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Defendant's Attorney: Timothy R. Ertz, Assistant City Attorney

Description:

Kansas City, MO - Human Rights Act lawyer represented defendant with appealing a judgment for compensatory and punitive damages.

In this consolidated appeal, the City of Kansas City, Missouri (“City”), appeals from the
judgment entered by the Circuit Court of Jackson County, Missouri (“trial court”), following a
jury verdict in favor of Mr. Ronald Williams (“Williams”), awarding him compensatory and
punitive damages on his claims of retaliation and hostile work environment under the Missouri
Human Rights Act (“MHRA”) and attorney fees with a multiplier, expenses, and costs; and from
the order denying the City’s post-trial motions for judgment notwithstanding the verdict
2
(“JNOV”), new trial, and merger of compensatory damages. The City alleges error in the
admission of evidence, attorney fees award, and denial of its post-trial motions. We affirm.
Factual and Procedural Background1
Williams is a master electrician who was employed by the City as a maintenance electrician
from 2011 until 2017. Williams is African-American. In two Charges of Discrimination and an
amended Charge modifying the second Charge, Williams documented a pattern and practice of
pervasive and continuing racially discriminatory conduct from the fall of 2013 through the spring
of 2015 and beyond. Though none of the Charges identify a discrete act of termination, demotion,
or refusal to promote, all of the Charges collectively describe a hostile, intimidating, retaliatory
and offensive work environment.
On May 6, 2014, Williams filed a Charge of Discrimination with the Missouri Commission
on Human Rights (“Commission”) against the City (“2014 Charge”). Williams alleged in the 2014
Charge that his troubles began after he signed a statement regarding a complaint of racial
discrimination in support of one of his former co-employees in July of 2013.2
The 2014 Charge
alleged that the discrimination he faced was “continuing” and resulted in a racially motivated and
unfair reprimand letter in October of 2013 stemming from a September 2013 workplace event.
Specifically, he charged:
I was hired on or about June 20, 2011, as a Maintenance Electrician.
In or about July 2013, I signed a statement regarding a complaint of race[-]based
discrimination filed by a former Superintendent. On or about October 9, 2013, I,
and one other black Maintenance Electrician, was issued a letter of reprimand after

1
“We view the facts in the light most favorable to the jury’s verdict.” Wynn v. BNSF Ry. Co., 588 S.W.3d
907, 909 n.2 (Mo. App. W.D. 2019).
2 This is a significant fact that the dissenting opinion discounts. For, in the 2014 Charge, immediately after
reference to Mr. Williams’s July 2013 statement, Mr. Williams details that he began to experience racially motivated
retaliation stemming from a workplace event that occurred in September 2013 and ultimately resulted in an unjustified
written reprimand in October 2013.
3
being observed sitting in our vehicle from 10:00 AM to 10:45 AM on or about
September 19, 2013.
I believe I was issued the letter of reprimand because of my race (black), and in
retaliation for participating in the protected activity of writing a statement in
support of another person’s complaint of discrimination, in violation of Title VII of
the Civil Rights Act of 1964, as amended.
Ex. 201 (emphasis added). The Commission investigated Williams’s complaint and concluded
that it lacked jurisdiction because the complaint was not filed within 180 days of the alleged
discrimination as required by the MHRA. Ex. 239. Of significance to our discussion today, though
this Charge was dismissed by the Commission, the City conceded that it had notice of the express
allegations contained in the 2014 Charge and received such notice at or near the time the 2014
Charge was filed with the Commission.
Instead of asserting any sort of challenge to the Commission’s timeliness/jurisdictional
determination as to the 2014 Charge, Williams filed a second Charge of Discrimination against
the City with the Commission on October 2, 2015 (“2015 Charge”), and incorporated his allegation
of racial discrimination from the 2014 Charge into the last sentence of the 2015 Charge when
explaining the continuing and pervasive level of discrimination he was experiencing. Specifically,
Williams again alleged that he had been discriminated against because of his race and retaliated
against. Williams detailed a pattern of racially motivated discrimination in 2014 and 2015 and
that the pattern of discrimination and retaliation was a continuing action. Williams alleged that
white employees with less experience were offered educational training courses that would
empower these white employees to be more qualified than black employees to receive job
promotions with the City that would pay those employees more than the less-trained black
employees. Williams did not focus upon one discrete action of discriminatory failure of the City
to allow him to take an educational training course; instead, he described multiple instances in
4
which he and another black co-employee were denied access to training courses even though they
possessed more job seniority than the white employees that were selected for the training courses.
And, in conclusion, Williams reiterated that the pattern of discrimination by the City was a
continuation of its retaliatory tactics with regard to Williams’s initial act in 2013 of “opposing acts
made unlawful under Title VII of the Civil Rights Act.”3
Specifically, he charged:
I. I was hired by [the City] on or about 6/20/11 and I am currently employed as a
Maintenance Electrician.
II. On or about 11/14, Maintenance Electricians, white, were selected for and
thereafter completed an industrial motor control training course. I had more
seniority than two of the Maintenance Electricians, as did another black
Maintenance Electrician.
III. I believe this is discrimination against me because of my race, black, in
violation of Title VII of the Civil Rights Act of 1964, as amended, and retaliation
against me for opposing acts made unlawful under Title VII of the Civil Rights Act
of 1964, as amended.
Ex. 202 (emphasis added).
On October 7, 2016, Williams filed an Amended Charge of Discrimination (amending the
2015 Charge) against the City with the Commission (“2016 Charge”). In the 2016 Charge,
Williams again alleged that he had been discriminated against because of his race and retaliated
against. However, in this Charge, Williams more particularly documented a discriminatory
scheme by the City to allow less senior white employees to take educational training courses
offered by the City so that the white employees could receive job promotions while the more senior
black employees were denied access to the training courses offered by the City and, consequently,
were not in an educational position to receive the same promotional opportunities as the white

3 This is a significant incorporation of evidence stemming from the 2014 Charge and there is little doubt that
this statement is, in fact, referencing the allegations made in the 2014 Charge; for, the only time Williams had ever
documented retaliatory actions by the City in response to his conduct of “opposing” discriminatory conduct was in
response to his act of signing a written statement opposing the City’s discrimination of his fellow employee—all of
which emanates from the complaints charged in the 2014 Charge.
5
employees. Williams pointed out that the City’s scheme included attempting to pacify the black
employees by assuring them that more training courses would be offered by the City to the black
employees when, in fact, the City never offered such courses and Williams intimates in the 2016
Charge that he believed that the City never intended to offer the training courses to the black
employees as Williams concludes his allegations by stating that this pattern of hostility towards
Williams and his fellow black co-employees was a continuing action by the City. Specifically, he
charged:
I have worked for the City of Kansas City, Missouri, for approximately seventeen
years and have been in the Water Services Department for the last five years. Since
November, 2014, when less-senior white employees were permitted to take an
Industrial Motor Control Training Course, management has been offering to allow
myself and other African-Americans the opportunity to take such a class. The
White employees were paid while taking this class. Initially, we were told that
there would be two groups taking the class. The White employees were permitted
to take the class first. Neither myself nor any other African-Americans have been
offered the same course. I believe that the City intended to use this class as a basis
for reclassifying employees, as mention of a new job position of Utility Electrician
was made and I believe this course would have been used as a qualification for that
position. I complained to the Superintendent, Steve Berry, about the White
employees getting to take the class and none of the African-American employees
getting to and about wanting to talk to Human Resources about the new job
position. After that, there has not been any more mention of the Utility Electrician
position. Management continued to tell us that there would be a second class after
the first group had finish[ed], it was even mentioned after I initially filed my charge.
To this date, no second class has ever been offered.
I believe that the City and the management at the Water Plant singled out the
African-Americans and selected the White employees to take the class and that our
race played a role in the decision; we had been asking to take the course for years
prior to it being offered to the White employees. I believe this is a clear pattern and
practice by the City of permitting White employees to receive better training than
African-Americans, that would put the White employees in a better position for
promotion.
Ex. 203. On April 20, 2018, the Commission issued Williams a notice of his right to sue under
the MHRA. The notice informed Williams that he must bring a civil action against the City within
ninety days of the date of the notice or his right to sue would be lost. Ex. 204.
6
Williams timely filed a Petition for Damages against the City on July 13, 2018. Williams
alleged a pervasive and continuing pattern and practice of discrimination that all started after he
signed a written statement of support opposing discrimination of his co-employee by the City.
Williams alleged that the discriminatory conduct began in the fall of 2013 and that the City’s
conduct was always subtle yet always designed to create an offensive workplace environment.
Williams described details about how, in 2014, the City offered an Industrial Motor Control
Training Course to the maintenance electricians of the Water Services Department but only
permitted Williams’s less qualified and less senior white co-employees to take the course.
Williams also documented the discriminatory pattern relating to the training courses by detailing
the City’s scheme to insist that additional training courses would be offered to black employees
although, in fact, none were ever offered, thereby blocking black employees from getting the
training that would have allowed them to be considered for job promotions. Williams alleged
numerous occasions where one of his supervisors stated that black electricians were incompetent;
that white employees were given preferential treatment over black employees; that less qualified
white employees were promoted over more qualified black employees; that black employees were
disciplined for identical workplace actions that white employees were never disciplined for; that
black employees were ignored by their supervisors when complaints were lodged about unfair and
discriminatory treatment; and that the City’s supervisors continued to allow the hostile and
retaliatory work environment to continue to exist for Williams and his fellow black co-employees.
Williams alleged that the ongoing and continuous pattern of harassment, discriminatory conduct,
and retaliatory conduct rendered his working conditions so intolerable that he was forced to quit
his job with the City. Williams asserted claims of discrimination based on race, illegal retaliation,
and hostile work environment, all in violation of the MHRA. L.F. Doc. 2.
7
The trial court conducted a jury trial January 27 through February 6, 2020. At the
conclusion of the evidence, the trial court instructed the jury on each count asserted by Williams
in his Petition. The jury returned a verdict in the City’s favor on Williams’s race discrimination
claim, but returned verdicts in Williams’s favor on his retaliation and hostile work environment
claims. On the retaliation claim, the jury assessed compensatory damages at $160,000 and punitive
damages at $126,000; on the hostile work environment claim, the jury assessed compensatory
damages at $126,000 and punitive damages at $378,000.
On March 9, 2020, the City filed three post-trial motions: Motion for JNOV, Motion for
New Trial, and Motion for Merger of Compensatory Damages. On May 20, 2020, the trial court
entered an order denying each motion. On May 22, 2020, the trial court entered its Final Judgment
and Order on the jury’s verdicts and also awarded Williams $474,456.25 in attorneys’ fees,
including a 1.5 multiplier, and $4,720 in expenses and costs. On June 1, 2020, the City filed
renewed post-trial motions for JNOV, new trial, and merger of compensatory damages, and an
additional motion for new trial. The trial court entered an order denying the motions on July 27,
2020.
On June 9, 2020, the City timely appealed from the May 22, 2020 judgment, which appeal
was assigned case number WD83835. On July 30, 2020, the City timely appealed from both the
May 22, 2020 judgment and the July 27, 2020 order, which appeal was assigned case number
WD83938. By written order dated July 30, 2020, this Court consolidated the appeals under case
number WD83835.
Points on Appeal
The City asserts nine points on appeal. In Point I, the City contends that the trial court
erred in denying the City’s motion for JNOV because the City proved its affirmative defense of
8
failure to exhaust administrative remedies in that the charges of discrimination filed with the
Commission did not contain a claim of hostile work environment. In Points II, III, IV, V, and VI,
the City asserts instructional error. In Point VII, the City asserts trial court error in the admission
of evidence. In Point VIII, the City contends that the trial court erred in denying the City’s motion
to merge the compensatory damage verdicts for retaliation and hostile work environment. Finally,
in Point IX, the City avers that the trial court erred in awarding Williams attorney fees with a 1.5
multiplier. Additional facts necessary to the resolution of the issues on appeal will be discussed
below. Similar points will be addressed together.
Analysis
Point I
In the City’s first point, it asserts that the trial court erred in denying its motion for JNOV
because it proved its affirmative defense of failure to exhaust administrative remedies in that the
charges of discrimination filed with the Commission did not contain a claim of hostile work
environment.
Standard of Review
“‘The standard of review of the denial of a JNOV is essentially the same as the overruling
of a motion for directed verdict.’” Darks v. Jackson Cnty., 601 S.W.3d 247, 254 (Mo. App. W.D.
2020) (quoting W. Blue Print Co., LLC v. Roberts, 367 S.W.3d 7, 14 (Mo. banc 2012)). “‘A case
may not be submitted unless each and every fact essential to liability is predicated upon legal and
substantial evidence.’” Id. (quoting Moore v. Ford Motor Co., 332 S.W.3d 749, 756 (Mo. banc
2011)). “Whether a plaintiff has made a submissible case is a question of law subject to de novo
review, . . . but the evidence is viewed in the light most favorable to the result reached by the jury,
giving the plaintiff the benefit of all reasonable inferences and disregarding evidence and
9
inferences that conflict with that verdict.” Id. (citation omitted) (internal quotation marks omitted).
“Indeed, ‘[t]he jury’s verdict will be reversed only if there is a complete absence of probative facts
to support the jury’s conclusion.’” Id. (quoting Keveney v. Mo. Military Acad., 304 S.W.3d 98,
104 (Mo. banc 2010)). “We will only reverse a trial court’s denial on a motion for JNOV or
directed verdict if either the plaintiff has not made a submissible case or the defendant establishes
an affirmative defense as a matter of law.” Payne v. Fiesta Corp., 543 S.W.3d 109, 126 (Mo. App.
E.D. 2018) (emphasis added). Here, the City does not assert that Williams has not made a
submissible case; instead, the City contends that it established its affirmative defense as a matter
of law.
Preservation of Error
As a threshold issue, Williams argues that the City waived its affirmative defense on the
hostile work environment claim by not properly pleading it in its First Amended Answer.
For background, Williams has consistently objected to the City’s pleading on this
affirmative defense on the grounds that the City’s affirmative defense lacks the required “factual
basis” in support of the defense. In response to the City’s original Answer to Williams’s Petition,
Williams moved to strike the affirmative defense allegation for failing to include a factual basis,
thereby rendering the alleged affirmative defense nothing more than conclusory statements. In
particular, Williams argued in his motion to strike:
Failure to exhaust administrative remedies is not specifically listed in Rule 55.08,
but it is, nevertheless, an affirmative defense that Defendant must plead. See
McCracken v. Wal-Mart Stores East, LP, 298 S.W.3d 473, 477 (Mo. banc 2009);
Evans v. Empire Dist. Electric Co., 346 S.W.3d 313, 316 (Mo. App. W.D. 2011);
and Kerr v. Mo. Veterans Comm’n, 537 S.W.3d 865, 875 (Mo. App. W.D. 2017).
Pursuant to Rule 55.08 an affirmative defense must “contain a short and plain
statement of the facts showing that the pleader is entitled to the defense.” (emphasis
added). “The factual basis for an affirmative defense must be presented in the same
manner as is required for pleading claims under the Missouri Rules of Civil
10
Procedure.” American First Federal v. Battlefield Ctr., 282 S.W.3d 1, 7 (Mo. App.
E.D. 2009). To properly assert an affirmative defense, Defendant must “clearly
and precisely [assert] additional facts which serve to avoid the defendant’s legal
responsibility.” Id. “A pleading that . . . does not plead the specific facts required
to support the affirmative defense fails to adequately raise the alleged affirmative
defense, and the alleged affirmative defense fails as a matter of law.” Ditto, Inc. v.
Davids, 457 S.W.3d 1, 15 (Mo. App. W.D. 2014).
L.F. Doc. 44, at 3-4. In response, the trial court granted Williams’s motion to strike and, in
pertinent part, stated that the City’s affirmative defense pleadings:
fail to fulfill the requirements of Mo.R.Civ.P. 55.08 in that these paragraphs fail to
“contain a short and plain statement of the facts showing that the pleader is entitled
to the defense.” The Defendant has failed here to clearly and precisely state facts
which serve to avoid the defendant’s legal responsibility. A pleading that does not
plead the specific facts required to support the affirmative defense fails to
adequately raise the alleged affirmative defense, and it fails as a matter of law.
Ditto, Inc. v. Davids, 457 S.W.3d 1, 15 (Mo. App. W.D. 2014). Defendant’s
allegations are conclusory at best . . . .
L.F. Doc. 60, at 2. Knowing that its previous affirmative defense pleadings were stricken, in part,
because of the failure to “clearly and precisely state facts” in support thereof, after seeking and
receiving leave of the trial court to file an amended responsive pleading, the City included two
failure-to-exhaust affirmative defenses in its First Amended Answer, one of which related to
constructive discharge:
81. Plaintiff voluntarily resigned his employment with the City in January 2017.
He cannot maintain any claim of constructive discharge because such a claim has
not been exhausted with the Missouri Commission on Human Rights, and could not
have been exhausted, prior to filing suit. When Plaintiff filed his Charge of
Discrimination and Amended Charge of Discrimination, he was still employed by
the City and there were no allegations in the Charge of Discrimination or Amended
Charge of Discrimination that would have put the City on notice that Plaintiff was
bringing a claim of constructive discharge. (RSMo. § 213.075).
L.F. Doc. 62, ⁋ 81. The other failure-to-exhaust affirmative defense stated:
78. Plaintiff’s Charge of Discrimination and Amended Charge of Discrimination
only serve to exhaust claims that are related to the City’s offering of the Industrial
Motor Control Training Course. Any of the factual allegations in Plaintiff’s
Petition which do not pertain to the particulars included in his Charge of
11
Discrimination and Amended Charge of Discrimination have not been adequately
exhausted prior to filing suit as required by the MHRA (RSMo. § 213.075 and
§ 213.111) and related case law.
L.F. Doc. 62, ⁋ 78. Thus, unlike the affirmative defense relating to the constructive discharge
claim (i.e., specific factual allegation that Williams was still employed by the City at the time of
the constructive discharge Charge of Discrimination), in the affirmative defense relating to the
hostile work environment claim, the City paints with a broad legal and factual brush that ignores
express language contained within the actionable charges of discrimination that, ironically, it seeks
to criticize for its lack of particularity and, in so doing, requires the reader of the City’s affirmative
defense to speculate as to what language from the actionable charges of discrimination the City is
criticizing in its affirmative defense and search elsewhere in the City’s eighteen-page amended
pleading to attempt to appreciate what the City is arguing in its affirmative defense.
For example, is the City attempting to assert that the 2014 Charge allegations (which it
concedes it had notice of) may not be considered as factual allegations relating to the hostile work
environment claim even though the 2014 Charge is incorporated and included as factual allegations
supporting the 2015 Charge in the last sentence? If so, how does the City explain in its affirmative
defense why it is legally entitled to ignore the last sentence from the 2015 Charge that clearly
refers to Williams’s 2014 Charge allegation of “opposing” the City’s discriminatory action as to
his work colleague? Which of Plaintiff’s “factual allegations in Plaintiff’s Petition” do not
“pertain” to Williams’s actionable charges of discrimination? Specifically, for example, which of
Plaintiff’s “factual allegations in Plaintiff’s Petition” do not pertain to discriminatory actions taken
against Williams for “opposing acts made unlawful under Title VII of the Civil Rights Act of 1964,
as amended” (i.e., Williams “opposed” discriminatory misconduct towards his fellow employee in
July 2013 when he signed a statement “opposing” such discriminatory misconduct in support of
12
his co-employee’s claim of discrimination against the City)? Likewise, is the City claiming that
accusations of “incompetence” of black employees do not “pertain” to a Charge that black
employees are pervasively, intentionally, and continuously denied access to the City’s training
courses? Is the City claiming that allegations of discriminatory complaints by Williams falling on
deaf ears with City supervisors do not “pertain” to the City ignoring the requests of Williams and
his fellow black co-employees requesting remedial steps to correct the hostile and retaliatory
workplace environment? We can’t know precisely what the City intends by this affirmative
defense because the City simply has failed to articulate what “factual allegations” of the Plaintiff’s
Petition “pertain,” or do not “pertain,” to the actionable charges of discrimination Williams filed.
What we do know is that at or about the same time the City filed its Amended Answer, it
also filed its motion for summary judgment relating to the exhaustion of remedies defense. Once
again, Williams responded with objections to the affirmative defense as constituting nothing more
than “bare assertion[s],” L.F. Doc. 88, at 20, to support its “conclusory statements” of legal
responsibilities, L.F. Doc. 88, at 21. Williams’s response demonstrated the City’s disregard for its
legal responsibility to clearly and precisely state facts in support of its affirmative defense in any
of its pleadings. Instead, as Williams argued, the City improperly attempted to shift the burden
upon Williams to guess what facts the City was relying upon to support its affirmative defense and
to independently come forward with facts to disprove the City’s unidentified facts. L.F. Doc. 88,
at 16. We also know that the trial court was similarly unimpressed when it stated in its Order
overruling the City’s motion for summary judgment that “[t]here is no factual showing that
plaintiff has failed to satisfy the requirements of Sec. 213.075.” L.F. Doc. 131, at 2. The trial
court went on in its Order to state:
What is clear, however, is that Mr. Williams raise[s] allegations which included
preferential treatment of white employees in training and promotional
13
opportunities; that the acts complained of are part of an ongoing and continuous
pattern or practice of discrimination and/or retaliation by Defendant; and that
Defendant has created a hostile work environment . . . .
L.F. Doc. 131, at 3. We agree with the trial court that the City, though warned by the trial court,
has continuously failed to meet its affirmative defense pleading obligations.
Rule 55.08 requires a party to “set forth all applicable affirmative defenses” by providing
“a short and plain statement of the facts showing that the pleader is entitled to the defense.” “Bare
legal assertions are insufficient to plead an affirmative defense.” Mo. Landowners All. v. Grain
Belt Express Clean Line LLC, 561 S.W.3d 39, 44 (Mo. App. W.D. 2018) (internal quotation marks
omitted). “Where a party pleads only conclusory statements without pleading the specific facts
required to support the affirmative defense, the party has failed to adequately raise the affirmative
defense, and it fails as a matter of law.” Id. “The purpose of this rule is ‘to ensure that an opposing
party is informed of and prepared to address the issues being raised by the defense.’” Id. (quoting
Dieser v. St. Anthony’s Med. Ctr., 498 S.W.3d 419, 429 (Mo. banc 2016)).
Simply put, the City’s affirmative defense pleading in its Answer, and later, Amended
Answer is nothing more than a conclusory statement of bare legal assertions that both ignores
express language contained within the actionable charges of discrimination and fails to plead
specific facts required to support its affirmative defense.
Similarly, the City failed to preserve its claimed error relating to this affirmative defense
in that its motion for directed verdict lacked specificity and, thus, preserved nothing for appeal,
Pope v. Pope, 179 S.W.3d 442, 450-51 (Mo. App. W.D. 2005), and this failure renders a
subsequent motion for judgment notwithstanding the verdict without basis and, likewise, preserves
nothing for appeal. Mansfield v. Horner, 443 S.W.3d 627, 638 (Mo. App. W.D. 2014). Point I
fails for this reason alone.
14
However, because the dissenting opinion chooses to liberally construe4
the City’s
unpreserved affirmative defense in contravention of Rule 55.08 and cases interpreting Rule 55.08
and cited above, we will address, arguendo, other shortcomings of the City’s argument on Point I
as it relates to the City’s position that it has substantively proven its affirmative defense below as
a matter of law.
Analysis
Before a claimant under the MHRA files suit in the circuit court, he is required to file a
verified complaint with the Commission “in order to give the agency the opportunity to determine
the validity of the claim, to investigate, and to determine if there is probable cause that
discrimination has taken place.” Kerr v. Mo. Veterans Comm’n, 537 S.W.3d 865, 874 (Mo. App.
W.D. 2017) (internal quotation marks omitted). “The purpose of requiring parties to file a charge
of discrimination is to give the charged party notice of the claim, to give the [investigating agency]
the opportunity to settle the dispute, and to narrow the issues for prompt adjudication.” Id. at 875
(internal quotation marks omitted). “In order to exhaust all administrative remedies, the claimant
must give notice of all claims in the administrative complaint.” Kerr, 537 S.W.3d at 874 (internal
quotation marks omitted).
Although exhaustion requires a claimant to give notice of all claims of discrimination in
the administrative complaint, “‘administrative complaints are interpreted liberally in an effort to
further the remedial purposes of legislation that prohibits unlawful employment practices.’”
Farrow v. Saint Francis Med. Ctr., 407 S.W.3d 579, 594 (Mo. banc 2013) (quoting Alhalabi v.

4
It is ironic and disconcerting that the dissenting opinion chooses to liberally construe the City’s affirmative
defense where Missouri is a fact pleading state and not a notice pleading state, see ITT Com. Fin. Corp. v. Mid-Am.
Marine Supply Corp., 854 S.W.2d 371, 379 (Mo. banc 1993) (“Missouri is not a ‘notice pleading’ state.”); State ex rel.
Harvey v. Wells, 955 S.W.2d 546, 547 (Mo. banc 1997) (“The Missouri rules of civil procedure require fact
pleading.”)—and yet, the dissenting opinion refuses to liberally construe Williams’s actionable charges of
discrimination even where our Missouri Supreme Court has mandated that we must do so. Farrow v. Saint Francis
Med. Ctr., 407 S.W.3d 579, 594 (Mo. banc 2013).
15
Mo. Dep’t of Nat. Res., 300 S.W.3d 518, 525 (Mo. App. E.D. 2009)). “‘As a result, administrative
remedies are deemed exhausted as to all incidents of discrimination that are like or reasonably
related to the allegations of the administrative charge.’” Kerr, 537 S.W.3d at 874 (quoting
Alhalabi, 300 S.W.3d at 525). “A claim is ‘like or reasonably related’ to the . . . charge [of
discrimination] . . . if there is a factual relationship between them.” Id. at 875 (internal quotation
marks omitted). When determining whether the claims in a subsequent civil suit are “like or
reasonably related” to the allegations contained in the administrative charge, our Supreme Court
has held that “‘the scope of the civil suit may be as broad as the scope of the administrative
investigation which could reasonably be expected to grow out of the charge of discrimination.’”
Farrow, 407 S.W.3d at 594 (quoting Alhalabi, 300 S.W.3d at 525).
“‘[A]n affirmative defense seeks to defeat or avoid a plaintiff’s cause of action, and alleges
that even if plaintiff’s petition is true, plaintiff cannot prevail because there are additional facts
that permit the defendant to avoid legal responsibility.’” Lehman v. Auto. Invs., LLC, 608 S.W.3d
733, 738 (Mo. App. E.D. 2020) (quoting Templeton v. Cambiano, 558 S.W.3d 101, 104 (Mo. App.
W.D. 2018)). “Defendants carry the burden of proof on all affirmative defenses.” Id. (internal
quotation marks omitted). For the City to prove that Williams’s hostile work environment claim
was not exhausted, the City had the burden to establish that: (1) Williams’s administrative
complaint did not give the City notice of the hostile work environment claim; and (2) the hostile
work environment claim was not like or reasonably related to the allegations of the administrative
charge in that there was no factual relationship between them. The City cannot meet either of
these elements of proof.
In evaluating this premise, it is important to note what the City is not arguing. First, the
City is not arguing that it did not have notice of Williams’s 2014 Charge and, instead, concedes
16
that it had notice of the 2014 Charge at or near the time the 2014 Charge was filed with the
Commission. Specifically, then, the City was aware that when Williams opposed the City’s racial
discrimination of one of his co-employees and he took the step to write and sign a statement of
support for his co-employee’s discrimination claim, Williams alleged that the City began to turn
its focus on discriminating and retaliating against him by way of unfair reprimands.
Next, the City does not argue that, had Williams merely re-stated verbatim the exact text
of his 2014 Charge as part of his 2015 Charge, the City could have pursued its current affirmative
defense claim. Instead, at oral argument of this appeal, the City’s counsel conceded that if
Williams had re-stated the text of his 2014 Charge in his 2015 Charge:
I believe that’s what the Alhalabi5
case says, “I had other complaints, they were
older all of those I’m complaining about again.” Yeah, yeah, I think if that’s in [the
2015 Charge or 2016 Charge] then [the City] wouldn’t be here saying that that’s
not exhausted.6
And, the City does not take the position that it knows what the last sentence of the 2015
Charge means, only that it does not know what it refers to and should not thus be placed on notice
of what that sentence may reasonably be referring to. For multiple reasons, herein lies the fatal
flaw of the City’s purported affirmative defense.
First, a reasonable—let alone liberal—construction of the 2015 Charge is that Williams
has incorporated by reference his 2014 Charge.

5 Alhalabi v. Mo. Dep’t of Nat. Res., 300 S.W.3d 518 (Mo. App. E.D. 2009), discussed infra.
6 We presume that the City is referring to and recognizing the “continuing violation” theory on Missouri
Commission on Human Rights (“MCHR”) complaints:
Under the “continuing violation” theory, a plaintiff may pursue a claim for an event that occurred
prior to the 180-day statute of limitations for filing a claim of discrimination with the MCHR if the
plaintiff can demonstrate that the event is part of an ongoing practice or pattern of discrimination
by the employer.
Tisch v. DST Sys., Inc., 368 S.W.3d 245, 252 (Mo. App. W.D. 2012) (internal quotation marks omitted).
17
The 2014 Charge documents Williams writing a statement of support for a fellow employee
who was being racially discriminated against by the City; then, Williams alleges that he suffers
from an unfair reprimand by the City; and then, Williams specifically alleges that the reason for
the City’s conduct is in retaliation “for participating in the protected activity of writing a statement
of support of another person’s complaint of discrimination, in violation of Title VII of the Civil
Rights Act.” In so doing, Williams has effectively detailed his opposition to racial discrimination
against his fellow employee by signing a statement of “support” for his co-employee which led to
discriminatory misconduct by the City towards Williams. Importantly, the City admits in its
Amended Answer that “the 2014 Charge of Discrimination raises similar issues of race
discrimination, retaliation, and hostile work environment.” L.F. Doc. 62, ⁋ 79(b) (emphasis
added).7
Then, in the 2015 Charge—after detailing additional instances of discriminatory practices
implemented by the City in discriminating against Williams and his fellow black co-employees as
it related to training opportunities (or lack thereof for black employees)—Williams states in the
last sentence of his 2015 Charge:
I believe this [i.e., multiple acts of training discrimination to black employees] is
discrimination against me because of my race, black, in violation of Title VII of the
Civil Rights Act of 1964, as amended, and retaliation against me for opposing acts
made unlawful under Title VII of the Civil Rights Act of 1964, as amended [i.e.
opposing the City’s racial discrimination in his written letter of support for his
fellow black co-employee].

7 The dissenting opinion contends that there is nothing about the 2014 Charge that raises the issue of a hostile
work environment. Not only is this suggestion misleading, it is clearly not an argument raised by the City in this
appeal. “An appellate court’s role is to review specifically challenged trial court rulings, not to sift through the record
to detect possibly valid arguments.” Geiler v. Liberty Ins. Corp., 621 S.W.3d 536, 547 (Mo. App. W.D. 2021) (internal
quotation marks omitted). “This narrow role reflects the interwoven policy interests governing appellate review,
including the reviewing court’s duty not to act as advocate for any party; the efficient use of judicial resources; notice
and fairness to the parties; judicial decision-making based on fully-briefed issues; and the law’s preference for finality
of judgments.” Id. (internal quotation marks omitted).
18
(Emphasis and bracketed phrasing added). Since the only act in which Williams had “opposed”
discrimination was from the 2014 Charge, how can it reasonably be said that Williams has not
incorporated his 2014 Charge into his 2015 Charge? At bare minimum, if read “liberally,” as we
are required to do, it simply cannot be said that Williams was not placing the City on notice that
he believed the City’s earlier discriminatory misconduct—when combined with the numerous
training schemes designed by the City to keep Williams and his fellow black employees from
ascending to a higher stature of employment—was part of a deliberate attempt to create a pervasive
racially discriminatory and offensive work environment that would force Williams to leave (i.e., a
hostile work environment).
Second, even if the last sentence of the 2015 Charge is somehow construed to not refer
back to Williams’s opposition to the City’s racial discrimination of his co-employee and written
statement in support of such co-employee, the scope of any reasonable administration investigation
of the last sentence would invariably lead the Commission right back to the 2014 Charge
allegations, allegations which the City admits raises the “issues of race discrimination, retaliation,
and hostile work environment.” L.F. Doc. 62, ⁋ 79(b) (emphasis added). In that event, much like
the Court in Alhalabi v. Missouri Department of Natural Resources, 300 S.W.3d 518, 526 (Mo.
App. E.D. 2009), we must end up in the same place: that Williams’s 2015 Charge (as amended
by the 2016 Charge) has adequately pled facts placing the City on notice of a hostile work
environment claim.
In Alhalabi, Mr. Alhalabi (“employee”) filed a timely charge of discrimination with the
Commission, which issued employee a notice of his right to sue. Id. at 524. Employee filed a
petition for employment discrimination in violation of the MHRA against his employer. Id. After
a trial, the jury found in favor of the employer on employee’s discrimination and retaliation claims
19
against it. Id. However, the jury found in favor of employee on his hostile work environment
claim. Id. Employer subsequently filed a motion for JNOV or, in the alternative, for a new trial,
which was denied. Id. Employer appealed, arguing that the trial court erred in entering its
judgment because employee failed to exhaust his administrative remedies as required under the
MHRA. Id.
The Alhalabi court noted that the Missouri Supreme Court takes a liberal approach to the
fulfillment of procedural requirements under the MHRA, citing Hill v. Ford Motor Co., 277
S.W.3d 659, 670 (Mo. banc 2009), where the Court noted the importance of “the availability of
complete redress of legitimate grievances without undue encumbrance by procedural requirements
especially [in cases where] demanding full and technical compliance would have no relation to the
purposes for requiring those procedures in the first instance.” According to the Alhalabi court,
“exhaustion requires a claimant to give notice of all claims of discrimination in the administrative
complaint, but administrative complaints are interpreted liberally in an effort to further the
remedial purposes of legislation that prohibits unlawful employment practices.” Alhalabi, 300
S.W.3d at 525.
The facts of Alhalabi are strikingly similar to the present case. In Alhalabi, the employee’s
charge of Discrimination described two incidents of reprimands based upon racial discrimination,
generally “allude[d] to previous complaints” about discrimination which led to the employee being
harshly targeted and disciplined, and the employee “checked the box on the Charge of
Discrimination form signifying the discriminatory conduct was continuing, and [employee] listed
a span of over two years . . . on which the discrimination took place.” Id. at 526. The Eastern
District of this Court concluded:
Unlike in cases where there was a discrete act of discrimination, Alhalabi’s Charge
of Discrimination describes pervasive racially discriminatory conduct. Racial
20
discrimination creates a hostile work environment when discriminatory conduct
either creates an intimidating, hostile, or offensive work environment or has the
purpose or effect of unreasonably interfering with an individual’s work
performance. See Hill, 277 S.W.3d at 666. In most claims of hostile work
environment harassment, the discriminatory acts are not of a nature that can be
identified individually as significant events; instead, the day-to-day harassment is
primarily significant, both as a legal and as a practical matter, in its cumulative
effect. Pollock v. Wetterau Food Distribution Group, 11 S.W.3d 754, 763 (Mo.
App. E.D. 1999). We find in this case Alhalabi’s Charge of Discrimination
adequately alleges a claim for a hostile work environment.
Id. Here, Williams’s 2015 and 2016 Charges of Discrimination are virtually identical in substance
as that of Alhalabi. Williams documents in his Charges that, after “opposing acts made unlawful
under Title VII of the Civil Rights Act,” he was retaliated against by way of racially motivated
discipline; Williams alleged racially motivated denied opportunities for training that had been
going on for years, alleged it was a “pattern” of choosing less qualified white employees over
African-American employees, and that the discriminatory training scheme went so far as to include
illusory and false promises of additional training courses for Williams and his fellow black
co-employees when, in fact, no such additional training courses were ever offered at any time to
Williams or his fellow black co-employees; and Williams checked the box on each of his Charges
of Discrimination forms signifying that the discriminatory conduct was continuing and had lasted
for years—from the fall of 2013 through the spring of 2015 and beyond. Hence, as in Alhalabi,
we similarly conclude that Williams’s actionable Charges of Discrimination adequately alleged a
claim for a hostile work environment.
Additionally, the Alhalabi court identified an alternative basis for judging the adequacy of
the employee’s charge of discrimination and his corresponding hostile work environment claim,
stating:
even if we assume for argument’s sake that Alhalabi’s charge of discrimination
does not set forth a claim for a hostile work environment, it is likely that the scope
of the administrative investigation which could reasonably be expected to grow
21
out of the charge of discrimination would include an investigation of whether
Alhalabi was employed in a hostile work environment. Thus, the charge of
discrimination would be adequate to raise the claim in this case.
Id. (emphasis added). Here, again, the same is true. Even if we were to assume for argument’s
sake that, as the City argues, Williams’s 2015 and 2016 charges of discrimination do not set forth
a claim for a hostile work environment, it is reasonable to expect that any administrative
investigation growing out of the 2015 and 2016 Charges of “continuing” discrimination would
include an investigation of what Williams meant by the second half of his last sentence in his 2015
Charge: that Williams was also being retaliated against by the City for “opposing acts” of
discrimination by the City—where no such “opposition” is described anywhere previously in the
2015 Charge. This investigation, if reasonably performed, would surely lead back to the 2014
Charge and the corresponding allegations of discrimination in that Charge. And, in so doing, the
Commission would have been alerted—as would the City—to a bigger pattern of discrimination
alleged by Williams that spanned years, not months.
Similar to Alhalabi, Williams failed to use the explicit phrase “hostile work environment”
in his administrative charge. However, regardless of whether Williams’s actionable charges of
discrimination alleged a hostile work environment claim, the critical question for this Court is
“whether the claims set forth in [Williams’s] petition were within the scope of the administrative
investigation which ‘could reasonably be expected to grow’ out of his administrative charge.”
Jeffery v. St. Louis Fire Dep’t, 506 S.W.3d 394, 400 (Mo. App. E.D. 2016) (quoting Alhalabi, 300
S.W.3d at 525). The City argues that Williams’s allegations in his administrative charges “solely
relate to training and a specific promotion.” But, in doing so, the City ignores the last sentence of
the 2015 Charge—while simultaneously conceding that if that sentence is designed to refer back
to Williams’s “opposition” to the City’s alleged discrimination of his co-employee and the events
22
that transpired after he “opposed” the City’s discrimination—then the City’s affirmative defense
fails.
More importantly, the City offers no suggestion that it was never apprised of Williams’s
“continuing” allegations of discrimination that dated back to the 2014 Charge; to the contrary, it
is uncontested that the City received the 2014 Charge of Discrimination allegations in addition to
the 2015 and 2016 Charges of Discrimination. And, if the principle that “administrative
complaints are to be interpreted liberally,” Farrow, 407 S.W.3d at 594, is to be balanced with the
notion that the purpose of an administrative charge is to “give the charged party notice of the
claim,” Kerr, 537 S.W.3d at 875, can the City, like the employer in Farrow, honestly claim that
“[t]he first time [the City] was apprised of [the factual allegations of the 2014 Charge],” Farrow,
407 S.W.3d at 594, was when Williams filed his lawsuit?8
Of course not. Instead, it is clear from
the record that the City was well aware of the 2014 Charge allegations of discrimination (both by
seeing those allegations when first made in 2014 and when reiterated in the 2015 Charge)
described by Williams in his actionable administrative charges that ultimately were mirrored in
Williams’s lawsuit against the City.
“Racial discrimination creates a hostile work environment when ‘discriminatory conduct
either creates an intimidating, hostile, or offensive work environment, or has the purpose or effect
of unreasonably interfering with an individual’s work performance.’” McGaughy v. Laclede Gas

8
In Farrow, the Supreme Court concluded that the claimant was limited to “the events that occurred prior to
her December 2008 discharge,” and could not include additional allegations of discrimination that she suffered from
after her discharge, because the employer had no notice of those allegations (in the form of an administrative Charge
of Discrimination) until the claimant filed the lawsuit. Farrow, 407 S.W.3d at 594. Here, conversely, the City
concedes that Williams has not attempted to assert allegations in his petition that post-dated his separation from
employment with the City and that the City was well aware of the allegations contained in the 2014 Charge because
it had received a copy of the 2014 Charge upon its filing with the Commission; more importantly, Williams referenced
back to the 2014 Charge in the last sentence of the 2015 Charge—again placing the City on notice of his intent to
pursue a claim arising out of the cumulative effect of both the 2014 and 2015 “continuous action” discriminatory
charges.
23
Co., 604 S.W.3d 730, 748 (Mo. App. E.D. 2020) (quoting Alhalabi, 300 S.W.3d at 526). It cannot
fairly be suggested that the City was not well aware and otherwise placed on notice of Williams’s
hostile work environment claims via the actionable administrative charges of discrimination
Williams filed prior to filing the underlying lawsuit against the City. “Accordingly, [Williams]
exhausted his available administrative remedies prior to filing his petition in the circuit court.”
Jeffery, 506 S.W.3d at 400.
The City has (1) failed to preserve its affirmative defense claim for appellate review, and
(2) alternatively, failed to prove its affirmative defense as a matter of law; consequently, the trial
court did not err in denying the City’s motion for JNOV.
Point I is denied.
Standard of Review for Points II, III, IV, V, and VI
“Review of the trial court’s denial of a motion for new trial is for an abuse of discretion.”
TooBaRoo, LLC v. W. Robidoux, Inc., 614 S.W.3d 29, 42 (Mo. App. W.D. 2020) (citing St. Louis
Cnty. v. River Bend Ests. Homeowners’ Ass’n, 408 S.W.3d 116, 134 (Mo. banc 2013)). The trial
court abuses its discretion when its ruling is clearly against the logic of the circumstances before
it at the time and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a
lack of careful consideration. Id. “We view the evidence in the light most favorable to the trial
court’s ruling.” Id.
Points II and IV
Because the City’s second and fourth points raise identical issues, we address them
together. In the City’s second point, it contends that the trial court erred in denying the City’s
Motion for New Trial because Instruction No. 12 misdirected, misled, or confused the jury in that
the instruction contained disjunctive alternatives that were not properly exhausted before the
24
Commission. Likewise, in the City’s fourth point, it asserts that the trial court erred in denying
the City’s Motion for New Trial because Instruction No. 16 misdirected, misled, or confused the
jury in that the instruction contained disjunctive alternatives that were not exhausted in the charges
of discrimination filed with the Commission.
Analysis
The City argues in its second point that Paragraph Second in Instruction No. 12, the verdict
director submitted to the jury on Williams’s claim for retaliation, contained unexhausted conduct
that was not reasonably related to Williams’s claims regarding the offering of the Industrial Motor
Control Training Course. The instruction read:
INSTRUCTION NO. 12
On plaintiff’s claim for retaliation, your verdict must be for plaintiff and
against defendant City of Kansas City, Missouri, if you believe:
First, plaintiff complained of discrimination or harassment that he
reasonably and in good faith believed was based on race to the Defendant’s EEO
department in 2013 and/or filed charges of discrimination during his employment,
and/or verbally complained of race discrimination to Steve Berry, and
Second, defendant either:
Treated Plaintiff as if he were incompetent, or
Accused Plaintiff of not completing or performing work in an
unsatisfactory manner, or
Denied plaintiff promotions to the Electrical Maintenance
Supervisor positions that were awarded to James Crawford
and/or Cornell Ragland, or
Denied plaintiff the opportunity to attend the 2014-2015 pilot
electrical training class, or
Accused plaintiff of sleeping on the job, and
Third, one or more of plaintiff’s complaints of discrimination or harassment
based on race was a contributing factor in such action, and
Fourth, as a direct result of such conduct, Plaintiff sustained damage.
25
L.F. Doc. 149, at 17. The City argues in its fourth point that Paragraph First in Instruction No. 16,
the verdict director submitted to the jury on Williams’s claim for hostile work environment,
contained unexhausted conduct that was not reasonably related to Williams’s claims regarding the
offering of the Industrial Motor Control Training Course. The instruction read:
INSTRUCTION NO. 16
On plaintiff’s claim for hostile work environment, your verdict must be for
plaintiff and against defendant City of Kansas City, Missouri, if you believe:
First, defendant subjected plaintiff to unwelcome harassment in any of the
following respects:
Subjecting plaintiff to unfair discipline when he was attempting to fix the
megger in 2013, or
Denying plaintiff an impartial and fair investigation into his complaints of
discrimination, or
Accusing plaintiff of sleeping on the job, or
Denying plaintiff the opportunity to attend the 2014-2015 pilot electrical
training course, or
Allowing plaintiff to be treated by his supervisors as if he were incompetent,
or
Denying plaintiff promotions to the Maintenance Electrician Supervisor
positions in 2015 where Cornell Ragland and/or James Crawford were promoted
instead, or
Giving plaintiff dangerous and/or undesirable work assignments in the lime
vats and/or the secondary plant, or
Confining plaintiff to the secondary plant with no mobility between the
years of 2013-2015, or
Failing to provide plaintiff access to the parts and/or information plaintiff
needed to perform his job duties, and
Second, that plaintiff’s race was a contributing factor in such conduct as
you find in paragraph First, and
Third, that such conduct either:
Created an intimidating, hostile, or offensive work environment, or
Had the purpose or effect of unreasonably interfering with plaintiff’s work
performance, and
Fourth, Defendant knew or should have known of the conduct and failed to
respond with appropriate remedial action, and
Fifth, as a direct result of such conduct, plaintiff sustained damage.
26
L.F. Doc. 149, at 21-22. The City contends that eight of the allegations in Paragraph First were
unexhausted, except the allegation that the City denied Williams “the opportunity to attend the
2014-2015 pilot electrical training course.” For reasons itemized in our discussion of Point I, the
City’s exhaustion of remedies affirmative defense has not been preserved for appellate review and
the same applies here, resulting in denial of Points II and IV on this basis. However, since the
dissenting opinion has concluded that the City’s affirmative defense is preserved for appellate
review, we also address the shortcomings of the City’s substantive arguments as to its affirmative
defense, arguendo.
Whether a jury was properly instructed is a question of law subject to de novo review.
Williams v. Mercy Clinic Springfield Communities, 568 S.W.3d 396, 413 (Mo. banc 2019).
Instructional error is grounds for reversal only when the instruction misdirected, misled, or
confused the jury and resulted in prejudice that materially affected the merits of the case. Id. Our
review is conducted in the light most favorable to the submission of the instruction. Id.
Much like its Point I, the City argues that Williams’s claims in his actionable administrative
charges of discrimination were limited to the electrical training course and the promotion to Utility
Electrician. The City contends that the charges of discrimination contained no allegations that
would have put the City on notice that Williams intended to raise claims: (1) regarding retaliation
for the City’s alleged treatment of him as incompetent, accusing him of not completing work or
completing work unsatisfactorily, denying him a promotion to Electrical Maintenance Supervisor,
or accusing him of sleeping on the job (Point II); or (2) regarding hostile work environment for
the City’s conduct alleged in the eight challenged allegations (Point III). See Ex. 202 & 203.
The only evidence the City relies on to support its defense that Williams failed to exhaust
his administrative remedies by not raising the disjunctive alternatives in Instruction No. 12 and
27
Instruction No. 16 with the Commission was Williams’s responses to questions posed by the City
during its offer of proof to establish its exhaustion defense. Williams was questioned regarding
specific words Williams “mentioned” or did not “mention” in the charges.
As we discussed in our analysis of the City’s first point, although “‘exhaustion requires a
claimant to give notice of all claims of discrimination in the administrative complaint, . . .
administrative complaints are interpreted liberally in an effort to further the remedial purposes of
legislation that prohibits unlawful employment practices.’” Kerr, 537 S.W.3d at 874 (quoting
Alhalabi, 300 S.W.3d at 525). “‘As a result, administrative remedies are deemed exhausted as to
all incidents of discrimination that are like or reasonably related to the allegations of the
administrative charge.’” Id. (quoting Alhalabi, 300 S.W.3d at 525). “‘Further, the scope of the
civil suit may be as broad as the scope of the administrative investigation which could reasonably
be expected to grow out of the charge of discrimination.’” Id. (quoting Alhalabi, 300 S.W.3d at
525). “A claim is like or reasonably related to the . . . charge [of discrimination] . . . if there is a
factual relationship between them.” Id. at 875 (internal quotation marks omitted).
Liberally interpreting Williams’s administrative complaint, as the Missouri Supreme Court
requires us to do in Hill v. Ford Motor Co., 277 S.W.3d 659, 670 (Mo. banc 2009), both the
language of the 2015 Charge and particularly the last sentence of the 2015 Charge, as well as “the
scope of the administrative investigation which could reasonably be expected to grow out of the
charge of discrimination[,] would include an investigation” of specific instances of the City
retaliating against Williams as described in Instruction No. 12 and creating a hostile work
environment as described in Instruction No. 16. See Alhalabi, 300 S.W.3d at 526.
Accordingly, for the numerous reasons identified above, the trial court did not abuse its
discretion in denying the City’s motion for new trial.
28
Points II and IV are denied.
Point III
In the City’s third point, it asserts that Instruction No. 12 contained disjunctive alternatives
that were not pleaded in Williams’s Petition for Damages. The City contends that Williams’s
failure to plead ultimate facts as to two disjunctive alternatives “prejudiced the City’s defense of
this case at trial” in that it “was caught by surprise when Mr. Williams submitted claims to the jury
which were not supported by pleaded facts” and “resulted in the jury being allowed to find in
Mr. Williams’ favor as to retaliation when all alternatives were not properly pleaded.” In the City’s
fifth point, it asserts that Instruction No. 16 contained a disjunctive alternative for which Williams
stipulated he did not have a right to sue.
Analysis
“‘A party cannot complain of error in the instruction of an opposing party which is common
to instructions of both parties.’” Travelers Com. Cas. Co. v. Vac-It-All Servs., Inc., 451 S.W.3d
301, 307 (Mo. App. E.D. 2014) (quoting Layton v. Pendleton, 864 S.W.2d 937, 941 (Mo. App.
W.D. 1993)). The two disjunctive alternatives in Paragraph Second of Instruction No. 12
challenged by the City were that the City either “[d]enied plaintiff promotions to the Electrical
Maintenance Supervisor positions that were awarded to James Crawford and/or Cornell Ragland,
or . . . [a]ccused plaintiff of sleeping on the job[.]” The City offered the identical language in its
proposed Instruction No. H, that the City either: “[d]enied plaintiff promotions to the electrical
Maintenance Supervisor positions that were awarded to James Crawford and/or Cornell Ragland,
or . . . [a]ccused plaintiff of sleeping on the job at East Bottoms[.]” L.F. Doc. 150, at 8. Thus, by
the City using the exact same language in the verdict director it proffered on Williams’s claim for
retaliation, the City waived any objection to Paragraph Second of Williams’s verdict director.
29
Travelers Com. Cas. Co., 451 S.W.3d at 307 (citing Layton, 864 S.W.2d at 941; Gurley v.
Montgomery First Nat’l Bank, N.A., 160 S.W.3d 863, 872 n.4 (Mo. App. S.D. 2005); In re Care
& Treatment of Coffman, 92 S.W.3d 245, 251 (Mo. App. E.D. 2002); Tri-State Motor Transit Co.
v. Navajo Freight Lines, Inc., 528 S.W.2d 475, 487 (Mo. App. 1975)).
Even if this claim of error was not waived, we find it is meritless. Section 509.050.1(1)
and Rule 55.05 provide that a pleading that sets forth a claim for relief shall contain “[a] short and
plain statement of the facts showing that the pleader is entitled to relief.” The facts that must be
pleaded must be ultimate facts, not necessarily evidentiary facts. McConnell v. W. Bend Mut. Ins.
Co., 606 S.W.3d 181, 190 (Mo. App. W.D. 2020). “‘[U]ltimate facts are those the jury must find
to return a verdict for the plaintiff.’” Id. (quoting R.M.A. by Appleberry v. Blue Springs R-IV Sch.
Dist., 568 S.W.3d 420, 425 (Mo. banc 2019)). See Scheibel v. Hillis, 531 S.W.2d 285, 290 (Mo.
banc 1976) (“A pleader is required to state only the ultimate facts[,] and it is not necessary to plead
the facts or circumstances by which the ultimate facts will be established.”).
One reliable source for determining what the ultimate facts are is the Missouri Approved
Instruction (MAI) verdict director for the cause of action. R.M.A., 568 S.W.3d at 425-26. The
verdict director for an MHRA claim is MAI 38.01(A), which requires proof as follows:
38.01(A) [2018 Revision] Verdict Directing–Missouri Human Rights Act—
Employment Discrimination
(for actions accruing before August 28, 2017)
Your verdict must be for plaintiff if you believe:
First, defendant (here insert the alleged discriminatory act, such as “failed to
hire,” “discharged” or other act within the scope of § 213.055, RSMo) plaintiff,
and
Second, (here insert one or more of the protected classifications supported by
the evidence such as race, color, religion, national origin, sex, ancestry, age or
disability) was a contributing factor in such (here, repeat alleged discriminatory
act, such as “failure to hire,” “discharge,” etc.), and
30
Third, as a direct result of such conduct, plaintiff sustained damage.
(Footnotes omitted). Comparing MAI 38.01(A) with Williams’s Petition, it is clear that he
sufficiently pleaded ultimate facts. First, Williams alleged that during his employment, the City
retaliated against him for complaining about harassment and/or discrimination, specifically for
complaining that Caucasian employees were allowed to take the Industrial Motor Control Training
Course while he and other African-American employees were not. Second, Williams alleged that
his complaints to the City about discrimination were protected activities under the MHRA, and
that his complaints of harassment and/or discrimination contributed to at least sixteen adverse
actions, which he identified, that the City took against him. Third, Williams alleged that as a direct
and proximate result of the City’s retaliatory conduct, which rendered his working conditions so
intolerable that he was forced to quit his job with the City, he sustained damage.
The City refers us to no authority to support its argument that Williams’s Petition was
required to contain every specific fact submitted to the jury. “[A] petition merely commences a
case.” Tate v. Dierks, 608 S.W.3d 799, 804 (Mo. App. W.D. 2020). As to the denial-of-promotion
disjunctive, Williams alleged in his petition that the City had retaliated against him by denying
him promotions:
c. passing over Plaintiff for promotion because of his race;
d. giving less qualified Caucasian employees promotions, including but not limited
to Michael Klinder, Steve Berry, and Fred Reiss;
e. passing over or denying Plaintiff training opportunities;
f. passing over or denying Plaintiff and/or other African American employees
training opportunities which would have qualified Plaintiff and/or other African
American employees for promotions;
g. discontinuing training programs which blocked Plaintiff and/or other African
American employees from completing future training and qualifying for
promotions[.]
31
L.F. Doc. 2, at 5-6. Additionally, at the City’s deposition of Williams on July 9, 2019, Williams
testified that James Crawford was a white employee who was promoted after he had taken the
industrial motor training control course that Williams and other African-American employees were
denied. L.F. Doc. 168, at 8-19. Further, in the City’s opening statement, the City’s attorney
discussed Mr. Crawford’s promotion to electrical supervisor, and Mr. Ragland’s promotion to
maintenance electrician supervisor. Trial Tr. vol. 1, 69, 71. As to the sleeping-on-the-job
disjunctive, although the Petition does not make that allegation, Williams testified in his July 2019
deposition that he was accused of sleeping on the job. L.F. Doc. 168, at 5. Further, in the City’s
opening statement, the City’s attorney told the jury, “You are going to hear about supervisors who
have caught employees sleeping in trucks and what—when they should have been working.” Trial
Tr. vol. 1, 72. “[T]he varied discovery tools available to counsel in the discovery toolbox are
designed to illuminate the salient facts associated with a case. A party’s understanding of the facts,
and of relevant witnesses and exhibits, will develop and mature as investigation and discovery
occur following the petition’s filing.” Tate, 608 S.W.3d at 804.
The trial court did not abuse its discretion in denying the City’s Motion for New Trial. The
City has not shown that Instruction No. 12 misdirected, misled, or confused the jury where the
City’s own proffered instruction contained disjunctive alternatives that were identical to those
contained in the verdict director offered by the City and were either pleaded in Williams’s Petition
for Damages or developed in discovery. Furthermore, the City has failed to show how it was
prejudiced.
Point III is denied.
32
Point V
In the City’s fifth and sixth points, it asserts that the trial court erred in denying its Motion
for New Trial because Instruction No. 16 misdirected, misled, or confused the jury in that the
instruction contained a disjunctive alternative (relating to “the megger incident”) for which the
City argues Williams did not have a right to sue.
Analysis
“‘A party cannot complain of error in the instruction of an opposing party which is common
to instructions of both parties.’” Travelers Com. Cas. Co., 451 S.W.3d at 307 (quoting Layton,
864 S.W.2d at 941). The City argues that Instruction No. 16 was improper because it allowed the
jury to consider the disjunctive alternative of the City “[s]ubjecting plaintiff to unfair discipline
when he was attempting to fix the megger in 2013.” However, the City offered the identical
language in its proposed Instruction No. M: that the City subjected Williams to unwelcome
harassment by “[s]ubjecting plaintiff to unfair discipline when he was attempting to fix the megger
in 2013.” L.F. Doc. 150, at 14. Thus, by the City using the exact same language in the verdict
director it submitted on Williams’s claim for hostile work environment, the City waived any
objection to the second paragraph of Williams’s verdict director. Travelers Com. Cas. Co., 451
S.W.3d at 307.
Furthermore, the trial court expressly determined that the “megger incident” was part of a
“continuing violation” theory.
9
The City does not challenge the trial court’s finding of a continuing

9 Section 213.075.1 requires any person claiming to be aggrieved by an unlawful discriminatory practice to
file a written verified complaint with the Commission within 180 days of the alleged act of discrimination. “However,
the timely filing requirement is subject to the principles of waiver, estoppel, and equitable tolling, including the
‘continuing violation’ theory exception.” Tisch, 368 S.W.3d at 252. “Under the ‘continuing violation’ theory, a
plaintiff may pursue a claim for an event that occurred prior to the 180-day statute of limitations for filing a claim of
discrimination with the MCHR if the plaintiff can demonstrate that the event is part of an ongoing practice or pattern
of discrimination by the employer.” Id. (internal quotation marks omitted). Continuing violations “consist of
‘repeated conduct’ extending over a period of time.” Id. at 254 (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536
33
violation; therefore, that issue is abandoned on appeal. “[A] question not presented in an
appellant’s brief will be considered abandoned on appeal and no longer an issue in the case.”
Blackman v. Div. of Emp’t Sec., 602 S.W.3d 824, 826 (Mo. App. W.D. 2020); see also
Rule 84.13(a) (“[A]llegations of error not briefed or not properly briefed shall not be considered
in any civil appeal.”). Therefore, the City’s claims of instructional error relating to the “megger
incident” is without merit.
Points V and VI are denied.
Point VII
In the City’s seventh point on appeal, it asserts that the trial court erred in admitting
evidence. Specifically, the City contends that the trial court erred when it allowed Leroy Jones to
testify because his testimony unduly prejudiced the City in that Mr. Jones’s involvement in the
trial was not disclosed by Williams’s counsel.
Standard of Review
The trial court’s admission or exclusion of evidence is reviewed under a deferential
standard. Ostermeier v. Prime Props. Invs. Inc., 589 S.W.3d 1, 10 (Mo. App. W.D. 2019). “On
appellate review, the issue is not whether the evidence was admissible or should have been
excluded, it is whether the trial court abused its discretion in admitting or excluding the evidence.”
Id. “‘A circuit court has broad discretion in determining the admission of evidence[.]’” Id.
(quoting Lewellen v. Franklin, 441 S.W.3d 136, 149 (Mo. banc 2014)). A trial court abuses its
discretion only when its ruling is “clearly against the logic of the circumstances and is so arbitrary
and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Id.
(internal quotation marks omitted). “If reasonable persons may differ as to the propriety of an

U.S. 101, 115 (2002)). “One example is a hostile work environment claim[,]” which involves repeated conduct,
“where liability is based on the ‘cumulative effects of individual acts.’” Id. (quoting Morgan, 536 U.S. at 115).
34
action taken by the trial court, then there was no abuse of discretion.” Id. (internal quotation marks
omitted). “Even if we find an abuse of discretion, we will reverse only if the prejudice resulting
from the improper admission of evidence is outcome-determinative.” Id. (internal quotation marks
omitted).
Analysis
Interrogatory No. 24 in the City’s second set of interrogatories to Williams asked him to
“identify the witnesses whom you may call at trial to provide ‘me too’ witness testimony on your
behalf.” Williams served his interrogatory answers on November 25, 2019, two months before
trial commenced on January 27, 2020, responding to Interrogatory No. 24 that Williams “may call
any of the following people as ‘me too’ witnesses—Leroy Jones [address].” L.F. Doc. 136, at 4.
The City admits that “Mr. Williams disclosed Leroy Jones as a potential witness who would testify
at trial” prior to the close of discovery. Appellant’s Br. 52. The trial court entered two scheduling
orders in December 2019. L.F. Docs. 11, 12. Although neither order required the parties to file
witness lists, on January 22, 2020, Williams filed a witness list, which identified Mr. Jones as one
of the potential witnesses Williams might call to testify at trial. L.F. Doc. 132, at 1. Mr. Jones
testified on January 31, 2020. Trial Tr. vol. 1, 733.
The City was notified before the close of discovery and two months before trial that
Mr. Jones might be called as a “me too” witness. The City had ample time to interview or depose
Mr. Jones prior to trial, but chose not to do so.
The City asserts that “the prejudice of Mr. Jones’ testimony is apparent from the record.”
Appellant’s Br. 53. The City contends that because Mr. Jones did not work at the same location
as Williams, did not have the same job classification, did not have the same supervisors, and did
not seek to attend the same training, his testimony expanded the scope of the case and permitted
35
Williams to argue that the alleged discrimination was widespread throughout the City’s workforce.
Appellant’s Br. 53-54. We disagree.
This Court has held that a trial court acts within its discretion in allowing “me-too” witness
testimony by other public employees in a public employee’s hostile work environment action,
despite the fact that the other employees worked in different departments and under different
supervisory personnel than the plaintiff, noting that both the “me-too” witnesses and the plaintiff
were city employees, had alleged discriminatory treatment in the workplace, and had attempted to
seek redress through the City’s Equal Employment Opportunity office. McKinney v. City of
Kansas City, 576 S.W.3d 194, 204 (Mo. App. W.D. 2019). Accordingly, the trial court did not err
in allowing Mr. Jones’s testimony.
10
Point VII is denied.
Point VIII
In the City’s eighth point, it asserts that the trial court erred in denying the City’s post-trial
motion to merge the compensatory damage verdicts for retaliation and hostile work environment.
The City contends that the alleged discriminatory conduct in the verdict director for the retaliation
claim, Instruction No. 12, and the verdict director for the hostile work environment claim,
Instruction No. 16, substantially overlapped and that allowing both verdicts to stand would award
Williams more than one recovery for the same injury.
The City, however, did not object at the instruction conference to the verdict-directing
instructions on those grounds.

10 Mr. Jones testified that he was a maintenance supervisor in the City’s waste water treatment division;
experienced retaliatory actions by the water department in that he received unfair discipline after testifying on behalf
of an employee who brought a discrimination lawsuit against the City; he applied for five or six promotions for which
he was the most qualified candidate, as he was competing against candidates that had less seniority and less education,
but he did not receive any of those promotions; he had been denied working out of class, even though he was qualified
to work out of class; he had been harassed by his immediate supervisors; he had made a complaint to the City’s Equal
Employment Opportunity office but none of his complaints had been addressed. Trial Tr. vol. 1, 733-39.
36
Rule 70.03 provides: “No party may assign as error the giving or failure to give instructions
unless that party objects thereto on the record during the instructions conference, stating distinctly
the matter objected to and the grounds of the objection.” The City objected to Instruction No. 12
on the grounds of “lacking a right to sue, unexhausted, unpleaded, and to the extent it involves the
complaint of—about the motor control course lacking a causal relationship with any adverse
employment action.” Trial Tr. vol. 2, 1057. The City also objected to the first paragraph of
Instruction No. 12 on the grounds that:
it invites a roving commission as to the complaint of discrimination. Specifically
the second half of it. And/or verbally complained of race discrimination to Steve
Barry. And/or filed charges of discrimination during his employment. Those
actually last two clauses do not define a time period or any other facts that would
help orient the jury to what complaints are actionable and the jury could then rove
to unactionable complaints that are not exhausted, pleaded, all the above.
Trial Tr. vol. 2, 1057-58. The City also objected to Instruction No. 12 because “among the
disjunctive acts [in] the second paragraph, only the pilot electrical training class was a pleaded,
exhausted adverse employment action in this case.” Trial Tr. vol. 2, 1058-59. The City objected
to Instruction No. 16, the verdict director on racially hostile work environment, on the grounds of
“lack of right to sue, exhaustion, failure to plead in the petition, and time barred, under the two-year
statute of limitations.” Trial Tr. vol. 2, 1062. Accordingly, because the City failed to make the
specific objection to the instructions it is now claiming to be error, the issue is not preserved for
appellate review. City of Harrisonville v. McCall Serv. Stations, 495 S.W.3d 738, 747 (Mo. banc
2016) (citing Howard v. City of Kansas City, 332 S.W.3d 772, 790 (Mo. banc 2011)).
Even if the issue had been preserved, it is meritless. The City requested that the trial court
amend the judgment to merge the damages. In reviewing the trial court’s denial of a motion to
amend the judgment:
37
we will not reverse the trial court unless it abused its discretion. A [trial] court
abuses its discretion when its ruling shocks the sense of justice, shows a lack of
consideration, and is obviously against the logic of the circumstances. If reasonable
persons can differ as to the propriety of the trial court’s action, then it cannot be
said that the trial court abused its discretion.
The doctrine of merger prevent[s] a party from being compensated twice
for the same injury. Although a single transaction may invade more than one
right[,] and a plaintiff is entitled to proceed on numerous theories of recovery, he
is not allowed to be made more than whole or receive more than one full recovery
for the same harm. [A] plaintiff must establish a separate injury on each theory
presented at trial. Thus, [i]f the damages asserted in two causes of action are the
same, the damage awards should be merged.
Heckadon v. CFS Enters., Inc., 400 S.W.3d 372, 380-81 (Mo. App. W.D. 2013) (citations omitted)
(internal quotation marks omitted). In Heckadon, the court found that the two plaintiffs submitted
the same benefit-of-the-bargain damage instruction with respect to each defendant, with each
instruction requesting the jury “to assess the damages flowing from the same injury.” Id. at 381.
The court reversed the judgment and remanded the case to the trial court to enter an amended
judgment merging the actual damage awards. Id.
Here, Instruction No. 11 instructed the jury that Instructions 11 through 14 applied to the
retaliation claim and that Verdict B should be used to return the verdict on that claim. Instruction
No. 15 instructed the jury that Instructions 15 through 18 applied to the hostile work environment
claim and that Verdict C should be used to return the verdict on that claim. The jury awarded
Williams $160,000 in actual damages on his retaliation claim (Verdict B) and $126,000 in actual
damages on the hostile work environment claim (Verdict C). Unlike Heckadon, the verdict
director for the retaliation claim, Instruction No. 12, and the verdict director for the hostile work
environment claim, Instruction No. 16, contain different elements and require the jury to find
different injuries. Furthermore, separate damage instructions directed the jury to award damages
38
for different claims and different injuries.11
In addition, the jury awarded different amounts for
each claim. The trial court’s decision not to merge the damages does not shock our sense of justice,
show a lack of consideration, and is not obviously against the logic of the circumstances.
Point VIII is denied.
Point IX
In the City’s ninth and final point, it asserts that the trial court erred in awarding Williams
attorney fees with a 1.5 multiplier. The City does not challenge the lodestar awarded to Williams’s
counsel, and acknowledges that a multiplier of an attorney fee award may be applied. The City
only argues that the 1.5 multiplier was improper because the trial court did not specify any factors
that justified such an award.
Standard of Review
We review a trial court’s award of attorney fees for an abuse of discretion. Berry v.
Volkswagen Grp. of Am., Inc., 397 S.W.3d 425, 430 (Mo. banc 2013). “The trial court is deemed
an expert at fashioning an award of attorneys’ fees and may do so at its discretion.” Id. “To
demonstrate an abuse of discretion, the complaining party must show the trial court’s decision was
against the logic of the circumstances and so arbitrary and unreasonable as to shock one’s sense of
justice.” Id. at 431 (internal quotation marks omitted).

11 Instruction No. 13 provided:
If you find in favor of plaintiff on plaintiff’s claim for retaliation then you must award plaintiff such
sum as you believe will fairly and justly compensate plaintiff for any damages you believe plaintiff
sustained and is reasonably certain to sustain in the future as a direct result of the occurrence
mentioned in the evidence.
Instruction No. 17 provided:
If you find in favor of plaintiff on plaintiff’s claim for hostile work environment, then you must
award plaintiff such sum as you believe will fairly and justly compensate plaintiff for any damages
you believe plaintiff sustained and is reasonably certain to sustain in the future that the hostile work
environment directly caused or directly contributed to cause.
39
Analysis
Because a jury found in favor of Williams on his retaliation and hostile work environment
claims, Williams filed an after-trial motion for attorney fees, costs, and expenses, requesting that
the trial court amend the judgment to award him his reasonable attorney fees, applying a 1.5
multiplier to the lodestar amount. In the trial court’s Final Judgment and Order, it stated that it
“fully considered plaintiff’s motion [for attorneys’ fees, costs, expenses and post-judgment
interest], suggestions, attached affidavits and exhibits in support of plaintiff’s motion, and
Defendant’s suggestions and exhibits in opposition to plaintiff’s motion. Having fully considered
same[,] the court awards fees, expenses, and costs as provided herein.”
Section 213.111.2 of the MHRA provides that the trial court “may award to the plaintiff
actual and punitive damages, and may award court costs and reasonable attorney fees to the
prevailing party . . . .” The City does not argue that the trial court abused its discretion in its award
of attorney fees; rather, it complains that the trial court did not provide an explanation of its award
of a multiplier. The Missouri Supreme Court advises that “when a trial court must determine
whether to apply a multiplier, it should avoid awarding a multiplier based upon facts that it
considered in its initial determination of the lodestar amount.” Berry, 397 S.W.3d at 432. In Berry,
the Court approved the trial court premising its use of a multiplier on the following factors that
were not duplicative of the factors utilized in its calculation of the lodestar amount: (1) plaintiff’s
counsel’s fee was always contingent, unlike the fees received by counsel for defendant; (2) taking
plaintiff’s case precluded counsel from accepting other employment that would have been less
risky; and (3) the time required by the demands of preparing this cause for trial delayed work on
plaintiff’s counsel’s other work. Id. at 432-33. According to the Court, “[t]hese findings support
40
a finding that a multiplier was necessary to ensure a market fee that compensated . . . counsel for
taking this case in lieu of working less risky cases on an hourly basis.” Id. at 433.
Here, the trial court had evidence before it that allowed it to assess whether a multiplier to
the lodestar amount was appropriate in this case. The trial court had before it evidence that:
(1) Williams’s attorneys accepted this case on a contingency basis, see L.F. Doc. 157, ¶¶ 13, 22;
L.F. Doc. 159, ¶ 15; L.F. Doc. 162, ¶ 23; and (2) taking the case precluded Williams’s attorneys
from accepting other employment that would have been less risky or for which they would have
been compensated on an hourly basis, see L.F. Doc. 157, ¶ 15; L.F. Doc. 159, ¶¶ 15, 16; L.F. Doc.
162, ¶ 24. As to factor (3), the City conceded that the time required by the demands of preparing
for trial delayed work on Williams’s attorneys’ other work: “Plaintiff states a multiplier should be
awarded because the trial in this case delayed Plaintiff’s attorneys’ work on other cases. Of course
that is true.” L.F. Doc. 171, at 9. The City has not refuted the evidence presented by Williams’s
attorneys to justify the requested lodestar multiplier of 1.5.
We find that the trial court’s decision as to the amount of attorney fees, which included a
1.5 multiplier, was not arbitrary nor was the award so unreasonable that it indicates indifference
and lack of proper judicial consideration.
Point IX is denied.
41
Conclusion
The trial court’s judgment is affirmed.12
/s/ Mark D. Pfeiffer
Mark D. Pfeiffer, Judge
Gary D. Witt, Anthony Rex Gabbert, Edward R. Ardini, Jr., and W. Douglas Thomson, Judges,
and Joseph M. Ellis and Thomas H. Newton, Senior Judges, concur.
Alok Ahuja, Judge, dissents in separate opinion in which Cynthia L. Martin, Chief Judge, and
Karen King Mitchell and Thomas N. Chapman, Judges, concur.

12 Under this Court’s Special Rule 29, a party may file a motion for attorney’s fees on appeal “pursuant to
contract, statute or otherwise.” Mr. Williams filed a motion for attorney’s fees on appeal, which we took with the
case. Mr. Williams brought the underlying cause of action pursuant to the Missouri Human Rights Act (“MHRA”).
The MHRA authorizes the court to “award court costs and reasonable attorney fees to the prevailing party . . . .”
§ 213.111.2. “This includes fees incurred on appeal from the trial court’s judgment.” Soto v. Costco Wholesale Corp.,
502 S.W.3d 38, 58 (Mo. App. W.D. 2016). Here, because we are affirming the judgment in favor of Mr. Williams,
Mr. Williams is the prevailing party. Therefore, his motion for costs and attorney’s fees on appeal is granted.
“Although appellate courts have authority to allow and fix the amount of attorney’s fees on appeal, we 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. (internal quotation marks omitted). Accordingly,
we remand the cause to the trial court for the purpose of conducting a hearing to determine the reasonableness of the
costs and fees requested and to enter an appropriate award.
IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
RONALD WILLIAMS,
Respondent,
v.
CITY OF KANSAS CITY,
MISSOURI,
Appellant.
)
)
)
)
)
)
)
)
)
WD83835
(consolidated with WD83938)
FILED: December 21, 2021
DISSENTING OPINION
I respectfully dissent.
The circuit court allowed plaintiff Ronald Williams to submit claims to the
jury which he had not properly exhausted in the administrative complaint he filed
with the Missouri Commission on Human Rights. Williams’ administrative
complaint challenged a specific practice: the City’s failure to permit him, and other
African-American electricians in the Water Services Department, to take an
Industrial Motor Control training course. Williams’ administrative complaint did
not allege: that he had ever been disciplined in his employment; that he had ever
been denied a promotion or additional compensation; that he had ever been given
unfavorable work assignments; that he had ever been harassed, demeaned, or
intimidated on the job; or that any prior complaints of discrimination had not been
seriously investigated. Williams’ administrative complaint was clear and explicit.
It alleged that he and other African-Americans had been wrongfully denied access
2
to a specific training course – nothing more. Williams’ counsel conceded as much at
oral argument.
Yet despite the admittedly limited nature of Williams’ administrative
complaint, the circuit court permitted him to submit to the jury a hostile work
environment claim, and a retaliation claim, which alleged that he had been
subjected to unjustified discipline, and harassed and mistreated in a variety of
ways. Even under the most wildly expansive reading of Williams’ administrative
complaint, it alleged none of these matters.
The Missouri Human Rights Act and a controlling Missouri Supreme Court
decision hold that an employee cannot litigate claims in court which the employee
has not first raised in a timely charge of discrimination with the Commission. The
circuit court failed to enforce this well-established exhaustion requirement, which
the City repeatedly invoked. I would reverse the circuit court’s judgment in
Williams’ favor on his hostile work environment and retaliation claims, and remand
the retaliation claim for retrial on the single allegedly retaliatory act which
Williams actually challenged before the Commission.
I.
A simple comparison of the charge of discrimination which Williams filed
with the Commission, and the hostile work environment and retaliation claims
which were submitted to the jury, demonstrates that Williams was allowed to
litigate claims going well beyond the scope of his administrative complaint.
Williams filed a Charge of Discrimination with the Commission on October 2,
2015, alleging that the City had racially discriminated and retaliated against him.
Williams described the challenged actions as follows:
I. I was hired by [the City] on or about 6/20/11 and I am currently
employed as a Maintenance Electrician.
II. On or about 11/14, Maintenance Electricians, white, were selected
for and thereafter completed an industrial motor control training
3
course. I had more seniority than two of the Maintenance Electricians,
as did another black Maintenance Electrician.
III. I believe this is discrimination against me because of my race, black, in
violation of Title VII of the Civil Rights Act of 1964, as amended, and retaliation
against me for opposing acts made unlawful under Title VII of the Civil Rights Act
of 1964, as amended.
Williams checked the box on the complaint form marked “Continuing Action,” and
identified the “Date(s) Discrimination Took Place” as November 7, 2014, through
April 15, 2015.
On October 7, 2016, Williams filed an Amended Charge of Discrimination
with the Commission. The Amended Charge once again claimed that Williams had
been subjected to racial discrimination and retaliation by the City. The Amended
Charge stated:
I have worked for the City of Kansas City, Missouri, for approximately
seventeen years and have been in the Water Services Department for
the last five years. Since November, 2014, when less-senior white
employees were permitted to take an Industrial Motor Control
Training Course, management has been offering to allow myself and
other African-Americans the opportunity to take such a class. The
White employees were paid while taking this class. Initially, we were
told that there would be two groups taking the class. The White
employees were permitted to take the class first. Neither myself nor
any other African-Americans have been offered the same course. I
believe that the City intended to use this class as a basis for
reclassifying employees, as mention of a new job position of Utility
Electrician was made and I believe this course would have been used
as a qualification for that position. I complained to the
Superintendent, Steve Berry, about the White employees getting to
take the class and none of the African-American employees getting to
and about wanting to talk to Human Resources about the new job
position. After that, there has not been any more mention of the
Utility Electrician position. Management continued to tell us that
there would be a second class after the first group had finish[ed], it
was even mentioned after I initially filed my charge. To this date, no
second class has ever been offered.
I believe that the City and the management at the Water Plant singled
out the African-Americans and selected the White employees to take
the class and that our race played a role in the decision; we had been
4
asking to take the course for years prior to it being offered to the White
employees. I believe this is a clear pattern and practice by the City of
permitting White employees to receive better training than AfricanAmericans, that would put the White employees in a better position for
promotion.
Williams’ Amended Charge again checked the “Continuing Action” box on the
charge form; it listed April 16, 2015, as the “Date Discrimination took Place.”
Under the Commission’s regulations, “[t]he original complaint and all
amendments shall be treated together as a single complaint.” 8 CSR 60-2.025(5).
Accordingly, I refer to Williams’ original and amended complaints collectively as his
administrative “charge” or “complaint,” unless the context requires a distinction
between the two documents.
I have read Williams’ administrative complaint over and over again since this
case was first submitted to a division of this Court several months ago. Williams’
administrative complaint is well-written, clear, and detailed. Yet despite my
repeated review, I can only see one employment practice which Williams challenged:
the City’s ongoing and repeated denial of training opportunities to Williams and to
other African-American electricians in the Water Services Department. I see no
reference in Williams’ charge, even under the broadest and most generous reading,
to unfair discipline, denial of promotions, unfavorable work assignments,
harassment, or perfunctory investigation of discrimination complaints. The
majority’s assertion that Williams’ charges “collectively describe a hostile,
intimidating, retaliatory and offensive work environment” (Maj. Op. at 2) is
unfounded.
Notably, during oral argument Williams’ counsel admitted that Williams’
administrative complaint did not contain any allegation that he had ever been
disciplined in his employment; she conceded that “all that’s contained in the charge”
is a challenge to the denial of training opportunities. Oral Arg. Recording 33:15-
34:10.
5
Despite the limited nature of Williams’ administrative complaint, the circuit
court permitted him – over the City’s objections – to submit retaliation and hostile
work environment claims which relied on employment actions beyond the City’s
denial of access to the Industrial Motor Control training course. Thus, the verdict
director for Williams’ retaliation claim (Instruction #12) hypothesized that the City
had retaliated against him in one or more of the following respects:
Treat[ing] Plaintiff as if he were incompetent, or
Accus[ing] Plaintiff of not completing or performing work in an
unsatisfactory manner, or
Den[ying] plaintiff promotions to the Electrical Maintenance
Supervisor positions that were awarded to James Crawford and/or
Cornell Ragland, or
Den[ying] plaintiff the opportunity to attend the 2014-2015 pilot
electrical training class, or
Accus[ing] plaintiff of sleeping on the job.
The verdict director for Williams’ hostile work environment claim
(Instruction #16) went even further. It asked the jury to find that the City had
“[c]reated an intimidating, hostile, or offensive work environment,” or had taken
actions which “[h]ad the purpose or effect of unreasonably interfering with
plaintiff’s work performance,” by “subjecting plaintiff to unwelcome harassment in
any of the following respects:”
Subjecting plaintiff to unfair discipline when he was attempting to fix
the megger in 2013, or
Denying plaintiff an impartial and fair investigation into his
complaints of discrimination, or
Accusing plaintiff of sleeping on the job, or
Denying plaintiff the opportunity to attend the 2014-2015 pilot
electrical training course, or
Allowing plaintiff to be treated by his supervisors as if he were
incompetent, or
6
Denying plaintiff promotions to the Maintenance Electrician
Supervisor positions in 2015 where Cornell Ragland and/or James
Crawford were promoted instead, or
Giving plaintiff dangerous and/or undesirable work assignments in the
lime vats and/or the secondary plant, or
Confining plaintiff to the secondary plant with no mobility between the
years 2013-2015, or
Failing to provide plaintiff access to the parts and/or information
plaintiff needed to perform his job duties.
The allegedly discriminatory and retaliatory acts which Williams was
permitted to submit to the jury, as part of his hostile work environment and
retaliation claims, went light years beyond anything he had challenged in his
administrative complaint.
The circuit court appears to have recognized, indirectly, that Williams’
administrative charge could not sustain the judgment. The circuit court could
justify denying the City’s post-judgment motion asserting a lack of exhaustion only
by claiming – inaccurately – that Williams’ “charges of discrimination alleged that
he was subjected to unfair discipline, was falsely accused of sleeping on the job, . . .
was given dangerous and undesirable work assignments, and was treated by his
supervisors as if he were ‘incompetent’ in the presence of other employees at staff
meetings.” Thus, the circuit court relied on a false characterization of Williams’
administrative charge to sustain the judgment. As I explain more fully below, the
judgment must be reversed under an accurate reading of Williams’ charge, and by
application of well-established law.
II.
I first address the City’s challenge to the submission of Williams’ hostile work
environment claim.
A.
At the time Williams filed his complaint, the MHRA provided:
7
Any person claiming to be aggrieved by an unlawful
discriminatory practice may make, sign and file with the commission a
verified complaint in writing, within one hundred eighty days of the
alleged act of discrimination, which shall state the name and address
of the person alleged to have committed the unlawful discriminatory
practice and which shall set forth the particulars thereof and such
other information as may be required by the commission.
§ 213.075.1.1
The Missouri Supreme Court has explained that, “[i]n order to exhaust
administrative remedies under the MHRA, a claimant must give notice of all claims
of discrimination in the administrative complaint.” Farrow v. St. Francis Med. Ctr.,
407 S.W.3d 579, 594 (Mo. 2013) (citing Alhalabi v. Mo. Dep’t of Nat. Res., 300
S.W.3d 518, 525 (Mo. App. E.D. 2009)); accord Kerr v. Mo. Veterans Comm’n, 537
S.W.3d 865, 874 (Mo. App. W.D. 2017). An administrative complaint “give[s] the
agency the opportunity to determine the validity of the claim, to investigate, and to
determine if there is probable cause that discrimination has taken place.” Kerr, 537
S.W.3d at 874 (citation omitted). An administrative charge also “give[s] the charged
party notice of the claim,” and “narrow[s] the issues for prompt adjudication.” Id. at
875 (citation omitted).
In Farrow, the Supreme Court emphasized that administrative complaints –
which are often filed by unrepresented laypeople – should be liberally construed:
“[A]dministrative complaints are interpreted liberally in an effort to
further the remedial purposes of legislation that prohibits unlawful

1 The statutory citations in this opinion refer to the 2016 edition of the Revised
Statutes of Missouri. The General Assembly substantially amended the Missouri Human
Rights Act in 2017, with an effective date of August 28, 2017. See S.B. 43, 99th Gen.
Assembly, 1st Reg. Session (2017). Williams’ employment with the City terminated in
February 2017, and his substantive claims therefore accrued before the 2017 statutory
amendments became effective. In addition, he filed his original and amended
administrative complaints in 2015 and 2016, before the new statutory provisions took
effect. For these reasons, the pre-2017 version of the MHRA controls the present appeal.
See, e.g., Clark v. AT&T Mobility Servs., L.L.C., 623 S.W.3d 197, 203 (Mo. App. W.D. 2021);
State ex rel. D&D Distribs., LLC v. Mo. Comm’n on Human Rts., 579 S.W.3d 318, 324-25
(Mo. App. W.D. 2019); Dixson v. Mo. Dep’t of Corrs., 586 S.W.3d 816, 825-27 (Mo. App. W.D.
2019); Bram v. AT&T Mobility Servs., LLC, 564 S.W.3d 787, 795-96 (Mo. App. W.D. 2018).
8
employment practices.” “As a result, administrative remedies are
deemed exhausted as to all incidents of discrimination that are likely
or reasonably related to the allegations of the administrative charge.”
“Further, the scope of the civil suit may be as broad as the scope of the
administrative investigation which could reasonably be expected to
grow out of the charge of discrimination.”
407 S.W.3d at 594 (quoting Alhalabi, 300 S.W.3d at 525).
A “liberal construction” is not boundless, however. This is demonstrated by
Farrow itself. Farrow held that a charge which alleged that an employee had been
discharged for racially discriminatory reasons did not give notice of a separate claim
that the employer retaliated against the employee in its grievance procedure
following her termination.
Farrow argues her claim of post-termination retaliation related
to Hospital's internal grievance procedure is reasonably related to the
allegations in the charge of discrimination she filed with the
Commission, and an administrative investigation of post-termination
retaliation reasonably could be expected to grow out of the allegations
contained in her charge. This Court disagrees. A liberal reading of the
charge of discrimination clearly indicated Farrow limited the scope of
her claim to the events that occurred prior to her December 2008
discharge. The charge of discrimination contains no allegations
whatsoever that would put Hospital on notice that she intended to
raise additional claims regarding retaliation for its treatment of her
while she sought relief under Hospital's internal grievance procedure.
The first time Hospital was apprised of this claim was in Farrow's first
amended petition. Thus, the charge of discrimination was not likely or
reasonably expected to lead to an investigation of adverse employment
practices committed during Hospital's internal grievance procedure.
407 S.W.3d at 594. Although Farrow’s administrative complaint clearly challenged
her termination as racially discriminatory, the Supreme Court held that her charge
– even broadly construed – did not include a challenge to her employer’s
investigation of her termination.
The Eastern District’s decision in Reed v. McDonald’s Corp., 363 S.W.3d 134
(Mo. App. E.D. 2012), similarly holds that a liberal reading of an administrative
complaint is limited to the circumstances described in the charge. In Reed, a
9
restaurant employee (Reed) filed a charge of discrimination alleging that an
assistant manager (Emanuel) had sexually harassed and assaulted her. Reed
reported the incident to senior management, and Emanuel was terminated. Reed
later quit her job at the restaurant, “citing the sexual harassment by Emanuel and
the stress of everybody knowing the situation that occurred as being the reasons for
her departure.” Id. at 138. Reed’s administrative charge “did not mention any
circumstances regarding her employment . . . after she reported the incidents [of
harassment].” Id.
In Reed, the employee alleged that she left her employment because of the
sexual harassment which was the subject of her administrative complaint. Despite
the fact that the employee’s resignation grew out of the underlying sexual
harassment, the Eastern District held that Reed had failed to exhaust her claim of
constructive discharge.
Reed's charges filed with the MCHR did not even mention that she no
longer worked for Franchisee. The charges failed to mention any facts
or particulars relating to intolerable working conditions causing her to
quit working for Franchisee. Instead, Reed's charges filed with the
MCHR and the EEOC focused only on conduct by Emanuel. By
focusing only on Emanuel's conduct towards Reed, the charges failed to
give notice to Franchisee that Reed was asserting a claim of
constructive discharge. Furthermore, it is not reasonable to expect an
administrative investigation of a claim of constructive discharge when
Reed's charges did not even state that Reed no longer worked for
Franchisee nor any facts relating to intolerable working conditions.
Accordingly, Reed failed to exhaust her administrative remedies when
she failed to include any facts reasonably related to a claim of
constructive discharge.
Id. at 144.
Read liberally, Williams’ administrative charge described ongoing racial
discrimination and retaliation by the City in denying access to training
opportunities. Even affording Williams’ charge a liberal construction, however, it
10
cannot fairly be read to encompass the hostile work environment claim ultimately
submitted to the jury: that he was “subjected . . . to unwelcome harassment” by
− being subjected to “unfair discipline”;
− being denied “an impartial and fair investigation into his complaints of
discrimination”;
− being accused of sleeping on the job;
− being “treated by his supervisors as if he were incompetent”;
− being given “dangerous and/or undesirable work assignments”;
− being restricted to a particular work location “with no mobility”; and
− being denied the parts and information he needed to properly perform
his work.
Although the circuit court’s order denying the City’s JNOV motion claimed that
these other acts were included in Williams’ administrative charge, the court was
mistaken: none of these specific instances of alleged harassment or mistreatment is
mentioned in any way in Williams’ administrative charge; indeed, his
administrative complaint makes no reference to “unwelcome harassment” at all.
Williams’ administrative charge cannot be expanded to include a hostile work
environment claim by claiming that the Commission’s investigation would somehow
have uncovered the allegedly hostile work environment. Farrow makes clear that
an administrative investigation cannot be expected to discover additional allegedly
discriminatory or retaliatory acts where “[t]he charge of discrimination contains no
allegations whatsoever” concerning the unstated claims. 407 S.W.3d at 594.
Similarly, Reed holds that the Commission’s investigation cannot be expected to
discover additional claims where the administrative charge “failed to mention any
facts or particulars relating to” those additional claims. 363 S.W.3d at 144.
Williams concedes that his administrative charge is limited to the City’s denial of
training opportunities, and “contains no allegations whatsoever” concerning the acts
allegedly constituting a hostile work environment. Williams’ concession concerning
the limited scope of his administrative complaint should end the matter. Under
Farrow, Williams cannot invoke the “likely scope of investigation” or “reasonably
11
related” tests to establish exhaustion of a claim which is completely untethered
from the allegations of his complaint itself.
Williams’ challenge of a specific employment practice (the denial of training
opportunities) does nothing to suggest that the environment or atmosphere in which
he worked was sufficiently hostile to be actionable. A hostile work environment
claim is fundamentally different from a claim that an employer has taken specific
adverse employment actions against a complaining employee. A hostile work
environment claim alleges that the employee has been subject to ongoing, repeated
harassment that poisons the workplace atmosphere.
Racial discrimination creates a hostile work environment when
discriminatory conduct either creates an intimidating, hostile, or
offensive work environment or has the purpose or effect of
unreasonably interfering with an individual’s work performance. In
most claims of hostile work environment harassment, the
discriminatory acts are not of a nature that can be identified
individually as significant events; instead, the day-to-day harassment
is primarily significant, both as a legal and as a practical matter, in its
cumulative effect.
Alhalabi, 300 S.W.3d at 526 (citing Hill v. Ford Motor Co., 277 S.W.3d 659, 666 (Mo.
2009); and Pollock v. Wetterau Food Distrib. Grp., 11 S.W.3d 754, 763 (Mo. App.
E.D. 1999)).
[A] hostile work environment claim . . . must be based on severe and
pervasive discriminatory intimidation or insult. . . . A hostile work
environment under Title VII must be based on . . . pervasive, insulting,
discriminatory conduct that makes the plaintiff's day-to-day work
environment severely abusive. Therefore, cobbling together a number
of distinct, disparate acts will not create a hostile work environment.
For example, if an employee is discriminatorily denied ten promotions
over a period of time, that pattern of conduct may give rise to ten
separate claims under Title VII, but it would not create a hostile work
environment claim based on pervasive intimidation, insult and
ridicule.
Rattigan v. Gonzales, 503 F. Supp.2d 56, 81–82 (D.D.C. 2007) (citations and
internal quotation marks omitted).
12
Because a hostile work environment claim involves the overall working
environment, rather than particular employment decisions, “[t]o be properly
exhausted, that claim must be separately raised in the administrative charge,
because it is not reasonably related to a claim of a discrete act of discrimination,
such as demotion.” Gipson v. KAS Snacktime Co., 83 F.3d 225, 229 (8th Cir. 1996)
(MHRA claim), overruled on other grounds by Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101 (2002); see also Tisch v. DST Sys., Inc., 368 S.W.3d 245, 253-54 (Mo.
App. W.D. 2012) (distinguishing a hostile work environment claim, which “by [its]
very nature . . . involves repeated conduct, where liability is based on the
cumulative effects of individual acts,” from claims related to discrete acts like
termination, failure to promote, denial of transfer, or refusal to hire (citations and
internal quotation marks omitted)).
In two decisions involving MHRA claims, the United States Court of Appeals
for the Eighth Circuit has held that an employee had not adequately exhausted a
hostile work environment claim, where the employee’s administrative complaint
challenged only discrete employment actions. Thus, in Dorsey v. Pinnacle
Automation Co., 278 F.3d 830 (8th Cir. 2002), the administrative charges filed by
multiple plaintiffs alleged that they were being discriminated against based on
their age, because “younger (under 40) . . . employees that have considerably less
seniority are consistently receiving wage increases greater than” older workers.
Id. at 834. The Eighth Circuit held that this was insufficient to exhaust a hostile
work environment claim, either under the MHRA or under federal law.
In this case, Appellants' claims for age discrimination based on
the failure to promote presented in their charge of discrimination is not
broad enough to encompass hostile work environment claims. Here,
the decisions not to promote Appellants was a discrete event completed
at the time of the promotions. On the other hand, “a claim of racial
harassment in the workplace focuses on the pervasiveness of the
racially discriminatory conduct and also the employer's possible
knowledge of that conduct and failure to take remedial action.” The
13
promotions are not like or reasonably related to Appellants allegations
of the harassment that occurred throughout their employment.
Id. at 838-39 (citations omitted). The Court reached the same result in Tart v. Hill
Behan Lumber Co., 31 F.3d 668 (8th Cir. 1994), holding that a hostile work
environment claim was not exhausted by an administrative complaint which
alleged only that the employee was terminated for racially discriminatory reasons.
Id. at 672-73.
Caselaw applying federal civil rights statutes reaches the same result. “‘In
deciding a case under the MHRA, appellate courts are guided by both Missouri law
and federal employment discrimination caselaw that is consistent with Missouri
law.’” Lin v. Ellis, 594 S.W.3d 238, 242 (Mo. 2020) (quoting Daugherty v. City of
Maryland Hts., 231 S.W.3d 814, 818 (Mo. 2007)). Federal caselaw is particularly
relevant here, because the principle that administrative complaints are entitled to a
liberal construction originates in federal law. Farrow, 407 S.W.3d at 594, quotes
the rule of liberal construction stated in Alhalabi, 300 S.W.3d at 525, which in turn
relies on the Eighth Circuit’s decision in Tart, 31 F.3d at 671. Tart derives the
liberal construction rule from Cobb v. Stringer, 850 F.2d 356, 359 (8th Cir. 1988),
and other federal cases involving claims filed under Title VII of the federal Civil
Rights Act of 1964.
Cases applying federal anti-discrimination statutes have repeatedly held that
an administrative charge that merely alleges specific, discrete acts of discrimination
does not encompass a claim of a hostile work environment. Because a hostile work
environment claim involves repeated acts of harassment which make a plaintiff’s
working conditions abusive or intolerable, these cases hold that “the inclusion in an
EEOC charge of a discrete act or acts, standing alone, is insufficient to establish a
hostile-work-environment claim for purposes of exhaustion.” Younis v. Pinnacle
Airlines, Inc., 610 F.3d 359, 362 (6th Cir. 2010). The federal courts have cautioned
14
that, if a charge alleging discrete acts of discrimination were interpreted to include
a hostile work environment claim, then
a hostile environment claim would lurk behind almost any EEOC
charge of discrimination. While no magic words are required, some
language suggesting continuing and abusive conduct is necessary.
Crawley v. State of Ohio, C-2-02-1069, 2006 WL 3231341, at *24 (S.D. Ohio Nov. 6,
2006) (citations omitted). Innumerable other federal cases reach the same result.2
Under the Missouri and federal caselaw discussed above, Williams’ complaint
that he was unlawfully denied the opportunity to participate in training programs
does not exhaust a separate claim that he was subjected to a hostile work
environment. Williams’ administrative complaint made no reference to on-the-job
harassment, and made absolutely no reference to the numerous specific instances of
harassment (involving work assignments, discipline, disparaging treatment, and
denial of promotions or other benefits) which he now contends created the hostile

2 See, e.g., Green v. Postmaster Gen. of U.S., 437 Fed. Appx. 174, 178 (3d Cir. 2011)
(administrative complaint alleging failure-to-promote “does not encompass [plaintiff’s]
separate claim of hostile work environment”); Swinnie v. Geren, 379 Fed. Appx. 665, 667
(9th Cir. 2010) (complaint alleging discrete discriminatory acts “would not have put the
EEO investigator on notice of a pattern of conduct ‘sufficiently severe or pervasive’ so as to
create an ‘abusive work environment’”); Mathirampuzha v. Potter, 548 F.3d 70, 77 (2d Cir.
2008) (hostile work environment claim not exhausted where “[t]he plaintiff's administrative
complaint contains no reference to repeated conduct or the cumulative effect of individual
acts”); Gates v. Lyondell Petrochemical Co., 227 Fed. Appx. 409, 409 (5th Cir. 2007) (hostile
work environment claim not exhausted where plaintiff’s administrative charge challenged
“only her employer's discrete acts in terminating and failing to promote her”); Green v.
Elixir Indus., 152 Fed. Appx. 838, 840–41 (11th Cir. 2005) (“all of the factual allegations
contained in Green's EEOC charge relate to his termination,” and “[n]othing in Green's
EEOC charge related to incidents of harassment”); Park v. Howard Univ., 71 F.3d 904, 908
(D.C. Cir. 1995) (collecting cases; “The bald statement that ‘[i]t is my belief that I was
denied the opportunity for advancement in my career because of . . . my national origin’
cannot be read to encompass a hostile work environment claim.”); Rush v. McDonald’s
Corp., 966 F.2d 1104, 1111-12 (7th Cir. 1992) (administrative charge challenging plaintiff’s
termination as racially motivated did not exhaust a hostile work environment claim); Habib
v. Tote Services, C14-1685RSL, 2017 WL 108553, at *5 (W.D. Wash. Jan. 11, 2017), aff'd,
699 Fed. Appx. 759 (9th Cir. 2017) (administrative complaint alleging that plaintiff was
accused of misconduct, and then discharged, for discriminatory reasons did “not allege that
plaintiff was subject to harassment so pervasive that it created an abusive working
environment”).
15
environment. Notably, at trial Williams himself acknowledged that his
administrative complaint said nothing about on-the-job harassment, or concerning a
hostile work environment.3
Williams’ hostile work environment claim should not have been submitted to
the jury, and the judgment on that claim must be reversed.
B.
The majority, and Williams, make a series of responses to the City’s
exhaustion argument. None of those responsive arguments are persuasive.
1.
As an initial matter, the majority concludes that the City waived its
exhaustion arguments, because it failed to adequately plead lack of exhaustion as
an affirmative defense in its First Amended Answer.
The City’s First Amended Answer set forth the full text of Williams’ original
and amended charges of discrimination. The City then alleged that Williams’
original and amended charges “only serve to exhaust claims that are related to the
City’s offering of the Industrial Motor Control Training Course,” and that “[a]ny of
the factual allegations in Plaintiff’s Petition which do not pertain to the particulars
included in his Charge of Discrimination and Amended Charge of Discrimination
have not been adequately exhausted.” The City renewed its exhaustion argument
in a motion seeking to limit the scope of discovery, in a motion for summary
judgment, in a motion in limine, in a motion for directed verdict, and in a motion for
judgment notwithstanding the verdict. During trial, the City renewed its motion in

3 It may be that, if Williams had adequately exhausted a hostile work environment
claim, evidence concerning events beyond the denial of training opportunities would have
been admissible as “background evidence” to support that claim. See McKinney v. City of
Kansas City, 576 S.W.3d 194, 199 (Mo. App. W.D. 2019); Tisch v. DST Sys., Inc., 368 S.W.3d
245, 254 (Mo. App. W.D. 2012). But the question in this case is not the scope of admissible
evidence to support a hostile work environment claim; the question presented here is
whether Williams may litigate a hostile work environment claim at all.
16
limine before Williams’ testimony began, and was given a continuing objection by
the court. The City made similar objections with respect to the testimony of other
witnesses during Williams’ case in chief, and on multiple occasions the court stated
that the objections were continuing.
At every conceivable opportunity, the City raised its claim that Williams had
failed to exhaust his hostile work environment claim, because that claim was not
included in the charge of discrimination he filed with the Missouri Commission on
Human Rights. In response to the City’s repeated exhaustion arguments, Williams
never suggested, prior to the jury’s verdict, that the manner in which the defense
was pleaded in the City’s First Amended Answer was somehow insufficient. By
“fail[ing] to file a motion for more definite statement” challenging the specificity of
the allegations in support of the exhaustion defense in the City’s First Amended
Answer, Williams “waived [his] right to complain of its definiteness.” State ex rel.
Harvey v. Wells, 955 S.W.2d 546, 547 (Mo. 1997).
Even if Williams had preserved an objection to the adequacy of the factual
allegations in the City’s First Amended Answer, those allegations were sufficient in
any event. “While a party pleading an affirmative defense must allege ultimate
facts, the party does not need to allege evidentiary facts.” Mo. Landowners Alliance
v. Grain Belt Exp. Clean Line LLC, 561 S.W.3d 39, 45 (Mo. App. W.D. 2018)
(citation omitted). The only fact necessary to decide the City’s exhaustion defense
was the content of Williams’ administrative complaint, which was set out verbatim
in the City’s First Amended Answer. Besides setting forth the full text of Williams’
administrative complaint, the City also affirmatively alleged that Williams’
complaint “only serve[d] to exhaust claims that are related to the City’s offering of
the Industrial Motor Control Training Course” – the precise argument the City
continues to assert on appeal. The majority does not identify any additional facts
17
which the City’s First Amended Answer omitted. The City was not required to
make a detailed legal argument concerning exhaustion in its answer.
The majority suggests that the City was required to catalog every allegation
of Williams’ petition which was not “related to the City’s offering of the Industrial
Motor Control Training Course.” This elevates form over substance: by explicitly
alleging that “only” one identified claim had been properly exhausted, the City
necessarily alleged that all other claims were not. The preservation argument is
meritless.
The majority opinion notes (at pages 9-10), that Williams moved to strike the
affirmative defenses asserted in the City’s original Answer – a motion which the
circuit court granted. Maj. Op. at 9-10. The majority suggests that this motion to
strike attacked the factual allegations supporting an exhaustion defense, and that
in granting the motion, the circuit court “stated that the City’s affirmative defense
of exhaustion of remedies, ‘fail[s] to fulfill the requirements of Mo. R. Civ. P. 55.08.’”
Maj. Op. at 10. What the majority fails to acknowledge, however, is that the City’s
original answer did not plead an exhaustion defense at all. Williams’ motion to
strike challenged the affirmative defenses alleged in paragraphs 76, 77, and 79 of
the City’s Answer. See LF 44. Those paragraphs alleged that Williams’ claims
failed because “[t]he alleged acts of discrimination about which Mr. Williams
complains occurred more than 180 days before Mr. Williams filed his Charge of
discrimination with the Missouri Commission on Human Rights”; that “[t]he alleged
acts of discrimination about which Mr. Williams complains occurred more than two
years prior to Mr. Williams’ filing of his Petition”; and that “Mr. Williams has failed
to mitigate his damages.” See LF 5, at 12. It is those allegations – of statute of
limitations and failure-to-mitigate defenses – which Williams attacked as
inadequate, and which the circuit court found to be deficient.
18
The majority does not explain what relevance it could conceivably have that
the circuit court found the City’s pleading of statute of limitations and failure-tomitigate defenses in its original Answer to be deficient. I perceive none. The City’s
original answer was superseded and abandoned when the circuit court gave the
City leave to file its First Amended Answer. Sherrer v. Boston Scientific Corp., 609
S.W.3d 697, 711 n.11 (Mo. 2020) (citing State ex rel. Crowden v. Dandurand, 970
S.W.2d 340, 342 (Mo. 1998)). And none of the parties raises a statute of limitations
or failure-to-mitigate issue on appeal. Whether or not the City’s other defenses
were adequately pleaded, in a superseded pleading, is beside the point.
The majority also suggests that, after the City filed its First Amended
Answer (which first raised an exhaustion defense), Williams attacked the
sufficiency of the exhaustion defense pleaded by the City. Maj. Op. at 12. This
contention once again misreads the record. The majority cites to Williams’
suggestions in opposition to the City’s motion for summary judgment on the
exhaustion issue. But what Williams was challenging in his suggestions in
opposition was the adequacy of the factual allegations and legal argument in the
City’s motion for summary judgment, not the adequacy of the City’s pleading. Given
that the City was denied summary judgment, it is irrelevant whether the City
adequately argued exhaustion in its unsuccessful summary judgment motion.
Indeed, the City was not required to move for summary judgment at all in order to
preserve the exhaustion issue for appeal.
If anything is significant about Williams’ suggestions in opposition to the
City’s motion for summary judgment, it is that Williams never argued that
summary judgment should be denied because the City was relying on an affirmative
defense which was not adequately pleaded. See, e.g., Morelock v. Intercontinental
Hotels Grp. Resources, LLC, No. SD37022, 2021 WL4145240, at *5 (Mo. App. S.D.
Sept. 13, 2021) (“A trial court errs as a matter of law when it grants summary
19
judgment on the basis of an affirmative defense that was not properly pleaded.”
(citation omitted)). The fact that Williams never contended that the factual
allegations supporting the City’s exhaustion defense were inadequate – when the
City was seeking dispositive relief based on that defense – is a glaring omission.
Despite the majority’s contrary claims, Williams never challenged in the
circuit court the allegations of the City’s First Amended Answer asserting the
affirmative defense of administrative exhaustion. By failing to challenge the City’s
First Amended Answer on this basis, Williams “waived [his] right to complain of its
definiteness.” State ex rel. Harvey v. Wells, 955 S.W.2d 546, 547 (Mo. 1997).
The majority also claims, in a single sentence, that the City failed to preserve
its exhaustion argument because “its motion for directed verdict lacked specificity.”
Maj. Op. at 13. This contention is brand-new; Williams never made this argument,
either in the circuit court, or on appeal.
I cannot understand what fault the majority finds in the City’s directed
verdict motions (either the motion it made at the close of Williams’ evidence, or the
one it made at the close of all of the evidence). Those motions were oral, but the
Missouri Supreme Court has only recently emphasized that, “[b]ecause the directed
verdict motion must be presented during trial, there is no requirement the directed
verdict motion must be written.” Rhoden v. Missouri Delta Med. Ctr., 621 S.W.3d
469, 476 (Mo. 2021) (citing Rule 55.26(a)). Moreover, the Court explained that “the
standard for specificity in a challenge to submissibility raised in a motion for
directed verdict ‘is not a demanding one.’” Id. (quoting Tharp v. St. Luke's
Surgicenter-Lee's Summit, LLC, 587 S.W.3d 647, 654 (Mo. banc 2019)).
Emphasizing how lenient the standard is, the Supreme Court in Sanders v. Ahmed,
364 S.W.3d 195 (Mo. 2012), held that the following constituted a sufficient oral
directed-verdict motion: “‘We think plaintiff failed to make a submissible case on
issues of negligent causation . . . .’” Id. at 208.
20
In this case, argument on the City’s motions for directed verdict, based on
lack of exhaustion, continued for pages and pages of the trial transcript, both at the
close of Williams’ evidence, and after the City had presented its case and the
evidence was closed. I have included in an Appendix to this opinion excerpts of the
City’s argument on exhaustion issues at the close of the evidence. This lengthy onthe-record argument is obviously sufficient to preserve the exhaustion issue (and
notably, Williams never argued in response that exhaustion was not properly
pleaded in the City’s First Amended Answer). The City’s detailed arguments must
also be construed in light of all that preceded them, where the City had raised the
exhaustion issue not only in its First Amended Answer, but in discovery and
dispositive motions, in a motion in limine, at the outset of Williams’ trial testimony,
and repeatedly with respect to the testimony of other witnesses. Given the City’s
detailed arguments, I do not know what standard of specificity the majority intends
to apply; but I would respectfully suggest that it would be impossible for defense
counsel – in the midst of trial – to ever satisfy it.
Williams also argues that the City failed to prove its failure-to-exhaust
defense, because it failed to present evidence at trial concerning the manner in
which the Missouri Commission on Human Rights actually interpreted and
investigated his claim, or concerning the manner in which the City construed and
responded to his complaint. Such evidence was unnecessary, however. The caselaw
discussed at length above makes clear that the adequacy of an administrative
charge is determined by reviewing the terms of the charge itself, and comparing the
charge to the allegations a plaintiff seeks to prosecute in litigation. Because
Williams’ original and amended complaints were admitted in evidence, the City
presented all of the evidence which the circuit court needed to resolve the
exhaustion issue, and Williams cites no authority holding otherwise.
21
2.
Although the majority concludes that the City failed to properly plead an
exhaustion defense, and therefore failed to preserve its exhaustion arguments for
appeal, the majority opinion contains extended (and completely unnecessary)
dictum addressing the exhaustion issue on the merits. Thus, the majority contends
that Williams’ administrative complaint is “virtually identical in substance” to the
charge in Alhalabi v. Missouri Department of Natural Resources, 300 S.W.3d 518
(Mo. App. E.D. 2009), where the Eastern District found that a hostile work
environment claim was adequately exhausted. Maj. Op. at 20.
Williams’ administrative charge is not comparable to the charge in Alhalabi.
In that case, Alhalabi filed an administrative charge which stated:
[Employer] has recently reprimanded me twice, though it did not have
cause for either reprimand. These reprimands were made in the
attempt to unlawfully terminate my employment based upon my race,
color, religion, national origin, and because of my previous complaints
about discrimination against me and others in the office.
My supervisor, Scott Totten, has made false accusations against me in
a recent performance evaluation. In this fabricated document, he
claims that I have performed poorly in various areas, and alleges
several specific deficiencies he knows to be patently false. Mr. Totten
has recently ordered me to draft an “action plan” in which I am to
respond to his fabricated evaluation with specific ways to resolve his
alleged deficiencies. This was also done with the intent of
manufacturing reasons to terminate me. Mr. Totten has done all of
these things, in the hopes of terminating me because of my race, color,
religion and national origin, as well as because of my previous
complaints.
Since complaints about discrimination, I have been more harshly
targeted and disciplined as a result of my complaints.
Id. at 525-26.
The Eastern District held that this administrative complaint adequately
alleged a hostile work environment claim, based on four features of the charge.
First, Alhalabi “checked the box on the Charge of Discrimination form signifying the
22
discriminatory conduct was continuing.” Id. at 526. Second, he “listed a span of
over two years, from January 1, 2003 until March 3, 2005, as the ‘date’ on which the
discrimination took place.” Id. Third, Alhalabi described two reprimands and a
false allegation in a performance evaluation that were motivated by the desire to
discriminate against him or to retaliate against him for previous complaints.
Finally, he made general allegations “allud[ing] to previous complaints” about
discrimination against him and others; in addition, Alhalabi stated that, since his
complaints, he had been “more harshly targeted and disciplined.” Id.
Based on these features of Alhalabi’s administrative complaint, the Court
concluded that, “[u]nlike in cases where there was a discrete act of discrimination,
Alhalabi's Charge of Discrimination describes pervasive racially discriminatory
conduct” that would put the employer on notice that he was making a hostile work
environment claim, and would lead the Commission to investigate such a claim. Id.
at 526 (emphasis added).
Williams’ charge is much narrower than Alhalabi’s. Williams’ charge
describes only a specific type of alleged unlawful conduct by his employer: denial of
access to training opportunities. Unlike in Alhalabi, Williams did not allege
“pervasive racially discriminatory conduct,” and made no general allegation of
racial discrimination or retaliation directed at him during the five-month timeframe
identified in his charge.
Unlike in Alhalabi, there is no basis to conclude in this case that an
administrative investigation would reasonably be expected to extend from the
denial of training opportunities described in Williams’ charge, to include an alleged
multi-year campaign of harassment taking multiple different forms (disparaging
comments, unfounded discipline, undesirable work assignments, denial of necessary
equipment or information, etc.), and going well beyond the time period Williams
himself identified. As the Supreme Court explained in Farrow, Williams’ “charge of
23
discrimination contains no allegations whatsoever that would put [the City] on
notice that [he] intended to raise additional claims” involving aspects of his work
life beyond access to training opportunities. 407 S.W.3d at 594. “The first time [the
City] was apprised of this claim was in [Williams’] . . . petition.” Id.
3.
The majority also contends that, in assessing whether Williams exhausted a
hostile work environment claim, this Court must consider an earlier administrative
complaint which he filed in 2014.
On May 6, 2014, Williams filed a Charge of Discrimination with the Missouri
Commission on Human Rights against the City. Williams’ 2014 charge alleged that
a letter of reprimand which he received on October 9, 2013, was racially motivated,
and was intended to retaliate against him for his earlier support of another
employee’s discrimination complaint. The 2014 charge described the particulars as
follows:
In or about July 2013, I signed a statement regarding a complaint of
race[-]based discrimination filed by a former Superintendent. On or
about October 9, 2013, I, and one other black Maintenance Electrician,
was issued a letter of reprimand after being observed sitting in our
vehicle from 10:00 AM to 10:45 AM on or about September 19, 2013.
I believe I was issued the letter of reprimand because of my race
(black), and in retaliation for participating in the protected activity of
writing a statement in support of another person’s complaint of
discrimination, in violation of Title VII of the Civil Rights Act of 1964,
as amended.
When asked on the charge form to identify the “Date(s) Discrimination Took Place,”
Williams identified both the “[e]arliest” and “[l]atest” date of the challenged conduct
to be “10/9/2013” – the same day. Williams’ 2014 complaint concerns the incident of
“unfair discipline when [Williams] was attempting to fix the megger” which was
referenced in the verdict director for his hostile work environment claim.
24
The Commission investigated Williams’s 2014 complaint. On June 6, 2014, it
issued Williams a “Notice of Termination of Proceedings,” advising him that the
Commission “lack[ed] jurisdiction over this matter because your complaint was not
filed within 180 days of the alleged discrimination as required by the [MHRA].”
The Commission stated that it was “administratively closing this case and
terminating all MCHR proceedings relating to your complaint.” The Notice advised
Williams that he could appeal the Commission’s determination “by filing a petition
under § 536.150 of the Revised Statutes of Missouri” in the Circuit Court of Cole
County. Williams did not seek judicial review.
The 2014 charge is not relevant for defining the scope of Williams’ more
recent administrative complaint. The 2014 charge was filed seventeen months
before the original complaint at issue here. Williams’ May 2014 charge complained
of a single act, occurring on a single day: the City’s issuance of a letter of reprimand
on October 9, 2013, based on the City’s assertion that he was sitting in his vehicle,
not working, for forty-five minutes on September 19, 2013. Moreover, because no
right-to-sue letter was ever issued based on the May 2014 complaint, the act
complained of in Williams’ untimely 2014 charge is not itself actionable. See, e.g.,
State ex rel. Dalton v. Mo. Comm’n on Human Rts., 618 S.W.3d 640, 651 (Mo. App.
W.D. 2020) (“[T]he Act does not give a claimant an automatic right to sue; the
claimant must first obtain a right-to-sue letter from the MCHR.”).
The majority contends that Williams’ 2015 charge “incorporated his
allegation of racial discrimination from the 2014 charge.” Maj. Op. at 3. It does
nothing of the sort. The relevant paragraph of Williams’ 2015 charge states:
III. I believe this is discrimination against me because of my race,
black, in violation of Title VII of the Civil Rights Act of 1964, as
amended, and retaliation against me for opposing acts made unlawful
under Title VII of the Civil Rights Act of 1964, as amended.
25
This paragraph makes no reference to the May 2014 complaint, or to the events
underlying the May 2014 charge, either explicitly or by implication. In the quoted
statement Williams merely alleged what he contended was the motivation for “this”
– namely, the denial of training opportunities described in the preceding paragraph.
The quoted paragraph did not somehow allege or even suggest additional acts of
discrimination or retaliation, beyond what is described in Paragraph II.
Further, Paragraph III of Williams’ 2015 charge is too vague to put the City,
or the Commission, on notice of additional alleged acts of discrimination or
retaliation. The charge does not state what the earlier unlawful “acts” which he
opposed were, or what he did to “oppos[e]” them. The earlier acts “made unlawful
under Title VII” could have been acts of discrimination based on “race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Moreover, the earlier
unlawful acts which Williams opposed were not necessarily directed at him: the
MHRA prohibits an employer from retaliating against an employee for opposing
unlawful acts directed at others, not just against the employee himself or herself.
§ 213.070.1(2); see, e.g., Walsh v. City of Kansas City, 481 S.W.3d 97, 105 (Mo. App.
W.D. 2016). This case offers a paradigm example: Williams alleged in his 2014
complaint that the City retaliated against him after he engaged in the protected
activity of supporting another employee’s discrimination claim. Thus, Williams’
claim of retaliation in his 2015 charge does nothing to suggest that he had
previously been subjected to, or complained of, (1) racial discrimination (2) directed
at him. In particular, Williams’ 2015 charge does not allege that he was being
retaliated against for filing his 2014 charge, or that he was being retaliated against
based on the same underlying protected activity (supporting another employee’s
race-discrimination complaint) which allegedly resulted in his October 2013
reprimand.
26
The majority’s “incorporation by reference” claim is no more accurate than
the circuit court’s assertion that Williams’ administrative charge actually alleged all
of the claims of mistreatment which were ultimately included in the verdict
directing instructions. We must decide this case based on what Williams’
administrative complaint actually said, not on what we may wish it had included.
Even if Williams’ 2015 charge had specifically described the protected activity
allegedly motivating the City’s retaliation, such a claim of retaliation would not
have put in issue the underlying discriminatory acts which Williams previously
opposed. See, e.g., Duncan v. Delta Consol. Indus., 371 F.3d 1020, 1026 (8th Cir.
2004) (where employee’s administrative charge “alleg[ed] retaliation for having
complained about sexual harassment,” “the reference to past harassment is simply
insufficient to put the EEOC or [her employer] on notice of [a sexual harassment]
charge”), overruled on other grounds by Torgerson v. City of Rochester, 643 F.3d
1031 (8th Cir. 2011) (en banc)); Shannon v. Ford Motor Co., 72 F.3d 678, 685 (8th
Cir.1996) (mere reference to previous discrimination charge in subsequent
retaliation complaint “was not enough to exhaust, for Title VII purposes, the
discrimination claim”); Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222–
23 (8th Cir. 1994) (same).
The current charge and the May 2014 charge challenge completely different
actions by the City: the 2014 charge challenges a letter of reprimand which
Williams contends was unfounded, while his current charge challenges the denial of
training opportunities to African-American electricians generally. It is not the case
that, whenever an employee files an administrative complaint, every prior charge of
discrimination or retaliation which that employee has ever filed is somehow
implicated or resurrected. Without some reference in Williams’ current complaint
to the May 2014 charge, or to the incident underlying the May 2014 charge, that
27
untimely, closed complaint has nothing to do with the exhaustion question before
this Court.
Finally, even if this Court were to consider Williams’ May 2014 charge in
combination with the charge which is actually in issue here, that would still not
allege a hostile work environment claim. Looking at the charges together, they
would simply allege that Williams and other African-American electricians had
been denied training opportunities, and that – on a single occasion more than a year
earlier – Williams had been reprimanded for spurious reasons. Under the caselaw
described above, those allegations would not state a claim for a “hostile work
environment,” even considered in tandem.
The majority suggests that, at oral argument, the City’s counsel conceded
that if the 2014 charge had actually been incorporated verbatim into Williams’
current charge, then the City’s exhaustion arguments would necessarily be
defeated. Maj. Op. at 16, 21-22. But that is not what counsel said. As the
quotation in the majority opinion reflects, counsel merely stated that, if the 2015
charge had in fact repeated the allegation of retaliation from the 2014 charge, then
the City would not be contending that the re-alleged claim of a retaliatory
reprimand was not exhausted. This is simply a tautology: “if the 2015 charge had
said ‘X’, we would not be arguing that the 2015 charge did not say ‘X.’” Moreover,
immediately following the statement the majority quotes, counsel went on to
explain that Williams’ hostile work environment claim went well beyond any acts
alleged in the 2014, 2015 and 2016 charges. Counsel explained that
[in] the verdict director for hostile work environment claim [Williams]
includes a number of disjunctives, such as unfair discipline, sleeping
on the job, treating as if incompetent, giving undesirable work
assignments – none of those were mentioned in 2014 other than the
discipline. . . . I had to work only in the secondary plant, and I didn’t
get access to parts – none of those relate back to the 2014 [charge] . . . .
[T]he City wasn’t on notice of those prior to the petition being filed.
28
Oral Arg. Recording 15:04-15:33. The City did not concede that any “incorporation
by reference” of the 2014 charge would defeat its exhaustion defense.4
4.
The majority also highlights the fact that Williams checked the “Continuing
Action” box on the Charge of Discrimination form in both his original 2015 charge,
and in his 2016 amended charge. Checking this box put the Commission and the
City on notice that Williams was relying on the “continuing violation” theory.
Under that theory, “a plaintiff may pursue a claim for an event that occurred prior
to the 180-day statute of limitations for filing a claim of discrimination with the
MCHR if the plaintiff can demonstrate that the event is ‘part of an ongoing practice
or pattern of discrimination’ by the employer.” Tisch v. DST Systems, Inc., 368
S.W.3d 245, 252 (Mo. App. W.D. 2012) (quoting Pollock v. Wetterau Food Distrib.
Grp., 11 S.W.3d 754, 763 (Mo. App. E.D. 1999)).
There are several problems with the majority’s reliance on the “continuing
violation” doctrine. First, this doctrine was developed to extend the statute of
limitations beyond the 180-day limitations period, where events inside and outside
the limitations period are part of an ongoing pattern of discrimination. But the City
does not argue on appeal that Williams’ hostile work environment claim is barred
by the statute of limitations. Instead, it argues that Williams failed to exhaust his
administrative remedies with respect to the hostile work environment claim,

4 The majority also suggests (Maj. Op. at 17-18), that the City somehow conceded that
Williams’ 2014, 2015, and 2016 charges sufficiently alleged a hostile work environment
claim when it alleged in its First Amended Answer that the 2014 charge “raises similar
issues” to Williams’ later administrative complaints. LF 62, at 15 ¶ 79.b. The quoted
passage merely asserts, however, that Williams’ circuit-court petition makes similar
allegations as his 2014 charge, as a basis for arguing that the claims in the petition were
time-barred. Thus, the City was arguing that, to the extent Williams’ petition repeated
allegations from the 2014 charge – which the Commission had found to be time-barred –
then the allegations of the petition were likewise time-barred. This single, isolated
allegation in the City’s First Amended Answer did not somehow concede away the
exhaustion arguments the City has repeatedly asserted, time and time again.
29
because his charge of discrimination failed to notify the Commission or the City of
such a claim. The “continuing violation” doctrine is applied to determine the
timeliness of the claims alleged in a complaint or pleading, not to gauge the legal
sufficiency of those allegations. The “continuing violation” doctrine has little to say
concerning how an administrative charge should be interpreted, or whether the
allegations of a particular charge are sufficient to provide reasonable notice.
In addition, the 2015 and 2016 charges specifically describe the “continuing
violation” Williams was challenging: the discriminatory and retaliatory denial of
training opportunities. Williams’ amended charge is explicit: it alleges that the
City was engaging in “a clear pattern and practice . . . of permitting White
employees to receive better training than African-Americans, that would put the
White employees in a better position for promotion.” The original and amended
charges did not allege any broader pattern of racially motivated discrimination, as
the majority suggests.
The reason why Williams invoked the “continuing violation” doctrine is selfevident. Williams filed his original charge on October 2, 2015. The charge alleged
discrimination and retaliation dating back to November 2014 – outside the 180-day
limitations period specified in § 213.075.1. While Williams’ charge may have
alleged that the denial of training opportunities constituted an ongoing “pattern and
practice” extending beyond the 180-day limitations period, nothing in Williams’
charge would have alerted a reader that he was contending that other actions taken
by the City were part of this “pattern and practice.”
To successfully invoke the “continuing violation” doctrine, an employee must
show that earlier and later acts are “part of ‘a series of interrelated events, rather
than isolated or sporadic acts of intentional discrimination’”; the acts must be
“‘closely-related [and] similar.’” Tisch, 368 S.W.3d at 252, 254 (quoting Pollock, 11
S.W.3d at 763). Williams’ claim that all African-American electricians were
30
repeatedly denied training opportunities is not “closely-related” or “similar” to his
claims that he was subject to unfounded discipline, unfavorable work assignments,
disparaging comments, or the other acts which he contends established a hostile
work environment. These acts cannot be deemed “closely-related” or “similar”
merely because they all allege race-based discrimination and retaliation – more
than a common discriminatory or retaliatory animus is necessary to distinguish
between “‘a series of interrelated events’” and “‘isolated or sporadic acts of
intentional discrimination.’” Tisch, 368 S.W.3d at 252 (quoting Pollock, 11 S.W.3d at
763).5 Further, Tisch holds that the “continuing violation” doctrine cannot be
invoked with regard to “discrete acts” which “can be ‘identified individually as
significant events,’” and which “occur at a particular moment in time” – “even when
[those discrete events] are related to acts alleged in timely filed charges.” 368
S.W.3d at 253-54 (citations omitted). Many of the acts on which Williams relies to
support his hostile work environment claim constitute such “discrete acts.”
Accordingly, those acts cannot form part of a “continuing violation,” even if those
other events were otherwise “related” to the denial of training opportunities.
* * * * *
The City’s first Point is meritorious: Williams failed to exhaust his hostile
work environment claim by filing a timely administrative complaint with the
Missouri Commission on Human Rights, and the City was accordingly entitled to
judgment as a matter of law on that claim.

5 See also Jones v. City of Allen Park, 167 Fed. Appx. 398, 405 (6th Cir. 2006)
(rejecting plaintiff’s argument “that the five allegedly retaliatory actions are not isolated
incidents because they were all motivated by the same animus”); Stoller v. Marsh, 682 F.2d
971, 975 (D.C. Cir. 1982) (“a series of allegedly discriminatory actions against the same
employee, even with the same alleged motive such as sex discrimination, is not enough” to
invoke the “continuing violation” doctrine).
31
II.
In Point II, the City contends that the circuit court erroneously permitted
Williams to submit claims of retaliation to the jury which he had not exhausted.
As explained above, Williams’ original and amended charges of
discrimination complain only that he was denied certain training opportunities.
Williams alleged both that the denial of these training opportunities was based on
his race, but also that it was in “retaliation against me for opposing acts made
unlawful under Title VII of the Civil Rights Act of 1964, as amended.”
Thus, Williams plainly exhausted the claim that he was denied training
opportunities in retaliation for opposing discrimination by the City. But the circuit
court permitted Williams – over the City’s express objection – to submit acts of
alleged retaliation which went much further. The verdict director asked the jury
whether the City had retaliated against Williams by
− “[t]reat[ing] [him] as if he were incompetent”;
− “[d]en[ying] [him] promotions to the Electrical Maintenance Supervisor
positions that were awarded to James Crawford and/or Cornell
Ragland”;
− “[a]ccus[ing] [him] of not completing or performing work in an
unsatisfactory manner”; and
− “[a]ccus[ing] [Williams] of sleeping on the job.”
These allegations of retaliation were never mentioned in Williams’ administrative
complaint. These allegations – of disparaging treatment, unfounded accusations of
poor work and misconduct, or denial of promotions to positions having nothing to do
with the Industrial Motor Controls training course – are not related to Williams’
charge that he was denied specific training opportunities. Nor would the
Commission’s investigation of Williams’ administrative complaint reasonably be
expected to encompass these wholly dissimilar claims. Williams was required to
separately exhaust these distinct retaliation claims. See Tisch, 368 S.W.3d at 254
(“Each incident of discrimination and each retaliatory adverse employment decision
32
constitutes a separate actionable ‘unlawful employment practice’”; citation
omitted).6
“‘[F]or disjunctive verdict directing instructions to be deemed appropriate,
each alternative must be supported by substantial evidence.’” Kader v. Bd. of
Regents of Harris-Stowe State Univ., 565 S.W.3d 182, 186 (Mo. 2019) (quoting RossPaige v. St. Louis Metro. Police Dep’t, 492 S.W.3d 164, 172 (Mo. 2016)). If one or
more of the disjunctive alternatives submitted to the jury are legally defective, a
verdict based on that instruction must be reversed. Griffin v. Kansas City So. Ry.
Co., 965 S.W.2d 458, 460-61 (Mo. App. W.D. 1998) (reversing plaintiff’s verdict and
remanding for new trial, where one of the disjunctive submissions of negligence was
preempted by federal law).
In this case, the disjunctive submissions concerning alleged retaliatory
actions which had not been exhausted should not have been submitted to the jury.
The City is entitled to a new trial on Williams’ retaliation claim, in which
retaliation is submitted solely with regard to the City’s denial of training
opportunities to Williams.
In discussing the City’s third Point, the majority suggests that the City
offered a form of retaliation instruction (proposed Instruction H) which included the
same disjunctives about which it now complains. Maj. Op. at 28. What the
majority fails to acknowledge, however, is that the City first offered Instruction G as
an alternative to Williams’ proposed verdict director. Proposed Instruction G
hypothesized only a single act of alleged retaliation: that “Defendant denied

6 As with a hostile work environment claim, see note 3 above, evidence concerning
unexhausted acts of alleged retaliation may well have been admissible as “background
evidence” to establish the City’s retaliatory motivation for denying Williams training
opportunities. Tisch, 368 S.W.3d at 254. Tisch specifically holds, however, that such
“background” acts should not be included in a verdict directing instruction: “[t]here was
nothing to submit to the jury on the prior untimely discrete discriminatory acts because
they were no longer actionable.” Id. 257 (citation omitted).
33
Plaintiff the opportunity to attend the 2014-2015 pilot electrical training class.” It
was only after that instruction was refused by the court, that the City offered an
alternative verdict director (proposed Instruction H), which included all of Williams’
claimed acts of retaliation, but proposed other alternative language. By submitting
proposed Instruction G, the City preserved its objection that only a single alleged
act of retaliation had been exhausted and should be submitted to the jury.
Williams suggests that the City has failed to establish that it was prejudiced
by the disjunctive submission of multiple, unexhausted incidents of alleged
retaliation. But the submission of disjunctives which are not capable of sustaining
a verdict establishes prejudice requiring a retrial on its own, since “there is no way
of discerning which theory the jury chose.” Kader, 565 S.W.3d at 187 (citation
omitted). In Kader, the Missouri Supreme Court reversed MHRA verdicts for a
plaintiff-employee where the Court concluded that one of four alleged acts of
discrimination and retaliation was unsupported by the evidence. Id. at 190.
Similarly, in Ross-Paige, 492 S.W.3d 164, the Supreme Court reversed an MHRA
judgment, and ordered a retrial, where one of seven submissions of alleged
retaliation was unsupported by substantial evidence. The Court explained that
reversal was required because “this Court cannot rule out the possibility that the
jury improperly returned its verdict upon a theory that was not supported by
substantial evidence and that misdirected or confused the jury.” Id. at 176.
Here, four of five (or 80%) of the alleged retaliatory actions submitted to the
jury were defective. This is sufficient to establish prejudicial error requiring a
retrial. Indeed, it is unclear what further showing of prejudice the City could
conceivably make, given that inquiry into the jury’s deliberations is not authorized
in these circumstances. See Smith v. Brown & Williamson Tobacco Corp., 410
S.W.3d 623, 642-43 (Mo. 2013).

Outcome: Because Williams failed to exhaust his hostile work environment claim, and
failed to exhaust four of the five instances of alleged retaliation which were
submitted to the jury, the judgment must be reversed. The case should be
remanded for retrial solely on the one claim of retaliation which Williams actually
alleged in his administrative complaint: that he had been denied access to training
opportunities in retaliation for previously opposing acts of discrimination.

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