Janice Turner v. Kansas City Public Schools , 488 S.W.3d 719 ( 2016 )

In the Missouri Court of Appeals
Western District
JANICE TURNER, )
Respondent, )
v. ) WD78309
)
KANSAS CITY PUBLIC SCHOOLS, ) FILED: April 5, 2016
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY
THE HONORABLE JUSTINE E. DEL MURO, JUDGE
BEFORE DIVISION TWO: MARK D. PFEIFFER, PRESIDING JUDGE,
LISA WHITE HARDWICK AND JAMES E. WELSH, JUDGES
Kansas City Public Schools (KCPS) appeals from a judgment awarding actual
and punitive damages to Janice Turner on her retaliation claim. KCPS contends
Turner failed to present sufficient evidence to support her claims. For the reasons
explained herein, we find no error and affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Turner worked as a secretary at various KCPS schools from 1991 to 2012.
When the 2010-2011 school year ended, Turner was furloughed from her
secretarial position at Southwest High School. She filed a union grievance claiming
wrongful termination because she had worked for KCPS longer than other
secretaries who were retained. KCPS reinstated Turner to her position at
Southwest after determining that her seniority had been miscalculated.
During the 2011-2012 school year, Turner began having difficulties with
KCPS administrators even though she had never received discipline in her prior
years of service. On February 7, 2012, Turner filed a union grievance regarding her
inability to obtain work supplies or coverage for lunch breaks and alleging that
another secretary was being shown favoritism by KCPS. In response, Southwest
Vice Principal Derek Jordan established written lunch break times, created a
staggered work schedule to ensure coverage for all breaks, and clarified the duties
of each secretary in writing.
On April 15, 2012, after conditions at Southwest did not improve, Turner
filed another union grievance alleging a “hostile work environment.” Three days
later, Vice Principal Jordan issued Turner a “Letter of Reprimand.”1 The letter
alleged several incidents in which Turner had previously engaged in misconduct,
including: (1) taking a prom dress from a student donation; (2) calling another
secretary a “bitch;” (3) purchasing a cup of coffee for a student; and (4) stating
loudly that she had “had enough of this and [was] leaving.”
On May 2, 2012, Turner filed a charge with the Kansas City Human
Relations Department (KCHRD) alleging that KCPS discriminated and retaliated
1
As part of a collective bargaining agreement with the union, KCPS generally followed a
“Progressive Discipline” policy, which included several steps of discipline: (1) verbal counseling; (2)
“Letter of concern;” (3) “Letter of Reprimand;” (4) “Letter of Final Reprimand;” and (5) termination.
Certain steps could be skipped based on the severity of the conduct involved.
2
against her for making complaints.2 KCPS received notice of the discrimination
charge on May 16. On May 24, Principal Edwin Richardson issued Turner a Letter
of Final Reprimand, alleging that Turner had called a student “dangerous” in front
of other students and a parent. The letter stated that it was Turner’s “final
warning” and that if the problems persisted, “termination will be recommended.”
Turner did not work at Southwest at any time after the final reprimand. She
was assigned to the summer school session for Wheatley Elementary School.
While working at Wheatley, Turner experienced no problems and received no
discipline. Wheatley Principal Bonita Benson praised Turner as “professional,
welcoming, and helpful” and stated that she was “a hard worker and team player.”
Within this same timeframe, KCPS administrators had discussions about
terminating Turner. On June 13, 2012, Dynasti Hunt, a manager in the KCPS
Human Resources (HR) Department, sent an email to Principal Richardson
suggesting that they postpone a meeting scheduled for that day because “Turner
has filed a pending EEOC claim against the district.” Hunt explained that “before
we complete termination, I would like to run her file through [the legal
department].” The meeting was then postponed to June 28, 2012, at which time
Hunt understood that Turner’s employment was to be terminated. However, the
termination did not occur, and the KCPS administration instead offered Turner “the
option to transfer to another designated school location in lieu of termination, to be
given a final opportunity to improve [her] performance.”
2
Turner also dually filed the discrimination and retaliation charge with the Equal Employment
Opportunity Commission (EEOC) and the Missouri Human Rights Commission (MHRC).
3
Turner was assigned to Knotts Elementary School for the 2012-2013 school
year, under the supervision of Principal Yvette Hayes. Before Turner began her
assignment, Hunt informed Principal Hayes of Turner’s problems at Southwest. On
August 24, 2012, Principal Hayes sent an email to Hunt alleging that Turner had
transferred three students into a different class without approval. Hunt responded,
“Quick question. Have you had any other issues with Ms. Turner?” Principal
Hayes then responded that Turner was late to work that day and absent from work
for one day the prior week.
KCPS issued Turner a termination letter on August 29, 2012. The letter
referenced Turner’s final reprimand letter and stated that “after this letter was
administered, concerns regarding your failure to adhere to [KCPS’s conduct] policy
were raised.” The letter stated that a termination decision was originally made on
June 28, 2012, but Turner was nonetheless granted the transfer that she had
requested “in connection with [her] discrimination charge” against KCPS. The
letter explained that Turner was terminated because of “several concerns”
regarding her work performance at Knotts.
On May 28, 2013, Turner filed suit under the Missouri Human Rights Act
(MHRA) asserting that KCPS discriminated against her on the basis of age and
terminated her in retaliation for the KCHRD discrimination charge. At trial, the jury
ruled in KCPS’s favor on the age discrimination claim but found KCPS liable for
retaliation. The verdict awarded Turner $50,000 in compensatory damages and
$37,500 in punitive damages. The circuit court subsequently denied KCPS’s
4
motion for judgment notwithstanding the verdict (JNOV) and entered judgment in
accordance with the jury award. The court also awarded Turner attorney’s fees,
costs, front pay, and ordered that she be reinstated. KCPS appeals.
ANALYSIS
Retaliation Claim
In Point I, KCPS contends the circuit court erred in denying its motion for
JNOV because Turner failed to present substantial evidence to support her
retaliation claim. To withstand a motion for JNOV, Turner was required to “make a
submissible case by offering substantial evidence to support every fact essential to
a finding of liability.” Hurst v. Kansas City, Missouri Sch. Dist., 437 S.W.3d 327,
336 (Mo. App. 2014) (citation omitted). We view the evidence in the light most
favorable to the verdict, disregarding evidence to the contrary. Id. We will reverse
the jury’s verdict only where we find “a complete absence of probative facts to
support the jury’s conclusion.” Id.
Under the MHRA, it is an unlawful discriminatory practice to retaliate “in any
manner” against an employee who “has opposed any practice prohibited by this
chapter” or “has filed a complaint . . . pursuant to this chapter.” § 213.070(2),
RSMo.3 To make a submissible case on her retaliation claim, Turner was required
to establish that: (1) KCPS terminated her employment, (2) her discrimination
charge was a contributing factor in the termination, and (3) she sustained damages
as a result of the conduct. Williams v. Trans States Airlines, Inc., 281 S.W.3d
3
All statutory references are to the Revised Statutes of Missouri 2000, as updated by the 2013
Cumulative Supplement.
5
854, 866 (Mo. App. 2009). KCPS challenges only the second element—whether
Turner’s discrimination charge was a “contributing factor” in her termination. A
contributing factor is a condition “that contributes a share in anything or has a part
in producing the effect.” McBryde v. Ritenour Sch. Dist., 207 S.W.3d 162, 170
(Mo. App. 2006) (citation omitted).
Cases involving claims of retaliatory motive “are inherently fact-based and
often depend on inferences rather than on direct evidence.” Barekman v. City of
Republic, 232 S.W.3d 675, 682 (Mo. App. 2007) (citation omitted). Thus, Turner
can rely on circumstantial evidence tending to support an inference of retaliatory
motive, such as the proximity in time between Turner’s discrimination charge and
KCPS’s decision to terminate her. Id. KCPS asserts that the “closest temporal
relationship” was between Turner’s May 2 discrimination charge and the May 24
final reprimand. KCPS argues that Hunt—who drafted Turner’s termination letter—
was unaware of the charge until after the reprimand letter had been issued. KCPS
further notes that Turner was not fired until August—almost three months later.
Thus, KCPS argues that because so much time elapsed between the discrimination
charge and the actual firing of Turner, there is no reasonable inference that the
charge was a contributing factor in the termination decision that was made in
August 2012.4
4
KCPS relies on federal cases which state that an inference of retaliatory motive “vanishes
altogether when the time gap” between the charge and the termination “is measured in months.”
Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d 980, 986 (8th Cir. 2011). However, federal law is
more stringent in discrimination cases. The temporal proximity in federal cases must be close
enough to give rise to an inference that the protected activity was a “substantial or determining
6
KCPS’s argument ignores probative facts in the record. The relevant
consideration is whether Turner’s discrimination charge contributed to the decision
to fire her. See Hurst, 437 S.W.3d at 340. The evidence established that KCPS
administrators discussed plans to terminate Turner in June 2012 after she had filed
her discrimination charge. HR manager Dynasti Hunt sent Principal Richardson an
email on June 13 stating that she was going to “run [Turner’s] file through [the
legal department]” before completing termination. Thus, KCPS had decided to
terminate Turner less than a month after KCPS received notice of Turner’s
discrimination charge on May 16, 2012.
Importantly, KCPS had no credible explanation as to why the decision to
terminate Turner in June was made in the first place. The May 24 letter of
reprimand stated that it was Turner’s “final warning” and that if the problems
persisted, “termination will be recommended.” The decision to terminate Turner,
just over two weeks later, was purportedly based on Principal Richardson’s
“additional concerns” that were raised subsequent to the final warning being
issued. However, Principal Richardson stated that he could not recall what those
concerns were. Moreover, Turner did not work at Southwest at any time after May
24. Thus, she could not have engaged in further conduct for which Principal
Richardson might have found grounds for termination. By contrast, the only other
factor” in causing the termination, not that it merely “contributed” to the termination. See
Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 819 (Mo. banc 2007). Moreover, the
cases cited by KCPS suggest that very close temporal proximity is required when the success of
plaintiff’s retaliation claim rests solely on the timing of the decision. See Tyler, 628 F.3d at 986;
Carter v. CSL Plasma Inc., 63 F. Supp. 3d 1034, 1047 (W.D. Mo. 2014).
7
evidence presented regarding that timeframe was that Turner was receiving praise
for her summer school work at Wheatley and had not received any further
discipline for misconduct. The jury could have reasonably inferred from this
evidence that Turner’s charge of discrimination was a contributing factor in KCPS’s
June 2012 decision to terminate her.
KCPS emphasizes, however, that the fact that it chose not to move forward
with Turner’s termination in June, and actually transferred her to another school,
proves that her discrimination charge did not contribute to its decision to ultimately
terminate her in August. Again, KCPS ignores the fact that no evidence was
presented to explain why it had any reason—other than Turner’s filing of a
discrimination charge—to “move forward with” Turner’s termination in June.
Another form of circumstantial evidence that is probative of retaliatory
motive is “[p]roof that the defendant’s [proffered] explanation is unworthy of
credence.” Lomax v. DaimlerChrysler Corp., 243 S.W.3d 474, 483 (Mo. App.
2007) (citation omitted). Thus, the jury could have rejected KCPS’s proffered
reasons for terminating Turner and inferred from that disbelief that KCPS had a
retaliatory motive. Id. KCPS claimed that it had fired Turner because of her poor
performance at Knotts in August 2012. Specifically, KCPS alleged that Turner had
missed work on August 17 and that she was late to work on August 24.
However, Turner produced evidence that Principal Hayes had approved her
timesheets which showed that Turner was actually at work on-time on both of the
days alleged. KCPS also alleged that Turner had transferred three students into a
8
different class without Principal Hayes’ authorization. By contrast, Turner testified
that Principal Hayes had retroactively authorized Turner’s actions in transferring the
students. From this conflicting evidence, a reasonable juror could have found that
KCPS’s proffered explanation for terminating Turner was false and inferred
discriminatory purpose on KCPS’s behalf.
Upon reviewing the record in the light most favorable to Turner, we find
there was sufficient competent evidence to support the jury’s determination that
Turner’s charge of discrimination against KCPS was a contributing factor in KCPS’s
decision to terminate her. Accordingly, the circuit court properly denied the motion
for JNOV. Point I is denied.
Punitive Damages
In Point II, KCPS contends the circuit court erred in denying its motion for
JNOV because Turner failed to make a submissible case for punitive damages.
“Whether there is sufficient evidence for an award of punitive damages is a
question of law.” Howard v. City of Kansas City, 332 S.W.3d 772, 788 (Mo. banc
2011) (internal quotations omitted). Thus, we determine whether the evidence
presented “was sufficient, as a matter of law, to submit the claim for punitive
damages.” Hurst, 437 S.W.3d at 341. We view the evidence and all reasonable
inferences drawn therefrom in the light most favorable to submissibility. Id. “Only
evidence that tends to support the submission should be considered.” Hoyt v. GE
Capital Mortg. Servs., Inc., 193 S.W.3d 315, 323 (Mo. App. 2006).
9
“To make a submissible case for punitive damages, there must be clear and
convincing proof of a defendant’s culpable mental state.” Hurst, 437 S.W.3d at
341 (citation omitted). Turner could establish KCPS’s culpable mental state by
showing either that KCPS committed “an intentional wanton, willful, and
outrageous act without justification” or “acted with reckless disregard” to Turner’s
rights. Id. (citation omitted). An act is committed wantonly if the defendant
knows at the time it engages in the wrongful act that the act was, in fact,
wrongful. Id. Turner could also rely on circumstantial evidence to show KCPS’s
intentional discriminatory conduct. Id.
Our review of the record indicates that most of the evidence supporting
Turner’s claim for retaliation also supports her claim for punitive damages. See
Williams, 281 S.W.3d at 870–71. There was clear evidence that those involved in
the decision to terminate Turner were aware of her discrimination charge prior to
her termination. As noted, the jury could have disbelieved KCPS’s proffered
reasons for terminating Turner in August 2012. Turner produced documentary
proof that she was at work on the days which KCPS alleged she had missed, thus
demonstrating that KCPS had no evidentiary basis for making those allegations.
The jury could have “reasonably [inferred] from the falsity of the explanation that
the employer [was] dissembling to cover up a discriminatory purpose.” Lomax,
243 S.W.3d at 483 (citation omitted).
There is additional circumstantial evidence in the record to support the jury’s
finding that KCPS’s retaliatory actions were in reckless disregard of Turner’s rights.
10
On April 15, 2012, after Turner had filed a union grievance about her working
conditions, Vice Principal Jordan sent an email to HR describing Turner and another
secretary as “totally dysfunctional” and “total cancers” to KCPS’s environment.
Turner had never received any discipline as a KCPS employee before that email was
sent. Further, KCPS claimed that it made the decision to transfer Turner in lieu of
termination in order to give her a “fresh start.” However, the jury could have
rejected this explanation in light of emails revealing that the administration decided
not to proceed with the planned termination in June 2012 only after consulting
with the legal department about any possible “recourse of action” from firing
Turner.
Turner introduced evidence showing that KCPS had policies in place that
prohibited retaliation and elicited testimony from management that they knew it
was unlawful to retaliate against an employee for filing a charge of discrimination.
See Ellison v. O’Reilly Auto. Stores, Inc., 463 S.W.3d 426, 435 (Mo. App. 2015)
(upholding punitive damages award when defendant had policy prohibiting
discrimination and management acknowledged at trial that discriminating on the
basis of disability was illegal). When Principal Hayes emailed Hunt regarding
Turner’s alleged unauthorized transfer of students, Hunt responded, “Quick
question. Have you had any other issues with Ms. Turner?” From this response,
the jury could infer that Hunt was searching for pretextual reasons to justify
Turner’s termination.
11
The jury determined that Turner’s discrimination charge was a contributing
factor in KCPS’s decision to terminate her. From that same evidence, the jury
could have reasonably concluded that KCPS intentionally sought to conceal this
contributing factor by alleging Turner’s misconduct at her newly assigned school.
See Lomax, 243 S.W.3d at 483 (noting that “rejection of the defendant’s proffered
reason will permit the trier of fact to infer the ultimate fact of intentional
discrimination”) (citation and emphasis omitted). Viewed in the light most
favorable to submissibility, the evidence supports a finding that KCPS acted with
intentional disregard for Turner’s rights when it fired her because of her complaints
of discrimination and retaliation. Accordingly, Turner made a submissible case for
punitive damages and the circuit court did not err in denying KCPS’s motion for
JNOV. Point II is denied.
Attorney’s Fees on Appeal
As the prevailing party below, Turner has filed a motion for an award of her
attorney’s fees on appeal pursuant to Section 213.111.2 of the MHRA. Under this
provision, “the court should award attorneys’ fees unless special circumstances
would render such an award unjust.” McCrainey v. Kansas City Mo. Sch. Dist.,
337 S.W.3d 746, 756 (Mo. App. 2011) (citation and internal quotations omitted).
This includes fees incurred on appeal from the circuit court’s judgment. Id.
In the absence of any showing of special circumstances to render an award
unjust, we grant Turner’s motion for attorney’s fees on appeal. Although appellate
courts have “authority to allow and fix the amount of attorney’s fees on appeal, we
12
exercise this power with caution, believing in most cases that the trial court is
better equipped to hear evidence and argument on this issue and determine the
reasonableness of the fee requested.” Id. (citation omitted). Accordingly, we
remand to the trial court to determine the reasonableness of Turner’s attorney’s
fees on appeal and enter an appropriate award. Hurst, 437 S.W.3d at 344.
CONCLUSION
We affirm the circuit court’s judgment and grant Turner’s motion for
attorney’s fees on appeal. The cause is remanded to the circuit court for further
determination of the attorney’s fees award.
____________________________________
LISA WHITE HARDWICK, JUDGE
ALL CONCUR.
13