Holmes v. Kan. City Pub. Sch. Dist.

• Decision Date: 11 December 2018
• Docket Number: WD 80763
• Citation: 571 S.W.3d 602
• Parties: Danny HOLMES and Paul White, Respondents, v. KANSAS CITY PUBLIC SCHOOL DISTRICT, Appellant.
• Court: Missouri Court of Appeals

571 S.W.3d 602

Danny HOLMES and Paul White, Respondents,

v.KANSAS CITY PUBLIC SCHOOL DISTRICT, Appellant.

WD 80763

Missouri Court of Appeals, Western District.

OPINION FILED: DECEMBER 11, 2018

Motion for Rehearing and/or Transfer to Supreme Court Denied January 29, 2019

Application for Transfer Denied April 30, 2019

Marie Lynn Gockel, Independence, MO, Counsel for Respondents.

Stephen J Moore, Mission Woods, KS, Counsel for Appellant.

Before Division Three: Gary D. Witt, Presiding Judge, Cynthia L. Martin, Judge, Anthony Rex Gabbert, Judge

Anthony Rex Gabbert, Judge

Introduction

The Kansas City Public School District (KCPS) appeals from a judgment entered upon a jury verdict finding in favor of Danny Holmes and Paul White (Plaintiffs collectively) on their claims alleging retaliation under the Missouri Human Rights Act (MHRA).¹ KCPS asserts three points on appeal. KCPS contends the circuit court, 1) erred in denying KCPS’s motions for directed verdict and judgment notwithstanding the verdict, arguing that most of KCPS’s alleged retaliatory acts occurred before Plaintiffs filed complaints of discrimination, and the remaining alleged retaliatory acts were not supported by substantial evidence, 2) erred in denying KCPS’s motion for new trial for instructional error, arguing that the verdict directors on Plaintiffs' retaliation claims included a disjunctive list of alleged retaliatory acts, some or all of which were non-actionable events occurring before Plaintiffs engaged in protected activity or were not supported by substantial evidence, and 3) erred in awarding attorneys' fees to Plaintiffs in the requested amount because the factors for determining an appropriate fee award did not support Plaintiffs' request. We affirm.

Background and Procedural Information

In the light most favorable to the jury verdicts, the evidence at trial showed:

KCPS employed Danny Holmes beginning in November 2013; he was forty-six years old at the time of trial. KCPS employed Paul White beginning in 1994; he was fifty years old at the time of trial. Both men were hired as patrol officers in the security department of KCPS and worked the midnight shift, also referred to as "watch one" or "dog watch."

In 2014, KCPS had approximately sixty officers on staff. Major Marcus Harris was the Security Director responsible for operating KCPS’s security department. Sergeant Robert Vick was a first line patrol supervisor and the direct supervisor of Holmes and White.

In 2013, Sergeant Kevin LaBranche was assigned by Major Harris to the patrol division of the security department. Beginning in 2013, White became concerned with Sergeant LaBranche’s behavior toward him. At that time, White had worked for KCPS nineteen years. Although LaBranche was the day shift supervisor, not White’s direct supervisor, he was present when White’s shifts ended. White believed LaBranche was singling him out daily and unjustifiably scrutinizing White’s log sheets, while not subjecting others to such scrutiny. In June 2013, White initiated a meeting with Major Harris who had an open door policy for reporting complaints. White expressed concern he was being targeted because of his age and was concerned he could lose his job. Harris reassured White that Harris had heard nothing to that effect and told him not to worry, White would not lose his job.

One year later, White received a low rating on the "Teamwork" portion of a June 2014 performance evaluation, in part for having made the complaint to Harris. Sergeant Vick stated in the evaluation: "Officer White had issues with his work activities being scrutinized by another first line supervisor." Sergeant Vick confirmed at trial that White made this complaint after Sergeant LaBranche suggested to Major Harris that LeBranche be allowed to review the activity logs of outgoing officers to "see where they've been and what they had done, if their reports were complete and proper."

Also justifying White’s low "teamwork" rating was that "Officer White also had issues with working mandatory overtime during the last two weeks of school to comply with a mandate issued by the superintendent to provide extra security at the high schools." This comment stemmed from White complaining to a Union representative in April 2014 that overtime was being improperly assigned. Fellow officer, Holmes, had reported to Sergeant Vick the same concerns; dog shift officers were required to perform mandatory overtime and day shift was exempt. When Holmes’s concerns were not taken seriously, Holmes and other officers, including White, spoke with the Union. Immediately thereafter, Sergeant Vick advised them that anyone complaining to the Union would "be severely dealt with."²

The mandatory overtime continued until the end of the school year. Hamburg, a younger officer, received the same mandate for the shift ending just before Plaintiffs' shift (evening shift). Hamburg testified that when he complained, the rule changed the following day to allow voluntary assignments prior to mandatory overtime being enforced.

In August 2014, White was interviewed regarding a formal age discrimination complaint Holmes filed with the human resources department of KCPS. White reported in that interview that the first day he was held over for mandatory overtime, Holmes told him that Sergeant LaBranche apologized for holding Holmes over, but that was the only way they could get White to work due to White’s seniority, and they were "trying to get rid of the old regime." White reported a belief that officers were being harassed because of their age and seniority; he believed the "older regime" was being terminated. He reported that he "had witnessed ... how the younger officers were getting better treated."

LaBranche was also the sergeant Holmes answered to when he completed his shifts. Prior to mandatory overtime starting, Holmes testified that his first meeting with LaBranche regarded a report Holmes completed during a shift he worked with White. During that shift, Holmes and White assisted with getting three young males out of a vacant school that was considered a dangerous building. After accomplishing this, White made a telephone notification to Sergeant Vick. Holmes told White that he would complete the written report because Holmes was more familiar with those types of reports and already knew the names of several of the assisting Kansas City police officers. When Holmes gave the report to LaBranche, LaBranche told him, "Don't let the older guys take advantage of you" and wanted to know why White did not complete the report; Holmes told LaBranche that he volunteered. LaBranche told Holmes, "Well, we're trying to get rid of the old regime; don't let them take advantage of you."

In May 2014, Holmes reported concerns to KCPS’s Human Relations Department; it can be inferred that these concerns included allegations of age discrimination because the Employee and Labor Relations Specialist for KCPS, Marilyn Overton, mailed Holmes a "Discrimination-Harassment Complaint Form" on May 29, 2014. The completed form included allegations of age discrimination.

Like White, on June 13, 2014, Holmes received a low rating in the area of "teamwork" on his performance evaluation completed by Sergeant Vick. Sergeant Vick supported the low rating by stating Holmes "became upset during the last two weeks of school when the superintendent issued a mandate requiring extra security personnel in the high schools. He was required to work overtime as a result of the mandate along with other officers as well as management." This was the only low rating Holmes received.

Holmes returned his completed "Discrimination-Harassment Complaint Form" on July 31, 2014. Therein he alleged that supervisors were scheduling overtime in a discriminatory pattern based on age. He alleged that supervisors attempted to sow discontent between the shifts and bully and harass members of the union. Officers were told that anyone going to the Union with their complaints would be "dealt with" and "terminated." Among other complaints, Holmes reported that Sergeant Vick told him he had to work overtime because the "old regime knew the policy." Officers were told they would be forced to work over every day and there was nothing they could do about it. Holmes alleged that the conduct was targeted only against the older members of staff and that the supervisors had made repeated comments to Holmes and others that they were "getting rid of the old guard." Holmes asked KCPS to investigate, train supervisors on the proper policy regarding mandatory overtime, and instruct regarding the illegality of implementing action based on age or seniority.

KCPS’s Employee and Labor Relations Specialist, Overton, investigated Holmes’s formal complaint by interviewing LaBranche and Vick as the persons allegedly responsible for the discrimination, as well as witnesses identified by Holmes, including White. When interviewed by Overton, Holmes repeated the concerns raised in his formal complaint and gave additional examples supporting his allegations. Holmes reported that in his work evaluation, he was given a low score for "teamwork" and believed it was because he complained about the overtime issues. Holmes stated that an employee demoted from a supervisory position told him that supervisors would discuss terminating tenured employees during meetings. When asked about this, Sergeant LaBranche stated that during supervisory meetings the work performance of veteran officers would sometimes be discussed as well as "how the older officers don't like to change." When White was interviewed, he affirmed his belief that officers were being harassed because of age and seniority.

Officer William Hamburg was interviewed by Overton. He told Overton that Sergeant Vick told him to be careful who he was associating with. He believed Vick referenced the older officers who did not want to "convert to the new ways of doing things."

Upon completing her investigation Overton concluded...