Cox v. Kan. City Chiefs Football Club, Inc.

• Decision Date: 22 September 2015
• Docket Number: No. SC 94462,SC 94462
• Parties: G. Steven Cox, Appellant, v. Kansas City Chiefs Football Club, Inc., Respondent.
• Court: Missouri Supreme Court

473 S.W.3d 107

G. Steven Cox, Appellant,

v.Kansas City Chiefs Football Club, Inc., Respondent.

No. SC 94462

Supreme Court of Missouri, en banc .

Opinion issued September 22, 2015

Rehearing Denied November 24, 2015

Cox was represented by Dennis E. Egan of The Popham Law Firm PC in Kansas City, (816) 221–2288; Chad C. Beaver of Beaver Law Firm LLC in Kansas City, (816) 226–7750; and Lewis M. Galloway of LG Law LLC in Kansas City, (816) 442–7002.

The Chiefs were represented by Anthony J. Romano, Eric E. Packel, Alison P. Lungstrum, William E. Quirk and Jon R. Dedon of Polsinelli PC in Kansas City, (816) 753–1000.

Several organizations filed briefs as friends of the Court. The Kansas City and St. Louis chapters of the National Employment Lawyers Association were represented by Paul A. Bullman, an attorney in Kansas City, (816) 286–2860; and Mark A. Buchanan of the Law Office of Mark Buchanan in Kansas City, (816) 221–2288. The Missouri Association of Trial Attorneys was represented by Martin M. Meyers of The Meyers Law Firm LC in Kansas City, (816) 444–8500; and Leland F. Dempsey of Dempsey & Kingsland PC in Kansas City, (816) 421–6868.

Laura Denvir Stith, Judge

Steven Cox, a former Kansas City Chiefs employee, appeals a judgment for the Chiefs following a jury trial. He contends that certain trial court rulings excluding evidence from nonparty former employees and limiting discovery in his single-act age discrimination case were in error. The trial court ruled that the testimony of other former employees as to their ages and the circumstances under which their employment with the Chiefs ended was inadmissible on grounds that the employees were directly fired or forced out by different managers and worked in different departments, among other distinctions, and, therefore, were not "similarly situated" to Mr. Cox. The trial court, likewise, ruled that testimony as to a discriminatory statement allegedly made by a Chiefs executive who did not supervise Mr. Cox was inadmissible.

This Court determines that the trial court misapplied the legal standard for the admission of evidence by so-called "me too" witnesses by issuing a blanket ruling requiring the strict level of similarity that would support a disparate treatment claim when the standard for admitting such testimony as circumstantial evidence of the employer's discriminatory intent instead depends on many factors, including the plaintiffs circumstances and theory of the case. Here, the plaintiff alleges a company-wide policy of discrimination executed over a several months-long period both before and after his own termination. As such, the trial court abused its discretion in excluding "me too" evidence offered by several employees who, like Mr. Cox, were older than age 40, were terminated during the time period in question and replaced by younger workers, and many of whom were terminated directly or indirectly by the person who fired Mr. Cox. These commonalities make "me too" evidence relevant and admissible in this case even when the other former employees are not similarly situated in all respects.

For these reasons and for reasons discussed below, the trial court also erred in excluding the evidence concerning the discriminatory age-related statement and in quashing the deposition order issued to the Chiefs' chairman and chief executive officer.

The judgment is vacated, and the case is remanded.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Chiefs hired Mr. Cox as a maintenance manager in 1998. At that time, Carl Peterson served as the Chiefs' president and general manager, supervising both the business side and the football-operations side of the organization. Mr. Cox presented evidence to the jury that, in 2008, Mr. Peterson told longtime employee Ann Roach that there would be changes to the Chiefs front office staff under the leadership of the new chairman and chief executive officer, Clark Hunt, because Mr. Hunt "wanted to go in a more youthful direction."

When Mr. Peterson resigned in 2008, Mr. Hunt did commence an organizational restructuring. To that end, he hired Scott Pioli in January 2009 to run football operations as general manager and Mark Donovan in May 2009 to serve as chief operating officer who, along with interim president Denny Thum, oversaw all business operations including stadium operations. After Mr. Thum (then age 59) was fired in September 2010, Mr. Donovan (age 43 or 44) was named president in 2011.

After Director of Stadium Operations Steve Schneider (age 51) was fired in January 2010, Mr. Cox took on additional responsibilities and reported directly to Mr. Donovan for several months until, in April 2010, David Young (age 34) and Brandon Hamilton (age 39) were hired to fill the newly created positions of vice president of stadium operations and director of facilities, respectively. Mr. Cox was not invited to interview for these new positions.

On October 14, 2010, Mr. Cox's employment with the Chiefs was terminated in a meeting attended by Mr. Young, Mr. Hamilton, and the new director of human resources, Kirsten Krug (age 42). Although Mr. Donovan did not attend the meeting and was no longer Mr. Cox's direct supervisor, he later testified at trial that he himself made the decision to fire Mr. Cox for reasons of poor performance and insubordination. At the time of his termination, Mr. Cox was 61 years old. His position was filled shortly thereafter by a 37–year–old.¹

Mr. Cox filed a charge of discrimination with the Missouri Commission on Human Rights and was issued a right to sue letter. He then filed his petition in the Jackson County circuit court alleging a single act of age discrimination on the day of his termination. His theory of the case was that the Chiefs, starting with Mr. Hunt and his desire to "go in a more youthful direction," had instituted a company-wide policy of terminating or forcing out older employees to make way for younger replacements. Mr. Cox sought to depose Mr. Hunt and certain other Chiefs officials and later to subpoena Mr. Hunt for trial. The Chiefs opposed the depositions on the basis that Mr. Cox had only pleaded an individual discrimination claim, not a pattern-or-practice claim of discrimination in the workplace. Mr. Cox argued that the sought-after discovery would be relevant to his individual claim as well as to any claim of pattern-or-practice discrimination. The trial court allowed other depositions but quashed the deposition notice of Mr. Hunt; later, the trial court also quashed a subpoena issued to Mr. Hunt to testify at trial.

As evidence of the company policy in action, however, Mr. Cox also presented testimony that another employee, then age 60, was told by the Chiefs' president that he would have been considered for the position of chief financial officer "if [he] weren't so old." Further testimony was presented to the jury that, at a directors meeting in January 2011 that Mr. Donovan attended, another high-level manager stated that "[t]hese old people [employees] around here think they're entitled to everything."

In pretrial proceedings, the Chiefs filed a number of motions in limine seeking the exclusion of additional evidence. As is relevant to this appeal, the Chiefs filed a motion to exclude evidence of 17 "non-similarly situated former employees" whom the Chiefs anticipated Mr. Cox would call to testify as to the circumstances surrounding their separations from the Chiefs organization.² The Chiefs again raised the "pattern-or-practice" argument, asserting that because Mr. Cox alleged only a single act of discrimination, and not a pattern or practice of discrimination, he could not offer the testimony of other former employees to show such a pattern or practice. The Chiefs also argued that these employees were not similarly situated to Mr. Cox, rendering their testimony irrelevant and prejudicial. The trial court granted the Chiefs' motion without explanation. On the first day of trial, the court clarified its ruling:

My order granting that motion in limine pertains to you calling those 17 witnesses to testify that they were terminated, they have a case of discrimination pending against the Chiefs, and I suppose they're over forty. If you want to call these witnesses for some other purpose, that is outside my ruling on this motion in limine.

....

But I hope I made myself clear as it pertains to my ruling on the Defendant's Motion in Limine as to those 17 witnesses: nothing about the fact that they've been terminated, they have a lawsuit, or that they're over forty.

In other words, Mr. Cox was permitted to call these witnesses to present other evidence, but they could not testify as to whether they too had filed age discrimination suits against the Chiefs,³ or to any of the circumstances surrounding their terminations from employment with the Chiefs, or even how old they were. The latter prohibitions also precluded plaintiff from offering any testimony as to the ages of employees hired to replace these former employees. Over the course of the trial, the court expanded its exclusionary ruling to at least three additional witnesses not named in the Chiefs' motion in limine. Those witnesses, likewise, were not permitted to testify before the jury as to their ages or as to the fact of and the circumstances surrounding their terminations or resignations from employment with the Chiefs, nor could they discuss the ages of the employees who replaced them.

Despite the trial court's declaration that "I don't think it's necessary that you make an offer of proof for each and every one of these 17 witnesses," Mr. Cox did make an offer of proof for at least 11 witnesses—eight of the 17 named in the motion in limine and the three additional witnesses to whom the court extended its ruling. Additionally, Scott Pioli testified during an offer of proof as to two more of the 17 named witnesses. Most of these offers of proof took the form of direct questioning and, in some cases, cross-examination outside the presence of the...