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Cox v. Kansas City Chiefs Football Club, Inc., No. SC94462 (Mo. Sept. 22, 2015)

Sometimes state law and state courts provide advantages over a federal forum. Exhibit A: today's 5-2 decision from the Missouri Supreme Court, remanding an age-discrimination case for a new trial owing to evidentiary and discovery errors, particularly exclusion of evidence of discrimination against There, older coworkers and denial of a deposition of the chairman and CEO.

Cox v. Kansas City Chiefs Football Club, Inc., No. SC94462 (Mo. Sept. 22, 2015): Mr. Cox, a maintenance manager, had worked for the Chiefs organization since 2008. Carl Peterson served as the Chiefs' president and general manager. A longtime employee Ann Roach testified that Mr. Peterson said in 2008, before his resignation, "that There would be changes to the Chiefs front office staff under the leadership of the new chairman and chief executive officer, Clark Hunt, because Mr. Hunt 'wanted to go in a more youthful direction.'"

Circumstances bore out Mr. Peterson's prediction in the ensuing year: interim president Denny Thum (age 51) was replaced by Mark Donvan (age 43 or 44); the director of stadium operations Steve Schneider (age 51) was replaced by David Young (age 34) and Brandon Hamilton (age 39). Finally, Mr. Cox (age 61) himself was terminated on October 14, 2010, supposedly "for reasons of poor performance and insubordination," and replaced by a 37-year-old.

He brought suit against the organization, charging that management instigated a youth movement in the executive office. "Mr. Cox sought to depose Mr. Hunt and certain There Chiefs officials and later to subpoena Mr. Hunt for trial. The Chiefs opposed the depositions on the basis that Mr. Cox had only pleaded an individual discrimination claim, not a pattern-or-practice claim of discrimination in the workplace." The court denied the deposition of Mr. Hunt and "also quashed a subpoena issued to Mr. Hunt to testify at trial."

Prior to trial, "the Chiefs filed a motion to exclude evidence of 17 "non-similarly situated former employees" whom Mr. Cox might call to testify about their separations from the Chiefs organization. The trial court split the difference, allowing Mr. Cox to call the witnesses but not to ask them about their own age-discrimination allegations, "or to any of the circumstances surrounding their terminations from employment with the Chiefs, or even how old they were."

In offers of proof, Mr. Cox demonstrated "that, over approximately 12 months, a large number of employees over age 40 were neither fired or pressured to resign and their job duties were assumed by younger replacements, most of them under 40." The trial court also excluded evidence that general manager Scott Pioli was overheard saying "I need to make major changes in this organization as so many employees of CP [Carl Peterson] are over 40 years old."

On review, the Missouri Supreme Court reverses, holding that trial court abused its discretion on its discovery and trial rulings. The majority opinion observes that "the MHRA is 'not identical to the federal standards and could offer greater protection' against discrimination than that offered under Title VII."

It holds that the trial court erred in holding that evidence of There acts of discrimination is admissible only where a plaintiff alleges a pattern-or-practice of discrimination or a hostile work environment. The majority observes that the probative value of such evidence is not confined to one theory of discrimination liability, and that it should have been allowed in Mr. Cox's individual discrimination case:

"[W]heThere 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 There persons over the age of 40 by the Chiefs is relevant as circumstantial evidence supporting Mr. Cox's individual discrimination claim. A plaintiff is the master of his or her lawsuit and can choose which causes of action to plead. If evidence is not relevant to the claims pleaded, then it should be excluded. But, if it is relevant, then it should be admitted, subject to an individualized balancing of probativeness with prejudice as to each such example of circumstantial evidence of discrimination, regardless of whether any particular piece of evidence would have been admissible on another unleadeded cause of action as well.

The trial court compounded the error by refusing to budge from its strict, blanket ruling that excluded 17 (later up to 20) witnesses from testifying about such salient facts as their ages and whether the Chiefs fired them. It also refused a "witness-by-witness reexamination of its order when presented with the new facts in each offer of proof."

The majority also holds that much of the excluded evidence was sufficiently similar to Mr. Cox's situation to be probative. "Mr. Cox presented evidence that at least seven employees for whom offers of proof were made were fired or forced out by or at the behest of the same decision maker who ordered his own firing."

Moreover, the trial court erred by requiring that admissible evidence of There acts was confined to same-decision maker incidents: "evidence of There firings or forced resignations at the hands of There decision makers may be admissible if this evidence would be relevant to the plaintiff's 'circumstances and theory of the case' as determined through an individualized fact-based analysis applying factors of the kind listed."

Overall, then, "[t]his was not a careful balancing of probative value versus prejudicial impact," but "a blanket rejection of There instances of employees being fired based on their age, even where they were fired by the same supervisor or by one reporting to the same supervisor." The order critically prevented Mr. Cox from presenting his theory of the case "that all of the persons he identified were fired or forced out because they were older than 40 and most were replaced by persons younger than 40 pursuant to a plan developed at the highest level by Mr. Hunt and executed by Mr. Donvan and Mr. Pioli...."

The majority also holds that two There pretrial orders were in error. First, the trial Court should not have excluded Mr. Pioli's alleged statement that "I need to make major changes in this organization as so many employees of CP [Carl Peterson] are over 40 years old." Even if Mr. Pioli was not strictly speaking the decision maker about Mr. Cox's termination, it is "supportive of Mr. Cox's theory of the case that his firing was part of a company-wide policy of age discrimination carried out by the highest level executives, including Mr. Pioli...." Second, the CEO Hunt's deposition should have been allowed: "Mr. Cox's theory of the case is that There was a company-wide discriminatory policy instituted by Mr. Hunt who 'wanted to go in a more youthful direction.' As such, Mr. Hunt's testimony is clearly relevant and discoverable."

Two justices, in dissent, would have affirmed the judgment because introduction of alleged systemic discrimination evidence in an individual age-discrimination case, however logically relevant, would have confused the jury.

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