Petition for Writ of Certiorari — Kline v. City of Kansas City
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(>) Supreme Court, U.S
FILED
D9 91 2 nov 29 1999
No. 99- QARCE OF IHG GLERK
IN THE
Supreme Court of the United States
KATHLEEN KLINE, ANNE WEDOW, ERMA MORGAN
and BETTY TAYLOR,
Petitioners,
v.
THE CITY OF KANSAS CITY, MISSOURI,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
KAREN K. HowarD
Counsel of Record
THE Law OFFICES OF
KAREN K. Howarp, P.C.
Attorneys for Petitioners
851 N.W. 45th Street, Suite 306
Kansas City, Missouri 64116
(816) 453-3119
156267 @ Counsel Press LLC
FORMERLY LUTZ APPELLATE SERVICES
(800) 274-3321 + (800) 359-6859
II.
III.
i
QUESTIONS PRESENTED
WHETHER THE “CONTINUING VIOLATION
THEORY” IN DISCRIMINATION CASES
PRECLUDES CONSIDERATION OF EVENTS
OUTSIDE THE LIMITATIONS PERIOD FOR
PURPOSES OF ESTABLISHING LIABILITY AND
DAMAGES?
WHETHER A WOMAN MAY CLAIM AS PART OF
HER “HOSTILE ENVIRONMENT” ACTS DIRECTED
AT OTHER WOMEN, OR WOMEN IN GENERAL,
OF WHICH SHE IS AWARE, BUT WHICH WERE
NOT DIRECTED AT HER PERSONALLY, OR
ALTERNATIVELY, MAY SHE USE SUCH
EVIDENCE TO ESTABLISH INTENT AND MOTIVE
ON THE PART OF THE EMPLOYER TO
DISCRIMINATE?
WHETHER EVIDENCE THAT A PLAINTIFF IS
TREATED MORE HARSHLY FOR LESS SERIOUS
EVENTS IS SUFFICIENT TO ESTABLISH
DISPARATE TREATMENT OR WHETHER IT IS
NECESSARY THE PERSONS TO WHICH A
PLAINTIFF COMPARES HERSELF FOR PURPOSES
OF ESTABLISHING DISPARATE TREATMENT
ARE TREATED LESS HARSHLY FOR THE
IDENTICAL OFFENSE?
IV.
il
WHETHER IF PLAINTIFF IS UNABLE TO
PROFFER “SIMILARLY SITUATED PERSONS” IN
THE NONPROTECTED CLASS WHO WERE
TREATED MORE FAVORABLY, PLAINTIFF CAN
PROVE DISPARATE TREATMENT BY REBUTTING
THE PROFFERED BUSINESS REASON
AND SHOWING OTHER EVIDENCE OF
DISCRIMINATION TOWARDS THE PROTECTED
CLASS?
WHETHER CHAPTER 213 OF THE MISSOURI
STATUTES PERMITS THE SUBMISSION OF
PUNITIVE DAMAGES AGAINST A STATE
ENTITY?
LPN Pe Noah sabe ot spectiod
ii
TABLE OF CONTENTS
SII SS a ae Se.
I iD 8 eS ae
Ree INE eer i eee
I irik OS sd Ona Ws ea cole
Statement of Jurisdiction .....................
mus en a es ee ee eee
Reasons for Granting the Writ .................
I.
Il.
Whether The “Continuing Violation Theory”
In Discrimination Cases Precludes
Consideration Of Events Outside The
Limitations Period For Purposes Of
Establishing Liability And Damages? .....
Whether A Woman May Claim As Part Of
Her “Hostile Environment” Acts Directed At
Other Women, Or Women In General, Of
Which She Is Aware, But Which Were
Not Directed At Her Personally, Or
Alternatively, May She Use Such Evidence
To Establish Intent And Motive On The Part
Of The Employer To Discriminate? .......
10
10
15
iil.
IV.
iv
Contents
Whether Evidence That A Plaintiff Is Treated
More Harshly For Less Serious Events Is
Sufficient To Establish Disparate Treatment
Or Whether It Is Necessary The Persons To
Which A Plaintiff Compares Herself For
Purposes Of Establishing Disparate
Treatment Are Treated Less Harshly For The
Sdanlicds (QMET 25 6a 6 is aia
Whether If Plaintiff Is Unable To Proffer
“Similarly Situated Persons” In The
Nonprotected Class Who Were Treated More
Favorably, Plaintiff Can Prove Disparate
Treatment By Rebutting The Proffered
Business Reason And Showing Other
Evidence Of Discrimination Towards The
Protected CT os oi. 35 accuws 1s a eens
V. Whether Chapter 213 Of The Missouri
Statutes Permits The Submission Of Punitive
Damages Against A State Entity? ........
COMCIMRIOR oc. kn o:s cs ts weak ones ae aes
Page
22
25
28
30
dicated oe
TABLE OF CITED AUTHORITIES
Page
Cases:
Ashley v. Boyle’s Famous Corned Beef Co., 66 F.3d
109 (eee ts 10, 11, 13
Badaracco v. C.I.R., 464 U.S. 3865, 104 S. Ct. 756,
18 be Es SEP EIPOND ix cleksc cs... 28
Baty v. Willamette Industries, Inc., 172 F.3d 1232
(UG ENO ue es et et eee 18
Bazemore v. Friday, 478 U.S. 385, 106 S. Ct. 3000,
Fakes te SEO CEI ecg ccs a eet. 13
Beavers v. American Cast Iron Pipe Company, 975
Ec Fm LEU Ns GRO s oso ee sc hoe 12
Bell v. Chesapeake & Ohio Railway Company, 929
Fede AO A, SOME oo oc a ea RL, 12
Berry v. The Board of Supervisors of L.S.U., 715
ome FEE COU POE ici ek hak bck wowace 12
Boner v. Board of Commissioners, 674 F.2d 693 (8th
RG CEE ee Ta reece ln Chea ee 23, 24
Breeding v. Arthur J. Galagher & Company, 164
Poe FESS Ue CAE, BD oa sos kc cl; 17
vi
Cited Authorities
Brinkley-OBU v. Hughes Training, Incorporated, 36
F356 356 CG Cin, TSP) ks en se Ca
Carter v. Chrysler Corporation, 17? F.3d 693 (8th
Cir, 390 66 cso S ea eee
Chappell v. City of Springfield, 423 S.W.2d 810 (Mo.
EDGES: css ci ee Meeoenieea ee eeeea es
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, i13 S. Ct. 2786, 125 L. Ed. 2d 469
(1993? covivcidine ear cee
Delaware State College v. Ricks, 449 U.S. 250, 101
S. Ct. 498, 66 L. Ed. 2d 431 (1980) ...........
Delph v. Dr. Pepper Bottling Co. of Paragould, Inc.,
130 F.3d 349 (Sth Cir. 1997) ..5:0. bs sieeve
DeNovellis v. Shalala, 124 F.3d 298 (1st Cir.
19DT) cues eee Seeks oe eee ee
Draper v. Coeur Rochester, Inc., 147 F.3d 1104 (9th
Cit 1998). ivccciviccpivewssaaioeeeeenk
Farragher v. City of Boca Raton, 524 U.S. 775, 118
S. Ct. 2275, 141 L. Ed. 2d 662 (1998) ...... ss
Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 115 S.
Ct. 1061, 131 L. Ed. 2d 1, on remand, 53 F.3d
53d CIORS) oo kas i vcsk ack iene ee
Page
12
17
29
14
13
14
12
12
vil
Cited Authorities
Page
Hall v. Gus Constr. Co., 842 F.2d 1010 (8th Cir.
BOOED aaa hs eed os a wan sb ea 17, 19
Harris v. Forklift Systems, Inc., 510 U.S. 17, 114
S. Ct. 367, 126 L. Ed. 2d 295 (1993) ......... 13, 20
Harvey v. Anheuser-Busch, Inc., 38 F.3d 968 (8th
Cee SOs i ei ks 23
Hawkins v. Hennepin Technical Center, 900 F.2d
BOS 40 Ge OR oii a a BES 17
Heyne v. Caruso, 69 F.3d 1475 (9th Cir. 1995) ... 18
Howard v. Burn Brothers, Inc., 149 F.3d 835 (8th
Rie MEE aS oe icey co aint we Le betes. 17
Hurley v. Atlantic City Police Department, 174 F.3d
Be Ee I sik oko he Fs es kk hak a 18
Jenson v. Eveleth Taconite Co., 130 F.3d 1287 (8th
Cir. 1997), Rehearing and Suggestion for
Rehearing en banc denied (1998) ............ 14
Kimzey v. Walmart Stores, Inc., 107 F.3d 568 (8th
GU EPP ie eae cd ca deusicks iid. 17
King v. St. Vincent's Hosp., 502 U.S. 215, 112 S.
Ct. 570, 116 L. Ed. 2d 578, on remand, 971 F.2d
OT CE ay ie ean ER EAR 28
vill
Cited Authorities
Page
Kolstad v. American Dental Association, U.S. __,
Bee Reo! oA. 2 een eye e oe 17, 21
Kopp v. Samaritan Health Systems Inc., 13 F.3d 264
CBC 1995) se bs a eS EA 17
Kumko Tire Company, Ltd. v. Carmichael, 526 U.S.
137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999)
6b wea DEC RTORdD RRR a ta 14
Leibovitz v. New York City Transit, 4 F. Supp. 2d
EOE CALIF IGG e ow Cakes kee ce eee 18, 19
Lynn v. Deaconess Medical Center-West Campus,
160 F.3d 484 (8th Cir. 1998) ................ 24
Martin v. Nannie and Newborns, Inc., 3 F.3d 1410
CSO CS es Fs a a es 12
McAlester v. United Air Lines, Inc., 851 F.2d 1249
CEO Cae FR 6 i TA es 24
McDonald v. Santa Fe Trail Transportation Co., 427
U.S. 263, 96 S. Ct. 2564, 49 L. Ed. 2d 493
C197 Ss Sk eae cea eee eed eos 23, 24
McDonnell-Douglas Corp. v. Green, 411 U.S. 792,
93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) ....... 25
Meritor Sav. Bank. FSB v. Vinson, 477 U.S. 57, 106
S. Ct. 2399, 91 L. Ed. 2d 48 (1986) ........... 13
ix
Cited Authorities
Page
Oncale v. Sundowner Offshore Servs. Inc., 523 U.S.
75, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998)
HPs Bh > eee BS IREe CaP Pegs RDI aay ea ER 20
Perry v. Ethan Allen, Inc., 115 F.3d 143 (2nd Cir.
ROPES 5 El i ig doa, ce a ees ees SS 12,18
Pollock v. Wetterau Food Distribution Group, 1999
WL 619345 (Mo. App. E.D.) ....:5.......... 12
Ricks v. Riverwood International Corp., 38 F.3d
RrSU AG BPO risks 6 Ohi ee 23
Rorie v. United Parcel Service, Inc., 141 F.3d 757
EG BR se ee 14
Ryther v. KARE II, 108 F.3d 832 (8th Cir.), cert.
denied, _U.S. _, 117S. Ct. 2510, 138 L. Ed.
Be EN 5 ak no a ee eo eo vb as 25, 26
Selan v. Kiley, 969 F.2d 560 (7th Cir. 1992) ...... 12
Smith v. Monsanto Chemical Co., 770 F.2d 719 (8th
Oe errs Saeed ye min Cac AG. 23
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 113
S. Ct. 2742, 125 L. Ed. 2d 407 (1993) ........ 25
Texas Dept. of Community Affairs v. Burdine, 450
U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207
GPM ets ote Noe Str Sires PLES IK os Se Boks 25
x
Cited Authorities
United Airlines v. Evans, 431 U.S. 553, 97
S. Ct, 1965, 352-L. Ba. 26 SFT CGT ee
Vance v. Southern Bell Telephone & Telegraph
Company, 863 F.2d 1503 (11th Cir. 1989)
Vinson v. Taylor, 753 F.2d 141 (D.C. Cir. 1985) ..
Ward v. Procter & Gamble Paper Products
Company, 111 F.3d 558 (8th Cir. 1997) .......
West v. Philadelphia Electric Company, 45 F.3d 744
(Sal Ge TOS eh PPE AAS
Statutes:
SPUD TR er Sees
G2 USA. | Tome a ees
Rule:
5 ea eas es ee
Page
13
18
19
23
12
21
xi
TABLE OF APPENDICES
Appendix A — Opinion Of The United States Court
Of Appeals For The Eighth Circuit Dated And
PAU WN Re A oi5 oo ie woe eo re ee i
Appendix B — Amended Judgment Of The United
States District Court For The Western District Of
Missouri Dated And Filed February 17, 1998
Appendix C — Order Of The United States District
Court For The Western District Of Missouri,
Western Division Regarding Plaintiffs’ Motion
For Equitable Relief Dated And Filed February
SPER clk ss rt eae A a aha EGU cata
Appendix D — Order Of The United States District
Court For The Western District Of Missouri,
Western Division Regarding Post-trial Motions
Dated And Filed February 17,1998 ..........
Appendix E — Order Of The United States District
Court For The Western District Of Missouri,
Western Division Granting In Part And Denying
In Part Defendant’s Motion In Limine Dated And
Fine Coe 27, 1987 see ee
Appendix F — Order Of The United States District
Court For The Western District Of Missouri,
Western Division Granting In Part And Denying
In Part Defendant’s Motion For Summary
Judgment With Respect To Anne Wedow Dated
And Filed September 29, 1997 ..............
Page
la
20a
22a
44a
64a
xi
Cited Authorities
Page
Appendix G — Order Of The United States District
Court For The Western District Of Missouri,
Western Division Granting In Part And Denying
In Part Defendant’s Motion For Summary
Judgment With Respect To Erma Morgan Dated
And Filed September 29, 1997 .............. 83a
Appendix H — Order Of The United States District
Court For The Western District Of Missouri,
Western Division Granting In Part And Denying
In Part Defendant’s Motion For Summary
Judgment With Respect To Kathleen Kline Dated
And Filed September 29, 1997 .............. 94a
Appendix I — Order Of The United States Court Of
Appeals For The Eighth Circuit Denying Petition
For Rehearing Dated June 30,1999 .......... 107a
Appendix J — Constitutional And Statutory
PUOUOR TONING So i ai asinkdad add Kees 108a
]
OPINIONS BELOW
The Opinion of the United States Court of Appeals for
the Eighth Circuit is reported at 175 F.3d 660 (8th Cir. 1999).
A copy of the Opinion is included in the Appendix at
Appendix A at la. The Order of the Eighth Circuit denying
Petition for Rehearing and Suggestion for Rehearing en banc
is included in the Appendix at Appendix I at 107a. The
Judgment of the District Court for the Western District of
Missouri is included in the Appendix at Appendix B at 20a.
The Opinion of the District Court on posttrial motions, other
than equitable relief, is included in Appendix D at 44a. The
Opinion of the District Court on equitable relief is included
in Appendix C at 22a. The Opinion of the District Court on
Motions in Limine is included in Appendix E at 64a. The
Opinion of the District Court on the Respondent’s Motion
for Summary Judgment directed at Kathleen Kline is included
in Appendix H at 94a. The Opinion of the District Court on
the Respondent’s Motion for Summary Judgment directed
at Anne Wedow is included in Appendix F at 75a. The
Opinion of the District Court on the Respondent’s Motion
for Summary Judgment directed at Erma Morgan is included
in Appendix G at 83a. The Order entered September 8, 1999
by the United States Supreme Court extending the time to
file Petition for Writ of Certiorari to November 27, 1999.
STATEMENT OF JURISDICTION
The United States Court of Appeals for the Eighth Circuit
issued its Opinion on May 5, 1999. On May 19, 1999
Petitioners filed a Petition for Rehearing and Suggestion for
Rehearing En Banc which the United States Court of Appeals
denied on June 30, 1999. App. I at 107a.' A Request for
1. Citations to “App.” are to the appendix filed with this
Petition for Writ of Certiorari pursuant to Supreme Court Rule 14(i).
2
Extension of Time to File Petition for Writ of Certiorari was
directed to Justice Thomas on September 2, 1999. An Order
was entered by the United States Supreme Court on
September 8, 1999 extending the time for the filing of the
Petition for Writ of Certiorari to November 27, 1999.
STATEMENT OF THE CASE
The four Petitioners worked for the Kansas City,
Missouri Fire Department (KCMOFD); Kline and Wedow
worked in Fire Suppression — the fire fighting division of
the KCMOFD, while Morgan and Taylor worked in
Administration. At the time of trial, Kline, Wedow and
Morgan were still working for the KCMOFD while Taylor
had been fired. Petitioners were hired into the KCMOFD in
the late 1970’s and 1980’s. Kline and Wedow were among
the very first women hired in Fire Suppression in the
KCMOFD.
The KCMOFD during the 1970’s through the time of
trial comprised about 800 employees in several different
locations within the city limits — City Hall for top level
administration, Communications in a second building, and
the various station houses which were assigned to
“battalions” throughout the City. Kline and Wedow worked
in numerous different station houses throughout their time
in the KCMOFD and also came to City Hall and the
Communications Department for various work-related
reasons. Morgan and Taylor worked exclusively at City
Hall and occasionally had work related visits to the
Communications Department. Fire Suppression personnel
rotated among the Fire Stations, Communications and City
Hall at various times in their careers.
7 At yl eee
3
In 1993 Kline, Wedow and Morgan filed charges of
discrimination with the Equal Employment Opportunity
Commission (EEOC)’, which was followed by a charge of
discrimination in 1994 for Taylor. Each of the charges made
allegations of sex discrimination, sexual harassment and
retaliation under both Title VII and the Missouri Human
Rights statute’. The charges alleged a “continuing violation”
as well as a “pattern and practice” of discrimination for each
of the women, in the areas of promotions, raises, awards,
sexual harassment, racially hostile atmosphere for Morgan,
and retaliation, including discipline and termination of
Taylor. The retaliation claim included claims for filing
Petitioners’ charges as well as for opposing practices of the
KCMOFD based upon sex, race and retaliation and
supporting other women in their claims of discrimination
against the KCMOFD.
In 1994 “right to sue” letters were obtained from both
the Justice Department and the MCHR. Suit was filed in the
United States District Court for the Western District of
Missouri.* The Second Amended Complaint, upon which trial
proceeded, included claims for sexual discrimination, sexual
harassment and retaliation for each of the women and also
for racial harassment for Morgan under both federal and state
laws.
2. Aconcurrent filing was made with the Missouri Commission
on Human Rights (MCHR).
3. See statutory sections set forth in Appendix J, p. 108a.
4. A First and Second Amended Complaints were subsequently
filed for procedural reasons. A fifth plaintiff, who worked in
Communications, subsequently voluntarily dismissed her claims with
prejudice and is not a Petitioner before this Court.
4
The claims alleged in the Second Amended Complaint
were broader than those alleged in the charges of
discrimination. For example, in the sex discrimination claims
pled under federal and state law, Kline and Wedow alleged
that women in Fire Suppression had ill-fitting clothing and
equipment made for men, not women, and almost no facilities
for sleeping, showering, or female hygiene whereas men had
clothes tailored for men as well as adequate facilities for
privacy in sleeping, showering and dressing. These issues
were also part of their sexual harassment/hostile environment
claims. These issues were not specifically raised in their
charges, but the Eighth Circuit ultimately determined they
were in fact “similarly related” to their other claims.°
Additionally, all Plaintiffs claimed their “hostile
environment” consisted not only of what happened to
themselves, but what happened to other women in their
presence as well as what happened to other women of
which they were aware or became aware through
discussions with other women, including the other Plaintiffs
in the case. Plaintiffs also sought recovery for the entire
time period they were in the KCMOFD as they claimed the
disparate treatment, hostile environment based upon sex (or
race) and retaliation permeated every aspect of their work
environment from the commencement of their employ.
During discovery Petitioners itemized in great detail
every instance of disparate treatment, harassment (sexual or
racial), and retaliation which occurred to them from the
commencement of their employment until June 1, 1997, the
cutoff for discovery. They also obtained discovery from each
5. The Eighth Circuit, however, found that it was “harmless
error” for the District Court to exclude these claims. App. A,
pp. lla-15a.
a
5
of the other approximately 22 women in the KCMOFD in
Fire Suppression and many of the women in Administration
with regard to their issues of disparate treatment as well as
sexual harassment or harassment based upon sex. Discovery
was directed at issues of disparate treatment and hostile
environment for all women in the KCMOFD, including
issues of disparate treatment in promotions, awards, pay,
opportunities to work out of class at a higher grade, physical
and verbal harassment with either sexual overtones or done
because they were women, shunning, ill-fitting clothing and
equipment and lack of adequate changing-showering-
sleeping facilities for the women. Discovery was also
directed at the lack of training on sex discrimination issues
resulting in inadequate procedures to report and investigate
acts of discrimination as well as retaliation for those who
complained or opposed the practices. An in-depth review
was made of most of the KCMOFD’s personnel files to assist
in establishing disparate treatment in promotions, awards and
discipline — the latter particularly with regard to establishing
disparate treatment of Taylor.
Respondent filed Rule 56 Motions against each of the
Petitioners. Among Respondent’s issues were: that events
more than 300 days® prior to the filing of the charge of
discrimination could not be the subject of relief under Eighth
Circuit and Missouri state law; that events not directed at
Petitioners personally could not be considered as part of the
Petitioners’ “hostile work environments” whether based on
race or sex even if they were aware of the events; that events
not specifically alleged in their charges of discrimination
(such as the clothing and facility issues) could not be
actionable as they were not administratively exhausted; and
6. And 180 days for the MCHR claims.
6
that because this type of evidence, that is, evidence of other
women’s issues, clothing, facilities, and items outside the
180/300 day time period, was not “actionable” Petitioners
failed to allege sufficient facts to constitute a “hostile
environment” based upon sex and/or race to go to the jury.
The District Court in three separate rulings’ issued
September 29, 1997 agreed with many of Respondent’s
positions for Kline, Wedow and Morgan. These rulings and
subsequent rulings by both the District and Appellate Courts
disregarded the doctrine of “continuing violation” as
developed by the Circuits. As a result Petitioner Wedow and
Morgan’s “hostile environment” claims based upon race and
sex were dismissed prior to trial for failure to state sufficient
facts within the time period to constitute an actionable cause.
The remaining claims that were permitted to go to the jury
precluded the jury from considering any evidence outside
the 180/300 day time period for purposes of awarding
damages. Although some evidence between 1989 and the
commencement of the statutory time period was permitted
to be heard by the jury as “relevant background evidence”,
no evidence of any kind that predated 1989 was permitted to
be heard or considered by the jury for any purpose. The
rulings also excluded testimony of what happened to other
women of which Petitioners were aware to establish the
Petitioners’ own hostile environments.
These Rule 56 rulings limiting Petitioners’ claims were
reinforced by rulings in Respondent’s favor on Respondent’s
7. Kline at App. H, pp. 94a-106a; Wedow at App. F, pp. 25a-
82a; Morgan at App. G, pp. 83a-93a. These were not issues that
significantly affected Taylor and were not raised on appeal for her.
7
Motions in Limine* made October 17, 1997 which excluded
other women’s testimony regarding discriminatory events
directed at them, clothing and facility issues not only on the
merits of Petitioners’ claims, but even to show “knowledge”
of the KCMOFD of the discriminatory conduct through
“pervasiveness”, or to establish “intent to discriminate” or
“punitive damages”. App. E, pp. 65a-70a. Only two limited
pieces of evidence were permitted regarding “other women”
— one an incident in 1993 where KCMOFD males allegedly
yelled obscenities at KCMOFD women cadets; and excerpts
from the City’s Human Resource studies in 1992 and 1994
given to the City Council showing high levels of complaints
in the KCMOFD about discrimination, harassment, and
retaliation. Finally, these same rulings were incorporated into
jury instructions which limited Petitioners’ recovery to
events that occurred within the 180/300 day time period
and which excluded events occurring to other women outside
Petitioners’ presence, or issues regarding clothing and
facilities, or events that occurred outside the 180/300 day
time period.
The jury returned verdicts in Kline’s favor on her
disparate treatment claim for failure to promote her, her
sexual harassment claim and her retaliation claim and on
Taylor’s disparate treatment claim for termination. The jury
returned verdicts in Respondent’s favor on other of Kline’s
disparate treatment claims, on all of Wedow’s disparate
treatment and retaliation claims, on Morgan’s retaliation
claims and on Taylor’s disparate treatment claims for
8. At the commencement of trial Petitioners’ counsel renewed
the issues raised in the Motions in Limine and the District Court
reaffirmed its prior ruling on the Respondent’s Motions in Limine.
The Eighth Circuit found Petitioners had sufficiently preserved their
objections.
8
assignment of light duty and in disciplining her, as well as
on her hostile environment and retaliation claims. The jury
awarded Kline backpay and compensatory damages on her
failure to promote claim in the amount of $47,134 and
$150,000 in punitive damages; $1.00 nominal damages on
her compensatory damage claim for sexual harassment and
$100,000 in punitive damages; and $1.00 nominal damages
on her retaliation claim and $50,000 in punitive damages.
The jury awarded Taylor $48,098.00 in backpay and a like
sum for compensatory damages, as well as $100,000 in
punitive damages for her termination disparate treatment
claim.
The District Court then held a multiple-day “equitable
relief” hearing for both Kline and Taylor. At this hearing,
the District Court, without a jury, heard evidence from most
of the other women in the KCMOFD about their disparate
treatment and “hostile environment” while employed in the
KCMOFD.
Thereafter, the parties filed their posttrial Motions.
Among the issues raised by Respondent were the availability
of punitive damages under Missouri law. On February 17,
1998 the District Court entered two separate orders — one
on the parties’ posttrial motions, App. D, pp. 44a-63a, and
one for equitable relief for Kline and Taylor, App. C,
pp. 22a-43a. In the first of these Orders the District Court
struck the punitive damages awarded Petitioners Kline and
Taylor agreeing with Respondent that they were not
permitted under Missouri law, although neither the Missouri
Appellate or Supreme Courts had specifically ruled to this
effect on this statute. App. D, pp. 53a-58a. The District Court
affirmed the verdicts in favor of Kline and Taylor, App. D,
p. 63a, and in favor of Respondent for Wedow and Morgan.
9
In a separate order, the District Court imposed further
equitable relief for both prevailing Petitioners.
App. C, pp. 22a-43a. This equitable relief included placing
Kline in a Battalion Chief position retroactively, ordering
changes in the manner in which the City handled
discrimination claims and maintained records on complaints
of discrimination, setting up a committee composed of
KCMOFD personnel, including one of the Plaintiffs to agree
on training issues, and ordering extensive training for all of
the KCMOFD personnel as well as new cadets.
The parties both thereafter filed timely separate appeals
from the posttrial order on the parties’ Posttrial Motions.
Neither party filed an appeal from the equitable relief order.
The separate appeals were consolidated and one opinion was
issued on both appeals May 5, 1999.
On the Respondent’s appeal of Taylor’s verdict, the
Eighth Circuit found in Respondent’s favor claiming the
persons with which Taylor sought to compare herself were
not “similarly situated” to her because Taylor was discharged
for “performance” issues and the males to whom she had
compared herself were disciplined for “conduct” issues.
Taylor had argued to the Eighth Circuit that her verdict
should stand for several reasons. First, the jury could have
found the reasons given by the KCMOFD for her termination
lacked credence and were therefore “pretext” as the District
Court found in its Posttrial ruling. App. D, pp. 49a-53a.
Second, Taylor argued that the discipline resulting in
termination of her was substantially less severe than the
discipline given men in Administration for far more serious
“conduct” issues. Third, Taylor argued that there was no one
“similarly situated to her”. Finally, Taylor argued that the
jury heard the evidence on Kline, Wedow and Morgan’s
10
claims without any limiting instructions offered by
Respondent or given by the District Court and that the jury
had the right to consider that evidence in determining whether
“sex was the motivating factor” in her discharge. The Eighth
Circuit’s decision to reverse Taylor’s verdict was a clear
refutation of all these arguments.
On Petitioners’ appeal, the Eighth Circuit specifically
rejected Petitioners’ contention that Ashley v. Boyle’s
Famous Corned Beef Co., 66 F.3d 164, 167-68 (8th Cir.
1995) en banc interpretation of the “continuing violation”
doctrine was erroneous. The Eighth Circuit also found that
evidence regarding “‘other women’s claims of discrimination”
should not be permitted as it was prejudicial. Although
exclusion of some of the remaining evidence (such as
clothing, equipment and facilities) was found to be erroneous,
overall, the Circuit found it was “harmless”. The Eighth
Circuit then affirmed the District Court’s rulings on
Summary Judgment, Motions in Limine and Posttrial
motions. App. A, pp. 3a-1 1a.
REASONS FOR GRANTING THE WRIT
I.
WHETHER THE “CONTINUING VIOLATION
THEORY” IN DISCRIMINATION CASES PRECLUDES
CONSIDERATION OF EVENTS OUTSIDE THE
LIMITATIONS PERIOD FOR PURPOSES OF
ESTABLISHING LIABILITY AND DAMAGES?
The Eighth Circuit’s decision in Kline, applying Ashley
v. Boyle’s Famous Corned Beef Co., 66 F.3d 164, 167-68
(8th Cir. 1995) en banc, voids the “continuing violation”
theory in the Eighth Circuit leaving this Circuit alone among
11
the Circuits in its application of the doctrine to discrimination
claims under Federal law. The Eighth Circuit by its
application of the “continuing violation” theory as set forth
in Ashley restricted Petitioners’ ability to present evidence
to the jury on the “totality of the circumstances” surrounding
their claims of disparate treatment, sexual harassment and
retaliation. This resulted in Petitioners being limited almost
exclusively to events within the 180/300 day time period.
Petitioners contend this limitation of the evidence
substantially’ contributed to Wedow and Morgan losing
entirely, and Kline and Taylor’s losing their remaining
claims. Even with the claims that Kline and Taylor did prevail
upon, Petitioners contend the awards of damages would have
been greater had this “other evidence” been presented to the
jury.!°
This truncated version of the “continuing violation”
theory is contra to findings in other Circuits addressing the
issue as well as to the one Missouri Appellate Court
addressing the issue since the Eighth Circuit’s ruling.
Although the Eighth Circuit claims that Ashley does not
eviscerate the “continuing violation” doctrine, the Eighth
Circuit by permitting the District Court to set arbitrary time
limits on “relevant background evidence” predating the
9. Petitioners contend exclusion of the evidence regarding
clothing, facilities, and what Petitioners knew had happened to other
women and African-Americans in the KCMOFD also seriously
impacted the ultimate verdicts. The “cumulative” effect of the
exclusion of evidence cannot be underestimated as having
substantially impacted Petitioners’ claims as a whole.
10. The Eighth Circuit concluded they did not believe
the exclusion of the evidence would have impacted the jury’s
ultimate verdicts, even those in favor of Kline and Taylor.
App. A, pp. 10a-1 1a.
12
statutory time periods and by precluding recovery for events
which occur outside the 180/300 day time period has
essentially rejected the theory of “continuing violation” in
all but explicit language. See DeNovellis v. Shalala, 124 F.3d
298, 307-309 (1st Cir. 1997); Perry v. Ethan Allen, Inc.,
115 F.3d 143 (2nd Cir. 1997); West v. Philadelphia Electric
Company, 45 F.3d 744, 754-56 (3rd Cir. 1995); Brinkley-
OBU v. Hughes Training, Incorporated, 36 F.3d 336,
347-349 (4th Cir. 1994); Berry v. The Board of Supervisors
of L.S.U., 715 F.2d 971, 979-981 (Sth Cir. 1983); Bell v.
Chesapeake & Ohio Railway Company, 929 F.2d 220
(6th Cir. 1991); Selan v. Kiley, 969 F.2d 560, 564-566
(7th Cir. 1992); Draper v. Coeur Rochester, Inc., 147 F.3d
1104, 1108-1110 (9th Cir 1998); Martin v. Nannie and
Newborns, Inc., 3 F.3d 1410, 1414-1416 (10th Cir. 1993);
Beavers v. American Cast Iron Pipe Company, 975 F.2d 792,
796-798 (11th Cir. 1992) and Pollock v. Wetterau Food
Distribution Group, 1999 WL 619345 (Mo. App. E.D.)
adopting Draper as the standard for Missouri state
discrimination claims.
Berry, supra, referred to by many Circuits as the seminal
Circuit Court case on “continuing violation” outlining the
theory of “continuing violation”, stated (/d. at 979-80):
The theory may also be relevant to a plaintiff's
remedy, for it has been stated that once having
shown discrimination continuing into the actional
period, ... the plaintiffs may also recover for
portions of the persistent process of illegal
discrimination that antedated the limitations
period.
(internal quotations eliminated, emphasis added).
13
Although the Supreme Court has not directly decided
the issue, it has inferred that damages for the entire time
period are to be considered when there is a “continuing
violation” of a sexually hostile environment. See Harris v.
Forklift Systems, Inc., 510 U.S. 17, 114 S. Ct. 367, 126
L. Ed. 2d 295 (1993) (considering acts of harassment
spanning two and one half years) and Meritor Sav. Bank.
FSB v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 48
(1986) (considering acts of harassment spanning a four year
period.) Other Supreme Court cases addressing “continuing
violation” seem to presume recovery for the entire liability
period. See United Airlines v. Evans, 431 U.S. 553, 97
S. Ct. 1885, 52 L. Ed. 2d 571 (1977); Bazemore v. Friday,
478 U.S. 385, 106 S. Ct. 3000, 92 L. Ed. 2d 315 (1986) and
Delaware State College v. Ricks, 449 U.S. 250, 101 S. Ct.
498, 66 L. Ed. 2d 431 (1980). This for the reason that
damages generally flow from the period of liability covered,
and artificial barriers on damages, unless statutorily imposed,
have not heretofore been recognized to limit liability once
liability is imposed.
The Ashley limitation on damages results in two
problems: first, the jury may not assess damages for the
“relevant background information” which it hears during the
course of the trial;'' and second, for that period of time for
which they may assess damages, they must somehow
segregate out the noncompensable damages affect on the
compensable damages. This leaves the jury to speculate as
to what sum is appropriate for those limited damages. Placed
in that position, and following the trial court’s directions
not to “speculate”, the jury is left with but one conclusion
11. The jury was not told until the instructions were given that
these events could not be compensated.
14
— nominal damages, as they did for Kline in this cases on
her sexual harassment retaliation claims, or “no damages”
— as they did for Wedow and Morgan — as to award
otherwise might be “speculative” in violation of the District
Court’s jury instruction not to speculate. A logical extension
would place a psychologist or psychiatrist testifying for a
plaintiff in a hostile environment case in the almost
impossible position of attempting to sever plaintiff's
diagnosable emotional distress between “pre” and “within”
180/300 day events. A trial court could strike such expert
testimony in a Kumko/Daubert hearing because of the
speculative nature of attempting to “divide up” the emotional
distress impact. See Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125
L. Ed. 2d 469 (1993) and Kumko Tire Company, Ltd. v.
Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d
238 (1999).
While Panels of the Eighth Circuit have held “a totality
of the circumstances” must be considered in determining
whether there is a hostile environment, see Jenson v. Eveleth
Taconite Co., 130 F.3d 1287 (8th Cir. 1997), Rehearing and
Suggestion for Rehearing en banc denied (1998) and Rorie
v. United Parcel Service, Inc., 141 F.3d 757, 761 (8th Cir.
1998), and that evidence supporting a hostile environment
should not be “compartmentalized”, see Delph v. Dr. Pepper
Bottling Co. of Paragould, Inc., 130 F.3d 349, 355
(8th Cir. 1997), in effect Petitioners’ claims have been
“compartmentalized” by this distorted application of the
“continuing violation” doctrine which arbitrarily cuts off the
evidence a plaintiff may present to establish her
discrimination claims.
15
Il.
WHETHER A WOMAN MAY CLAIM AS PART OF
HER “HOSTILE ENVIRONMENT” ACTS DIRECTED
AT OTHER WOMEN, OR WOMEN IN GENERAL, OF
WHICH SHE IS AWARE, BUT WHICH WERE
NOT DIRECTED AT HER PERSONALLY, OR
ALTERNATIVELY, MAY SHE USE SUCH EVIDENCE
TO ESTABLISH INTENT AND MOTIVE ON THE
PART OF THE EMPLOYER TO DISCRIMINATE?
The Eighth Circuit’s creation of an artificial “judicial
environment” by arbitrarily cutting off Petitioners’ claims
by its limited interpretation of the “continuing violation”
doctrine is augmented by its rulings precluding evidence of
what happened to other women of which Petitioners were
aware." The result of this erroneous preclusion of evidence
12. The Eighth Circuit states that “other women’s” experiences
were considered. App. A at 11a. However, this is incorrect. Only
one incident of dozens was ruled admissible and then for the limited
purpose of demonstrating “knowledge by the city” of the atmosphere.
Other women in the KCMOFD were permitted to testify only in the
equitable relief hearing after the jury trial. Almost every women in
the department testified about their own “hostile environments” and
disparate treatment during their work experience in the KCMOFD.
This led the trial court to enter an equitable relief order. (App. C at
32a-33a) which stated:
The Court finds that there have been blatant and
inexcusable incidents of improper activity; improper
because they are prohibited by Title VII and improper
because they should not be engaged in by public
employees. In fact, the Court finds that some of the
activities violate societal standards of decency in any
(Cont'd)
16
also substantially contributed to the dismissal on Summary
Judgment of Wedow’s hostile environment claim based upon
sex and Morgan’s hostile environment claim based upon race.
Likewise, Petitioners claim that the exclusion of the evidence
at trial for all the Petitioners resulted in jury verdicts for
Respondent on the remaining of Wedow and Morgan’s ©
claims, as well as those claims not prevailed upon by Kline
and Taylor. Why? Because, quite simply, the jury heard about
an environment truncated by exclusionary rulings which left
the remaining events to be viewed in a vacuum without the
benefit of the context of what was happening to all women
in the KCMOFD.
By precluding Petitioners from testifying about what
they knew happened to “other women” in the KCMOFD the
Eighth Circuit precluded the jury from understanding how
Petitioners viewed alleged discriminatory acts directed at
them. It precluded the jury from understanding whether
(Cont'd)
work environment, public or private. For instance, the
Court finds that strippers and prostitutes have been
brought to fire stations; female employees have had their
breasts grabbed; male fire fighters watch X-rated videos
(either on VCR’s or on pay-per-view) on communal
televisions in fire stations while on duty; (FN 4 omitted)
copies of magazines depicting nude women are kept in
fire stations; sexual slurs are used to refer to women,
sexually suggestive jokes, pranks and comments occur
on a frequent basis. These things violate Title VII. These
are also things that public employees ought not be doing
while on duty. (FN 5 omitted) These are things no
employee ought to be doing in the workplace. Equitable
relief is required to prevent these violations from
occurring in the future and to protect Kline from further
sexual harassment.
17
Petitioners’ claims were anomalies, or part of a more
pervasive atmosphere of sex discrimination in all its forms.
Clearly, a woman’s view of her workplace environment is
made up of not only what happens to her personally, but
what happens to other [women] of which she becomes aware.
To suggest that this evidence should not be considered part
of the “totality of the circumstances” is just a further
“compartmentalization” of a plaintiff’s environment,
severely limiting the ability of that plaintiff to explain how
she felt personally and thus establish derivative damages
from liability. Just as importantly, precluding such evidence
on the grounds it is “prejudicial”, precludes a plaintiff from
submitting what may be, as in this case, a large body of
evidence which may tend to demonstrate the defendant’s
discriminatory animus, or establish “pervasiveness” such as
to show “knowledge” on the part of management, or punitive
damages under Kolstad v. American Dental Association, _
U.S. __, 119 S. Ct. 2118 (1999).
The Eighth Circuit’s ruling on this issue is in
contravention of numerous other Eighth Circuit Panel
decisions which find this evidence relevant to such issues
as: knowledge by the defendant of the conduct complained
about; discriminatory-animus; and corroboration of the
plaintiff's subjective view of her environment as “hostile”.
See Hall v. Gus Constr. Co., 842 F.2d 1010, 1014-15
(8th Cir. 1988); Hawkins v. Hennepin Technical Center, 900
F.2d 153, 155 (8th Cir. 1990); Kopp v. Samaritan Health
Systems Inc., 13 F.3d 264 (8th Cir. 1993); Kimzey v. Walmart
Stores, Inc., 107 F.3d 568, 573-74 (8th Cir. 1997); Howard
v. Burn Brothers, Inc., 149 F.3d 835, 838 (8th Cir. 1998).
Carter v. Chrysler Corporation, 173 F.3d 693, 701 n.7
(8th Cir. 1999); Breeding v. Arthur J. Galagher & Company,
164 F.3d 1151 (8th Cir. 1999).
18
The Eighth Circuit’s rulings on this matter are, like its
rulings on the “continuing violation” doctrine, in
contradistinction to rulings in other Circuits. Illustrative of
other Circuit’s decisions is the recent case of Hurley v.
Atlantic City Police Department, 174 F.3d 95, 108-09
(3rd Cir. 1999). The District Court permitted four women
who had been associated with the police department to testify
regarding pervasive harassment of women within the
department even though the plaintiff did not witness any of
these incidents nor become aware of the alleged harassment
until after she commenced suit. The Third Circuit reasoned
that such evidence was admissible because:
It gave them [the jury] the opportunity to
evaluate the adequacy of management’s response
to Hurley’s complaints during the statutory
period. It provided the jury with a sense of
whether the events that took place during the
statutory period were anomalous or accidental, or
instead were part of a pervasive and severe
pattern.
See also Perry v. Ethan Allen, Inc., supra at 151; Heyne v.
Caruso, 69 F.3d 1475, 1480 (9th Cir. 1995); Baty v.
Willamette Industries, Inc., 172 F.3d 1232, 1245 (10th Cir.
1999); and Vance v. Southern Bell Telephone & Telegraph
Company, 863 F.2d 1503, 1511 (11th Cir. 1989). The District
Court in Leibovitz v. New York City Transit, 4 F. Supp. 2d
144, 149-50 (E.D.N.Y. 1998) in permitting the claim of a
women who had never personally suffered harassment but
viewed it happening to others stated:
Personal harassment is not the gravamen of a
hostile work environment claim. To assume that
19
a cause of action for hostile work environment
excludes claims where the environment is hostile
but the person complaining about the environment
has not been personally attacked would make quid
pro quo and hostile work environment virtually
identical while unnecessarily restricting the
layman’s definition of “environment”. Congress
gave no indication that Title VII was designed to
be so conflated. See e.g., Rogers v. EEOC, 454
F.2d 234, 238 (Sth Cir. 1971) (citing cases) “An
aggrieved person obviously is any person
aggrieved by any of the forbidden practices.”
Hackett v. McGuire Bros., 455 F.2d 442, 446 (3rd
Cir. 1979) i:
(emphasis added).
The Court in Leibovitz, id. at 151 cites to the Appellate
decision in Vinson v. Taylor, 753 F.2d 141, 146 (D.C. Cir.
1985) wherein the court stated:
Even a woman who was never herself the
object of harassment might have a Title VII claim
if she were forced to work in an atmosphere where
such harassment was pervasive.
And even cites to language from the Eighth Circuit case of
Hall, supra at 1014-15:
Congress evinced an intention to define
discrimination in the broadest possible terms, and
evidence of sexual harassment directed at
employees other than the plaintiff is relevant to
show a hostile work environment.
20
Finally, the Eighth Circuit’s rulings in this regard are
clearly in direct contravention of dicta in several decisions
of this Court. In Oncale v. Sundowner Offshore Servs. Inc.,
523 U.S. 75, 118 S. Ct. 998, 1003, 140 L. Ed. 2d 201 (1998)
this Court in determining what sorts of workplace behavior
constitute discriminatory action stated:
... careful consideration of the social context in
which particular behavior occurs and is
experienced by its target. . . [and it] often depends
on a constellation of surrounding circumstances, |
expectations, and relationships which are not fully |
captured by a simple recitation of the words used
or the physical acts performed. :
* * *
[such evidence] is probative of whether
conduct is severe or pervasive enough to create |
an objectively hostile or abusive work |
environment — an environment that a reasonable :
person would find hostile or abusive.
(quoting Harris at 510 U.S. 21, and Meritor at 477 U.S. at
67). And, in Farragher v. City of Boca Raton, 524 U.S. 775,
118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998) this Court
recounted the evidence that “other female lifeguards” had
“informal” talks with a supervisor about the misbehavior of
Terry and Silverman.
Farragher suggests another reason why the evidence of
what happens to “other women” is relevant in the context of
these cases. After Farragher, if the defendant raises the
affirmative defenses recited in Farragher, a plaintiff must
Le
21
demonstrate that the complaint procedure was either
inadequate or she had reason not to utilize it. Petitioners
suggest that one of the ways to rebut the affirmative defense
is to show either that other women who had complaints such
as the plaintiff found the procedures to be inadequate or failed
to use the procedure because it would prove fruitless to do
so based upon their own experiences. Clearly, if this type of
“other women” evidence is to come in to rebut defendant’s
affirmative defenses, there is no reason it should not come
in to support defendant’s knowledge of the environment,
defendant’s discriminatory animus, plaintiffs subjective
view of her environment, the pervasiveness of the
environment, and perhaps most importantly, that plaintiffs
view of the environment was that of a reasonable women
based upon the “totality of the circumstances”.
Clearly, Kolstad gives yet another reason why evidence
of discrimination directed at other women should be
admissible. In Kolstad this Court interpreted 42 U.S.C.
§ 1981a(a)(1) and 1981a(b)(1) regarding the degree of proof
necessary to establish punitive damages in Title VII actions.
This Court found that the terms “malice” and “reckless” in
the statute defining “punitive damages” went to the issue of
the “actor’s state of mind” and “pertain to the employer’s
knowledge that it may be acting in violation of federal law,
not its awareness that it is engaging im discrimination.” Jd.
at 2124. It is clear from Kolstad that evidence supporting
punitive damages should be based on a modified concept of
common law principals of “agency” which do not penalize
the defendant for its good faith efforts to prevent
discrimination. Jd. at 2127-28. However, clearly this Court
has left this issue for further development by the District
and Appellate Courts. One of the ways to show, however,
the requisite mental state of the employer, is the pattern of
22
discrimination against a wide number of persons other than
the plaintiff bringing the claim. Hence, evidence of what
occurred to “other women” is clearly relevant to this issue.
Although the Eighth Circuit found that the addition of
events happening to other women serves only to create
“confusion” and “prejudices the defendant”, App. A,
pp. 1 1la-12a, it is the jury who ends up being confused and
the plaintiff who ends up being prejudiced by the exclusion
of this evidence. The jury is hampered in determining
whether the events of which plaintiff claims are “isolated”
or part of the defendant’s overall intent to discriminate
against women in the workplace. The plaintiff is prejudiced
by being precluded from presenting evidence of
discrimination directed towards other members of the
protected class which might lend support to a finding of
systemic discrimination. As for the argument of “prejudice”
to the defendant, if the defendant is a violator of Title VII
anything tending to show it violated Title VII or may be
subject to punitive damages will be prejudicial and such
evidence should not be precluded for that reason.
iil.
WHETHER EVIDENCE THAT A PLAINTIFF IS
TREATED MORE HARSHLY FOR LESS SERIOUS
EVENTS IS SUFFICIENT TO ESTABLISH DISPARATE
TREATMENT OR WHETHER IT IS NECESSARY THE
PERSONS TO WHICH A PLAINTIFF COMPARES
HERSELF FOR PURPOSES OF ESTABLISHING
DISPARATE TREATMENT ARE TREATED LESS
HARSHLY FOR THE IDENTICAL OFFENSE?
The Eighth Circuit’s sole reason for reversing the verdict
in Taylor’s favor on her disparate treatment claim was that
23
the men to whom she compared herself in Administration’
were “disciplined” for “conduct” issues while she was
disciplined for “performance” issues, and therefore, she
proffered no person in the nonprotected class who was
“similarly situated” to her and treated more favorably. The
Eighth Circuit cites Boner v. Board of Commissioners, 674
F.2d 693, 697 (8th Cir. 1982) as support for the proposition
that “performance” and “misconduct” are not “similarly
situated” instances that can be compared. This is a
continuation of a line of cases in the Eighth Circuit which
essentially have devolved the “similarly situated” method
of proof in disparate treatment cases to mean that unless a
plaintiff can demonstrate that the person with whom she is
comparing herself in the nonprotected class is almost
identical in all respects to herself in terms of job and the
type of conduct for which she is treated less favorably, she
cannot sustain her burden of proof. See Smith v. Monsanto
Chemical Co., 770 F.2d 719, 723 (8th Cir. 1985); Harvey v.
Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994); Ricks
v. Riverwood International Corp., 38 F.3d 1016, 1018
(8th Cir. 1994); Ward v. Procter & Gamble Paper Products
Company, 111 F.3d 558, 560 (8th Cir. 1997).
Boner, as well as this line of cases, cites to McDonald v.
Santa Fe Trail Transportation Co., 427 U.S. 263, 280-85,
96 S. Ct. 2564, 2578-81, 49 L. Ed. 2d 493 (1976) for this
alleged proposition. McDonald, however, does not support
this peculiar reading; rather McDonald states employees who
have engaged in acts of “similar seriousness” may be
compared. Boner extended that to state that “performance”
13. The District Court excluded dozens of files with examples
of Fire Suppression personnel who were kept on the job for far more
serious offenses both on and off the job.
24
and “misconduct” can never be considered as evidence for
“similarly situated” employees. A very recent decision of
the Eighth Circuit revisits the language of McDonald, while
disregarding the language quoted by the Eighth Circuit in
its opinion from Boner. See Lynn v. Deaconess Medical
Center-West Campus, 160 F.3d 484 (8th Cir. 1998). In Lynn,
the Eighth Circuit found that a plaintiff need only establish
that he or she was treated differently than other employees
whose violations were of “comparable seriousness” (citing
to Ricks, supra at 1019 and McAlester v. United Air Lines,
Inc., 851 F.2d 1249, 1261 (10th Cir 1988)). These cases are
a correct recitation of the law.
To rule, as the Eighth Circuit has in Boner and in this
case, is to preclude a plaintiff from making a disparate
treatment case when there is no one “similarly situated” to
her. For example, in the case at bar, no one performed the
same tasks as Taylor performed for the Fire Marshall’s office.
The only men in the Fire Marshall’s office were inspectors
and supervisors while the women were relegated to various
clerical tasks. While the men were sometimes “counseled”
for conduct issues, such as sexual harassment'* and other
violations of KCMOFD regulations, they were rarely if ever
disciplined for failing to do their job properly despite the
fact there were problems with the way they did their jobs.
Even when disciplined for so called “conduct” issues, the
“discipline” was rarely if ever probation and firing as in
14. The City offered into evidence Taylor’s entire personnel
file which contained documents showing that men in the Fire
Administration where she worked had been accused of sexual
harassment but no disciplinary action had been taken by Taylor’s
supervisor against these men who also supervised these other men.
This is additional evidence of sex discrimination which supports
Taylor’s verdict.
25
Taylor’s case, but merely verbal counseling. Taylor,
however, was harshly criticized for performance issues and
ultimately terminated for them even though she had a
14-year prior history of satisfactory performance.
By denying Taylor the right to prove her disparate
treatment case by showing that men were treated more
favorably for more serious issues while she was treated less
favorably for less serious issues, the Eighth Circuit
effectively precluded Taylor from making a submissible case.
This is not the law of disparate treatment. It is a barrier too
high to overcome.
IV.
WHETHER IF PLAINTIFF IS UNABLE TO PROFFER
“SIMILARLY SITUATED PERSONS” IN THE
NONPROTECTED CLASS WHO WERE TREATED
MORE FAVORABLY, PLAINTIFF CAN PROVE
DISPARATE TREATMENT BY REBUTTING THE
PROFFERED BUSINESS REASON AND SHOWING
OTHER EVIDENCE OF DISCRIMINATION
TOWARDS THE PROTECTED CLASS?
The Eighth Circuit’s decision to reverse the verdict in
Taylor’s favor in less than a page solely on the grounds the
men to whom she had compared herself were not “similarly
situated” denied Taylor her right to prove her case by other
means as provided by McDonnell-Douglas Corp. v. Green,
411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248,
254-46, 101 S. Ct. 1089, 1094-95, 67 L. Ed. 2d 207 (1981);
Si. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-08, 113
S. Ct. 2742, 125 L. Ed. 2d 407 (1993) and Ryther v. KARE II,
26
108 F.3d 832 (8th Cir.), cert. denied, _ U.S. __, 117
S. Ct. 2510, 138 L. Ed. 2d 1013 (1997). The Eighth Circuit’s
brief opinion on Taylor’s claims stopped its analysis of
Taylor’s verdict after finding that under no circumstances
could a plaintiff compare issues of “performance” to issues
of “conduct” for purposes of establishing “disparate
treatment” based upon “similarly situated” persons. App. A,
pp. 16a-19a.
The Eighth Circuit failed to consider entirely whether
the jury might not have believed the reasons given for
Taylor’s dismissal given other evidence that they heard of
Taylor’s treatment as well as the “hostile environment” for
all women in the department given the evidence they heard
for Kline, Morgan and Wedow. None of this evidence about
other women in the department and what had occurred to
them was limited to their cases by any limiting instruction.
The Eighth Circuit essentially ignored the District Court’s
finding that the jury could have believed that Taylor was an
adequate secretary, did not have performance problems and
that her equipment problems were technical as she claimed,
and not performance based as Respondent claimed and that
men who had performance issues were not terminated. App.
D, pp. 49a-53a. The jury heard evidence that Taylor’s
supervisor had come from Fire Suppression where there was
rampant sex discrimination as evidenced by the information
received on the claims of Kline and Wedow. The City did
not proffer instructions during trial limiting the jury’s
consideration of this evidence to Wedow and Kline’s claims.
Consequently, the jury was free to use all the evidence they
heard to support an inference that Taylor’s supervisor was
motivated by Taylor’s sex in reaching his decision to
terminate her.
27
By terminating its analysis after finding the men to whom
Taylor compared herself were not “similarly situated”, the
Eighth Circuit went beyond merely eviscerating Taylor’s
verdict which required the jury find that “sex was a
motivating factor” in her termination.'> It rejected the
direction of McDonnell Douglas Corp., Burdine, Hicks and
even its own decision in Ryther. Clearly, given the totality
of the evidence the Eighth Circuit should not have reversed
Taylor’s verdict.
15. The verdict director submitted stated in part:
First, defendant treated plaintiff Betty Taylor
differently than similarly situated males in the Fire
Department on any one or more the following issues at
any time between June 20, 1993 and July 1, 1997:
* * *
c. Termination of Employment, and
Second, defendant’s treatment of plaintiff Betty
Taylor on one or more of the above issues was adverse
to plaintiff Betty Taylor, and
Third, plaintiffs’ sex, female, was a motivating
factor in defendant’s decisions.
An additional instruction that immediately followed the verdict
director read:
If you find in favor of plaintiff Betty Taylor under
Instruction 65, then you must answer the following
question on the verdict form with respect to those items
(a) through (c) listed in Instruction 65 that you found to
(Cont'd)
28
Vv.
WHETHER CHAPTER 213 OF THE MISSOURI
STATUTES PERMITS THE SUBMISSION OF
PUNITIVE DAMAGES AGAINST A STATE ENTITY?
The Eighth Circuit while agreeing with Petitioners that
it must be guided by the Missouri statute’s language on
punitive damages, refuses to read the statute as a whole
claiming to do so “cobbles together” many different
provisions of the statute. App. A at pp. 15a-16a. However,
statutes are read as a whole, and not as discrete parts. King
v. St. Vincent’s Hosp., 502 U.S. 215, 112 S. Ct. 570, 116
L. Ed. 2d 578, on remand, 971 F.2d 641 (1991). Identical
words used in different parts of the same act are intended to
have the same meaning. Gustafson v. Alloyd Co., Inc., 513
U.S. 561, 115 S. Ct. 1061, 131 L. Ed. 2d 1, on remand, 53
F.3d 333 (1995). Courts are not authorized to rewrite a statute
because they might deem its effect susceptible of
improvement. Badaracco v. C.1.R., 464 U.S. 3865, 104 S.
Ct. 756, 78 L. Ed. 2d. 549 (1984).
When read as a whole, the statute is quite clear that an
“employer” is included in the definition of who a plaintiff
may claim punitive damages against. Based upon the Eighth
Circuit’s analysis, no statute should be read as a whole, but
should be read in small increments. This is not the manner
in which statutes have been read in the past and should not
(Cont’d)
exist: Has it been proved by the greater weight of the
evidence that defendant would have treated plaintiff
Betty Taylor differently than similarly situated males
in the Fire Department with respect to these issues,
regardless of her sex?
29
be so read now so as to deny Petitioners their punitive
damages.
The relevant portions of Chapter 213 are set forth in the
App. J, pp. 109a-112a. When the definition of “employer”
at 213.010 is read in conjunction with “relief available” under
213.111, it is clear that punitive damages are permissible
against the City.
Although the District and Appellate Courts found
language in Chappell v. City of Springfield, 423 S.W.2d 810
(Mo. 1968) is controlling, Chappell was decided on a policy
basis, not upon a strict construction of the Missouri statute.
It is not appropriate for the Missouri Court of Appeals,
District Court or the Eighth Circuit to “improve upon” the
Missouri statute as written. For this reason, punitive damages
should be reinstated.
30
CONCLUSION
For the above and foregoing reasons Petitioners request
this Court remand the case to the trial court for a new trial of
Kline’s, Wedow and Morgan’s claims, order the trial court
to reconsider the dismissed hostile environment claims of
Wedow and Morgan and if a hostile environment is found
order a new trial on those claims all consistent with a proper
definition and instruction regarding the continuing violation
and hostile environment; Order the reinstatement of the
punitive damage awards; and Order the reinstatement of the
vercict in Betty Taylor’s favor, together with appropriate
attorney fees.
Respectfully submitted,
KAREN K. HOWARD
Counsel of Record
THE LAw OFFICES OF
KAREN K. Howarp, P.C.
Attorneys for Petitioners
851 N.W. 45th Street, Suite 306
Kansas City, Missouri 64116
(816) 453-3119
APPENDIX
la
APPENDIX A — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH CIRCUIT
DATED AND FILED MAY 5, 1999
Kathleen KLINE, Anne Wedow,
and Erma Morgan,
Appellants,
and
Betty Taylor,
Appellant/Cross-Appellee,
v.
CITY OF KANSAS CITY, Missouri,
FIRE DEPARTMENT,
Appellee/Cross-Appellant.
Nos. 98-1593, 98-1846.
United States Court of Appeals, Eighth Circuit.
Submitted Jan. 14, 1999.
Filed May 5, 1999.
* * x
Before: LOKEN, HANSEN, and MORRIS SHEPPARD
ARNOLD, Circuit Judges.
2a
Appendix A
MORRIS SHEPPARD ARNOLD, Circuit Judge.
Kathleen Kline, Anne Wedow, Erma Morgan, and Betty
Taylor, each of whom was an employee of the Kansas City,
Missouri, Fire Department, sued the department under Title
VII of the Civil Rights Act of 1964, see 42 U.S.C. §§ 2000e
through 2000e-17, and the Missouri Human Rights Act
(MHRA), see Mo.Rev.Stat. §§ 213.010-213.139. (Although
the named defendant is the Fire Department, we refer to the
city as the defendant in this opinion for purposes of
simplicity.) All four women claimed that they were
disparately treated based on their sex, that they were
subjected to a hostile work environment based either on their
sex or their race, and that they were retaliated against for
filing charges against the city and for opposing Fire
Department practices.
The trial court excluded much of the plaintiffs’ evidence
in limine: No evidence was admitted of acts that occurred
prior to 1989, of the experiences of other women employees
of the Fire Department, or of alleged discrimination with
respect to clothes and facilities. The trial court also granted
partial summary judgment against Ms. Wedow and Ms.
Morgan, dismissing their disparate treatment and hostile
work environment claims.
At trial, Ms. Kline prevailed on part of her disparate
- treatment claim and on her hostile work environment claim
and her retaliation claim. The jury awarded her approximately
$47,000 in compensatory damages and $150,000 in punitive
damages on her disparate treatment claim, $1 in nominal
damages and $100,000 in punitive damages on her hostile
MYT LPI 8 Sc eid I OR A UNTO
3a
Appendix A
work environment claim, and $1 in nominal damages and
$50,000 in punitive damages on her retaliation claim. Ms.
Taylor prevailed on part of her disparate treatment claim,
and the jury awarded her approximately $96,000 in
compensatory damages and $100,000 in punitive damages.
The jury found for the city on the remaining claims of Ms.
Kline and Ms. Taylor, and on the retaliation claims of Ms.
Wedow and Ms. Morgan. The trial court subsequently
granted the city’s motion to vacate the punitive damages
awarded to Ms. Kline and Ms. Taylor.
The plaintiffs appeal the evidentiary exclusions noted
above, the jury instructions given in light of those exclusions,
the summary judgment rulings against Ms. Wedow and Ms.
Morgan, and the order vacating the award of punitive
damages. The city cross-appeals, claiming that there was
insufficient evidence to support the judgment in favor of Ms.
Taylor. We affirm the trial court with respect to the plaintiffs’
appeal but reverse the judgment in favor of Ms. Taylor’s
disparate treatment claim. We remand the case for the entry
of appropriate orders.
I,
Employment discrimination claims of the kind involved
here are barred if a plaintiff fails to file a timely charge with
the appropriate federal or state administrative agency.
Evidence of discrimination is ordinarily admissible only with
respect to acts within the statutory limitations period
preceding the filing of the charges. The plaintiffs in this case,
however, sought to admit evidence of events predating the
4a
Appendix A
limitations period, maintaining that they could do so because
they were complaining of continuing violations.
We have long recognized that a claim may be timely if
it is based on an ongoing violation that began before the
limitations period began but continued into it, see Ashley v.
Boyle’s Famous Corned Beef Co., 66 F.3d 164, 167-68 (8th
Cir.1995) (en banc), and that evidence of events “occurring
outside the limitations period may . . . be admissible. . . when
the incidents are part of a continuing violation,” Kimzey v.
Wal-Mart Stores, Inc., 107 F.3d 568, 572 (8th Cir.1997). A
violation is continuing if it consists of “ ‘an ongoing pattern
or practice of discrimination,’ ” rather than an amalgamation
of discrete, isolated instances. Rorie v. United Parcel Service,
Inc. 151 F.3d 757, 761 (8th Cir.1998), quoting Jenson v.
Eveleth Taconite Co., 130 F.3d 1287, 1303 (8th Cir.1997),
cert. denied, U.S. __,118 S.Ct. 2370, 141 L.Ed.2d 738
(1998) (emphasis omitted).
We have held, moreover, that “[e]ven if a plaintiff is
unable to show a continuing violation, ... instances of
harassment occurring outside the [limitations] period may
be admissible to provide relevant background to later
discriminatory acts.” Rorie, 151 F.3d at 761. Damages,
however, may be recovered only with respect to events that
occurred within the limitations period. Ashley, 66 F.3d at
168 (“[rJelief back to the beginning of the limitations period
strikes a reasonable balance between permitting redress of
an ongoing wrong and imposing liability for conduct long
past”); see also Kimzey, 107 F.3d at 572-73.
Rese ER eT OORT ERD SAC nt og aA NRT PRIMES ECR RO UP MRA TRG NT 7
a PREIS RPE UNE VEU AE Se NS ER IT I
5a
Appendix A
Various of the plaintiffs contend that the trial court
misapplied the principles applicable to continuing-violation
cases in several ways. We turn first to the trial court’s
exclusion of evidence about any events that occurred before
January 1, 1989 (more than four years before the limitations
period began). The trial court’s order excluding that evidence
explicitly declined to do so with respect to Ms. Wedow, Ms.
Morgan, and Ms. Taylor, and thus on appeal we consider
this issue only with respect to Ms. Kline. See Fed.R.App.P.
10(2), Fed.R.App.P. 28(e). Ms. Kline asserts that the trial
court’s cutoff date of January 1, 1989, for evidence on her
disparate treatment and hostile work environment claims was
arbitrary and that for those claims the trial court should have
admitted all evidence concerning her work since she was
first hired at the Fire Department.
The city contends that Ms. Kline’s offer of proof was
insufficient. “An offer of proof serves dual purposes: (1) to
inform the [trial] court and opposing counsel of the substance
of the excluded evidence, enabling them to take appropriate
action; and (2) to provide an appellate court with a record
allowing it to determine whether the exclusion was erroneous
and whether [the] appellant was prejudiced by the exclusion.”
Thomas v. Wyrick, 687 F.2d 235, 239 (8th Cir.1982), cert.
denied, 459 U.S. 1175, 103 S.Ct. 824, 74 L.Ed.2d 1020
(1983). Having reviewed the offer of proof that Ms. Kline
submitted to the trial court on this issue, we believe that it
was adequate to serve both of these purposes. We have not
considered the depositions that were cited in the offer of
proof at trial but not provided to this court on appeal.
6a
Appendix A
We believe, furthermore, that the trial court properly
concluded that no pre-1989 events could be considered part
of a continuing violation relevant to Ms. Kline’s disparate
treatment claim. Two of those events involved discipline that
Ms. Kline received in 1977, but because of the time lapse
between 1977 and 1989, the trial court quite correctly found
that the 1977 events involved isolated acts that were not part
of a continuing violation. The remaining incident occurred
in 1986 and concerned an injury that Ms. Kline was told to
ignore. We agree with the trial court that that incident was
also merely an isolated act. Even if the trial court erroneously
excluded the 1986 event, moreover, the error is harmless.
Because Ms. Kline could recover only for incidents that
occurred within the limitations period, the 1986 event could
have been used only as background evidence and, in our
view, is highly unlikely to have affected the verdict of the
jury on Ms. Kline’s disparate treatment claim.
As for Ms. Kline’s hostile work environment claim,
however, we believe that the trial court should have allowed
evidence of pre-1989 events. In her offer of proof on this
issue, Ms. Kline provided evidence of a consistent chain of
discriminatory acts and working conditions that were
sufficient to constitute a continuing violation that began prior
to 1989. The trial court should therefore have admitted that
evidence as “relevant background,” Kimzey, 107 F.3d at 573,
at the very least. Ms. Kline prevailed on the issue of liability
on this claim, however, so the only harm she could have
suffered from the exclusion of this evidence would be with
respect to damages. In this circuit, though, damages may
not be predicated on events that occur prior to the limitations
period. See id. at 572-73; Gipson v. KAS Snacktime Co.,
Ta
Appendix A
83 F.3d 225, 230 (8th Cir.1996); and Ashley, 66 F.3d at 168.
The error was therefore harmless.
Ms. Wedow and Ms. Morgan assert that the trial court
improperly failed to consider events occurring outside the
statutory limitations period when it granted summary
judgment to the city on their hostile work environment
claims. It is clear from the face of the trial court’s orders
granting summary judgment, however, that it did in fact
consider such evidence, along with events that occurred
within the statutory period. The trial court determined that
the events in question involved isolated acts rather than parts
of a continuing violation. We believe that the trial court was
correct in its conclusion.
Ms. Wedow’s hostile work environment claim was based
on a series of events that ended in 1986 and on individual
incidents that occurred in 1989 and 1993. The trial court
determined that these were isolated incidents that did not
amount to a continuing violation. Given the length of time
that transpired between these three acts, we affirm this ruling.
Ms. Morgan’s hostile work environment claim was based
on a series of acts that ended in 1981, subsequent acts that
caused her to accept a voluntary demotion in 1987, and acts
that occurred several years later. The trial court found that
all these acts were isolated rather than parts of a continuing
violation. We agree.
Ms. Wedow and Ms. Morgan further contend that all of
this evidence should have been considered “relevant
background,” Kimzey, 107 F.3d at 573, quite apart from any
role as evidence of a continuing violation. We disagree. The
— a i
8a
Appendix A
evidence in question involved isolated acts that occurred
several years before the limitations period began; those acts
thus had little or no probative value but did present a
substantial risk of confusion of the issues and unfair
prejudice. See Fed.R.Evid. 402, Fed.R.Evid. 403. In our
view, if that evidence had been admitted, an appreciable risk
would have existed that the jury would award damages
because of acts for which the statute of limitations had run,
or that the jury would confuse the relevant acts with
continuing violations.
In a related vein, Ms. Kline, Ms. Wedow, and Ms.
Morgan contend that the trial court erred in instructing the
jury that liability and damages on any claim could be
predicated only on acts that took place within the limitations
period. As noted above, our cases are clear that a plaintiff
may be compensated only for such acts. See Kimzey, 107
F.3d at 572-73; Gipson, 83 F.3d at 230; and Ashley, 66 F.3d
at 168. The plaintiffs argue, nonetheless, that Ashley and
the cases applying its principles have recently been
contradicted by Jenson, 130 F.3d at 1287, because, according
to the plaintiffs’ brief on appeal, “in Ashley it is clear that
the plaintiff was limited to recovering to the beginning of
the limitation period while in Jenson it is clear that relief is
predicated on acts that predated the statute of limitations
period.”
The plaintiffs have misread the cases. The Jenson
opinion held only that the decision about liability (whether
or not a plaintiff will recover) could be based partially on
9a
Appendix A
time-barred events, not that a plaintiff could actually recover
damages for those events. See Jenson, 130 F.3d at 1302-03.
Damages are not thus “predicated on” time-barred events as
the plaintiffs contend. The cases are not, therefore, in conflict,
and the instructions limiting the recovery of damages to
events that happened within the limitations period were
therefore correct. See Gipson v. KAS Snacktime Co., 171
F.3d 574, 575-76, 576 n. 3 (8th Cir.1999),
Ms. Kline, Ms. Wedow, and Ms. Morgan challenge the
jury instructions on the disparate treatment and retaliation
claims. The plaintiffs maintain that the instructions
improperly directed the jury to find for the plaintiffs only if
disparate treatment or retaliation took place during the
statutory limitations period.
The disparate treatment claims were pleaded as
continuing violations but relied on discrete acts of
discrimination within the limitations period. Evidence from
outside that period was therefore admissible as “relevant
background,” Kimzey, 107 F.3d at 573, but could not be the
basis for liability on the disparate treatment claims unless
the disparate treatment occurred during the limitations
period. That is what the instructions in question required.
The benefit of a continuing-violation theory in suits that rely
on discrete acts is that a plaintiff may “challenge ongoing
discriminatory acts even if similar illegal acts could have
been challenged earlier and are thus time-bazred,” Ashley,
66 F.3d at 168, not that defendants may be held liable for
acts outside the limitations period. The challenged
instructions were thus not erroneous.
eR ELE ORE A SE Oe
10a
Appendix A
With respect to the retaliation claims, no continuing
violation was pleaded. Those claims thus had to have been
based on discrete acts within the limitations period. The
relevant instructions could not therefore have been infirm
on account of any consideration related to a continuing-
violation theory, and, accordingly, the trial court properly
instructed the jury that liability for retaliation could be based
only on acts that occurred during the limitations period.
An instruction relevant to the defendant’s liability on
Ms. Kline’s hostile work environment claim was, however,
erroneous. That instruction directed the jury to find for Ms.
Kline if conduct occurring within the limitations period met
the criteria for a hostile work environment. But when, as
here, some of the unlawful acts could establish a continuing
violation, a jury need not find that conduct only within the
limitations period established the defendant’s liability on a
hostile work environment claim. Instead, the jury may base
part of its determination that a hostile environment existed
on evidence of events outside the limitations period, as long
as the violation continued into that period and included at
least one unlawful act during that period. See Jenson, 130
F.3d at 1303. The trial court therefore erred in instructing
the jury on Ms. Kline’s hostile work environment claim.
We believe nevertheless that the error was harmless.
Because the trial court granted summary judgment to the
city on the hostile work environment claims of Ms. Wedow
and Ms. Morgan, the offending instruction applied only to
the hostile work environment claims of Ms. Kline and Ms.
Taylor. Ms. Kline prevailed on her hostile work environment
claim, and Ms. Taylor does not argue that this instruction
lla
Appendix A
was erroneous. Furthermore, although Ms. Kline also
contends that the instruction prejudiced her with respect to
damages, we disagree, because even in a continuing
violation, damages may not be awarded for acts that are
time-barred.
Ill.
The plaintiffs also contend that the trial court should
have admitted evidence of discrimination that other women
suffered at the Fire Department. We note initially that the
trial court did in fact admit evidence tending to show that
the city employees who allegedly discriminated against the
plaintiffs also discriminated against other women. The trial
court admitted that evidence under Fed.R.Evid. 404(b)
because it was relevant with respect to the defendant’s
knowledge of unlawful conduct toward the plaintiffs and its
refusal to remedy it. With respect to other employees of the
Fire Department, however, we fail to see how evidence of
any discrimination by them against women other than the
plaintiffs would tend to prove that the plaintiffs were
discriminated against. See Fed.R.Evid. 402. Any probative
value of this evidence, moreover, would be substantially
outweighed by the threat of confusion of the issues and unfair
prejudice. See Fed.R.Evid. 403; see also Callanan v. Runyun,
75 F.3d 1293, 1298 (8th Cir.1996) (upholding a similar
exclusion).
Ms. Kline, Ms. Wedow, and Ms. Morgan assert that
evidence about employees other than those who allegedly
discriminated against them should have been admitted as
relevant to motive, opportunity, intent, or knowledge on the
12a
Appendix A
part of the city. See Fed.R.Evid. 404(b). We agree with the
trial court that the acts of people who did not supervise or
allegedly discriminate against the plaintiffs (and who in most
cases did not even work in the same area as the plaintiffs)
are not probative of the city’s motive, opportunity, intent,
or knowledge. What little probative value such evidence
might have, in any case, would be substantially outweighed
by the threat of confusion of the issues and unfair prejudice.
See Fed.R.Evid. 403.
IV.
Finally, Ms. Kline, Ms. Wedow, and Ms. Taylor contend
that the trial court should have admitted evidence of
discrimination with respect to clothing and facilities as
relevant to their hostile work environment claims. We agree.
The EEOC complaint did allege a hostile work
environment, and although it did not specifically recite the
excluded evidence in support of that claim, the law does not
restrict a plaintiff at trial to the evidence recited in an EEOC
complaint. “In a hostile work environment claim, evidence
concerning all circumstances of the complainant’s
employment must be considered.” Kimzey, 107 F.3d at 573.
The treatment of the plaintiffs with respect to clothing and
facilities was a part of their work environment and therefore
should have been considered in evaluating their hostile work
environment claims.
We believe, however, that the error was harmless. With
regard to Ms. Kline, we observe first that she prevailed on
the issue of liability with respect to her hostile work
13a
Appendix A
environment claim. The only harm that she could have
suffered from the exclusion of the clothing and facilities
evidence, therefore, would have been relevant to damages.
Pursuant to a jury instruction that directed the jury to award
Ms. Kline nominal damages if it found in her favor on
liability but decided that her injuries had no monetary value,
the jury awarded her only nominal damages ($1). The acts
that led to this award included numerous unwanted sexual
advances and insults. The evidence that Ms. Kline contends
should have been admitted concerned the poorly fitting
clothing, the failure of supervisors to respond to requests to
buy firefighting clothing designed for women, unequal
bathroom facilities, and the lack of privacy in the bathrooms.
Those alleged conditions were manifestly less severe and
pervasive than the ones for which Ms. Kline prevailed on
liability, and we thus believe that the jury would have
declined to award any additional damages for them. The only
potential harm to Ms. Kline, therefore, would be in the
calculation of punitive damages. Since the trial court vacated
the award of punitive damages, however (a ruling that we
affirm below), any error here was harmless.
The trial court correctly found in its summary judgment
order that Ms. Wedow’s hostile work environment claim was
based on only one act but that there was no evidence from
which a jury could conclude that Ms. Wedow’s supervisors
were aware of that act. Only the clothing and facilities
evidence would have remained, therefore, even if considered,
to defeat summary judgment on Ms. Wedow’s hostile work
environment claim. That evidence concerned the poorly
fitting clothing, the lack of firefighting clothing designed
for women, deficient bathroom facilities for women (there
l4a
Appendix A
was no shower), and the lack of privacy in the bathrooms
and the bunk area. Ms. Wedow’s claim could have survived
summary judgment only if these conditions were
“sufficiently severe or pervasive ‘to alter the conditions of
[the plaintiff's] employment and create an abusive working
environment.’ ” Meritor Savings Bank v. Vinson, 477 U.S.
57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), quoting
Henson v. City of Dundee, 682 F.2d 897, 904 (11th
Cir.1982).
We do not believe that the evidence on clothing and
facilities was sufficient to carry that burden. It does not tend
to prove the level of severity that we have previously found
necessary to sustain claims of this sort. For example, in Rorie,
151 F.3d at 762, we found that the facts that the plaintiff
alleged were “on the borderline of those sufficient to support
a claim,” where those facts consisted of the plaintiff's
supervisor frequently brushing up against her, telling her that
she smelled good, and patting her on the back. We think that
those allegations were more serious than the general
discomfort that Ms. Wedow alleged with respect to clothing
and facilities, and we therefore believe that even if the
evidence on clothing and facilities had been considered, Ms.
Wedow’s hostile work environment claim could not have
survived summary judgment. Any error in excluding that
evidence was therefore harmless.
It is unclear to us whether Ms. Taylor appeals on this
issue. We doubt, however, that the admission of the clothing
and facilities evidence would have bolstered her claim in
any event. Unlike Ms. Kline and Ms. Wedow, who were
firefighters and often had to wear firefighting clothing, and
15a
Appendix A
spend nights and take showers at the fire station, Ms. Taylor
was a Clerical worker. The conditions of which Ms. Kline
and Ms. Wedow complain in their hostile work environment
claims were altogether irrelevant to Ms. Taylor’s work
environment (in fact, there is no evidence that she was even
subject to these conditions). Any error in this regard was
therefore harmless with respect to her as well.
V.
Ms. Kline and Ms. Taylor also contest the trial court’s
order vacating the jury’s award of punitive damages under
the MHRA. They maintain that the city failed to raise and
properly preserve this issue at trial because the city made no
motion for judgment as a matter of law with respect to
punitive damages. See Fed.R.Civ.P. 50(a)(1). That rule,
however, governs motions for judgment as a matter of law
based on insufficient evidence and is therefore irrelevant in
this context. The city objected to punitive damages at trial
on the ground that the statute does not authorize them (not
that insufficient evidence existed to support such an award)
and objected to the jury instruction on punitive damages,
see Fed.R.Civ.P. 51, and therefore raised and properly
preserved the issue.
We believe that the trial court was correct in vacating
the punitive damages awards. Because the burden of a
punitive damages award against a municipality ultimately
falls on the taxpayers, and thus will fail to deter future
harmful activity by the municipality itself, punitive damages
are not usually recoverable against a municipality in
Missouri. See Chappell v. City of Springfield, 423 S.W.2d
l6a
Appendix A
810, 814-15 (Mo.1968), and Angelo v. City of Hazelwood,
810 S.W.2d 706, 707 (Mo.Ct.App.1991). A municipality in
Missouri is subject to punitive damages only if a statute
specifically provides that it is. See, e.g., Chappell, 423
S.W.2d at 813-14.
Ms. Kline and Ms. Taylor argue that the MHRA does in
fact specifically provide for punitive damages against
municipalities, because the act’s definition of “employer”
“includes the state, or any political or civil subdivision
thereof,” see Mo.Rev.Stat. § 213.010(7), and because another
section of the act provides that a court may award punitive
damages to a prevailing party, see Mo.Rev.Stat. § 213.111.2.
But the MHRA is a voluminous statute with many provisions
and definitions. See Mo.Rev.Stat. §§ 213.010- 213.139. We
believe that a result cobbled together from different sections
of the statute is insufficiently explicit under the Missouri
cases to overcome the presumption against punitive damages
when a municipality is a defendant that has been found liable.
We therefore reject the plaintiffs’ contentions in this respect.
VI.
The city cross-appeals the judgment entered in favor of
Ms. Taylor on her disparate treatment claim, arguing that
there was insufficient evidence of intentional discrimination.
Ms. Taylor responds that the city failed to preserve this issue
for appeal because the city did not renew the motion for
judgment as a matter of law, see Fed.R.Civ.P. 50(b), that it
made at the close of the plaintiffs’ evidence, see Fed.R.Civ.P.
50(a). She cites Pulla v. Amoco Oil Co., 72 F.3d 648 (8th
Cir.1995), for the proposition that a party that fails to move
17a
Appendix A
for judgment as a matter of law at the close of all of the
evidence is barred by Fed.R.Civ.P. 50(b) from arguing the
sufficiency of the evidence post-trial or on appeal.
That case is inapplicable here. First of all, in Pulla, 72
F.3d at 655-56, the appellant failed to make any motion for
judgment as a matter of law prior to submission of the case
to the jury. It is not even contended that that is the case here.
Instead, it is the form of the motion that Ms. Taylor contests.
She asserts that, although the city made both oral and written
motions for judgment as a matter of law at the close of the
plaintiffs’ evidence, it “merely renewed them” at the close
of its own evidence and again at the close of all of the
evidence.
Ms. Taylor argues that these renewals did not satisfy
the rule’s requirement that motions specify the grounds on
which the moving party is relying. See Fed.R.Civ.P. 50(a)(2).
We disagree. Once a sufficient motion for judgment as a
matter of law has been made, nothing in the law requires the
movant continually to make arguments or to file written
motions repeating the details of the original over and over
again. We believe that it is sufficient for the movant, as the
city did here, simply to renew the motion generically.
The city’s substantive argument is that its motion for
judgment as a matter of law should have been granted
because Ms. Taylor failed to present sufficient evidence of
intentional discrimination. Ms. Taylor’s theory of the case
throughout the trial was that she was treated differently from
similarly situated men. The city contends that she did not
18a
Appendix A
prove disparate treatment because the males to whom she
compared herself were not, in fact, similarly situated to her.
Ms. Taylor bore the burden of proving that she and the
male employees to whom she compared herself at trial were
“ ‘similarly situated in all relevant respects,’ Smith v.
Monsanto Chemical Co., 770 F.2d 719, 723 (8th Cir.1985),
cert. denied, 475 U.S. 1050, 106 S.Ct. 1273, 89 L.Ed.2d 581
(1986), quoting Meyers v. Ford Motor Co., 659 F.2d 91, 93
(8th Cir.1981). Ms. Taylor, a clerical employee, was accused
of poor job performance. The three men to whom she claims
she was similarly situated were J.W.S. (a fire inspector), P.C.
(a firefighter), and L.G. (a fire dispatcher), each of whom
was accused of specific rule violations. We have held that
employees accused of poor job performance are not similarly
situated to employees accused of misconduct. Boner v. Board
of Commissioners, 674 F.2d 693, 697 (8th Cir.1982)
(plaintiff's poor job performance not similar to misconduct
in the form of embezzlement).
J.W.S. was verbally abusive to an employee of the city
Finance Department while on duty, and was involved in an
altercation with a security guard (for which he was charged
with assault) while in uniform and off duty. His supervisor
charged him with violations of the personnel rules and of
the Fire Department Rules and suspended him until the
assault case was decided. After the suspension, J.W.S. was
told that he could either resign or face charges for verbal
abuse. P.C. was charged with sleeping on the job and
violating the fire code by bringing his vehicle inside a
building when acting as a fire guard at an event. His
supervisor removed his overtime card from the fire guard
Te nee
19a
Appendix A
box (the card was later returned because it had not been made
clear that bringing a vehicle inside the building was a
violation). L.G., who served under a different supervisor and
in a different facility from Ms. Taylor, had his pay docked
for reading another worker’s e-mail.
The performance-related matters for which Ms. Taylor
was terminated (inadequate typing skills, mistakes in
correspondence, and poor time management, among others)
are not similar to the specific instances of misconduct
described above. Ms. Taylor offered no evidence to
demonstrate that she was treated differently from these men,
or any other men, with respect to job performance. She was
not, therefore, similarly situated to these men in all relevant
respects, and the verdict in her favor cannot stand.
Vil.
For the reasons stated, we affirm the judgment of the
trial court in all respects on the plaintiffs’ appeal but reverse
the judgment in favor of Ms. Taylor’s disparate treatment
claim. We remand the case for the entry of appropriate orders.
20a
APPENDIX B — AMENDED JUDGMENT OF THE
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI DATED AND
FILED FEBRUARY 17, 1998
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
CASE NUMBER: 94-0723-cV-W-3
KATHLEEN KLINE, et al.,
Plaintiffs,
V.
CITY OF KANSAS CITY MISSOURI,
Defendant.
AMENDED JUDGMENT IN A CIVIL CASE
Jury Verdict. This action came before the Court for a trial
by jury. The issues have been tried and the jury has rendered
its verdict.
Decision by Court. This action came to trial or hearing
before the Court. The issues have been considered and a
decision has been rendered.
IT IS ORDERED AND ADJUDGED Counts I and IV —
in favor of Kathleen Kline and awarded $47,134 in actual
damages; Counts II and V — in favor of Kathleen Kline and
awarded $1.00 in actual damages; Counts II] and VI — in
aaa
21a
Appendix B
favor of Kathleen Kline and awarded $1.00 in actual
damages; Counts VII and X — in favor of Defendant; Counts
IX and XII — in favor of Defendant; Counts XV and XVIII
— in favor of Defendant; Counts XXIII and XXVI — in
favor of Betty Taylor and awarded $96,196 in actual
damages; Counts XXIV and XXVII — in favor of Defendant:
Counts XXV and XXVIII — in favor of Defendant.
Order dated February 17, 1998 denies in part and grants in
part equitable relief as summarized in the Order.
February 17, 1998 R.F. Connor
Clerk
s/ [illegible]
(By) Deputy Clerk
22a
APPENDIX C — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT
OF MISSOURI, WESTERN DIVISION REGARDING
PLAINTIFFS’ MOTION FOR EQUITABLE RELIEF
DATED AND FILED FEBRUARY 17, 1998
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
Case No. 94-0723-CV-W-3
KATHLEEN KLINE, et al.,
Plaintiffs,
v.
CITY OF KANSAS CITY, MISSOURI,
Defendant.
ORDER
Pending is Plaintiffs’ Motion for Equitable Relief. After
reviewing the arguments presented by the parties and by the
International Association of Fire Fighters Local Union No.
42 (the “Union”) appearing as an amicus, the Court grants
Plaintiffs’ Motion in part and denies it in part.
To put the Motion in context, it is important to keep in
mind that the jury in this case found in favor of Plaintiff
Kathleen Kline on her claim of disparate treatment in the
awarding of overtime, opportunities to work out of class
23a
Appendix C
(“WOC”), promotion to Battalion Chief, sexual harassment,
and retaliation. The jury also found in favor of Plaintiff Betty
Taylor on her claim that she was discharged because she
was a woman. The jury awarded these Plaintiffs monetary
damages to compensate them through the date of the verdict
(which was November 21, 1997).
I. LEGAL STANDARDS
When a Plaintiff prevails under Title VII, “the court may
enjoin the respondent from engaging in such unlawful
employment practice, and order such affirmative action as
may be appropriate, which may include, but is not limited
to, reinstatement or hiring of employees ... or any other
equitable relief as the court deems appropriate.” 42 U.S.C.
§ 2000e-5(g)(1). “Title VII has vested broad equitable powers
in the federal courts to fashion a decree which will, so far as
possible, eliminate the discriminatory effects of the past as
well as bar like discrimination in the future. Additionally,
. victims of discrimination are entitled to the most
complete relief possible, including placement in positions
comparable to ones that they were denied, and determination
of seniority and other rights as of the date that their rights
were violated.” Gilbert v. City of Little Rock, 799 F.2d 1210,
1215 (8th Cir. 1986) (quotations omitted). With these general
principles in mind, the primary areas of relief requested by
Plaintiffs are addressed below.
II. RELIEF SPECIFIC TO PLAINTIFF
KATHLEEN KLINE
The relief principally requested by Kline relates to a
promotion to Battalion Chief. The jury determined that Kline
24a
Appendix C
was denied this promotion because of her gender, and Title
VII generally favors equitable relief in the form of a
promotion in these circumstances. E.g., Ingram v. Missouri
Pacific R.R., 897 F.2d 1450, 1456-57 (8th Cir. 1990); Gilbert,
799 F.2d at 1215; Equal Employment Opportunity Comm'n
v. Rath Packing Co., 787 F.2d 318, 334-35 (8th Cir. 1986);
Equal Employment Opportunity Comm'n vy. M.D.
Pneumatics, Inc., 779 F.2d 21, 23 (8th Cir. 1985). Defendant
contends that Kline is not qualified for the position of
Battalion Chief and for that reason argues that a court-ordered
promotion is inappropriate. Defendant’s argument is
foreclosed by the jury’s determination that Kline’s gender,
and not her lack of qualifications, was the reason she was
not promoted. Moreover, the Court has independently
determined that Kline is qualified for the position of Battalion
Chief and that there are no special circumstances of the sort
described in Rath Packing that indicate a promotion is
inappropriate. Consequently, Kline must be awarded a
promotion to Battalion Chief in order to accord her complete
relief under Title VII.
The record demonstrates that the first promotion to
Battalion Chief after Kline reached the top of the promotion
list (and the discarding of that promotion list) occurred on
February 20, 1994. With that in mind, the Court orders
that:
1. Kline shall be immediately promoted to the rank of
Battalion Chief, with seniority rights (including, but
not limited to, bidding rights) as if she had been
promoted on February 20, 1994.
OO E_OUEOO=— — _—<— SSS eR Seg ee ee
25a
Appendix C
2. Kline’s salary, effective November 21, 1997, shall
be the salary of the individual who was first promoted
to the rank of Battalion Chief after Kline’s promotion
list was discarded. (This individual’s identity will not
be revealed in this Order for privacy reasons, but the
Court is confident the parties are able to identify the
individual in question).
3. As a Captain, Kline has been eligible for and
has received overtime for which she has been
compensated with money. Instead of overtime,
Battalion Chiefs receive “Adjustment Time”
(commonly referred to as “A” time), which is
measured (as the name suggests) in time. To make
her whole, Kline is entitled to a credit to her “A”
time account, but this credit must be discounted by
the amount of overtime pay she received between
February 20, 1994 and November 21 , 1997. Because
overtime is measured in money and “A” time is
measured in time, calculation is required in order to
determine the amount of time to be credited to Kline’s
account. The calculation will be based upon the pay
and “A” time awarded to the individual who was first
promoted to Battalion Chief after Kline’s promotion
list was discarded. The calculation is to be performed
as follows:
a. Upon promotion, the individual was paid $4,043
a month, which equals $48,516 per year. When
this figure is divided by 2080 (the number of hours
worked a year, assuming a forty hour work week
and fifty-two weeks a year), the hourly pay for
that individual was $23.33 per hour.
26a
Appendix C
b. Defendant is to calculate the amount of “A” time
that individual was credited between the date of
his promotion and November 21, 1997. The value
of that time will then be calculated by multiplying
that time by the hourly wage of $23.33.
c. Next, the amount of overtime Kline earned
between February 20, 1994 and November 21,
1997 will be deducted from that figure. Finally,
to convert the resulting dollar figure back into
time, the resulting figure will be divided by
$23.33. The quotient will be the amount of time
that is to be credited to Kline’s “A” time account.
In no event shall the amount of “A” time to be
credited be less than zero.
The Court acknowledges that using the initial pay
figure of $23.33 is imprecise because it fails to
account for pay raises awarded to that individual.
However, it is the most accurate figure in the record
that can be used to calculate the amount of “A” time.
The inability to incorporate wage increases in this
calculation inures to Kline’s detriment; however, as
this is her request for equitable relief, it was her
obligation to provide evidence to support more
precise and fair calculations.
. Defendant shall expunge all references to the fact that
Kline was not promoted from the discarded list from
all of Defendant’s records, including but not limited
to Kline’s personnel record, wherever those records
are kept.
27a
Appendix C
5. In order to compensate Kline for the true cost of
monetary damages, Defendant shall pay Kline
prejudgment (simple) interest at the rate of 5.46%
per annum, for a total prejudgment interest award of
$4825.35.!
III. RELIEF SPECIFIC TO PLAINTIFF
BETTY TAYLOR
The jury determined that Taylor was terminated based
on her gender. Full and complete relief for this transgression
requires that she be returned to her position if possible.
Although Taylor’s return to a position in the Fire Department
may not be desirable, it must be remembered that the
defendant in this case is the City of Kansas City, Missouri
and not the Fire Department. Inasmuch as the City of Kansas
employs clerical workers in departments and offices outside
the Fire Department, and in light of the lack of evidence
demonstrating that the relationship between Defendant and
Taylor is unusually hostile or antagonistic. Defendant can
(and must) find a suitable job for Taylor.
Defendant contends that Taylor is not entitied to
reinstatement (or the customary alternative of front pay)
1. This figure was calculated by multiplying the damage award
for Count 1 ($23,567.00) by the interest rate of 5.46%, resulting in
a figure of $1,286.76. Then, since the jury’s verdict was rendered
approximately three years and nine months after the first promotion
following the discardation of the promotion list, this figure was
multiplied by 3.75, resulting in prejudgment interest of $4,825.35.
The Court is purposely not awarding prejudgment interest on Kline’s
nominal damage awards.
28a
Appendix C
because she failed to request front pay in her jury instructions.
Defendant’s argument fails because prospective relief such
as reinstatement or front pay is to be awarded by the Court
and not the jury. Newhouse v. McCormick & Co., 110 F.3d
635, 643 (8th Cir. 1997) (“We agree with the Second
Circuit’s cogent analysis and now expressly hold that front
pay, including the determination of how much front pay to
award, is an equitable issue for the court. The district court
erred in this case by submitting the front pay determination
to the jury.”).
Defendant also contends that Taylor is not entitled to
further relief because she is disabled and incapable of
working. The Court disagrees. There is no doubt that Taylor
suffers from certain limitations due to her health — however,
she operated under these limitations while she worked for
Defendant until she was terminated because of her gender.
If she could work for Defendant before, she can work for
Defendant now; there was simply no evidence that her
medical condition is substantially different now than it was
when she was terminated.’
2. Defendant makes much of the fact that Taylor has filed a
claim for social security benefits. It must also be remembered,
however, that Taylor has also (while under oath) requested
reinstatement. The fact that she has filed for social security benefits
is a factor in assessing Taylor’s credibility, but it does not
automatically foreclose reinstatement. After considering all of the
evidence and observing Taylor during the trial and during her
testimony, the Court finds that her testimony that she desires to return
to work and believes herself capable of returning to work is credible.
The Court further finds that Taylor’s dire financial and personal
straits (brought on in no small part by her unlawful termination)
(Cont'd)
29a
Appendix C
In light of the above, and with the purpose of providing
Taylor complete relief for her unlawful termination, it is
ordered that:
1. Defendant shall offer Taylor a job at the same grade
and level she held at the time she was terminated on
July 6, 1994. This job shall not be in the Fire
Department. The job offer shall occur within fifteen
days of this Order.
2. Defendant shall credit Taylor with seniority as if she
had not been terminated.
3. Defendant shall credit Taylor with sick leave and
annual leave as if she had not been terminated.
4. Taylor’s salary effective November 21, 1997, shall
be the salary she was receiving on July 6, 1994 plus
any cost of living adjustments awarded by Defendant
to all employees between July 6, 1994 and November
21, 1997.
5. Defendant shall expunge all references to Taylor’s
termination from all of Defendant’s records, including
but not limited to Taylor’s personnel record, wherever
these records are kept.
(Cont'd)
prompted her application for social security benefits. Finally, even
if Taylor has a genuine subjective Suspicion that she may qualify
for disability benefits, there has been no adjudication that she is, in
fact, disabled. The Court takes her at her word and finds that she is
ready, willing and able to work.
30a
Appendix C
6. In order to compensate Taylor for the true cost of
monetary damages, Defendant shall pay Taylor
prejudgment (simple) interest at the rate of 5.46%
per annum, for a total prejudgment interest award of
$9,848.07.?
III. OVERTIME POLICY
Plaintiffs request that the Court alter Defendant’s policy
and procedures for the awarding of overtime. Plaintiffs’
request is denied.
Of the four Plaintiffs, only Kline prevailed on a claim
involving the discriminatory awarding of overtime. She has
received complete relief in the form of an award of monetary
damages. Further equitable relief “should not be considered
unless the record shows a real threat of a future violation of
the law or contemporary violation of a nature likely to
continue or recur.” Webb v. Missouri Pacific R. Co., 98 F.3d
1067, 1068 (8th Cir. 1996) (quotations omitted); see also
Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d
1221, 1230 (10th Cir. 1997) (quoting United States v. W.T.
Grant Co., 345 US. 629, 633 (1953)). There was no credible
evidence that discriminatory awarding of overtime is a
common problem. In fact, there was no credible evidence
that anyone other than Kline experienced this problem. The
3. This figure was calculated by multiplying Taylor’s damage
award ($48,098.00) by the interest rate of 5.46%, resulting in a figure
of $2,626.15. Then, since the jury’s verdict was rendered
approximately three years and three and one half months after the
Taylor was discharged, this figure was multiplied by 3.292, resulting
in prejudgment interest of $8,645.29.
3la
Appendix C
Court also notes that the awarding of overtime is to be
determined in accordance with facially nondiscriminatory
procedures set forth in the Memorandum of Understanding
(“MOU”) between Defendant and the Union. This does not
automatically bar this Court from imposing injunctive relief,
but this fact — combined with the paucity of evidence that a
recurring problem exists — persuades the Court that there is
little threat of future discrimination in the awarding of
overtime. Consequently, there is no justification for the Court
to alter Defendant’s current overtime practices.
IV. WORKING OUT OF CLASS
Plaintiffs also requests that the Court alter Defendant’s
policies for permitting Fire Department employees to work
out of class (““WOC”). Although the MOU provides no
guidance for the awarding of WOC opportunities, the Court
is not persuaded that injunctive relief is warranted. The
awarding of WOC opportunities requires consideration, in
part, of factors related to firefighting that are beyond the
ability of this Court to evaluate sufficiently so that a policy
can be crafted. The Court is reluctant to impose standards
for the awarding of WOC opportunities at the risk of public
safety. Although this decision appears to leave intact a system
that permits those who wish to discriminate to Carry out their
desires, the Court is not persuaded that the risk justifies the
relief sought by Plaintiffs. There was scant evidence that
other women are denied WOC opportunities based on their
gender, so the Court finds that the risk of future violations
necessary to justify injunctive relief is not present.
32a
Appendix C
V. PROMOTIONS
Plaintiffs ask this Court to adopt an entirely new system
for awarding promotions. As with the previous requests for
injunctive relief, the Court finds injunctive relief of this sort
unjustified. First, as with WOC opportunities, the Court is
unwilling to establish standards governing promotions at the
risk of public safety. Second, promotions are governed by a
facially non-discriminatory policy that helps safeguard
against those who wish to discriminate. Finally, and most
importantly, the Court is not persuaded that there is a risk of
future discrimination in the awarding of promotions.
VI. SEXUAL HARASSMENT
Plaintiffs seek a variety of forms of injunctive relief
based on Kline’s success on her claim for sexual harassment.
The Court agrees that some further equitable relief is
warranted, but not to the extent Plaintiffs request.
Unlike the situation involving overtime, WOC or
promotions, the Court finds that there is more than a threat
that sexual harassment will continue; the Court is certain
that sexual harassment will continue unless steps are taken
to prevent it. The Court finds that there have been blatant
and inexcusable incidents of improper activity; improper
because they are prohibited by Title VII and improper
because they should not be engaged in by public employees.
In fact, the Court finds that some of the activities violate
societal standards of decency in any work environment,
public or private. For instance, the Court finds that strippers
and prostitutes have been brought to fire stations; female
33a
Appendix C
employees have had their breasts “grabbed”; male firefighters
watch X-rated videos (either on VCRs or on pay-per-view)
on communal televisions in fire stations while on duty;*
copies of magazines depicting nude women are kept in fire
stations; sexual slurs are used to refer to women; sexually
suggestive jokes, pranks and comments occur on a frequent
basis. These things violate Title VII. These are also things
that public employees ought not be doing while on duty.’
These are things no employee ought to be doing in the
workplace. Equitable relief is required to prevent these
violations from occurring in the future and to protect Kline
from further sexual harassment.
Defendant has adopted two sexual harassment policies,
but they have obviously failed to change employee behavior.
The latest policy was circulated on November 20, 1997 —
the day before the jury returned its verdict and well before
the hearing on equitable relief. Already, there are indications
that the new policy is not being taken seriously.
4. With respect to this finding, the Court notes that a Title Vil
violation is not cured when, as was the case in one fire station, the
male employees purchase a Separate televisicn for one female
firefighter so she can be exiled to the bunk area to watch TV while
the men watch dirty movies in the common area. The notion of
“separate but equal” facilities is not credited in the law. Cf. Brown
v. Board of Ed. of Topeka, 347 U.S. 483, 493-95 (1954).
5. The Court also finds that these things occur so often and so
openly that it is implausible that they have not been observed by
Captains, Acting Captains, and Battalion Chiefs, yet there is little
indication that management level employees have ever stepped in
and reported or addressed these situations — despite
acknowledgment that this is their obligation under Defendant’s
policies.
34a
Appendix C
The reasons for Defendant’s past failures are clear. The
Court finds that dissemination of the policies has been
haphazard at best. Furthermore, there has been little serious
discussion about the policies and the conduct that they are
designed to prevent. (In the case of the latest policy, efficacy
may also have been hampered because the timing of its
circulation strongly suggests its primary purpose was to
forestall an order of equitable relief from this Court rather
than to effect any meaningful change in behavior.).
Consequently, even when employees read the policy, they
do not comprehend the effect the policy should have on their
behavior. Training has occurred only occasionally and often
has not been taken seriously by those in attendance, further
preventing any understanding of the difference between
permissible and impermissible behavior. Although the need
for training has been acknowledged by the Fire Director,
there is no present plan of implementation.
The Court has reviewed Defendant’s current sexual
harassment policy (the “Policy”) and concludes that there is
no need to re-write it. While a more perfect” policy might
be crafted, the Court believes this one is adequate. The
problem is, as it always has been, in communicating its terms
and meaning to employees of the Fire Department.
Consequently, the Court will not impose wholesale changes
in Defendant’s policy.° However, some minor changes in
Defendant’s policy must be made.
6. The Court is tempted to enjoin Defendant and its employees
from bringing prostitutes to fire stations, watching X-rated videos
in fire stations, grabbing female employees’ breasts, or engaging in
any of the other conduct described in this Order. On the other hand,
it is disheartening to think that such an Order is necessary.
(Cont'd)
35a
Appendix C
Currently, those wishing to complain about sexual
harassment or discrimination can complain to either (1) the
immediate supervisor or first level supervisor who is not
involved in the complaint, (2) the City Affirmative Action/
EEO Officer (“EEO Officer”), or (3) the Director of Labor
& Employee Relations in the Human Resources Department.
Specifically, the Court is concerned about that provision of
the Policy permitting Fire Department employees to report
to the EEO Officer. Among the EEO Officer's duties is the
responsibility to respond to charges of discrimination filed
with the Equal Employment Opportunity Commission
(“EEOC”) and the Missouri Human Rights Commission
(“MHRC”). This creates (despite Defendant’s protestations
to the contrary) a clear conflict of interest: is the EEO Officer
supposed to be investigating and trying to resolve complaints
on behalf of the complainant, or is the EEO Officer
investigating complaints and developing the City’s defense
against the complainant’s charges? This conflict of interest
is more egregious because employees are not aware that the
EEO Officer has the responsibility to defend the Defendant
before the EEOC and MHRC. Consequently, Defendant is
ordered to alter the Policy so that none of the people to
whom employees are directed to report complaints are also
charged with the duty of responding to the EEOC or MHRC
or defending Defendant before those agencies.’
(Cont'd)
Ultimately, the Court concludes that this conduct is clearly prohibited
not only by Title VII but also by Defendant’s sexual harassment
policy. The Court will therefore not “list” examples of prohibited
conduct (which, in any event, could never be exhaustive).
7. Defendant can comply with this directive by altering the
EEO Officer's job description so that he or she does not have the
(Cont'd)
36a
Appendix C
The Court also concludes that efforts to eliminate sexual
harassment are hampered by Defendant's failure to maintain
a central record of complaints and actions taken on those
complaints. Accordingly, Defendant shall maintain, in the
Fire Director's office, a file for each cadet and employee in
the Fire Department. Each file will contain the following:
l.
Forms signed by the cadet/employee acknowledging
receipt of the sexual harassment policy (and any
addendums or amendments) and that the policy and/
or addendum has been read by the individual.
. Records demonstrating that the cadet/employee has
attended training as required by this Order.
. Records of complaints filed by that cadet/employee
against any cadet/employee regarding alleged
violations of the sexual harassment policy, together
with any other documents pertaining to that specific
complaint.
. Records of complaints filed against that cadet/
employee regarding alleged violations of the sexual
harassment policy, together with any other documents
pertaining to that specific complaint.
. Documentation of any investigation, report and/or
assessment of discipline (if any) arising from the
(Cont'd)
responsibility to respond to the EEOC or MHRC or defend the City
against formal administrative charges. Whether it chooses this
solution over any other viable alternative is up to the Defendant.
37a
Appendix C
complaint made by that cadet/employee or made
against that cadet/employee.
6. These files shall not be destroyed until five years after
the cadet/employee resigns or otherwise leaves
Defendant’s employ.
In order to facilitate the creation of this centralized file,
all complaints (whether oral or written) of sexual harassment
involving Fire Department employees — regardless of who
receives the initial complaint — must forward copies or
reports of the complaint to the Fire Director. Additionally,
copies of all other items listed above are to be forwarded to
the Fire Director. These files can be examined by the Fire
Director and/or his designee responsible for administering
discipline. Further, and employee may examine his or her
own file. Beyond this, the files are to remain confidential
except as otherwise authorized by law (including court
order).
Finally, although the Court declines to institute all of
the policy changes and workplace rules suggested by
Plaintiffs, the Court (despite the sentiments expressed in
footnote 6, supra) is chagrined to conclude that one policy
change is required. Current facilities occasionally require
men to be in women’s restrooms (and vice versa). In some
fire stations, this is because there are only unisex restrooms.
In other cases, space constraints require storage of male
firefighters’ equipment in women’s restrooms. This, as mi ght
be expected, creates situations in which men intrude upon
women who are showering or otherwise using the facilities.
Defendant’s failure to take simple steps to address this
38a
Appendix C
problem have created, strangely, the need for a Court Order
requiring as follows: Defendant is ordered to install locks
on all restroom doors.
With these changes in mind, it is necessary to address
the issues of dissemination and training. To address these
problems, it is ordered that
1. Within six months of this Order, Defendant shall have
required a// Fire Department employees to attend a
minimum of four hours of training/education
regarding the requirements and prohibitions of Title
VII and the sexual harassment policy. This training
will also become a permanent part of the training
offered at the Fire Academy, thereby insuring that
future recruits receive this training. Defendant shall
also take steps to insure that civilian employees (and
other new employees who do not attend the Academy)
receive this training within three months of their
employment.
2. Management employees shall receive a minimum of
two additional hours of training/education regarding
their responsibilities under Title VII and the sexual
harassment policy. Defendant shall also take steps to
insure that all employees promoted to management
(or hired into such positions from outside the Fire
Department) receive this training within three months
of their promotion/employment.
3. Defendant shall provide a minimum of one hour of
additional training/education to all employees of the
39a
Appendix C
Fire Department every two years. The requirements
of this paragraph will end in the year 2005 (although
the Court hopes by that time Defendant recognizes
the wisdom of this continuing education).
. The curriculum for this education/training, as well
as details regarding its implementation (e.g., who will
conduct the training, length of sessions, class size,
etc.) will be established by a seven person committee.
John R. Phillips of the law firm of Blackwell Sanders
Matheny Weary & Lombardi, LLP is hereby
appointed as Special Master pursuant to Rule 53 of
the Federal Rules of Civil Procedure. The Special
Master’s duties will consist of chairing and advising
the committee and reporting the committee’s progress
and decisions to the Court at the end of each month
of the Committee’s existence. All decisions of the
committee shall be subject to approval by the Court.
The Special Master’s other powers shall be those
enumerated in Rule 53(c).
. The Fire Director will also serve on the committee.
The committee’s remaining members will be selected,
subject to this Court’s approval, by the Fire Director
as follows:
a) The composition of the remaining five members
must consist of one female Battalion Chief, one
female Captain, one female firefighter or fire
apparatus operator, one male Captain, and one
male firefighter or fire apparatus operator.
b) Within ten days from the date of this Order, the
Fire Director shall forward to the Court a list of
40a
Appendix C
his selections for the committee. The list should
be accompanied by a biographical sketch no more
than one page in length. In considering the Fire
Director’s selections, the Court will focus
primarily on indications that those nominated are
well-respected by their peers (and superiors and
subordinates, as is applicable).
5. Within five days of the Court’s approval of the
committee’s composition, the Special Master and the
Fire Director shall communicate with each other in
order to schedule the committee’s first meeting.
6. The committee will dissolve once the first training/
education session has been completed. Within sixty
days of the committee’s dissolution, the Special
Master shall file a statement documenting his fees
and costs.
7. Once approved by the Court, the Special Master’s
fees and costs will be assessed against the Defendant.
Vil. ATTORNEY FEES
The Court has previously ordered Plaintiffs’ counsel to
file a Motion for Attorney Fees within thirty days of the
ruling on Plaintiffs’ Motion for Equitable Relief. Defendant
shall have thirty days after the Motion for Fees is filed to
respond to the Motion. During that time, counsel for both
sides should meet to determine to what extent, if any, they
can reach agreement on issues related to the awarding of
fees (e.g., time expended, hourly rates, discounting for degree
4la
Appendix C
of success, etc.). Any agreements that can be reached should
be separately filed as a joint stipulation.
Plaintiffs shall have fifteen days to file a reply to
Defendant’s response.
VIII. CONCLUSION
The relief granted by this Order accomplishes the two
principal goals of Title VII. First, it affords the prevailing
plaintiffs complete relief for the discrimination and
harassment they have suffered. Second, it addresses the
conditions that have heretofore prevented Defendant from
remedying the sexual harassment that has been — and if
unchecked will continue to be — commonplace in the Fire
Department.*®
Defendant is further advised that the Court intends for
its Order to be acted upon immediately so that the deadlines
established by this Order will be met. The Court will be
reluctant to extend the deadlines established in this Order.
Moreover, the Court announces that it is unlikely that a stay
will be granted; although Defendant may request a stay and
attempt to persuade the Court that a stay should be entered,
Defendant should not expect a favorable response.
Consequently, Defendant should not delay implementation
of this Order anticipating that the Court will grant a stay.
8. The Court has not addressed all of the requests for relief
made by Plaintiff. In some instances, the Court has crafted obvious
replacements. To the extent that some requested relief is not
specifically addressed, it should be deemed denied.
42a
Appendix C
The Court also hopes Defendant takes to heart the lesson
taught in this case. If Defendant wants to avoid similar
complaints, then it must take an active role in preventing
sexual harassment in the Fire Department. If it does not make
a serious and successful effort to educate Fire Department
employees about proper and improper behavior, Defendant
will find itself defending a similar suit in the immediate
future. Saddest of all is that the transgressions found by the
Court are not minor or technical violations of Title VII. They
are major violations. Not only do they violate federal law,
but they exceed the bounds of good taste, common decency,
and ordinary manners. To date, Defendant has taken a passive
role in trying to prevent sexual harassment. It is hoped that
this Order will guide Defendant in the right direction.’
9. The Court has this final observation. When elementary
school children are asked what they want to be when they grow up,
invariably “a firefighter” is among the most frequent answers. It is
easy to blame the present situation in the Fire Department on a few
miscreants who have yet to escape adolescence. However, they will
not hear this sermon. Problems of this nature can be solved only
through leadership, And, whether these problems are resolved will
depend upon leadership. That Fire Director Brisbin was named to
hand-pick most of the members of the training committee is a
deliberate choice. The Court believes that Chief Brisbin genuinely
wants the Fire Department to have a diverse composition where
minorities and women are accepted as equals. If the Court is
mistaken, then being a firefighter in Kansas City will cease being a
noble calling. If the Court is right, children will continue to announce
that their life’s ambition is to be a firefighter. For the sake of these
women and for the sake of the public, which firefighters serve and
protect, the Court hopes its trust is not misplaced.
43a
Appendix C
IT IS SO ORDERED.
s/ Ortrie D. Smith
ORTRIE D. SMITH, JUDGE
UNITED STATES DISTRICT
COURT
DATE 2/17/98
44a
APPENDIX D — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT
OF MISSOURI, WESTERN DIVISION REGARDING
POST-TRIAL MOTIONS DATED AND
FILED FEBRUARY 17, 1998
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
Case No. 94-0723-CV-W-3
KATHLEEN KLINE, et al.,
Plaintiffs,
v.
CITY OF KANSAS CITY, MISSOURI,
Defendant.
ORDER
Pending are numerous post-trial motions; this Order is
intended to rule on all post-trial motions except Plaintiffs’
Motion for Equitable Relief.
1). Plaintiffs’ Motion for Setting of Bond (Doc. # 407) is
denied. The Motion is premature because Defendant has not
yet appealed the judgment in this case, let alone filed a
request for stay pursuant to lk ederal Rule of Civil Procedure
62(d). In any event, even if a request for bond were proper
at this juncture, the Court would not set a bond in the amount
45a
Appendix D
requested by Plaintiffs because that sum (1.5 times the jury’s
verdict) is excessive. If the Court were to grant a stay and
institute a bond (an issue that need not be decided at this
time), the bond would likely be for a nominal amount.
2). Plaintiff Kathleen Kline’s Motion to Amend Judgment
Entry of November 24, 1997 (Doc. # 41 8) is granted. Kline
correctly points out that during the trial the Court granted
her motion to reconsider the grant of summary judgment on
her claim of sexual harassment under the Missouri Human
Rights Act (“MHRA”). The Clerk’s Judgment reflects the
original grant of summary judgment and does not incorporate
the Court’s reinstatement of this claim.
3). Plaintiff Anne Wedow’s Motion for Reconsideration of
the Court’s Grant of Summary Judgment (Doc. # 419) is
denied. Specifically, she seeks reconsideration of the Court’s
grant of summary judgment with respect to her claims of
sexual harassment based exclusively on her testimony during
the equitable portion of this case. To put matters in context,
this case was filed on August 3, 1994 and discovery closed
approximately three years later. In opposing Defendant’s
Motion for Summary Judgment on this claim, Wedow did
not mention these facts or provide record cites for many of
the incidents she testified to during the equitable portion of
his trial.’ She how asks the Court to revisit settled issues
1. For instance, although the record contained evidence that
prostitutes and/or strippers were brought into certain fire stations,
there was never any indication that Wedow witnessed such events —
at least, not until she testified at the equitable portion of the trial.
Similarly, evidence that male firefighters grabbed her breasts was
not brought to the Court’s attention when the summary judgment
motion was pending.
46a
Appendix D
based upon her own failure to properly substantiate the
existence of a disputed issue of material fact when the
summary judgment motions were being considered.
The Court will not grant the relief requested. Wedow’s
failed to present evidence about these incidents in opposing
Defendant’s summary judgment motion. The evidence cannot
now be considered to reverse this Court’s decision made
months ago and based on evidence before it at that time.
This conclusion is buttressed by the fact that the belatedly
offered evidence came from Wedow;; the failure to present
this evidence at the proper time cannot be corrected in this
manner.”
4). All Plaintiffs have filed a Motion for New Trial. For the
most part, the Motion (Doc. # 454) raises issues that were
discussed and ruled prior to or during the trial. The Court
sees no need to elaborate further on these decisions at this
time. The challenges raised in the Motion are rejected for
the same reasons previous!y stated.
One issue unique to the Motion for New Trial is Plaintiff
Kline’s request for additur on her awards for sexual
harassment and retaliation. She speculates that “[t]he jury
obviously found it difficult to assess amounts for this claim
even though they [sic] found by clear and convincing
2. Wedow also presents an arguments based on the Eighth
Circuit’s recent decision in Jenson v. Eveleth Taconite Co., 130 F.3d
1287 (8" Cir. 1997). The same argument is also raised in Plaintiffs’
Motion for New Trial. For ease of discussion, Jenson will be
discussed later in this Order when the Motion for New Trial is
addressed.
47a
Appendix D
evidence that the city had violated the plaintiff Kline’s [sic]
rights on these two claims. Perhaps the jury, because of lack
of experience, felt incapable of making such an award.” She
ignores, however, the equally plausible possibility that the
jury awarded precisely the amount of damages it deemed
appropriate. The Court sees nothing in the record to justify
additur.
The final argument unique to the Motion for New Trial
is based upon the Eighth Circuit’s recent decision in Jenson
v. Eveleth Taconite Co., 130 F.3d 1287 (8th Cir. 1997).
Plaintiffs contend that Jenson requires a new trial because it
permits an award of damages for conduct that occurred
outside the time limits for filing an administrative claim
under Title VII.
The relationship between the continuing violation theory
and the proper measure of damages has been discussed
several times by the Eighth Circuit. In an en banc decision,
the Court concluded its discussion of this issue by declaring
that “[rJelief back to the beginning of the limitations period
strikes a reasonable balance between permitting redress of
an ongoing wrong and imposing liability for conduct long
past.” Ashley v. Boyle’s Famous Corned Beef Co., 66 F.3d
164, 168 (8th Cir. 1995). Relying on Ashley, the Eighth
Circuit later rejected an appellant’s argument “that, if he
proves a pattern of racial harassment constituting a hostile
work environment, he may recover damages for the entire
period that this violation occurred, including any portion that
occurred more than 180 days before he filed his Charge of
Discrimination, or more than two years before he filed this
lawsuit.” Gipson v. KAS Snacktime Co., 83 F.3d 225, 230
48a
Appendix D
(8th Cir. 1996). Then, a mere nine months before Jenson
was decided, the Eighth Circuit relied on both Ashley and
Gipson to support the proposition that “[a] sex discrimination
complainant may recover for any discriminatory act for
which the statute of limitations has not expired.” Kimzey v.
Wal-Mart Stores, Inc., 107 F.3d 568, 572 (8th Cir. 1997).
In Jenson, the continuing violation theory is discussed
only with respect to the district court’s dismissal of Diane
Hodge’s complaint. Although most of Jenson discusses
issues related to damages, this portion of the opinion does
not and Plaintiffs’ characterization of Jenson as a “damages
case” does not necessarily and automatically render the entire
opinion applicable to damages. The Court of Appeals held
that Hodge had “established that she was subjected to it least
one incident of harassing behavior during the statutory period
{and so] we find that her claim is part of a continuing
violation and is not time barred.” Jenson, 130 F.3d at 1303.
Jenson’s discussion of the continuing violation theory does
not mention the Eighth Circuit’s prior decisions in Ashley,
Gipson or Kimzey, nor does it even discuss the measure of
damages Hodge would be entitled to. Even if the Jenson panel
could overrule the three prior appellate decisions, a fair
reading of the opinion demonstrates that this was not the
court’s intent. This Court therefore conciudes that Jenson
has no application to the issue of damages in a continuing
violation situation and does not require a new trial in this
case.‘
3. The time limits identified in this quote relate to the time
limits under the MHRA.
4. Wedow also argues that Jenson requires vacation of the
summary judgment on her harassment claims because “[t}his court
(Cont'd)
49a
Appendix D
5). Defendant has filed a Motion for Judgment as a Matter
of Law or for New Trial with respect to Plaintiff Kline (Doc.
# 410) and two Motions for New Trial with respect to
Plaintiff Taylor (Doc. # 411 and Doc. # 415). For ease of
discussion, these motions will be discussed collectively.°
These motions are denied to the extent that they
challenge the sufficiency of the evidence for those claims
on which these plaintiffs prevailed. Although the Court
expressed concern about the sufficiency of the evidence with
respect to some of the claims presented to the jury, the counts
with which the Court was primarily concerned were ruled in
favor of Defendant. With respect to those verdicts in favor
of the Plaintiffs, the Court concludes that there was sufficient
(Cont’d)
admitted that the final event occurred in Reeo ak st". This
mischaracterizes the Court’s holding: the Court’s Order granting
summary judgment on this claim identified one incident that occurred
in 1993, but held that it did not constitute sexual harassment. The
Court also held that the 1993 incident was too disconnected in time
from the prior incidents to qualify as the end point in a continuing
violation. Finally, io the extent that Wedow now asserts other
incidents should be considered, the argument is foreclosed because
(as discussed earlier) they were not pointed out to the Court in
Wedow’s response to the summary judgment motion.
5. The Court rejects Plaintiffs’ arguments that Defendant
waived these arguments by failing to make appropriate Rule 50
motions during the trial. First, except as specifically mentioned in
the discussion, the Court believes that these issues were properly
raised at the appropriate times. Moreover, Plaintiffs have waived
the right to make this objection, based on counsel’s statements to
that effect on the record.
50a
Appendix D
evidence to support them. Specifically with respect to Betty
Taylor, there was sufficient evidence to permit the jury to
conclude that Taylor did a satisfactory job as a secretary,
that any performance problems she had were properly
attributed to equipment problems and that her superiors knew
about those equipment problems. The jury could also have
concluded that other individuals who had performance
problems were not terminated.® With respect to Kathleen
Kline, the jury reviewed the evidence regarding the awarding
of overtime and, based on that evidence, could have
concluded that Kline had less opportunities than similarly
situated male firefighters. The jury could have rejected
Defendant’s proffered explanations for discarding the
promotion list and concluded that the decision was based on
a desire to prevent a woman from becoming a Battalion Chief.
There was also ample evidence to support the jury’s verdict
on Kline’s sexual harassment claim. The Court cannot say
that the jury’s verdicts were so contrary to the weight of the
evidence that a miscarriage of justice occurred or that, as a
matter of law, a verdict in favor of Defendant was mandated.
These motions are also denied to the extent that they
allege errors in the jury instructions. Specifically, Defendant
contends that Instruction No. 65 incorrectly stated the law
when it included, as an element in Taylor’s disparate
treatment claim, a directive that the jury consider whether
“plaintiff’s sex, female, was a motivating factor in
defendant’s decision.” Defendant contends that this was
improper because it was “obvious” that the jury could only
6. Defendant’s arguments regarding a comparison of Taylor
to individuals who received light duty are irrelevant because the
jury did not find that Taylor was discriminatorily denied light duty.
Sla
Appendix D
answer “yes” to this inquiry. Interestingly, this argument is
limited to Taylor’s disparate treatment claim and was not
raised with respect to Kline’s disparate treatment claim even
though identical language appears in Instruction No. 22.
More importantly, the language criticized by Defendant
appears virtually verbatim in Model Instruction 5.01.
Defendant also argues that Instruction No. 66 (the “same
decision” instruction) was improper. What has been said with
respect to Instruction No. 65 can be repeated here. In addition
to the fact that Defendant did not raise a similar objection
with respect to Instruction No. 23 (the “same decision”
instruction given for Kline’s disparate treatment claim),
the instruction actually given closely tracks the model
instruction.
Finally, it must be pointed out that the instructions given
by the Court are nearly identical to those proposed by
Defendant in its third set of proposed instructions. The key
portion of Instruction No. 65 (the verdict director) sets forth
the following elements:
First, defendant treated plaintiff Betty Taylor
differently than similarly situated males in the Fire
Department on any one or more of the following
issues at any time between June 20, 1993 and J uly
1, 1997:
a. Discipline, and/or
b. Light Duty, and/or
c. Termination of Employment, and
52a
Appendix D
Second, defendant’s treatment of plaintiff Betty
Taylor on one or more of the above issues was
adverse to plaintiff Betty Taylor, and
Third, plaintiff's sex, female, was a motivating
factor in defendant’s decisions.
Defendant’s proposed verdict director contained the
following elements:
First, defendant
denied plaintiff opportunities to work light duty;
or
disciplined plaintiff; or
terminated plaintiff; and
Second, plaintiff's sex was a motivating factor in
defendant’s decisions.
There is no discernible difference between the elements in
the Court’s verdict director and those proposed by Defendant.
Similarly, Instruction No. 66 is virtually identical to
Defendant’s proposed “same decision” instruction.
Instruction No. 66 says:
If you find in favor of plaintiff Betty Taylor under
Instruction 65, then you must answer the
following question on the verdict form with
respect to those items (a) through (c) listed in
53a
Appendix D
Instruction 65 that you found to exist: Has it been
proved by the greater weight of the evidence that
defendant would have treated plaintiff Betty
Taylor differently than similarly situated males
in the Fire Department with respect to these
issues, regardless of her sex?
Defendant proposed the following:
If you find in favor of plaintiff under Instruction
No. __, then you must answer the following
question in the verdict form: Has it been proven
by the greater weight of the evidence that
defendant would have denied plaintiff
opportunities to work light duty; or disciplined
plaintiff; or terminated plaintiff regardless of her
sex?
Once again, the Court sees no real difference between the
two instructions. Although Defendant’s proposal is different
because it specifies the three areas of purported
discrimination (light duty, discipline and termination),
Instruction No. 66 accomplishes the same task by referring
the jury to items (a) through (c) in Instruction No. 65.
Next, Defendant contends that the award of punitive
damages is improper under Missouri law.’ Despite some
7. Punitive damages are not available under Title VII because
Defendant is “a government, government agency or political
subdivision.” 42 § 1981a(b)( 1). If punitive damages are available
in this case, it can only be because the MHRA permits such an award.
54a
Appendix D
concerns with the manner in which this issue has been raised,*
the Court concludes not only that the issue is properly before
the Court but that Defendant’s arguments are meritorious.
The MHRA permits an employee to file suit against his or
her employer, which is defined to include “the state, or any
political or civil subdivision thereof, ....” Mo. Rev. Stat.
§ 213.010(6). The MHRA also permits an award of punitive
damages in appropriate cases. Jd. § 213.111.2. Read in
combination, these provisions permits employees to recover
punitive damages in suits against their employers, and
includes municipalities in the definition of “employers.”
8. Defendant did not file a Motion to Strike, nor did it file a
Motion to Dismiss. Defendant filed four separate motions for
summary judgment — one for each Plaintiff — but none of them
raised this issue. Defendant resisted certain depositions by asserting,
among other arguments, that it was not subject to punitive damages,
but Defendant did not provide any legal support for this argument
and the Court specifically refrained from addressing this issue
pending development of the Defendant’s legal argument. See Order
dated March 11, 1997. Defendant objected to Plaintiffs’ proposed
jury instructions on punitive damages but said nothing more than
the fact that Defendant objected to the instruction; Defendant
provided no legal support for its objection. See Doc. # 338. The
first, and prior to trial the only, time that Defendant provided legal
support for its position appears in Defendant’s Trial Brief (Doc.
# 339), which was filed at 5:00 p.m. on October 29, 1997. This
occurred a mere two working days before the trial commenced and
represented the first time the Court became aware of any possible
legal support for Defendant’s argument.
Ideally, this issue should have been raised in some sort of
dispositive motion long before the case went to trial. Nonetheless,
the Court concludes that Defendants have raised this issue and that
a ruling at this time is warranted.
55a
Appendix D
However, the MHRA does not specifically declare that
municipalities are subject to liability for punitive damages.
The MHRA’s failure to take this extra step makes the award
of punitive damages in this case improper.
In Chappell v. City of Springfield, 423 S.W.2d 810 (Mo.
1968), the Missouri Supreme Court considered a case in
which the plaintiffs, inter alia, sought punitive damages from
the City of Springfield for willfully and maliciously failing
to abate a nuisance, l.e., the city’s Sewage disposal plant.
The Court noted “the general rule that in the absence of a
Statute specifically authorizing such recovery, punitive or
exemplary damages are not recoverable against a municipal
corporation.” 423 S.W.2d at 813. The Court relied heavily
upon an 1877 case (Hunt v. City of Booneville, 65 Mo. 620
(1877)) that discussed a suit against the city based ona statute
prohibiting trespass. In Hunt, the Missouri Supreme Court
held that held that although a municipality could be sued
under the trespass statute, it was not subject to the trespass
Statute’s provision for treble damages. Chappell
acknowledged that there was hardly any case law on the
subject since Hunt was decided but concluded that it was
still good law.
In deciding that punitive damage awards against
municipalities contravenes public policy, the Chappell Court
rejected a variety of policy-based arguments in favor of
permitting punitive damages against municipalities. 423
S.W.2d at 814. The Court ultimately held that punitive
damages were not available, regardless of the egregiousness
of the city’s conduct in operating its sewage disposal plant
because there was “no statute authorizing the recovery of
56a
Appendix D
punitive damages against the municipality” under this cause
of action. This conclusion was not altered by the fact that
the city could be held liable for actual damages, or the fact
that non-municipal defendants were subject to punitive
damages.
A similar result was reached in Angelo v. City of
Hazelwood, 810 S.W.2d 706 (Mo. Ct. App. 1991), which
involved claim against a municipality for violating Mo. Rev.
Stat. § 537.330. This statute permits suits against a
municipality and permits a victorious plaintiff to recover
treble damages. However, the statute does not clearly declare
that a municipality was subject to the treble damage
provision. Consequently, the Missouri Court of Appeals held
that, based on Chappell and Hunt, “in the absence ofa statute
specifically authorizing such recovery, punitive damages are
not recoverable against the municipal corporation.” 810
S.W.2d at 707.
Despite the sparse law on the subject, the few cases that
do exist cause this Court to conclude that a municipality is
not subject to an award of punitive damages absent a specific
statutory declaration to that effect. It is not enough for a
statute to impose liability for compensatory or actual
damages even if the statute generally permits an award of
punitive damages; there must be a specific declaration that
the municipality can be held liable for punitive damages.
E.g., Chappell, 423 S.W.2d at 813-14; Angelo, 810 S.W.2d
at 707; see also Euge v. Trantina, 422 F.2d 1070, 1074 (8th
Cir. 1970) (dicta). These cases also demonstrate that the
MHRA lacks the specificity required to sustain the award
punitive damages in this case. Just like the statutes involved
57a
Appendix D
in the cases discussed above, the MHRA generally permits
an award of punitive damages and permits suits against
municipal corporations. However, also like the statutes
involved in the cases discussed above, the MHRA does not
specifically permit an award of punitive damages against
municipal corporations. Consequently, the Court concludes
that an award of punitive damages is not available against
the Defendant under the MHRA, and the jury’s award of
punitive damages cannot stand.
Plaintiffs counter with a variety of policy-based
arguments to justify awarding punitive damages in this case.
These arguments are persuasive, but they have already been
considered and rejected in Chappell. The Missouri Supreme
Court is the final authority on the interpretation of Missouri
law, and it would be improper for this Court to credit
arguments about the proper meaning of Missouri law when
those arguments have already been specifically rejected by
the state’s highest court.
Plaintiff's reliance on Kizer vy. Curators of University
of Missouri, 816 F. Supp. 548 (E.D. Mo. 1993) is also
misplaced. It is not even clear that Chappell applied in
that case because Chappell discussed the liability of
municipalities and the University of Missouri is not a
municipality. Furthermore, it is not clear that the district court
in Kizer permitted an award of punitive damages against the
university. In Kizer, there were three defendants; in addition
to the university, the plaintiff had sued the dean and the
chairperson of her department. Read in context, it appears
that the motion before the court was a motion to dismiss
filed by the two individual defendants and not by the
58a
Appendix D
university. Although the court’s discussion of punitive
damages does not clearly indicate which party or parties
requested dismissal of that claim, other portions of the
opinion indicate that the motion was filed just by the dean
and the chairperson. In any event, Kizer cannot be understood
as holding that an award of punitive damages against a
municipality is proper under the MHRA.
In conclusion, the Court holds that the MHRA does not
specifically permit an award of punitive damages against a
municipality, and for that reason such an award is improper
under Missouri law. The jury’s award of punitive damages
must be vacated.
Defendant’s final two arguments are related:’ both
involve claims that documents that were not admitted into
evidence were sent to the jury room while the jury
deliberated. Specifically, Defendant contends that an
incompletely redacted Exhibit 225 was permitted to go to
the jury room and that Exhibit 510M was permitted to go to
the jury room when it was not even admitted during the trial.
The Court concludes that Defendant has failed to fulfill its
obligation to demonstrate that it is entitled to relief on these
claims.
Defendant’s arguments appear in two different
documents: its argument with respect to Exhibit 225 appears
in an amended motion for new trial on Betty Taylor’s claims,
and its arguments with respect to Exhibit 510M appears in a
9. Defendant also raised some arguments based on evidentiary
rulings. These arguments are rejected for the same reasons provided
during the trial; further elaboration is not required.
Sen eT nS ee er ee ee
59a
Appendix D
separate motion requesting a new trial on Plaintiff Kline’s
claims. Between these two documents, Defendant has
directed the court to only one case — Mangan v. Broderick
& Bascom Rope Co., 351 F.2d 24 (7th Cir. 1965), cert.
denied, 383 U.S. 926 (1966) — and this case does not even
involve a claim of unadmitted documents being sent to the
jury room. Instead, this case discusses the specific situation
when evidence of worker compensation benefits are
discussed in the jury’s presence during the trial on a suit for
personal injury. In Mangan, the improper information was
presented to the jury in open court; citing Mangan provides
no guidance when, as here, a party claims improper material
was made available to the jury while it deliberated.
Clearly, Defendant’s argument can succeed only if
evidence that was not admitted during the trial went to the
jury room. The only way to prove this happened is to ask the
jurors themselves. Although generally jurors “may not testify
as to any matter or statement occurring during the course of
the jury’s deliberations or to the effect of anything upon that
or any other juror’s mind or emotions as influencing the juror
to assent to or dissent from the verdict . . . or concerning the
juror’s mental processes in connection therewith,” Fed. R.
Evid. 606(b), jurors can be asked to testify about extrinsic
or extraneous influences, including matters considered by
the jury but not admitted into evidence. E. g., United States
v. Rodriguez, 116 F.3d 1225, 1227 (8th Cir. 1997). This does
not mean, however, that Defendant’s bare assertion that
improper evidence was considered justifies recalling the
jurors so that they can testify at a hearing to determine what
information was considered by them. “[P]ost-verdict
inquiries may lead to evil consequences: subjecting juries to
60a
Appendix D
harassment, inhibiting juryroom [sic] deliberation, burdening
courts with meritless applications, increasing temptation for
jury tampering and creating uncertainty in jury verdicts.”
United States v. Ianniello, 866 F.2d 540, 543 (2d Cir. 1989);
see also United States v. Estrada, 45 F.3d 1215, 1228 (8th
Cir.), vacated on other grounds 116 S. Ct. 664 (1995)
(“Courts should not subject jurors to undue impositions.”’).
There are no cases in this circuit that discuss when a
district court must hold a hearing to consider a party’s claim
that the jury considered extraneous evidence. The issue has
been discussed in other circuits, however, and those circuits
have reached similar conclusions as to the appropriate
standard for determining when a hearing must be held. “To
justify a post-trial hearing involving the trial’s jurors, the
defendant must do more than speculate; he must show clear,
strong, substantial and incontrovertible evidence that a
specific, nonspeculative impropriety has occurred.” United
States v. Cuthel, 903 F.2d 1381, 1383 (11th Cir. 1990)
(quotation omitted); see also Hard v. Burlington N. R.R. Co.,
870 F.2d 1454, 1461 (9th Cir. 1989); Janniello, 866 F.2d at
543. Recently, the Eighth Circuit issued an opinion that
seems to endorse these views. See United States v.
Cunningham, No. 97-1720, slip op. at 9 (8th Cir. Jan. 13,
1998).'°
Defendant has failed to justify requiring the jurors to
come to court to testify about what material was set to them
10. Although most of these cases are criminal cases, the Court’s
independent research has failed to uncover any indication that the
law is different in the civil context. Obviously, Rule 606(b) applies
equally to civil and criminal cases.
ee a ae
6la
Appendix D
during the deliberation process. With respect to Exhibit 225,
Defendant contends that an incompletely redacted version
of this exhibit was sent to the jury. Defendant arrives at this
conclusion because when Plaintiffs’ counsel was asked after
the trial to provide a copy of this exhibit, the copy received
failed to redact two of the paragraphs that the Court ordered
to be redacted. From this fact, the Court is asked to speculate
that the improperly redacted exhibit was sent to the jury
room. The Court is not inclined to engage in this leap of
logic, particularly when Defendant has failed to substantiate
its claim (as is usually done when a claim of this sort it is
raised) by obtaining an affidavit or other swom statement
from one of the jurors attesting to the fact that they saw the
improper exhibit.'' An affidavit of this sort not only could
be considered, e.g., United States v. Hall, 85 F.3d 367, 370
(8th Cir. 1996), but it is the best (if not the only) way for a
party to justify a hearing on the matter. Defendant’s mere
speculation that an unredacted exhibit went to the jury is
insufficient to justify a hearing. !?
11. Plaintiffs deny that the incompletely redacted version of
Exhibit 225 went to the jury and contend that the wrong copy was
mistakenly supplied to the Defendant.
12. Defendant also asserts (in a footnote) that “Exhibits 313P
and 313Q were also apparently sent to the jury by the Plaintiffs
although Defendant has no record that these Exhibits were properly
introduced at trial.” The record demonstrates that both of these
exhibits were admitted into evidence over Defendant’s objection.
Even if this were not the case, the Defendant’s bare claim that these
items “apparently” went to the jury room is insufficient to justify a
hearing to find out if this actually happened.
62a
Appendix D
Exhibit 510M was an exhibit related to Kline’s damages.
Defendant contends that a version of Exhibit 510M with a
damage figure of $23,567.00 improperly went to the jury
room. Defendant reaches this conclusion in two ways: first,
it argues that “apparently” it went to the jury room “because
the verdict amount is the same figure shown on the
re-calculated Exhibit 510M.” This speculative reasoning is
no better than the similar reasoning offered with respect to
Exhibit 225, and does not justify conducting an inquiry of
the jurors to find out if this exhibit was available to them.”
Defendant also contends that two jurors “were contacted
and they indicated that they had a document showing
$23,567.00 in damages for Kline and this document was used
during deliberations.” First of all, this declaration constitutes
unsworn hearsay; it is a far cry from the sort of affidavit
required to justify recalling the jurors to elicit their testimony.
Moreover, taken on its face, the statement does not
demonstrate that an improper document was sent to the jury
room. Just because two jurors recall seeing a document with
this figure does not mean that they saw this particular
document. In short, Defendant has failed to make a clear,
strong, nonspeculative and substantial showing that
extraneous matters were presented to the jury during its
deliberative process, so further inquiry into this matter is
not warranted.
13. It must be remembered that, although a juror could
conceivably be asked whether improper information was in the jury
room and whether it was discussed, a juror could not be asked what
role it played in the jury’s deliberation. Hall, 85 F.3d at 370-71.
63a
Appendix D
Finally, with respect to both Exhibit 225 and 510M, the
Court points out that it instructed the parties to review all of
the exhibits to make sure that only admitted documents were
sent to the jury room. The Court’s intent was obvious: it
wanted the parties, those with the greatest interest and the
greatest familiarity with the evidence, to insure that nothing
went to the jury room that was not supposed to be sent there.
The Court can only assume that Defendant either knew of
these problems at a time when they could be prevented — in
which case its complaint is untimely — or that Defendant
failed to properly police the process and protect its interests
— in which case Defendant shares the blame for this mishap
(if, in fact, a mishap occurred). Either way, this adds an
additional, independent reason to deny Defendant the relief
it seeks.
In conclusion, the award of punitive damages will be
vacated and the judgment will be amended to reflect that
Kathleen Kline prevailed on her claim of sexual harassment
under the MHRA. In all other respects, the parties’ post-trial
motions (excepting the Motion for Equitable Relief) are
denied.
IT IS SO ORDERED.
s/ Ortrie D. Smith
ORTRIE D. SMITH, JUDGE
UNITED STATES DISTRICT
COURT
DATE 2/17/98
64a
APPENDIX E — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT OF
MISSOURI, WESTERN DIVISION GRANTING IN PART
AND DENYING IN PART DEFENDANT’S MOTION IN
LIMINE DATED AND FILED OCTOBER 17, 1997
IN THE UNITED STATES DISTRICT COUPT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
Case No. 94-0723-CV-W-3
KATHLEEN KLINE, et al.,
Plaintiffs,
V.
CITY OF KANSAS CITY, MISSOURI,
Defendant.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION IN LIMINE
Following a pretrial conference held on October 14,
1997, and after considering the materials filed by the parties,
the following rulings are made with respect to the issues
raised in Defendant’s Motion in Limine (Doc. # 259):
1. Defendant seeks to bar evidence that was not “disclosed”
prior to the discovery cutoff date of June 1, 1997. Keeping
in mind that evidence can be “disclosed” in a variety of ways
(including deposition answers, interrogatory answers,
65a
Appendix E
Plaintiffs’ Amended Complaint and documents provided by
Plaintiffs), this request is granted.
The Court understands that this will bar evidence of
discriminatory events that took place after the discovery
cutoff date. However, as there has been no formal discovery
with respect to these events, the Court is reluctant to include
them in these proceedings. The Court also notes that the time
has not expired for Plaintiffs to file an EEOC Complaint
with respect to these events, meaning that thi
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