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McKinney v. City of Kansas City

Court of Appeals of Missouri, Western District, Second Division

March 5, 2019

NATALIE MCKINNEY, Respondent,
v.
CITY OF KANSAS CITY, MISSOURI, ET AL., Appellant.

          Appeal from the Circuit Court of Jackson County, Missouri Honorable James Dale Youngs, Judge.

          Before Cynthia L. Martin, P.J., Victor C. Howard, and Thomas H. Newton, JJ.

          Thomas H. Newton, Judge.

         The City of Kansas City, Missouri appeals a Jackson County Circuit Court judgment entered on a jury verdict, awarding Ms. Natalie McKinney $220, 214.55 for a hostile work-environment claim under the Missouri Human Rights Act (MHRA). The City argues that Ms. McKinney failed to present a submissible case and challenges the trial court's admission of "me-too" witness testimony. We affirm.[1]

         Ms. McKinney, an African-American woman, began working for the City in 2005 at its hazardous waste facility and was terminated in January 2015.[2]During the last eight years of employment, she worked in the City's Industrial Waste Department under three different supervisors. Her final supervisor, Ms. Sherri Irving, a Caucasian woman, began her tenure in the department by announcing in the presence of several African-American employees that "she was driving the bus and if [the employees] didn't like the way she was driving . . . [they] could sit in the back or get off." The trial court allowed, as background, evidence about a number of time-barred incidents on which Ms. McKinney relied to prove her race-discrimination case. These incidents involved unusually prolonged efforts to be re-classified and paid according to extra work performed, discrimination complaints that languished in the City's Equal Employment Opportunity (EEO) office or remained unaddressed, a denied promotion, changed work hours and duties, and an altered performance evaluation. Evidence about incidents that were not time-barred included that Ms. McKinney was denied a promotion for a supervisory position that fit her job responsibilities and experience, but included specifications that appeared to fit Ms. Irving's qualifications, including supervisory experience, which Ms. McKinney lacked.[3] In addition, Ms. Irving denied Ms. McKinney's request for unpaid leave, despite working to accommodate other employees who requested leave but lacked the time available to take such leave, and Ms. McKinney was unable to secure the approvals she needed for an unpaid leave from the City's human resources department on the eve of departure. When Ms. McKinney returned from the unapproved leave, a cruise that a prior supervisor had approved months before the trip, she was subject to termination proceedings and was ultimately terminated for insubordination. This sanction was imposed despite the lack of a formal leave policy for exempt employees such as Ms. McKinney in the Industrial Wastewater Department and a progressive discipline policy that recommends termination only after a number of unscheduled absences.[4]

         Ms. McKinney filed discrimination claims with the Missouri Commission on Human Rights, which issued a right to sue letter in November 2015. She timely filed a petition in Jackson County Circuit Court including claims of race discrimination, a hostile work environment, and retaliation, and seeking compensatory and punitive damages. Over the City's objections, the trial court allowed the jury to hear certain "me-too" testimony from witnesses who had also alleged experiencing workplace discrimination, albeit in other city departments, and, when they filed complaints with the City's EEO office, investigation of their complaints was mostly negligible or delayed, if it occurred at all.[5] Although the trial court denied the City's motions for directed verdict after the close of Ms. McKinney's evidence and at the close of all the evidence, it explained at some length that, while it would allow the jury to consider each of Ms. McKinney's race-related claims, most of the evidence of conduct or incidents occurring before February 2014 were not actionable under her race-discrimination and retaliation theories as time-barred and did not fall within the continuing-violation exception. It had allowed the evidence, however, as "admissible background evidence on Ms. McKinney's timely claims." Regarding Ms. McKinney's hostile work-environment claim, however, the trial court found that whatever happened before February 2014 "that involved Ms. McKinney is subject to the continuing violation theory." The jury returned a verdict in Ms. McKinney's favor solely on her hostile work-environment claim and awarded her $62, 000 in compensatory damages. The trial court denied the City's post-trial motions for judgment notwithstanding the verdict and for new trial. The City had argued that Ms. McKinney failed to make a submissible case and that the trial court erred in allowing "me-too" witness testimony. The trial court added attorney fees, costs, and interest to the verdict. The City timely filed this appeal.

         Legal Analysis

         In the first point, the City argues that the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict as to the hostile work-environment claim, because the case was not submissible in that "timely, probative facts supporting that [t]he conduct was objectively and subjectively severe or pervasive harassment so as to constitute an abusive working environment" were absent. To determine whether a plaintiff has presented a submissible case "by offering evidence to support every element necessary for liability," the evidence is viewed "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." Moody v. Kansas City Bd. of Police Comm'rs, 539 S.W.3d 784, 791 (Mo. App. W.D. 2017) (citation omitted). "Whether the plaintiff made a submissible case is a question of law that this Court reviews de novo." Newsome v. Kansas City, Mo. Sch. Dist., 520 S.W.3d 769, 775 (Mo. banc 2017) (citation omitted). We reverse for insufficient evidence, "only where there is a complete absence of probative fact to support the jury's conclusion." Moody, 539 S.W.3d at 791.

         The City challenges the sufficiency of the evidence solely as to the fourth of five elements of a hostile work-environment claim, that is, whether "a term, condition, or privilege of h[er] employment was affected by the harassment." Alhalabi v. Mo. Dep't of Nat. Resources, 300 S.W.3d 518, 527 (Mo. App. E.D. 2009). "Discriminatory harassment affects a term, condition, or privilege of employment if it is sufficiently severe or pervasive enough to alter the conditions of a plaintiff[']s employment and create an abusive working environment." Id. "The conduct must be sufficient to create a hostile work environment, both as it was subjectively viewed by the plaintiff and as it would be objectively viewed by a reasonable person." Id.; see also Fuchs v. Dep't of Revenue, 447 S.W.3d 727, 732 (Mo. App. W.D. 2014) (stating that a claimant may also demonstrate that a term, condition, or privilege of employment has been affected "by proof of a specific, discrete adverse employment action[]"). "Once evidence of improper conduct and subjective offense is introduced, it is largely up to the jury to determine if the conduct rose to the level of being abusive." Diaz v. Autozoners, LLC, 484 S.W.3d 64, 84 (Mo. App. W.D. 2015) (citations omitted). When we assess "the hostility of an environment, we look to the totality of the circumstances." Cooper v. Albacore Holdings, Inc., 204 S.W.3d 238, 245 (Mo. App. E.D. 2006).

         The City first argues that this Court must disregard certain evidence in assessing whether Ms. McKinney introduced sufficient evidence to prove that "the conduct was objectively and subjectively severe or pervasive harassment so as to constitute an abusive working environment." It contends, without any legal support, that this Court must ignore evidence pertaining to (1) discrete events that are not actionable because they happened before February 2014 or (2) claims on which the City prevailed. While we agree that certain discrete events are not actionable because they occurred outside the statutory time limit, "prior acts may be used as background evidence in support of a timely claim." Tisch v. DST Sys., Inc., 368 S.W.3d 245, 254 (Mo. App. W.D. 2012) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (stating that "[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act" but that the statute does not "bar an employee from using prior acts as background evidence in support of a timely claim.")). And this was exactly the basis on which the trial court ruled that the jury could consider the evidence with respect to Ms. McKinney's hostile work-environment claim. Thus, in analyzing the totality of the circumstances, we will consider evidence of otherwise unactionable conduct and events as background or under the continuing-violation doctrine.[6] As well, when we are asked to consider whether a case was submissible, we assess the evidence when it was submitted to the jury and not in light of a later-occurring verdict. See Sanders v. Ahmed, 364 S.W.3d 195, 207 (Mo. banc 2012) (observing that question of submissibility "both at trial and on appeal" depends on the evidence of record at the point motion is made and stating, "A motion for directed verdict at the close of all evidence becomes the meaningful motion to preserve the issue as it presented itself to the trial court at that time, prior to submission to the jury." (emphasis added)); see also Tisch, 368 S.W.3d at 253 (ruling that in analyzing propriety of lower court's summary-judgment ruling, this Court was "not authorized to factor the subsequent jury verdict into [its] review"). It is only to preserve a submissibility question for review that the party "who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with the motion for a directed verdict." Rule 72.01(b). See also Sanders, 364 S.W.3d at 207-08 ("After verdict, of course, a motion for JNOV also is required to preserve the issues raised for appeal."). That the jury found in the City's favor on two of Ms. McKinney's claims is irrelevant to our determination about the case's submissibility, which we assess on the basis of the evidence introduced before the motion for directed verdict was filed.

         The specific conduct and events about which Ms. McKinney introduced evidence include the following:

(1) Noticing that she was performing a significant amount of additional work in 2010-2012 due to her supervisor's medical absences, Ms. McKinney requested a desk audit that was conducted in May 2012 to determine whether her position should be reclassified and her salary increased. The completed and signed audit, which recommended a reclassification/ promotion, sat on the director's desk (Mr. Terry Leeds) until it was finally approved months later, following an EEO investigation, in March 2013.
(2) In August 2012, Ms. McKinney filed a complaint about the delay in implementing the reclassification with the City's EEO office. No contact was made with Mr. Leeds about the complaint until January 2013, which even City personnel considered to be an unusually long period of time between when a complaint is made and the accused is interviewed. The EEO office did not conclude its investigation until March 2013, when it determined that the information was insufficient to substantiate Ms. McKinney's complaint that she had not been reclassified based on her race.
(3) Ms. McKinney also applied for a managerial position in 2012; without explanation, Mr. Leeds did not show up for her first scheduled interview and then made no eye contact with her during her interview, instead thumbing through his phone. She attributed his ...

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