Murray v. Sw. Mo. Drug Task Force, SD 30283.

Citation335 S.W.3d 566
Decision Date03 March 2011
Docket NumberNo. SD 30283.,SD 30283.
PartiesTina MURRAY, Appellant,v.SOUTHWEST MISSOURI DRUG TASK FORCE, Barry County, Missouri, and Sheriff Mick Epperly, Respondents.
CourtCourt of Appeal of Missouri (US)


Supreme Court Denied March 25, 2011.

Application for Transfer Denied

April 26, 2011.

John O. Russo, Mountain Home, AR, Wesley A. Barnum, Joplin, MO, for Appellant.M. Douglas Harpool, Jennifer A. Mueller, Springfield, MO, for Respondent.PER CURIAM.

Appellant unsuccessfully sued her employers (collectively Respondents) for sexual discrimination and retaliation in violation of the Missouri Human Rights Act (“MHRA” or Act).1 She raises six claims of error on evidentiary issues and a seventh point involving court costs.


Viewing the record favorably to the result, and without detailing the facts at length,2 Appellant was hired in 2001 as a full-time officer with the Southwest Missouri Drug Task Force, a multi-jurisdictional law enforcement group. Issues of trust developed between Appellant and male Task Force agents. Appellant received a written reprimand in January 2004 for an ethics violation, interfering with cases or agencies, and a failure to work with and share information with other agents. Appellant could have appealed the reprimand but did not do so.

Despite admonitions for agents to get along and work together, Appellant “went her own separate way” and did not work with other agents. She viewed requests to work more closely with others as efforts to get her in trouble, but complained that she did not feel like part of the team when she had more freedom at work. Her failure to communicate with fellow agents resulted in duplicative investigations. Her Task Force employment was terminated in February 2006 due to ongoing problems.

Appellant sued Respondents for sexual discrimination and retaliation. 3 At trial, Appellant made various offers of proof about alleged misconduct and discipline vel non of male Task Force agents.4 After a jury verdict for Respondents, the court entered a September 2009 judgment taxing court costs of $4,647.90 against Appellant, to which she objected. Six months later, after the case was on appeal, the trial court entered an order reducing Appellant's obligation for costs by $2,815.08.

Points I, II, III, IV, & V—Exclusion of Evidence

Plaintiff's first five points and supporting arguments track one another nearly verbatim, so we address them together. Each point charges that the trial court abused its discretion by excluding a male witness's testimony as to alleged misconduct and a “lack of discipline” regarding one or more male agents “similarly-situated” to Appellant, “since the exclusion was in violation of Missouri law and materially affected the outcome of the case.”

We are hindered by Appellant's non-compliance with Rule 84.04.5 She challenges the exclusion of evidence, but does not refer us to those rulings or orders in the record, nor have we found them in the incomplete legal file or poorly-indexed transcript.6 Appellant also is not very clear as to the legal reasons for reversible error or why, in the context of the case, the legal reasons support the claim of reversible error. See Rule 84.04(d)(1). We justifiably might deem these points abandoned. See, e.g., Lane v. Elliott, 102 S.W.3d 53, 55 (Mo.App.2003). Because we deduce, however, that Appellant believes the trial court misread or erroneously relied on Buchheit, Inc. v. Missouri Com'n on Human Rights, 215 S.W.3d 268 (Mo.App.2007), we will proceed on that basis.

Appellant's trial theory was that Respondents' stated reasons for termination were pretextual 7 in that she was treated differently than similarly situated males. She readily concedes, quoting from Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 853 (8th Cir.2005), that the “similarly situated” standard for pretext purposes “is a rigorous one” requiring proof that employees “were similarly situated in all relevant aspects” and the misconduct of more leniently disciplined employees was of “comparable seriousness.”

Appellant disagrees, however, with the middle two sentences from this paragraph of Buchheit, 215 S.W.3d at 280–81:

Pretext may be demonstrated by showing that the complainant ‘was treated less favorably than similarly-situated employees outside of [her] protected group.’ Reed v. Rolla 31 Pub. Sch. Dist., 374 F.Supp.2d 787, 805 (E.D.Mo.2005) (citation omitted). Employees in discriminatory discipline cases are similarly situated “only when they are involved in or accused of the same offense and are disciplined in different ways.” Id. (internal quotation marks and citation omitted). “Specifically, the individuals used for comparison must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.” EEOC v. Kohler Co., 335 F.3d 766, 776 (8th Cir.2003). [T]he misconduct of more leniently disciplined employees must be of ‘comparable seriousness.’ Id. (citations omitted).

Appellant suggests that the trial court followed Buchheit and erred in doing so. She argues that co-employee misconduct can differ and still be relevant, citing these Eighth Circuit comments from Lynn v. Deaconess Medical Center–West Campus, 160 F.3d 484, 488 (8th Cir.1998):

To require that employees always have to engage in the exact same offense as a prerequisite for finding them similarly situated would result in a scenario where evidence of favorable treatment of an employee who has committed a different but more serious, perhaps even criminal offense, could never be relevant to prove discrimination.

Yet to consider Lynn's observation for argument's sake, or whether it represents “a less stringent standard” than used by other courts,8 begs the question because we do not know that the trial court thought any differently. As previously noted, we have not been cited to the rulings of record excluding such evidence, nor have we found such rulings, or any transcript reference to Buchheit, or any indication that the trial court was following that case to the exclusion of Lynn or any other authority.

For these and other reasons, the question for us is not the boundary (if any) between Buchheit and Lynn, but whether the trial court abused its discretion by excluding misconduct evidence. Our guidance on that issue is very well established:

The admission or exclusion of evidence lies within the sound discretion of the trial court and will not be overturned unless the court abused its discretion. The burden of establishing an abuse of discretion is on the appellant. In determining whether the trial court abused its discretion in excluding evidence, the focus is not on whether the evidence was admissible but on whether the trial court abused its discretion in excluding the evidence. The trial court's ruling will be upheld when any recognizable ground exists on which the trial court could have rejected the evidence. We presume such discretionary rulings are correct, and an abuse of discretion will not be found unless the trial court's ruling is clearly against the logic of the circumstances then before the trial court and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful deliberate consideration.

Arrington v. Goodrich Quality Theaters, Inc., 266 S.W.3d 856, 864 (Mo.App.2008) (internal citations and quotation marks omitted). If reasonable minds could differ about an evidentiary ruling, we cannot find an abuse of discretion. Strong v. American Cyanamid Co., 261 S.W.3d 493, 519 (Mo.App.2007).

Despite the record's shortcomings, the trial court's deliberate and thoughtful consideration of these evidentiary issues is more than evident. To her credit, Appellant never denies that her arguments were carefully and repeatedly considered below. That reasonable minds might differ on the result does not compel relief. The challenged rulings, as we can discern them, are not unreasonable, arbitrary, or illogical, and certainly do not shock one's sense of justice. Appellant has not shown that the trial court abused its broad discretion. We deny Points I through V.

Point VI—Cuckovic Deposition

Point VI's conclusory assertions that Debra Cuckovic's deposition “was procedurally defective and its admittance into evidence was improper under the Missouri Rules of Civil Procedure and Missouri law” do not properly state “the legal reasons for the appellant's claim of reversible error” or explain “why, in the context of the case, those legal reasons support the claim of reversible error.” See Rule 84.04(d)(1)(B) & (C); Roberson v. KMR Const., LLC, 208 S.W.3d 320, 322–23 (Mo.App.2006). Moreover, few or none of the documents in question are properly before us. 9

Even if this point were preserved, it would not merit relief given a trial court's broad discretion in ruling on the use of depositions. Keith v. Burlington Northern R. Co., 889 S.W.2d 911, 922 (Mo.App.1994). The court gave considerable attention to both general and line-by-line objections to this deposition. No error or prejudice lies in Appellant's varied complaints about the form or manner of the deposition notice, proof of Cuckovic's identity or competency, whether any of her testimony was hearsay, etc. Point denied.

Point VII—Court Costs

Appellant disputes the timeliness of a March 2010 order which reduced her liability for court costs, but was entered more than 90 days after the last timely after-trial motion. See City of Greenwood v. Martin Marietta Materials, Inc., 311 S.W.3d 258, 266–67 (Mo.App.2010); Rule 81.05.

Appellate review “is for prejudice, not mere error.” Heritage Warranty Ins., RRG, Inc. v. Swiney, 244 S.W.3d 290, 294 (Mo.App.2008). Even if Appellant's point is well-taken,10 the result favored her and is not opposed by Respondents, who ask us to uphold the order. Point denied.



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