# Yeargans v. The City of Kansas City, Missouri

> District Court, W.D. Missouri · September 6, 2019

URL: https://www.frixlaw.com/law-library/cases/10241261

## Case

- **Court:** District Court, W.D. Missouri
- **Decided:** September 6, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10241261

## How later opinions describe it (automated extraction)

- holding an affirmative defense was not waived because the plaintiff failed to show he lacked notice of the defense or that defendant’s delay in asserting the defense prejudiced the plaintiff’s ability to respond
- holding a “non-moving party must be able to ‘substantiate his allegations with sufficient probative evidence that would permit a finding in his favor based on more than mere speculation, conjecture, or fantasy.’”
- finding the failure to promote is a separate violation
- noting the plaintiff had alternatives to resignation including lodging a formal complaint against her supervisor
- discussing discrete acts and continuing violations in the context of section 1983

## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

TRAVIS YEARGANS, )
)
Plaintiff, )
)
vs. ) Case No. 18-00409-CV-W-ODS
)
THE CITY OF KANSAS CITY, )
MISSOURI, )
)
Defendant. )

ORDER AND OPINION (1) GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S DECLARATION, (2) GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, AND (3) FINDING AS MOOT
THE PARTIES’ MOTIONS TO EXCLUDE EXPERT WITNESSES

Pending are Defendant’s Motion for Summary Judgment (Doc. #35), Defendant’s
Motion to Exclude Plaintiff’s Experts (Doc. #37), Plaintiff’s Motion to Exclude
Defendant’s Experts (Doc. #38), and Defendant’s Motion to Strike Plaintiff’s Declaration
(Doc. #53).1 For the following reasons, Defendant’s Motion to Strike Plaintiff’s
Declaration is granted in part and denied in part, Defendant’s Motion for Summary
Judgment is granted, and the Motions to Exclude Expert Witnesses are deemed moot.

I. BACKGROUND2
The Kansas City Fire Department (“KCFD”) is a department within Defendant
The City of Kansas City, Missouri. Relevant to this matter, a KCFD employee wishing
to be promoted to captain must take the Captain’s Test, which occurs during the fall in
even-numbered years. In 2012, the Captain’s Test consisted of (1) a written
examination; (2) a fire ground component known as the Oral Tactical Exercise; (3) a
company officer situational component known as the Situational Exercise; and (4) points
for seniority. Each component accounted for twenty-five percent of a candidate’s

1 Defendant moves to strike Plaintiff’s affidavit, but Plaintiff executed a declaration.
Doc. #49-17. To avoid confusion, the Court will refer to Plaintiff’s filing as a declaration.
2 Unless otherwise noted, the facts in this section are uncontroverted by the parties.
composite score.3 According to the record, 126 KCFD employees took the written
examination for the 2012 Captain’s Test.4 Doc. #36-6, at 10-12.5
Ninety-five KCFD employees who took the written examination also participated
in the oral examinations (i.e., Oral Tactical Exercise and Situational Exercise) for the
2012 Captain’s Test.6 Doc. #36-6, at 8-9. During the oral examinations, the employees
responded to the same scenarios, which were presented via video and written
materials. The oral examinations were evaluated by in-house personnel who held the
rank of captain or above (hereinafter, “assessors”). The assessors utilized benchmarks
as guidelines, but each assessor used his or her own judgment, which Defendant
admits was subjective. Doc. #49-19, at 1320; Doc. #52, at 16, 22.
The oral examinations were graded in October 2012, and the candidates
received their scores in November 2012. Regarding the oral examinations, Caucasian
candidates received a mean score of 13.05 on the Situational Exercise and a mean
score of 17.98 on the Oral Tactical Exercise, and African-American candidates received
a mean score of 13.21 on the Situational Exercise and a mean score of 18.23 on the
Oral Tactical Exercise.7 Candidates could request a review of their scores if they

3 While the parties generally agree the promotional process was controlled by a
collective bargaining agreement, Plaintiff contends the promotional process was not
“strictly controlled” by the collective bargaining agreement. He argues the promotional
process was controlled by Defendant and the KCFD because they implemented and
operated the process. Doc. #49, at 8. In support, Plaintiff cites the October 2017
testimony of Fire Chief Paul Berardi in a state court trial wherein Berardi was asked
about sending the evaluation of the 2014 Captain’s Test outside of Defendant. Doc.
#49-19, at 344. Setting aside the cited record does not controvert the fact that the 2012
Captain’s Test was controlled by the collective bargaining agreement, what Defendant
and the KCFD did regarding the 2014 Captain’s Test is irrelevant to Plaintiff’s claims.
4 Of those who took the written examination, ninety-eight identify as Caucasian, twenty-
two identify as African-American, four identify as Hispanic, one identifies as Asian, and
one employee’s race is not identified by the parties. Doc. #36-6, at 10-12.
5 The Court’s citations to page numbers refer to the pagination applied by the Court’s
CM/ECF system when a document is filed, which may be different than the page
numbering a party used in a filing.
6 Of those who took the oral examinations, seventy-one identify as Caucasian, nineteen
identify as African-American, four identify as Hispanic, and one employee’s race is not
identified by the parties. Doc. #36-6, at 8-9.
7 Plaintiff admits “Defendant’s math seems to be close to correct,” but he does not offer
evidence to the contrary or explain why the computations are incorrect. Doc. #49, at 14.
believed their scores were inaccurate. The “second review” process occurred in
November and December 2012.
After the composite scores were configured, a promotional list was created and
published in December 2012. The promotional list ranked the candidates in order of
their composite scores, from highest to lowest. Promotions to captain were done in
“rank order” – that is, the first captain opening was awarded to the highest ranked
person on the list, the second captain opening was awarded to the second highest
ranked person on the list, and so on, until all open captain positions were filled.8 The
first promotion was made on January 13, 2013, to the top scoring applicant, an African-
American employee whose composite score was 86.5537. Doc. #36-6, at 7-8. From
the 2012 Captain’s Test promotional list, which was valid for two years, Defendant
promoted sixteen employees – twelve identify as Caucasian, three identify as African-
American, and one identifies as Hispanic. The last promotion was made on December
14, 2014. After that date, promotions were awarded from the promotional list generated
from the 2014 Captain’s Test.
Plaintiff Travis Yeargans, who identifies as African-American, became employed
with the KCFD as a firefighter in March 1991. In 1996, he was promoted to the position
of Fire Apparatus Operator (“FAO”), a driving position. Between 1998 and 2012,
Plaintiff unsuccessfully attempted to be promoted to captain on five occasions.
Regarding the 2012 Captain’s Test, Plaintiff received a composite score of 68.5778.
Doc. #36-6, at 8. He was listed thirty-second on the promotional list, meaning thirty-one
candidates received higher composite scores than he did. Id.
Plaintiff claims he was significantly underscored on the oral examinations and
argues that had he “not been underscored because of his race, then he would have
been fairly ranked in the top 17 candidates” and promoted to captain.9 Plaintiff’s Oral

8 Plaintiff disputes this fact to the extent Defendant suggests the list is “systematic with
no manipulation” by the KCFD. Doc. #49, at 9-10. To dispute this fact, Plaintiff relies
on his July 2019 declaration (Doc. #49-17), portions of which are being stricken
pursuant to Plaintiff’s concession or the Court’s decision that certain paragraphs fail to
satisfy the federal rule requirements. See infra, section II.
9 The Court presumes Plaintiff refers to seventeen candidates because the sixth ranked
candidate passed away. Doc. #36-6, at 7. Accordingly, the top five ranked candidates
and the candidates ranked seventh through seventeenth were promoted. Id.
Tactical Exercise was evaluated by Battalion Chief Carl Tripp, Battalion Chief Curtis
Edwards, and Captain Patty Sterns. His Situational Exercise was evaluated by Captain
C.J. Stenner, Battalion Chief Clay Calvin, and Captain Brian Kanoy. It is undisputed
these individuals did not have the ability to establish municipal policy. Plaintiff alleges
these individuals discriminated against him based on his race.
Effective April 1, 2014, Plaintiff’s employment concluded. Plaintiff alleges he was
constructively discharged when the KCFD failed to promote him through the 2012
Captain’s Test promotional process. When he left his employment, Plaintiff felt the
opportunity for promotion was gone, and he believed he had no other alternative but to
leave. Defendant contends, and its records reflect, Plaintiff retired. Doc. #36-4. It is
undisputed that Plaintiff did not discuss his reasons for leaving with Defendant and he
did not complain to Defendant that he was the victim of discrimination. Doc. #36-5, at 1-
2. In May 2018, Plaintiff filed this lawsuit, alleging a failure to promote claim and a
constructive discharge claim under 42 U.S.C. § 1983. Doc. #1.
Now pending are Defendant’s motion for summary judgment, Defendant’s motion
to strike Plaintiff’s expert witnesses, Plaintiff’s motion to strike Defendant’s experts, and
Defendant’s motion to strike portions of a declaration Plaintiff submitted along with his
opposition to Defendant’s motion for summary judgment.10

II. MOTION TO STRIKE PLAINTIFF’S DECLARATION
A. Standard
“An affidavit or declaration used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P.
56(c)(4). A declarant “asserting personal knowledge must include enough factual
support to show that the [declarant] possesses that knowledge.” El Deeb v. Univ. of

10 The motions to strike experts became fully briefed in July 2019, and the summary
judgment motion became fully briefed on August 12, 2019. Defendant’s motion to strike
portions of Plaintiff’s declaration was filed along with its summary judgment reply. Doc.
#53. Plaintiff opposed that motion on August 26, 2019. Doc. #55. Although Defendant
has not filed a reply and the time for doing so has not elapsed, the Court finds a reply is
unnecessary.
Minn., 60 F.3d 423, 428-29 (8th Cir. 1995) (citations omitted). When a declaration does
not satisfy the federal rule requirements, it may be subject to a motion a strike because
a court is not permitted to consider declarations that fail to meet the federal rule
requirements. Id. (citations omitted). When a party objects on the grounds that a fact is
not supported by admissible evidence, “the burden is on the proponent of the evidence
to show that the material is admissible as presented or to explain the admissible form
that is anticipated.” Gannon Int’l Ltd. v. Blocker, 684 F.3d 785, 793 (8th Cir. 2012)
(citation omitted).

B. Discussion
Defendant moves to strike Paragraphs 15, 17, 18, 19, 21, 23, 24, 25, 33, 35, 37,
38, 43, 44, 45, and 47 in Plaintiff’s July 25, 2019 declaration due to lack of personal
knowledge, lack of foundation, inadmissible hearsay, legal arguments, and/or
speculation. Plaintiff concedes Paragraphs 15, 17, 19, and 24 and the last two lines of
Paragraph 18 – i.e., “which was often done in collaboration with management to control
who was promoted” – “may not be based on factual presentations without further proof.”
Doc. #55, at 1. Pursuant to Plaintiff’s concession, the Court strikes Paragraphs 15, 17,
19, and 24, and the last two lines of Paragraph 18.
However, Plaintiff argues Paragraphs 21, 23, 25, 33, 35, 37, 38, 43, 44, 45, and
47 should not be stricken. He contends these paragraphs explain “why he believed that
his working conditions were intolerable, given Defendant’s failures to fairly promote him,
thus constituting a constructive discharge,” and show he “had no way to know whether
he would be promoted” when the promotional list was published. Doc. #55, at 2.
In Paragraph 21, Plaintiff states, “[u]pon information and belief, there was a
vacant Captain’s position when I died number one on the promotional list.” Doc. #49-
17, ¶ 21. Although he may have personal knowledge regarding a pre-2012 promotional
list that expired when he was at the top of the list, Plaintiff’s declaration represents his
knowledge is based on “information and belief.” A declaration made on “information
and belief is insufficient” to satisfy the personal knowledge requirement. See Camfield
Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1367 (8th Cir. 1983) (citations
omitted). Moreover, Plaintiff fails to include any details about the event, including, most
importantly, when it occurred and the basis of his information and belief. Because of
the lack of detail, Plaintiff does not demonstrate he possesses personal knowledge, and
the paragraph simply sets forth an unsupported conclusion. Thus, the paragraph is
insufficient to establish a genuine issue of material fact exists. See Murr v. Midland
Nat’l Life Ins. Co., 758 F.3d 1016, 1024 (8th Cir. 2014). Finally, Plaintiff does not
demonstrate how this information would be admissible at trial. Gannon Int’l Ltd., 684
F.3d at 793. Accordingly, the Court strikes Paragraph 21.11
In Paragraph 23, Plaintiff states, “I was told that I would not be promoted
because Al Myers was an outspoken Black man and other Captains would for[e]go their
retirement until the list expired….” Doc. #49-17, ¶ 23. A party may not rely on hearsay
to defeat a motion for summary judgment unless the party also lays a foundation for an
exception to the hearsay rule. Jenkins v. Winter, 540 F.3d 742, 748 (8th Cir. 2008);
Erickson v. Farmland Indus., Inc., 271 F.3d 718, 728 (8th Cir. 2001); Churchill Bus.
Credit, Inc. v. Pac. Mut. Door Co., 49 F.3d 1334, 1337 n.6 (8th Cir. 1995). While the
record is viewed in the light most favorable to Plaintiff, who is the non-moving party, the
Court cannot “stretch this favorable presumption so far as to consider as evidence
statements found only in inadmissible hearsay.” Mays v. Rhodes, 255 F.3d 644, 648
(8th Cir. 2001) (citation omitted).
Plaintiff argues the statement referenced in Paragraph 23 is non-hearsay
because a member of management made the statement. Doc. #55, at 3 (citing Fed. R.
Evid. 801(d)(2)). But, neither in his declaration nor in his response to the motion to
strike did Plaintiff identify the person who made the statement, show the person was
authorized to make the statement, or establish the statement was made within the
scope of the speaker’s employment. Fed. R. Evid. 801(d)(2). Thus, Plaintiff has not
laid a foundation for an exception to the hearsay rule. Therefore, the Court strikes
Paragraph 23.12

11 Even if Paragraph 21 was not stricken, the Court’s decision on Defendant’s summary
judgment motion would remain unchanged. Among other reasons, Plaintiff being the
next person to be promoted when a promotional list expired at some unknown time in
the past is not relevant to his failure to promote claim arising from the 2012 Captain’s
Test or his constructive discharge claim.
12 Even if Paragraph 23 was not stricken, the Court’s decision on Defendant’s summary
In Paragraph 25, Plaintiff states he believes he was not promoted to captain at
least five times because of his race. Doc. #49-17, at ¶ 25. In Paragraph 35, Plaintiff
sets forth his belief that he was “consistently under-scored in the Captain[’]s
Promotional Process on the oral response portions….” Id. ¶ 35. In Paragraph 38,
Plaintiff states he believed he “would never have been promoted to Captain” if he
remained in employed with the KCFD. Id. ¶ 38. He does not identify any basis, provide
details about, or otherwise explain the beliefs expressed in these paragraphs.
Consequently, these statements are unsupported conclusions, and Plaintiff does not
demonstrate how these conclusory statements, without more, would be admissible at
trial. See Camfield Tires, Inc, 719 F.2d at 1367; Murr, 758 F.3d at 1024; Gannon Int’l
Ltd., 684 F.3d at 793. For this reason alone, the Court could strike these paragraphs.
However, when viewing these statements with the entirety of Plaintiff’s declaration and
giving him the benefit of all inferences that may be reasonably drawn from the evidence,
the Court finds these paragraphs have minimally satisfied the requirements. Therefore,
the Court denies Defendant’s motion to strike Paragraphs 25, 35, and 38.13
In Paragraph 33, Plaintiff states, in February 2014, he “asked around to
determine how many candidates might be promoted off the list…[and it] became
apparent to me that I would not be reached for promotion before the list expired in
December.” Doc. #49-17, ¶ 33. Defendant moves to strike this paragraph, arguing it is
based on hearsay. Plaintiff contends this paragraph satisfies an exception to the

judgment motion would not be impacted. At a minimum, whether captains did not retire
during a previous (undated) promotional list to allegedly prevent another person (not
Plaintiff) from being promoted is irrelevant to Plaintiff’s failure to promote claim arising
from the 2012 Captain’s Test and his constructive discharge claim.
13 The Court notes that, in the context of a summary judgment motion, Plaintiff’s “belief”
that actions were discriminatory, without more, is not evidence of race discrimination.
See Canady v. Wal-Mart Stores, Inc., 440 F.3d 1031, 1034 (8th Cir. 2006); see also
Habib v. NationsBank, 279 F.3d 563, 567 (8th Cir. 2001) (holding a “non-moving party
must be able to ‘substantiate his allegations with sufficient probative evidence that
would permit a finding in his favor based on more than mere speculation, conjecture, or
fantasy.’”) (citation omitted). As the Eighth Circuit stated, a plaintiff’s “unsupported self-
serving allegation that [the] employer’s decision” was because of the plaintiff’s
membership in a protected class “does not establish a genuine issue of material fact.”
Wagner v. Gallup, Inc., 788 F.3d 877, 888 (8th Cir. 2015) (quoting Gibson v. Am.
Greetings Corp., 670 F.3d 844, 857 (8th Cir. 2012)).
hearsay rule because it evinces his then-existing mental condition or statement of mind
demonstrating “intent, motive and[/]or plan concerning his constructive discharge
claim.”14 Doc. #55, at 2-3.
Certain statements are excluded from the rule against hearsay, including
“statement[s] of the declarant’s then-existing state of mind (such as motive, intent, or
plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or
bodily health), but not including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the validity or terms of the declarant’s will.”
Fed. R. Evid. 803(3). “A declarant’s out-of-court statement of intention is admissible to
prove that the declarant subsequently acted in conformity with that intention, if the doing
of that act is a disputed material fact.” Firemen’s Fund Ins. Co. v. Thien, 8 F.3d 1307,
1312 (8th Cir. 1993) (citation omitted). Critically, this hearsay exception requires a
statement be made “contemporaneous with the declarant’s ‘then existing’ state of mind,
emotion, sensation, or physical condition.” United States v. Naiden, 424 F.3d 718, 722
(8th Cir. 2005). While Plaintiff ostensibly relied on statements from unidentified others,
Paragraph 33 does not set forth an out-of-court statement by Plaintiff of his “then-
existing state of mind.” Thus, Rule 803(3) is not applicable.
Plaintiff also contends Paragraph 33 is based on personal knowledge, but fails to
address that the paragraph is founded on information he obtained when he “asked
around to determine how many candidates might be promoted off the list.” Information
a declarant “heard” or “learned” does not equate to personal knowledge. See Ward v.
Int’l Paper Co., 509 F.3d 457, 462 (8th Cir. 2007) (citation omitted). In addition, the
paragraph is based on statements made to Plaintiff that are used for to prove the truth
of the matters asserted. As discussed supra, Plaintiff may not rely on hearsay to defeat
a summary judgment motion, unless he also lays a foundation for an exception to the
hearsay rule. See Jenkins, 540 F.3d at 748; Erickson, 271 F.3d at 728; Churchill Bus.
Credit, 49 F.3d at 1337 n.6. Plaintiff does not lay a foundation for an exception to the
hearsay rule.

14 Plaintiff raised this argument for all paragraphs at issue. However, that argument fails
for all paragraphs for the same reason it fails for Paragraph 33.
The Court could strike Paragraph 33 for any of the foregoing reasons. However,
when viewing this paragraph along with the remainder of the declaration and affording
Plaintiff the benefit of all inferences reasonably drawn from the evidence, the Court finds
this paragraph has minimally satisfied the requirements. Defendant’s motion to strike
Paragraph 33 is denied.
In Paragraph 37, Plaintiff states “there were several racially segregated fire
stations and many racially segregated shifts” while he was employed with the KCFD.
Doc. #49-17, ¶ 37. While this paragraph is conclusory, does not provide details (such
as when and where), and does not specify the basis for Plaintiff’s personal knowledge
other than his employment with the KCFD, the Court construes all inferences in
Plaintiff’s favor, and finds this information is likely within his personal knowledge based
on his years of employment with the KCFD. Therefore, Defendant’s motion to strike
Paragraph 37 is denied.15
In Paragraph 43, Plaintiff opines his expert witnesses, Kathleen Kline and Anne
Wedow, “fairly assessed the oral responses” on his oral examinations, and “[a]ccording
to the fair and non-discriminatory scores assessed by them..., [Plaintiff] would have
been promoted on November 30, 2014 as demonstrated on the Excel [spreadsheet]
attached as Exhibit 1.” Doc. #49-17, ¶ 43. Plaintiff evaluate his experts’ report, but fails
to establish how he is qualified to assess and opine about experts’ reports, fails to lay a
foundation for the basis of his opinion, and fails to demonstrate how he is qualified to
render such an opinion. Additionally, Plaintiff’s statement that he “would have been
promoted on November 30, 2014,” is not based on personal knowledge. Instead, it is
speculation, which is inadmissible and cannot be considered by the Court. See infra,
section III(A). For these reasons, Defendant’s motion to strike Paragraph 43 is granted.
In Paragraph 43, Plaintiff also refers to Exhibit 1, which is purportedly attached to
his declaration. But there is no exhibit attached to his declaration. See Doc. #49-17.
The Court cannot consider evidence that was not provided. Thus, Defendant’s motion
to strike Exhibit 1 to Plaintiff’s declaration is granted.

15 While the Court does not strike Paragraph 37, Plaintiff only brings a failure to promote
claim and a constructive discharge claim. Neither claim is based on fire stations or
shifts being purportedly segregated by race.
In Paragraph 44, Plaintiff states he “was discriminated against because of [his]
race through the Captain’s Promotional Process that began in 2012 and ended in 2014
when [Defendant] failed to promote [him]….” Doc. #49-17, ¶ 44. Defendant moves to
strike this paragraph because it contains a legal argument. Like Paragraphs 25, 35,
and 38, the Court could strike this paragraph for a number of reasons. But, when
viewing this statement along with the entirety of Plaintiff’s declaration and giving him the
benefit of all inferences reasonably drawn from the evidence, the Court finds this
paragraph meets the minimal requirements. Thus, the Court denies Defendant’s motion
to strike Paragraph 44.16
In Paragraph 45, Plaintiff avers that if Defendant had promoted thirty-two
individuals through the 2012 Captain’s Test promotional process that began in 2012, he
would not have been able to bring his failure to promote claim. Doc. #49-17, ¶ 45. He
further states his belief in February 2014 (that he would not be promoted) proved
correct because he was not promoted during the 2012 Captain’s Test promotional
process. Defendant argues this paragraph presents legal arguments. The Court
agrees this paragraph includes legal arguments, particularly regarding the accrual of
Plaintiff’s failure to promote claim. This paragraph also contains Plaintiff’s speculation
as to when he believed he could bring his failure to promote claim. While the Court
could strike this paragraph, it declines to do so. However, the Court is cognizant of the
legal arguments in this paragraph and those asserted in Paragraph 44, which are
discussed further infra, section III(B)(1)(b).
In Paragraph 47, Plaintiff states, “I believe that even if I reached the top of the
promotional list, the KCFD would have failed to promote me yet again.” Doc. #49-17, ¶
47. In addition to this statement being conclusory and unsupported, it is nothing more
than speculation by Plaintiff, which cannot be considered by the Court. See infra,
section III(A). Therefore, Defendant’s motion to strike Paragraph 47 is granted.

16 As stated supra, Plaintiff’s belief that he was the victim of discrimination, which is
what this paragraph expresses, without more, is not evidence of race discrimination.
See Canady, 440 F.3d at 1034.
III. MOTION FOR SUMMARY JUDGMENT
A. Standard
A moving party is entitled to summary judgment on a claim only if there is a
showing that “there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Williams v. City of St. Louis, 783 F.2d 114,
115 (8th Cir. 1986). “[W]hile the materiality determination rests on the substantive law,
it is the substantive law’s identification of which facts are critical and which facts are
irrelevant that governs.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Thus, “[o]nly disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Wierman v.
Casey’s Gen. Stores, 638 F.3d 984, 993 (8th Cir. 2011) (quotation omitted). The Court
must view the evidence in the light most favorable to the non-moving party, giving that
party the benefit of all inferences that may be reasonably drawn from the evidence.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588-89 (1986). “[A]
nonmovant may not rest upon mere denials or allegations, but must instead set forth
specific facts sufficient to raise a genuine issue for trial.” Nationwide Prop. & Cas. Ins.
Co. v. Faircloth, 845 F.3d 378, 382 (8th Cir. 2016) (citations omitted).
The Court notes some of the parties’ attempts to establish or controvert a fact
were unsuccessful. For example, the cited record did not support or controvert the fact,
nothing was cited in support of or in contravention of a fact (or portion of a fact), legal
arguments were included in response to a fact, inadmissible evidence was used to
support or controvert a fact, or the cited record was stricken. The facts (or portions of
facts) not properly supported were not considered by the Court. Fed. R. Civ. P. 56(c),
(e); L.R. 56.1(a), (d). Likewise, the facts the opposing party failed to properly controvert
were deemed admitted by the Court. Fed. R. Civ. P. 56(c), (e); L.R. 56.1(b), (d).

B. Discussion
(1) Timeliness of Claims
(a) Defendant’s Potential Waiver of Affirmative Defense
Defendant moves for summary judgment on Plaintiff’s failure to promote claims
because they are untimely. The Court must first address whether Defendant waived the
statute of limitations defense because Defendant did not plead statute of limitations as
an affirmative defense and never sought leave to amend its answer. Doc. #6. Yet,
Defendant now moves for summary judgment on that basis.
“In responding to a pleading, a party must affirmatively state any avoidance or
affirmative defense, including…statute of limitations.” Fed. R. Civ. P. 8(c)(1).
Generally, if the affirmative defense of the statute of limitations is not raised in a
responsive pleading, the defense is waived. See John R. Sand & Gravel Co. v. United
States, 552 U.S. 130, 133 (2008) (citations omitted); Jessie v. Potter, 516 F.3d 709, 713
n.2 (8th Cir. 2008) (citations omitted) (stating a defendant “must plead and prove” the
affirmative defense of statute of limitations). Nevertheless, in certain instances, the
Eighth Circuit has affirmed district courts’ decisions allowing a party to raise an
affirmative defense for the first time in a motion. See First Union Nat’l Bank v. Pictet
Overseas Tr. Corp., 477 F.3d 616, 622 (8th Cir. 2007); Stoebner v. Parry, Murray, Ward
& Moxley, 91 F.3d 1091, 1093-94 (8th Cir. 1996).
When a plaintiff had notice of the defense and the plaintiff’s ability to respond to
the motion was not prejudiced, the Eighth Circuit has determined an affirmative
defense, although not included in the defendant’s answer, was not waived. See First
Union Nat’l Bank, 477 F.3d at 622 n.5 (finding “where the circumstances merit it, we
have accepted and favorably cited affirmative defenses first raised at various stages of
litigation.”); Stoebner, 91 F.3d at 1093-94 (holding an affirmative defense was not
waived because the plaintiff failed to show he lacked notice of the defense or that
defendant’s delay in asserting the defense prejudiced the plaintiff’s ability to respond);
see also Sanders v. Dep’t of the Army, 981 F.2d 990, 991 (8th Cir. 1992) (citation
omitted) (stating “[i]t was not necessary for the district court to require the meaningless
formality of an amended answer because the [defendant]’s motion to dismiss, which
expressly raised the limitations issue, provided [the plaintiff] with sufficient notice.”).17

17 This Court and other district courts in the Eighth Circuit have determined the belated
assertion of an affirmative defense does not necessarily constitute waiver of that
affirmative defense. See Union Bank v. Murphy, No. 4:10-CV-714-DGK, 2012 WL
4404372, at *5-6 (W.D. Mo. Sept. 24, 2012) (finding the plaintiff was not unfairly
surprised or prejudiced by the defendant’s belated assertion of an affirmative defense);
Hogan Logistics, Inc. v. Davis Transfer Co., No. 4:15-CV-1541-CAS, 2018 WL 341733,
When responding to Defendant’s arguments about the untimeliness of his claims,
Plaintiff does not raise an issue with Defendant’s failure to plead statute of limitations as
an affirmative defense. See Doc. #49, at 23-26. Consequently, he does not argue he
was not provided sufficient notice of the defense or his ability to respond to Defendant’s
statute of limitations argument was prejudiced by Defendant’s delay in asserting the
defense. Although Defendant failed to plead its affirmative defense of statute of
limitations, Plaintiff has not shown he did not have sufficient notice of the defense or his
ability to respond to the belatedly raised defense was prejudiced. Accordingly, the
Court finds Defendant has not waived its statute of limitations affirmative defense.

(b) Accrual of Plaintiff’s Claims
Plaintiff’s claims are brought pursuant to 42 U.S.C. § 1983, which “provides a
cause of action against any person who deprives an individual of federally guaranteed
rights ‘under color’ of state law.” Filarsky v. Delia, 566 U.S. 377, 384 (2012) (quoting 42
U.S.C. § 1983). Although section 1983 provides a federal cause of action, it “looks to
the law of the State in which the cause of action arose.” Wallace v. Kato, 549 U.S. 384,
387 (8th Cir. 2007). “This is so for the length of the statute of limitations: It is that which
the State provides for personal-injury torts.” Id. (citations omitted).
The parties agree the applicable statute of limitations is five years. Doc. #36, at
11; Doc. #49, at 24; Mo. Rev. Stat. § 516.120(4). They also agree the statute of
limitations for a constructive discharge claim begins to run when the employee leaves
his employment. Doc. #36, at 12 n.4; Doc. #49, at 26. Although Defendant contends
Plaintiff does not have a cognizable discharge claim, it concedes his constructive
discharge claim was timely brought. Also, Plaintiff concedes any failure to promote
claims related to Captain’s Tests before 2012 are time-barred. Doc. #49, at 26.

at *5-6 (E.D. Mo. Jan. 9, 2018) (finding there was no unfair surprise or prejudice to the
plaintiff, even though the defendant did not allege an affirmative defense until filing a
summary judgment motion, because the motion was filed more than four months before
trial and discovery had been conducted on the issue); LaFleche v. Clark Prods., Inc.,
No. 05-2549-MJD/AJB, 2007 WL 2023564, at *11 (D. Minn. July 9, 2007) (finding there
was no evidence of unfair surprise or prejudice by the belated assertion of the
affirmative defense of waiver).
However, the parties disagree as to when Plaintiff’s failure to promote claim related to
the 2012 Captain’s Test accrued, and thus, whether the claim is time-barred.

(i) Summary of the Parties’ Arguments
Defendant argues Plaintiff’s failure to promote claim arose in November 2012,
when he received his test scores, or alternatively, in December 2012, when the
promotional list was published. In support, Defendant generally relies on Plaintiff’s
Complaint and his interrogatory answers. Doc. #36, at 6, 8, 11-12. In the Complaint,
Plaintiff alleges “[s]ome Caucasian candidates were unfairly over-scored through the
Captain’s Promotional Process that began in 2012,” and Plaintiff was “significantly
underscored” on the oral examinations. Doc. #1, ¶¶ 17, 20. If he “had not been
underscored because of [his] race, [Plaintiff] would have been fairly ranked in the top 17
candidates and thus promoted through the Captain’s Promotional Process that began in
2012.” Id. ¶ 21. In his interrogatory answers, Plaintiff identified the “discriminatory
conduct” as “the scoring of the promotional exams to Captain,” and stated “the
assessors who scored [his] oral tests” as the individuals who discriminated against him.
Doc. #36-5, at 1. When asked to identify “any and all other instances of discrimination,”
Plaintiff stated he took the 1999 Captain’s Test and when that promotional list expired, “I
was the next candidate for promotion.” Id. at 2.
Plaintiff argues his failure to promote claim was not “complete and present,” and
thus, did not arise until the 2012 Captain Test’s promotional list expired in December
2014 and he had not been promoted.18 Plaintiff alleges “Defendant has a pattern and
practice of not promoting African Americans,” “Defendant failed to promote him to
Captain,” and his “race and racial bias played a part in Defendant’s failure to promote
him and in the underscoring of the oral components of the Captain’s Promotional
Process, which began in 2012 and continued through 2014.” Doc. #1, ¶¶ 20, 29, 31. In
his declaration, Plaintiff states the discrimination related to the promotional process
began in 2012 and ended in 2014. Doc. #49-17, ¶ 44. He claims if all applicants
ranked higher than him had been promoted, he would have been promoted before the

18 Plaintiff does not address, and the Court does not comprehend, how he could have a
viable claim for failure to promote after he left his employment on April 1, 2014.
promotional list expired in December 2014. Id. ¶ 45. Thus, he did not know he had a
failure to promote claim until the list expired and he had not been promoted. Id.19

(ii) Date of Accrual
In this matter, the statute of limitations begins to run when Plaintiff’s cause of
action accrues. Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 1327-28 (8th Cir.
1995) (citation omitted). For a section 1983 claim, “the accrual date…is a question of
federal law that is not resolved by reference to state law.” Wallace, 549 U.S. at 388.
“Aspects of § 1983 which are not governed by reference to state law are governed by
federal rules conforming in general to common-law tort principles.” Id. (citations
omitted); see also Montin v. Estate of Johnson, 636 F.3d 409, 413 (8th Cir. 2011)
(citation omitted). Under common-law tort principles, a claim accrues “when the plaintiff
has ‘a complete and present cause of action,’ that is, when ‘the plaintiff can file suit and
obtain relief.’” Id. (citations omitted); see also Humphrey v. Eureka Gardens Pub.
Facility Bd., 891 F.3d 1079, 1080-81 (8th Cir. 2018) (quoting Wallace, 549 U.S. at 388).
Under the traditional rule of accrual...the tort cause of action accrues, and
the statute of limitations commences to run, when the wrongful act or
omission results in damages. The cause of action accrues even though
the full extent of the injury is not then known or predictable. Were it
otherwise, the statute would begin to run only after a plaintiff became
satisfied that he had been harmed enough, placing the supposed statute
of repose in the sole hands of the party seeking relief.

Wallace, 549 U.S. at 391 (internal citations and quotations omitted).

(iii) Discrete Discriminatory Acts and Continuing Discriminatory Acts
The parties do not specifically discuss whether Plaintiff’s failure to promote claim
is a discrete discriminatory act or a continuing discriminatory act. This distinction is
important because when an unlawful employment action “occurs” depends on whether it

19 Plaintiff also contends the fire chief and “KCFD management” discriminated against
him. Doc. #49, at 7. However, the cited record does not identify anyone who
discriminated against him. See Doc. #49-17, ¶ 44; Doc. #49-19, at 344. Furthermore,
other than alleging he was not promoted, the cited record does not show how Plaintiff
was the victim of discrimination and when he was the victim of discrimination. Id.
Accordingly, the Court looks to Plaintiff’s Complaint to identify his claim(s).
is a discrete discriminatory act or a continuing discriminatory act. See Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 108-21 (2002); Ellis v. Houston, 742 F.3d
307, 319-22 (8th Cir. 2014) (discussing discrete acts and continuing violations in the
context of section 1983).20 Each discrete act “occurs” on the day the act “happened.”
Morgan, 536 U.S. at 110.
“Discrete acts such as termination, failure to promote, denial of transfer, and
refusal are easy to identify.” Id. at 114. Each discrete act is considered a “separate
actionable unlawful employment practice,” and therefore, the statute of limitations
begins to run on the day the discrete act occurs – that is, on the day the act “happened.”
Id. at 110, 113-14; see also Wedow v. City of Kan. City, 442 F.3d 661, 670 (8th Cir.
2006) (stating each discrete act “starts a new clock.”). A discrete act is “not actionable if
time barred, even when [it is] related to acts” that are timely filed. Id. Moreover,
“[d]iscrete acts that fall within the statutory time period do not make timely [those
discrete] acts that fall outside the time period.” Id. at 112 (citation omitted).
Unlike a discrete act, a continuing discriminatory act is “composed of a series of
separate acts that collectively constitute one ‘unlawful employment practice.’” Id. at 117
(citation omitted). Because a continuing act “occurs over a series of days or perhaps
years…,” it “cannot be said to occur on any particular day.” Id. at 115 (citing Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). These claims “are based on the cumulative
effect of individual acts.” Id. at 115; Moses v. Dassault Falcon Jet-Wilmington Corp.,
894 F.3d 911, 919-20 (8th Cir. 2018). To establish a continuing violation, a plaintiff
“must show that the acts of which he or she complains were not actionable as discrete
violations of the applicable law.” Stolzenburg v. Ford Motor Co., 143 F.3d 402, 405 (8th
Cir. 1998) (citation omitted). Significantly, “a continuing violation is occasioned by
continual unlawful acts, not continual ill effects from an original violation.” Eidson v.

20 The Eighth Circuit applies similar standards to intentional employment discrimination
claims under Title VII, 42 U.S.C. § 1981, and 42 U.S.C. §1983. Madison v. IBP, Inc.,
330 F.3d 1051, 1060-61 (8th Cir. 2003) (citations omitted) (noting the Supreme Court in
Morgan “did not draw on any peculiarities in Title VII or its statutory language” when
discussing discrete acts and continuing violations); see also Richmond v. Bd. of
Regents of Univ. of Minn., 957 F.2d 595, 598 (8th Cir. 1992) (citations omitted).
Accordingly, the Court cites to decisions that discuss any of these statutes.
Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 635 (6th Cir. 2007) (citation omitted).
Due to the continuing nature of the claim, “the employer may be liable for all acts that
are part of this single claim.” Moses, 894 F.3d at 920 (quoting Morgan, 536 U.S. at
118).
Defendant’s asks that the Court should consider the decision not to promote
Plaintiff as a discrete act that accrued in late 2012 (when the scores were distributed or
when the promotional list was posted). Plaintiff’s argument suggests a continuing
discriminatory act that did not accrue until December 2014 (when the promotional list
expired). Plaintiff cites to two Second Circuit cases to support his argument.
In both cases cited by Plaintiff, the Second Circuit determined a failure to hire or
promote claim did not arise until an eligibility list expired because the plaintiff would not
know he was not going to be hired or promoted until the eligibility list expired. Harris v.
City of N.Y., 186 F.3d 243, 248-49 (2d Cir. 1999); Guardians Ass’n of N.Y. Police Dep’t,
Inc., 633 F.2d 232, 249, 251 (2d Cir. 1980) (holding the defendant’s refusal to hire
based upon a discriminatory examination were “at the very least…the culmination of a
continuously maintained illegal employment policy,” “were not discrete acts,” and “were
carried out pursuant to a conceded and consistent policy.”). Plaintiff does not cite any
other decisions, and the Court’s research did not reveal other circuit courts that have
followed the Second Circuit.
Conversely, at least three circuit courts have found the failure to promote from a
promotional or eligibility roster is a discrete act. Long before Morgan provided guidance
on discrete and continuing acts, the Third Circuit determined the promulgation of an
eligibility roster was the discriminatory act, and the use of the eligibly roster was not
continuing discrimination. Bronze Shields, Inc. v. N.J. Dep’t of Corrs., 667 F.2d 1074,
1083-84 (3d Cir. 1981). Like this matter, Bronze Shields involved an eligibility roster
compiled from written examination scores, service years, and service ratings. Id. at
1077. The plaintiffs alleged the examination was discriminatory, and because the roster
was in effect for at least two years, the discrimination was continuing. Id. at 1081. The
Third Circuit rejected the argument, finding the decision not to promote was “a delayed,
but inevitable consequence of the allegedly discriminatory practice – here a specific,
identifiable act, the promulgation of the hiring roster.” Id. at 1084.
Similarly, the Sixth Circuit determined a “promotion or hiring from an allegedly
tainted promotion roster is not a ‘continuing act’ but is merely the effect of previous
discrimination.” Cox v. City of Memphis, 230 F.3d 199, 204 (6th Cir. 2000). In Cox, the
promotional list was effective for two years, and the plaintiffs were not promoted. Id. at
201. The plaintiffs argued their employer committed a separate discriminatory act each
time it promoted someone other than plaintiffs from the “allegedly flawed eligibility list.”
Id. at 202. The Sixth Circuit rejected the argument, stating “[t]o allow employees to
challenge an eligibility roster during the entire time it is used would be to create
substantial uncertainty for employers who have to make important staffing decisions
based upon the list.” Id. at 204-05. Further, a rule that permits “employees to ‘sit on
their rights’ in the hopes” of being promoted would cause “an employer’s staffing and
hiring decisions [to] essentially remain tentative during the entire period in which a
roster was utilized, and for a substantial period thereafter if litigation ensues.” Id. This,
the Sixth Circuit noted, was an “unreasonable demand” on employers “when potential
plaintiffs would know of alleged discrimination in ranking many months or years….” Id.
The Seventh Circuit considered a similar case where the plaintiffs alleged their
employer did not promote them because of their race. Adams v. City of Indianapolis,
742 F.3d 720, 724 (7th Cir. 2014). In Adams, the plaintiffs, who claimed the testing
process was racially biased, attempted to invoke the continuing violation doctrine, but
the Seventh Circuit found the Supreme Court’s decision in Morgan foreclosed that
argument. Id. at 729-30 (citing Morgan, 536 U.S. at 114). The Seventh Circuit
concluded the plaintiffs’ failure to promote claims “fall squarely within the Supreme
Court’s list of ‘discrete acts.’” Id. at 730 (citations omitted). Thus, the statute of
limitations began to run for each failure to promote claim when the plaintiff was denied
the promotion. Id.
While the Eighth Circuit has not addressed the exact circumstances before this
Court, it has rendered decisions shedding light on whether it may consider Plaintiff’s
failure to promote claim to be a discrete or continuing discriminatory act. First, the
Eighth Circuit has reiterated the failure to promote is a discrete employment action, and
the Eighth Circuit has repeatedly declined to extend the continuing violation doctrine to
include failure to promote. See Humphrey, 891 F.3d at 1083 (reiterating it “has never
applied the continuing violation doctrine to a discrete act, such as failure to promote,
and we decline to do so now.”) (quoting High v. Univ. of Minn., 236 F.3d 909, 909 (8th
Cir. 2000)); see also Taxi Connection v. Dakota, Minn. & E. R.R. Corp., 513 F.3d 823,
825 (8th Cir. 2008) (holding “the continuing violation doctrine does not encompass
discrete discriminatory acts, such as…failure to promote…which [is] individually
actionable.”) (citation omitted); Tademe v. St. Cloud State Univ., 328 F.3d 982, 988 (8th
Cir. 2003) (finding the failure to promote is a separate violation) (citation omitted);
Stolzenburg, 143 F.3d at 405 (stating the denials of promotion “were discrete
employment actions”) (citation omitted).
Second, the Eighth Circuit has held a claim accrues on “the date on which the
adverse employment action is communicated to the plaintiff.” Dring, 58 F.3d at 1328.
In Dring, the Eighth Circuit concluded the statute of limitation for the plaintiff’s
termination claim began to run on July 18, 1990, when he was informed of the adverse
employment action and not when he was laid off on April 7, 1991. Id.
Similarly, the Eighth Circuit determined a claim accrued when the plaintiffs “were
notified of the allegedly discriminatory decision” to install pumps on their property.
Humphrey, 891 F.3d at 1082. The Eighth Circuit noted the later “installation of the
pumps and the [plaintiffs’] continuing responsibility for the additional expenses they
entail…are delayed, but inevitable, consequences of that [allegedly discriminatory]
decision.” Id. (emphasis added). The plaintiffs argued their claim did not accrue when
they were informed of the decision to install pumps because they lacked standing to
bring a claim at that time. Id. The Eighth Circuit disagreed, stating when the plaintiffs
learned of the allegedly discriminatory decision, “they could have sought declaratory or
injunctive relief, and later added demands for compensatory damages once they
incurred actual financial harm.” Id. (citation omitted). The Eighth Circuit also concluded
the plaintiffs had “not identified any continuing unconstitutional policy or restraint.” Id. at
1083. Instead, the Eighth Circuit determined the plaintiffs only “complain[ed] of the
delayed, but inevitable, consequences of the allegedly discriminatory decision” to install
certain pumps on their property. Id.
In rendering its decisions in Dring and Humphrey, the Eighth Circuit relied on the
Supreme Court’s decision in Delaware State College v. Ricks, 449 U.S. 250 (1980),
which is also instructive. Ricks, a college professor, was informed that the university
was denying him tenure, but his employment did not conclude until more than a year
later. Id. at 252-54, 257. Ricks claimed the university’s decision to deny him tenure
was discriminatory. Id. at 252. The university claimed Ricks’s claim was untimely
because the statute of limitations began to run when he was informed of the university’s
decision to deny him tenure. Id. at 254-55. The Supreme Court concluded the statute
of limitations on Ricks’s denial of tenure claim began to run when he was informed his
tenure was denied, not when his employment concluded a year later. Id. at 256-58.
The Supreme Court found Ricks’s termination was not a “continuing violation”; rather, it
was “a delayed, but inevitable, consequence of the denial of tenure.” Id. at 257-58.
Regarding the 2012 Captain’s Test promotional process, Plaintiff, when
answering interrogatories, identified only one aspect that was discriminatory – to wit, the
alleged underscoring of the oral examinations. The alleged underscoring occurred in
October 2012, Plaintiff was informed of his scores in November 2012, and the
promotional list, which listed the candidates in order of their scores, obtained was
published in December 2012. Thus, Plaintiff knew of the alleged discriminatory act by
no later than December 2012, and at that time, his claim accrued. See Delaware State
Coll., 449 U.S. at 258; Humphrey, 891 F.3d at 1082; Dring, 58 F.3d at 1328. Also, by
no later than December 2012, Plaintiff was aware he had been damaged by the alleged
discriminatory act because, as a result of the alleged underscoring, he was ranked
thirty-second on the promotional list. While he may not have known the extent of his
injuries, the claim still begins to accrue when the alleged wrongful act results in
damages. Wallace, 549 U.S. at 391; Humphrey, 891 F.3d at 1081.
Furthermore, Plaintiff has neither shown his failure to promote claim is based on
the cumulative effect of individual acts nor established the alleged discriminatory acts of
which he complains were not actionable as discrete violations. Morgan, 536 U.S. at
115; Stolzenberg, 143 F.3d at 405. Instead, the record demonstrates that, to the extent
the scoring of the oral examinations was a discriminatory act, Defendant’s failure to
promote Plaintiff based on the promotional list was a delayed but inevitable
consequence of the alleged underscoring of the oral examinations. See Humphrey, 891
F.3d at 1082; Cox, 230 F.3d at 204; Bronze Shields, 667 F.3d at 1084. The statute of
limitations began to run by no later than December 2012, but Plaintiff did not file his
lawsuit until more than five years later, after the statute of limitations ran.

(c) Tolling of the Statute of Limitations
The statute of limitations may be subject to the equitable doctrines of tolling or
estoppel. Morgan, 536 U.S. at 113 (citations omitted). While federal law governs when
a section 1983 claim accrues, the tolling of a statute of limitations is determined by state
law. Wallace, 549 U.S. at 394 (citations omitted); Montin, 636 F.3d at 413 (citation
omitted). “Missouri law provides that a statute of limitations may be suspended or tolled
only by specific disabilities or exceptions enacted by the legislature and the courts are
not empowered to extend those exceptions.” Rolwing v. Nestle Holdings, Inc., 437
S.W.3d 180, 184 (Mo. banc 2014) (citations and internal quotations omitted); see also
Mo. Rev. Stat. § 516.170 (stating “if any person entitled to bring an action in sections
516.100 to 516.370 specified, at the time the cause of action accrued be either within
the age of twenty-one years, or mentally incapacitated, such person shall be at liberty to
bring such actions within the respective times….limited after such disability is
removed.”). Plaintiff has not set forth any argument that the statute of limitations should
be suspended or tolled. Because he failed to timely file his section 1983 failure to
promote claim arising from the 2012 Captain’s Test promotional process and he
provides no basis for tolling or suspending the statute of limitations, the Court grants
Defendant’s motion for summary judgment on that claim.

(2) Plaintiff’s Claims21
Plaintiff alleges Defendant violated his Fourteenth Amendment rights when it
failed to promote him to captain and “as a result of not being promoted,” he was
constructively discharged. Doc. #1, ¶¶ 24-25, 29-31. He contends Defendant’s “pattern

21 Although the Court granted Defendant’s motion for summary judgment on Plaintiff’s
failure to promote claim due to it being untimely, the Court will also address the
substance of that claim.
and practice of not promoting African Americans to Captain…violates [his] Fourteenth
Amendment… right[s] to equal protection and due process.” Id. ¶¶ 29-30.22
Under section 1983, a plaintiff must demonstrate the municipality, “through its
deliberate conduct,” “was the ‘moving force behind the injury’” that he allegedly suffered
for the municipality to be liable. Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S.
397, 404 (1997). “[A] plaintiff must show that the municipal action was taken with the
requisite degree of culpability and must demonstrate a direct causal link between
the municipal action and the deprivation of federal rights.” Id. Section 1983 liability will
attach to a municipality for a constitutional violation “only if the violation resulted from an
official municipal policy, an unofficial custom, or a deliberately indifferent failure to train
or supervise an official or employee.” Bolderson v. City of Wentzville, 840 F.3d 982,
985 (8th Cir. 2016) (citation omitted); Atkinson v. City of Mountain View, 709 F.3d 1201,
1214 (8th Cir. 2013) (citations omitted).

22 In opposing Defendant’s summary judgment motion, Plaintiff does not indicate how
his rights were violated. See Doc. #49. The Court presumes Plaintiff’s allegation of
intentional race discrimination forms the basis of his equal protection argument, but his
due process claim remains unclear.
“Substantive due process may be violated if state action either shocks the
conscience or offends judicial notions of fairness or human dignity.” Klein v. McGowan,
198 F.3d 705, 710 (8th Cir. 1999) (citation omitted). For a section 1983 claim based on
substantive due process violations, a plaintiff “must demonstrate that the government
action complained of is ‘truly irrational,’ that is ‘something more than…arbitrary,
capricious, or in violation of state law.’” Id. (citation omitted).
For a procedural due process claim, there must be a “deprivation of interests
encompassed by the Fourteenth Amendment’s protection of liberty and property.” Bd.
of Regents of State Colls. v. Roth, 408 U.S. 564, 570 (1972). Without a protected
liberty or property interest, a procedural due process claim fails. Batra v. Bd. of
Regents of Univ. of Minn., 79 F.3d 717, 720 (8th Cir. 1996) (citation omitted). Perhaps
most relevant to this matter, “a government employee must have a ‘legitimate claim of
entitlement’ to continued employment, as opposed to a mere subjective expectancy” for
a property interest to arise. Id. (quoting Bd. of Regents, 408 U.S. at 574 n.13).
When liberally construing Plaintiff’s allegations, Plaintiff seems to allege his
substantive due process rights were violated. But Plaintiff does not allege he was
deprived of liberty or property, and he does not allege he had a legitimate claim for
entitled to continued employment. Thus, the Court discerns no procedural due process
claim.
(a) Failure to Promote
(i) Official Policy
An official municipal policy includes “decisions of a government’s lawmakers, the
acts of its policymaking officials, and practices so persistent and widespread as to
practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 60-61 (2011)
(citations omitted); see also Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658,
690 (1978). To constitute an official municipal policy, “the decisionmaker in question”
must possess “final authority to establish municipal policy with respect to the action
ordered.” Bolderson, 840 F.3d at 985 (citation omitted). Whether a person has final
policymaking authority is a “question of law,” and the trial judge “must identify those
officials…who speak with final policymaking authority….” Atkinson, 709 F.3d at 1214
(citations omitted). To determine where final policymaking authority rests, courts
consult “state and local positive law” and “state and local custom or usage having the
force of law.” Id. at 1215 (citations and internal quotations omitted).
In interrogatories, Plaintiff was asked to identify the official municipal policy that
allegedly violated his constitutional rights. Doc. #36-5, at 3. He identified “[t]he grading
of the captain’s test,” and stated the “Fire Chief or who[m]ever selected the assessors”
were the decision makers who established the official municipal policy. Id. But Plaintiff
fails to present evidence of an official policy regarding the grading of captain’s tests or
an official policy regarding the underscoring of African-American applicants for captain.
When responding to Defendant’s summary judgment, Plaintiff does not identify
any official municipal policy. Doc. #49, at 27-30. Instead, he contends Defendant’s
anti-discrimination ordinances were ignored. He also argues the KCFD Fire Chief is a
policymaker because, among other things, the Fire Chief “decides the Promotional
Process…including promotions to Captain.” Doc. #49, at 27-30. He maintains the Fire
Chief decided whether the Captain’s Test assessors were drawn from the KCFD or
outside of the KCFD. Plaintiff specifically points to the Fire Chief choosing to use an
outside assessment center for the Captain’s Test in 2014.
Even if the Court were to find the Fire Chief was a policymaker, the Fire Chief
had final authority to establish municipal policy, and/or the Fire Chief established an
official policy, Plaintiff does not demonstrate the Fire Chief’s choice to use in-house
assessors during the 2012 Captain’s Test is an official municipal policy, or the grading23
of the oral examinations during the 2012 Captain’s Test was an official municipal policy.
Furthermore, he does not show the choice to use in-house assessors or the grading of
the oral examinations, again assuming either could be considered an official policy,
directly caused and was the moving force behind the injury Plaintiff purportedly suffered.
Accordingly, the Court grants Defendant’s motion to dismiss Plaintiff’s failure to promote
claim based on official municipal policy.

(ii) Unofficial Custom or Practice
“To trigger municipal liability based on unofficial municipal custom, the custom
must be so pervasive among non-policymaking employees of the municipality that it
effectively has the force of law.” Bolderson, 840 F.3d at 986 (citation omitted); see also
Monell, 436 U.S. at 690. “The custom must be demonstrated by a continuing,
widespread, and persistent pattern of unconstitutional misconduct.” Id. (citation
omitted). “An unconstitutional custom…cannot arise from a single act.” Id.
In his interrogatory answers, Plaintiff stated the “[i]nternal assessment for
captain’s test” was the unofficial custom that violated his constitutional rights. Doc. #36-
5, at 3. In response to Defendant’s summary judgment motion, Plaintiff contends
Defendant has an unofficial custom of discriminating against African-Americans in
promotions to captain. Doc. #49, at 32. While this unofficial custom was not identified
in interrogatory answers, Plaintiff’s Complaint encompasses such a theory. Doc. #1, ¶¶
9, 22, 29.
Not included in his interrogatory answers or his Complaint, Plaintiff, when
responding to the summary judgment motion, stated there was a custom and practice of
widespread racial discrimination in the KCFD, a history of racial prejudice in the KCFD,
and “tacit authorization [by] management] to allow the unconstitutional conduct.” Doc.
#49, at 31-33. Plaintiff points to under-representation of African-American employees in

23 There is no evidence of the Fire Chief or policymaker deciding or directing that
Plaintiff’s or any other applicant’s oral examinations be underscored. Instead, the
results from the 2012 Captain’s Test promotional process reveal there was no such
policy in place. The top ranked applicant and two other applicants ranked in the top
seventeen identify as African-American. Doc. #36-6, at 7.
the KCFD; racial segregation on shifts and in stations; his unsuccessful attempt to join
an all-Caucasian study group; racial slurs heard by others (not Plaintiff); and a lawsuit
filed by another African-American employee of the KCFD who unsuccessfully applied to
be a captain. Id. at 31-33. Plaintiff’s attempt to expand his unofficial custom claim is
improper. See Woods v. Wills, 400 F. Supp. 2d 1145, 1186 (E.D. Mo. 2005) (finding a
party could not assert new theory of case when responding to a summary judgment
motion or expand the basis of the party’s claim to attempt to create a material issue of
fact). Thus, the Court finds this new unofficial custom is not properly before it.
Even if the Court considers all three unofficial customs and/or practices that
Plaintiff identified, he does not demonstrate an unofficial custom or practice that is
“pervasive,” “has the force of law,” and/or involves “continuing, widespread, and
persistent pattern of unconstitutional misconduct.” Bolderson, 840 F.3d at 986 (citation
omitted). Also, regarding his allegation that the scoring of his oral examinations was the
unofficial custom, the scoring cannot be an unofficial custom because it arises out of
one single event. Id. Finally, Plaintiff has cited admissible evidence demonstrating
Defendant took actions against him with deliberate indifference, knowing the obvious
consequences of those actions. Atkinson, 709 F.3d at 1216. For these reasons, the
Court grants Defendant’s motion for summary judgment on Plaintiff’s failure to promote
claim based on unofficial custom or practice.

(iii) Failure to Train
A municipality’s “decision not to train certain employees about their legal duty to
avoid violating citizens’ rights may rise to the level of an official government policy for
purposes of § 1983.” Connick, 563 U.S. at 61. As the Supreme Court noted, “[a]
municipality’s culpability for a deprivation of rights is at its most tenuous where a claim
turns on a failure to train.” Id. (citation omitted). To establish a section 1983 claim for
failure to train, a plaintiff must demonstrate the municipality’s failure to train amounts to
“deliberate indifference to the rights of persons with whom the [untrained employees]
come into contact.” Id. (citation and internal quotation omitted); see also Ambrose v.
Young, 474 F.3d 1070, 1079-80 (8th Cir. 2007) (holding a plaintiff “must show the need
for more or different training is so obvious, and the inadequacy so likely to result in the
violation of constitutional rights, that [the defendant] can reasonably be said to have
been deliberately indifferent to the need.”) (citation and internal quotations omitted).
Plaintiff’s Complaint does not specify the basis of his failure to train claim. See
Doc. #1. But, in interrogatory answers, Plaintiff identified the “[a]ssessors not [being]
sufficiently screened or trained regarding racial bias” as the “acts that constitute the
deliberately indifferent failure to train or supervise.” Doc. #36-5, at 3. When responding
to Defendant’s motion for summary judgment, Plaintiff refers to failure to train in passing
and seems to conflate his failure to train arguments with his official policy arguments.
Doc. #49, at 21, 26-33. Assuming Plaintiff is maintaining a failure to train claim, he fails
to identify a genuine issue of material fact preventing entry of summary judgment in
Defendant’s favor on this claim.
First, contrary to Plaintiff’s representation, the record reflects Defendant’s
employees, including KCFD employees, were trained every two to three years on
discrimination, harassment, and implicit bias. Doc. #49-19, at 292-98. Second, Plaintiff
does not demonstrate (or even argue) Defendant’s purported decision not to train the
assessors rose to the level of an official policy.24 Third, Plaintiff does not point to any
evidence demonstrating Defendant’s alleged failure to train amounts to “deliberate
indifference” to his rights. Fourth, Plaintiff does not show the need for more training is
“so obvious” and/or the inadequacy of the training was so likely to result in constitutional
violations. In summary, Plaintiff has not established a section 1983 claim based on
failure to train, and he has not demonstrated a genuine issue of material fact exists with
regard to said claim. Accordingly, the Court grants Defendant’s motion for summary
judgment on Plaintiff’s section 1983 claim based on failure to train.

24 The Court notes that although Plaintiff’s response to Defendant’s summary judgment
motion does not discuss the training the assessors received, he included an “assessor
manual” for the 2012 captain promotional process as an exhibit to his response. Doc.
#49-7. This forty-three-page manual, which “was designed for use in conjunction with a
formal training program for assessors,” outlines the assessors’ training, provides the
agenda for roughly forty hours of training, provides standards and guidelines to be used
when evaluating candidates’ performance, gives rating forms, and discusses the ethics
of performance-based assessment operations. Id.; see also Doc. #38-2, at 17-18.
(b) Constructive Discharge
“Constructive discharge occurs when an employer deliberately renders the
employee's working conditions intolerable, thereby forcing her to quit.” Wright v. Rolette
Cty., 417 F.3d 879, 886 (8th Cir. 2005) (citation omitted). To prove constructive
discharge, Plaintiff “must establish [Defendant] deliberately made or allowed [his]
working conditions ‘to become so intolerable that [he] had no other choice but to quit.’”25
Jones v. Fitzgerald, 285 F.3d 705, 715-16 (8th Cir. 2002) (citation omitted). An
employee who leaves his employment “without giving the employer a reasonable
chance to resolve a problem has not been constructive discharged.” Davison v. City of
Lone Jack, 121 F. App’x 671, 672 (8th Cir. 2005) (citing Phillips v. Taco Bell Corp., 156
F.3d 884, 890 (8th Cir. 1998)); see also Anda v. Wickes Furniture Co., 517 F.3d 526,
535 (8th Cir. 2008) (citation omitted); Jones, 285 F.3d at 716 (citation omitted) (stating
“[a] plaintiff must take affirmative steps short of resigning that a reasonable employee
would take to make her conditions of employment more tolerable.”).
Defendant moves for summary judgment on Plaintiff’s constructive discharge
claim arguing Plaintiff’s working conditions were not objectively intolerable, there is no
temporal link between the scores Plaintiff received on his oral examinations and his
resignation, and Plaintiff did not give Defendant a reasonable chance to resolve
problems with his employment. In his interrogatory answers, Plaintiff stated he left his
employment with Defendant because he “felt that the opportunity for promotion was
gone, so I took the available pension and pursued other life options.” Doc. #36-5, at 1.
When opposing Defendant’s summary judgment motion, Plaintiff, similar to his
unofficial custom claim, expands the basis of his constructive discharge. That is,
Plaintiff contends he unsuccessfully sought a promotion for more than a decade, he was
aware that shifts and stations were racially segregated, and he was excluded from an
all-Caucasian study group because he was told that he “was smart enough to study on
his own.” Doc. #49, at 34. He argues he gave the KCFD “years” to correct the problem

25 If a plaintiff cannot show his employer “consciously intended” for the plaintiff to quit,
the plaintiff “can still prevail on a constructive discharge claim if ‘the employer…could
have reasonably foreseen that the employee would [quit] as a result of its actions.”
Wright, 417 F.3d at 886 (citation omitted).
of his non-promotion, and the KCFD was aware he had unsuccessfully attempted to be
promoted. Id. at 36.
Nevertheless, there is nothing in the record demonstrating (1) Defendant
deliberately allowed or made Plaintiff’s working conditions so intolerable,26 (2) Plaintiff’s
working conditions were so intolerable he had no other reasonable choice but to resign,
and (3) Plaintiff gave Defendant a reasonable chance to resolve the intolerable working
conditions. Plaintiff does not address whether he had alternatives to resigning. He
could have requested a second review of his oral examination scores or complained
about his scores, but Plaintiff admitted he never complained. Jones, 285 F.3d at 716
(noting the plaintiff had alternatives to resignation including lodging a formal complaint
against her supervisor). While Plaintiff claims he gave Defendant “years to correct the
problem of his non-promotion,” he does not show that he reported this “problem” to
Defendant. Plaintiff claims members of management were aware of assessors
bartering to promote Caucasian applicants over African-American applicants, but he
cites nothing indicating this occurred in 2012. Doc. #49, at 36-37; Doc. #52, at 16.
When considering the foregoing, Plaintiff has not demonstrated he was constructively
discharged.
Moreover, Plaintiff admits he did not discuss his reasons for leaving the KCFD
with Defendant, and he did not complain to Defendant that he was the victim of
discrimination. Doc. #36-5, at 1-2. These admissions are fatal to his constructive
discharge claim. See, e.g., Anda, 517 F.3d at 535; Davison, 121 F. App’x at 672;
Williams v. City of Kan. City, 223 F.3d 749, 754 (8th Cir. 2000) (finding the plaintiff did
not give the city an opportunity to address her concerns, and therefore, the Court could
not say resignation was the plaintiff’s only plausible alternative); Knowles v. Citicorp
Mortg., Inc., 142 F.3d 1082, 1086 (8th Cir. 1998) (citations omitted).
In addition, Plaintiff does not explain why he left his employment in April 2014
when he received his oral examination scores in November 2012, and the promotional
list was published in December 2012. Plaintiff does not demonstrate how his working

26 To the extent Plaintiff was frustrated and embarrassed about not being promoted, that
is insufficient to establish constructive discharge. See West v. Marion Merrell Dow, Inc.,
54 F.3d 493, 498 (8th Cir. 1995) (citations omitted).
conditions became “so intolerable” during that timeframe. In fact, Plaintiff points to
nothing specific that occurred during that timeframe that rendered his working
conditions so intolerable. Instead, the passage of more than a year between the
alleged discriminatory act(s) and Plaintiff’s decision to leave his employment does not
support his contention that his working conditions were so intolerable he felt he had no
choice but to quit.
For all the foregoing reasons, the Court grants Defendant’s motion for summary
judgment on Plaintiff’s constructive discharge claim.

(3) Punitive Damages
Plaintiff concedes he is not entitled to punitive damages. Doc. #49, at 37.
Pursuant to Plaintiff’s concession and the Court’s entry of summary judgment in
Defendant’s favor on all of Plaintiff’s claims, Defendant’s motion for summary judgment
on Plaintiff’s request for punitive damages is granted.

IV. MOTIONS TO STRIKE EXPERTS
Considering the Court granting Defendant’s motion for summary judgment, the
Court deems the parties’ motions to exclude experts as moot.

V. CONCLUSION
For the foregoing reasons, the Court (1) grants in part and denies in part
Defendant’s Motion to Strike Plaintiff’s Declaration and strikes Paragraphs 15, 17, 19,
21, 23, 24, 43, and 47, a portion of Paragraph 18, and Exhibit 1 to the declaration; (2)
grants Defendant’s Motion for Summary Judgment; and (3) finds as moot the parties’
motions to strike experts.

IT IS SO ORDERED.
/s/ Ortrie D. Smith
DATE: September 6, 2019 ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10241261. Public record. Not legal advice.