Ferguson v. Curators of Lincoln Univ.

• Decision Date: 31 May 2016
• Docket Number: WD 78752,WD 78784,Consolidated with WD 78777
• Citation: 498 S.W.3d 481
• Parties: Kenneth Ferguson, Appellant–Respondent, v. Curators of Lincoln University, in their official Capacities, a/k/a Lincoln University, Respondent–Appellant.
• Court: Missouri Court of Appeals

498 S.W.3d 481

Kenneth Ferguson, Appellant–Respondent,

v.Curators of Lincoln University, in their official Capacities, a/k/a Lincoln University, Respondent–Appellant.

WD 78752

Consolidated with WD 78777

WD 78784

Missouri Court of Appeals, Western District.

OPINION FILED: May 31, 2016

Motion for Rehearing and/or Transfer to Supreme Court Denied July 5, 2016.

Application for Transfer Denied September 20, 2016

Michael G. Berry, Marshall V. Wilson, and Theodore L. Lynch, Jefferson City, MO, Attorneys for Appellant–Respondent.

Kent L. Brown and Judith Anne Willis, Jefferson City, MO, Attorneys for Respondent–Appellant.

Before Division Four: Alok Ahuja, Chief Judge, and Mark D. Pfeiffer and Karen King Mitchell, Judges

Karen King Mitchell

, Judge

The Board of Curators for Lincoln University (Lincoln) appeals the trial court's judgment, entered upon a jury's verdict, finding Lincoln liable for age discrimination under the Missouri Human Rights Act (MHRA) against former Lincoln employee, Kenneth Ferguson. Lincoln brings three points on appeal, arguing error in the admission of evidence, lack of sufficient evidence to make a submissible case, and error in the award of attorneys' fees. Ferguson cross-appeals, arguing that the trial court failed to consider additional time required to respond to post-trial motions in calculating the amount of attorneys' fees to award. We affirm.

Background¹

Ferguson started working for Lincoln in 1977; he began as the Assistant Director of Civil Activities. Over the years, he worked in various positions, including Director of Student Activities, Coordinator of Men, Director of Scruggs University Center (Lincoln's student union), and Director of Student Life. In 2009, then-University President Carolyn Mahoney created a new position, Director of Governmental and Community Relations, and appointed Ferguson to the job.

On January 19, 2012, Lincoln's Chief Financial Officer advised Dr. Mahoney that the General Assembly was anticipating a 12.5% reduction in Lincoln's budget allocation for fiscal year 2013. Despite the anticipated budget cut, Lincoln still planned to increase salaries across the board by 2%. In mid-February of 2012, the CFO sent Dr. Mahoney a second message, indicating that the anticipated budget cut was reduced to 8%. On April 17, 2012, Ferguson's direct supervisor, Curtis Creagh, sent Dr. Mahoney an email regarding possible position eliminations for the 2013 budget in order to address the anticipated budget cut. In the email, Creagh stated:

I had two positions that were pending resolution: Tamala Norfus & Ken Ferguson. Tamala is not yet eligible to retire; I want to keep this position until she is. Ken Ferguson is eligible to retire; I can give up this position and associated departmental expenses, if necessary.

In June 2012, when the Governor signed the budget, Lincoln suffered only a 1% cut in its funding from the State.

Nevertheless, on July 16, 2012, Creagh sent a memo to Dr. Mahoney, recommending Ferguson's termination and stating, “The reason for the separation is insufficient budget to fund the office of Governmental Affairs.”² The same day, Lincoln issued a termination letter to Ferguson, advising him that “Due to budget constraints at Lincoln University, a decision has been made to eliminate the position of Director of Governmental and Community Relations. This letter is official notification that your employment at Lincoln University will terminate on August 16, 2012.”³

Ferguson appealed the decision, claiming that he had been terminated because of his age, and a grievance hearing was held before a review panel consisting of four individuals, one of whom was Dr. K.B. Paul. During the hearing, Dr. Paul made the following comments:

Dr. Paul: You know, I see this thing from a different angle though.

If you were put in—in the position that Mr. Creagh is or where Dr. Mahoney is and you are faced with a situation that you had to let a couple of people go.

I—I thought that, you know, it was very nice of them that they kind of went through the roster, that who can we—it isn't—whenever you let somebody go, it is never an easy decision. It is always very hard. It doesn't matter who that person is.

...

But, if I have a choice between somebody who has served his time here. He has earned his full retirement. So this is one case.

Another case, that maybe somebody just young came here, started a job, raising a young family, and if I let that person go, if I['m] faced with the choice.

This person on one hand, this person can go on retirement and can still get the full salary, full benefits, everything.

On the other hand this individual, if I let him go or (inaudible) go, then this person is not ready to retire and this person is going to be faced with a lot of hardship.

So I see this thing from a different point of view. I see where it is going to affect the individual less. Now with all of that.

And I thought that—that was very humane on their part, that if I am faced to the decision that I have to let one person go, do I pick this person? Do I pick that person? Now, based on everything else being equal.

Following the hearing, the panel issued a report and findings with a recommendation to uphold the termination. Dr. Mahoney sent Ferguson a letter stating:

This letter comes to notify you that the internal grievance panel has completed its investigation into your allegations. For your information, I have attached a copy of the Internal Grievance Panel's report.

I have reviewed this matter carefully and I accept the findings and recommendations of the sub-committee. No further action will be taken.

This completes the University's internal grievance process on the matter.

Ferguson filed a charge of discrimination with the Missouri Commission on Human Rights (MCHR), claiming that he was terminated as a result of age discrimination. MCHR subsequently issued a right-to-sue letter, and Ferguson filed a petition against Lincoln alleging violations of both the MHRA and the Age Discrimination in Employment Act (ADEA). Ferguson subsequently dismissed the ADEA claim and proceeded solely under the MHRA.

At trial, Lincoln objected to the admission of Dr. Paul's statements during the internal grievance hearing, arguing that they were irrelevant because Dr. Paul was not a decisionmaker and spoke only for himself—not the University. The court overruled the objection. The jury ultimately found Lincoln liable for age discrimination under the MHRA.

Following trial, Lincoln filed a motion for new trial, arguing (among other claims) that the evidence was insufficient to submit the case to the jury (on the ground that retirement eligibility was not a proxy for age) and that Dr. Paul's statements should not have been admitted into evidence. Ferguson filed a motion for attorneys' fees and costs, requesting a total of $49,107.50 in attorneys' fees, based upon a rate of $325 per hour. Ferguson also filed a response to Lincoln's motion for new trial. After filing the response, Ferguson filed a supplemental affidavit, seeking $14,040 in additional attorneys' fees for the time spent responding to the motion for new trial.

On June 16, 2015, the trial court entered an order denying Lincoln's motion for new trial and awarding Ferguson attorneys' fees in the amount of $49,107.50, the amount of the initial request. One week later, Ferguson filed a motion to amend the order awarding attorneys' fees, noting that the amount awarded reflected the original request but not the additional amount requested in the supplemental affidavit for work on the post-trial matters. The motion to amend included a proposed judgment altering the attorneys' fees award to $63,147.50, which the trial court signed the next day.

Lincoln appeals and Ferguson cross-appeals.

Analysis

Lincoln brings three points on appeal: (1) the trial court erred in admitting Dr. Paul's statements because they were irrelevant; (2) the evidence was insufficient to submit the case to the jury in that there was no evidence that age played a role in the decision to terminate Ferguson; and (3) the award of attorneys' fees was excessive insofar as $325 per hour exceeded the prevailing rate and Ferguson obtained only limited success. Ferguson cross-appeals, arguing that the court's June 16, 2015 award of attorney's fees failed to include additional attorneys' fees incurred in responding to Lincoln's post-trial motions. We affirm.

A. The court committed no error in admitting Dr. Paul's statements.

“The trial court has broad discretion in determining whether to admit or exclude evidence.” State v. Johnson, 477 S.W.3d 218, 226 (Mo.App.W.D. 2015)

(quoting State v.

Joyner, 458 S.W.3d 875, 880 (Mo.App.W.D. 2015) ). “Thus, we review the trial court's decisions regarding the admission of evidence for an abuse of discretion.” Id. (quoting Joyner, 458 S.W.3d at 880 ). “The trial court abuses its discretion if its ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Id. (quoting Joyner, 458 S.W.3d at 880 ).

Here, Lincoln objected to the admission of Dr. Paul's statements made during the internal grievance hearing on the ground that they were irrelevant in that Dr. Paul was not a decisionmaker; thus, his statements neither refuted nor proved that Ferguson's age was a contributing factor in his termination. We disagree.

“Employment discrimination cases ... ‘often depend on inferences rather than on direct evidence ... because employers are shrewd enough not to leave a trail of direct evidence.’ ” Cox v. Kansas City Chiefs Football Club, Inc., 473 S.W.3d 107, 116 (Mo. banc 2015)

(quoting Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 818, 818 n. 4 (Mo. banc 2007) ). “Therefore, individual plaintiffs claiming discriminatory employment action on the basis of age, or any other protected classification, generally must rely on circumstantial evidence.” Id.

“As with other forms of evidence,...