In the
Missouri Court of Appeals
Western District
TARSHISH JONES, )
)
Respondent, ) WD81671
)
v. ) OPINION FILED:
) February 13, 2019
CITY OF KANSAS CITY, )
MISSOURI, )
)
Appellant. )
Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Justine E. Del Muro, Judge
Before Special Division: Zel M. Fischer, Special Judge, Presiding, Cynthia L. Martin,
Judge and Gary D. Witt, Judge
The City of Kansas City, Missouri, ("City") appeals from a judgment entered
following a jury trial which found that the City discriminated against Tarshish Jones
("Jones") on the basis of race in violation of the Missouri Human Rights Act ("MHRA").1
The City argues the trial court erred in denying its motions for directed verdict and
1
RSMo section 213.010 et. seq. Unless otherwise noted, all statutory references to the MHRA are to RSMo
Supp. 2014, the version of the MHRA in effect at the time Jones filed a charge of discrimination in early 2015, and
at the time Jones filed his civil action in late 2015. Inexplicably, the City's Appendix includes a copy of sections
213.055, 213.075 and 213.111 as amended in 2017. The MHRA as amended in 2017 is not applicable to Jones's
case.
judgment notwithstanding the verdict ("JNOV"); in admitting Jones's expert witness
testimony; in excluding the City's expert witness testimony; and in awarding attorneys' fees
and costs. Finding no error, we affirm, and remand this matter for consideration of Jones's
pending motion for an award of attorneys' fees incurred subsequent to the entry of
judgment.
Factual and Procedural Background2
Jones was employed as a firefighter with the Kansas City Fire Department
("KCFD") for more than 19 years. Jones was promoted to fire apparatus operator ("FAO")
in 2003. After promotion to FAO, Jones sought promotion to captain on five separate
occasions. Relevant to this case, Jones, an African-American, sought promotion to captain
in 2012.
To be eligible for promotion to captain, a candidate must have ten years of service
and a prior promotion to FAO. A candidate must also complete the captain's promotional
process. When Jones sought promotion to captain in 2012, the captain's promotional
process included four components. Each component was separately scored and equally
weighted. The component scores were compiled to produce a composite score. A rankings
list ("promotional roster") was then generated listing candidates from highest to lowest
rank based on composite scores. The promotional roster controlled who was promoted to
captain for two years, as vacancies were filled as they arose based solely on rank. It is not
2
"On appeal in a jury-tried case, we review the evidence and reasonable inferences therefrom in a light
most favorable to the jury's verdict, disregarding evidence to the contrary." Dubinsky v. U.S. Elevator Corp., 22
S.W.3d 747, 749 (Mo. App. E.D. 2000) (citing Seitz v. Lemay Bank and Trust Co., 959 S.W.2d 458, 461 (Mo. banc
1998)).
2
possible to determine how many candidates will be promoted from a promotional roster,
as the number of captain vacancies can vary greatly from year to year.
The 2012 captain's promotional process materials were created by the KCFD with
the assistance of an outside contractor. Three of the four components used in the 2012
captain's promotional process involved a written multiple-choice test, a tactical exercises
test, and consideration of seniority up to 25 years. The fourth component was a scenario-
based situational exercise (the "SE component"). The SE component is the only part of the
2012 captain's promotional process at issue in this case.
During the SE component exercise, candidates responded to three employee-based,
management scenarios. The responses were video-taped. Each candidate received the
same scenarios and was given four minutes to respond to each scenario.
The video-taped responses were watched by three assessors and independently
scored. In 2012, the assessors were drawn from an internal pool of KCFD employees
holding the rank of captain or higher.3 The guidelines to initially score the SE component
were developed with the assistance of the outside contractor, and included a benchmark
rubric used to "check-off" certain topics when mentioned by a candidate. However, the
guidelines were essentially subjective in nature, with the only mandatory scoring
instruction being that ultimately, the assessors had to assign scores for each candidate in
each scoring area within 1 point of each other. To satisfy this objective, the assessors met
after independently scoring the candidates, and bartered or advocated for certain
3
In 2014, the captain's promotional process was changed so that external assessors were used to score the
SE component and the tactical exercises component.
3
candidates, with initial scores adjusted accordingly. This bartering process sometimes
involved reviewing the videotaped responses of candidates to discuss a particular assessor's
judgment about a response, and sometimes included advocacy by an assessor based on
factors beyond those identified in the written scoring guidelines. Ultimately, after the
bartering process, a composite score would be agreed upon as the candidate's SE
component score. The notes used by the assessors to score the SE component were then
destroyed, rendering it impossible to document the initial scores given by each assessor, or
the manner in which scores changed during the bartering process.
During the 2012 captain's promotional process, Jones scored well on the multiple
choice, tactical exercise, and seniority components. However, Jones only scored a 2.5 out
of 7.0 on the SE component. Because of the low SE component score, Jones's composite
score ranked him as the 42nd candidate eligible for promotion to captain on the
promotional roster. Jones requested a review of his composite score, but his position on
the promotional roster remained unchanged.
The 2012 promotional roster was used to promote candidates to captain through
2014. During that time, the top 17 candidates on the list were promoted to 16 captain
vacancies,4 with the last promotion occurring on December 14, 2014.
On January 23, 2015, Jones filed a charge of discrimination with the Missouri
Commission on Human Rights ("MCHR"). Jones subsequently received a notice of right
4
The death of one of the candidates ranked high on the promotional roster explains the discrepancy.
4
to sue letter, and then filed a race discrimination lawsuit in the Circuit Court of Jackson
County on November 24, 2015.
At trial, Deputy Chief Garrett, who had previously served as an SE component
assessor, but who did not serve as an assessor during the 2012 captain's promotional
process, testified that African-American candidates were routinely underscored in the SE
component in comparison to Caucasian candidates. Deputy Chief Garrett also testified that
he could not recall a single African-American candidate who benefitted from the bartering
process that occurred after initial scores were assigned by assessors. The jury heard
evidence that although assessors were trained on the SE component scoring rubric and
process, they did not receive any training to avoid implicit or explicit racial bias in scoring
candidates.
Jones learned through discovery, and shortly before trial, that his SE component
assessors had been Brian Cooley, C.J. Stevens, and Richard Davis ("Davis"). Davis, a
KCFD captain, was placed on the 2012 SE component assessor panel as a designated
minority member, although Davis refuses to self-identify as an African-American. Davis
testified at trial that other assessors told him (he claimed jokingly) that he was harder on
African-American candidates than Caucasian candidates.
Jones presented expert witness testimony from two former KCFD battalion chiefs
who independently reviewed Jones's SE component score alongside the scores of five other
captain candidates evaluated during the 2012 captain promotional process. The expert
witnesses opined that Jones should have scored 5.4 on the SE component -- 2.9 points
higher than Jones's actual SE component score. Had Jones scored a 5.4 on the SE
5
component, he would have ranked 15th on the 2012 promotional roster, and he would have
been promoted to captain from the 2012 promotional roster.
The jury heard evidence that only 185 of the KCFD's 1,336 employees (13.5%) are
African-Americans; that only 17 of the KCFD's 199 captains (8.5%) are African-American;
and that only 3 of the KCFD's 27 battalion chiefs (11%) are African-American. In contrast,
40% of all City employees are African-American.
The City's equal employment opportunity and diversity manager acknowledged the
risk of injecting bias in employment decisions when candidates for promotion are
subjectively evaluated. Jones admitted evidence that the KCFD had not held any training
concerning race discrimination or diversity in more than three years, and that the KCFD
has never received training on implicit bias, while other City employees have received such
training. The jury heard testimony that several KCFD fire stations are racially-segregated,
and that KCFD Chief Paul Berardi was aware of complaints that African-American
firefighters are retaliated against when traded into a station with all Caucasian firefighters.
Witnesses testified to frequently hearing the word "n----r" and other racial slurs in the
workplace. Statistical evidence demonstrated that it takes significantly more time for an
African-American KCFD firefighter to be promoted than Caucasians.
Jones submitted his discrimination claim to the jury with a verdict director that
required the jury to find that the City failed to promote him through the 2012 captain's
promotional process, and that race was a contributing factor in this failure. The jury entered
a verdict in favor of Jones and against the City on Jones's claim of race discrimination
during the 2012 captain's promotional process, and awarded damages in the amount of
6
$356,694.69. The trial court entered judgment consistent with the jury's verdict, and
awarded Jones attorneys' fees in the amount of $662,862.50 after applying a multiplier of
125 percent, and costs in the amount of $44,913.49.
The City filed this timely appeal. Other relevant facts will be addressed in
connection with the City's points on appeal.
Analysis
The City asserts five points on appeal challenging the trial court's denial of the City's
motions for directed verdict and JNOV; the trial court's admission and exclusion of expert
witness testimony; and the trial court's calculation of attorneys' fees and costs.
Point One
The City's first point on appeal argues that the trial court erred in denying the City's
motions for directed verdict and JNOV because Jones failed to file his charge of
discrimination with the MCHR within 180 days of publication of the 2012 promotional
roster. The City argues that publication of the tainted promotional roster on November 24,
2012 was the discrete act of discrimination about which Jones complains pursuant to
section 213.075.1, and that use of the promotional roster for two years did not constitute a
continuing violation that extended the time for Jones to file an administrative complaint.5
5
Jones argues that the City has not preserved this argument for appellate review because: (i) the City argued
different triggering acts of discrimination in its motions for directed verdict and for JNOV than the trigger argued on
appeal; (ii) the City did not object to Instruction No. 7, the verdict director, on the basis of the statute of limitations,
and (iii) the City failed to tender an instruction submitting to the jury for determination disputed facts essential to
calculating the administrative filing deadline. We disagree.
We have reviewed the record and conclude that the City's motions for directed verdict and for JNOV did
raise (among other possible triggers) publication of the 2012 promotional roster on November 24, 2012 as a discrete
act of discrimination triggering the 180-day administrative complaint filing deadline.
In addition, the City included the affirmative defense of untimely filing of the administrative complaint in
its answer and motions for directed verdict and JNOV. The City did not waive this defense by failing to repeat the
7
As such, the City argues that Jones's January 23, 2015 administrative complaint with the
MCHR was untimely, preventing the submission of his civil claim of discrimination as a
matter of law.6
"The standard for reviewing a denied motion for JNOV is essentially the same as
for reviewing the denial of a motion for directed verdict." Sanders v. Ahmed, 364 S.W.3d
195, 208 (Mo. banc 2012). This standard is "whether the plaintiff made a submissible
case." Medical Plaza One, LLC v. Davis, 552 S.W.3d 143, 153 (Mo. App. W.D. 2018).
"'Whether the plaintiff made a submissible case is a question of law subject to de novo
review.'" Wagner v. Bondex Intern., Inc., 368 S.W.3d 340, 348 (Mo. App. W.D. 2012)
(quoting Moore v. Ford Motor Co., 332 S.W.3d 749, 756 (Mo. banc 2011)). To make a
submissible case, "legal and substantial evidence [must] support[] each fact essential to
liability." Sanders, 364 S.W.3d at 208. We "view[] the evidence in the light most favorable
defense as an objection to Jones's verdict director. See Holmes v. Kansas City Missouri Bd. of Police Com'rs ex rel.
its Members, 364 S.W.3d 615, 622 n.3 (Mo. App. W.D. 2012) (holding that a defendant did not waive appellate
review of an argument when it failed to object to a specific instruction or failed to tender an alternative instruction
because the argument was included in the defendant's answer, and motions for directed verdict and JNOV); see also
Duerbusch v. Karas, 267 S.W.3d 700, 707 (Mo. App. E.D. 2008).
Finally, the City's claim that Jones failed to timely file his administrative complaint raises an issue of law in
this case. Jones's verdict director, Instruction No. 7, relied on the City's failure to promote him to captain to claim
discrimination on the basis of race. The City's posited trigger date for this claim is November 24, 2012, the day the
2012 promotional roster was published. That date was not in dispute. Nor was it contested that the 2012
promotional roster served as the basis for making promotion decisions through 2014. All that remains to be
determined is whether Jones's claim of discrimination for failure to promote accrued when the 2012 promotional
roster was posted or was a continuing violation until the roster's use ended. That is a legal determination. Questions
of law are not the proper subject of jury instructions. See Eagle Star Group, Inc. v. Marcus, 334 S.W.3d 548, 556
(Mo. App. W.D. 2010) (citing Gillioz v. State Highway Comm'n, 153 S.W.2d 18, 26 (1941)).
6
In the argument portion of its brief, the City also argues that Jones's petition did not plead racial
discrimination with regard to the 2012 captain's promotional process, and that as a result, the claim of discrimination
relating to the 2012 captain's promotional process should not have been submitted to the jury as it exceeded the
scope of the petition. This claim of error is not preserved for our review as it is distinct from the claim of error
described in the City's first point on appeal, which is limited to a claim that Jones's administrative complaint with the
MCHR was not timely filed. Rule 84.04(e) ("The argument [discussing a point relied on] shall be limited to those
errors included in the "Points Relied On."). "'We do not review arguments and issues raised in the argument under a
point that are not fairly encompassed by that point.'" Johnson v. Mo. Dep't of Corrections, 534 S.W.3d 869, 873
(Mo. App. W.D. 2017) (quoting Nichols v. Div. of Emp't Sec., 399 S.W.3d 901, 904 (Mo. App. W.D. 2013)).
8
to the jury's verdict, giving the plaintiff the benefit of all reasonable inferences and
disregarding evidence and inferences that conflict with that verdict." Id. "A court may
reverse the jury's verdict for insufficient evidence only when there is a complete absence
of probative fact to support the jury's conclusion." Id.
At the time Jones filed his administrative complaint with the MHRA, section
213.075.1 provided:
Any person claiming to be aggrieved by an unlawful discriminatory practice
may make, sign and file with the commission a verified complaint in writing,
within one hundred eighty days of the alleged act of discrimination.
The City contends that Jones's administrative complaint was not timely filed, and that as a
result, the case should not have been submitted as a matter of law. Though the City's Brief
argues that publication of the 2012 promotional roster was the unlawful discriminatory
practice which triggered Jones's obligation to file an administrative complaint within 180
days pursuant to section 213.075.1, the City mistakenly presumes, without discussion, that
the timely filing of a section 213.075.1 administrative complaint is essential to civil liability
under the MHRA.
In Farrow v. St. Francis Medical Center, 407 S.W.3d 579 (Mo. banc 2013), the
Supreme Court of Missouri acknowledged section 213.075.1, but also noted section
213.111.1, which addresses the filing of a civil action for discrimination and provides, in
pertinent part, as follows:
If, after one hundred eighty days from the filing of a complaint alleging an
unlawful discriminatory practice . . . the commission has not completed its
administrative processing and the person aggrieved so requests in writing,
the commission shall issue to the person claiming to be aggrieved a letter
indicating his or her right to bring a civil action within ninety days of such
9
notice against the respondent named in the complaint. . . . Any action brought
in court under this section shall be filed within ninety days from the date of
the commission's notification letter to the individual but not later than two
years after the alleged cause occurred or its reasonable discovery by the
alleged injured party.
The Supreme Court concluded in Farrow that the filing of a timely administrative
complaint with the MCHR is not a condition precedent to filing a civil action in the circuit
court because:
[T]he only requirements imposed by section 213.111 to file a claim under the
MHRA are that: (1) an employee file a charge with the Commission prior to
filing a state court action; (2) the Commission issue a right to sue letter; and
(3) the state court action be filed within ninety days of the issuance of the
right to sue letter but no later than two years after the alleged cause occurred
or its reasonable discovery by the alleged injured party. The statute does not
read, "If, after one hundred eighty days from the filing of a timely complaint.
. . ." This Court will not read such a requirement into the plain statutory
language.
407 S.W.3d at 591.
In State ex rel. Tivol Plaza, Inc. v. Missouri Commission on Human Rights, 527
S.W.3d 837, 843-44 (Mo. banc 2017), the Supreme Court repeated the aforesaid holding
in Farrow. Though Tivol narrowed Farrow's application in other respects,7 Tivol did not
abrogate Farrow's core conclusion that a timely filed administrative claim is not essential
to civil liability under the MHRA.8
7
Tivol narrowed Farrow insofar as it could be read to authorize a writ of mandamus to compel the MCHR
to determine the timeliness of an administrative complaint where a right-to-sue letter has been requested and issued
more than 180 days after a complaint has been filed. 527 S.W.3d at 844-46.
8
In apparent response to the decisions in Farrow and Tivol, the General Assembly amended section
213.075.1 in 2017 to expressly provide that the timely filing of an administrative complaint with the MCHR is "a
jurisdictional condition precedent to filing a civil action under this chapter," and to expressly permit an employer to
raise the defense of an untimely filed administrative complaint at any time, including in a civil action, "regardless []
whether the employer asserted the defense before the commission."
10
Given our obligation to review de novo whether the trial court erred in denying the
City's motions for directed verdict and for JNOV, the City's first point on appeal is denied,
as the timely filing of Jones's administrative complaint with the MCHR was not essential
to liability in Jones's civil action against the City.9 As a result, we need not and do not
address whether the City's publication of a tainted promotional roster was a discrete act of
discrimination pursuant to section 213.075.1, or a continuing violation so long as the
promotional roster was used to neutrally promote candidates to captain based solely on
their rank on the roster.10
Point One is denied.11
Point Two
The City's second point on appeal argues that the trial court erred in admitting the
testimony of Jones's expert witnesses because the testimony did not satisfy the
9
Tivol noted that in Farrow, the employer failed to preserve the administrative complaint timeliness issue
by raising it at the MCHR level. 527 S.W.3d at 845 (citing Farrow, 407 S.W.3d at 590). Here, the record on appeal
does not disclose whether the City raised the section 213.075.1 timeliness issue with the MCHR. Thus we cannot
discern whether the issue was even preserved.
10
No Missouri case has addressed whether, under the MHRA, the publication of an eligibility or
promotional roster is a discrete act of discrimination that triggers the obligation to file an administrative complaint,
or is instead a continuing violation so long as the roster is used to make promotion decisions. A handful of federal
cases have addressed this issue under Title VII, with mixed results. Cox v. City of Memphis, 230 F.3d 199, 204 (6th
Cir. 2000) (holding that the generation of an eligibility roster that is thereafter neutrally used to promote based on
rank is a discrete unlawful employment practice and not a continuing violation, and that the time to file an
administrative charge begins to run when the roster is published); Harris v. City of New York, 186 F.3d 243, 248 (2d.
Cir. 1999) (holding that the obligation to file an administrative charge did not commence until an eligibility roster
expires); Bronze Shields, Inc. v. New Jersey Dep’t. Civil Service, 667 F.2d 1074, 1083-84 (3d Cir. 1981) (holding
that the time to file an administrative complaint began to run when candidates for employment were not placed on
the eligibility roster); Guardians Ass'n of New York City Police Dept. v. Civil Service Comm'n of City of New York,
633 F.2d 232, 249-51 (2d Cir. 1980) (holding that hiring from a tainted roster is a distinct act of discrimination).
11
The City did not assert in its answer, or in its motions for directed verdict or JNOV, that Jones's claim of
discrimination was time barred because his civil action was filed more than two years after the promotional roster
was published. See section 213.111.1. In any event, that time constraint is subject to modification based on whether
the cause of alleged discrimination was reasonably discoverable. We do not address this issue.
11
requirements of section 490.065.12 The City asserts that Jones offered no testimony that
the expert witnesses' methodology was adequate, that their sample size was statistically
significant, or that their methodology was accepted in the relevant field.
The trial court has considerable discretion when admitting evidence. Mansil v.
Midwest Emergency Medical Services, P.C., 554 S.W.3d 471, 475 (Mo. App. W.D. 2018).
We review the trial court's admission of expert witness testimony for an abuse of discretion.
Id. "An abuse of discretion occurs when the court's ruling is 'clearly against the logic of
the circumstances then before the trial court and is so unreasonable and arbitrary that the
ruling shocks the sense of justice and indicates a lack of careful deliberate consideration.'"
Id. (citing Mansfield v. Horner, 443 S.W.3d 627, 651 (Mo. App. W.D. 2014)). "An
appellant bears the burden of proving that the trial court abused its discretion and showing
that [it] has suffered prejudice." Matter of Care and Treatment of Lester Bradley v. State,
554 S.W.3d 440, 452 (Mo. App. W.D. 2018).
Section 490.065 was amended effective August 28, 2017 to create a new standard
for determining the admissibility of expert witness testimony in all actions except those
brought under chapters 451, 452, 453, 454, 455, 211, or 487; in probate proceedings; or in
proceedings in which there is no right to a jury trial. New section 490.065.2, which is
applicable to Jones's case, provides:
2. In all actions except those to which subsection 1 of this section
applies:
12
Section 490.065, which addresses the admissibility of expert witness testimony, was amended in 2017.
The parties do not dispute that the 2017 version of section 490.065 in effect at the time of trial controlled the
admissibility of Jones's expert witness testimony.
12
(1) A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) The expert's scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
(b) The testimony is based on sufficient facts or data;
(c) The testimony is the product of reliable principles and methods; and
(d) The expert has reliably applied the principles and methods to the facts of
the case.
Newly enacted section 490.065.2 models the Federal Rules of Evidence, Rules 702 through
705. The City thus invites us to apply the factors test for the admission of expert witness
testimony discussed in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-
94 (1993), and its progeny.
There is support for the City's general contention that federal authority is relevant
to our construction and application of section 490.065.2. However, Daubert's factors,
though relevant, are not controlling. In State ex rel. Gardner v. Wright, the Eastern District
concluded that because section 490.065.2 is identical to Federal Rules of Evidence 702-
705, federal case law is strongly persuasive in determining the admissibility of expert
witness testimony. 562 S.W.3d 311, 317 (Mo. App. E.D. Aug. 21, 2018) reh'g and/or
transfer denied (Oct. 1, 2018), transfer denied (Dec. 18, 2018). The Wright court noted,
however, that:
[Federal Rules of Evidence Rule 702] does not codify the Daubert factors,
but is "broad enough to require consideration of any or all of the specific
Daubert factors where appropriate." Other factors may also be relevant, but
"no single factor is necessarily dispositive of the reliability of a particular
expert’s testimony." Thus, while the rule enumerates some considerations,
the inquiry about admissibility is still intended to be flexible.
13
Id. at 318-19 (citing Advisory Committee Notes, Fed. R. Evid. 702 (2000)) (internal
citations omitted). Relying on federal authority, Wright suggested a condensed three-part
test: (1) whether the expert is qualified, (2) whether the testimony is relevant, and (3)
whether the testimony is reliable. Id. at 319 (applying the three-part admissibility test of
Johnson v. Mead Johnson & Company, LLC, 754 F.3d 557, 561 (8th Cir. 2014)).13
Employing the three-part admissibility test described in Wright, the City's essential
argument is that Jones's expert witnesses -- Kathleen Kline ("Kline") and Anne Wedow
("Wedow") -- were not qualified and their testimony was not reliable.
Under section 490.065.2, an expert is qualified by "knowledge, skill, experience,
training, or education." Section 490.065.2(1). Kline and Wedow were retired KCFD
Battalion Chiefs. Kline was employed with the KCFD from 1977 to 2006, while Wedow
was employed with the KCFD from 1977 to 2001. During her time with the KCFD, Kline
assessed more than 700 candidates for management-level fire department promotions.
Wedow also possessed significant experience assessing candidates for promotions.
Wedow and Kline reviewed the 2012 assessor's manual used in connection with the 2012
SE component of the captain's promotional process and found the materials to be "very
similar" or "essentially the same" as the assessor's manuals they had used during past
assessments. Based on this evidence, the trial court did not abuse its discretion in
13
Though Wright interpreted and applied section 490.065.2 in a criminal case, there is no reasoned basis to
construe or apply the statute differently in a civil action.
14
concluding that Kline and Wedow were qualified to testify as expert witnesses about their
SE component assessments of six 2012 captain candidates, including Jones.
The City also argues that the expert witness testimony from Wedow and Kline was
not reliable. Testimony is reliable if it is "based on sufficient facts or data, reliable
principles and methods and reliable application thereof." Wright, 562 S.W.3d at 319.
Wedow and Kline evaluated the SE component videos of six candidates who
participated in the 2012 captain's promotional process, including Jones. Before doing so,
they reviewed the assessor manuals made available to the KCFD assessors in 2012. Two
of the six candidates Wedow and Kline evaluated were African-American. Four of the
candidates were Caucasian. Kline and Wedow independently viewed the videos and scored
the candidates, using the same benchmark rubric prepared for the actual assessors. They
then met to compare and discuss their scores, and to arrive at a consensus score. If their
scores were within one point, the scores were averaged to achieve a consensus score.
Wedow and Kline's assessments resulted in higher SE component scores for the African-
American candidates than those given by the KCFD assessors in 2012, and lower SE
component scores for the Caucasian candidates than those given by the KCFD assessors in
2012.14 The assessment process Wedow and Kline used to reach their conclusions was
substantially similar to the methodology each had used in hundreds of previous
assessments each had conducted. And in general, the assessment process Wedow and
14
Specifically, Wedow and Kline concluded that Jones had been under scored by 2.9 points and should have
received a score of 5.4; the second African-American candidate had been under scored by 1.1 points and should
have received a score of 2.0; and that the four Caucasian candidates had been over scored by between .7 and 1.9
points.
15
Kline used was substantially similar to the methodology used by KCFD assessors when
the SE component was scored in 2012.
Recognizing this, the City does not challenge the reliability of the basic
methodology used by Wedow and Kline, as to do so would be to effectively undermine the
methodology the KCFD assessors used to score captain candidates in 2012. Instead, the
City highlights differences between Wedow and Kline's SE component assessments and
the SE component assessments conducted by the KCFD in 2012, and argues that these
differences rendered the conclusions reached by Wedow and Kline not reliable.
Specifically, the City argues that Wedow and Kline's assessments were rendered not
reliable because they were conducted by two assessors instead of three; because Wedow
and Kline only assessed six candidates, a sample size that was not large enough; because
Wedow and Kline averaged scores to reach a consensus instead of simply discussing and
reaching a consensus score; and because Wedow and Kline were not trained in advance on
the assessment process.
First, the City points out that the SE component was scored in 2012 using three
assessors, not two. Yet, the City offers no persuasive argument to explain why this
difference rendered the Wedow and Kline assessments unreliable. In fact, the outside
contractor who prepared the assessor's manual for use in connection with the 2012 captain's
promotional process recommended only that more than one assessor be used to score the
SE component.
Next, the City complains that Wedow and Kline used a sample size that was "too
small to establish a case of 'disparate treatment through statistical analysis, at least without
16
the application of some recognized method of statistical validation.'" [Appellant's Brief p.
44-45]. The City relies on R.T. French Co. v. Springfield Mayor's Comm'n on Human
Rights, 650 S.W.2d 717 (Mo. App. S.D. 1983). R.T. French involved a claim of disparate
treatment where statistical samples of 3 employees and 14 employees were offered as the
only evidence from which discriminatory motive or intent could be inferred. Id. at 723.
The Southern District concluded that the samples were "too small to permit an inference
of discriminatory intent." Id. R.T. French is of no value to the City, as it did not address
the admissibility of expert witness testimony, and instead addressed only whether properly
admitted statistical evidence constituted competent and substantial evidence of
discriminatory intent.
In any event, the City's "sample size" argument mischaracterizes Wedow and
Kline's expert testimony. Their assessment of a sampling of six candidates actually
assessed by the KCFD in 2012 was not offered to establish disparate impact through
statistical analysis, and was instead offered to demonstrate that at least as to the six
candidates they assessed, all Caucasians candidates were over scored by the KCFD
assessors, and both African-American candidates, including Jones, were under scored by
the KCFD assessors. The number of candidates assessed by Wedow and Kline is irrelevant
to the reliability of the scoring conclusion reached by Wedow and Kline for each
assessment conducted.
Next, the City argues that Wedow and Kline averaged their scores to reach a
consensus instead of negotiating to reach a consensus. However, the City does not explain
how or why this effected the reliability of the assessments, particularly given evidence that
17
Wedow and Kline only averaged their scores to reach a consensus when their scores were
already within one point of one another.
Finally, the City argues that Wedow and Kline's assessments were not reliable
because they did not "normalize" or calibrate in advance of their assessments. The only
specific concern the City raises, however, is that Wedow and Kline did not watch the
training videos that the KCFD assessors watched before conducting SE component
assessments in 2012. Wedow and Kline did, however, review the manual prepared for the
KCFD assessors in 2012. There is no evidence to permit the conclusion that information
in the training videos was materially different from the printed materials reviewed by
Wedow and Kline. Moreover, Wedow and Kline testified that they have conducted
hundreds of similar assessments in the past. In Wright, the court determined that an expert
witness who had conducted more than 450 interviews as a forensic interviewer could
reliably offer an opinion in the case based on that experience. 562 S.W.3d at 321 (Mo.
App. E.D. Aug. 21, 2018). Wright reasoned that past experience may inform an expert's
testimony in a case. Id. ""[N]o one denies that an expert might draw a conclusion from a
set of observations based on extensive and specialized experience."" Id. (quoting Kumho
Tire C., Ltd. v. Carmichael, 526 U.S. 137, 156 (1999)). Here, Wedow and Kline's lengthy
experience lent itself to the reasonable conclusion that each knew how to assess the SE
component. As long as an expert's testimony "rests upon 'good grounds, based on what is
known' it should be tested by the adversary process with competing expert testimony and
cross-examination, rather than excluded by the court at the outset." Johnson, 754 F.3d at
562.
18
In summary, the trial court did not abuse its discretion in admitting the expert
witness testimony of Wedow and Kline. The reliability arguments raised by the City do
not render the testimony inadmissible pursuant to section 490.065.2. The differences
identified by the City between the process used by KCFD assessors in 2012 and the process
used by Wedow and Kline are relevant to the persuasiveness of Wedow and Kline's
opinions, and thus go to the weight of the evidence and not its admissibility. "[Federal
Rules of Evidence] Rule 702 reflects an attempt to liberalize the rules governing the
admission of expert testimony." Lauzon v. Senco Prod., Inc., 270 F.3d 681, 686 (8th Cir.
2001) (citation omitted). "[V]igorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and appropriate
means of attacking [alleged] shaky but admissible evidence." Russell v. Whirlpool Corp.,
702 F.3d 450, 458 (8th Cir. 2012) (citing Daubert, 509 U.S. at 596).
Point Two is denied.
Point Three
The City's third point on appeal argues that the trial court erred in applying a
multiplier to calculate the attorneys' fee award, and in including non-statutory litigation
expenses in the award of costs, because the MHRA does not expressly authorize either
practice, and as a sovereign entity, the City is entitled to strict construction of the MHRA's
fee and cost shifting provisions. The genesis of the City's point on appeal is one of statutory
interpretation, as the City concedes that if the MHRA can be construed to authorize the
19
methods used by the trial court to calculate attorneys' fees and award costs, then the City's
sovereign immunity has been waived.15
"Statutory interpretation is a question of law, which is subject to de novo review."
Hervey v. Missouri Dep't of Corr., 379 S.W.3d 156, 163 (Mo. banc 2012). "The primary
rule of statutory interpretation is to ascertain the intent of the legislature from the language
used, to give effect to that intent if possible, and to consider the words in their plain and
ordinary meaning." Id.
The City first complains about the trial court's use of a 125% multiplier to calculate
an award of attorneys' fees.16 Section 213.111.2 provides that the trial court "may award
to the plaintiff actual and punitive damages, and may award court costs and reasonable
attorney fees to the prevailing party. . ." (Emphasis added.) "The trial court is deemed an
expert at fashioning an award of attorneys' fees and may do so at its discretion." Berry v.
Volkswagen Group of America, Inc., 397 S.W.3d 425, 430 (Mo. banc 2013). The use of a
multiplier to calculate an award of attorneys' fees is an authorized practice in Missouri. Id.
at 432-33 (Mo. banc 2013). The use of a multiplier to calculate a "reasonable attorney
fees" award is thus authorized by section 213.111.1.
The City acknowledges this point, but nonetheless contends that section 213.111.1
should be construed more strictly (and thus differently) when a sovereign is the defendant
15
The MHRA defines "employer" to include "the state, or any political or civil subdivision." Section
213.010(7). Because "the state and its subdivisions are treated the same as other employers under the MHRA," the
doctrine of sovereign immunity "offers no defense" to the award of court costs and reasonable attorneys' fees under
213.111.2. H.S. v. Bd. of Regents, Se. Missouri State Univ., 967 S.W.2d 665, 673 (Mo. App. E.D. 1998).
16
The City does not challenge the number of hours or the hourly rate used by the trial court to calculate the
attorney fee award, and only argues that the use of a multiplier was error.
20
in a MHRA action. This same logic was argued and rejected in Howard v. City of Kansas
City, 332 S.W.3d 772, 786-88, where our Supreme Court concluded as a matter of statutory
construction that the authority to award punitive damages expressed in section 213.111.2
applies evenly to all employers, whether private or governmental.
The rationale in Howard is controlling. Because the definition of "employer" in
section 213.010 expressly includes the state, or any political or civil subdivision, "it is clear
the legislature intended to treat the state and its subdivisions in the same manner as it treats
other employers." Howard, 332 S.W.3d at 788. The trial court did not abuse its discretion
by concluding that it had the authority, in calculating a reasonable attorneys' fees award, to
use a multiplier, even though the defendant employer in this case is a governmental entity.
Cf. Zweig v. Metropolitan St. Louis Sewer Dist., 412 S.W.3d 233, 249 (Mo. banc 2013)
(analogously reasoning that it was not an abuse of discretion to apply a multiplier under
Art. 10, section 23 of the Missouri Constitution to award "reasonable attorneys' fees"
against a political subdivision).
The City next asserts that the trial court erred in including non-statutory costs in its
award of court costs. This same issue was addressed, however, in Hesse v. Missouri Dep't
of Corr., 530 S.W.3d 1, 6 (Mo. App. W.D. 2017), where this court concluded that "court
costs" as used in section 213.111.2 is not limited to statutory costs authorized by section
514.060, but also affords "trial courts discretion 'to follow the federal approach of awarding
costs outside the parameters of [s]ection 514.600,' though they are not required to do so."
(quoting Williams v. Trans State Airlines, 281 S.W.3d 854, 881 (Mo. App. E.D. 2009)).
Because the state and its subdivisions are treated the same as other employers under the
21
MHRA, the City's argument that the authority to award costs pursuant to section 213.111.2
should be construed differently because the City is a sovereign entity is without merit.
Point Three is denied.
Point Four
The City's fourth point on appeal argues that the trial court erred in denying the
City's motions for directed verdict and JNOV because Jones failed to present a submissible
case that he was not promoted through the 2012 captain's promotional process on the basis
of race. Specifically, the City argues that Jones "failed to offer timely, probative facts
showing that the City designed, intended, or used its 2012 captain's test to discriminate."
As noted, "to make a submissible case, the plaintiff must demonstrate that each and
every fact essential to liability is predicated upon legal and substantial evidence." Holmes
v. Kansas City Missouri Bd. of Police Com'r ex rel. Its Members, 364 S.W.3d 615, 626
(Mo. App. W.D. 2012) (internal quotation omitted). 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. "A court may reverse the jury's verdict for insufficient
evidence only when there is a complete absence of probative fact to support the jury's
conclusion." Id.
To establish a claim of employment discrimination on the basis of race, Jones was
required to establish that the City engaged in an unlawful employment practice proscribed
by section 213.055.1(1)(a). In relevant part, section 213.055.1(1)(a) provides that it is an
unlawful employment practice for an employer, because of the race of an individual, to fail
22
to hire or to otherwise discriminate against an individual with respect to terms, conditions,
or privileges of employment.
Here, it was uncontested that Jones is an African-American and that Jones was
employed by the City. And it was uncontested that Jones was not promoted to captain
through the 2012 captain's promotional process. The only essential element of Jones's
employment discrimination claim in contest was whether race was a contributing factor in
the City's failure to promote Jones to the position of captain through the 2012 captain's
promotional process.
Under the version of the MHRA in effect during the time frame relevant to Jones's
case, Jones could sustain his burden to establish this contested essential element by
showing that race was a contributing factor to the failure to promote, regardless if other
factors also existed. Alton v. Missouri Department of Public Safety, 456 S.W.3d 134, 137
(Mo. App. W.D. 2015) (citing Hurst v. Kansas City, Missouri School Dist., 437 S.W.3d
327, 339 (Mo. App. W.D. 2014)). A contributing factor is a condition that “contributes a
share in anything or has a part in producing the effect." Jones v. Galaxy 1 Marketing, Inc.,
478 S.W.3d 556, 573 (Mo. App. E.D. 2015).
The City asserts that Jones offered no probative evidence to establish that race was
a contributing factor in the City's failure to promote him to captain through the 2012
captain's promotional process. We disagree. The evidence, which we are required to view
in the light most favorable to the verdict, established, among other things: that a deputy
chief with the KCFD who had previously participated as an assessor believed that African-
Americans were routinely under scored in the SE component, and never benefitted from
23
the bartering process used to achieve consensus scores; that Davis, one of the assessors
who scored the SE component in 2012, was reputed as being tougher in his assessment of
African-American candidates than Caucasian candidates; that although the KCFD's outside
contractor emphasized the importance of having minority representation on the SE
component assessor panel and Davis was selected as an African-American assessor to fill
that role, Davis did not self-identify as an African-American; that despite the fact
subjective scoring was inherent to assessment of the SE component and was thus
susceptible to explicit or implicit bias, the assessors were not trained to avoid such bias;
that the KCFD suffered racial tensions and issues and disproportionately hired African-
American employees as compared to the City as a whole; and that two expert witnesses
who were former, high-ranking, KCFD employees with substantial assessment experience
concluded that six 2012 captain candidates they assessed were over scored by the SE
component assessors in 2012 if they were Caucasian, and were under scored by the SE
component assessors in 2012 if they were African-American. There was substantial
evidence to support the jury's conclusion that Jones was not promoted through the 2012
captain's promotional process because of his race.
The City does not address the aforesaid evidence, and instead cites to federal
employment discrimination cases17 where the evidence presented was deemed insufficient
to establish that a testing process used to hire or promote applicants was discriminatory.
The City's reliance on these cases is unavailing. Federal employment discrimination case
17
Perez v. Illinois, 488 F.3d 773 (7th Cir. 2007); Washington v. American Airlines, 781 F.3d 979 (9th Cir.
2015).
24
law is only relevant to our application of the MHRA when consistent with the plain
language or meaning of the MHRA. Daugherty v. City of Maryland Heights, 231 S.W.3d
814, 818-19 (Mo. banc 2007). In Daugherty, our Supreme Court determined that the plain
language of the MHRA required use of the "contributing factor" test, in lieu of the more
demanding substantial, determining, or motivating factor test employed under Title VII.18
Id. at 819.
The City also argues that Jones failed to submit probative evidence that the 2012
captain's promotional process was designed, intended or used to discriminate because of
race. The City's argument relies on section 213.055.2, which provides in pertinent part
that:
[N]or shall it be an unlawful employment practice for an employer to give
and to act upon the results of any professional developed ability test,
provided that such test, its administration, or action upon the results thereof,
is not designed, intended or used to discriminate because of race, color,
religion, national origin, sex, ancestry, age or disability.
The City's argument ignores, however, that this statutory exception to the definition of an
"unlawful employment practice" was submitted to the jury as an affirmative defense
through Instruction No. 8, a jury instruction tendered by the City. That instruction required
the jury to find in the City's favor if it believed that the 2012 captain's promotional process
was a professionally developed ability test that had not been designed, intended or used to
discriminate. In entering a verdict for Jones on Instruction No. 7, the jury necessarily
rejected the affirmative defense submitted by the City in Instruction No. 8. The same
18
Daugherty was overruled by the General Assembly's amendments to the MHRA in 2017.
25
evidence supporting the jury's conclusion that Jones was not promoted through the 2012
captain's promotional process because of his race also supports the jury's rejection of the
suggestion that the SE component of the 2012 captain's promotional process was a
professionally developed ability test that was neither designed, intended, nor used to
discriminate on the basis of race.
The trial court did not err in denying the City's motions for directed verdict and for
JNOV.
Point Four is denied.
Point Five
In the City's fifth point on appeal, the City argues that the trial court abused its
discretion by excluding opinion testimony from the City's expert witness -- Dr. David
Morris ("Morris"). We review the trial court's exclusion of expert witness testimony for
an abuse of discretion. Mansil, 554 S.W.3d at 475.
Morris is a principal with the outside contractor who worked with the KCFD to
develop the 2012 captain's promotional process. Prior to trial, Jones submitted written
interrogatories to the City, including an interrogatory that asked the City to identify expert
witnesses pursuant to Rule 56.01(b)(4). The City objected to, and did not answer, the
expert witness interrogatory because it was interrogatory number 33, and 16th Judicial
Circuit Rule 32.2 limits the number of interrogatories that can be propounded without leave
of court to 30.
A few weeks before trial, Jones's counsel communicated with the City's counsel by
email to inquire about whether the City would be calling any expert witnesses to testify at
26
trial. The City's counsel advised that the City would not be calling any expert witnesses to
testify at trial except "possibly in rebuttal," and specifically represented that Morris would
not be testifying as an expert witness and would only be testifying as a fact witness.
At the beginning of trial, the City disclosed that it intended to call Morris as an
expert witness. The trial court granted Jones's request to exclude Morris's expert testimony
on the basis of unfair surprise.
During trial, the City called Morris to testify out of turn during Jones's case in chief.
Morris was permitted to testify as a fact witness, but not as an expert witness, though the
City asked the trial court to revisit its earlier ruling, and then made an offer of proof to
describe the refused expert testimony. The City's offer of proof established that had Morris
been permitted to testify as an expert witness, he would have described how the content of
the 2012 captain's promotional process had been validated, and he would have presented
statistical evidence that African-Americans as a group performed better during the process
than Caucasians.
The City argues on appeal that the trial court abused its discretion in excluding
Morris's expert testimony because the City had no obligation to disclose Morris as an expert
witness because Jones's interrogatories exceeded the number permitted by local rule, and
because Morris's testimony was offered in rebuttal to Jones's expert witness testimony.
Neither argument has merit.
Rule 56.01(b)(4) allows a party to obtain discovery by interrogatories or by
deposition of facts known or opinions held by any persons the other party expects to call
as an expert witness at trial. Rule 57.01(c)(1) requires a party to respond to interrogatories
27
within thirty days of service. The City violated Rule 56.01(b)(4) and Rule 57.01(c)(1)
when it failed to disclose Morris in response to Jones's interrogatory requesting the identity
of expert witnesses the City expected to call at trial.
We are aware of no authority, and the City cites none, permitting a litigant to ignore
the absolute duty to disclose imposed by Rule 56.01(b)(4) merely because an expert
witness interrogatory is fortuitously assigned a number beyond the number of
interrogatories permitted by local court rule. Although Article V, section 15 of the
Missouri constitution, and Rule 50.01, permit each circuit to adopt local court rules, those
rules will not be enforced if they are inconsistent with Supreme Court rules, the
Constitution, or other statutory laws. State ex rel. State v. Riley, 992 S.W.2d 195, 196 (Mo.
banc 1999). "A local court rule is inconsistent with the rules of [the Supreme] Court [of
Missouri] if the local court rule specifically prohibits something th[e] [Supreme] Court's
rules permit or if the local court rule specifically permits something that th[e] [Supreme]
Court's rules prohibit." Id. To the extent 16th Judicial Circuit Rule 32.2 can be read to
authorize a party to refuse to disclose the identity of expert witnesses as required by
Supreme Court Rule 56.01(b)(4), the local rule would not be enforceable.19 Even were that
not the case, the City offers no excuse for its failure just weeks before trial to disclose
Morris as an expert witness in email communications with Jones's counsel, or for its
affirmative misrepresentation that Morris would only be used as a fact witness.
19
We are not suggesting that local rules of court are not authorized to impose enforceable limits on the
number of interrogatories that can be propounded. We hold only that local court rules limiting the number of
interrogatories cannot be relied on to excuse the nondisclosure of information where disclosure is mandated by a
specific Supreme Court Rule.
28
"A trial court is vested with broad discretion in administering the rules of discovery,
and an appellate court should not disturb the rulings absent an abuse of discretion." State
ex rel. Plank v. Koehr, 831 S.W.2d 926, 927 (Mo. banc 1992). "This discretion should be
aimed toward achieving fundamental fairness and avoiding unfair disadvantage." Scheck
Indus. Corp. v. Tarlton Corp., 435 S.W.3d 705, 719 (Mo. App. E.D. 2014). Because
Morris was not disclosed in a timely manner as an expert witness in response to a duly
promulgated interrogatory or in email communications on the subject just weeks before
trial, and was only disclosed when trial began, "it was within the trial court's broad
discretion to exclude his [expert witness] testimony as a sanction." Wilkerson v. Prelutsky,
943 S.W.2d 643, 649 (Mo. banc 1997).
The City also argues that it was an abuse of discretion to exclude Morris's expert
testimony because Morris was called as a rebuttal witness, and rebuttal witnesses do not
need to be disclosed. See State v. Schaller, 937 S.W.2d 285, 290 (Mo. App. W.D. 1990).
However, that principle has no application here. As the defendant, the City would not
ordinarily have been entitled to present witnesses or evidence during the rebuttal phase of
trial. And even had the City been entitled to submit evidence during the rebuttal phase of
trial, it is generally the case that "a party cannot, as a matter of right, offer in rebuttal
evidence which was appropriate or should have been presented in the case in chief, even if
it tends to contradict or rebut the adverse party's evidence." Strong v. American Cyanamid
Co., 261 S.W.3d 493, 526 (Mo. App. E.D. 2007) (overruled on unrelated grounds by
Badahman v. Catering St. Louis, 395 S.W.3d 29, 40 (Mo. banc 2013)). Although Morris's
refused expert witness testimony contradicted or rebutted the evidence offered by Jones, it
29
was testimony the City would have been expected to present in its case in chief. This is
not a case where unexpected evidence or developments during trial necessitated a rebuttal
witness whose testimony could not otherwise have been reasonably anticipated as
necessary to the City's case in chief.
The trial court did not abuse its discretion in excluding Morris's expert witness
testimony.
Point Five is denied.
Pending Motion for Attorneys' Fees
Prior to submission of this case, Jones filed a motion requesting an award of
attorneys' fees incurred on appeal ("Motion"). In the Motion, Jones noted that the trial
court entered an order on April 4, 2018 authorizing Jones to submit a supplemental request
for an award of attorneys' fees incurred in connection with post-trial briefing, though the
trial court's order noted that a request for supplemental attorneys' fees would not be ruled
on until disposition of any appeal. Jones's Motion thus requests an award of attorneys' fees
for the period between the entry of Judgment and the City's filing of this appeal, and for
defending this appeal.
Section 213.111.2 authorizes the award of reasonable attorneys' fee to the prevailing
party. "This includes fees incurred on appeal from the trial court's judgment." Soto v.
Costco Wholesale Corp., 502 S.W.3d 38, 58 (Mo. App. W.D. 2016). Because we are
affirming the trial court's judgment in favor of Jones, Jones is the prevailing party on
appeal. Therefore, his Motion is granted. However, "[a]lthough appellate courts have
authority to allow and fix the amount of attorneys' fees on appeal, we exercise this power
30
with caution, believing in most cases that the trial court is better equipped to hear evidence
and argument on this issue and determine the reasonableness of the fee requested." Turner
v. Kansas City Public Schools, 488 S.W.3d 719, 726 (Mo. App. W.D. 2016). That is
particularly true when, as here, the Motion includes a request for a supplemental award of
attorneys' fees for post-judgment proceedings that occurred in the trial court. Accordingly,
we remand this matter to the trial court to determine a reasonable award for attorneys' fees
incurred by Jones on appeal, and in connection with post-judgment proceedings in the trial
court.
Conclusion
The trial court's Judgment is affirmed. We remand this matter to the trial court to
determine a reasonable award for attorneys' fees incurred by Jones on appeal, and in
connection with post-judgment proceedings in the trial court.
__________________________________
Cynthia L. Martin, Judge
All concur
31