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Jones v. City of Kansas City

Court of Appeals of Missouri, Western District, Special Division

February 13, 2019

TARSHISH JONES, Respondent,
v.
CITY OF KANSAS CITY, MISSOURI, Appellant.

          Appeal 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.

         The 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").[1]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 judgment.

         Factual and Procedural Background[2]

         Jones 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 2012.

         To be 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.

         The 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.

         During 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.

         The 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.[3] 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.

         During 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.

         The 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, [4] with the last promotion occurring on December 14, 2014.

         On 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.

         At 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.

         Jones 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 Caucasian candidates.

         Jones 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.

         The 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 African-American.

         The 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.

         Jones 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.

         The City filed this timely appeal. Other relevant facts will be addressed in connection with the City's points on appeal.

         Analysis

         The 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.

         Point One

         The 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.[5] 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.[6]

         "The 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.

         At the 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.

         The 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.

         In 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 injured party.

         The 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.

         In 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, [7] Tivol did not abrogate Farrow's core conclusion that a timely filed administrative claim is not essential to civil liability under the MHRA.[8]

         Given 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.[9] 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.[10]

         Point One ...


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