to Section 536.028 RSMo. (Cum.Supp.1998) if the MCHR exceeded its statutorily granted scope of authority. It has not done so. Defendant also proposes retroactive application of the new Emergency Rule. In doing so, it implicitly acknowledges the agency’s authority to establish principles of liability governing sexual harassment, but ignores the fact that an agency cannot promulgate in 1999, substantive regulations to govern conduct that occurred in 1989.
See Declue v. Director of Revenue, State of Mo.,
. Defendant reiterated this argument in its Motion to Dismiss Plaintiffs Appeal.
.
Goodrum v. Asplundh Tree Expen Co.,