Court of Appeals of Missouri, Western District, Fourth Division
G. STEVEN COX, Appellant,
KANSAS CITY CHIEFS FOOTBALL CLUB, INC., Respondent.
Appeal from the Circuit Court of Jackson County, Missouri The Honorable James F. Kanatzar, Judge
Before Alok Ahuja, Chief Judge, Presiding, Cynthia L. Martin, Judge and Wayne P. Strothmann, Special Judge
Cynthia L. Martin, Judge
G. Steven Cox ("Cox") appeals a judgment in favor of the Kansas City Chiefs Football Club ("Chiefs") entered following a jury verdict in an age discrimination suit. Cox claims the trial court abused its discretion in the exclusion of certain evidence at trial, and committed plain error in failing to intervene during the Chiefs' closing argument. Finding no error, we affirm the trial court's judgment.
Factual and Procedural Background
Cox was hired in 1998 by the Chiefs as a maintenance manager. At the time, the Chiefs' organization was run by Carl Peterson ("Peterson"), who held the titles of President and General Manager. Peterson was responsible for all of the Chiefs' football and business operations and reported to Clark Hunt ("Hunt"), the Chiefs' Chairman and CEO.
In 2008, Peterson resigned. As a part of an effort to reorganize, restructure, and increase efficiencies, Hunt decided to divide football and business operations. Scott Pioli ("Pioli") was hired as the General Manager in January 2009 to run football operations, which were primarily concerned with building and fielding a competitive football team. Mark Donovan ("Donovan") was hired in May 2009 as the Chief Operating Officer. Donovan reported to Denny Thum ("Thum"), who had been named President. Donovan and Thum were responsible for business operations which included payroll, marketing and stadium operations.
Cox's maintenance position was in the Stadium Operations Department. Cox reported to Steve Schneider, the Director of Stadium Operations ("Schneider"), who reported to Donovan.
Schneider was terminated by the Chiefs in January 2010. Cox's responsibilities increased around that same time when massive stadium renovations were undertaken. Cox assumed responsibility for management of the hourly construction and repair employees, and was given a raise. Until Schneider was replaced, Cox reported directly to Donovan.
Cox talked to Donovan in March 2010 about making a part-time janitor, Russ Crowley ("Crowley"), a full-time employee. Donovan agreed. Cox also wanted to increase Crowley's hourly wage. Donovan would not agree to the wage increase because Crowley was already being paid a higher hourly wage than mandated by the Collective Bargaining Agreement ("CBA"), and because the move to full-time made Crowley eligible for valuable benefits. Donovan specifically instructed Cox that Crowley's pay should be left as is.
In April 2010, the Chiefs hired David Young as Vice-President of Stadium Operations ("Young") and Brandon Hamilton as Director of Facilities ("Hamilton"). Thereafter, Cox reported to Young, who reported to Hamilton, who reported to Donovan.
Through the summer of 2010, Cox was having difficulties in the performance of his additional job responsibilities, including budget compliance, scheduling, completing checklists, and turning in labor sheets for union workers on a timely basis. He was counseled periodically about his performance issues by Hamilton and Young. Cox's performance did not improve despite the efforts to counsel him.
In early September 2010, Cox emailed the personnel manager for stadium operations, Heather Coleman ("Coleman") and instructed her to "bump" Crowley's hourly wage from $14.11 to $16.50. Cox did not copy Donovan or Kristen Krug, the Chiefs' Director of Human Resources ("Krug"), on the email. Cox admitted at trial that he knew raising Crowley's pay violated Donovan's instructions. Cox also testified that he knew the CBA did not require the raise, and that he simply felt Crowley deserved a raise.
Krug learned about Crowley's pay increase in October 2010. Young was advised. Young felt he needed to recommend Cox's termination. Young informed Donovan about the raise Cox gave Crowley and recommended Cox's termination. Donovan was shocked. Donovan testified that Cox's decision to give Crowley a raise after being instructed not to do so created a "real issue of trust." Though he was reluctant to make changes during the football season, Donovan agreed termination was required given Cox's deliberate disregard for his instructions.
Cox was terminated during a meeting with Krug, Hamilton, and Young on October 14, 2010. Cox was told that he was being terminated for poor performance, and was given examples, including the unauthorized Crowley pay raise. Cox later told another Chiefs' employee, Brenda Sniezek, that he had been terminated because he gave Crowley a raise in violation of Donovan's instructions. At the time of his termination, Cox was 61 years old. His position was later filled by a 37-year old.
Cox filed a Charge of Discrimination with the Missouri Commission on Human Rights ("MCHR"). In the Charge, Cox stated that the Chiefs told him he had been fired for performance reasons, including the Crowley pay raise. Cox alleged in his Charge a single, discrete act of age discrimination on the day of his termination. When Cox filed suit following issuance of a right to sue letter, his petition similarly alleged a single, discrete act of age discrimination on the date of his termination.
Cox's case was tried to a jury. After a 14-day trial, the jury returned a verdict in favor of the Chiefs on Cox's claim of age discrimination. Cox appeals.
Cox raises three points on appeal urging an abuse of discretion in the exclusion of evidence at trial and in the denial of discovery, a fourth point on appeal claiming plain error in permitting alleged inflammatory argument by the Chiefs during closing, and a fifth point on appeal arguing that the aforesaid errors cumulate to require a new trial. We address the points in turn.
In his first point on appeal, Cox claims that the trial court abused its discretion "in ordering a blanket exclusion of testimony and evidence from and about 17 or more former employees." Cox claims that the excluded evidence was "related to [the Chiefs'] systematic elimination of older front office employees." Cox claims the excluded evidence was "highly relevant" because "it would have demonstrated [the Chiefs'] discrimination against other front office employees on the basis of their age, " and "would have demonstrated [the Chiefs'] discriminatory motives and/or intent." Cox thus sought to offer evidence about the termination of 17 other employees for two distinct reasons: (i) to establish a pattern and practice by the Chiefs' on the business side of its operations of discriminating against older employees; and (ii) as circumstantial evidence permitting an inference that the stated reason for terminating Cox was pre-textual.
(i) Standard of Review
We review a trial court's decision to exclude evidence for an abuse of discretion which Cox has the burden of establishing. Hemphill v. Pollina, 400 S.W.3d 409, 413 (Mo. App. W.D. 2013). "'A trial court has great discretion in determining whether evidence should be excluded, and its decision is given substantial deference on appeal.'" Id. (quoting Khoury v. ConAgra Foods, Inc., 368 S.W.3d 189, 195 (Mo. App. W.D. 2012)). "When reviewing for an 'abuse of discretion, ' this Court presumes the trial court's ruling is correct and reverses only when the ruling is clearly against the logic of the circumstances, is arbitrary and unreasonable, and indicates a lack of careful consideration." St. Louis Cnty. v. River Bend Estates Homeowners' Ass'n, 408 S.W.3d 116, 123 (Mo. banc 2013) (internal quotation omitted). "We will not reverse the trial court's judgment for failure to admit evidence 'unless the error materially affected the merits of the action and we find a substantial or glaring injustice.'" Hemphill, 400 S.W.3d at 413 (quoting Khoury, 368 S.W.3d at 195); see also Williams v. Trans States Airlines, 281 S.W.3d 854, 872 (Mo. App. E.D. 2009) ("Upon finding an abuse of discretion, this court will reverse only if the prejudice resulting from the improper admission of evidence is outcome-determinative.").
(ii) The Trial Court's Exclusion of Testimony From and About 17 Former Chiefs' Employees and Cox's Related Offers of Proof
The Chiefs sought an in limine ruling to exclude testimony: (i) regarding current and past employment related lawsuits and complaints filed with state or federal agencies against the Chiefs (2 former employees had age discrimination cases pending); and (ii) from or about 17 former employees of the Chiefs whom the Chiefs anticipated Cox would call to testify about the circumstances of their departures from employment. The Chiefs argued that these former employees were not sufficiently similarly situated to Cox's circumstances to be probative of his discrete claim of discriminatory termination, and that the evidence could not be separately offered to establish a pattern or practice of discrimination because Cox did not allege this form of discrimination in his MCHR Charge or in his petition. The Chiefs thus argued that the evidence was irrelevant and unduly prejudicial. On February 8, 2013, the trial court granted the Chiefs' in limine motion without explanation.
Cox sought clarification of the in limine ruling. Just before voir dire on February 11, 2013, the trial court stated:
My order granting that motion in limine pertains to you calling these 17 witnesses to testify that they were terminated, they have a case of discrimination pending against the Chiefs, and I suppose [that] they're over forty. If you want to call these witnesses for some other purpose, that's outside of my ruling on this motion in limine.
The trial court's in limine ruling was frequently revisited during the 14-day trial. Consistent with the in limine ruling, the trial court repeatedly sustained objections to discussion of the ages of, circumstances for termination of, or litigation commenced by, the 17 former employees, and often discussed the rationale for its ruling. For example, after Cox's opening statement, the trial court told the parties:
[M]y ruling for keeping the  out was that they weren't similarly situated. They worked in other departments or were fired for different reasons and at different times.
During the testimony of Brenda Sniezek, (one of the 17), the court sustained an objection to a question that would have elicited a discussion of the circumstances of her termination, and noted:
You'll have an opportunity to make an offer of proof outside the hearing of the jury to avoid any prejudicial effect of this type of testimony. . . . We've spent a great deal of time talking about this issue. . . . [My ruling] is interlocutory until I change it. You ask me to change it by coming to the bench and ask me to change it. That ruling still stands until then and you know that. . . .We've talked about this already. . . . It's not coming in ..... It's prejudicial effect outweighs any probative value. I think we've talked [about] that six different ways to Sunday.
Cox made an offer of proof through Sniezek. She testified in the offer of proof that she worked in the Customer Relations Department, and that she had been given notice the entire department was going to eliminated by the end of 2010. She felt age was becoming an issue, and that a review she received from Donovan in March 2010 was "a joke." Sniezek was terminated on January 26, 2011, and was told it was due to a reduction in force, and that her position had been eliminated. Sniezek said a 32 year old man was later hired to handle community relations.
Pioli testified in an offer of proof about the terminations of Lamonte Winston (one of the 17) and Lisa Sieburn (one of the 17). He testified that both worked on the football side of the Chiefs' operations, that each was over 40, and that each was replaced by younger employees.
Ann Roach (one of the 17) testified in an offer of proof that she was asked to retire in 2010 by Thum after 43 years of employment.
After these offers of proof, counsel engaged in extended discussion with the trial court about its in limine ruling, leading to the following announcement by the trial court:
I anticipate that plaintiff's counsel is going to make these offers of proof on all the 17 people who the Court has ruled certain areas of their testimony are not admissible: the fact that they were terminated, the fact of what their age is, and the fact that they have lawsuits pending against the Chiefs currently. And just to reiterate so the record is clear, that ruling is based upon the fact that these peoples' terminations, the people who terminated them were not decision makers in the termination of the plaintiff in this case and also because the plaintiff did not plead a pattern and practice, did not plead pattern and practice, did not plead hostile work environment, and for those reasons and other reasons that I'm not going to go into that were cited and argued by defense counsel in their motions and in their oral arguments, these witnesses are going to be excluded from those three areas of any kind of testimony that would touch upon those three areas. . . . [T]he primary thing was that you didn't plead pattern and practice and that these employees were not similarly situated to Mr. Cox.
. . . .
The reason why the court is keeping these 17 witnesses out of the case as it pertains to those three subject areas, and that is the Court heard extensive argument on this and was convinced that they were not similarly situated to the plaintiff and also that the plaintiff did not plead pattern and practice or hostile work environment, and for those reasons and other reasons that I'm not going to go into that were argued by the defense counsel, I've made that ruling. That ruling is going to stand unless I'm convinced to change my mind, and only if I tell you all that I've changed my mind. I've heard a great deal of testimony in ...