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Brummett v. Burberry Ltd.

Court of Appeals of Missouri, Western District, First Division

December 24, 2019


          Appeal from the Circuit Court of Jackson County, Missouri The Honorable David M. Byrn, Judge

          Before: Edward R. Ardini, Jr., Presiding Judge, Mark D. Pfeiffer, Judge and Cynthia L. Martin, Judge

          Cynthia L. Martin, Judge

         Mona Brummett ("Brummett") appeals from the trial court's entry of judgment in favor of Burberry Limited ("Burberry") on her claims of religious discrimination and retaliation. Brummett complains that the trial court committed reversible error in its evidentiary rulings, in prohibiting Brummett from commenting on the absence of witnesses during closing argument, and in assessing costs against her. We affirm in part, and reverse and modify the judgment in part.

         Factual and Procedural History[1]

         In late 2014, Brummett began working for Burberry as a service lead and key holder in the company's Kansas City, Missouri retail store ("store"). Brummett's responsibilities included interacting with customers and making sales, as well as training other sales staff and opening and closing the store. During the first year of her tenure at the store, Brummett became friends with the store's general manager, Karli DeCastro ("DeCastro"), and the two women and their families socialized outside of work. On October 4, 2015, Brummett texted a photograph of a positive home pregnancy test to DeCastro.

         Katy Cox ("Cox"), the store's assistant general manager, told DeCastro that she wanted to transfer to the store's shipper/receiver position in October 2015. DeCastro announced Cox's decision to the store's staff. Brummett expressed her interest in the assistant general manager position to DeCastro. At the time, DeCastro believed that Brummett had potential to assume a larger leadership role in the store.

         On November 13, 2015, Lynne Miller ("Miller"), one of the store's sales associates, was working in the store when she learned of a terrorist attack in Paris, France. Miller testified at trial that, upon learning of the news, she commented that there was a "radical terrorist attack," and that Hexi Wang ("Wang") (another Burberry employee) admonished "you can't say that." Wang's recollection of Miller's comments was different. Wang testified that Miller said, "The Muslims are terrorists. They killed all the people." Wang reported Miller's comments to DeCastro.

         DeCastro met with Miller and told her that any statements generalizing a religion could be offensive to others and are "dangerous and potentially hurtful." According to DeCastro, Miller apologized and stated that she did not intend to offend anyone. DeCastro testified that she did not believe Miller intended the comment to be hurtful or malicious. DeCastro also testified that she never personally heard Miller make any derogatory comments about Muslims.

         Brummett, a Muslim, did not personally hear Miller's comments. However, after Brummett heard of Miller's comments from another employee, Brummett complained to DeCastro. DeCastro told Brummett that she had spoken to Miller. In addition, DeCastro issued a directive to the store's staff not to discuss politics and religion while in the store. Brummett testified that Miller nonetheless continued to make comments about politics and religion. Brummett testified that she continued to complain to DeCastro, but that DeCastro told Brummett to "just ignore her."

         In late 2015, Brummett made numerous comments to her co-workers to the effect that she was considering terminating her pregnancy because she did not want her child to experience the same kind of discrimination that she endured as a Muslim woman. While at work on December 8, 2015, Brummett had an emotional breakdown. Brummett cried uncontrollably in the store's restroom for more than two hours. DeCastro unsuccessfully attempted to comfort Brummett. Brummett's husband had to be called to retrieve her.

         Following this incident, Brummett worked for a portion of December and was approved for a medical leave of absence due to depression and anxiety from December 28, 2015, through the end of January 2016. Brummett's job during this extended leave was protected by the Family Medical Leave Act.[2] Brummett returned to work on February 1, 2016, as a service lead.

         Brummett submitted an application to be the store's assistant general manager on the day she returned to work. However, Cox had changed her mind about transferring to the store's shipper/receiver position and remained the store's assistant general manager. After learning of Cox's decision, Brummett expressed anger to DeCastro about not being promoted to assistant general manager. Brummett also told DeCastro that Miller was continuing to talk about politics and Muslims while in the store.

         On February 11, 2016, Brummett asked DeCastro for the phone number for Burberry's corporate human resources department. Brummett wanted a copy of the incident report that DeCastro told Brummett she had filed, and wanted to make the corporate office aware of her version of the events in November and December 2015. Brummett spoke by phone with Carlos Rodriguez ("Rodriguez"), Burberry's senior manager of employee services, that same day. Throughout February and March 2016, Brummett contacted Burberry's corporate human resources department several times, sending multiple lengthy emails and having multiple telephone conversations lasting at least one hour each. During these emails and conversations, Brummett described her complaints with management and her concerns about how she had been treated by her coworkers and by management. In particular, Brummett complained that Miller told Wang that "all Muslims are terrorists" and that Cox had been coerced into remaining the store's assistant general manager in order to prevent Brummett from being promoted to the position. Brummett also voiced concerns about her work schedule and requests for leave.

         In March 2016, Kareem Gayle ("Gayle"), Burberry's corporate human resources manager, traveled to Kansas City to investigate the circumstances surrounding Brummett's complaints. While in Kansas City, Gayle interviewed a number of Burberry employees who worked at the store, including Wang, Miller, Cox, and DeCastro. Wang told Gayle that, on November 13, 2015, Miller announced to Wang that "there [was] a bombing and Muslims bombed Paris," and that he admonished Miller, saying that "you can use the terms radicals or extremists but to say Muslims isn't correct," before he spoke to DeCastro about the matter. When Gayle interviewed Miller, her memory of her comments on November 13, 2015, was substantially the same as Wang's. Miller told Gayle that she said "Muslim[] radicals bombed Paris." None of the employees with whom Gayle spoke indicated that derogatory or discriminatory comments were an ongoing, chronic problem in the store.

         Gayle sent Brummett a letter summarizing her investigation's findings on April 11, 2016. The letter stated that Gayle was "unable to substantiate [Brummett's] allegations" that Miller stated that "all Muslims are terrorists," and also stated that Cox's decision to continue in her role as the assistant general manager "was purely a personal decision that she was in no manner coerced or pressured by [Burberry] to make."

         In late May 2016, Brummett fell in the store and sustained an injury to her foot. Brummett began workers' compensation leave and had a baby later in the summer.[3]

         In June 2016, while Brummett was on leave, Cox was promoted to general manager of the store after DeCastro resigned. Brummett applied for the store's assistant general manager position. Burberry ultimately hired Abby Lamone ("Lamone") for the position. Rodriguez testified that Burberry hired Lamone because her experience as a manager was superior to that of the other applicants.

         Brummett timely filed charges of discrimination with the Missouri Human Rights Commission ("MHRC") and the Equal Employment Opportunity Commission ("EEOC"). The MHRC issued Brummett right-to-sue letters on August 19, 2016, and on April 28, 2017.

         Brummett filed a petition for damages ("initial petition") against Burberry, DeCastro, and Cox[4] on November 16, 2016. The trial court granted Brummett leave to file a first amended petition ("first amended petition") on June 16, 2017. The first amended petition named Burberry, DeCastro, Cox, and Lamone as defendants (collectively "the defendants"), and alleged several counts, including claims seeking relief under the Missouri Human Rights Act[5] ("MHRA"): (1) religious harassment and discrimination against the defendants; (2) national origin harassment and discrimination against the defendants; (3) sex discrimination against Burberry, DeCastro, and Cox; (4) retaliation against the defendants; (5) aiding and abetting against the defendants; (6) disability and perceived disability discrimination against Burberry, Cox, and Lamone; and (7) workers' compensation retaliation against Burberry. On May 1, 2018, Brummett and the defendants filed a joint stipulation to dismiss Brummett's claims against DeCastro, Cox, and Lamone with prejudice, leaving Burberry as the only remaining defendant.

         During a pretrial conference, Brummett's counsel confirmed that Brummett would only be proceeding to trial on counts one and four, religious discrimination and retaliation, and that all other counts were being dismissed. The trial court granted Brummett's motion to bifurcate the trial, such that liability and punitive damages would be separately tried. In addition, the trial court entertained and ruled the parties' motions in limine.

         Brummett's claims of religious discrimination and retaliation against Burberry were tried to a jury over four days, beginning on May 9, 2018. Less than two hours after it retired, the jury entered verdicts in favor of Burberry on Brummett's claims. The trial court entered a judgment ("Judgment") on May 22, 2018, in accordance with the jury's verdicts. The Judgment assessed costs against Brummett.

         Brummett filed a timely motion for new trial, or in the alternative, to amend the Judgment ("post-trial motion"). Brummett's post-trial motion asserted that the trial court committed error in its evidentiary rulings and in prohibiting Brummett from commenting on the absence of certain witnesses during closing argument. The post-trial motion also argued that the trial court committed error in assessing costs against Brummett because the applicable version of the MHRA did not permit such an award unless her claims were without foundation. The trial court denied the post-trial motion.

         Brummett filed this timely appeal. Additional facts are discussed as necessary to address Brummett's points on appeal.

         Standard of Review

         Brummett's seven points on appeal concern the trial court's evidentiary rulings, the trial court's restriction on the scope of closing argument, and the trial court's assessment of costs. Brummett's first six points on appeal are reviewed for an abuse of discretion. See NorthStar Educ. Fin., Inc. v. Scroggie, 581 S.W.3d 641, 644 (Mo. App. W.D. 2019) ("We review a trial court's decisions admitting or excluding evidence for an abuse of discretion."); Gleason v. Bendix Commercial Vehicle Sys., LLC, 452 S.W.3d 158, 178 (Mo. App. W.D. 2014) ("We review the trial court's ruling in closing argument for an abuse of discretion."). A trial court abuses its discretion when its ruling "is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration." NorthStar Educ. Fin., Inc., 581 S.W.3d at 644 (quoting Cox v. Kansas City Chiefs Football Club, Inc., 473 S.W.3d 107, 114 (Mo. banc 2015)).

         Brummett's seventh point on appeal challenges the trial court's statutory authority to assess costs against her, and argues that an amendment to the statute authorizing an award of costs was unlawfully applied in violation of Missouri's constitutional prohibition against statutes retrospective in their operation. Whether the retrospective application of a statutory amendment violates the Missouri constitution is an issue of law we review de novo. Wellner v. Dir. of Revenue, 16 S.W.3d 352, 354 (Mo. App. W.D. 2000) (addressing the retrospective application of an amendment to a civil statute and holding that a trial court's erroneous declaration or application of the law is given no deference).


         Brummett's seven points on appeal are discussed separately.

         Point One: Relevance of Evidence of Brummett's Prior Abortion

         Brummett's first point on appeal asserts that the trial court abused its discretion in permitting Burberry to introduce evidence about an abortion which predated Brummett's employment with Burberry because the evidence was neither logically nor legally relevant. Before trial, the trial court sustained Brummett's motion in limine to exclude this evidence, though the trial court advised it would reassess its ruling based on the evidence presented at trial.[6]

         During direct examination, Brummett repeatedly testified that she contemplated terminating her 2015 pregnancy due to the extreme severity of Burberry's discriminatory and retaliatory actions. Brummett was cross-examined by Burberry on this same topic without objection. Burberry then requested a bench conference and argued that evidence of Brummett's prior abortion was relevant to challenge Brummett's claim that she considered terminating her 2015 pregnancy because of Burberry's extreme discriminatory treatment. The trial court noted that approximately twenty different references had been made by Brummett during her testimony connecting Burberry's discrimination and retaliation to Brummett's contemplation of an abortion in 2015. As a result, the trial court concluded that Burberry should be permitted to question Brummett about her prior abortion.

         Brummett argues that evidence of her prior abortion was neither logically nor legally relevant. "To be admissible, evidence must be both logically relevant and legally relevant." Kerr v. Mo. Veterans Comm'n, 537 S.W.3d 865, 876 (Mo. App. W.D. 2017) (quoting Frazier v. City of Kansas City, 467 S.W.3d 327, 338 (Mo. App. W.D. 2015)). "Evidence is logically relevant if it make[s] the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Id. (quoting Frazier, 467 S.W.3d at 338). Legal relevance is a distinct concept. It refers to "the balance between the probative value and the prejudicial effect of the evidence." Id. (quoting Frazier, 467 S.W.3d at 338). "That balancing requires the trial court to weigh the probative value, or usefulness, of the evidence against its costs, specifically the dangers of unfair prejudice, confusion of the issues, undue delay, misleading the jury, waste of time, or needless presentation of cumulative evidence." Id. (quoting Frazier, 467 S.W.3d at 338). If the prejudicial effect of the evidence outweighs its probative value, then the evidence is not relevant and should be excluded. Id.

         Brummett argues that by allowing Burberry to introduce evidence of Brummett's prior abortion, the trial court allowed Burberry "to inject a highly prejudicial topic into the trial" without any discussion as to the evidence's relative probative value.[7] [Appellant's Brief, p. 21] Brummett argues that evidence of her prior abortion could only have been probative if it had been shown to have caused, in part, the emotional distress Brummett claimed she suffered from Burberry's discriminatory conduct. [Appellant's Brief, p. 23] Brummett's view of the logical relevance of the evidence of her prior abortion is too narrow given the circumstances in this case.

         Brummett repeatedly testified that the discrimination and retaliation she experienced while employed at Burberry was so extreme that she contemplated aborting her 2015 pregnancy. Burberry argues, and we agree, that evidence of Brummett's prior abortion was logically relevant to "demonstrate[] to the jury that factors other than [Burberry's] alleged treatment of [Brummett] played a role in [Brummett's] willingness to consider ending her pregnancy" and "placed into context [Brummett's] claims that her desire to have an abortion was evidence of extreme mental distress." [Respondent's Brief, p. 17] We cannot say that the trial court abused its discretion in concluding that evidence of Brummett's prior abortion was logically relevant to an issue in dispute. That is particularly so given the restricted cross-examination conducted on the topic by Burberry. Burberry asked very few questions of Brummett to establish only the prior abortion predated Brummett's employment with Burberry, and was a choice that had not been based on claimed discriminatory treatment.

         Nor can we say that it was an abuse of discretion to conclude that the probative value of this evidence was not outweighed by its prejudicial effect. Courts have long acknowledged that the topic of abortion sharply divides Americans, with "virtually irreconcilable points of view" on each side of the debate, so that the risk of prejudice from admitting evidence on the subject is great. Stenberg v. Carhart, 530 U.S. 914, 920-21 (2000). But, in this case, the subject of abortion was first introduced by Brummett to underscore the alleged severity of Burberry's discriminatory conduct. The trial court did not abuse its discretion to permit logically relevant cross-examination to challenge Brummett's contention that she contemplated aborting her 2015 pregnancy because of the severity of Burberry's discrimination. Point One is denied.

         Point Two: Exclusion of Evidence of Miller's Derogatory Comments About Race

         Brummett's second point on appeal complains that the trial court abused its discretion in excluding evidence of Miller's derogatory comments about race because the evidence was logically and legally relevant. The argument portion of Brummett's brief clarifies that Brummett is complaining about the exclusion of testimony from Wang and Maria Graham ("Graham") on two occasions during trial: (i) when both witnesses were testifying during Brummett's case-in-chief; and (ii) after Burberry allegedly opened ...

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