Howard v. City of Kan. City

• Citation: 332 S.W.3d 772,111 Fair Empl.Prac.Cas. (BNA) 753
• Decision Date: 25 January 2011
• Docket Number: No. SC 90762.,SC 90762.
• Parties: Melissa HOWARD, Respondent,v.CITY OF KANSAS CITY, Missouri, Appellant.
• Court: Missouri Supreme Court

332 S.W.3d 772
111 Fair Empl.Prac.Cas. (BNA) 753

Melissa HOWARD, Respondent,
v.
CITY OF KANSAS CITY, Missouri, Appellant.

No. SC 90762.

Supreme Court of Missouri, En Banc.

Jan. 25, 2011.Rehearing Denied March 1, 2011.

[332 S.W.3d 776]

Saskia C.M. Jacobse, Galen Beaufort, Jamie L. Cook, City Attorney's Office, Kansas City, for the City.Edward D. “Chip” Robertson Jr., Mary D. Winter, Anthony L. DeWitt of Bartimus, Frickleton, Robertson & Gorny PC, Jefferson City, Mark A. Jess, Christie S. Jess, John J. Ziegelmeyer III, Law Offices of Mark A. Jess LLC, Kansas City, for Howard.ZEL M. FISCHER, Judge.

I. INTRODUCTION

The City of Kansas City (“the City”) appeals a judgment based on a jury verdict awarding compensatory and punitive damages to Melissa Howard for discrimination by the city council (“the council”) when it rejected a panel of three Caucasian women nominated for the municipal division of the circuit court because of their race.

The judgment is affirmed.

II. FACTS AND PROCEDURAL HISTORY

On August 31, 2006, Judge Marcia Walsh retired as a judge of the Kansas City municipal division.¹ The selection of judges for the Kansas City municipal division is mandated by the voter-approved Kansas City Charter (the “charter”). The charter establishes a five-member Municipal Judicial Nominating Commission (the “commission”),² which interviews applicants and submits a panel of three qualified persons as nominees for any judicial vacancy to the mayor and city council. The council then makes the final appointment decision from the panel of three by a majority vote. Specifically, the charter provides that “[t]he Council will act to appoint one of the persons nominated by the Commission within sixty days of receipt of the panel from the Commission unless the Council chooses to not fill a vacancy.” Charter of Kansas City, Missouri § 310 (2006).

Upon Walsh's retirement, the plaintiff, Melissa Howard, applied for the position along with 12 other applicants. From that pool of applicants, the commission nominated three Caucasian women to fill the vacancy. One of those three nominees was Howard. This panel was submitted to the council October 30, 2006. At its meeting November 9, 2006, the council rejected the panel by a 7–6 vote, despite acknowledging that all three panelists were well-qualified

[332 S.W.3d 777]

for the judgeship. On December 14, 2006, the council met again to consider the panel and again voted to refuse to select one of the panelists for the vacancy.³ When the panel expired after 60 days,⁴ the commission re-nominated the same three women, but the council again declined to appoint any of the three nominees and again allowed the panel to expire without selecting a panelist to fill the municipal judge vacancy.

Several council members expressed dissatisfaction with the panel because it did not include any minorities. Multiple statements made during the city council meetings, which were open to the public, addressed concerns that the all-Caucasian female panel lacked diversity. Specifically, the following statements were made at the council meetings:

“There is no diversity whatsoever ... within the panel of contestants who have been referred to us.”

“I feel as though at this point I'm given ... a very narrow opportunity for selection because I only have a sampling of one demographic of our city and that is Caucasian females.”

“[T]he fact remains this panel has no diversity whatsoever ... I move that we reject ... this panel back to the committee and not make a selection at this time.”

“For me there is an issue of equity related to racial mix, when you have thirteen candidates and you have six of color and none appear on the panel, it's hard for me to believe that you have six of those candidates of color none of whom would qualify to be in the top three ... I just don't believe that is the case.”

“I have a hunch that if this [panel] is returned to the commission that there is a message there.”

“All one need do is look at the numbers, race matters in America, it matters in the State of Missouri and it matters in the city of Kansas City.”

“We need to send this panel back and show that this city, of Kansas City, is fair in its diversity practices” because “this [panel] does not reflect the diversity of Kansas City.”

“When we talk about diversity, do we include gender?”

“If there were three qualified black candidates on this panel, I would not be voting to reject the panel because they ... did not represent the exact demographics of this city” and “this discussion is absolutely ridiculous ... we have three qualified candidates here ... we ought to vote for [one of them].”

“This has nothing to do with your [the panelists'] qualifications ... I think you are certainly qualified.”

“We continue to talk about divisiveness ... in terms of race relations ... but the divisiveness took place when the panel was presented.”

“It ha[s] nothing to do with their credentials; I think all of them are highly qualified.”

“We have been in line for a long time ... a lot of people have been in line ... just to be represented.”

[332 S.W.3d 778]

“Diversity ... being an African–American in America it's a whole lot different than you can ever imagine and so you really can't say I understand where you are.”

“It's not about these women. Each of these women have gone to college, earned degrees and made a very good life for themselves and have good reputations.”

“I think it's a shame ... [and] it may even be illegal for us to sit here and not have the courage to [s]elect a judge today.”

“These three women have risen up in a field that is male dominated ... for us to dismiss the diversity they bring to the table is unfortunate ... so I'm disappointed that we don't feel you're [the panel] minority enough—that you're not diverse enough.”

Several council members also testified at trial as to the influence that the panelists' race had on the council's decision to reject the panel. One councilman agreed that race “was involved” in the council's refusal to consider the applicants selected by the commission, and another councilman testified that, had the commission placed a minority on the panel of final applicants, he would have voted to consider the panel. Mayor Kay Barnes similarly testified that “race was a factor in [her] decision to reject the panel” and she likely would have voted to select a judge had an African–American candidate been on the panel, despite acknowledging her lack of knowledge as to the commission's interview and selection process.

Howard subsequently brought suit against the City under the Missouri Human Rights Act (“the MHRA”).⁵ Her petition alleged that the City engaged in an unlawful employment practice during the municipal judge appointment process by refusing to even consider hiring her because of her race.

At trial, Howard testified that she suffered emotional distress due to the actions and statements of the council, many of which were distributed throughout the media, discounting her nomination as a result of her race. She explained that her distress manifested itself in physical ways, as she suffered sudden weight loss, inability to sleep, and would “still get sick to [her] stomach.” Howard also testified about her ongoing concern and distress about her career in the future. Her husband further testified that because of the public nature of the council members' statements and because of Howard's position as a county prosecutor, the stress she felt was ongoing and occurred on a nearly daily basis. He also expressed that he had observed the impact this ordeal had on her firsthand, explaining that she had lost weight, could not sleep normally and was uncharacteristically emotional.

The jury in the Platte County circuit court found in favor of Howard and awarded her a total of $633,333 in compensatory damages and $1.5 million in punitive damages. The circuit court entered a judgment awarding Howard's damages as well as attorneys fees and prejudgment interest. The City brings seven points on appeal.

III. ANALYSIS A. Applicability of the MHRA

The City argues that the trial court erred in not directing a verdict for the City because the MHRA does not apply to the

[332 S.W.3d 779]

decision made by the city council. It asserts that municipal court judges are not employees under the MHRA and, therefore, the decision to reject the three candidates was not an employment decision. The City presents this issue as a matter of law.

The case was submitted to the jury on an instruction ⁶ that read:

Your verdict must be for plaintiff Howard and against defendant City of Kansas City if you believe:

First, defendant limited, segregated or classified plaintiff in a way that deprived or tended to deprive her of employment opportunities with defendant as a municipal judge, and

Second, race was a contributing factor in such limitation, segregation or classification, and

Third, as a direct result of such conduct, plaintiff sustained damages.

The jury is presumed to have found that plaintiff was deprived of “employment opportunities” pursuant to the instruction given. The City does not contest submissibility, but only the proper scope and application of the MHRA. Therefore, the principal issue for this Court is whether a municipal judge, as defined by the city charter, is an “employee” and, if so, whether Howard was an employment applicant under the protection of the MHRA.

“The primary rule of statutory construction is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider words used in the statute in their plain and ordinary meaning.” Farmers' & Laborers' Co-op Ins. Ass'n v. Director of Revenue, 742 S.W.2d 141, 145 (Mo. banc 1987).

1. The MHRA

The MHRA protects important societal interests by prohibiting unlawful employment practices on the basis of race, color, religion, national original, sex, ancestry, age, or disability. State ex rel. Dean v. Cunningham, 182 S.W.3d 561...