Yeargans v. City of Kan. City, Case No. 18-00409-CV-W-ODS

CourtUnited States District Courts. 8th Circuit. Western District of Missouri
Docket NumberCase No. 18-00409-CV-W-ODS
Decision Date06 September 2019

Pending are Defendant's Motion for Summary Judgment (Doc. #35), Defendant's Motion to Exclude Plaintiff's Experts (Doc. #37), Plaintiff's Motion to Exclude Defendant's Experts (Doc. #38), and Defendant's Motion to Strike Plaintiff's Declaration (Doc. #53).1 For the following reasons, Defendant's Motion to Strike Plaintiff's Declaration is granted in part and denied in part, Defendant's Motion for Summary Judgment is granted, and the Motions to Exclude Expert Witnesses are deemed moot.


The Kansas City Fire Department ("KCFD") is a department within Defendant The City of Kansas City, Missouri. Relevant to this matter, a KCFD employee wishing to be promoted to captain must take the Captain's Test, which occurs during the fall in even-numbered years. In 2012, the Captain's Test consisted of (1) a written examination; (2) a fire ground component known as the Oral Tactical Exercise; (3) a company officer situational component known as the Situational Exercise; and (4) points for seniority. Each component accounted for twenty-five percent of a candidate'scomposite score.3 According to the record, 126 KCFD employees took the written examination for the 2012 Captain's Test.4 Doc. #36-6, at 10-12.5

Ninety-five KCFD employees who took the written examination also participated in the oral examinations (i.e., Oral Tactical Exercise and Situational Exercise) for the 2012 Captain's Test.6 Doc. #36-6, at 8-9. During the oral examinations, the employees responded to the same scenarios, which were presented via video and written materials. The oral examinations were evaluated by in-house personnel who held the rank of captain or above (hereinafter, "assessors"). The assessors utilized benchmarks as guidelines, but each assessor used his or her own judgment, which Defendant admits was subjective. Doc. #49-19, at 1320; Doc. #52, at 16, 22.

The oral examinations were graded in October 2012, and the candidates received their scores in November 2012. Regarding the oral examinations, Caucasian candidates received a mean score of 13.05 on the Situational Exercise and a mean score of 17.98 on the Oral Tactical Exercise, and African-American candidates received a mean score of 13.21 on the Situational Exercise and a mean score of 18.23 on the Oral Tactical Exercise.7 Candidates could request a review of their scores if theybelieved their scores were inaccurate. The "second review" process occurred in November and December 2012.

After the composite scores were configured, a promotional list was created and published in December 2012. The promotional list ranked the candidates in order of their composite scores, from highest to lowest. Promotions to captain were done in "rank order" - that is, the first captain opening was awarded to the highest ranked person on the list, the second captain opening was awarded to the second highest ranked person on the list, and so on, until all open captain positions were filled.8 The first promotion was made on January 13, 2013, to the top scoring applicant, an African-American employee whose composite score was 86.5537. Doc. #36-6, at 7-8. From the 2012 Captain's Test promotional list, which was valid for two years, Defendant promoted sixteen employees - twelve identify as Caucasian, three identify as African-American, and one identifies as Hispanic. The last promotion was made on December 14, 2014. After that date, promotions were awarded from the promotional list generated from the 2014 Captain's Test.

Plaintiff Travis Yeargans, who identifies as African-American, became employed with the KCFD as a firefighter in March 1991. In 1996, he was promoted to the position of Fire Apparatus Operator ("FAO"), a driving position. Between 1998 and 2012, Plaintiff unsuccessfully attempted to be promoted to captain on five occasions. Regarding the 2012 Captain's Test, Plaintiff received a composite score of 68.5778. Doc. #36-6, at 8. He was listed thirty-second on the promotional list, meaning thirty-one candidates received higher composite scores than he did. Id.

Plaintiff claims he was significantly underscored on the oral examinations and argues that had he "not been underscored because of his race, then he would have been fairly ranked in the top 17 candidates" and promoted to captain.9 Plaintiff's OralTactical Exercise was evaluated by Battalion Chief Carl Tripp, Battalion Chief Curtis Edwards, and Captain Patty Sterns. His Situational Exercise was evaluated by Captain C.J. Stenner, Battalion Chief Clay Calvin, and Captain Brian Kanoy. It is undisputed these individuals did not have the ability to establish municipal policy. Plaintiff alleges these individuals discriminated against him based on his race.

Effective April 1, 2014, Plaintiff's employment concluded. Plaintiff alleges he was constructively discharged when the KCFD failed to promote him through the 2012 Captain's Test promotional process. When he left his employment, Plaintiff felt the opportunity for promotion was gone, and he believed he had no other alternative but to leave. Defendant contends, and its records reflect, Plaintiff retired. Doc. #36-4. It is undisputed that Plaintiff did not discuss his reasons for leaving with Defendant and he did not complain to Defendant that he was the victim of discrimination. Doc. #36-5, at 1-2. In May 2018, Plaintiff filed this lawsuit, alleging a failure to promote claim and a constructive discharge claim under 42 U.S.C. § 1983. Doc. #1.

Now pending are Defendant's motion for summary judgment, Defendant's motion to strike Plaintiff's expert witnesses, Plaintiff's motion to strike Defendant's experts, and Defendant's motion to strike portions of a declaration Plaintiff submitted along with his opposition to Defendant's motion for summary judgment.10

A. Standard

"An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). A declarant "asserting personal knowledge must include enough factual support to show that the [declarant] possesses that knowledge." El Deeb v. Univ. ofMinn., 60 F.3d 423, 428-29 (8th Cir. 1995) (citations omitted). When a declaration does not satisfy the federal rule requirements, it may be subject to a motion a strike because a court is not permitted to consider declarations that fail to meet the federal rule requirements. Id. (citations omitted). When a party objects on the grounds that a fact is not supported by admissible evidence, "the burden is on the proponent of the evidence to show that the material is admissible as presented or to explain the admissible form that is anticipated." Gannon Int'l Ltd. v. Blocker, 684 F.3d 785, 793 (8th Cir. 2012) (citation omitted).

B. Discussion

Defendant moves to strike Paragraphs 15, 17, 18, 19, 21, 23, 24, 25, 33, 35, 37, 38, 43, 44, 45, and 47 in Plaintiff's July 25, 2019 declaration due to lack of personal knowledge, lack of foundation, inadmissible hearsay, legal arguments, and/or speculation. Plaintiff concedes Paragraphs 15, 17, 19, and 24 and the last two lines of Paragraph 18 - i.e., "which was often done in collaboration with management to control who was promoted" - "may not be based on factual presentations without further proof." Doc. #55, at 1. Pursuant to Plaintiff's concession, the Court strikes Paragraphs 15, 17, 19, and 24, and the last two lines of Paragraph 18.

However, Plaintiff argues Paragraphs 21, 23, 25, 33, 35, 37, 38, 43, 44, 45, and 47 should not be stricken. He contends these paragraphs explain "why he believed that his working conditions were intolerable, given Defendant's failures to fairly promote him, thus constituting a constructive discharge," and show he "had no way to know whether he would be promoted" when the promotional list was published. Doc. #55, at 2.

In Paragraph 21, Plaintiff states, "[u]pon information and belief, there was a vacant Captain's position when I died number one on the promotional list." Doc. #49-17, ¶ 21. Although he may have personal knowledge regarding a pre-2012 promotional list that expired when he was at the top of the list, Plaintiff's declaration represents his knowledge is based on "information and belief." A declaration made on "information and belief is insufficient" to satisfy the personal knowledge requirement. See Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1367 (8th Cir. 1983) (citations omitted). Moreover, Plaintiff fails to include any details about the event, including, mostimportantly, when it occurred and the basis of his information and belief. Because of the lack of detail, Plaintiff does not demonstrate he possesses personal knowledge, and the paragraph simply sets forth an unsupported conclusion. Thus, the paragraph is insufficient to establish a genuine issue of material fact exists. See Murr v. Midland Nat'l Life Ins. Co., 758 F.3d 1016, 1024 (8th Cir. 2014). Finally, Plaintiff does not demonstrate how this information would be admissible at trial. Gannon Int'l Ltd., 684 F.3d at 793. Accordingly, the Court strikes Paragraph 21.11

In Paragraph 23, Plaintiff states, "I was told that I would not be promoted because Al Myers was an outspoken Black man and other Captains would for[e]go their retirement until the list expired...." Doc. #49-17, ¶ 23. A party may not rely on hearsay to defeat a motion for summary judgment unless the party also lays a foundation...

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