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Kerr v. Missouri Veterans Commission

Court of Appeals of Missouri, Western District, First Division

October 31, 2017

PATRICIA ROWE KERR, Respondent,
v.
MISSOURI VETERANS COMMISSION, et al., Appellants.

         Appeal from the Circuit Court of Cole County, Missouri The Honorable Jon E. Beetem, Judge

          Before: Cynthia L. Martin, Presiding Judge, and James Edward Welsh and Karen King Mitchell, Judges

          Karen King Mitchell, Judge

         The Missouri Veterans Commission, Executive Director Larry Kay, the Missouri Department of Public Safety, and the State of Missouri (collectively "MVC") appeal from a judgment, entered upon a jury verdict, finding them liable for both sex and age discrimination, as well as retaliation, against former employee Patricia Rowe Kerr, all in violation of the Missouri Human Rights Act (MHRA), [1] for which the jury awarded Kerr both compensatory and punitive damages totaling $2, 875, 000. MVC raises five points on appeal, arguing that (1) Kerr failed to exhaust her administrative remedies regarding her claim of retaliation (Point I), (2) the court erred in excluding certain evidence (Points II-IV), and (3) the court erred in admitting "me too" evidence offered by Kerr (Point V). Finding no error, we affirm. We also grant Kerr's motion for appellate attorney's fees, which was taken with the case.

         Background[2]

         Kerr began working with veterans as a volunteer in 2003. She helped create several Support Your Troops events in Jefferson City, Missouri, to connect military families to each other and to support resources. Following these events, Kerr was contacted by MVC and asked if she would help out with one of its events-a Supermarket of Veterans Benefits. After this event, both the Executive Director (Ron Taylor) and the Deputy Director (Hal Dulle) of MVC asked Kerr if she would consider working for MVC. Taylor and Dulle wanted to create an outreach position through MVC to both educate and help new veterans navigate the benefits system and to seek out and locate underserved veteran populations. Kerr agreed and began working for MVC as a Veterans Benefits Specialist on July 1, 2004.

         Taylor and Dulle advised Kerr that they wanted to create an ombudsman position within MVC and enlisted her help in doing so. Through Kerr's assistance, MVC was able to create a permanent ombudsman position at MVC and offered the position to Kerr. The ombudsman position encompassed two roles: (1) directing Operation Outreach, which worked directly with veterans to educate and advocate for them regarding available benefits and resources and (2) working with legislators, communities, and state agencies to provide education and advocate on behalf of veterans. By all accounts, Kerr excelled at both roles and received awards and recognition both locally and nationally.

         In October 2006, Taylor retired and Dulle was promoted to Executive Director of MVC; at the same time, Larry Kay was hired as Deputy Director. Just after Kay was hired, he told Kerr there were "generational differences" between them and asked Kerr when she planned to retire. In June 2007, Kerr was engaged in a fundraising effort for a veteran's family whose infant child needed heart surgery. On June 28, 2007, five days after praising Kerr's performance to a Brigadier General in the Army, Kay placed Kerr on a performance improvement plan and issued her a conditional letter of employment purportedly based upon acts of insubordination.[3] The letter stated:

This is being taken due to your insubordination, specifically your failure to comply with your supervisor's directive not to proceed with the fundraising effort prior to clarification from the Missouri Veterans Commission's accountant and your failure to stop the fundraising effort after being questioned by a subordinate regarding concerns of the legality and propriety of the situation.

         Kerr's subordinate had questioned whether it was legal for MVC to engage in fundraising for individual service members. Kerr responded that, after reading the MVC enabling statute, discussing the matter with the Commissioners of the MVC and two different executive directors, it was her understanding that it was, in fact, legal to do so. Kay subsequently advised Kerr not to proceed with the effort until she had discussed the legality of the matter with the fiscal and administrative manager for MVC (who was also the sister-in-law of Kerr's subordinate).[4] Though Kerr made multiple attempts to contact the fiscal and administrative manager, she was unable to reach her and never received any response to messages left. After receiving the conditional letter of employment, Kerr was forced to return $13, 000 in donations she had collected on behalf of the family to the original donors. When Kerr asked Kay why she was being disciplined based upon an alleged failure to comply with a subordinate's request, Kay advised her that he wanted her to experience "shock and awe."

         The following month-August 2007-Dulle asked Kerr to represent MVC at the Governor's Annual Ham Breakfast. After learning of Dulle's request, Kay approached Kerr in the parking lot, demanding to know why Dulle chose Kerr rather than Kay. Kay advised Kerr that she would not be attending because she was on "triple secret probation" (presumably referencing her conditional employment letter) and that Kay and another male staff member would be attending instead.

         Shortly thereafter, it was announced that 1, 100 Missouri National Guard members, including Kay, would be deployed to Kosovo in the KFOR-10 peacekeeping mission. Accordingly, from January 2008 through May 2009, Kay took a leave of absence from MVC to serve as the commanding officer in the KFOR-10 peacekeeping mission in Kosovo.

         In August 2008, while Kay was deployed, Dulle stepped down as Executive Director and Kay was appointed as the new Executive Director. But because Kay was still deployed, MVC appointed an interim Executive Director until Kay's return. Kay officially took over the Executive Director position on June 1, 2009.

         Upon Kay's return, he advised Kerr that he wanted to split her job into two positions: State Veterans Ombudsman and Director of Operation Outreach. Kay advised Kerr that she needed to select which of the two positions she wanted to retain. Though Kay told Kerr that she had the option to choose which position to take, he frequently and repeatedly pressured her to choose the outreach position. Kerr disagreed with Kay's decision to split the position, believing that the legislature intended for there to be a single position encompassing both roles. Kay became angry with Kerr and called her on a regular basis over the course of the next month to berate and intimidate her into taking the outreach position. Many of Kay's abusive phone calls to Kerr were witnessed by Kerr's husband, coworkers, and others. Finally, on July 2, 2009, Kerr relented and accepted the outreach position after seeking and receiving assurances from Kay that her job would be secure. (Kerr was concerned about losing her job because she was the primary wage-earner in her household and her husband had serious medical issues from a prior debilitating car accident.)

         As part of Kerr's newly divided position as Director of Operation Outreach, Kay wanted her to establish a listening post program. The listening posts were meant to serve as town-hall-like meetings, where MVC went out to the communities and literally listened to the veterans' needs and provided them with experts to talk about jobs, access to health care, and education. Kerr arranged and hosted 21 listening posts throughout the state in a span of six weeks from September 14, 2009, through October 28, 2009. On October 8, 2009, the morning of a listening post in Cape Girardeau, Kerr was having breakfast with an MVC employee when Kay approached and appeared very angry. The other employee left and Kay sat down with Kerr; Kay's fists were clenched, his face was red, and his body was tense. Kay told Kerr he was going to fire her on October 28, the date of the last scheduled listening post. He said, "If you think you can take me on, go ahead. The governor is not going to choose between you and me, a returning war hero." Kay advised Kerr to "aggressively look for another job." When Kerr asked what was wrong, Kay just said, "I want you to aggressively look for another job, but I don't want you to talk to anyone else outside the Commission."

         On the day of the last listening post, Kay angrily approached Kerr while she was getting a drink and said, "We might as well just get this over with and go out back." This frightened Kerr, as she did not understand why Kay was so angry with her.

         On November 10, 2009, a meeting of the MVC Commissioners was held, and Kerr prepared an outreach report for the meeting and attended the open session. After the open session, the Commissioners went into closed session and Kerr went back to her office. At 4:00 p.m., Kay returned from the closed session and asked Kerr to come into his office, along with Bryan Hunt, the deputy director. Kay then handed Kerr a letter advising her that she was being terminated, effective at 5:00 p.m. that day. Kay told Kerr that she needed to clean out her office the next day, which was Veterans' Day. On the same day, Kay also terminated Anne Payne, a woman over forty years old, who had been the superintendent of homes. When Kerr asked Kay what she should tell people when asked why she was terminated, Kay advised, "Tell them it is for budget cuts and restructuring."

         Following her termination, Kerr attempted to stay involved in helping veterans and made efforts to network in hopes of finding another job in the same field. In January or February of 2010, Kerr learned that Dr. Marjorie Sable, the Dean of the School of Social Work at the University of Missouri, was planning a veterans outreach conference, scheduled for November 2010, and Kerr joined the planning committee. Kerr suggested that Dr. Sable involve MVC in the planning committee and the conference.

         On May 6, 2010, Kerr filed a charge of discrimination with the Missouri Commission on Human Rights (MCHR), alleging age and sex discrimination against MVC, Kay, and Hunt.

         On May 24, 2010, Kerr filed an amended charge of discrimination against MVC, alleging retaliation in addition to age and sex discrimination as a result of a phone call she received that morning from Dr. Sable. In the phone call, Dr. Sable asked Kerr to step down from the veterans conference planning committee, as Kay had told Dr. Sable that, because of pending litigation, if Kerr were on the planning committee, MVC would withdraw its support for the conference.

         After receiving right-to-sue letters in response to her original and amended charges of discrimination, Kerr filed suit on July 1, 2011, against MVC and Kay (later adding the Department of Public Safety and the State of Missouri as defendants), alleging violations of the MHRA by age and sex discrimination, as well as retaliation.

         In October of 2011, Kerr, along with Colonel Michael Fayette, attended a public meeting about veterans' issues in Odessa, Missouri, on behalf of the Forty and Eight, a group belonging to the American Legion. Kay was speaking at the event, and when he finished, he opened up the floor to the audience for questions. Kerr raised her hand to ask a question; Kay called on all the men, then made some more statements before seeking suggestions from the audience. Kerr raised her hand again; Kay again called on everyone but Kerr. When Kerr was the last person with her hand raised, Kay finally acknowledged her, and Kerr offered a helpful suggestion, prompting questions from those around her. Shortly thereafter, Kay stated, "Guys, this lady has a lawsuit against me and I'm not comfortable and I'm leaving, " and he walked out. Kerr was embarrassed and humiliated.

         During the trial on Kerr's petition, she presented evidence of derogatory statements made by both Kay and Hunt, indicating things such as a need to "weed out the old people, " "women can't do men's jobs, " and "we don't like women with white hair." She also presented evidence that, during Kay's tenure as Executive Director of MVC, other women were removed from authority positions and replaced by men. Kerr also introduced evidence refuting Kay's assertion that her position was cut solely as a result of budget constraints, such as the facts that, during the same time frame, Kay provided over $76, 000 in raises to three male employees, there was a vacant position at MVC with an appropriated salary of $74, 393, and a vacancy created by a retiring employee who made between $35, 000 and $45, 000 was not going to be filled. Kerr further introduced evidence that Kay belittled and berated high-ranking female officers working below him during his time in Kosovo and replaced many of them with men as well.

         Upon the conclusion of evidence, the jury found in favor of Kerr and awarded a total of $2, 875, 000 in compensatory and punitive damages. MVC appeals.

         Analysis

         MVC raises five points on appeal. The first point argues that the court erred in including Kay's actions during the Odessa veterans event in the verdict director on retaliation insofar as Kerr allegedly failed to exhaust her administrative remedies regarding this incident by failing to include it in either of her charges of discrimination. The second through fourth points claim error in the exclusion of evidence that MVC claims was relevant to Kerr's motive to file the lawsuit and would have impeached Kerr's credibility by contradicting her testimony regarding her relationship with Kay and his actions toward her. The fifth and final point argues ...


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