By Justin A. Welply, of Baker Sterchi Cowden & Rice LLC
On October 14, 2010, 61 year old Steven Cox was fired from the Kansas City Chiefs. He was replaced with a 37 year old.
Trial Court Proceeding
He filed a petition in Jackson County Circuit Court alleging a single act of age discrimination. He did not allege a “pattern-or-practice” or a “company-wide” policy of age discrimination.
Mr. Cox sought to introduce evidence of firings of other older employees, often with younger employees replacing them, as circumstantial evidence of the Chiefs’ discriminatory intent in terminating his employment. His request was denied by the trial judge because he did not plead “pattern and practice” discrimination and thus evidence that the Chiefs fired older employees was not relevant to Mr. Cox’s claim. It was also denied because the firings were not directed by the same decisionmaker.
Mr. Cox also tried to introduce evidence from a former employee who overheard Scott Pioli, the team’s former general manager, say that major changes in the organization are needed because so many employees are over the age of 40. The testimony was excluded by the trial judge because Mr. Pioli was not involved in Mr. Cox’s firing.
Furthermore, Mr. Cox sought to depose and subpoena for trial Clark Hunt, Chiefs’ chairman and CEO, who allegedly told another staffer that he “wanted to go in a more youthful direction.” The trial court denied Mr. Cox’s request because he did not plead “pattern and practice” discrimination.
Ultimately, the jury returned a verdict for the Chiefs.
Supreme Court Decision
On appeal, the Missouri Supreme Court held that the trial court abused its discretion in excluding circumstantial evidence of other employees allegedly fired based on age, in excluding the former employee from testifying that he heard Mr. Pioli say that major changes in the organization are needed because so many employees are over the age of 40, and in excluding Mr. Hunt from being deposed.
First, the Supreme Court held that under these circumstances, “me too” evidence — the other employees testimony – was relevant to Cox’s claim, regardless of whether he pleaded that the Chiefs engaged in systematic discrimination. The court stated “whether Mr. Cox pleaded a hostile work environment claim should not affect the trial court’s analysis as to whether evidence of “me too” firings of other persons over the age of 40 by the Chiefs is relevant as circumstantial evidence supporting Mr. Cox’s individual discrimination claim.” The Supreme Court further stated that “the trial court erred in its belief that evidence of the firing of other employees is not admissible if not directed by the same decisionmaker.”
Second, the Supreme Court chided the lower court for barring the former employee from testifying that he heard Mr. Pioli say that major changes were needed because so many employees are over the age of 40. The Supreme Court stated “the fact that Mr. Pioli did not directly supervise Mr. Cox or order his firing does not mean that his comments are irrelevant when the theory of the case involves a company-wide policy.”
Third, the Supreme Court held that the trial court abused its discretion in not permitting Mr. Hunt to be deposed. The Court noted that a key part of Mr. Cox’s theory was that there was a company-wide discriminatory policy instituted by Mr. Hunt and thus his testimony was clearly relevant and discoverable.
Going forward, the Supreme Court of Missouri has given a strong indication that an employee will be permitted to introduce “me too” evidence, regardless of whether a “pattern or practice” claim is pursued and regardless of whether the firing of other employees was conducted by the same decisionmaker. Furthermore, an employer will not be permitted to bar a former employee from deposing a high ranking official on the theory that that person was not involved in the firing process, if that official was alleged to have implemented a policy that resulted in discrimination against the plaintiff.
