The Flag: 'Me, too' evidence, sovereign immunity, and more
Vol. 79, No. 3 / May - June 2023
W. Dudley McCarter
W. Dudley McCarter, a former president of The Missouri Bar, is a partner in the St. Louis law firm of Behr, McCarter, Potter, Neely & Hyde.
Trial court did not err in admitting “me, too” evidence
Alhalabi v. Missouri Department of Corrections, 662 S.W.3d 180 (Mo. App. W.D. 2023).
The Missouri Department of Corrections appealed the circuit court’s judgment following a jury verdict in favor of Amina Alhalabi’s claims of hostile work environment. The DOC challenged the admission of the testimony of a “me, too” witness. The Missouri Court of Appeals-Western District affirmed the judgment.1
An appellate court reviews a trial court's evidentiary rulings for an abuse of discretion.2 In evaluating the admissibility of “me, too” evidence, “the inquiry is 'fact based and depends on many factors.”'3 “Me, too” evidence may be related to the plaintiff’s circumstances and theory of the case, including “‘temporal and geographic proximity, whether the various decision makers knew of the other decisions, whether the employees were similarly situated in relevant respects, or the nature of each employee’s allegations of retaliation.’”4 “There is no one set of agreed-upon factors, and no one factor is dispositive.”5
Alhalabi and the “me, too” witness were corrections officers at the DOC during the same general time period. They both were Muslim and were both born in another country. Both officers claimed they were targeted by co-workers or supervisors based on their religion and country of origin. They were both subject to the DOC’s anti-discrimination policy, which was enforced by the same Human Resources office.6 The DOC’s central HR office was aware of both individuals’ complaints of discriminatory harassment but failed to act in each case.7
Although “not similarly situated in all respects…their shared characteristics made the ‘me too’ evidence relevant and admissible.” Furthermore, the DOC has not established that the prejudicial effect of the “me too” evidence outweighed its probative value.8
Notice of suit requirement in city charter was valid
Zang v. City of St. Charles, 659 S.W.3d 327 (Mo. banc 2023).
In 2019, Christopher Zang injured himself while bicycling when he crossed an open-grated metal bridge in St. Charles.9 He filed a suit against the City of St. Charles and St. Charles County, alleging negligence and premises liability.10 Zang didn’t provide written notice to the city within 90 days of the accident or at any point before filing the lawsuit.11 The circuit court dismissed Zang’s premises liability claim, citing § 12.3 of the St. Charles city charter, which states:
No action shall be maintained against the city for or on account of an injury growing out of alleged negligence of the city unless notice shall first have been given in writing to the mayor within ninety days of the occurrence for which said damage is claimed, stating the place, time, character and circumstances of the injury, and that the person so injured will claim damages therefor from the city.12
Zang appealed the court’s judgment, stating the city charter’s notice requirement must be stricken because it conflicts with various statutes and the Missouri Constitution. “Finding no irreconcilable conflict between Charter section 12.3 and the statutes cited by Zang,” the Supreme Court of Missouri affirmed the circuit court’s judgment.13
Zang alleged city charter § 12.3 conflicts with §§ 82.210, 516.120, and 537.600.1 “Whether a state law provision conflicts with a charter provision is a matter of statutory construction.”14 “As a general principle, where a charter provision and statutes do not irreconcilably conflict, both stand.”15
While charter § 12.3 limits § 537.600.1(2)’s waiver of sovereign immunity, “the Charter’s notice requirement does not prohibit what section 537.600.1(2) permits.”16 “Notice requirements have been held constitutional even when they limit a municipality’s waiver of sovereign immunity.”17
While Zang emphasizes the four notice statutes cover the majority of cities in Missouri, he fails to explain how that creates a reasonable inference that the legislature intended to occupy the field and leave no room for local supplementation. Had the legislature intended to occupy the field by limiting notice requirements to only the cities qualifying under the notice statutes, it could have said so.18
Zang also claimed § 12.3 of the city charter irreconcilably conflicts with § 516.120 because “both create time restrictions for when an action may be brought.”19 Section 516.120(2) imposes a five-year statute of limitations for “[a]n action upon a liability created by statute other than a penalty for forfeiture.” “Pursuant to article VI, section 19(a)’s grant of authority to constitutional charter cities, the City possesses the power to impose a notice requirement because notice requirements are not limited or denied by section 516.120.”20
This Court has explained on numerous occasions that local laws may be more restrictive than statewide laws, so long as a “municipality does not attempt to authorize by the ordinance what the legislature has forbidden or forbid what the legislature has expressly licensed, authorized, or required[.]”21
School district did not waive sovereign immunity by purchasing insurance that excluded coverage for claims barred by sovereign immunity
State ex rel. School District of Kansas City, 33 v. Zhang, 2023 WL 1786657 (Mo. App. W.D. 2023).
The plaintiff filed a lawsuit in circuit court against the School District of Kansas City 33 d/b/a Kansas Public Schools (“KCPS”). KCPS filed a motion for summary judgment claiming sovereign immunity from the plaintiff’s claims, and the trial court overruled the motion. The Missouri Court of Appeals-Western District found KCPS’ insurance policies didn’t waive its sovereign immunity and issued its permanent writ of prohibition in State ex rel. School District of Kansas City 33 v. Zhang.22
KCPS is a governmental entity that is entitled to sovereign immunity. However, “[t]he purchase of liability insurance may function as a waiver of sovereign immunity.”23 The plaintiff claimed KCPS “‘procured liability insurance covering both it and its agents for claims like those being made by Plaintiff,’ thereby waiving KCPS’s sovereign immunity.”24
“Sovereign immunity is not a defense to suit but, rather, it is immunity from tort liability altogether, providing a basis for prohibition.”25 Immunity is waived only “to the extent of and for the specific purposes covered by the insurance purchased.”26
Each policy obtained by the school district contained an endorsement that expressly stated they “did not provide coverage for any claim for which immunity is granted pursuant to section ‘537.600 et seq.,’” and they “excluded coverage for any claim barred by the doctrine of sovereign immunity.”27 Here, the disclaimer provisions in KCPS’ insurance policies acted to retain KCPS’ sovereign immunity.28
“The undisputed facts demonstrate that KCPS’s insurance policies did not waive KCPS’s sovereign immunity,” the Court of Appeals ruled. “Therefore, KCPS enjoys immunity from the claims asserted in Plaintiff’s petition.”29
Default judgment not set aside
KDD Enterprises, LLC v. Jeffries, 2023 WL 2236800 (Mo. App. S.D. 2023).
The Missouri Court of Appeals-Southern District found the trial court did not abuse its discretion in denying Justin Jeffries’ motion to set aside two default judgments against him and in favor of the respondents because Jeffries failed to prove the existence of good cause to set aside the default judgments.30 “A motion to set aside a default judgment is treated as an independent action, which, on appeal, is reviewed for an abuse of discretion.”31 Therefore, the Court of Appeals deferred to the court’s “credibility determinations and the weight it gives the evidence.”32
Jeffries had to establish good cause existed for failing to respond by alleging facts constituting good cause and presenting credible evidence proving the existence of those facts.33 Jeffries argued he met the standard for good cause because he “failed to file a responsive pleading due to his mental health condition and pending federal charges, and filed his motion to set aside soon after his federal charges were resolved.”34 “The motion court was not required to, and did not, believe Jeffries’ testimony that his failure to respond was caused by the pending federal charges and his PTSD.”35
We are mindful of Jeffries’ argument that our courts recognize the important policies favoring the resolution of lawsuits on the merits and disfavoring default judgments. “Those policies, however, must be considered together with the countervailing and fundamental policy on which the administration of justice rests – that parties obey and respect orders of the court to appear or respond or otherwise to take some action.”36
1 Alhalabi v. Missouri Department of Corrections, 662 S.W.3d 180 (Mo. App. W.D. 2023).
2 Cox v. Kansas City Chiefs Football Club, Inc., 473 S.W.3d 107, 114 (Mo. banc 2015).
3 Id. at 122 (quoting Sprint/United Mgmt. Co. v. Mendelson, 552 U.S. 379, 388 128 S.Ct. 1140, 170 L.ED.2d 1 (2018)).
4 Cox, 473 S.W.3d at 122.
6 Alhalabi, 662 S.W.3d at 192.
8 Alhalabi, 662 S.W.3d at 193 (quoting Hesse v. Mo. Dep’t. of Corr., 530 S.W.3d 1, 5 (Mo. App. W.D. 2017)).
9 Zang v. City of St. Charles, 659 S.W.3d 327, 330 (Mo. banc 2023).
14 Id. at 332.
15 Gates v. City of Springfield, 744 S.W.2d 487, 488 (Mo App. 1988).
16 See Findley v. City of Kan. City, 782 S.W.2d 393, 397 (Mo. banc 1990).
18 Zang, 659 S.W. at 334 (citing Cape Motor Lodge, Inc. v. City of Cape Girardeau, 706 S.W.2d 208, 212 (Mo. banc 1986)).
19 Id. at 3334.
20 Id. See also Cape Motor Lodge, 706 S.W.2d at 212.
21 Id. at 335 (citing Kan. City v. LaRose, 524 S.W.2d 112, 117 (Mo. banc 1975)).
22 2023 WL 1786657 (Mo. App. W.D. 2023).
23 State ex rel. Blue Springs Sch. Dist. v. Grate, 576 S.W.3d 262, 265 N.5 (Mo. App. W.D. 2019) (citing § 537.610.1 RSMo).
24 School District of Kansas City 33, 2023 WL 1786657 at 2.
25 State ex rel. City of Grandview v. Grate, 490 S.W.3d 368, 369 (Mo. banc 2016).
26 Blue Springs Sch. Dist., 576 S.W.3d at 269.
27 School District of Kansas City 33, 2023 WL 1786657 at 4.
29 Id. at 6.
30 KDD Enterprises, LLC v. Jeffries, 2023 WL 2236800 (Mo. App. S.D. 2023).
31 Wooten v. Wentworth Entm’t Group, LLC, 552 S.W.3d 118, 121 (Mo. App. 2018).
32 Yee v. Choi, 641 S.W.3d 272, 279 (Mo. App. 2021).
33 KDD, 2023 WL 2236800 at 2. See also Paes v. Bear Commc’ns, LLC, 568 S.W.3d 52, 58 (Mo. App. 2019).
34 Id. at 2.
35 Id. at 3.
36 KDD, 2023 WL 2236800 at 3 (citing Plasmeier v. George, 575 S.W.3d 485, 488 (Mo. App. 2019)).