United States District Court, W.D. Missouri, Western Division
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
D. SMITH, SENIOR UNITED STATES DISTRICT JUDGE.
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). 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.
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. According to the
record, 126 KCFD employees took the written examination for
the 2012 Captain's Test. Doc. #36-6, at
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. 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.
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. Candidates could request a review of their
scores if they believed their scores were inaccurate. The
“second review” process occurred in November and
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. 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.
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.
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. 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.
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.
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.
MOTION TO STRIKE PLAINTIFF'S DECLARATION
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
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
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.
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.
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).
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
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.
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.” Doc. #55, at
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.
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
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
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
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.
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.
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
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).
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
MOTION FOR SUMMARY JUDGMENT
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).
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).
Timeliness of Claims
Defendant's Potential Waiver of Affirmative
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.
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 ...