Opinion issued September 22, 2015
In October 2010, Steven Cox, a sixty-two-year-old maintenance manager with the Kansas City Chiefs, was terminated from employment.[1] Mr. Cox believed the termination was related to his age and filed a claim of discrimination with the Missouri Commission on Human Rights (“MCHR”), which subsequently issued Mr. Cox a right to sue letter.[2] Mr. Cox brought suit, and at trial, the jury returned a verdict in favor of the Chiefs.[3] On appeal, Mr. Cox argued the trial court abused its discretion by denying discovery requests and excluding evidence related to similarly-situated former Kansas City Chiefs’ employees (“me too” evidence).[4] The Supreme Court of Missouri held that “me too” evidence was relevant and the trial court abused its discretion by excluding the admission of “me too” evidence.[5]
Steven Cox was hired by the Kansas City Chiefs in 1998 to work as a maintenance manager.[6] In 2008, Carl Peterson, the Chiefs’ President and General Manager under which Mr. Cox had been hired, resigned.[7] After Peterson resigned, Clark Hunt, the Chiefs’ Chief Executive Officer (“CEO”), hired Scott Pioli to run football operations as General Manager and Mark Donovan to serve as Chief Operating Officer and later as President.[8] Hunt’s hires were part of an organizational restructuring plan.[9] After Peterson resigned and Pioli and Donovan were hired, a number of employees over the age of fifty, including Mr. Cox, were fired and replaced by younger employees.[10]
After being fired, Mr. Cox filed a single claim of age discrimination with the MCHR.[11] After viewing Mr. Cox’s claim, the MCHR issued a right to sue letter.[12] Mr. Cox subsequently filed a claim in the Circuit Court of Jackson County, asserting that the Chiefs had engaged in age discrimination when it terminated him.[13] Mr. Cox alleged that Mr. Hunt desired to terminate older employees and hire younger employees as replacements in an effort to make the organization “more youthful.”[14]
Mr. Cox sought to support his theory by deposing Mr. Hunt prior to the trial and subpoenaing Mr. Hunt at trial.[15] The Chiefs argued that Mr. Hunt’s testimony would not be relevant because Mr. Hunt was not directly involved in the alleged act of discrimination.[16] The trial court invalidated both the deposition notice and the subpoena.[17] The court reasoned that Mr. Cox had pleaded an individual discrimination claim and not a pattern-or-practice claim; thus, Mr. Cox’s theory that Mr. Hunt was trying to make the organization more youthful was not relevant to Mr. Cox’s pleadings.[18]
Next, Mr. Cox sought to admit testimony from seventeen similarly situated former employees.[19] The Chiefs filed a motion in limine to exclude the evidence.[20] First, the Chiefs argued that the evidence was not relevant, because Mr. Cox had pled only a single act of discrimination and not a pattern or practice of discrimination.[21] Second, the Chiefs argued that the evidence was not relevant because the employees were not similarly situated to Mr. Cox.[22] The trial court granted the Chiefs’ motion without explanation, but on the first day of trial, the court clarified that it was only restricting testimony related to whether the employees were terminated, whether the employees had pending lawsuits against the Chiefs, and whether the employees were over the age of forty.[23]
The court also denied Mr. Cox’s motion to present offers of proof from many of the similarly situated former employees to the jury that would establish that over a period of twelve months, “a large number of employees over age 40 were either fired or pressured to resign and their job duties were assumed by younger replacements, most of them under 40.”[24]
Finally, Mr. Cox sought to present testimony given by former Field Security Supervisor Herman Suhr about statements he overheard Mr. Pioli say to an unknown person at Arrowhead Stadium.[25] The Chiefs filed a motion in limine, and the court granted the motion.[26] At trial, the court overruled Mr. Cox’s motion to set aside its exclusionary order and refused to admit Mr. Suhr’s testimony as impeachment evidence against Mr. Pioli.[27]
At the conclusion of the trial, the jury returned a verdict for the Chiefs, and on appeal, the case was transferred to the Supreme Court of Missouri via Article V, Section 10 of the Missouri Constitution.[28] The Supreme Court of Missouri held that the trial court judge had abused his discretion by excluding nonparty, similarly situated former employee testimony and that “me-too” evidence was admissible in individual discrimination cases brought under the Missouri Human Rights Act.[29]
- II. Legal Background
In Missouri, trial courts have a considerable amount of discretion in the admission or exclusion of evidence.[30] An abuse of discretion occurs when a ruling is “clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of Judge and indicates a lack of careful, deliberate consideration.”[31] An appellate court may also review a trial court’s rulings on discovery requests under the abuse of discretion standard.[32]
In Missouri, an employer’s discharge of an individual because of his or her age is an unlawful act under the Missouri Human Rights Act.[33] The Missouri Human Rights Act defines age as “forty or more years but less than seventy years.”[34] Direct evidence of employment discrimination was limited because employers do not leave a trail of direct evidence; therefore, plaintiffs often build cases using circumstantial evidence.[35] Circumstantial evidence of employment discrimination must be both logically and legally relevant to be admissible:[36]
In Missouri, an employer’s discharge of an individual because of his or her age is an unlawful act under the Missouri Human Rights Act.[33] The Missouri Human Rights Act defines age as “forty or more years but less than seventy years.”[34] Direct evidence of employment discrimination was limited because employers do not leave a trail of direct evidence; therefore, plaintiffs often build cases using circumstantial evidence.[35] Circumstantial evidence of employment discrimination must be both logically and legally relevant to be admissible:[36]
Evidence is logically relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence, or if it tends to corroborate evidence which itself is relevant and bears on the principal issue of the case.[37]
In addition, The legal relevance analysis requires the trial court to balance “the probative value of the proffered evidence against its prejudicial effect on the jury.”[38]
- III. Instant Decision
In the opinion, authored by Judge Stith, the majority addressed three separate issues: first, whether the trial court abused its discretion by excluding evidence of age discrimination against other employees; second, whether the trial court abused its discretion by excluding Herman Suhr’s testimony regarding age-related statements made by Scott Pioli; and finally, whether the trial court abused its discretion by excluding any and all testimony by Chiefs’ Chairman and Chief Executive Officer Clark Hunt.
First, the majority dispelled the trial court’s conclusion that the evidence of age discrimination against other employees should be excluded just because Mr. Cox failed to plead a “pattern-or-practice claim” under Title VII, by explaining that if the evidence is deemed relevant after balancing probativeness with prejudice, then it should be admitted regardless of whether any particular piece of evidence would have been admissible in a cause of action that the claimant failed to plead.[39] The court cited Sprint/United Management Co. v. Mendelsohn as support and later explained thatSprint’s holding was the law in Missouri too.[40] The court explained:
The trial court is not entitled to second-guess the plaintiff’s pleading decisions and penalize the plaintiff on a pleaded cause of action because the trial court believes offered evidence would have been even more relevant to an unpleaded cause of action. The fact that the testimony of other older employees would be relevant to a federal pattern-or-practice claim or a hostile work environment claim had it been brought does not make such testimony less probative or more prejudicial for other purposes.[41]
Next, the court dismissed the Chiefs’ argument that even if the trial court erred “in making an erroneous blanket ruling,” the non-party employees’ testimony would have been excluded because Mr. Cox was not similarly situated with the non-party employees; thus, the testimony was not relevant.[42] The court explained that the Chiefs’ argument was erroneous because it relied on a line of “disparate treatment” cases rather than age discrimination cases.[43] The difference was significant because in disparate treatment cases, plaintiffs must establish that but for their membership in a protected class, they would not have been treated differently than similarly situated employees; but in age discrimination cases such as Mr. Cox’s, plaintiffs must establish that but for their and the similarly situated employees’ membership in a protected class, they would not have been discriminatorily fired or disciplined.[44]
In conclusion, the court held that the trial court’s decision to exclude “me too” evidence at trial was an abuse of discretion.[45] The court reasoned that the evidence was “highly logically relevant because it makes the existence of a fact – the firing of Mr. Cox due to his age – much more probable than it would be without the evidence.”[46]
Second, the court addressed the trial court’s decision to exclude Herman Suhr’s testimony about Pioli’s stray comments to an unknown person at Arrowhead Stadium.[47] The Chiefs argued and the trial court held that because Mr. Pioli was not directly involved in the decision to terminate Mr. Cox, allowing Herman Suhr’s testimony to be presented to the jury “would only serve to prejudice the defendant.”[48] The court concluded that the holding was clearly erroneous because claims of discrimination under the Missouri Human Rights Act often rely on circumstantial evidence and Mr. Suhr’s testimony was circumstantial evidence of a companywide policy of discrimination.[49]
Finally, the court addressed the trial court’s decision to quash both the deposition notice and the subpoena issued by Mr. Cox to Chiefs’ CEO Clark Hunt.[50] The Chiefs argued that the trial court did not abuse its discretion in quashing the notice and subpoena because Mr. Cox had failed to establish how Mr. Hunt’s testimony would have contributed to the case.[51] The majority rejected the Chiefs’ argument, stating: “This ignores the fact that a key part of Mr. Cox’s theory of the case is that there was a companywide discriminatory policy instituted by Mr. Hunt who ‘wanted to go in a more youthful direction.’ As such, Mr. Hunt’s testimony is clearly relevant and discoverable.”[52]
For these reasons, the court vacated the trial court’s judgment and remanded the case back to the trial court.[53]
Judge Fischer, in dissent, argued that the trial court had not abused its discretion, because its ruling that the “me too” evidence was not legally relevant “was not against the logic of the circumstances then before it.”[54] Under Missouri law, “[a] trial court abuses its discretion when its ‘ruling is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of Judge and indicates a lack of careful, deliberate consideration.”[55] When deciding whether evidence should be admitted, the trial court must determine whether the evidence is both logically and legally relevant.[56] Here, Judge Fischer argued that the trial court did not abuse its discretion when it found that the “me too” evidence was not legally relevant.[57] Judge Fischer recited that Mr. Cox had not presented the “me too” evidence until after he sought and was denied permission to amend his petition by adding a “pattern or practice” claim.[58] Furthermore, Judge Fischer noted that at the time the trial court made the decision to deny Mr. Cox permission to amend the petition, the parties understood the use of me to evidence at trial would be severely restricted.[59] As a result, when Mr. Cox offered “me too” evidence at trial, the court refused to admit the evidence because it did not want to give Mr. Cox the benefit of presenting a claim that Mr. Cox had been restricted from pleading.[60]
- IV. Comment
Judge Fischer, in the dissent, suggested that the court’s opinion risked serious harm to the process established by the Missouri Human Rights Act for claimants alleging they have been affected by discriminatory practices. While Judge Fischer may be right, the court’s opinion is a clear win for those parties that are affected by discriminatory practices. “Me too” evidence in discrimination cases is a tool added to a plaintiff’s circumstantial evidence toolbox.
- Brian Scott
[1] Cox v. Kansas City Chiefs Football Club, Inc., 473 S.W.3d 107, 112 (Mo. 2015) (en banc).
[2] Id.
[3] Id. at 113.
[4] Id. at 111.
[5] Id.
[6] Id. at 112.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id. at 127.
[17] Id.
[18] Id.
[19] Id. at 113.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id. at 114.
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] Id. at 117.
[30] Id. at 114.
[31] Id.
[32] Id.
[33] Id. at 115. See also Mo. Rev. Stat. § 213.055 (2000).
[34] Cox, 473 S.W.3d at 115. See also Mo. Rev. Stat. § 213.010(1) (2000).
[35] Cox, 473 S.W.3d at 115. See also Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 818 n.4 (Mo. 2007) (en banc).
[36] Cox, 473 S.W.3d at 116.
[37] Id.
[38] Id.
[39] Id. at 117-18 (“The United States Supreme Court held that testimony by nonparty employees about discrimination can be relevant in a single-act discrimination case and that any per se exclusion of such evidence would constitute an abuse of discretion.”) See Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 380-81 (2008).
[40] Cox, 473 S.W.3d at 118.
[41] Id.
[42] Id. at 119.
[43] Id.
[44] Id. at 120.
[45] Id. at 125.
[46] Id.
[47] Id.
[48] Id.
[49] Id. at 126.
[50] Id. at 127.
[51] Id.
[52] Id.
[53] Id. at 128.
[54] Id.
[55] Id.
[56] Id.
[57] Id.
[58] Id. at 129.
[59] Id.
[60] Id.
