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Yeargans v. City of Kansas City

United States District Court, W.D. Missouri, Western Division

September 6, 2019

TRAVIS YEARGANS, Plaintiff,
v.
THE CITY OF KANSAS CITY, MISSOURI, Defendant.

          ORDER AND OPINION (1) GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S DECLARATION, (2) GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AND (3) FINDING AS MOOT THE PARTIES' MOTIONS TO EXCLUDE EXPERT WITNESSES

          ORTRIE D. SMITH, SENIOR UNITED STATES DISTRICT JUDGE.

         Pending are Defendant's Motion for Summary Judgment (Doc. #35), Defendant's Motion to Exclude Plaintiff's Experts (Doc. #37), Plaintiff's Motion to Exclude Defendant's Experts (Doc. #38), and Defendant's Motion to Strike Plaintiff's Declaration (Doc. #53).[1] For the following reasons, Defendant's Motion to Strike Plaintiff's Declaration is granted in part and denied in part, Defendant's Motion for Summary Judgment is granted, and the Motions to Exclude Expert Witnesses are deemed moot.

         I. BACKGROUND [2]

         The Kansas City Fire Department (“KCFD”) is a department within Defendant The City of Kansas City, Missouri. Relevant to this matter, a KCFD employee wishing to be promoted to captain must take the Captain's Test, which occurs during the fall in even-numbered years. In 2012, the Captain's Test consisted of (1) a written examination; (2) a fire ground component known as the Oral Tactical Exercise; (3) a company officer situational component known as the Situational Exercise; and (4) points for seniority. Each component accounted for twenty-five percent of a candidate's composite score.[3] According to the record, 126 KCFD employees took the written examination for the 2012 Captain's Test.[4] Doc. #36-6, at 10-12.[5]

         Ninety-five KCFD employees who took the written examination also participated in the oral examinations (i.e., Oral Tactical Exercise and Situational Exercise) for the 2012 Captain's Test.[6] Doc. #36-6, at 8-9. During the oral examinations, the employees responded to the same scenarios, which were presented via video and written materials. The oral examinations were evaluated by in-house personnel who held the rank of captain or above (hereinafter, “assessors”). The assessors utilized benchmarks as guidelines, but each assessor used his or her own judgment, which Defendant admits was subjective. Doc. #49-19, at 1320; Doc. #52, at 16, 22.

         The oral examinations were graded in October 2012, and the candidates received their scores in November 2012. Regarding the oral examinations, Caucasian candidates received a mean score of 13.05 on the Situational Exercise and a mean score of 17.98 on the Oral Tactical Exercise, and African-American candidates received a mean score of 13.21 on the Situational Exercise and a mean score of 18.23 on the Oral Tactical Exercise.[7] Candidates could request a review of their scores if they believed their scores were inaccurate. The “second review” process occurred in November and December 2012.

         After the composite scores were configured, a promotional list was created and published in December 2012. The promotional list ranked the candidates in order of their composite scores, from highest to lowest. Promotions to captain were done in “rank order” - that is, the first captain opening was awarded to the highest ranked person on the list, the second captain opening was awarded to the second highest ranked person on the list, and so on, until all open captain positions were filled.[8] The first promotion was made on January 13, 2013, to the top scoring applicant, an African-American employee whose composite score was 86.5537. Doc. #36-6, at 7-8. From the 2012 Captain's Test promotional list, which was valid for two years, Defendant promoted sixteen employees - twelve identify as Caucasian, three identify as African-American, and one identifies as Hispanic. The last promotion was made on December 14, 2014. After that date, promotions were awarded from the promotional list generated from the 2014 Captain's Test.

         Plaintiff Travis Yeargans, who identifies as African-American, became employed with the KCFD as a firefighter in March 1991. In 1996, he was promoted to the position of Fire Apparatus Operator (“FAO”), a driving position. Between 1998 and 2012, Plaintiff unsuccessfully attempted to be promoted to captain on five occasions. Regarding the 2012 Captain's Test, Plaintiff received a composite score of 68.5778. Doc. #36-6, at 8. He was listed thirty-second on the promotional list, meaning thirty-one candidates received higher composite scores than he did. Id.

         Plaintiff claims he was significantly underscored on the oral examinations and argues that had he “not been underscored because of his race, then he would have been fairly ranked in the top 17 candidates” and promoted to captain.[9] Plaintiff's Oral Tactical Exercise was evaluated by Battalion Chief Carl Tripp, Battalion Chief Curtis Edwards, and Captain Patty Sterns. His Situational Exercise was evaluated by Captain C.J. Stenner, Battalion Chief Clay Calvin, and Captain Brian Kanoy. It is undisputed these individuals did not have the ability to establish municipal policy. Plaintiff alleges these individuals discriminated against him based on his race.

         Effective April 1, 2014, Plaintiff's employment concluded. Plaintiff alleges he was constructively discharged when the KCFD failed to promote him through the 2012 Captain's Test promotional process. When he left his employment, Plaintiff felt the opportunity for promotion was gone, and he believed he had no other alternative but to leave. Defendant contends, and its records reflect, Plaintiff retired. Doc. #36-4. It is undisputed that Plaintiff did not discuss his reasons for leaving with Defendant and he did not complain to Defendant that he was the victim of discrimination. Doc. #36-5, at 1-2. In May 2018, Plaintiff filed this lawsuit, alleging a failure to promote claim and a constructive discharge claim under 42 U.S.C. § 1983. Doc. #1.

         Now pending are Defendant's motion for summary judgment, Defendant's motion to strike Plaintiff's expert witnesses, Plaintiff's motion to strike Defendant's experts, and Defendant's motion to strike portions of a declaration Plaintiff submitted along with his opposition to Defendant's motion for summary judgment.[10]

         II. MOTION TO STRIKE PLAINTIFF'S DECLARATION

         A. Standard

         “An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). A declarant “asserting personal knowledge must include enough factual support to show that the [declarant] possesses that knowledge.” El Deeb v. Univ. of Minn., 60 F.3d 423, 428-29 (8th Cir. 1995) (citations omitted). When a declaration does not satisfy the federal rule requirements, it may be subject to a motion a strike because a court is not permitted to consider declarations that fail to meet the federal rule requirements. Id. (citations omitted). When a party objects on the grounds that a fact is not supported by admissible evidence, “the burden is on the proponent of the evidence to show that the material is admissible as presented or to explain the admissible form that is anticipated.” Gannon Int'l Ltd. v. Blocker, 684 F.3d 785, 793 (8th Cir. 2012) (citation omitted).

         B. Discussion

         Defendant moves to strike Paragraphs 15, 17, 18, 19, 21, 23, 24, 25, 33, 35, 37, 38, 43, 44, 45, and 47 in Plaintiff's July 25, 2019 declaration due to lack of personal knowledge, lack of foundation, inadmissible hearsay, legal arguments, and/or speculation. Plaintiff concedes Paragraphs 15, 17, 19, and 24 and the last two lines of Paragraph 18 - i.e., “which was often done in collaboration with management to control who was promoted” - “may not be based on factual presentations without further proof.” Doc. #55, at 1. Pursuant to Plaintiff's concession, the Court strikes Paragraphs 15, 17, 19, and 24, and the last two lines of Paragraph 18.

         However, Plaintiff argues Paragraphs 21, 23, 25, 33, 35, 37, 38, 43, 44, 45, and 47 should not be stricken. He contends these paragraphs explain “why he believed that his working conditions were intolerable, given Defendant's failures to fairly promote him, thus constituting a constructive discharge, ” and show he “had no way to know whether he would be promoted” when the promotional list was published. Doc. #55, at 2.

         In Paragraph 21, Plaintiff states, “[u]pon information and belief, there was a vacant Captain's position when I died number one on the promotional list.” Doc. #49-17, ¶ 21. Although he may have personal knowledge regarding a pre-2012 promotional list that expired when he was at the top of the list, Plaintiff's declaration represents his knowledge is based on “information and belief.” A declaration made on “information and belief is insufficient” to satisfy the personal knowledge requirement. See Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1367 (8th Cir. 1983) (citations omitted). Moreover, Plaintiff fails to include any details about the event, including, most importantly, when it occurred and the basis of his information and belief. Because of the lack of detail, Plaintiff does not demonstrate he possesses personal knowledge, and the paragraph simply sets forth an unsupported conclusion. Thus, the paragraph is insufficient to establish a genuine issue of material fact exists. See Murr v. Midland Nat'l Life Ins. Co., 758 F.3d 1016, 1024 (8th Cir. 2014). Finally, Plaintiff does not demonstrate how this information would be admissible at trial. Gannon Int'l Ltd., 684 F.3d at 793. Accordingly, the Court strikes Paragraph 21.[11]

         In Paragraph 23, Plaintiff states, “I was told that I would not be promoted because Al Myers was an outspoken Black man and other Captains would for[e]go their retirement until the list expired….” Doc. #49-17, ¶ 23. A party may not rely on hearsay to defeat a motion for summary judgment unless the party also lays a foundation for an exception to the hearsay rule. Jenkins v. Winter, 540 F.3d 742, 748 (8th Cir. 2008); Erickson v. Farmland Indus., Inc., 271 F.3d 718, 728 (8th Cir. 2001); Churchill Bus. Credit, Inc. v. Pac. Mut. Door Co., 49 F.3d 1334, 1337 n.6 (8th Cir. 1995). While the record is viewed in the light most favorable to Plaintiff, who is the non-moving party, the Court cannot “stretch this favorable presumption so far as to consider as evidence statements found only in inadmissible hearsay.” Mays v. Rhodes, 255 F.3d 644, 648 (8th Cir. 2001) (citation omitted).

         Plaintiff argues the statement referenced in Paragraph 23 is non-hearsay because a member of management made the statement. Doc. #55, at 3 (citing Fed.R.Evid. 801(d)(2)). But, neither in his declaration nor in his response to the motion to strike did Plaintiff identify the person who made the statement, show the person was authorized to make the statement, or establish the statement was made within the scope of the speaker's employment. Fed.R.Evid. 801(d)(2). Thus, Plaintiff has not laid a foundation for an exception to the hearsay rule. Therefore, the Court strikes Paragraph 23.[12]

         In Paragraph 25, Plaintiff states he believes he was not promoted to captain at least five times because of his race. Doc. #49-17, at ¶ 25. In Paragraph 35, Plaintiff sets forth his belief that he was “consistently under-scored in the Captain[']s Promotional Process on the oral response portions….” Id. ¶ 35. In Paragraph 38, Plaintiff states he believed he “would never have been promoted to Captain” if he remained in employed with the KCFD. Id. ¶ 38. He does not identify any basis, provide details about, or otherwise explain the beliefs expressed in these paragraphs. Consequently, these statements are unsupported conclusions, and Plaintiff does not demonstrate how these conclusory statements, without more, would be admissible at trial. See Camfield Tires, Inc, 719 F.2d at 1367; Murr, 758 F.3d at 1024; Gannon Int'l Ltd., 684 F.3d at 793. For this reason alone, the Court could strike these paragraphs. However, when viewing these statements with the entirety of Plaintiff's declaration and giving him the benefit of all inferences that may be reasonably drawn from the evidence, the Court finds these paragraphs have minimally satisfied the requirements. Therefore, the Court denies Defendant's motion to strike Paragraphs 25, 35, and 38.[13]

         In Paragraph 33, Plaintiff states, in February 2014, he “asked around to determine how many candidates might be promoted off the list…[and it] became apparent to me that I would not be reached for promotion before the list expired in December.” Doc. #49-17, ¶ 33. Defendant moves to strike this paragraph, arguing it is based on hearsay. Plaintiff contends this paragraph satisfies an exception to the hearsay rule because it evinces his then-existing mental condition or statement of mind demonstrating “intent, motive and[/]or plan concerning his constructive discharge claim.”[14] Doc. #55, at 2-3.

         Certain statements are excluded from the rule against hearsay, including “statement[s] of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.” Fed.R.Evid. 803(3). “A declarant's out-of-court statement of intention is admissible to prove that the declarant subsequently acted in conformity with that intention, if the doing of that act is a disputed material fact.” Firemen's Fund Ins. Co. v. Thien, 8 F.3d 1307, 1312 (8th Cir. 1993) (citation omitted). Critically, this hearsay exception requires a statement be made “contemporaneous with the declarant's ‘then existing' state of mind, emotion, sensation, or physical condition.” United States v. Naiden, 424 F.3d 718, 722 (8th Cir. 2005). While Plaintiff ostensibly relied on statements from unidentified others, Paragraph 33 does not set forth an out-of-court statement by Plaintiff of his “then-existing state of mind.” Thus, Rule 803(3) is not applicable.

         Plaintiff also contends Paragraph 33 is based on personal knowledge, but fails to address that the paragraph is founded on information he obtained when he “asked around to determine how many candidates might be promoted off the list.” Information a declarant “heard” or “learned” does not equate to personal knowledge. See Ward v. Int'l Paper Co., 509 F.3d 457, 462 (8th Cir. 2007) (citation omitted). In addition, the paragraph is based on statements made to Plaintiff that are used for to prove the truth of the matters asserted. As discussed supra, Plaintiff may not rely on hearsay to defeat a summary judgment motion, unless he also lays a foundation for an exception to the hearsay rule. See Jenkins, 540 F.3d at 748; Erickson, 271 F.3d at 728; Churchill Bus. Credit, 49 F.3d at 1337 n.6. Plaintiff does not lay a foundation for an exception to the hearsay rule.

         The Court could strike Paragraph 33 for any of the foregoing reasons. However, when viewing this paragraph along with the remainder of the declaration and affording Plaintiff the benefit of all inferences reasonably drawn from the evidence, the Court finds this paragraph has minimally satisfied the requirements. Defendant's motion to strike Paragraph 33 is denied.

         In Paragraph 37, Plaintiff states “there were several racially segregated fire stations and many racially segregated shifts” while he was employed with the KCFD. Doc. #49-17, ¶ 37. While this paragraph is conclusory, does not provide details (such as when and where), and does not specify the basis for Plaintiff's personal knowledge other than his employment with the KCFD, the Court construes all inferences in Plaintiff's favor, and finds this information is likely within his personal knowledge based on his years of employment with the KCFD. Therefore, Defendant's motion to strike Paragraph 37 is denied.[15]

         In Paragraph 43, Plaintiff opines his expert witnesses, Kathleen Kline and Anne Wedow, “fairly assessed the oral responses” on his oral examinations, and “[a]ccording to the fair and non-discriminatory scores assessed by them..., [Plaintiff] would have been promoted on November 30, 2014 as demonstrated on the Excel [spreadsheet] attached as Exhibit 1.” Doc. #49-17, ¶ 43. Plaintiff evaluate his experts' report, but fails to establish how he is qualified to assess and opine about experts' reports, fails to lay a foundation for the basis of his opinion, and fails to demonstrate how he is qualified to render such an opinion. Additionally, Plaintiff's statement that he “would have been promoted on November 30, 2014, ” is not based on personal knowledge. Instead, it is speculation, which is inadmissible and cannot be considered by the Court. See infra, section III(A). For these reasons, Defendant's motion to strike Paragraph 43 is granted.

         In Paragraph 43, Plaintiff also refers to Exhibit 1, which is purportedly attached to his declaration. But there is no exhibit attached to his declaration. See Doc. #49-17. The Court cannot consider evidence that was not provided. Thus, Defendant's motion to strike Exhibit 1 to Plaintiff's declaration is granted.

         In Paragraph 44, Plaintiff states he “was discriminated against because of [his] race through the Captain's Promotional Process that began in 2012 and ended in 2014 when [Defendant] failed to promote [him]….” Doc. #49-17, ¶ 44. Defendant moves to strike this paragraph because it contains a legal argument. Like Paragraphs 25, 35, and 38, the Court could strike this paragraph for a number of reasons. But, when viewing this statement along with the entirety of Plaintiff's declaration and giving him the benefit of all inferences reasonably drawn from the evidence, the Court finds this paragraph meets the minimal requirements. Thus, the Court denies Defendant's motion to strike Paragraph 44.[16]

         In Paragraph 45, Plaintiff avers that if Defendant had promoted thirty-two individuals through the 2012 Captain's Test promotional process that began in 2012, he would not have been able to bring his failure to promote claim. Doc. #49-17, ¶ 45. He further states his belief in February 2014 (that he would not be promoted) proved correct because he was not promoted during the 2012 Captain's Test promotional process. Defendant argues this paragraph presents legal arguments. The Court agrees this paragraph includes legal arguments, particularly regarding the accrual of Plaintiff's failure to promote claim. This paragraph also contains Plaintiff's speculation as to when he believed he could bring his failure to promote claim. While the Court could strike this paragraph, it declines to do so. However, the Court is cognizant of the legal arguments in this paragraph and those asserted in Paragraph 44, which are discussed further infra, section III(B)(1)(b).

         In Paragraph 47, Plaintiff states, “I believe that even if I reached the top of the promotional list, the KCFD would have failed to promote me yet again.” Doc. #49-17, ¶ 47. In addition to this statement being conclusory and unsupported, it is nothing more than speculation by Plaintiff, which cannot be considered by the Court. See infra, section III(A). Therefore, Defendant's motion to strike Paragraph 47 is granted.

         III. MOTION FOR SUMMARY JUDGMENT

         A. Standard

         A moving party is entitled to summary judgment on a claim only if there is a showing that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Williams v. City of St. Louis, 783 F.2d 114, 115 (8th Cir. 1986). “[W]hile the materiality determination rests on the substantive law, it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Wierman v. Casey's Gen. Stores, 638 F.3d 984, 993 (8th Cir. 2011) (quotation omitted). The Court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of all inferences that may be reasonably drawn from the evidence. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588-89 (1986). “[A] nonmovant may not rest upon mere denials or allegations, but must instead set forth specific facts sufficient to raise a genuine issue for trial.” Nationwide Prop. & Cas. Ins. Co. v. Faircloth, 845 F.3d 378, 382 (8th Cir. 2016) (citations omitted).

         The Court notes some of the parties' attempts to establish or controvert a fact were unsuccessful. For example, the cited record did not support or controvert the fact, nothing was cited in support of or in contravention of a fact (or portion of a fact), legal arguments were included in response to a fact, inadmissible evidence was used to support or controvert a fact, or the cited record was stricken. The facts (or portions of facts) not properly supported were not considered by the Court. Fed.R.Civ.P. 56(c), (e); L.R. 56.1(a), (d). Likewise, the facts the opposing party failed to properly controvert were deemed admitted by the Court. Fed.R.Civ.P. 56(c), (e); L.R. 56.1(b), (d).

         B. Discussion

         (1) Timeliness of Claims

         (a) Defendant's Potential Waiver of Affirmative Defense

         Defendant moves for summary judgment on Plaintiff's failure to promote claims because they are untimely. The Court must first address whether Defendant waived the statute of limitations defense because Defendant did not plead statute of limitations as an affirmative defense and never sought leave to amend its answer. Doc. #6. Yet, Defendant now moves for summary judgment on that basis.

         “In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including…statute of limitations.” Fed.R.Civ.P. 8(c)(1). Generally, if the affirmative defense of the statute of limitations is not raised in a responsive pleading, the defense is waived. See John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133 (2008) (citations omitted); Jessie v. Potter, 516 F.3d 709, 713 n.2 (8th Cir. 2008) (citations omitted) (stating a defendant “must plead and prove” the affirmative defense of statute of limitations). Nevertheless, in certain instances, the Eighth Circuit has affirmed district courts' decisions allowing a party to raise an affirmative defense for the first ...


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