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.,

(Mo. App. E.D. 2000) (citing Seitz v. Lemay Bank and Trust Co.,

(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,

(Mo. banc 2012). This standard is "whether the plaintiff made a submissible

case." Medical Plaza One, LLC v. Davis,

(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.,

(Mo. App. W.D. 2012)

(quoting Moore v. Ford Motor Co.,

(Mo. banc 2011)). To make a

submissible case, "legal and substantial evidence [must] support[] each fact essential to

liability." Sanders,

. 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,

, 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,

(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,

(Mo. App. W.D. 2010) (citing Gillioz v. State Highway Comm'n,

(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,

(Mo. App. W.D. 2017) (quoting Nichols v. Div. of Emp't Sec.,

(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."

"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."

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,

(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.

.

In State ex rel. Tivol Plaza, Inc. v. Missouri Commission on Human Rights,

(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.

. 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.

(citing Farrow,

). 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,

(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,

(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,

, 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,

, 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.,

(Mo. App. W.D. 2018).

We review the trial court's admission of expert witness testimony for an abuse of discretion.

"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.'"

(citing Mansfield v. Horner,

(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,

(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.,

, 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.

(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

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.

(applying the three-part admissibility test of

Johnson v. Mead Johnson & Company, LLC,

(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,

.

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,

(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.

.

The Southern District concluded that the samples were "too small to permit an inference

of discriminatory intent."

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.

(Mo.

App. E.D. Aug. 21, 2018). Wright reasoned that past experience may inform an expert's

testimony in a case.

""[N]o one denies that an expert might draw a conclusion from a

set of observations based on extensive and specialized experience.""

(quoting Kumho

Tire C., Ltd. v. Carmichael,

(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,

.

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.,

(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.,

(8th Cir. 2012) (citing Daubert,

).

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.,

(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."

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.,

(Mo. banc 2013). The use of a

multiplier to calculate an award of attorneys' fees is an authorized practice in Missouri.

(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.,

(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,

, 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,

. 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.,

(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.,

(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,

(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,

(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,

. "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."

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,

(Mo. App. W.D. 2015) (citing Hurst v. Kansas City, Missouri School Dist.,

(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.,

(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,

(7th Cir. 2007); Washington v. American Airlines,

(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,

(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

.

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,

.

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,

(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."

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,

(Mo. banc 1992). "This discretion should be

aimed toward achieving fundamental fairness and avoiding unfair disadvantage." Scheck

Indus. Corp. v. Tarlton Corp.,

(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,

(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,

(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.,

(Mo. App. E.D. 2007) (overruled on unrelated grounds by

Badahman v. Catering St. Louis,

(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.,

(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,

(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