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Thursday, December 10, 2015

Missouri Supreme Court Expands Admissibility of “Me Too” Evidence in Age Discrimination Cases

On September 22, 2015, the Missouri Supreme Court, in a 5-2 decision, reversed a jury verdict in favor of the Kansas City Chiefs in a Missouri Human Rights Act (“MHRA”) age discrimination case brought by a former employee on the ground that the trial court improperly excluded evidence from numerous other older employees relating to the cessation of their jobs.  Cox v. Kansas City Chiefs Football Club, Inc., 473 S.W.3d 107 (Mo. banc 2015).  Plaintiff, who was 61, was terminated for poor performance and insubordination and was replaced by a 37-year-old employee.  At trial, plaintiff had evidence of several possible age-related statements made by Chiefs’ management, and his theory was that the Chiefs instituted a policy of terminating older workers and replacing them with younger workers.

The trial court had excluded from evidence the testimony of 17 former employees, who were going to testify about the termination of their employment, replacement by younger workers, and their claims against the Chiefs.  The trial court excluded this evidence on two grounds:  (1) plaintiff alleged only one act of discrimination, not a pattern and practice (systemic and repeated discriminatory conduct), and therefore the testimony was irrelevant to the claim; and (2) these former employees were not similarly-situated to plaintiff, meaning they did not have the same supervisor, same decisionmaker, or similar job type.  The Chiefs prevailed at a jury trial, and plaintiff appealed.

The Missouri Supreme Court reversed the jury verdict and remanded the case for retrial, holding that the trial court abused its discretion in excluding the circumstantial evidence from the other employees allegedly terminated because of their age.  The court held that this type of “me too” evidence of other acts involving other employees was not limited to a pattern and practice claim and did not require a plaintiff to show that the other employees were similarly-situated.  The Supreme Court also ruled that such evidence could come in regardless of whether the same decisionmaker was involved in the termination decisions.  The Court reasoned that a plaintiff who alleges or has a theory of a top-down strategy to replace older workers can offer this “me too” evidence and that the trial court must do an individualized, fact-based analysis to determine its admissibility.

The implications for employers facing MHRA claims is that plaintiffs probably will seek (and likely obtain) in discovery information relating to other claims of discrimination or terminations involving other employees in the same protected class (e.g., race, age, gender or disability) on an organization-wide basis.  Practically, this will likely make discovery more burdensome and expensive.  In addition, at trial, there is the risk that testimony from another employee, who might be in a completely different department with a completely different employment history, could be admitted into evidence, which means that disgruntled former employees could strengthen their cases by testifying in each other’s cases.

As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert and Kevin A. Sullivan.


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