Wilson v. City of Kan. City

• Decision Date: 12 May 2020
• Docket Number: No. SC 97712,SC 97712
• Citation: 598 S.W.3d 888
• Parties: J.L. WILSON, Respondent, v. CITY OF KANSAS CITY, Missouri, Appellant.
• Court: Missouri Supreme Court

598 S.W.3d 888

J.L. WILSON, Respondent,

v.CITY OF KANSAS CITY, Missouri, Appellant.

No. SC 97712

Supreme Court of Missouri, en banc.

Opinion issued May 12, 2020

Kansas City was represented by Timothy R. Ertz of the city attorney's office in Kansas City, (816) 513-3154.

Wilson was represented by Alexander Edelman and Katherine Myers of Edelman, Liesen & Myers LLP in Kansas City, (816) 607-1529; and Kevin Baldwin of Baldwin & Vernon in Liberty, (816) 842-1102.

Patricia Breckenridge, Judge

The city of Kansas City ("the City") appeals a judgment in favor of James Wilson on his claim of disability discrimination in violation of the Missouri Human Rights Act (MHRA). The City challenges the circuit court's admission of evidence of Mr. Wilson's permanent partial disability rating from his prior workers’ compensation claim and its award of litigation expenses to Mr. Wilson. The City's claim that evidence of Mr. Wilson's disability rating was erroneously admitted was not preserved; therefore, no relief on appeal is warranted. The circuit court did err, however, in awarding Mr. Wilson litigation expenses because no statute allows a circuit court to award as "litigation expenses" the expenses incurred by counsel for the prevailing party in an MHRA case. Accordingly, the portion of the judgment awarding litigation expenses is reversed, and the cause is remanded. On remand, the circuit court may determine which expenses incurred by Mr. Wilson's attorneys, if any, are reasonable out-of-pocket expenses that may be awarded as attorney fees under section 213.111.2.¹ The circuit court shall, on remand, award Mr. Wilson's attorney fees and costs on appeal.

Factual and Procedural Background

From 2011 to 2013, the City employed Mr. Wilson as an equipment operator in the solid waste division of its public works department. While driving a trash truck in 2011, Mr. Wilson suffered an injury to his elbow. The City selected Dr. Brian Divelbiss to treat Mr. Wilson, and Dr. Divelbiss ultimately diagnosed him with epicondylitis . After non-invasive treatment options failed, Mr. Wilson had surgery on his elbow in July 2012.

Mr. Wilson was released to return to work after his surgery, but the pain in his elbow recurred. Mr. Wilson sought further treatment from Dr. Divelbiss. For purposes of a workers’ compensation claim Mr. Wilson filed for the injury to his elbow, Dr. Divelbiss assigned a permanent partial disability rating of 15 percent "at the level of his elbow." When Mr. Wilson reached maximum medical improvement, Dr. Divelbiss again released him to return to work but with a permanent restriction of "no trash truck driving."

Mr. Wilson presented the restriction to Michael Shaw, an assistant director in the public works department who oversaw the solid waste division. Mr. Wilson then requested that he be assigned to operate a clam truck on the bulky collection route or another truck with power steering, rather than his current assignment to drive a recycling truck without power steering. Mr. Shaw previously had denied Mr. Wilson's pre-injury requests to drive the clam truck because Mr. Wilson did not have the necessary seniority for that assignment. Instead, as an accommodation for Mr. Wilson's restriction, Mr. Shaw offered him a position as a maintenance worker that would have entailed riding on the back of trash trucks picking up trash and recycling or driving a dead animal or scatter truck. Mr. Wilson declined the position, believing he would have lost the seniority he had accumulated as an equipment operator. Mr. Shaw instructed him to submit a request for accommodation to the City.

After Mr. Wilson declined Mr. Shaw's offer, Marvin Davis, an assistant to the director and the human resource liaison for the City's public works department, sent an e-mail to Michael Kitchen, a member of the City's reasonable accommodation committee, and Mr. Shaw. In his e-mail, Mr. Davis told Mr. Kitchen that Mr. Wilson was an equipment operator who had a permanent restriction of no trash truck driving. An hour after that e-mail, Mr. Davis sent a second e-mail stating that, after Mr. Wilson first returned to work without medical restrictions, he went back to the doctor after experiencing pain. When he returned to work the second time, Mr. Wilson had a permanent restriction of "no trash truck driving." Mr. Davis stated that the City's risk management personnel believed Mr. Wilson told his doctor that he did not want to drive trash trucks and, instead, wanted to drive other City vehicles.

Mr. Wilson submitted a request for accommodation to the City with medical records from Dr. Divelbiss in support. The City's reasonable accommodation committee, including Mr. Kitchen, reviewed Mr. Wilson's request and denied it because his restriction was limited to no trash truck driving. Mr. Wilson appealed the committee's decision to the city manager's office. Mr. Kitchen presented the City's position regarding Mr. Wilson's accommodation request at an evidentiary hearing. Mr. Wilson's appeal was denied.

After the City denied Mr. Wilson's request, Mr. Shaw contacted Mr. Wilson and again encouraged him to take a job as a maintenance worker for the same pay he was earning as an equipment operator. According to Mr. Shaw, Mr. Wilson could not meet the minimum qualifications of his job as an equipment operator with a permanent restriction of no trash truck driving. Mr. Wilson again declined the offer to become a maintenance worker, and Mr. Shaw requested the termination of Mr. Wilson's employment because other solid waste division employees had to work overtime to complete Mr. Wilson's work. The City determined Mr. Wilson was unable to perform his regular job duties and terminated his employment in 2013.

In 2014, Mr. Wilson sued the City for disability discrimination and retaliation under the MHRA. Before the beginning of a jury trial in 2017, the City filed a motion in limine seeking to preclude Mr. Wilson from presenting Dr. Divelbiss's disability report and workers’ compensation rating as evidence or arguing that Dr. Divelbiss or the workers’ compensation division found Mr. Wilson "disabled." The City asserted that the question of disability under the workers’ compensation statutes was different, unrelated, and irrelevant to the question of disability under the MHRA and that admitting evidence of the rating would be more prejudicial than probative. It also objected to the report as hearsay.

During the course of trial, Mr. Wilson presented Dr. Divelbiss's testimony via a videotaped deposition. Dr. Divelbiss testified about the workers’ compensation disability rating he assigned to Mr. Wilson's right elbow and his report. Mr. Wilson's attorney also elicited testimony from Mr. Wilson that he had been "rated as permanently partially disabled." During Mr. Wilson's closing argument, his attorney argued, "[Mr. Wilson] has a permanent partial disability. Permanent, that's pretty easy. Disability, that's pretty easy." Mr. Wilson submitted his claim of disability discrimination to the jury but not his claim of retaliation. The jury returned a verdict in Mr. Wilson's favor, awarding him actual and punitive damages, and the circuit court entered judgment in conformity with the verdict.

Mr. Wilson then filed a motion to amend the judgment to add attorney fees, injunctive relief, costs, expenses, front pay, and increased seniority. The circuit court sustained the motion in part and amended the judgment to award $308,308.75 in attorney fees and $9,644.56 in litigation expenses and to provide that Mr. Wilson's seniority with the City reflect an uninterrupted time of employment.² The City appealed, and this Court ordered transfer after an opinion by the court of appeals. Mo. Const. art. V, sec. 10.

The City raises two claims of error. First, it claims the circuit court erred in admitting evidence and argument of Mr. Wilson's workers’ compensation permanent partial disability rating because its probative value was outweighed by its prejudicial effect. Second, it avers the circuit court erred in awarding Mr. Wilson litigation expenses because no statute authorizes an award of litigation expenses in an MHRA case.

Objections to Permanent Partial Disability Rating Not Preserved

For its first claim of error, the City contends the circuit court erred in allowing the jury to see Dr. Divelbiss's videotaped deposition testimony regarding Mr. Wilson's disability rating report, his report, and the disability rating in the medical records received in evidence at trial. The City claims a permanent partial disability rating in the context of workers’ compensation³ is irrelevant to whether a person is disabled under the MHRA.⁴ The City asserts that, even if Mr. Wilson's workers’ compensation disability rating has some probative value, its probative value is outweighed by its prejudicial effect because the different definitions of disability in the workers’ compensation context and the MHRA context tend to mislead and confuse the jury. The City also contends the statements of Mr. Wilson's counsel in closing argument improperly implied the workers’ compensation disability rating proved Mr. Wilson was disabled for purposes of the MHRA.

The City first sought, by filing a motion in limine , to exclude evidence of Mr. Wilson's disability rating on grounds that the rating was irrelevant. The City again objected to evidence of Mr. Wilson's disability rating in chambers the morning of trial, but the objection and an ensuing discussion were not on the record.

When trial began, the evidence of Mr. Wilson's workers’ compensation disability rating was first introduced by playing the videotaped deposition of Dr. Divelbiss. In the deposition, Dr. Divelbiss testified about the contents of the disability rating report, his method for determining the rating, the rating's significance, and the fact he assigned Mr. Wilson's right elbow a permanent partial disability rating of 15 percent. After Dr. Divelbiss's deposition was played for...