# Petition for Writ of Certiorari — Kline v. City of Kansas City > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0473%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2000 - **Citation:** 528 U.S. 1155 ## Text (>) 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0473%3A1. Public record. Not legal advice.