McGhee v. Schreiber Foods, Inc.

502 S.W.3d 658

William McGhee, Respondent,

v.Schreiber Foods, Inc., Appellant.

WD 78744

Missouri Court of Appeals, Western District.

OPINION FILED: August 9, 2016 Motion for Rehearing and/or Transfer to Supreme Court Denied September 20, 2016

Todd A. Johnson, Nicole Lynn Hutson, Springfield, MO, Attorneys for Appellant.

Kevin Arthur Jones, Martin Mark Meyers, Kansas City, MO, J. Kirk Rahm, Gayle Elaine McVay, Warrensburg, MO, Attorneys for Respondent.

Before Division Two: Karen King Mitchell, Presiding Judge, and Cynthia L. Martin and Gary D. Witt, Judges

Karen King Mitchell, Presiding Judge

William McGhee filed suit under the Missouri Human Rights Act (MHRA) against Schreiber Foods, Inc., alleging age discrimination in his termination from employment. A jury found in favor of McGhee, and the trial court entered a judgment totaling $1,170,030.45 in damages, costs, and attorneys' fees. Schreiber appeals the trial court's denial of its motions for judgment notwithstanding the verdict, new trial, and remittitur. Finding no error, we affirm.

Background¹

On October 5, 2009, McGhee was employed as a press operator at Schreiber's plant in Clinton, Missouri. McGhee operated a large commercial printing press, known as a Vision Press. One of a press operator's duties is to conduct periodic maintenance and cleaning on the press, which includes cleaning the large steel drum on the inside of the press. The press is a dangerous machine, capable of causing severe injury or death, and, for that reason, Schreiber's policies and procedures manual included a "lockout/tagout program," which every press operator must follow in order to de-energize the press before touching it to clean it. Part of the lockout/tagout policy is the "inch[-]safe service method," by which the employee slowly "[j]og[s] the drum ... to the point that needs to be cleaned, and then stop[s] the" drum. After the drum has stopped, the employee is to "[w]ipe off the drum ... and then remove the cleaning hand and [j]og to the next spot that needs to be cleaned, and stop again." In other words, this method of cleaning prohibits an employee from touching the press drum while it is in motion. A violation of the lockout/tagout policy is considered a "Group III" violation, for which the consequence is discharge.

On October 5, 2009, McGhee's supervisor, Chuck Burton, and Human Resources Manager Ken Kephart, received a report from two employees alleging that McGhee was cleaning the drum as it was rotating, which constituted a violation of the inch-safe method. Burton and Kephart called McGhee into a meeting to discuss the alleged violation. McGhee denied cleaning the drum while it was moving and offered to demonstrate his cleaning method on the machine. Burton and another supervisor, Philip Smith, went to the Vision Press with McGhee, where he demonstrated how he cleaned the drum. At the press, McGhee demonstrated that he cleaned the drum by slowly jogging it forward, then stopping the drum and reaching forward with his rag to clean it. McGhee recalled one of the men saying that someone watching from another vantage point "might misconstrue that as a violation," when cleaning occurs so soon after the drum stops moving, because there is still a danger that built up "kinetic energy" might cause the "drum to surge."

The next day, Burton and Kephart issued a "Coaching and Corrective Action Form" to McGhee, noting that he had been given a Group III corrective action, with automatic suspension pending termination, for a lockout/tagout policy violation. The reason given was that McGhee had been "observed cleaning the drum on the [press] while the drum was in motion and not using the inch [-]safe service method." McGhee filed an appeal under Schreiber's peer review policy.

Under Schreiber's policy, an employee facing termination for a Group III violation may appeal this determination to either the Plant Manager or a "Peer Review Panel." McGhee sought review of his Group III corrective action by peer review panel. Schreiber's policy allows a panel to "review management's actions to ensure that application of policy or practice was followed correctly and consistently." A panel has the authority to grant or deny an appeal, or to modify management's decision to a lesser punishment. A panel is not allowed to "modify a decision to make it more severe than the original management action." Rather, a panel can only leave the initial punishment in place or reduce it.

Panels are comprised of five members, three of whom are hourly employees of the same classification as the employee, and two of whom are salaried or managerial employees. The employee chooses a panel by picking the names of five hourly employees from a hat and then selecting three of the five. The employee then picks the name of three salaried/managerial employees from a hat and selects two of the three. The HR Manager, Kephart, facilitates the process. He is "responsible for scheduling meetings, handling all required logistics, generating panel records[,] and ensuring that all sessions conform to" policy. The HR Manager also "suggest[s] that certain witnesses be called" to present evidence.

McGhee chose to file an appeal to the peer review panel, which upheld the termination. In April of 2010, following additional incidents involving safety violations at Schreiber, discussed more fully infra , which McGhee believed were handled inconsistently with his termination, McGhee sent an email to Plant Manager Rick Heck, asking that his termination be reconsidered. Schreiber responded with a letter setting forth its belief that "your termination for a lockout safety violation was appropriate, fair[,] and consistent with policy and the way other similar situations were handled." The letter continued, "An additional peer review completed by a Home Office HR person was also conducted and it concluded that the termination and peer review were handled appropriately." The letter concluded that Schreiber could not "offer [McGhee] any hope of reinstatement." Following a complaint to the Missouri Commission on Human Rights, McGhee filed suit, alleging that Schreiber had discriminated against McGhee based on his age.

At trial, there was evidence presented that the two employees who initially reported that they had seen McGhee cleaning the drum while it was in motion could not have seen McGhee's actions from the vantage point from which they claimed to have watched him. And while Burton, who was present during McGhee's demonstration of his cleaning method, testified at trial that he saw McGhee touch the drum during his demonstration, Kephart testified, and the written notes from the peer review reflect, that Burton told the panel that McGhee was reaching toward the drum while it was in motion and it looked as though he was going to make contact with it, but Burton reached out and stopped McGhee.

Over Schreiber's objection, McGhee introduced evidence of six current and former employees of Schreiber who were accused of safety violations, four of them under the age of forty, and two over the age of fifty, at the time of their incidents. The stated intent was to show that, having committed similar safety violations, the four younger employees were treated more favorably than the three (counting McGhee) employees over the age of fifty.

Denise Davis, age thirty-six, was a press operator at Schreiber's plant. On March 30, 2009 (approximately six months before McGhee's incident), while Davis was cleaning the press drum as it was rotating, her hand became caught between the drum and other parts of the machine, causing severe damage to Davis's hand and arm. Davis was given a Group II corrective action, which was a less serious violation than Group III. Group II violations included a monetary penalty, but did not include the threat of immediate termination. Davis appealed the Group II violation to a peer review panel, which upheld the punishment.

Immediately after Davis's violation, Schreiber amended its policy to explicitly require that press operators use the inch-safe service method when cleaning the drum. The revised policy also included an extensive definition, consisting of several sentences, of the inch-safe method.

Six weeks later, fifty-four-year-old Roger Mehan was working as a press operator at Schreiber's plant when he used a piece of plastic to knock an accumulation of ink from a piece of equipment called an anilox, which is located close to the drum. The drum was in motion, but Mehan's hand did not come into contact with any moving parts. Kephart testified that it was a "gray area" whether knocking ink off with a stick, as opposed to one's hand, would be a violation of the lockout/tagout policy. Nevertheless, Mehan received a Group III corrective action for violating the lockout/tagout policy, which he appealed to the Plant Manager. Mehan's Group III violation was upheld, but he was given the opportunity to stay with Schreiber by signing a "last chance agreement," which is available only to employees with no prior safety violations.² A last chance agreement allows the employee to keep his job, but the violation of any work rule within the next twelve months results in termination.

Kenny Raynes, age thirty-nine, and Russ Seedyk, age thirty-six, were also press operators at Schreiber's plant. On March 25, 2010, Raynes and Seedyk's supervisor, Jared Fosnow, reported that Raynes and Seedyk were in the "danger zone" of the "rewind" section of the press while the press was not properly locked out and tagged out. In addition to requiring that an employee not touch the moving drum of the press, the lockout/tagout policy required that an employee working in a machine's danger zone attach his or her lock to the power source. Both operators initially received Group III corrective actions for lockout/tagout violations. Seedyk and Raynes both appealed to Plant Manager Richard Heck. Raynes admitted that he violated the lockout/tagout policy by "not applying locks...