Court of Appeals of Missouri, Western District, Special Division
from the Circuit Court of Jackson County, Missouri, The
Honorable Justine E. Del Muro, Judge.
Before: Zel M. Fischer, Special Judge, Presiding, Cynthia L.
Martin, Judge and Gary D. Witt, Judge.
Cynthia L. Martin, Judge.
City of Kansas City, Missouri, ("City") appeals
from a judgment entered following a jury trial which found
that the City discriminated against Tarshish Jones
("Jones") on the basis of race in violation of the
Missouri Human Rights Act ("MHRA").The City argues
the trial court erred in denying its motions for directed
verdict and judgment notwithstanding the verdict
("JNOV"); in admitting Jones's expert witness
testimony; in excluding the City's expert witness
testimony; and in awarding attorneys' fees and costs.
Finding no error, we affirm, and remand this matter for
consideration of Jones's pending motion for an award of
attorneys' fees incurred subsequent to the entry of
and Procedural Background
was employed as a firefighter with the Kansas City Fire
Department ("KCFD") for more than 19 years. Jones
was promoted to fire apparatus operator ("FAO") in
2003. After promotion to FAO, Jones sought promotion to
captain on five separate occasions. Relevant to this case,
Jones, an African-American, sought promotion to captain in
eligible for promotion to captain, a candidate must have ten
years of service and a prior promotion to FAO. A candidate
must also complete the captain's promotional process.
When Jones sought promotion to captain in 2012, the
captain's promotional process included four components.
Each component was separately scored and equally weighted.
The component scores were compiled to produce a composite
score. A rankings list ("promotional roster") was
then generated listing candidates from highest to lowest rank
based on composite scores. The promotional roster controlled
who was promoted to captain for two years, as vacancies were
filled as they arose based solely on rank. It is not possible
to determine how many candidates will be promoted from a
promotional roster, as the number of captain vacancies can
vary greatly from year to year.
2012 captain's promotional process materials were created
by the KCFD with the assistance of an outside contractor.
Three of the four components used in the 2012 captain's
promotional process involved a written multiple-choice test,
a tactical exercises test, and consideration of seniority up
to 25 years. The fourth component was a scenario-based
situational exercise (the "SE component"). The SE
component is the only part of the 2012 captain's
promotional process at issue in this case.
the SE component exercise, candidates responded to three
employee-based, management scenarios. The responses were
video-taped. Each candidate received the same scenarios and
was given four minutes to respond to each scenario.
video-taped responses were watched by three assessors and
independently scored. In 2012, the assessors were drawn from
an internal pool of KCFD employees holding the rank of
captain or higher. The guidelines to initially score the SE
component were developed with the assistance of the outside
contractor, and included a benchmark rubric used to
"check-off" certain topics when mentioned by a
candidate. However, the guidelines were essentially
subjective in nature, with the only mandatory scoring
instruction being that ultimately, the assessors had to
assign scores for each candidate in each scoring area within
1 point of each other. To satisfy this objective, the
assessors met after independently scoring the candidates, and
bartered or advocated for certain candidates, with initial
scores adjusted accordingly. This bartering process sometimes
involved reviewing the videotaped responses of candidates to
discuss a particular assessor's judgment about a
response, and sometimes included advocacy by an assessor
based on factors beyond those identified in the written
scoring guidelines. Ultimately, after the bartering process,
a composite score would be agreed upon as the candidate's
SE component score. The notes used by the assessors to score
the SE component were then destroyed, rendering it impossible
to document the initial scores given by each assessor, or the
manner in which scores changed during the bartering process.
the 2012 captain's promotional process, Jones scored well
on the multiple choice, tactical exercise, and seniority
components. However, Jones only scored a 2.5 out of 7.0 on
the SE component. Because of the low SE component score,
Jones's composite score ranked him as the 42nd candidate
eligible for promotion to captain on the promotional roster.
Jones requested a review of his composite score, but his
position on the promotional roster remained unchanged.
2012 promotional roster was used to promote candidates to
captain through 2014. During that time, the top 17 candidates
on the list were promoted to 16 captain vacancies,
with the last promotion occurring on December 14, 2014.
January 23, 2015, Jones filed a charge of discrimination with
the Missouri Commission on Human Rights ("MCHR").
Jones subsequently received a notice of right to sue letter,
and then filed a race discrimination lawsuit in the Circuit
Court of Jackson County on November 24, 2015.
trial, Deputy Chief Garrett, who had previously served as an
SE component assessor, but who did not serve as an assessor
during the 2012 captain's promotional process, testified
that African-American candidates were routinely underscored
in the SE component in comparison to Caucasian candidates.
Deputy Chief Garrett also testified that he could not recall
a single African-American candidate who benefitted from the
bartering process that occurred after initial scores were
assigned by assessors. The jury heard evidence that although
assessors were trained on the SE component scoring rubric and
process, they did not receive any training to avoid implicit
or explicit racial bias in scoring candidates.
learned through discovery, and shortly before trial, that his
SE component assessors had been Brian Cooley, C.J. Stevens,
and Richard Davis ("Davis"). Davis, a KCFD captain,
was placed on the 2012 SE component assessor panel as a
designated minority member, although Davis refuses to
self-identify as an African-American. Davis testified at
trial that other assessors told him (he claimed jokingly)
that he was harder on African-American candidates than
presented expert witness testimony from two former KCFD
battalion chiefs who independently reviewed Jones's SE
component score alongside the scores of five other captain
candidates evaluated during the 2012 captain promotional
process. The expert witnesses opined that Jones should have
scored 5.4 on the SE component -- 2.9 points higher than
Jones's actual SE component score. Had Jones scored a 5.4
on the SE component, he would have ranked 15th on the 2012
promotional roster, and he would have been promoted to
captain from the 2012 promotional roster.
jury heard evidence that only 185 of the KCFD's 1, 336
employees (13.5%) are African-Americans; that only 17 of the
KCFD's 199 captains (8.5%) are African-American; and that
only 3 of the KCFD's 27 battalion chiefs (11%) are
African-American. In contrast, 40% of all City employees are
City's equal employment opportunity and diversity manager
acknowledged the risk of injecting bias in employment
decisions when candidates for promotion are subjectively
evaluated. Jones admitted evidence that the KCFD had not held
any training concerning race discrimination or diversity in
more than three years, and that the KCFD has never received
training on implicit bias, while other City employees have
received such training. The jury heard testimony that several
KCFD fire stations are racially-segregated, and that KCFD
Chief Paul Berardi was aware of complaints that
African-American firefighters are retaliated against when
traded into a station with all Caucasian firefighters.
Witnesses testified to frequently hearing the word
"n----r" and other racial slurs in the workplace.
Statistical evidence demonstrated that it takes significantly
more time for an African-American KCFD firefighter to be
promoted than Caucasians.
submitted his discrimination claim to the jury with a verdict
director that required the jury to find that the City failed
to promote him through the 2012 captain's promotional
process, and that race was a contributing factor in this
failure. The jury entered a verdict in favor of Jones and
against the City on Jones's claim of race discrimination
during the 2012 captain's promotional process, and
awarded damages in the amount of $356, 694.69. The trial
court entered judgment consistent with the jury's
verdict, and awarded Jones attorneys' fees in the amount
of $662, 862.50 after applying a multiplier of 125 percent,
and costs in the amount of $44, 913.49.
City filed this timely appeal. Other relevant facts will be
addressed in connection with the City's points on appeal.
City asserts five points on appeal challenging the trial
court's denial of the City's motions for directed
verdict and JNOV; the trial court's admission and
exclusion of expert witness testimony; and the trial
court's calculation of attorneys' fees and costs.
City's first point on appeal argues that the trial court
erred in denying the City's motions for directed verdict
and JNOV because Jones failed to file his charge of
discrimination with the MCHR within 180 days of publication
of the 2012 promotional roster. The City argues that
publication of the tainted promotional roster on November 24,
2012 was the discrete act of discrimination about which Jones
complains pursuant to section 213.075.1, and that use of the
promotional roster for two years did not constitute a
continuing violation that extended the time for Jones to file
an administrative complaint. As such, the City argues that
Jones's January 23, 2015 administrative complaint with
the MCHR was untimely, preventing the submission of his civil
claim of discrimination as a matter of law.
standard for reviewing a denied motion for JNOV is
essentially the same as for reviewing the denial of a motion
for directed verdict." Sanders v. Ahmed, 364
S.W.3d 195, 208 (Mo. banc 2012). This standard is
"whether the plaintiff made a submissible case."
Medical Plaza One, LLC v. Davis, 552 S.W.3d 143, 153
(Mo. App. W.D. 2018). "'Whether the plaintiff made a
submissible case is a question of law subject to de
novo review.'" Wagner v. Bondex
Intern., Inc., 368 S.W.3d 340, 348 (Mo. App.
W.D. 2012) (quoting Moore v. Ford Motor Co., 332
S.W.3d 749, 756 (Mo. banc 2011)). To make a submissible case,
"legal and substantial evidence [must] support each
fact essential to liability." Sanders, 364
S.W.3d at 208. We "view the evidence in the light most
favorable to the jury's verdict, giving the plaintiff the
benefit of all reasonable inferences and disregarding
evidence and inferences that conflict with that
verdict." Id. "A court may reverse the
jury's verdict for insufficient evidence only when there
is a complete absence of probative fact to support the
jury's conclusion." Id.
time Jones filed his administrative complaint with the MHRA,
section 213.075.1 provided:
Any person claiming to be aggrieved by an unlawful
discriminatory practice may make, sign and file with the
commission a verified complaint in writing, within one
hundred eighty days of the alleged act of discrimination.
City contends that Jones's administrative complaint was
not timely filed, and that as a result, the case should not
have been submitted as a matter of law. Though the City's
Brief argues that publication of the 2012 promotional roster
was the unlawful discriminatory practice which triggered
Jones's obligation to file an administrative complaint
within 180 days pursuant to section 213.075.1, the City
mistakenly presumes, without discussion, that the timely
filing of a section 213.075.1 administrative complaint is
essential to civil liability under the MHRA.
Farrow v. St. Francis Medical Center, 407 S.W.3d 579
(Mo. banc 2013), the Supreme Court of Missouri acknowledged
section 213.075.1, but also noted section 213.111.1, which
addresses the filing of a civil action for discrimination and
provides, in pertinent part, as follows:
If, after one hundred eighty days from the filing of a
complaint alleging an unlawful discriminatory practice . . .
the commission has not completed its administrative
processing and the person aggrieved so requests in writing,
the commission shall issue to the person claiming to be
aggrieved a letter indicating his or her right to bring a
civil action within ninety days of such notice against the
respondent named in the complaint. . . . Any action brought
in court under this section shall be filed within ninety days
from the date of the commission's notification letter to
the individual but not later than two years after the alleged
cause occurred or its reasonable discovery by the alleged
Supreme Court concluded in Farrow that the filing of
a timely administrative complaint with the MCHR is
not a condition precedent to filing a civil action
in the circuit court because:
[T]he only requirements imposed by section 213.111 to file a
claim under the MHRA are that: (1) an employee file a charge
with the Commission prior to filing a state court action; (2)
the Commission issue a right to sue letter; and (3) the state
court action be filed within ninety days of the issuance of
the right to sue letter but no later than two years after the
alleged cause occurred or its reasonable discovery by the
alleged injured party. The statute does not read, "If,
after one hundred eighty days from the filing of a
timely complaint. . . ." This Court will not
read such a requirement into the plain statutory language.
407 S.W.3d at 591.
State ex rel. Tivol Plaza, Inc. v. Missouri Commission on
Human Rights, 527 S.W.3d 837, 843-44 (Mo. banc 2017),
the Supreme Court repeated the aforesaid holding in
Farrow. Though Tivol narrowed
Farrow's application in other respects,
Tivol did not abrogate Farrow's core
conclusion that a timely filed administrative claim is not
essential to civil liability under the MHRA.
our obligation to review de novo whether the trial
court erred in denying the City's motions for directed
verdict and for JNOV, the City's first point on appeal is
denied, as the timely filing of Jones's administrative
complaint with the MCHR was not essential to liability in
Jones's civil action against the City. As a result, we
need not and do not address whether the City's
publication of a tainted promotional roster was a discrete
act of discrimination pursuant to section 213.075.1, or a
continuing violation so long as the promotional roster was
used to neutrally promote candidates to captain based solely
on their rank on the roster.