Janet Hurst v. Kansas City, Missouri School District

MODIFIED 5/27/14

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
JANET HURST, )
)
Respondent, )
)
v. ) WD76534
)
KANSAS CITY, MISSOURI ) Opinion filed: April 29, 2014
SCHOOL DISTRICT, )
)
Appellant. )

APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
The Honorable Sandra Midkiff, Judge

Before Division One: Joseph M. Ellis, Presiding, Judge,
Karen King Mitchell, Judge and Anthony Rex Gabbert, Judge

Appellant Kansas City, Missouri School District ("the District") appeals from a

judgment entered by the Circuit Court of Jackson County in favor of Respondent Janet

Hurst in the amount of $247,083.78 in actual damages and $200,000.00 in punitive

damages. The award resulted from a suit filed by Respondent alleging that the District

discriminated against her because of her age when it eliminated her position as a

school psychological examiner and failed to hire her for the new reconstituted position

of educational diagnostician. For the following reasons, the judgment is affirmed.
 The evidence viewed in the light most favorable to the verdict reflects the

following. In 2005, Respondent began working for the District as a school psychological

examiner ("SPE") in the Exceptional Education Department. SPEs administered tests

to students to evaluate whether the students qualified for special educational

assistance. After administering the tests, SPEs would write reports explaining their

findings. SPEs would then re-evaluate the students that qualified for assistance every

three years.

During the 2009-2010 school year, the Exceptional Education Department

Director, Dr. Christine Hernandez, the Lead School Psychologist,1 Joanne McNellis, and

the Exception Educational Compliance and Operations Officer, Waukita Williams,

decided changes needed to be made to the SPE position. In April of 2010, the District

notified all SPEs, including Respondent, that it was reconstituting the SPE position for

the 2010-2011 school year. The new, reconstituted position would be called an

educational diagnostician ("ED") and would purportedly involve a counseling component

not previously required of the SPEs. All former SPEs had the opportunity to interview

for the new ED position but were not guaranteed a position. At a meeting regarding the

new position, the District told the SPEs that the hiring decisions would be based on the

interview as well as their previous work performance. The SPEs were also informed

there would be twelve ED positions available.

A four-person committee interviewed the applicants for the ED position. The

four-person committee consisted of Dr. Hernandez, McNellis, Williams, and a

1
As Lead School Psychologist, McNellis supervised all the SPEs.
2
representative from the human resources department. Prior to the interviews, the

interviewing committee members drafted twelve questions with model answers. During

the interviews, the committee members asked each applicant the predetermined

questions and then individually scored the applicant's answer on a scale of 0 to 3. At

the conclusion of the interviews, the applicants' scores were totaled and converted into

percentages. Dr. Hernandez originally stated that applicants had to score 80% or

higher on the interview in order to qualify for an ED position. Dr. Hernandez later

lowered the required minimum score to 60%. The District did not inform the applicants

that they would be required to score a certain percentage on the interview to obtain an

ED position.

At the time of the interviews, Respondent was sixty-one (61) years old. She

interviewed for the ED position but received a score of 42%. Dr. Hernandez notified her

in June 2010 that she would not be hired as an ED. In July, Respondent received a

letter informing her that although she "met the minimum qualifications for the [ED]

position," the District had "selected other candidates whom [it] believe[d] more closely

match[ed] the requirements of the position and needs of the students." The letter

further informed Respondent that if the District found that she was qualified for a

position in the future, she would be contacted.

In August, the District notified Respondent that it was assigning her to teach a

fifth grade class at a "turn-around school."2 Respondent received the notification two

2
Testimony at trial described a turn-around school as a school that “was having problems” such that the
District developed “extra plans” to improve it and other similarly situated schools.
3
weeks before the school year was scheduled to begin. Respondent was concerned

about her ability to teach the class because she had not taught in the classroom for

thirty-seven years. Ultimately, she decided that she could not do an adequate job

teaching the class and she retired from the District.

In August 2011, Respondent filed a petition alleging age discrimination in

violation of the Missouri Human Rights Act ("MHRA"). In particular, Respondent alleged

that age was a contributing factor in the District's decision to eliminate her SPE position

and in its failure to hire her for the ED position.

In 2013, the case proceeded to trial. At trial, the District's 2009 performance

assessment of Respondent was offered into evidence. Respondent received marks of

exceeds expectations or meets expectations in all categories assessed. The

assessment also recommended Respondent for rehire for the 2010-2011 school year.

Further testimony indicated that Respondent wrote very detailed reports and was

considered one of the top SPEs in the District by her co-workers.

Evidence regarding the interviewing process was also introduced at trial. Such

evidence included the scores given and the notes taken by each interviewing committee

member during the applicants' interviews. The notes reflected that Respondent

received lower scores on some questions despite her giving the same or better answers

than younger applicants. The evidence further established that, as a result of the

interview, the four eldest applicants, one of which was Respondent, were not hired while

the four youngest applicants were offered ED positions.

4
 Respondent further adduced evidence that the ED position was substantially the

same as the SPE position. Michael Champan and Lori Jackson-Thurman, two former

SPEs that were hired for the ED position, testified that the ED position differed from the

SPE position only in minor, procedural aspects. They further testified that the District

never implemented the counseling component and that the District never filled all the

ED positions for the 2010-2011 school year. Jackson-Thurman offered additional

testimony that McNellis told her that McNellis would "kill her" if she helped an older SPE

prepare for the interview. Respondent likewise testified that, early in the 2009-2010

school year, McNellis instructed her not to help a new SPE, who was then sixty-one

years old, learn how to score certain tests.

Thomas Levin, a former principal in the District, also testified on behalf of

Respondent. The District objected to Levin testifying at trial. The trial court overruled

the objection after finding that there was sufficient commonality between Levin's and

Respondent's experiences. Levin testified that he had to re-interview for his position for

the 2010-2011 school year due to the District's downsizing. He further explained that

Dr. Hernandez performed his final performance assessment and that he had an age

discrimination action currently pending against the District.

Also during Levin's testimony, an early draft of the District's Transformation Plan

("the Draft") was introduced into evidence as Exhibit 156. Levin testified that he

downloaded the Draft from the District's website after the District advised him to become

familiar with it. The District objected to the Draft's admission on foundational grounds.

The District further objected to the Draft on the basis that community members were
5
permitted to contribute to the Draft. The District argued that because of the

community's participation, the language in the Draft about which Levin was going to

testify could not be attributed to the District. The trial court overruled the objections, and

a stipulation3 was read to the jury explaining that District employees and community

members contributed to the Draft, and the Draft was not the final plan approved and

adopted by the District.

Levin then testified that page 66 of the Draft provided: "In times of strong change,

it is often senior staff who hold onto the old culture of an organization. The District

encourages the retirement of those who know that they may not be able to keep up with

the changes necessary to raise student achievement." On cross-examination, Levin

testified that he knew that members of the community participated in the making of the

Draft and that he was unsure whether the District or a member of the community drafted

the language that appeared on page 66.

As to damages, Respondent testified that because she was not offered the ED

position, she lost $247,083.78 in wages and benefits. However, she did explain that

she had been employed since she retired from the District and had earned $106,134.64.

She further testified that she was very upset and embarrassed when she was not hired

as an ED, especially in light of the fact that she was in the process of purchasing a new

home.

3
The parties agreed to the stipulation, but the District did so on the basis that it was “not waiving [its]
objection” to the Draft’s admission into evidence.
6
 Ultimately, the District's motions for directed verdict were denied, and the case

was submitted to the jury. The jury found in favor of Respondent and awarded her

$247,083.78 in actual damages and $200,000.00 in punitive damages. Post-trial, the

District filed a motion for judgment notwithstanding the verdict ("JNOV") or, in the

alternative, a motion for new trial. The District also filed a motion for remittitur alleging

the damages award was excessive. Respondent opposed the District's motions and

filed her own post-trial motion for equitable relief requesting that she be reinstated to an

ED position with the District. On June 3, 2013, the trial court denied the District's motion

for JNOV and motion for remittitur, but granted Respondent's request for reinstatement.

The District now raises eight points on appeal.

In its first point, the District contends that the trial court erroneously instructed the

jury. In particular, the District avers that Instruction No. 6 mislead and confused the jury

because it was an improper alteration of MAI 38.01. The District further asserts that the

trial court erred in rejecting its proposed instructions, which it contends were consistent

with MAI 38.01. "Whether a jury was instructed properly is a question of law that this

Court reviews de novo." Doe 1631 v. Quest Diagnostics, Inc., 395 S.W.3d 8, 13 (Mo.

banc 2013). "We view the evidence most favorably to the instruction and disregard

contrary evidence." Rinehart v. Shelter Gen. Ins. Co., 261 S.W.3d 583, 593 (Mo. App.

W.D. 2008) (internal quotation omitted). “If a jury instruction does not follow an

applicable Missouri Approved Instruction (MAI), such errors are presumed to prejudice

the defendant unless it is clearly established that the error did not result in prejudice.”

Doe 1631, 395 S.W.3d at 13 (internal quotation omitted). Nevertheless, “to be
7
reversible, the error must materially affect the merits of the case,” and “a new trial is

required only if the offending instruction misdirected, misled, or confused the jury,

resulting in prejudicial error." Id. (internal quotation omitted).

The parties agree that MAI 38.01 is the proper instruction in this case. MAI 38.01

provides:

Your verdict must be for plaintiff if you believe:

First, defendant (here insert the alleged discriminatory act, such as
"failed to hire", "discharged" or other act within the scope of §
213.055 RSMo) plaintiff, and

Second, (here insert one or more of the protected classifications
supported by the evidence such as race, color, religion, national
origin, sex, ancestry, age, or disability) was a contributing factor in
such (here, repeat alleged discriminatory act, such as "failure to
hire", "discharge", etc.), and

Third, as a direct result of such conduct, plaintiff sustained damage.

Respondent offered the following MAI 38.01 instruction as modified by MAI 19.01:

Your verdict must be for Plaintiff Janet Hurst if you believe:

First, Defendant either:

Eliminated Plaintiff's position as a School Psychological
Examiner, or

Failed to hire Plaintiff as an Educational Diagnostician, and

Second, Plaintiff's age was a contributing factor in Defendant's
conduct in any one or more of the respects submitted in paragraph
First, and

Third, such conduct directly caused or directly contributed to
cause damage to Plaintiff.

(Emphasis added).
8
 The District asserts that the trial court erred in modifying paragraph Third with the

MAI 19.01 "directly caused or directly contributed to cause" language because MAI

19.01 is intended strictly for comparative negligence cases. However, Missouri cases

addressing the application of MAI 19.01 have rejected such argument. See Mathes v.

Sher Express, L.L.C., 200 S.W.3d 97, 109 (Mo. App. W.D. 2006) (explaining that MAI

19.01 is not limited to negligence cases); Eagleburger v. Emerson Elec. Co., 794

S.W.2d 210, 224 (Mo. App. S.D. 1990) (same). Rather, as this Court has noted on

several occasions, "[a] requesting party is . . . entitled to use the MAI 19.01 modification

language in cases in which there are multiple causes of damage" even if the case does

"not involve another party or tortfeasor." Wright v. Barr, 62 S.W.3d 509, 529 (Mo. App.

W.D. 2001) (internal quotation omitted); see also Rinehart, 261 S.W.3d at 593; Mathes,

200 S.W.3d at 109. Therefore, the District's contention that the instruction was

erroneous because MAI 19.01 is intended solely for comparative negligence cases is

without merit.

In its reply brief, the District acknowledges that MAI 19.01 has been applied

outside of the comparative negligence context. Nevertheless, the District continues to

assert that the MAI 19.01 modification cannot be used in MHRA discrimination cases.

While the District correctly asserts that no case law exists in which the MAI 19.01

modification has been used in an MHRA case, that does not exclude the possibility that

MAI 19.01 could properly be applied in such cases. As previously explained, MAI 19.01

is intended for situations in which "there are multiple causes of damage." Wright, 62

S.W.3d at 529 (internal quotation omitted). Case law discussing the applicability of MAI
9
19.01 focuses on that intended use and does not suggest MAI 19.01's application is

limited to specific causes of action. Therefore, we cannot find instructional error in this

case based solely upon the fact that the trial court applied the MAI 19.01 modification in

an MHRA case.

Moreover, even if the MAI 19.01 modification proved inapplicable to this case,4

there is no indication in the record that the instruction materially affected the merits of

this case. Accordingly, we cannot say the trial court's instructions in this case

constituted reversible error.5 Point denied.

In its second point, the District avers that the trial court erred in denying its

motion for directed verdict and motion for JNOV because the District was entitled to

4
Respondent contends that she was entitled to the MAI 19.01 modification because the case involved
multiple causes of damage. Respondent bases her contention on the fact that she requested actual
damages in the form of lost wages and benefits. And while she argued that her lost wages and benefits
resulted from the District’s elimination of the SPE position and its failure to hire her for the ED position,
the District argued that any damages Respondent sustained resulted from her decision not to accept the
fifth-grade teaching position. Thus, Respondent avers that multiple causes of damage were argued
before the jury, requiring the MAI 19.01 modification be used. However, any argument by the District
regarding Respondent’s decision not to accept the teaching position goes toward its defense that
Respondent failed to mitigate her damages. Mitigation of damages is a principle that occurs “after breach
and injury have been inflicted.” Burrell ex rel. Schatz v. O’Reilly Auto., Inc., 175 S.W.3d 642, 651 n.10
(Mo. App. S.D. 2005) (emphasis in original). Therefore, Respondent’s alleged failure to mitigate
damages cannot also constitute a cause of damage.
5
The District also contends that the trial court erred by refusing to submit the two instructions it proposed
in place of Instruction No. 6. During the instruction conference, the District argued that two instructions
were necessary in place of Instruction No. 6 because an age discrimination claim for failure to hire
requires the plaintiff to prove a fourth element – that the applicant was qualified for the position. The
District asserted that this fourth element was not required in Respondent’s claim regarding the elimination
of her SPE position thereby necessitating separate instructions for each of the alleged discriminatory
acts. On appeal, the District contends its proposed instructions were consistent with MAI 38.01, and,
thus, the trial court should have submitted its instructions to the jury. However, MAI 38.01 specifically
indicates that it applies to MHRA claims regarding failure to hire and it does not include a paragraph
requiring the jury to find that the plaintiff was qualified for the position. To that extent, the District’s
proposed instructions are inconsistent with MAI 38.01; therefore, the trial court did not err in refusing to
submit them to the jury.

10

0
judgment as a matter of law in that Respondent failed to make a submissible case that

she was damaged as a direct result of the District's decision to eliminate the SPE

position or its failure to hire her for the ED position. "The standards of review for denial

of a motion for directed verdict and denial of a motion for judgment notwithstanding the

verdict are essentially the same." DeWalt v. Davidson Serv./Air, Inc., 398 S.W.3d

491, 498 (Mo. App. E.D. 2013). "To defeat either motion, the plaintiff must make a

submissible case by offering substantial evidence to support every fact essential to a

finding of liability." Id. We view "the evidence 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." Sanders v. Ahmed, 364

S.W.3d 195, 208 (Mo. banc 2012). This Court will reverse a jury verdict only where we

find a complete absence of probative facts to support the jury's conclusion. Id.

The District avers that Respondent failed to proffer substantial evidence that she

was damaged as a direct result of the District's decision to eliminate her SPE position or

its failure to hire her for the ED position. In doing so, the District emphasizes that,

absent Respondent's decision not to accept the fifth-grade teaching position, she would

have continued to enjoy the same wages and benefits as the ED position. The District's

argument, however, pertains to its failure-to-mitigate defense and overlooks the

substantial evidence Respondent offered with respect to the damages she incurred.

The District's contentions suggest that because Respondent failed to mitigate her

damages, she failed to make a submissible case as to damages. Such a proposition

cannot stand. "Mitigation of damages is not a complete bar to recovery, but rather
11

1
affects the measure of damages that is recoverable." Hertz Corp. v. RAKS

Hospitality, Inc., 196 S.W.3d 536, 548 (Mo. App. E.D. 2006). Therefore, while the

District's argument might affect the measure of damages Respondent can recover, it

does not affect the submissibility of this case with respect to damages.

Moreover, the record reflects that Respondent provided substantial evidence on

the element of damages. At trial, Respondent testified that, as a result of the District

eliminating her SPE position and its failure to hire her as an ED, she incurred

$247,083.78 in lost wages and benefits. Respondent, therefore, established that she

suffered economic damages as a result of the District's failure to hire her for the ED

position. Additionally, Respondent pleaded that she incurred damages for emotional

distress, humiliation, and anxiety.6 Respondent testified that she was embarrassed and

upset when the District failed to hire her as an ED. She further explained that not being

hired caused additional anxiety because, at the time, she was in the process of

purchasing a new home. Thus, when viewed in the light most favorable to the verdict,

Respondent made a submissible case with respect to damages. Point denied.

In its third point, the District contends that the trial court erred in denying its

motion for directed verdict and JNOV or, in the alternative, its motion for remittitur,

because the District was entitled to judgment as a matter of law in that the $247,083.78

jury verdict was not supported by substantial evidence because Respondent failed to

mitigate her damages. However, the "[f]ailure to mitigate damages is an affirmative

6
Such damages are recoverable under the MHRA. See State ex rel. Sir v. Gateway Taxi Mgmt. Co.,
400 S.W.3d 478, 491 (Mo. App. E.D. 2013) (explaining that “[a]ctual damages include damages for
emotional distress, humiliation, and deprivation of civil rights” under the MHRA).
12

2
defense," Peel v. Credit Acceptance Corp., 408 S.W.3d 191, 201 (Mo. App. W.D.

2013), and "[d]efendants carry the burden of proof on all affirmative defenses." TA

Realty Assocs. Fund V, L.P. v. NCNB 1500, Inc., 144 S.W.3d 343, 347 (Mo. App.

E.D. 2004). A "trial court generally may not direct a verdict in favor of the party who

carries the burden of proof." Woodglen Estates Ass'n v. Dulaney, 359 S.W.3d 508,

512 (Mo. App. W.D. 2012) (internal quotation omitted). And although "there are

exceptions to the rule where the opponent admits the truth of the basic facts upon which

the claim of the proponent rests or the proof of the facts is altogether of a documentary

nature," id. (internal quotation omitted), a directed verdict generally "is not given in favor

of the party having the burden of proof no matter how overwhelming that party's

evidence may be or how minuscule the other party's evidence may be." Rouse v.

Cuvelier, 363 S.W.3d 406, 414 (Mo. App. W.D. 2012) (internal quotation omitted).

Here, the District's failure-to-mitigate defense derives from the fact that

Respondent declined the teaching position in which she would have received the same

pay and benefits as an ED. While Respondent admits that she declined the teaching

position, she does not concede that doing so constituted a failure to mitigate damages.

Under the rule of mitigation of damages, "one damaged through alleged breach by

another of some legal duty or obligation [has to] make reasonable efforts to minimize

the resulting damage." Cunningham v. Cunningham, 805 S.W.2d 363, 365 (Mo. App.

S.D. 1991) (internal quotation omitted). The defendant "must show that the injured

party had an opportunity to mitigate and the reasonable prospective consequences."

Business Men's Assur. Co. of Am. v. Graham, 891 S.W.2d 438, 448 (Mo. App. W.D.
13

3
1994). The rule bars recovery only of "those damages which could have been avoided

if reasonable precautions, reasonably known to the injured party, were exercised." Id.

Although Respondent admitted to declining the teaching position, she

vehemently argued to the jury that it would have been unreasonable for her to accept

the teaching position. Respondent testified that she did not take the teaching position

because she felt unprepared in that she had not taught in a classroom setting for over

thirty-seven years, she was offered the position two weeks before school was

scheduled to start, and the position would be at a "turn-around school." She further

testified that, after reading a comprehensive memo provided by the school, she felt that

she "could not do an adequate job teaching th[e] classroom" and "didn't feel [she] would

be doing justice to the job, to the children, [or] to the parents." Respondent also

emphasized that, if she accepted the position, she would be acting contrary to the

District's policy of "[a]lways mak[ing] decisions based on the best interest of [the]

students." In light of such evidence, Respondent did not admit the basic facts

necessary to prove the District's defense that she failed to mitigate her damages. Thus,

the District was not entitled to a directed verdict on its failure-to-mitigate defense.

The District alternatively argues that the trial court erred in denying its motion for

remittitur. In particular, the District contends that the jury's award must be reduced by

$106,134.64, the amount Respondent earned through other employment after she

declined the teaching position. The District avers that the jury failed to consider

Respondent's $106,134.64 in earnings when determining the damages award because

the jury awarded Respondent $247,083.78, which was the exact amount of lost wages
14

4
and benefits Respondent incurred from not being hired as an ED. The District further

asserts that Respondent's request for non-economic damages cannot justify the

$247,083.78 award.

"We review the trial court's denial of a motion for remittitur for an abuse of

discretion." Merseal v. Farm Bureau Town & Country Ins. Co. of Mo., 396 S.W.3d

467, 474 (Mo. App. E.D. 2013) (internal quotation omitted). This Court "will not disturb

the trial court's decision on appeal absent an abuse of discretion so grossly excessive

that it shocks the conscience and convinces us that both the trial judge and the jury

have abused their discretion." Id. "We give deference to the trial court's decision

whether to remit a verdict as the trial court is in a superior position to observe the

testimony at trial." Id. at 475.

A trial court "may enter a remittitur order if, after reviewing the evidence in

support of the jury's verdict, the court finds that the jury's verdict is excessive because

the amount of the verdict exceeds fair and reasonable compensation for plaintiff's

injuries and damages." § 537.068.7 "Each case must be examined on its own facts" as

no precise formula exists in determining whether a verdict is excessive. Evans v.

FirstFleet, Inc., 345 S.W.3d 297, 303 (Mo. App. S.D. 2011). In evaluating the

reasonableness of a verdict, courts typically consider the following factors: "(1) loss of

present and future income; (2) medical expenses; (3) plaintiff's age; (4) the nature and

extent of plaintiff's injuries; (5) economic considerations; (6) awards approved in

comparable cases; and (7) the trial court's and jury's superior opportunity to evaluate

7
All statutory citations are to RSMo 2000 unless otherwise noted.
15

5
plaintiff's injuries and other damage." Knifong v. Caterpillar, Inc., 199 S.W.3d 922,

928 (Mo. App. W.D. 2006) overruled on other grounds by Badahman v. Catering St.

Louis, 395 S.W.3d 29, 40 (Mo. banc 2013). Additionally, a "judgment may be based in

part on 'certain intangibles' that do not lend themselves to precise calculation, such as

past and future pain, suffering, effect on life-style, embarrassment, humiliation, and

economic loss." Id. (internal quotation omitted). Such intangibles must also be taken

into consideration when evaluating the reasonableness of the jury's verdict.

Respondent pleaded that she suffered damages in the form of lost wages and

lost benefits as well as damages for emotional distress. At trial, Respondent testified

that her economic damages totaled $247,083.78 in lost wages and benefits but that she

had earned $106,134.64 through other employment since her retirement. Respondent

further testified that she was very upset and embarrassed when she was not hired as an

ED. She also explained that not being hired caused additional anxiety because she

was in the process of purchasing a new home. And while such non-economic damages

do not lend themselves well to precise calculation, Respondent requested, in closing

argument, that the jury award between $280,000 and $420,000 in damages for the

emotional distress and humiliation she suffered as a result of not being hired as an ED.

Given such evidence, we cannot say that the jury's verdict was excessive. Thus, the

trial court did not abuse its discretion in denying the District's motion for remittitur. Point

denied.

In its fourth point, the District contends the trial court erroneously instructed the

jury on the issue of punitive damages. Before we address this point, however, we will
16

6
first address the District's fifth point, as our analysis of Point V is helpful in resolving the

District's challenge to the punitive damages award.

In its fifth point, the District contends that the trial court erred in denying its

motion for directed verdict and motion for JNOV because Respondent failed to make a

submissible MHRA age discrimination claim. Again, in reviewing the denial of a motion

for directed verdict or the denial of a motion for JNOV, we must determine whether the

plaintiff made a submissible case. DeWalt, 398 S.W.3d at 498. In doing so, we view

"the evidence 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." Sanders, 364 S.W.3d at 208.

Respondent alleged that the District violated the MHRA by eliminating her SPE

position or by failing to hire her for the ED position because of her age. Section

213.055 provides that an employer commits an unlawful employment practice by failing

or refusing to hire, by discharging any individual, or by otherwise discriminating "against

any individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual's race, color, religion, national origin, sex,

ancestry, age or disability." § 213.055.1(1). A "plaintiff can prove discrimination by

showing age or any protected characteristics was a contributing factor for the

employment action regardless if other factors also exist." Stanley v. JerDen Foods,

Inc., 263 S.W.3d 800, 803-04 (Mo. App. W.D. 2008) (internal quotation omitted). Thus,

in order to make a submissible age discrimination claim in this case, Respondent had to

present sufficient competent evidence from which a reasonable trier of fact could find:
17

7
(1) that Respondent is in a protected age classification; (2) that the District eliminated

Respondent's SPE position or failed to hire her as an ED; (3) that the District's

consideration of Respondent's age contributed to its decision to eliminate her SPE

position or its failure to hire her as an ED; and (4) that Respondent was thereby

damaged. See § 213.055.1; Thomas v. McKeever's Enters. Inc., 388 S.W.3d 206,

214 (Mo. App. W.D. 2012).

The District contends that Respondent failed to make a submissible case

because Respondent did not establish that age was a contributing factor in its decision

to eliminate the SPE position or its failure to hire her for the ED position. However,

when viewed in the light most favorable to the verdict, there is sufficient competent

evidence from which a reasonable juror could conclude age was a contributing factor.

The record reflects that twelve SPEs remained employed at the time of the

interview, and there were twelve ED positions available for the 2010-2011 school year.

Yet the District made all SPEs interview for the ED position. The District never

implemented the counseling component, which was the supposed purpose for

reconstituting the SPE position, and the twelve ED positions were never filled for the

2010-2011 school year. Furthermore, despite the fact that the ED position was

supposed to involve a counseling component, the only two SPEs with counseling

experience, one of which was 63 years old, were not hired as EDs.

McNellis was involved in the decision to reconstitute the SPE position as well as

developing the questions and model answers for the ED interview. McNellis was also a

member of the interviewing committee. Testimony at trial reflected that early in the
18

8
2009-2010 school year, McNellis instructed Respondent not to help a new, older SPE

learn how to score certain tests. Similarly, testimony from Jackson-Thurman indicated

that McNellis stated that McNellis would "kill her" if she helped an older SPE prepare for

the ED interview.

The District had informed applicants that it would consider their past performance

in its hiring decisions. Nevertheless, the District ultimately based its hiring decisions

solely on the scores from the applicants' interviews. As a result of the interview

process, the four eldest SPEs were not hired for ED positions. The four youngest

applicants, however, were offered ED positions.

From such evidence, a reasonable juror could have found that the District's

proffered explanation for eliminating the SPE position was false and inferred

discriminatory purpose on the District's behalf given McNellis's comments about helping

older SPEs and the result of the interviewing process. See Lomax v. DaimlerChrysler

Corp., 243 S.W.3d 474, 483 (Mo. App. E.D. 2007) (explaining that, "in appropriate

circumstances[,] the trier of fact can reasonably infer from the falsity of the explanation

that the employer is dissembling to cover up a discriminatory purpose") (internal

quotation omitted). Thus, Respondent made a submissible age discrimination claim

with respect to the District's elimination of her SPE position.

As to the District's failure to hire Respondent, evidence at trial established that

Respondent had received a positive review in her last performance assessment. The

assessment indicated that Respondent exceeded expectations or met expectations in

all categories assessed. In fact, the assessment recommended she be rehired for the
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2010-2011 school year. The District, however, did not consider the assessment when

making its hiring decisions for the ED position. Instead, the District based its hiring

decisions solely on Respondent's interview score despite the fact it had previously told

the applicants it would consider their work performance history. Evidence from the

interview process indicated that Respondent was scored lower on several questions

than younger applicants even though she gave the same or better answers. In

particular, McNellis scored Respondent lower than a younger applicant on a question in

which Respondent gave the same answer as the younger applicant. And again, as a

result of the interview, the four eldest SPEs, one of which was Respondent, were not

hired as EDs. From such evidence, a reasonable juror could conclude that age was a

contributing factor in the District's failure to hire Respondent as an ED. Accordingly,

Respondent made a submissible age discrimination claim under the MHRA. Point

denied.

In returning to the District's fourth point, it contends that the trial court erred in

denying its motion for JNOV because Respondent failed to make a submissible case as

to punitive damages. "Whether there is sufficient evidence for an award of punitive

damages is a question of law." Howard v. City of Kansas City, 332 S.W.3d 772, 788

(Mo. banc 2011) (internal quotation omitted). Thus, we must determine whether the

evidence presented was sufficient, as a matter of law, to submit the claim for punitive

damages. Id. (internal quotation omitted). "In doing so, we view the evidence and all

reasonable inferences in the light most favorable to submissibility." Id. (internal

quotation omitted). We evaluate punitive damages awards on a case-by-case basis.
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Holmes v. Kansas City Mo. Bd. of Police Comm'rs ex rel. Its Members, 364 S.W.3d

615, 628 (Mo. App. W.D. 2012).

"To make a submissible case for punitive damages, there must be clear and

convincing proof of a defendant's culpable mental state." J.M. Neil & Assocs., Inc. v.

Alexander Robert William, Inc., 362 S.W.3d 21, 24 (Mo. App. W.D. 2012) (internal

quotation omitted). "A plaintiff establishes a defendant's culpable mental state by

showing either that the defendant committed an intentional wanton, willful, and

outrageous act without justification or acted with reckless disregard for the plaintiff's

rights and interest." Id. (internal quotation and emphasis omitted). Moreover, an act is

committed wantonly and with bad motive "[i]f a defendant intentionally does a wrongful

act, and knows at the time the act was wrongful." Claus v. Intrigue Hotels, LLC, 328

S.W.3d 777, 783 (Mo. App. W.D. 2010) (internal quotation omitted) overruled on other

grounds by Badahman, 395 S.W.3d at 40.

The District contends that Respondent failed to make a submissible case for

punitive damages because there was no clear and convincing evidence in the record of

its evil motive, outrageous conduct, or reckless indifference to the rights of Respondent.

However, a "plaintiff may . . . show the discriminatory conduct supporting punitive

damages by circumstantial evidence." Holmes, 364 S.W.3d at 629. Thus,

Respondent's "evidence in support of her MHRA claim may also meet her burden for

submitting punitive damages to the jury." Id.

As previously explained, a juror could reasonably infer that the District had

ulterior motives in eliminating the SPE position, as the reasons for reconstituting the
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SPE position never came to fruition. Moreover, McNellis, who was involved in the

decision to reconstitute the SPE position, made comments that discouraged the helping

of older SPEs. And as a result of the interviewing process, which McNellis also

participated in, the four eldest SPEs were not hired. Additional evidence indicated that

Respondent had received positive reviews on her previous assessments. Yet, those

assessments were not considered when the District made its hiring decisions. Instead,

the District relied solely on Respondent's interview, during which she was scored lower

than younger applicants despite the fact that she gave the same or better answers.

From such evidence, the jury determined that age was a contributing factor in the

District's decision to eliminate Respondent's SPE position or its failure to hire

Respondent as an ED. Thus, it follows that, viewed in the light most favorable to

submissibility, the evidence indicates the District's culpable mental state in that it acted

with intentional disregard for Respondent's rights when it decided, because of her age,

to reconstitute the SPE position and not to hire her as an ED. Accordingly, Respondent

made a submissible case for punitive damages, and the trial court did not err in denying

the District's motion for JNOV with respect to that issue. Point denied.

In its sixth point, the District avers that the trial court abused its discretion by

admitting the testimony of Thomas Levin because Levin's testimony was irrelevant to

Respondent's discrimination claims, had no probative value, and was unfairly

prejudicial. "Generally, a trial court has considerable discretion in admitting or excluding

evidence." St. Louis Cnty. v. River Bend Estates Homeowners' Ass'n, 408 S.W.3d

116, 123 (Mo. banc 2013). We "give deference to the trial court's evidentiary rulings
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and will reverse the trial court's decision about the admission or exclusion of evidence

only if the trial court clearly abused its discretion." Id. "When reviewing for an 'abuse of

discretion,' this Court presumes the trial court's ruling is correct and reverses only when

the ruling is clearly against the logic of the circumstances, is arbitrary and

unreasonable, and indicates a lack of careful consideration." Id. (internal quotation

omitted). "Upon finding an abuse of discretion, this court will reverse only if the

prejudice resulting from the improper admission of evidence is outcome-determinative."

Williams v. Trans States Airlines, 281 S.W.3d 854, 872 (Mo. App. E.D. 2009).

Evidence must be both logically and legally relevant in order to be admissible.

Claus, 328 S.W.3d at 786. "Evidence is logically relevant if it tends to make any fact at

issue more or less probable or tends to corroborate other relevant evidence." Id. at

786-87 (internal quotation omitted). "To be legally relevant, the probative value of the

evidence must outweigh the dangers of unfair prejudice, confusion of the issues,

misleading the jury, undue delay, waste of time or needless presentation of cumulative

evidence." Kline v. City of Kansas City, 334 S.W.3d 632, 643 (Mo. App. W.D. 2011)

(internal quotation omitted).

The District contends that Levin's testimony was inadmissible because it

constituted improper "me too" evidence in that Levin also had an age discrimination suit

pending against the District. In support of its argument, the District cites to several

federal cases that have either upheld the trial court's exclusion of evidence of other

discrimination complaints against the defendant, see McPheeters v. Black & Veatch

Corp., 427 F.3d 1095, 1102 (8th Cir. 2005); Kline v. City of Kan. City, 175 F.3d 660,
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668 (8th Cir. 1999); Callanan v. Runyan, 75 F.3d 1293, 1298 (8th Cir. 1996), or found

such evidence to be inadmissible. See Schrand v. Fed. Pac. Elec. Co., 851 F.2d 152,

156 (6th Cir. 1988); Haskell v. Kaman Corp., 743 F.2d 113, 121-22 (2d Cir. 1994).

Those cases, however, determined the admissibility of such "me too" evidence based

upon the particular facts and circumstances of each case. Thus, there is no blanket

exclusion in discrimination cases of evidence regarding other complaints of

discrimination made against the defendant. Rather, the relevancy of such evidence

must be reviewed on a case-by-case basis. See Sprint/United Mgmt. Co. v.

Mendelsohn, 552 U.S. 379, 387, 128 S. Ct. 1140, 1147 (2008).

Furthermore, even if we were to assume, arguendo, that Levin's testimony was

improperly admitted in this case, the District has failed to establish how it was

prejudiced by his testimony. The District contends that Levin's testimony "creat[ed] the

unfair prejudicial impression that because he claimed [the District] failed to hire him as a

principal based on his age, Respondent's claims that she was not hired for the ED

position based on age discrimination were more likely to be true." However, the

majority of Levin's testimony pertained to the process of how he, like Respondent, was

not guaranteed a position with the District for the 2010-2011 school year and had to go

through an interview process. Levin further testified about his interactions with Dr.

Hernandez and how she was assigned to give him a performance evaluation. The only

testimony regarding Levin's age discrimination suit occurred at the conclusion of his

direct examination. In testifying about the suit, Levin simply answered affirmatively that

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he had filed an age discrimination claim against the District that was currently pending. 8

Under such circumstances, we cannot say that any perceived prejudice resulting from

Levin's testimony was outcome-determinative. Point denied.

In its seventh point, the District contends that the trial court erred in denying its

motion for new trial in that the trial court abused its discretion by admitting the Draft

transformation plan into evidence. The District avers the Draft was inadmissible in that

it lacked foundation, had no probative value, and was highly prejudicial. Again, we

afford great deference to the trial court's evidentiary rulings regarding the exclusion and

admittance of evidence. River Bend Estates, 408 S.W.3d at 123. Thus, even "[u]pon

finding an abuse of discretion, this court will reverse only if the prejudice resulting from

the improper admission of evidence is outcome-determinative." Williams, 281 S.W.3d

at 872.

The District contends that the admission of the Draft was highly prejudicial

because Respondent was permitted to attribute the allegedly age-insensitive remarks

on page 66 to the District without any evidence that the District was responsible for

those statements. However, the record reflects that the jury was clearly informed as to

the community's participation in the drafting process. Prior to Levin's testimony

regarding the language on page 66, the following stipulation was read to the jury:

Exhibit 156 is a draft of the District's transformation plan to which both
District employees and community members have the opportunity to
contribute. It is not the final transformation plan in the form approved and
adopted by the Board of Education.

8
The District did not object to such testimony at trial.
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On cross-examination, Levin testified that the community was involved in the drafting

process and that he did not know who came up with the language that appeared on

page 66. The final version of the transformation plan ultimately adopted and approved

by the District was later admitted into evidence, and it was made clear to the jury that

the adopted version did not include the allegedly inappropriate age-related remarks that

appeared on page 66 of the Draft. Accordingly, even assuming arguendo that it was

error to admit the draft, and further that the District could have been prejudiced by the

draft's admission, any such prejudice was negated by the stipulation and the

subsequent testimony. Thus, the trial court did not err in denying the District's motion

for new trial. Point denied.

In its eighth point, the District asserts that the trial court erred in granting

Respondent's motion for the equitable relief of reinstatement. The District concedes

that such equitable relief is available under the MHRA. See § 213.111. Nevertheless, it

asserts that awarding reinstatement in this case constituted an abuse of discretion

because Respondent turned down the fifth-grade teaching position it offered her for the

2010-2011 school year. The District, however, fails to cite any legal authority for its

contention. Furthermore, "[r]einstatement is the preferred remedy for unlawful

employment discrimination." Brady v. Curators of Univ. of Mo., 213 S.W.3d 101, 113

(Mo. App. E.D. 2006); see also Gilliland v. Mo. Athletic Club, 273 S.W.3d 516, 524

(Mo. banc 2009). Accordingly, the trial court did not abuse its discretion in granting

Respondent's request for reinstatement. Point denied.

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 Finally, Respondent has filed a motion in this Court for attorneys' fees and costs

on appeal. Pursuant to § 213.111.2, a court "may award court costs and reasonable

attorney fees to the prevailing party." "A prevailing party is one that succeeds on any

significant issue in the litigation which achieved some of the benefit the parties sought in

bringing suit." Holmes, 364 S.W.3d at 631 (internal quotation omitted). "Where a

plaintiff has prevailed in an action under the MHRA, the court should award attorneys'

fees unless special circumstances would render such an award unjust." McCrainey v.

Kansas City Mo. Sch. Dist., 337 S.W.3d 746, 756 (Mo. App. W.D. 2011) (internal

quotation omitted). Here, because we are affirming the judgment in favor of

Respondent, Respondent is the prevailing party. Therefore, Respondent's motion for

costs and attorneys' fees on appeal is sustained. However, since the trial court is better

equipped to hear evidence and argument on the issue of costs and attorneys' fees, we

remand the case to the trial court for the purpose of conducting a hearing to determine

the reasonableness of the costs and fees requested, and to enter an appropriate award.

Id.

Accordingly, the judgment is affirmed. Nevertheless, because we are granting

Respondent's motion for costs and attorneys' fees, we remand the case to the trial court

for further proceedings consistent with this opinion.

________________________________
Joseph M. Ellis, Judge
All concur.
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