537 S.W.3d 865
Mo. Ct. App.2017Background
- Patricia Rowe Kerr worked for the Missouri Veterans Commission (MVC) from 2004 as Veterans Benefits Specialist and later Ombudsman/Director of Operation Outreach; she performed well and received awards.
- Larry Kay became MVC Deputy Director in 2006 and Executive Director in 2009; after Kay questioned Kerr about retirement and pressured her, he placed her on a performance-improvement plan in 2007 and later split her job and pressured her to accept the outreach role in 2009.
- Kerr conducted 21 "listening posts" in fall 2009; Kay threatened to fire her and terminated her on November 10, 2009 (stating budget/ restructuring reasons); another older female employee was also fired that day.
- Kerr filed MCHR charges alleging sex and age discrimination in May 2010 and amended to add retaliation after learning MVC pressured a university planner to remove her from a conference committee; she received right-to-sue letters and sued in July 2011 under the MHRA.
- At trial Kerr introduced evidence of derogatory gender/age remarks by Kay, pattern evidence of replacing women with men, and contrary facts to MVC’s budget justification; a jury awarded Kerr $2,875,000 (compensatory and punitive); MVC appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by including the Odessa veterans‑meeting incident in the retaliation verdict (exhaustion of administrative remedies) | Kerr: Odessa was like/reasonably related to the University of Missouri post‑termination retaliation alleged in the MCHR charge; MVC had notice and did not object at trial | MVC: Odessa was not in the MCHR charges and thus was not exhausted, so the court lacked authority to submit it to the jury | Court: MVC waived the objection by failing to timely object to Odessa evidence; also Odessa was like/reasonably related to charged retaliation; verdict instruction proper |
| Admissibility of 2007 voicemail (Kerr telling Kay she loved him) and alleged sexual comments — relevance to Kerr’s motive/credibility | Kerr: Court should exclude as irrelevant; motive to sue immaterial when claim otherwise valid | MVC: Voicemail/comments show Kerr was a scorned lover and sued for improper motive; impeaches credibility and contradicts her account | Court: Voicemail/comments not logically relevant to motive to sue; voicemail evidence excluded as prejudicial; sexual‑comment claim not preserved for appeal |
| Admission/exclusion of relationship evidence (Skype messages, one‑page exhibit) to show Kerr’s relationship with Kay and impeach her narrative | MVC: Such communications undermine Kerr’s portrayal of work relationship and show improper motive | Kerr: Communications irrelevant or prejudicial; many items not offered or preserved | Court: Much of this evidence was not preserved or offered; MVC abandoned arguments about the voicemail in briefing; exclusion/no review affirmed |
| Admission of “me‑too” testimony from women who served under Kay in Kosovo | Kerr: Testimony was admissible to show pattern and Kay’s animus toward women | MVC: Testimony was unfairly prejudicial and should have been excluded | Court: MVC failed to object at trial (motion in limine denial insufficient); issue waived and not reviewable; testimony admitted properly |
Key Cases Cited
- State ex rel. Washington Univ. v. Richardson, 396 S.W.3d 387 (Mo. App. W.D.) (administrative charge requirement under MHRA explained)
- J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc) (clarifying subject‑matter jurisdiction vs. statutory prerequisites)
- McCracken v. Wal‑Mart Stores E., L.P., 298 S.W.3d 473 (Mo. banc) (statutory prerequisites to suit are waivable trial‑level defenses)
- Shafinia v. Nash, 372 S.W.3d 490 (Mo. App. W.D.) (limits on trial court authority when administrative prerequisites not met)
- Lozano v. BNSF Ry. Co., 421 S.W.3d 448 (Mo. banc) (preservation requirements for evidentiary exclusion — offer of proof and new‑trial motion)
- Cluck v. Union P. R.R. Co., 367 S.W.3d 25 (Mo. banc) (party entitled to instruction on any theory supported by evidence)
- Farrow v. St. Francis Med. Ctr., 407 S.W.3d 579 (Mo. banc) (distinguishing when post‑termination retaliation claims are not reasonably related to administrative charge)
- Honey Creek Drainage Dist. v. Farm City Inv. Co., 32 S.W.2d 753 (Mo.) (motive immaterial where party had legal right to sue)
- Walsh v. City of Kansas City, 481 S.W.3d 97 (Mo. App. W.D.) (prevailing party under MHRA may recover appellate attorney’s fees)