Court of Appeals of Missouri, Western District, First Division
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
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.
and Procedural History
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
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.
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.
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.
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."
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.
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. Brummett returned
to work on February 1, 2016, as a service lead.
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.
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.
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.
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."
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.
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.
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.
filed a petition for damages ("initial petition")
against Burberry, DeCastro, and Cox 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
("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.
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.
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
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
filed this timely appeal. Additional facts are discussed as
necessary to address Brummett's points on appeal.
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)).
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).
seven points on appeal are discussed separately.
One: Relevance of Evidence of Brummett's Prior
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
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.
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
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. [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.
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.
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.
Two: Exclusion of Evidence of Miller's Derogatory
Comments About Race
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 ...