            In the Missouri Court of Appeals
                    Eastern District
                                         DIVISION TWO

RONELL JOHNSON,                                   )           No. ED107679
                                                  )
                       Appellant,                 )           Appeal from the Circuit Court
                                                  )           of the City of St. Louis
vs.                                               )
                                                  )           Honorable Bryan L. Hettenbach
CITY OF ST. LOUIS, MISSOURI, et al.,              )
                                                  )
                       Respondents.               )           FILED: June 23, 2020

                                            Introduction

       Ronell Johnson (“Johnson”) appeals from the trial court’s judgment entering a directed

verdict in favor of Lieutenant Colonel Lawrence O’Toole (“Lt. Col. O’Toole”) and the trial

court’s judgment for the City of St. Louis, Missouri (“the City”), Lieutenant Scott Gardner (“Lt.

Gardner”), and Chief Sam Dotson (“Chief Dotson”) (collectively, “Respondents”) on Johnson’s

claims of race discrimination, disability discrimination, and retaliation following a jury trial. In

his first of four points on appeal, Johnson challenges the trial court’s ruling rejecting Johnson’s

objection to Respondents’ characterizations during closing argument as to the standard for

proving Johnson’s claims of race and disability discrimination and retaliation. In his second

point, Johnson contends that the trial court erred when it entered a directed verdict in favor of Lt.

Col. O’Toole because Johnson presented evidence that Lt. Col. O’Toole was an employer within

the meaning of the Missouri Human Rights Act (“the MHRA”), and that Johnson’s race was a

contributing factor in Lt. Col. O’Toole’s decision to sign off on a recommendation that Johnson
be terminated. In his third point, Johnson argues the trial court abused its discretion in excluding

administrative memos constituting comparator evidence concerning white police officers.

Finally, Johnson alleges the trial court erred in refusing to submit the issue of punitive damages

to the jury.

         First, although the trial court erred in overruling Johnson’s objection to the portion of

Respondents’ closing argument relating to the standard for proving discrimination and

retaliation, we find no prejudice to Johnson because the trial court properly instructed the jury as

to the evidence required to prove a claim of discrimination or retaliation. Regarding the trial

court’s entry of a directed verdict in favor of Lt. Col. O’Toole on Johnson’s claim of race

discrimination, we will not reverse because we cannot ascertain any prejudice to Johnson in light

of the jury’s verdicts rejecting Johnson’s claims of discrimination against the other Respondents.

Third, the trial court did not abuse its discretion in excluding the administrative memos as

comparator evidence because such memos were cumulative of evidence that was introduced

through live testimony. Finally, Johnson’s final point on appeal relating to punitive damages is

moot given our denial of his first three points. Accordingly, we affirm the judgment of the trial

court.

                                   Factual and Procedural History

         This case arises out of an incident on June 25, 2013. On that day, Johnson, an African-

American police officer having the rank of Lieutenant with the St. Louis Metropolitan Police

Department (“SLMPD)”, was stopped and arrested on suspicion of driving while intoxicated.

Internal Affairs (“IA”) investigated Johnson and charged Johnson with conduct unbecoming of

an officer for driving while intoxicated and false reporting of his behavior during the

investigation. Johnson was terminated when the charges were sustained following the

investigation.
                                                   2
       In the early hours of June 25, 2013, Trooper Barbara Collins (“Trooper Collins”) of the

Missouri State Highway Patrol stopped Johnson’s car on suspicion of driving while intoxicated,

failing to drive in a single lane, and failing to yield to an emergency vehicle. Trooper Collins

called additional troopers to the scene. Johnson alleged that when he was standing on the side of

the road he overheard one of the troopers say, “we’re gonna book this [n_ _ _ _ _r].” The

troopers arrested Johnson.

       Johnson was taken to the Maryland Heights Police Department where he was interviewed

by Sergeant Lisa Albright (“Sgt. Albright”) of the SLMPD’s IA division. Johnson told Sgt.

Albright that he could not remember what happened that night but did remember having a drink

at a bar. Sgt. Albright later testified that Johnson was not slurring during the interview but that

his speech was slow and that he smelled faintly of alcohol. Johnson’s account of where he had

been throughout the night varied as the investigation continued.

       Johnson testified that at one point while being investigated he told Lt. Gardner, who was

commander of IA at the time of Johnson’s arrest, about the trooper’s use of a racial slur during

his arrest, at which point Lt. Gardner “became agitated.” Johnson also testified that he raised

concerns about the accuracy of the highway patrol’s report, specifically alleging that the report

inaccurately stated that he failed to perform certain sobriety tests and was slurring his speech.

       Johnson testified that he had been diagnosed with sleep apnea eight to ten years prior, and

that he started having trouble sleeping around late 2012 or 2013. Johnson stated that he would

go days without sleeping around June 2013 and would forget things. Following his arrest,

Johnson contacted his doctor, who subsequently diagnosed Johnson with narcolepsy. Johnson

informed IA about his narcolepsy diagnosis. Johnson later informed Sgt. Albright of his sleep

apnea as well.



                                                  3
       Sgt. Albright concluded that Johnson had three-to-four drinks over a five-and-a-half-hour

period prior to his arrest. Lt. Gardner produced an administrative memo recommending

Johnson’s termination for conduct unbecoming of an officer for driving while intoxicated and

false reporting as a result of lying to IA about his drinking prior to his arrest. Lt. Gardner, Lt.

Col. O’Toole, and Chief Dotson all signed the memo recommending termination, although the

decision to terminate Johnson belonged only to Chief Dotson.

       Johnson filed suit against Respondents alleging discrimination based upon race and

disability, and also alleging retaliation. Johnson’s disability claims related to his narcolepsy and

sleep apnea. Johnson’s claim of retaliation was premised upon his report to IA of the racial slur

allegedly made during his arrest. The case proceeded to a jury trial.

       Johnson called Lieutenant Anthonette Madison (“Lt. Madison”). Lt. Madison testified

generally that race relations in the department are extremely poor, that discipline is affected by

race, and that officers of color are charged differently than white officers. Lt. Madison also

testified more specifically about an exchange she had with Lt. Col. O’Toole. Lt. Madison

testified that Lt. Col. O’Toole once said, “well, if you see two black men in my - - in the alley in

my neighborhood, you’d better stop them.” Lt. Madison testified that she responded, “are you

saying that black people can’t live in your neighborhood?” According to Lt. Madison, Lt. Col.

O’Toole responded, “well they don’t,” which she understood to be Lt. Col. O’Toole saying black

people could not live in his neighborhood.

       Johnson also called Lt. Col. O’Toole. Lt. Col. O’Toole denied making the statements

alleged by Lt. Madison. Lt. Col. O’Toole acknowledged he made the statement that police had

“owned the night” following the protests of the acquittal of former police officer Jason Stockley.

Lt. Col. O’Toole was the acting chief of police at the time.



                                                  4
       Upon calling Chief Dotson to testify, Johnson moved to admit into evidence the IA

administrative memos relating to white police officers who had been investigated by IA, who

had been charged with one or both of false reporting and conduct unbecoming of an officer, and

who had been disciplined by Chief Dotson. The memos contained the names of the officers,

their ranks, their charges, the facts underlying their charges, and the discipline imposed.

Respondents objected to the admission of the written memos, arguing that the memos contained

hearsay and hearsay within hearsay. Johnson maintained that the relevant issue relating to the

memos was Chief Dotson’s reliance on the memos, and not the truthfulness of their contents.

The trial court sustained the hearsay within hearsay objection and excluded the memos but

affirmatively stated that Johnson could ask Chief Dotson “anything about anything in the[]

documents[.]” Johnson then questioned Chief Dotson at length about the other officers named in

the memos, including the circumstances leading to the decision to discipline the officers, and the

discipline administered by Chief Dotson.

       Chief Dotson then testified that race and disability were not factors in his decision to

terminate Johnson but that he terminated Johnson because of Johnson’s rank as a lieutenant and

his belief that Johnson had repeatedly and intentionally lied to IA.

       At the close of Johnson’s case-in-chief, Respondents moved for a directed verdict in

favor of each Respondent on all counts. Respondents Lt. Gardner and Lt. Col. O’Toole

maintained that their recommendations to terminate Johnson did not constitute adverse

employment actions under the MHRA. The trial court queried how Lt. Col. O’Toole’s actions

were anything more than a signature. The trial court denied the motions for directed verdict, but

indicated it would reconsider the motions following the close of all the evidence. Following the

close of all evidence, the trial court denied directed verdicts in favor of the City, Lt. Gardner, and



                                                  5
Chief Dotson, but granted a directed verdict on all counts in favor of Lt. Col. O’Toole. The trial

court did not explain its rulings.

        The trial court declined to submit the issue of punitive damages to the jury and the case

proceeded to closing arguments.

        Respondents repeatedly addressed the causation standard for liability for claims of race

discrimination, disability discrimination, and retaliation during closing argument. Respondents

initially characterized the standard for retaliation claims multiple times without drawing any

objection from Johnson. For example, Respondents stated:

        Finding a verdict in favor of the [Respondents], this is what you must believe. That
        somehow, some way, [Johnson’s] complaint of discrimination was contributing to
        the decision to fire him.1

And:

        If you think, if you agree that his complaint of discrimination that, hey, someone
        from the highway patrol used a slur that had nothing to do with why he was fired,
        then your verdict should be for the defendants on all of the retaliation claims.

Respondents also made similar statements about race and disability discrimination without

objection and repeatedly told the jurors that they should follow the verdict directors.

        However, Respondents went on to say:

        Again, the instructions, when you read them, will demonstrate to you that you have
        to believe -- in order to find a verdict for the plaintiff, you have to believe that race
        was the reason for the decision. Or disability was the reason for the decision. Or
        retaliation was the reason for the decision.

At this point, Johnson objected that Respondents were misstating the contributing factor

causation standard. The trial court responded, “That’s overruled. It’s final argument. You’ll

have an opportunity to respond.” Respondents continued to characterize the causation standard



1
 Respondents evidently misspoke and meant to say that the jury must believe that Johnson’s complaint of
discrimination was a contributing factor in Johnson’s termination in order to find in favor of Johnson.

                                                        6
as whether Johnson’s race, disability, or complaints of discrimination were “the reason” for his

termination. During rebuttal, Johnson described the causation standard as being whether race or

disability were contributing factors and clarified that neither race nor disability had to be “the

reason” for Johnson’s termination.

       The trial court informed the jury that the jury instructions “constitute the law of this case”

and that the jury should find for Johnson on each claim if his race, disability, or complaints of

discrimination were a “contributing factor” in either the substantiation of the charges against

Johnson, the recommendation that Johnson be terminated, or Johnson’s termination. Shortly

after the conclusion of closing arguments, the jury requested demonstrative exhibits relating to

the discipline of Johnson and the other officers about whom Chief Dotson was questioned. The

trial court did not send the exhibits to the jury, noting that the IA administrative memos had not

been admitted into evidence. Approximately two hours later, the jury requested a copy of Chief

Dotson’s testimony relating to the discipline of other officers, which the trial court also did not

provide.

       The jury returned verdicts in favor of all Respondents on all counts. Johnson now

appeals.

                                          Points on Appeal

       In Point One, Johnson alleges the trial court abused its discretion in overruling Johnson’s

objection to Respondents’ closing argument that Johnson’s race, disability, or complaints of

discrimination had to be the sole, but-for reason for his termination. In Point Two, Johnson

challenges the directed verdict granted in favor of Lt. Col. O’Toole because sufficient evidence

supported the submission of a claim of race discrimination against Lt. Col. O’Toole. In Point

Three, Johnson argues the trial court abused its discretion in excluding comparator evidence

concerning white police officers. Finally, in Point Four, Johnson alleges error in the trial court’s
                                                  7
refusal to submit the issue of punitive damages to the jury because Johnson presented substantial

evidence of Respondents’ reckless disregard for his rights.

                                           Discussion

I.     Point One—Closing Argument and the Causation Standard

       Johnson’s first point on appeal focuses on Respondents’ characterization of the causation

standard during closing argument as a “but-for standard” as opposed to the “contributing-factor

standard.” Our courts recognize the substantial difference between these two standards. Under

the but-for standard, a plaintiff must show that an adverse employment action would not have

occurred but for the consideration of an illegal factor such as race. Thomas v. McKeever's

Enters., Inc., 388 S.W.3d 206, 216 (Mo. App. W.D. 2012) (internal citations omitted).

Conversely, under the less onerous contributing-factor standard, a plaintiff need only show that

an illegal factor such as race was a consideration in a defendant’s decision. Fleshner v. Pepose

Vision Inst., P.C., 304 S.W.3d 81, 94 (Mo. banc 2010) (providing that the consideration of

factors such as race is equally “reprehensible” even where an employer has other reasons for its

decision).

       “We review the trial court's ruling in closing argument for an abuse of discretion.”

Nelson v. Waxman, 9 S.W.3d 601, 606 (Mo. banc 2000) (internal citation omitted); see also

Travelers Commercial Cas. Co. v. Vac-It-All Servs., Inc., 451 S.W.3d 301, 311 (Mo. App. E.D.

2014) (internal citation omitted). “Misstatements of law are impermissible during closing

argument and a trial court has the duty, not discretion, to restrain and purge such arguments.”

Fahy v. Dresser Indus., Inc., 740 S.W.2d 635, 641 (Mo. banc 1987) (internal citation omitted)

(emphasis added); see also Estate of Overbey by Overbey v. Franklin, 558 S.W.3d 564, 573 n.10

(Mo. App. W.D. 2018) (internal citations omitted). However, even when a trial court errs, there

is no abuse of discretion absent a showing of prejudice—specifically, a showing that the error

                                                8
had a decisive effect on the jury’s determination. Peterson v. Progressive Contractors, Inc., 399

S.W.3d 850, 857 (Mo. App. W.D. 2013) (internal citation omitted).

        Furthermore, “as a general principle, even if counsel misstates the law in closing

argument, as long as the trial court properly instructs the jury, we will rarely find reversible

error.” Minze v. Mo. Dep't of Pub. Safety, 541 S.W.3d 575, 583 (Mo. App. W.D. 2017) (internal

citation omitted). The underpinning for this principle is the jury’s duty “to follow the trial

court’s instructions, and [the court’s presumption] that [the jury] will even to the extent that

doing so might require the jury to ignore specific argument of counsel in conflict.” Id. (internal

quotation omitted).

        With regard to Point One, Section 213.010(5)2 of the MHRA defines discrimination as

“any unfair treatment based on race . . . as it relates to employment [or] disability[.]” See also

Bram v. AT&T Mobility Servs., LLC, 564 S.W.3d 787, 796 (Mo. App. W.D. 2018). Section

213.010(7) defines employer as “the state, or any political or civil subdivision thereof . . . and

any person directly acting in the interest of an employer[.]” This definition considers individuals

who directly oversee or are actively involved in the discriminatory conduct as employers. Davis

v. Walgreen Co., 581 S.W.3d 619, 631 (Mo. App. W.D. 2019). Section 213.055.1(1)(a) provides

that it is an unlawful employment practice “[t]o fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual's race . . . or

disability[.]” See also Bram, 564 S.W.3d at 796.



2
  All Section references are to RSMo (2016), unless otherwise indicated. Case law interpreting the Sections at issue
in this case has since been expressly abrogated by statute. Section 213.101 (Cum. Supp. 2018). The statutory
amendments include changing the causation standard from the contributing-factor standard to the more burdensome
motivating-factor standard. Bram v. AT&T Mobility Servs., LLC, 564 S.W.3d 787, 794–95 (Mo. App. W.D. 2018)
(internal citations omitted). However, these changes are not retroactive and therefore do not apply to the present
case. Id. at 794–96.

                                                         9
        Under the governing version of the MHRA, an employer commits an unlawful

employment practice if the employee’s protected status is a contributing factor in taking an

adverse employment action against the employee. Bram, 564 S.W.3d at 794–95 (internal

citations omitted); Fleshner, 304 S.W.3d at 94. “A contributing factor is a factor that contributed

a share in anything or has a part in producing the effect.” Bram, 564 S.W.3d at 796 (internal

quotation omitted). “[I]nstructions to the jury that they must find the defendant's conduct to be

‘the sole cause,’ or ‘the dominant cause,’ or ‘the proximate cause’ of the injury are rightly

condemned as misleading error.” Thomas, 388 S.W.3d at 216 (alteration in original) (internal

quotation omitted).

        Respondents’ closing argument informing the jury that “in order to find a verdict for

[Johnson], you have to believe that race . . . [o]r disability . . . [o]r retaliation was the reason for

the decision,” was clearly a misstatement of law. Respondents incorrectly explained a but-for

standard of causation to the jury rather than the correct contributing-factor standard. See Bram,

564 S.W.3d at 794–95; Thomas, 388 S.W.3d at 216. As a result, the trial court committed clear

error when it failed to sustain Johnson’s objection to the misstatement of law. See Nelson, 9

S.W.3d at 606 (internal citation omitted); Fahy, 740 S.W.2d at 641 (internal citation omitted).

At the time of trial, the law on the contributing factor causation standard point had been subject

to extensive appellate review. The requirements of the standard were clear. The trial court’s

failure to sustain Johnson’s objection is inexcusable and could be viewed as an endorsement of

the Respondents’ characterization. Importantly, the trial court had the duty to correct the

misstatement of law made by Respondents, not Johnson. See Fahy, 740 S.W.2d at 641 (internal

citation omitted). While we are troubled by the trial court’s obvious error, we are not persuaded




                                                   10
that Johnson has made the requisite showing of prejudice to warrant reversal. See Peterson, 399

S.W.3d at 857 (internal citation omitted).

       In support of his claim of prejudice, Johnson proffers Halford v. Yandell, 558 S.W.2d

400, 412 (Mo. App. Springfield 1977), for the proposition that “[i]f the trial court overrules the

objection” to a misstatement of law, then, “reversible error is almost inevitable.” Yet Halford

simultaneously recognized that “[m]anifestly no rule can fit all such incidents[.]” Id.

Additionally, Halford did not address the general presumption that the jury will follow the trial

court’s instructions, preventing any prejudice, even where counsel has made an argument

contrary to the instructions. Minze, 541 S.W.3d at 583 (internal citation omitted).

       The record shows that the trial court properly instructed the jury on the contributing-

factor standard and that the jury instructions accurately stated the law governing the case.

Therefore, we begin our analysis with the presumption that the jury followed these instructions

and applied the contributing-factor standard when determining Respondents’ liability on

Johnson’s claims. See id. Additional facts found in the record support applying the presumption

in this case. First, while it is true that Respondents misstated the law during closing argument

and that the trial court failed to correct that misstatement, the record also shows that Respondents

at other times correctly stated the law with regard to the standard of causation and repeatedly

cautioned the jury to follow the verdict directors. Second, when overruling Johnson’s objection

to Respondents’ closing argument, the trial court expressly informed Johnson that he would

“have an opportunity to respond.” The trial court did not express an opinion that Johnson’s

objection was incorrect. Neither did the trial court remain silent on the issue. Third, Johnson

rebutted the Respondents’ closing argument and correctly characterized the causation standard

without objection. Johnson had the final word on the issue of causation, and his word mirrored



                                                11
the instructions given to the jury. Finally, the record suggests that while the jury made multiple

inquiries of the trial court during their deliberations, no inquiry related to the standard of

causation or any conflict between Respondents’ closing argument and the written jury

instructions. This fact strongly suggests the jury had no confusion as to the appropriate standard

to apply.

        Notwithstanding the trial court’s obvious error, Johnson has failed to rebut the

presumption that the jury followed the trial court’s instructions. See id. Accordingly, Johnson

has not demonstrated the prejudice necessary for reversal. See Peterson, 399 S.W.3d at 857

(internal citation omitted). Point One is denied.

II.     Point Two—Directed Verdict in Favor of Lt. Col. O’Toole

        In his second point on appeal, Johnson contends that the trial court erred in granting a

directed verdict in favor of Lt. Col. O’Toole on Johnson’s claim of race discrimination.

        When reviewing a court’s grant of a directed verdict we apply essentially the same

standard as we do in determining whether a plaintiff has made a submissible case. Ellison v. Fry,

437 S.W.3d 762, 768 (Mo. banc 2014) (internal citation omitted). “Whether the plaintiff made a

submissible case is a question of law that this Court reviews de novo.” Id. (internal citation

omitted). “A case may not be submitted unless each and every fact essential to liability is

predicated on legal and substantial evidence.” Id. (internal citation omitted). Accordingly, we

should affirm a trial court’s grant of a directed verdict if at least one element of the plaintiff’s

case was not supported by the evidence. See id. (internal citations omitted). Additionally, we

will affirm if it is clear that the directed verdict did not prejudice the plaintiff. See id. at 775

(affirming the directed verdict on the merits but noting that even if the directed verdict had been

improper there was no prejudice meriting reversal); Gibbs v. Blockbuster, Inc., 318 S.W.3d 157,



                                                   12
177–78 (Mo. App. E.D. 2010) (finding the directed verdict was improperly granted but reversing

only after separately finding it could not conclude that the plaintiff was not prejudiced).

       Johnson’s claim of discrimination encompasses three elements: (1) that Johnson suffered

an adverse employment action; (2) that Johnson’s race was a contributing factor; and (3) that

Johnson was damaged as a result. See Bram, 564 S.W.3d at 796 (internal citations omitted);

McGhee v. Schreiber Foods, Inc., 502 S.W.3d 658, 672 (Mo. App. W.D. 2016) (internal citation

omitted).

       Johnson argues that he presented evidence specific and unique to Lt. Col. O’Toole that

would have allowed the jury to find against Lt. Col. O’Toole on Johnson’s claim of race

discrimination even though the jury found in favor of each of the other Respondents on that

claim. Namely, Johnson emphasizes the alleged conversation between Lt. Madison and Lt. Col.

O’Toole and Lt. Col. O’Toole’s statement that police “owned the night” during the Jason

Stockley protests. Johnson contends that the trial court’s decision to grant a directed verdict only

to Lt. Col. O’Toole is incomprehensible in light of this evidence specific to him.

       Johnson’s confusion is understandable, as the trial court did not explain its reason for

granting a directed verdict for Lt. Col. O’Toole but denying the request for a directed verdict for

the other Respondents. Despite the trial court’s failure to explain its ruling, its reasoning is

clearly discerned from the record. When requesting a directed verdict in favor of Lt. Col.

O’Toole, Respondents argued that merely affixing a signature to a recommendation of discipline

in his role as Inspector of Police did not constitute an adverse employment action. The record

showed that Lt. Col. O’Toole did not work in IA and did not participate in the IA investigation of

Johnson. Lt. Col. O’Toole affixed his signature to the recommendation made by the Bureau

Commander for IA. While the trial court did not grant the directed verdict when initially



                                                  13
requested by Respondents, the trial court specifically queried Johnson how Lt. Col. O’Toole’s

signature met the requirements of engaging in adverse employment action. Additionally, in the

jury instructions concerning Lt. Gardner and Chief Dotson, the trial court identified Lt.

Gardner’s recommendation of termination and Chief Dotson’s termination of Johnson as the

relevant adverse employment actions. From this context, we conclude that the trial court’s

reasoning for directing the verdict in favor of Lt. Col. O’Toole was the fact that Lt. Col. O’Toole

merely signed off on Lt. Gardner’s recommendation of termination and did not initiate any

recommendation of termination as did Lt. Gardner. In the trial court’s view, Lt. Col. O’Toole’s

limited role in the process of terminating Johnson did not constitute an adverse employment

action.

          Whether the trial court erred in concluding that Lt. Col. O’Toole’s signature did not

amount to an adverse employment action against Johnson is inconsequential to our analysis as

we find this case to be the rare situation where Johnson clearly suffered no prejudice from the

trial court’s ruling. See Ellison, 437 S.W.3d at 775; Gibbs, 318 S.W.3d at 177–78.

          We assume for the sake of argument that Lt. Col. O’Toole’s decision to sign off on Lt.

Gardner’s recommendation that Johnson be terminated was an adverse employment action. We

further assume that the jury would have found that Johnson’s race was a contributing factor in

Lt. Col. O’Toole’s decision to do so, thereby satisfying the first two elements of Johnson’s

discrimination claim. See Bram, 564 S.W.3d at 796; McGhee, 502 S.W.3d at 672. But fatal to

Johnson’s point on appeal is the fact that the jury necessarily found that race was not a

contributing factor in Johnson’s termination when the jury returned verdicts in favor of both the

City and Lt. Gardner on Johnson’s claims. Notwithstanding the possibility that the jury could

have found that race was a contributing factor in Lt. Col. O’Toole’s conduct, the jury necessarily



                                                  14
also would have determined that Lt. Col. O’Toole’s conduct was immaterial to Johnson’s

termination. Accordingly, Lt. Col. O’Toole’s act in affixing his signature to Lt. Gardner’s

recommendation did not cause damage to Johnson. Failing to find evidence to support the third

element of Johnson’s claim against Lt. Col. O’Toole, the jury would have found Lt. Col.

O’Toole not liable on Johnson’s claim. See Bram, 564 S.W.3d at 796; McGhee, 502 S.W.3d at

672. Because the jury would have found Lt. Col. O’Toole not liable, Johnson was plainly not

prejudiced. See Ellison, 437 S.W.3d at 775; Gibbs, 318 S.W.3d at 177–78.

       Critically, the common concerns in our approach to reviewing issues concerning directed

verdicts and judgments notwithstanding the verdict are our deference to the jury as the proper

trier of fact and a corresponding admonition that courts not supplant juries in that role. See, e.g.,

Payne v. Fiesta Corp., 543 S.W.3d 109, 126 (Mo. App. E.D. 2018) (citing Ellison, 437 S.W.3d at

768) (providing we will only reverse a denial of a directed verdict or judgment as a matter of law

if the plaintiff did not make a submissible case or the defense established an affirmative defense

as a matter of law); Delacroix v. Doncasters, Inc., 407 S.W.3d 13, 39 (Mo. App. E.D. 2013) (en

banc) (internal citation omitted) (noting a presumption in favor of reversing judgments

notwithstanding the verdict); Li Lin v. Ellis, 594 S.W.3d 238, 241 (Mo. banc 2020) (per curiam)

(internal citation omitted) (providing that upon review of a denial of a judgment notwithstanding

the verdict we review the evidence in the light most favorable to the jury’s verdict).

       Even if we were to hold that the trial court had erred in granting the directed verdict, and

thereby deprived the jury of a chance to make a formal finding as to Lt. Col. O’Toole’s liability,

we are persuaded that a lack of prejudice precludes reversal. In fact, for the reasons discussed

above, a reversal of the trial court’s grant of a directed verdict would have the potential of




                                                 15
undermining the formal findings that the jury did reach—namely, that Johnson’s race was not a

contributing factor in his termination from the SLMPD.

       The verdicts rendered by the jury as to the City and Lt. Gardner persuade us that the jury

similarly would have rendered a verdict in favor of Lt. Col. O’Toole had they been given the

opportunity. Because Johnson clearly was not prejudiced by the entry of the directed verdict in

favor of Lt. Col. O’Toole, we deny Point Two. See Ellison, 437 S.W.3d at 775; Gibbs, 318

S.W.3d at 177–78.

III.   Point Three—Exclusion of IA Administrative Memos as Comparator Evidence

       In his third point on appeal, Johnson alleges the trial court abused its discretion in

excluding the IA administrative memos relating to the discipline of other officers that constituted

comparator evidence. Comparator evidence showing that similarly-situated employees were

treated disparately can support a claim of race discrimination. McGhee, 502 S.W.3d at 667

(internal citations omitted). Johnson argues that the IA administrative memos showed that white

police officers who were charged with one or both of conduct unbecoming of an officer or false

reporting received lesser punishment than Johnson, and therefore the evidence was admissible as

comparator evidence.

       We review a trial court’s evidentiary ruling for abuse of discretion. Moore v. Ford Motor

Co., 332 S.W.3d 749, 756 (Mo. banc 2011) (internal citation omitted). “A trial court abuses its

discretion when it makes a ruling that is ‘clearly against the logic of the circumstances and is so

unreasonable as to indicate a lack of careful consideration.’” Teasdale & Assocs. v. Richmond

Heights Church of God in Christ, 373 S.W.3d 17, 21 (Mo. App. E.D. 2012) (quoting State v.

Kemp, 212 S.W.3d 135, 145 (Mo. banc 2007)). Even if the trial court’s given reason for an

evidentiary ruling is incorrect, we will affirm so long as the ruling could have been properly

reached on any ground. See Moore, 332 S.W.3d at 766 (internal citation omitted).
                                                 16
       Here, the trial court excluded the documentary comparator evidence on hearsay grounds.

Without reaching whether that ruling was correct on the given hearsay grounds, we find that the

evidence was properly excluded as being not legally relevant. See id.

       “As with other forms of evidence, circumstantial evidence of employment discrimination

must be both logically and legally relevant to be admissible.” Cox v. Kansas City Chiefs

Football Club, Inc., 473 S.W.3d 107, 116 (Mo. banc 2015) (internal citation omitted). Logically

relevant evidence “tends to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the evidence,

or . . . tends to corroborate evidence which itself is relevant and bears on the principal issue of

the case.” Id. (internal quotation omitted). Comparator evidence is logically relevant so long as

the plaintiff and the individuals they are being compared to are not so different that comparisons

are “effectively useless.” Id. at 123 n.14 (internal citations omitted). Accordingly, while there

were differences in rank, allegations, and charges brought between Johnson and some of the

comparators, these differences were not so large as to render comparisons “effectively useless”

and we find the documentary comparator evidence was logically relevant. See id.

       Evidence is legally relevant if its probative value is not substantially outweighed by other

costs, such as whether the evidence is unnecessarily cumulative or is unfairly prejudicial.

Shallow v. Follwell, 554 S.W.3d 878, 883 (Mo. banc 2018) (internal citation omitted).

“Evidence is said to be cumulative when it relates to a matter so fully and properly proved by

other testimony as to take it out of the area of serious dispute.” Id. (internal quotation omitted).

Evidence that is different in character is not cumulative. Smith v. Kansas City S. Ry. Co., 87

S.W.3d 266, 279 (Mo. App. W.D. 2002).




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       Here, Johnson was allowed to question Chief Dotson at trial about the comparator

evidence at great length. Indeed, the trial court expressly informed Johnson that he could ask

Chief Dotson “anything about anything” within the IA administrative memos. Notably,

Johnson’s point on appeal does not allege that there was any evidence contained in the IA

administrative memos that he could not have introduced via testimony. Additionally, Johnson

argued to the trial court that it was not the truthfulness of the factual contents of the IA

administrative memos that mattered but rather how Chief Dotson relied on the contents. We are

persuaded that the IA administrative memos merely repeated facts that Johnson was allowed to

establish through live testimony, facts that Johnson admits were not relevant for their

truthfulness. The contents of the memos simply were not in serious dispute, and therefore the

evidence could be properly excluded as cumulative. See Shallow, 554 S.W.3d at 883 (internal

citation omitted).

       Johnson nevertheless argues that the evidence he sought to introduce was not cumulative

because the IA administrative memos were different in character from Chief Dotson’s testimony.

See Smith, 87 S.W.3d at 279. Johnson relies on the facts of Smith, citing that the testimony of

one witness in that case was found to be different in character from the testimony of another

witness, in part because one witness was the plaintiff’s co-worker and the other was the

plaintiff’s supervisor. See id. Johnson’s reliance on Smith is misguided because Johnson did not

seek to introduce testimony of two separate witnesses. Nor did Johnson seek to present evidence

from two separate sources of evidence. The only issue before the trial court was whether the

contents of the IA administrative memos would be introduced by introducing the physical

memos into evidence or by introducing the substance of the memos through Chief Dotson’s

testimony. We further note that in Smith, the testimony of the two witnesses was found to be



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different in character in part because there was contradictory testimony about the facts at issue.

Id. Therefore, that testimony was plainly not cumulative as it concerned matters still in “serious

dispute.” See Shallow, 554 S.W.3d at 883 (internal citation omitted). The record here, however,

supports a finding that the written IA administrative memos included evidence that was not only

cumulative, but also identical to what Johnson either introduced at trial or could have introduced

through Chief Dotson’s testimony.

       The contents of the IA administrative memos were cumulative of Chief Dotson’s

testimony and therefore legally irrelevant. See Shallow, 554 S.W.3d at 883 (internal citation

omitted). Accordingly, the trial court did not abuse its discretion. See Moore, 332 S.W.3d at

756, 766 (internal citation omitted). Point Three is denied.

IV.    Point Four

       In his fourth point on appeal, Johnson contends that the trial court erred in not submitting

to the jury the issue of punitive damages. However, Johnson has conceded that this issue is moot

if we deny his other points on appeal, which we have done. Point Four is denied.

                                            Conclusion

       The judgment of the trial court is affirmed.



                                                      _______________________________
                                                      KURT S. ODENWALD, Judge

Philip M. Hess, P.J., concurs.
Lisa P. Page, J., concurs.




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