In the 

Missouri Court of Appeals 

Western District

G. STEVEN COX,

Appellant,

v.

KANSAS CITY CHIEFS FOOTBALL 

CLUB, INC.,

Respondent.

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WD76616

OPINION FILED: August 5, 2014

Appeal from the Circuit Court of Jackson County, Missouri

The Honorable James F. Kanatzar, Judge

Before Division Four: Alok Ahuja, Chief Judge, Presiding, Cynthia L. Martin, Judge and 

Wayne P. Strothmann, Special Judge

G. Steven Cox ("Cox") appeals a judgment in favor of the Kansas City Chiefs 

Football Club ("Chiefs") entered following a jury verdict in an age discrimination suit. 

Cox claims the trial court abused its discretion in the exclusion of certain evidence at 

trial, and committed plain error in failing to intervene during the Chiefs' closing 

argument. Finding no error, we affirm the trial court's judgment.
2

Factual and Procedural Background1

Cox was hired in 1998 by the Chiefs as a maintenance manager. At the time, the 

Chiefs' organization was run by Carl Peterson ("Peterson"), who held the titles of 

President and General Manager. Peterson was responsible for all of the Chiefs' football 

and business operations and reported to Clark Hunt ("Hunt"), the Chiefs' Chairman and 

CEO.

In 2008, Peterson resigned. As a part of an effort to reorganize, restructure, and 

increase efficiencies, Hunt decided to divide football and business operations. Scott Pioli 

("Pioli") was hired as the General Manager in January 2009 to run football operations, 

which were primarily concerned with building and fielding a competitive football team. 

Mark Donovan ("Donovan") was hired in May 2009 as the Chief Operating Officer. 

Donovan reported to Denny Thum ("Thum"), who had been named President. Donovan 

and Thum were responsible for business operations which included payroll, marketing 

and stadium operations. 

Cox's maintenance position was in the Stadium Operations Department. Cox 

reported to Steve Schneider, the Director of Stadium Operations ("Schneider"), who 

reported to Donovan. 

Schneider was terminated by the Chiefs in January 2010. Cox's responsibilities 

increased around that same time when massive stadium renovations were undertaken. 

Cox assumed responsibility for management of the hourly construction and repair 

 

1We view the evidence "in the light most favorable to the result reached by the jury, giving the [Chiefs] the 

benefit of all reasonable inferences and disregarding evidence and inferences that conflict with that verdict." Dhyne 

v. State Farm Fire & Cas. Co., 188 S.W.3d 454, 456-57 (Mo. banc 2006). 
3

employees, and was given a raise. Until Schneider was replaced, Cox reported directly to 

Donovan. 

Cox talked to Donovan in March 2010 about making a part-time janitor, Russ 

Crowley ("Crowley"), a full-time employee. Donovan agreed. Cox also wanted to 

increase Crowley's hourly wage. Donovan would not agree to the wage increase because 

Crowley was already being paid a higher hourly wage than mandated by the Collective 

Bargaining Agreement ("CBA"), and because the move to full-time made Crowley 

eligible for valuable benefits. Donovan specifically instructed Cox that Crowley's pay 

should be left as is. 

In April 2010, the Chiefs hired David Young as Vice-President of Stadium 

Operations ("Young") and Brandon Hamilton as Director of Facilities ("Hamilton"). 

Thereafter, Cox reported to Young, who reported to Hamilton, who reported to Donovan. 

Through the summer of 2010, Cox was having difficulties in the performance of 

his additional job responsibilities, including budget compliance, scheduling, completing 

checklists, and turning in labor sheets for union workers on a timely basis. He was 

counseled periodically about his performance issues by Hamilton and Young. Cox's 

performance did not improve despite the efforts to counsel him.

In early September 2010, Cox emailed the personnel manager for stadium 

operations, Heather Coleman ("Coleman") and instructed her to "bump" Crowley's hourly 

wage from $14.11 to $16.50. Cox did not copy Donovan or Kristen Krug, the Chiefs' 

Director of Human Resources ("Krug"), on the email. Cox admitted at trial that he knew 
4

raising Crowley's pay violated Donovan's instructions. Cox also testified that he knew 

the CBA did not require the raise, and that he simply felt Crowley deserved a raise.

Krug learned about Crowley's pay increase in October 2010. Young was advised. 

Young felt he needed to recommend Cox's termination. Young informed Donovan about 

the raise Cox gave Crowley and recommended Cox's termination. Donovan was 

shocked. Donovan testified that Cox's decision to give Crowley a raise after being 

instructed not to do so created a "real issue of trust." Though he was reluctant to make 

changes during the football season, Donovan agreed termination was required given 

Cox's deliberate disregard for his instructions.

Cox was terminated during a meeting with Krug, Hamilton, and Young on 

October 14, 2010. Cox was told that he was being terminated for poor performance, and 

was given examples, including the unauthorized Crowley pay raise. Cox later told 

another Chiefs' employee, Brenda Sniezek, that he had been terminated because he gave 

Crowley a raise in violation of Donovan's instructions. At the time of his termination, 

Cox was 61 years old. His position was later filled by a 37-year old. 

Cox filed a Charge of Discrimination with the Missouri Commission on Human 

Rights ("MCHR"). In the Charge, Cox stated that the Chiefs told him he had been fired 

for performance reasons, including the Crowley pay raise. Cox alleged in his Charge a 

single, discrete act of age discrimination on the day of his termination. When Cox filed 

suit following issuance of a right to sue letter, his petition similarly alleged a single, 

discrete act of age discrimination on the date of his termination. 
5

Cox's case was tried to a jury. After a 14-day trial, the jury returned a verdict in 

favor of the Chiefs on Cox's claim of age discrimination. Cox appeals.

Analysis

Cox raises three points on appeal urging an abuse of discretion in the exclusion of 

evidence at trial and in the denial of discovery, a fourth point on appeal claiming plain 

error in permitting alleged inflammatory argument by the Chiefs during closing, and a 

fifth point on appeal arguing that the aforesaid errors cumulate to require a new trial. We 

address the points in turn. 

Point One

In his first point on appeal, Cox claims that the trial court abused its discretion "in 

ordering a blanket exclusion of testimony and evidence from and about 17 or more 

former employees." Cox claims that the excluded evidence was "related to [the Chiefs'] 

systematic elimination of older front office employees." Cox claims the excluded 

evidence was "highly relevant" because "it would have demonstrated [the Chiefs'] 

discrimination against other front office employees on the basis of their age," and "would 

have demonstrated [the Chiefs'] discriminatory motives and/or intent." Cox thus sought 

to offer evidence about the termination of 17 other employees for two distinct reasons: 

(i) to establish a pattern and practice by the Chiefs' on the business side of its operations 

of discriminating against older employees; and (ii) as circumstantial evidence permitting 

an inference that the stated reason for terminating Cox was pre-textual. 
6

(i) Standard of Review

We review a trial court's decision to exclude evidence for an abuse of discretion 

which Cox has the burden of establishing. Hemphill v. Pollina, 400 S.W.3d 409, 413 

(Mo. App. W.D. 2013). "'A trial court has great discretion in determining whether 

evidence should be excluded, and its decision is given substantial deference on appeal.'" 

Id. (quoting Khoury v. ConAgra Foods, Inc., 368 S.W.3d 189, 195 (Mo. App. W.D. 

2012)). "When reviewing for an 'abuse of discretion,' this Court presumes the trial court's 

ruling is correct and reverses only when the ruling is clearly against the logic of the 

circumstances, is arbitrary and unreasonable, and indicates a lack of careful 

consideration." St. Louis Cnty. v. River Bend Estates Homeowners' Ass'n, 408 S.W.3d 

116, 123 (Mo. banc 2013) (internal quotation omitted). "We will not reverse the trial 

court's judgment for failure to admit evidence 'unless the error materially affected the 

merits of the action and we find a substantial or glaring injustice.'" Hemphill, 400 

S.W.3d at 413 (quoting Khoury, 368 S.W.3d at 195); see also Williams v. Trans States 

Airlines, 281 S.W.3d 854, 872 (Mo. App. E.D. 2009) ("Upon finding an abuse of 

discretion, this court will reverse only if the prejudice resulting from the improper 

admission of evidence is outcome-determinative."). 

(ii) The Trial Court's Exclusion of Testimony From and About 17 Former 

Chiefs' Employees and Cox's Related Offers of Proof

The Chiefs sought an in limine ruling to exclude testimony: (i) regarding current 

and past employment related lawsuits and complaints filed with state or federal agencies 

against the Chiefs (2 former employees had age discrimination cases pending); and (ii) 
7

from or about 17 former employees of the Chiefs2 whom the Chiefs anticipated Cox 

would call to testify about the circumstances of their departures from employment. The 

Chiefs argued that these former employees were not sufficiently similarly situated to 

Cox's circumstances to be probative of his discrete claim of discriminatory termination, 

and that the evidence could not be separately offered to establish a pattern or practice of 

discrimination because Cox did not allege this form of discrimination in his MCHR 

Charge or in his petition. The Chiefs thus argued that the evidence was irrelevant and 

unduly prejudicial. On February 8, 2013, the trial court granted the Chiefs' in limine

motion without explanation.

Cox sought clarification of the in limine ruling. Just before voir dire on 

February 11, 2013, the trial court stated:

My order granting that motion in limine pertains to you calling these 17 

witnesses to testify that they were terminated, they have a case of 

discrimination pending against the Chiefs, and I suppose [that] they're over 

forty. If you want to call these witnesses for some other purpose, that's 

outside of my ruling on this motion in limine.

The trial court's in limine ruling was frequently revisited during the 14-day trial. 

Consistent with the in limine ruling, the trial court repeatedly sustained objections to 

discussion of the ages of, circumstances for termination of, or litigation commenced by, 

the 17 former employees, and often discussed the rationale for its ruling. For example, 

after Cox's opening statement, the trial court told the parties: 

 

2The 17 former employees identified in the motion in limine were: Brenda Sniezek, Larry Clemmons, 

Anita Bailey, Ann Roach, Carol Modean, Nadine Steffan, Lamonte Winston, Carl Peterson, Doug Hopkins, Tom 

Stephens, Ken Blume, Evelyn Bray, Pam Johnson, Lisa Siebern, Bill Newman, Gene Barr, and Pete Penland. 
8

[M]y ruling for keeping the [17] out was that they weren't similarly 

situated. They worked in other departments or were fired for different 

reasons and at different times. 

During the testimony of Brenda Sniezek, (one of the 17), the court sustained an objection 

to a question that would have elicited a discussion of the circumstances of her 

termination, and noted:

You'll have an opportunity to make an offer of proof outside the hearing of 

the jury to avoid any prejudicial effect of this type of testimony. . . . We've 

spent a great deal of time talking about this issue. . . . [My ruling] is 

interlocutory until I change it. You ask me to change it by coming to the 

bench and ask me to change it. That ruling still stands until then and you 

know that. . . .We've talked about this already. . . . It's not coming in. . . . . 

It's prejudicial effect outweighs any probative value. I think we've talked 

[about] that six different ways to Sunday. 

Cox made an offer of proof through Sniezek. She testified in the offer of proof 

that she worked in the Customer Relations Department, and that she had been given 

notice the entire department was going to eliminated by the end of 2010. She felt age 

was becoming an issue, and that a review she received from Donovan in March 2010 was 

"a joke." Sniezek was terminated on January 26, 2011, and was told it was due to a 

reduction in force, and that her position had been eliminated. Sniezek said a 32 year old 

man was later hired to handle community relations.

Pioli testified in an offer of proof about the terminations of Lamonte Winston (one 

of the 17) and Lisa Sieburn (one of the 17). He testified that both worked on the football 

side of the Chiefs' operations, that each was over 40, and that each was replaced by 

younger employees. 
9

Ann Roach (one of the 17) testified in an offer of proof that she was asked to retire 

in 2010 by Thum after 43 years of employment. 

After these offers of proof, counsel engaged in extended discussion with the trial 

court about its in limine ruling, leading to the following announcement by the trial court:

I anticipate that plaintiff's counsel is going to make these offers of proof on 

all the 17 people who the Court has ruled certain areas of their testimony 

are not admissible: the fact that they were terminated, the fact of what their 

age is, and the fact that they have lawsuits pending against the Chiefs 

currently. And just to reiterate so the record is clear, that ruling is based 

upon the fact that these peoples' terminations, the people who terminated 

them were not decision makers in the termination of the plaintiff in this 

case and also because the plaintiff did not plead a pattern and practice, did 

not plead pattern and practice, did not plead hostile work environment, and 

for those reasons and other reasons that I'm not going to go into that were 

cited and argued by defense counsel in their motions and in their oral 

arguments, these witnesses are going to be excluded from those three areas 

of any kind of testimony that would touch upon those three areas. . . . [T]he 

primary thing was that you didn't plead pattern and practice and that these 

employees were not similarly situated to Mr. Cox. 

. . . .

The reason why the court is keeping these 17 witnesses out of the case as it 

pertains to those three subject areas, and that is the Court heard extensive 

argument on this and was convinced that they were not similarly situated to 

the plaintiff and also that the plaintiff did not plead pattern and practice or 

hostile work environment, and for those reasons and other reasons that I'm 

not going to go into that were argued by the defense counsel, I've made that 

ruling. That ruling is going to stand unless I'm convinced to change my 

mind, and only if I tell you all that I've changed my mind. I've heard a 

great deal of testimony in this case and I don't anticipate changing my mind 

but the only thing you all need to worry about is unless I tell you I'm 

changing my order, the order stands.

The trial court asked Cox if he planned to make offers of proof from each of the 17 

former employees, and Cox confirmed that he did. 
10

Cox called Dan Crumb ("Crumb") who was hired as the Chief Financial Officer in 

2010. After Crumb was released as a witness, Cox's counsel identified a series of 

questions that he "would like an opportunity" to ask Crumb, most dealing with former 

employee Larry Clemmons (one of the 17). Though counsel called his summary an offer 

of proof, he did not at anytime advise how Crumb would have answered the questions 

counsel would like to have posed.3

Cox did make an offer of proof through Gene Barr (one of the 17) who testified 

that he was the Security Manager for the Chiefs until he resigned in late summer 2010. 

Barr testified he was 61 at the time of trial. He testified that about 6 weeks before he 

resigned, the Chiefs hired Jason Stone ("Stone"), a man in his mid-30's, as the Director of 

Security. Barr did not get along with Stone, leading to his decision to resign. Barr 

confirmed that he never reported to Hamilton or Young, Cox's supervisors. 

Tom Stephens (one of the 17) testified in an offer of proof that he was the Creative 

Services Manager, and reported to Tammy Fruits, and then to Rob Alberino ("Alberino"), 

a man in his 40's, who was hired to head the Media and Marketing Department in 

February 2010. Stephens testified that he was terminated on January 26, 2011 by Krug 

because his position was eliminated. He was 52 years old at the time. He confirmed he 

did not work for Hamilton or Young, Cox's immediate supervisors. 

 

3An offer of proof is intended to insure that a trial court and opposing counsel know the precise evidence 

being offered and its argued relevance to the case. State v. Townsend, 737 S.W.2d 191, 192 (Mo. banc 1987). 

Typically, an offer of proof requires placement of the witness on the stand and inquiry of the witness outside the 

presence of the jury. Id. "When counsel uses the narrative offer of proof he runs a greater risk that the court will 

find the offer insufficient." Id. Here, the narrative of counsel never indicated how Crumb would have testified if 

called, and merely itemized questions counsel would have liked to ask Crumb. That is not an offer of proof. 

Hawkinson Tread Tire Service Co. v. Walker, 715 S.W.2d 335, 336-37 (Mo. App. E.D. 1986) (holding that counsel's 

mere statement of questions he would ask witness which required the court to guess at the content of the witness's 

responses was not an offer of proof sufficient to preserve a claim of error). 
11

Evelyn Bray (one of the 17) testified in an offer of proof that she reported to Larry 

Clemmons (one of the 17) in the Finance Department. She understood that Clemmons 

reported to Crumb who reported to Donovan. She was terminated on January 26, 2011,

and was 55 years old. She confirmed that she was not supervised by Cox, Young, or 

Hamilton.

Carol Modean (one of the 17) testified in an offer of proof that she was Donovan's 

executive assistant at the time of her termination on January 22, 2010. She found a list 

on Donovan's computer a few days before she was terminated identifying 5 people who 

would be terminated on January 22, 2010, including herself. She was terminated by 

Donovan and Krug who told her that the entire organization was being evaluated, and 

that Donovan no longer needed a traditional executive assistant. Modean said she later 

learned that someone else had been hired with the title "executive assistant." That 

person's duties and responsibilities as compared to Modean's former duties were not 

addressed in the offer of proof. 

Following these additional offers of proof, counsel again engaged the trial court in 

an extensive discussion of its in limine ruling regarding the 17 former employees. At one 

point during the discussion, the trial court asked Cox's counsel whether the Chiefs would 

be permitted to call employees over the age of 40 who had been hired, or not terminated, 

if the court permitted the 17 former employees to testify on the excluded subjects. Cox's 

counsel advised that the Court's ruling admitting evidence about other employees would 

work both ways. The Chiefs had earlier indicated that they were prepared to call 38 

witnesses if necessary to establish that the Chiefs had not systematically terminated older 
12

employees. The trial court took the arguments of counsel under advisement, and

announced the next morning: "I am not changing my ruling." 

The in limine ruling was revisited again during Cox's trial testimony. After 

hearing extended argument from counsel, the trial court ruled:

[T]he testimony presented by the proposed witnesses and the plaintiff's 

offers of proof does not establish nor demonstrate that the treatment they 

received by the Chiefs, nor the circumstances surrounding the termination 

of their employment with the Chiefs, was sufficiently similar to Mr. Cox's 

termination or the circumstances surrounding his termination.

The court in Williams4identified five separate examples of similarity 

between the plaintiff and the other terminated employee. In examining the 

record in the offers of proof, it was clear to me that such similarity didn't 

exist between the proffered witnesses and Mr. Cox's termination. In my 

determination, any probative value of the testimony proposed by the 

plaintiff from these witnesses would be outweighed by the prejudicial effect 

it would have upon the jury. In addition, I believe the testimony of these 

other past employees would only serve to confuse and distract the jury. For 

these reasons and the reasons set forth in [defendant's] pleadings and 

arguments, the [defendant's]5 motion in limine to exclude these witnesses 

remains sustained. 

After the close of all of the evidence, and just prior to the jury instruction 

conference, Cox made two additional offers of proof. Anita Bailey (one of the 17) 

testified that she was given advance notice by Tammy Fruits in late 2009 that the 

Community Relations Department was going to be eliminated after the first of the year. 

She was the Director of Community Relations at the time. She was terminated by 

Donovan and Krug on January 22, 2010. She was in her late 50's at the time of her 

termination. She later learned that someone else had been hired to fill a position titled 

 

4The trial court was referring to Williams v. Trans State Airlines, Inc., 281 S.W.3d 854 (Mo. App. E.D. 

2009). 

5

In both bracketed locations, the trial court originally said "plaintiff." The court was corrected by plaintiff's 

counsel and then made clear that it had intended to refer to the defendant. 
13

"Customer Relations Manager." That person's duties as compared to Bailey's former 

duties were not addressed in the offer of proof. Bailey acknowledged on crossexamination that Bill Newman (one of the 17), the Vice President of Administration, was 

likely involved in the decision to terminate her. 

Cox also submitted the deposition testimony of Larry Clemmons (one of the 17) as 

an offer of proof. Counsel summarized the deposition testimony and claimed that 

Clemmons testified that Crumb and Krug met with him on May 19, 2011, and told him 

"you're the last" and that he would be retiring because the Chiefs wanted someone who 

would be able to work 10 to 15 years longer. Counsel also represented that Clemmons 

testified that Donovan referred to him as an "old man." 

The trial court denied the additional offers of proof, except for the statement 

Clemmons attributed to Donovan. The trial court advised Cox's counsel that the

statement attributed to Donovan did not fall within the categories of testimony excluded

by his in limine ruling, and would not have been excluded had it been offered at trial. 

Cox sought leave to reopen the case to present this evidence. The trial court took the 

request under advisement over night. The record does not reflect whether the trial court 

ever ruled the request.

6

 However, the case proceeded with instructions being read to the 

jury the next morning with no additional evidence presented. 

In summary, Cox made offers of proof through the live or deposition testimony of 

8 of the 17 former employees who were the subject of the motion in limine--Brenda 

Sniezek, Larry Clemmons, Anita Bailey, Ann Roach, Carol Modean, Tom Stephens, 

 

6Cox has not claimed error on appeal in connection with his request to reopen the evidence. 
14

Evelyn Bray, and Gene Barr. Pioli testified during an offer of proof about 2 of the 17 

former employees--Lamonte Winston and Lisa Siebern. No offer of proof was made with 

respect to 7 of the 17 former employees--Nadine Steffan, Carl Peterson, Ken Blume, Pam 

Johnson, Bill Newman, Doug Hopkins,7and Pete Penland.

(iii) The Trial Court did not Abuse its Discretion in Excluding the Testimony 

of 17 Former Employees Offered for the Purpose of Establishing a Claim of 

Discrimination that the Chiefs Engaged in a Pattern and Practice of Systematically 

Eliminating Older Front Office Employees

Cox's first point relied on claims that the trial court abused its discretion in 

entering a blanket exclusion of evidence from 17 former employees "related to [the 

Chiefs'] systematic elimination of older front office employees." As we noted, Cox 

claims the excluded evidence was "highly relevant" for two distinct reasons. We address

the first argued basis for relevance here--that the excluded evidence was highly relevant 

because "it would have demonstrated [the Chiefs'] discrimination against other front 

office employees on the basis of their age." Cox's attorney acknowledged during oral 

argument that Cox sought to admit the excluded evidence in part to establish that the 

Chiefs engaged in a pattern or practice of discrimination against older employees.

"In order to be admissible, evidence must be logically and legally relevant." 

Rader Family Ltd. P'ship, L.L.L.P. v. City of Columbia, 307 S.W.3d 243, 250 (Mo. App. 

W.D. 2010). "Logically relevant evidence establishes or negates a fact in issue or 

corroborates other relevant evidence." Id. "To be legally relevant, the probative value of 

the evidence must outweigh 'the dangers of unfair prejudice, confusion of the issues, 

 

7Doug Hopkins testified at trial, but Cox did not make an offer of proof with him about the excluded topics. 
15

misleading the jury, undue delay, waste of time or needless presentation of cumulative 

evidence." Id. (quoting UMB Bank, NA v. City of Kansas City, 238 S.W.3d 228, 232 

(Mo. App. W.D. 2007)).

The trial court indicated on several occasions that one (though not the only) reason 

for its decision to exclude certain testimony from 17 former employees was Cox's failure 

to allege in his Charge of Discrimination or in his petition a pattern or practice of 

discriminatory behavior affecting him or older employees. Instead, Cox's Charge and 

petition alleged only a single, discrete act of age discrimination on October 14, 2010, the 

day he was terminated. "Pattern-or-practice cases differ significantly from the far more 

common cases involving one or more claims of individualized discrimination." Thiessen 

v. General Electric Capital Corp., 267 F.3d 1095, 1106 (10th Cir. 2001). 

The legal rationale for the trial court's in limine ruling was consistent with the trial 

court's ruling nearly a year earlier when it denied Cox leave to amend his petition to add 

claims of discrimination based on a hostile work environment arising out of a pattern or 

practice of discrimination against other older employees. The trial court ruled that Cox 

was barred from adding this claim to his petition because he had not exhausted his 

administrative remedies by including the claim in his Charge of Discrimination. 

Cox has not appealed the trial court's ruling denying him leave to amend his 

petition due to his failure to exhaust his administrative remedies. Nonetheless, the ruling 

appears to have been in accord with the law. Alhalabi v. Missouri Dept. of Natural 

Resources, 300 S.W.3d 518, 525 (Mo. App. E.D. 2009) (holding that the doctrine of 

exhaustion of remedies requires a claimant to give notice of all claims of discrimination 
16

in an administrative charge as a condition to pursuing those claims in subsequent 

litigation). 

It is axiomatic that evidence offered for the purpose of establishing a claim that is 

not before the court is not logically relevant. The trial court did not abuse its discretion in 

excluding the testimony of 17 former employees to the extent the evidence was offered to 

establish a claim of discrimination based on "systematic discrimination" against "other 

front office employees on the basis of their age" when that claim was not asserted in 

Cox's petition. See Young v. Time Warner Cable Capital, L.P., 443 F.Supp.2d 1109,

1122-23 (W.D. Mo. 2006) (holding that where administrative charge deals solely with 

allegations of discrimination to plaintiff, and contains no allegation of a pattern or 

practice of discrimination against others, plaintiff has not exhausted remedies, and claim 

in petition alleging a pattern or practice of discriminating against others must be 

dismissed). 

(iv) The Trial Court did not Abuse its Discretion in Excluding the Testimony 

of 17 Former Employees Offered as Circumstantial "Me Too" Evidence to Establish 

that the Chiefs had a Discriminatory Motive or Intent in Terminating Cox

Cox also wanted to introduce the excluded testimony of 17 former employees for 

the separate and distinct purpose of establishing that the Chiefs' stated reason for 

terminating him was pre-textual. Cox argues that offered for this purpose, the excluded 

testimony from and about 17 former employees was "highly relevant" circumstantial 

evidence that the Chiefs' possessed a discriminatory motive or intent in terminating him. 

Generally, it is true that "'evidence of other acts of [a] defendant are admissible if 

those acts are sufficiently connected with the wrongful acts that they may tend to show 
17

defendant's disposition, intention, or motive in the commission of the acts for which . . . 

damages are claimed.'" Kline v. City of Kansas City, 334 S.W.3d 632, 643 (Mo. App. 

2011) (quoting Brockman v. Regency Fin. Corp., 124 S.W.3d 43, 51 (Mo. App. W.D. 

2004) (emphasis in original)). "In determining whether [such] evidence is admissible in a 

discrimination case, the trial court must ascertain whether the proffered evidence would 

allow 'a rational finder of fact to infer a discriminatory motive or . . . [to] conclude that 

the employer intended to discriminate in reaching the decision at issue.'" Id. (quoting 

West v. Conopco Corp., 974 S.W.2d 554, 556 (Mo. App. W.D. 1998)). 

Here, Cox hoped to have 17 former employees testify about the circumstances of 

each employee's departure from employment with the Chiefs for the purpose of 

circumstantially establishing that the Chiefs possessed a discriminatory motive or intent 

in terminating Cox. "There is no blanket exclusion in discrimination cases of [such "me 

too"] evidence . . . . Rather, the relevancy of such evidence must be reviewed on a caseby-case basis." Hurst v. Kansas City, Missouri School Dist., No. WD76534, 2014 WL 

1677822, at *11 (Mo. App. W.D. April 29, 2014). Though "me too" evidence cannot be 

summarily excluded, "me too" evidence from or about other employees is not logically 

relevant to tend to prove discriminatory intent or pretext unless it is established that the 

circumstances of the plaintiff and the other employees are "sufficiently similar," a 

relationship which the plaintiff bears the burden of establishing. Williams v. Trans States 

Airlines, Inc., 281 S.W.3d 854, 874 (Mo. App. E.D. 2009)8; Young v. Am. Airlines, Inc., 

 

8Williams also discusses a "similarly situated" standard in a context where other employees "are involved in 

or accused of the same or similar conduct and are disciplined in different ways," a context particularly relevant to 

retaliatory employment impact claims. 281 S.W.3d at 873. Whatever the lexicon, the evidentiary principle is the 
18

182 S.W.3d 647, 654 (Mo. App. E.D. 2005) (holding that federal cases "generally 

recognize that instances of disparate treatment can support a claim of pretext, but the 

plaintiff bears the burden of establishing that the employees are similarly situated in all 

relevant respects") (emphasis added).9 "'[A] trial court has considerable discretion'" in 

determining whether sufficiently similar circumstances have been demonstrated. Kline,

334 S.W.3d. at 642-43 (quoting Birkenmeier v. Keller Biomedical, LLC, 312 S.W.3d 380, 

386 (Mo. App. E.D. 2010). 

Cox first complains that the trial court erroneously made a "blanket ruling" 

summarily excluding testimony from all 17 former employees offered as circumstantial 

evidence of a discriminatory motive or intent in his termination. We disagree. The trial 

court's in limine ruling was expressly based, in part, on Cox's failure to establish that 

each of the 17 former employees was sufficiently similarly situated to Cox's 

circumstances to permit an inference of discriminatory motive. During trial, as 

discussed, supra, the trial court repeatedly revisited the in limine ruling in response to

specific offers of proof, commenting each time that the offers of proof failed to establish 

sufficiently similar circumstances to Cox's circumstances. Thus, although the trial court 

summarily excluded evidence about the termination of other older employees to the 

 

same. Logical relevance between the plaintiff's circumstances and the other employee's circumstances must be 

demonstrated. 

9Cox argues that Missouri has not adopted the "similarly sufficient circumstances" standard, an argument 

that is belied by the holdings in Williams, Young, and Kline. Cox relies for his argument on Holmes v. Kansas City 

Missouri Bd. of Police Com'rs ex rel. its Members, 364 S.W.3d 615, 627, n.6 (Mo. App. W.D. 2012), where we held 

that a plaintiff is not required to establish that he or she was treated differently from "similarly situated" employees 

as an element of a prima facie case of employment discrimination. Holmes is inapposite as it addresses the essential 

elements of a prima facie of discrimination, and not the standard for assessing the admissibility of "me too" evidence 

offered for the purpose of establishing that an employer acted with a discriminatory motive or intent in making an 

employment decision. 
19

extent the evidence was offered to establish an unpreserved claim of pattern-or-practice 

discrimination, the trial court did not enter a blanket ruling excluding the same evidence 

offered to circumstantially establish a discriminatory motive or intent in the decision to 

terminate Cox. Rather, the record plainly reveals that the trial court painstakingly 

revisited the in limine ruling following each offer of proof relating to one or more of the 

17 former employees. On each occasion, the trial court held that the offers of proof failed 

to establish sufficiently similar circumstances to Cox.

10

 

It is thus Cox's burden to establish that the trial court abused its discretion in 

excluding testimony from each of the 17 former employees offered to circumstantially 

establish that the Chiefs harbored a discriminatory motive or intent in terminating Cox. 

King v. Copp Trucking, Inc., 853 S.W.2d 304, 307 (Mo. App. W. D. 1993). Stated 

differently, it is Cox's burden to establish that the departure of each of the 17 former 

employees from the Chiefs' employment was sufficiently similar to Cox's circumstances

to render exclusion of evidence about each employee an abuse of discretion. Cox has not 

sustained this burden. 

First, though Cox correctly observes that the admissibility of "me too" evidence 

must be assessed on a case-by-case basis, Cox's Brief curiously fails to address the 

circumstances of the 17 former employees on a case-by-case basis. Instead, Cox lumps 

discussion of all 17 former employees together, generally arguing that all were similarly 

situated because they were over 40, had worked for Carl Peterson, had (with the 

 

10The trial court also frequently ruled during trial that the logical relevance, if any, of offer of proof 

testimony from or about former employees was outweighed by the prejudicial impact of the evidence, a subject we 

address, infra. 
20

exception of 2) worked on the business side of the organization under Donovan, and were 

replaced by a younger employee.

11

 These broad, generalized characteristics were 

certainly germane to the trial court's assessment of the logical relevance of the testimony 

from or about the 17 former employees. However, these broad, generalized 

characteristics do not establish that the trial court clearly abused its discretion by ruling 

that the 17 former employees were not sufficiently similarly situated to Cox's 

circumstances. 

Second, Cox failed to preserve any claim of error in the exclusion of testimony 

from 7 of the 17 former employees for whom no offer of proof was made.12 Karashin v. 

Haggard Hauling & Rigging, Inc., 653 S.W.2d 203, 205 (Mo. banc 1983) (holding that 

"[a]n offer of proof must demonstrate the relevancy of the testimony offered, must be 

specific and must be definite"); Eckert v. Thole, 857 S.W.2d 543, 546 (Mo. App. E.D. 

1993) ("Without an offer of proof, made on the record at trial, [this Court] cannot convict 

the trial court of error in failing to admit evidence," and nothing is preserved for appellate 

review).

 

11As we discuss both supra and infra, evidence to support these generalized assertions was not tendered by 

Cox in offers of proof as to each of the 17 former employees. Though we refer to the assertions, we do not mean to 

suggest that the record supports the assertions. 

12Cox failed to make offers of proof for Nadine Steffan, Carl Peterson, Ken Blume, Pam Johnson, Bill 

Newman, or Pete Penland. In addition, Cox failed to make an offer of proof with Doug Hopkins, even though he 

testified in Cox's case-in-chief. Cox excuses his failure to make offers of proof claiming it would have been an 

exercise in futility to do so. The record does not support this conclusion. Cox told the trial court he intended to 

make an offer of proof as to each of the 17 former employees, and the trial court was fully prepared to let him do so. 

More to the point, whether or not the trial court's ruling following the offers of proof might have been predictable, it 

was nonetheless Cox's burden to establish that the circumstances for each of the 17 former employees was 

sufficiently similar to Cox's circumstances to render discussion of that employee's age, circumstances of termination, 

and any pending litigation, logically relevant to permit an inference of discriminatory motive or intent in terminating 

Cox. 
21

Third, the offers of proof relating to the remaining 10 former employees reveal 

factors the trial court could have relied on to conclude that each was not sufficiently 

similarly situated to Cox.

13 Two former employees (Lamonte Winston and Lisa Siebert) 

were employed on the football side of the Chiefs' operations, which Pioli controlled. 

Three former employees (Brenda Sniezek, Tom Stephens, and Evelyn Bray) were 

terminated on January 26, 2011, and 1 former employee (Larry Clemmons) was 

terminated on May 19, 2011, several months after Cox's termination in October 2010. Of 

 

13The summary of the offers of proof or lack thereof as relates to the 17 former employees who are the 

subject of Cox's first point on appeal does not appear in Cox's Brief, but has been extracted by this Court from the 

transcript. In fact, point one on appeal fails to identify the precise evidence excluded at trial from each of the 17 

former employees, and but for our exercise of discretion, preserves nothing for appellate review. Eagleburger v. 

Emerson Elec. Co., 794 S.W.2d 210, 240 (Mo. App. S.D. 1990) (holding that point relied on that "does not identify 

any specific evidence that was excluded" preserves nothing for review). The argument portion of Cox's brief fails to 

remediate this error. Cox engages in a discussion of the danger of "blanket evidentiary exclusions," and in a 

discussion of how evidence involving the treatment of other employees is relevant in a discrimination case. Yet, 

Cox fails to apply the law to the specific evidence excluded from each former employee to explain how the trial 

court abused its discretion. And Cox fails to point this court to where in the record the excluded evidence was 

preserved for our review by an offer of proof. Again, but for the exercise of our discretion, Cox's first point on 

appeal preserves nothing for our review. Hutchings ex rel. Hutchings v. Roling, 193 S.W.3d 334, 348 (Mo. App. 

E.D. 2006) (holding claim of error regarding exclusion of evidence is unreviewable and is deemed abandoned where 

neither point relied on nor argument portion of the brief under the point identifies the excluded evidence). 

Even if we afford Cox the benefit of incorporating his statement of facts into the argument portion of the 

Brief, the aforesaid deficiencies are not remediated. The statement of facts purports to summarize the excluded 

evidence from some of the 17 former employees, but cites in many instances to pre-trial pleadings, and not to 

testimony taken via offers of proof, making it difficult to ascertain whether the "excluded testimony" was preserved 

for our review. In addition, the statement of facts summarizes the purportedly excluded testimony of several 

witnesses who were not among the 17 former employees-specifically, Denny Thum, Scott Pioli, Steve Schneider, 

Dan Crumb, Kristin Krug, Mark Donovan and Heather Coleman. Cox loosely alleges that these witnesses were 

barred from testifying about the 17 former employees, but again fails to cite to offers of proof to confirm that 

excluded testimony about the 17 former employees from these witnesses has been preserved for our review. Our 

independent review of the transcript reveals that with the limited exception of Pioli's offer of proof testimony about 

Lamonte Winston and Lisa Siebert, none of these other witnesses testified during offers of proof on subjects related 

to the in limine ruling. Moreover, for two of these witnesses, Heather Coleman and Steve Schneider, the statement 

of facts summarizes excluded evidence that has nothing to do with the 17 former employees and that is not the 

subject of an issue on appeal, rendering its inclusion in the statement of facts argumentative. 

It is Cox's burden to establish that the trial court abused its discretion by excluding evidence at trial. King 

v. Copp Trucking, Inc., 853 S.W.2d 304, 307 (Mo. App. W. D. 1993). It is Cox's burden to establish that he 

preserved a claim of error relating to the exclusion of testimony from or about EACH of the 17 former employees 

with appropriate offers of proof. Hawkinson Tread Tire Service Co. v. Walker, 715 S.W.2d at 336. This court has 

exercised considerable discretion in electing to independently read 7 volumes of trial transcript to determine whether 

and what offers of proof were made at trial regarding the in limine ruling when that information should have been 

plainly set forth in Cox's Brief. "It is not the duty of the appellate court to seine the record in order to discover, if 

possible, error by the trial court; it is the duty of an appellant to distinctly point out the alleged errors and where they 

can be found in the record." Eagleburger, 794 S.W.2d at 240.
22

the remaining 4 employees, Gene Barr testified that he resigned; Anita Bailey and Carol 

Modean were terminated on January 22, 2010, more than 10 months before Cox; and Ann 

Roach was asked to retire in 2010 by Thum, who left the organization before Cox was 

terminated. All 10 of the former employees about or from whom offers of proof were 

made were told they were being terminated because their positions were being eliminated 

or because of a general reduction in force. None were accused of poor performance or 

insubordination. None admitted (as Cox did at trial) that he or she had engaged in 

conduct that would warrant termination.14 None were supervised or terminated by Young 

or Hamilton, Cox's immediate supervisors. None held the same or similar position as 

Cox. None were employed in the Maintenance Department. Cox advised the jury in his 

opening statement and through the evidence in his case-in-chief that the only four Chiefs' 

employees who were "decision makers" in connection with his termination were Young, 

Hamilton, Krug, and Donovan. None of the offers of proof from or about the 17 former 

employees established that these decision makers collaborated with respect to any other 

termination. The trial court could have relied on these dissimilar factors to conclude that 

the former employees for whom offers of proof were made were not sufficiently similarly 

situated "in all relevant respects" to the circumstances of Cox's termination to warrant 

admission of their "me too" testimony.15 Young, 182 S.W.3d at 654. 

 

14In discriminatory termination cases, it is relevant in determining whether employees are "similarly 

situated" if the employees "are 'involved in or accused of the same or similar conduct and are disciplined in different 

ways.'" Williams, 281 S.W.3d at 873 (quoting Young v. Am. Airlines, Inc., 182 S.W.3d 647, 654 (Mo. App. E.D. 

2005). See also Wheeler v. Aventis Pharm., 360 F.3d 853, 857 (8th Cir. 2004). 

15In fact, on one occasion, the trial court noted that it was influenced to conclude that the testimony from 

the former employees did not establish sufficiently similar circumstances because the former employees "worked in 

other departments or were fired for different reasons and at different times." On other occasions, the trial court 
23

 

We are to presume that the trial court ruled correctly in excluding "me too" 

testimony from or about each of the 17 former employees. St. Louis Cnty., 408 S.W.3d at 

123. Cox has not met his burden to establish that the trial court's ruling is against the 

logic of the circumstances, is arbitrary and unreasonable, or indicates a lack of careful 

consideration. Id. 

Cox cites several federal cases where the exclusion of evidence suggesting a 

discriminatory atmosphere, or that other employees were similarly terminated, was found 

to be an abuse of discretion.16 These cases properly recognize that the mere "[f]act that 

an employer explains a termination in terms of business necessity does not . . . prevent a 

plaintiff from critically examining those proffered business reasons to test whether the 

employer is telling the truth." Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1101 n.1 

(8th Cir. 1988) (superseded on other grounds by Price Waterhouse v. Hopkins, 490 U.S. 

228 (1989)). However, these cases do not hold that all evidence a plaintiff summarily 

claims to be relevant to show discriminatory motive or intent must be admitted as a 

matter of law. We have recognized that though some federal decisions have upheld the 

exclusion of "me too" evidence, other federal cases have not. Hurst v. Kansas City, 

Missouri School Dist., WD76534, 2014 WL 1677822, *11 (Mo. App. W.D. April 29, 

2014) (citations omitted). Plainly, the admissibility of "me too" evidence must be 

 

referenced that it was influenced in its ruling by the fact that different decision makers were involved in the decision 

to terminate Cox. 

16E.g., Phillip v. ANR Freight Systems, Inc., 945 F.2d 1054 (8th Cir. 1991); Estes v. Dick Smith Ford, Inc., 

856 F.2d 1097 (8th Cir. 1988); MacDissi v. Valmont Industries, Inc., 856 F.2d 1054 (8th Cir. 1988). 
24

reviewed on a case-by-case basis. Hurst v. Kansas City, Missouri School Dist., 

WD76534, 2014 WL 1677822, *11 (Mo. App. W.D. April 29, 2014). 

Cox's reliance on select federal precedent fails to take into consideration the "caseby-case" evaluation inherent in assessing the admissibility of "me too" evidence. Often, 

that assessment may be influenced by the form of the excluded evidence. For example, 

in Estes, the Eighth Circuit found an abuse of discretion in excluding comparative

statistical evidence that Ford excluded blacks from its work force, that its service 

department offered free rides only to white customers, and that a member of Ford's 

management referred to blacks as "damn n****rs." Id. at 1103-04. Here, Cox did not 

offer comparative statistical evidence about the entirety of the Chiefs' work force, but 

instead wanted to call select former employees to testify about their particular 

circumstances, without reference to the balance of the work force.17 Further, unlike the 

plaintiff in Estes, Cox was permitted to introduce evidence about remarks made by 

Chiefs' management employees suggesting a discriminatory atmosphere. Several 

witnesses testified about a Directors' meeting where playoff bonuses were discussed, and 

where Crumb was reported to have said that he was "sick of these old and entitled 

people."18 Young and Stone were reported to have expressed agreement with the 

statement. Donovan was reported to have called the meeting the "best Director's meeting 

he had ever been in." Several witnesses also testified that Alberino frequently referred to 

 

17Unlike trial testimony from a select number of present or former employees, statistical data would 

comparatively reflect the number of impacted employees against a total number of employees. "[C]omparative 

statistical data . . . [may have] some probative value for the question of whether discrimination has motivated a 

particular employee's treatment." Estes, 856 F.2d at 1103. 

18This meeting occurred on January 5, 2011, shortly after Donovan was named President of the Chiefs' 

organization (replacing Thum), and thus almost three months after Cox was terminated. 
25

sending "young guns" out for media related projects. At least three witnesses testified

that Hunt reportedly told Carl Peterson that he wanted to take the Chiefs in "a more 

youthful direction." 

In short, though the federal decisions cited by Cox recognize general principles of 

logical relevance that are consistent with Missouri law, the discriminatory circumstances 

pled and the specific evidence excluded in those cases renders the outcomes fact specific

and of limited value in assessing whether the trial court abused its discretion in this case.

Moreover, even were we to conclude (which we do not) that the trial court abused 

its discretion in ruling that Cox's offers of proof about 10 of the 17 former employees did

not establish logical relevance, Cox would still be required to establish that the trial court 

abused its discretion in alternatively ruling that the offers of proof were not legally 

relevant. "Legal relevance involves a process through which the probative value of the 

evidence (its usefulness) is weighed against the dangers of unfair prejudice, confusion of 

the issues, misleading the jury, undue delay, waste of time or needless presentation of 

cumulative evidence." Porter v. Toys 'R' Us-Deleware, Inc., 152 S.W.3d 310, 318 (Mo. 

App. W.D. 2004) (citations omitted). A trial court must weigh the probative value of 

evidence against any possible prejudice which might occur due to its admission because 

"[l]ogically relevant evidence is not necessarily admissible; the evidence must also be 

legally relevant." Id. "The trial court is in the best position to evaluate whether the 

potential prejudice of relevant evidence outweighs the relevance. [It] is vested with 

broad discretion in ruling questions of relevancy of evidence and, absent a clear showing 

of abuse of that discretion, the appellate court should not interfere with the trial court's 
26

ruling." Pittman v. Ripley Cnty. Mem'l Hosp., 318 S.W.3d 289, 294 (Mo. App. S.D. 

2010) (citations omitted).

Here, the trial court held that "any probative value of the testimony proposed by 

the plaintiff from these witnesses would be outweighed by the prejudicial effect it would 

have upon the jury . . . I believe the testimony of these other past employees would only 

serve to confuse and distract the jury."19 Cox does not contest this ruling on appeal. 

Cox's failure to address this alternative basis for the trial court's ruling is fatal to his point 

relied on. City of Peculiar v. Hunt Martin Materials, LLC, 274 S.W.3d 588, 590-91 (Mo. 

App. W.D. 2009) (holding that to establish grounds for reversal, an appellant must 

challenge all grounds on which the trial court ruled against it); STRCUE, Inc. v. Potts, 

386 S.W.3d 214, 219 (Mo. App. W.D. 2012) (holding that the failure to challenge an 

alternative basis for the trial court's finding or ruling is fatal to appeal).

Point one is denied.20 

Point Two

In his second point on appeal, Cox argues that the trial court abused its discretion 

in excluding the testimony of Herman Suhr ("Suhr"), an employee of the Chiefs who 

allegedly overheard Pioli tell an unidentified person that "I need to make major changes 

 

19The trial court was also concerned that the testimony of the 17 former employees about the circumstances 

of their terminations would open the door to the Chiefs' calling a number of witnesses (reportedly 38) over the age 

of 40 who were hired or retained during the same time frame. 

20The argument portion of the brief addressing point one raises the additional claims that the excluded 

evidence was relevant on the issue of punitive damages, and that the trial court erred in admitting certain "me too" 

evidence offered by the Chiefs. Neither issue is included within the scope of Cox's point relied on. "We do not 

address errors that first appear in the argument portion of a brief and are not encompassed in the point relied on, 

because they are not preserved for review." Hutchings, 193 S.W.3d at 346. Moreover, where a jury has failed to 

find liability or award actual damages, any error concerning the exclusion of evidence relevant to punitive damages 

could not have prejudiced Cox, since the jury never reached the punitive damage issue. See Ziolkowski v. Heartland 

Regional Med. Ctr., 317 S.W.3d 212, 219-20 (Mo. App. W.D. 2010). 
27

in this organization as so many employees of Carl Peterson are over 40 years old." In his 

point relied on, Cox argues this statement was "highly relevant" because (i) it would have 

served as additional evidence of the Chiefs' intent to carry out its systematic elimination 

of older front office employees, and (ii) it would have demonstrated the Chiefs' 

discriminatory motive or intent in his termination. Our standard of review for this point 

on appeal is the same as applied to point one. 

The argument portion of Cox's Brief does not develop the claim raised in the point 

on appeal that Suhr's excluded statement was "highly relevant" to establish the Chiefs' 

"systematic elimination of older front office employees." "When matters referenced as 

alleged error in a point relied on are not developed in the argument portion of a brief, 

they are deemed abandoned." Saunders-Thalden and Associates, Inc. v. Thomas Berkeley 

Consulting Engineer, Inc., 825 S.W.2d 385, 387 (Mo. App. W.D. 1992). See also

Papineau v. Baier, 901 S.W.2d 190, 192 (Mo. App. W.D. 1995) ("Claims of error . . . 

without supporting argument preserve nothing for appellate review and are deemed 

abandoned."). In any case, we have already explained in our discussion of Cox's first 

point on appeal that evidence offered to prove that the Chiefs allegedly engaged in the 

discriminatory practice of systematically terminating older employees is beyond the 

discrete claim of discriminatory termination alleged in Cox's petition.21 

The argument portion of Cox's Brief does address the second contention raised in 

the point relied on that Suhr's excluded statement was logically relevant direct evidence 

 

21As we discussed in connection with point relied on one, supra, such assertions were not fairly raised by 

the allegations in Cox's Charge of Discrimination filed with the MCHR, and Cox thus failed to exhaust his 

administrative remedies as to that claim. 
28

of discriminatory motive or intent in the decision to terminate Cox. Cox cites Beshears v. 

Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991) for the proposition that "[c]omments which 

demonstrate a discriminatory animus in the decisional process or those uttered by 

individuals closely involved in employment decisions may constitute direct evidence" of 

discriminatory motive or intent. (citations omitted) (emphasis added).

This general statement of legal principle is not in contest. "Direct evidence is that 

which shows a specific link between the alleged discriminatory animus and the 

challenged decision, sufficient to support a finding that an illegitimate criterion actually 

motivated the employment decision." Daugherty v. City of Maryland Heights, 231 

S.W.3d 814, 818 n.4 (Mo. banc 2007). "Direct evidence includes evidence of conduct or 

statements by persons involved in the decision-making process that may be viewed as 

directly reflecting the alleged discriminatory attitude, if it sufficiently supports an 

inference that the discriminatory attitude was more likely than not a motivating factor." 

Id. (Emphasis added.) 

Though not in contest, this controlling legal principle does not aid Cox. The trial 

court found that Suhr's testimony about Pioli's statement was not logically relevant direct 

evidence of discriminatory intent because Pioli was not involved in the decision to 

terminate Cox. For example, at the time of the offer of proof of Suhr's deposition, the 

trial court stated:

Mr. Pioli was not a decision maker based upon all the evidence that I've 

heard in this case and the arguments and the pleadings that I've reviewed. 

Mr. Pioli was not a decision maker in the decision to terminate the plaintiff 

in this case and his responsibilities were apart and separate from the 

business side which the maintenance department fell under. 
29

Cox does not contest the trial court's conclusion that Pioli was not a decision maker in his 

termination. In fact, the evidence was that Pioli was responsible for the football side of 

the organization, not the business side of the organization where Cox was employed. 

Though the evidence established routine interactions between Pioli and Cox relating to 

maintenance matters that impacted football operations, no evidence suggested that Pioli 

was involved in the decision to terminate Cox. Cox admitted as much. He advised the 

jury during opening statement, and his evidence at trial confirmed, that the only people 

involved in the decision to terminate him were Krug, Young, Hamilton, and Donovan. 

Thus, the trial court did not abuse its discretion in excluding Suhr's testimony offered as 

direct evidence of a discriminatory motive or intent in the decision to terminate Cox. 

Moreover, the trial court alternatively ruled that Suhr's testimony was not legally 

relevant. Following the offer of proof of Suhr's deposition, the trial court ruled: 

Therefore, anything that [Pioli] may have said, and particularly the remarks 

that were attributed to him by Mr. Suhr in his deposition . . . would only 

serve to prejudice the defendant by somehow allowing, if the jury were to 

[be] allowed to attribute those remarks to a decision maker . . . .

Earlier in the case, as a part of extensive off-the-record discussion of Pioli's anticipated 

testimony and the related topic of Suhr's deposition, the trial court similarly held:

Keep in mind I have read all of your briefs on this and there's argument on 

this going back to last Friday and some last night and today. I have also 

reviewed Mr. Pioli's deposition in its entirety. I reviewed Mr. Suhr's 

deposition as well. I think it's helpful to back up as to what my previous 

ruling was on the defendant's original motion on this subject in limine. It 

was my determination and I was convinced based upon my reading on the 

deposition and, quite frankly, I'm even more convinced after hearing some 

of the testimony today that Mr. Pioli was not a decision maker in the 

termination of the plaintiff. Therefore, it was my position then and it's my 
30

position now that the disputed statement falls into the category of a stray 

remark and therefore is inadmissible, and also that its prejudicial effect, that 

being the statement, outweighs any probative value that the statement 

would have for the jury.

. . . . 

For example, the prejudicial effect of the jury attributing that stray remark 

to a decision maker in this case as to the plaintiff's termination outweighs 

any probative value the statement brings to the case. 

Cox has not addressed the trial court's ruling about the legal relevance of Suhr's 

excluded testimony. Cox's failure to challenge an alternative basis for the exclusion of 

Suhr's deposition is fatal to his second point on appeal. City of Peculiar, 274 S.W.3d at 

590-91 (holding that to establish grounds for reversal, an appellant must challenge all 

grounds on which the trial court ruled against it); STRCUE, Inc., 386 S.W.3d at 219 

(holding that the failure to challenge an alternative basis for the trial court's finding or 

ruling is fatal to appeal).

Point two is denied.22

 

22Cox's second point relied on only claims error in the exclusion of Suhr's testimony because of its 

relevance. The argument portion of Cox's brief raises two additional claims of error that are outside the scope of the 

point relied on: (i) that Pioli's statement was an admission of a party opponent (the Chiefs) and thus an exception to 

the hearsay rule; and (ii) that Suhr's testimony about Pioli's statement would have been proper impeachment of 

inconsistent testimony by Pioli. Neither argued basis for admission of Suhr's statement is preserved for our review. 

Hutchings, 193 S.W.3d at 346 (matters first raised in argument portion of brief and not included in point relied on 

are not preserved for appellate review). 

Ex gratia, both unpreserved arguments are easily resolved on their merits. First, even if Pioli's purported 

comment qualified as an admission against interest and thus as an exception to the hearsay rule, its admissibility 

would remain subject to Cox's independent obligation to establish relevance. Mash v. Missouri Pac. R.R. Co., 341 

S.W.2d 822, 827 (Mo. 1960). We have already explained that the trial court did not abuse its discretion in ruling 

that Suhr's testimony was neither logically nor legally relevant. Second, Pioli never testified at trial about the 

statement Suhr purportedly overheard. Cox has not claimed error in the exclusion of Pioli's testimony. A trial court 

does not abuse its discretion in excluding a statement offered to impeach a prior inconsistent statement the jury has 

never heard. State v. Mitchell, 693 S.W.2d 155, 158 (Mo. App. E.D. 1985) (holding that cannot impeach with a 

prior inconsistent statement unless inconsistent testimony is shown).
31

Point Three

In his third point on appeal, Cox claims that the trial court abused its discretion in 

excluding any testimony from Hunt at trial or by way of a pretrial deposition. Cox claims 

that he was thus precluded from admitting relevant evidence about (i) a communication 

sent to Cox after his termination that contradicted the stated basis for his termination; (ii) 

Hunt's stated desire "to go in a more youthful direction;" and (iii) Hunt's direct 

involvement in terminating other older employees.

The exclusion of Hunt's testimony at a deposition and at trial was effected by court 

orders quashing subpoenas. "Trial courts have broad discretion in administering the rules 

of discovery, and appellate courts will not disturb the exercise thereof absent an abuse of 

discretion." Bar Plan Mut. Ins. Co. v. Chesterfield Management Associates, 407 S.W.3d 

621, 633 (Mo. App. E.D. 2013) (citing Sanders v. Ahmed, 364 S.W.3d 195, 213 (Mo. 

banc 2012)). A trial court's decision to quash a trial subpoena effectively operates to 

exclude evidence at trial, and is thus reviewed for an abuse of discretion. Boyer v. 

Sinclair & Rush, Inc., 67 S.W.3d 627, 634 (Mo. App. E.D. 2002) (holding that exclusion 

of evidence is within trial court's discretion and is reviewed for abuse of discretion). 

Though both the quashed discovery and trial subpoenas are reviewed for an abuse 

of discretion, the potential for abuse is greater in discovery, as the universe of 

discoverable information exceeds that of admissible evidence at trial. State ex rel. 

Humane Society of Missouri v. Beetem, 317 S.W.3d 669, 672 (Mo. App. W.D. 2010) 

("The discovery sought need not be admissible at trial, but must appear 'reasonably 

calculated to lead to the discovery of admissible evidence.'") (quoting Rule 56.01(b)). 
32

Cox's point on appeal thus improvidently raises two distinct claims of error. Though this 

violates Rule 84.04, and preserves nothing for appellate review,23 we exercise our 

discretion to address both the claim of error in quashing a discovery subpoena and a trial

subpoena issued to Hunt. 

1. The Trial Court did not Abuse its Discretion in Quashing Hunt's Deposition 

Subpoena

The trial court quashed the deposition notice for Hunt finding that "annoyance, 

oppression, undue burden, and expense outweigh the need for such discovery." In 

making this ruling, the trial court held:

Plaintiff also seeks the deposition of Clark Hunt, Chairman and Chief 

Executive Officer of the Kansas City Chiefs Football Club. Plaintiff claims 

the basis for taking Mr. Hunt's deposition is a letter that Mr. Hunt wrote to 

Plaintiff following Plaintiff's termination. Plaintiff argues that the letter 

directly contradicts not only the purported reasons for Plaintiff's 

termination, but also the sworn testimony of each witness who has provided 

testimony on Defendant's behalf. Plaintiff also contends that Mr. Hunt 

made comments regarding his own age relative to the age of Mr. Pioli's at 

the time of Mr. Pioli's hiring.

Defendant argues in opposition that the letter from Mr. Hunt merely 

expresses gratitude to the Plaintiff and provides no basis for his deposition. 

Defendant argues that, as Chairman and CEO of the entire organization, 

Mr. Hunt was not involved in Plaintiff's work evaluation nor did he 

participate in the decision to terminate Plaintiff.

The trial court then outlined the law applicable to depositions of "top-level executives." 

The court noted that although litigants are permitted to depose top-level executives who 

have discoverable information, alternate methods of discovery may make a top-level 

 

23McLean v. First Horizon Home Loan, Corp., 369 S.W.3d 794, 800 n.4 (Mo. App. W.D. 2012) ("A 

statement of a point relied on . . . violates Rule 84.04 when it groups together contentions not related to a single 

issue. As such it is multifarious. . . . Improper points relied on, including those that are multifarious, preserve 

nothing for appellate review.") (internal citations omitted).
33

deposition unnecessary if the purpose is outweighed by the annoyance, burden, and 

expense to take such a deposition. 

The trial court's analysis is consistent with settled principles of law. In State ex 

rel. Ford Motor Co. v. Messina, 71 S.W.3d 602, 607 (Mo. banc 2002), our Supreme 

Court recognized that "[e]ven if [a] top-level employee has discoverable information, the 

organization or its top-level employee may seek a protective order." The Supreme Court 

recognized that "[r]ank-and-file employees perform most tasks, while top-level 

employees are responsible for coordination and oversight." Id. at 606. Thus, persons in 

lower positions within an organization often have more or better information. Id. 

Discovery from a "top-level executive" can therefore be prohibited if the party opposing 

the discovery establishes "good cause." Id. at 607. "For top-level employee depositions, 

the court should consider: whether other methods of discovery have been pursued; the 

proponent's need for discovery by top-level deposition; and the burden, expense, 

annoyance, and oppression to the organization and the proposed deponent." Id. The trial 

court applied these principles to conclude that "good cause" had been established to 

quash Hunt's deposition subpoena.24

On appeal, Cox merely restates the general principle that litigants may depose toplevel executives as announced in Messina, than urges a different conclusion than that 

reached by the trial court. Cox ignores, and does not discuss, Messina's holding that 

deposition discovery from top-level executives is subject to higher scrutiny requiring the 

 

24In the same order, the trial court denied the Chief's request for a protective order quashing the deposition 

subpoenas of other "top-level executives," namely Pioli, Alberino, and Crump. 
34

weighing of certain factors if a protective order is sought. Cox thus fails to explain how 

the trial court abused its discretion in quashing the deposition subpoena having 

considered and applied the analysis set forth in Messina. Eagle ex rel. Estate of Eagle v. 

Redmond, 80 S.W.3d 920, 924 (Mo. App. W.D. 2002) ("An argument is not properly 

before an appellate court if it merely makes bald assertions of general principles of law 

and never develops how such principles mandate reversal in the factual context of the 

particular case.") (citation omitted). Cox has not established an abuse of discretion in 

quashing the deposition subpoena for Hunt.

2. The Trial Court did not Abuse its Discretion in Quashing Hunt's Trial 

Subpoena 

The trial court granted the Chief's motion for a protective order quashing a trial 

subpoena for Hunt in July 2012, several months before trial commenced in February, 

2013. Cox claims he was thus unable to present evidence regarding (i) a communication 

sent to Cox after his termination that contradicted the stated basis for his termination; (ii) 

Hunt's stated desire "to go in a more youthful direction;" and (iii) Hunt's direct 

involvement in terminating other older employees.

We begin with the third claim of prejudice--the inability to elicit testimony from 

Hunt about his purported involvement in terminating other older employees. The 

argument portion of Cox's Brief does not develop this claim of error. "When matters 

referenced as alleged error in a point relied on are not developed in the argument portion 

of a brief, they are deemed abandoned." Saunders-Thalden and Associates, Inc., 825 

S.W.2d at 387. In any case, we have already explained that evidence offered to prove 
35

that the Chiefs allegedly engaged in the discriminatory practice of systematically 

terminating older employees is beyond the discrete claim of discriminatory termination 

alleged in Cox's petition.

Cox's first claim of prejudice is also easily resolved. The letter from Hunt to Cox 

was referred to on several occasions at trial, and was introduced into evidence by Cox on 

the fourth day of trial. Even if we could find the quashed trial subpoena to be an abuse of 

discretion, we would not find it be prejudicial. See, e.g., Adkins v. Hontz, 337 S.W.3d 

711, 720 (Mo. App. W.D. 2011) ("Even if the exclusion of . . . evidence was an abuse of 

the trial court's discretion, we cannot find the exclusion was prejudicial" where the 

excluded evidence is cumulative of other evidence admitted at trial). 

Cox's third claim of prejudice alleges that Cox was unable to elicit evidence 

regarding Hunt's purported statement that he wanted to take the Chiefs' organization in a 

"more youthful direction." That claim is not supported by the record. The statement 

attributed to Hunt came into evidence at trial on three occasions. It came in initially 

during the testimony of Ann Roach who testified that Peterson told her that Hunt made 

the statement. This testimony was elicited despite the fact the trial court had sustained 

the Chiefs' double hearsay objection, permitting Roach to testify about what Peterson told 

her, but not about anything Peterson claimed to have been told by others.25 The 

statement attributed to Hunt then came in a second time when Cox asked Krug:

 

25Though Peterson was one of the 17 former employees about whom Cox complains, Cox offers no 

explanation for why he did not call Peterson to testify about the statement Hunt purportedly made to him. 
36

There's been testimony in this courtroom that Clark Hunt wanted to go in a 

more youthful direction. Can we agree that that type of statement if 

executed, can we agree, would be a violation of law?

The Chiefs did not object to this question. Thus, the trial court permitted a third 

discussion of Hunt's comment during Cox's direct examination of Donovan, where Cox 

was permitted to inquire of Donovan as he had with Krug. Plainly, the claimed subject of 

Hunt's anticipated trial testimony came into evidence on three occasions. Hunt's 

testimony on the same subject would have been cumulative, rendering its exclusion not 

prejudicial. Id. 

Cox summarily argues, without analysis or citation to authority, that even though 

all of the referenced subjects of Hunt's anticipated trial testimony came in through the 

testimony of other employees, the exclusion of Hunt as a witness "resulted in substantial 

unfair prejudice . . . [because it] materially affected the jury's ability to weigh the 

evidence in its entirety." [Appellant's Brief, pp. 56-7] Cox's argument ignores the 

holding in Messina, which recognizes that discovery from a "top-level executive" can be 

the subject of a protective order in part because lower level employees are often equally 

or better equipped to provide the same information. 71 S.W.3d at 606-07. We can 

articulate no reasoned basis why this holding would not apply equally to a trial subpoena, 

particularly when the scope of admissible evidence at trial is narrower than the scope of 

discoverable information. Stated differently, if the trial court did not abuse its discretion 

in quashing Hunt's deposition subpoena, we are hard pressed to see how it abused its 

discretion in quashing Hunt's trial subpoena, when the information attributed to him and 

about which Cox complains came into evidence through other witnesses. 
37

Point three is denied.26

Point Four 

In his fourth point on appeal, Cox claims that the trial court committed plain error 

by failing to "restrain and purge" arguments made by the Chiefs during closing because 

the arguments impugned the character of Cox's counsel, accused counsel of greed and 

dishonesty, and misstated the law. 

The plain error rule, Rule 84.13(c), provides that "[p]lain errors affecting 

substantial rights may be considered on appeal, in the discretion of the court, though not 

raised or preserved, when the court finds that manifest injustice or miscarriage of justice 

has resulted therefrom." "Rarely applied, the plain error rule is reserved for those 

situations in which hatred, passion or prejudice has been engendered causing manifest 

injustice or a miscarriage of justice." Sherpy v. Bilyeu, 608 S.W.2d 521, 523 (Mo. App. 

S.D. 1980).

In Cox's statement of facts, he highlights 23 different statements made during the 

Chiefs' closing argument about which he complains on appeal. We need not recite each 

of the statements as they are plainly thematic. The statements all suggest that Cox told 

the truth about his termination, but that his lawyers did not want to face the truth. In the

course of pressing this theme, the Chiefs' counsel frequently used phrases like: "these 

lawyers don't want to face the truth;" and "don't let these lawyers fool you;" and "it's 

 

26Cox cites to several other subjects in the argument portion of his Brief that he claims would have been the 

subject of Hunt's trial testimony. These additional subjects exceed Cox's point on appeal and are not preserved for 

our review. Hutchings, 193 S.W.3d at 346 (matters first raised in argument portion of brief and not included in 

point relied on are not preserved for appellate review). In any event, in each case, Cox cites to transcript references 

where the same evidence was presented to the jury through different witnesses or exhibits, rendering Hunt's 

anticipated testimony cumulative, and its exclusion not prejudicial. Adkins, 337 S.W.3d at 720. 
38

about these lawyers, it isn't about Mr. Cox;" and "these lawyers don't want to listen to 

their own client." The statements related to the fact that Cox openly admitted at trial that 

he was told he was terminated for poor performance; that he was given as an example the

raise he authorized for an employee in contravention of Donovan's instructions; and that 

he knew when he gave Crowley a raise that he was violating Donovan's instructions and 

could be subject to termination.

By failing to object despite innumerable opportunities to do so, Cox "deprived the 

trial court of any opportunity to take remedial action," presuming, arguendo, that the 

arguments by the Chiefs' counsel were objectionable. Id. "Whatever error inhered in the 

jury argument of [the Chiefs] . . . could have been removed by timely and sufficient 

objection and request to the trial court for appropriate corrective measures." Stevens v. 

Watterau Foods, Inc., 501 S.W.2d 494, 499 (Mo. App. 1973). "The plain error rule . . . is 

not a refuge for the maladroit or neglectful." Id. 

"Our appellate courts have on rare occasions granted new trials under the plain 

error rule where the jury argument was calculated to arouse hatred and prejudice against a 

party or witness and thus tended towards a miscarriage of justice." Id. See also, 

Calloway v. Fogel, 213 S.W.2d 405, 409-410 (Mo. 1948) (finding plain error where, after 

disavowing any intent to invoke "the racial angle," argument was later made were a 

disparaging implication on that subject was unmistakable); Leaman v. Campbell 66 

Express Truck Lines, Inc. 199 S.W.2d 359, 365 (Mo. 1947) (finding plain error where 

counsel for defendant implied with no basis in the record to do so that driver of car in 

which plaintiff's wife was driving was drunk, and that plaintiff filed suit in a county 
39

where he was not known because of a poor reputation). Here, however, the subject 

matter and language employed by the Chiefs during closing argument "were not 

manifestly inflammatory." Sandy Ford Ranch, Inc. v. Dill, 449 S.W.2d 1, 7 (Mo. 1970). 

"[It] [cannot] confidently be said that . . . the remarks complained of as they appear in 

context, improperly influenced the jury to an unjust result or deprived [Cox] of a fair 

trial." Id. (denying plain error review of arguments during closing that a key witness was 

lying and was a "vulture watching for his prey").

Cox relies on Critcher v. Rudy Fick, Inc., 315 S.W.2d 421 (Mo. 1958), where the 

Supreme Court granted a new trial because of statements made in defendant's closing 

argument disparaging opposing counsel. There, defense counsel referred to plaintiff's 

case as "framed-up," "cooked-up," and "half-baked." Id. at 424. Counsel accused one of 

his opposing counsel of "blushing," implying it was because he had been caught 

falsifying issues. Id. at 425. Counsel referred to opposing counsel as "smart and clever." 

Id. Counsel argued that opposing counsel had elicited the net worth of the corporate 

defendant solely to permit the individual plaintiff to "steal" money from a deep pocket. 

Id. Counsel told the jury that indeed he was "attacking [opposing counsel's] honor and 

integrity." Id. at 426. Finally, counsel closed by telling the jury that if it should return a 

verdict for the defendant to send a message to "these lawyers . . . that the day is not yet 

here when a 12-man, common law jury can be hoodwinked into giving a verdict for a 

worthless, no-good, half-baked, framed-up case." Id. Through the course of the closing, 

plaintiff's counsel repeatedly objected, and both counsel engaged in acrimonious 
40

argument and personal attack on one another, all in the presence of the jury. Id. at 424-

26. 

Though the assertions in this case and in Critcher fall into the loose category of 

comments on the motives of opposing counsel, they are of markedly different severity. 

More to the point, Critcher was not a plain error case. 

Plaintiff admits that as to some of the argument now claimed to be 

erroneous and prejudicial no proper and timely objection was made, but it 

is requested that we invoke 42 V.A.M.S. Supreme Court Rule 3.27 which 

provides that "Plain errors affecting substantial rights may be considered . . 

. on appeal, in the discretion of the court though not raised in the trial court 

or preserved for review, or defectively raised or preserved, when the court 

deems that manifest injustice or miscarriage of justice has resulted 

therefrom." . . . However, even though there may be a duty on the trial court 

to take necessary corrective action without objection being made when 

argument goes to the extreme, as in this case, it is the general rule that the 

prejudicial effect of such improper argument will be considered to be 

waived if proper and timely objection is not made to the trial court so that it 

may, if the misconduct is of the nature to be subject to corrective action, 

take appropriate steps under the circumstances to remove the prejudicial 

effect. It is not necessary on this appeal to determine if the argument 

would justify this court to invoke Supreme Court Rule 3.27 because 

plaintiff's counsel did make proper and timely objection to at least one 

phase of the argument that was improper and prejudicial.

(Emphasis added.) (Internal citations omitted.) Though relief was afforded in Critcher, it 

was largely because the claim of error had been preserved for review. In fact, the 

Supreme Court made a point to note:

[I]t is appropriate in the situation here presented again to admonish counsel 

that Supreme Court Rule 3.27 is not to be a refuge for those who 

negligently fail to make proper objections or who fail to make objections 

because the trial situation may be considered "difficult to deal with by 

objections." 
41

(Citations omitted.) Critcher is thus of no assistance to Cox. The Chiefs' comments 

about Cox's counsel in closing do not involve a situation in which hatred, passion or 

prejudice has been engendered causing manifest injustice or a miscarriage of justice 

warranting plain error review. 

In addition to complaining that defense counsel improperly disparaged Cox's 

counsel during closing argument, Cox also seeks plain error review of a claimed blatant 

misstatement of law made during the Chiefs' closing argument. The Chiefs' argued that 

Cox's Charge of Discrimination failed to include reference to relevant, unfavorable facts. 

The Chiefs' counsel then argued that had Cox's counsel "told the truth to the MCHR," 

MCHR would have told Cox "you have no claim here." Cox claims on appeal that this 

was a "blatant misstatement of the law" subject to plain error review because it implied 

Cox's ability to file a lawsuit depended on whether the MCHR deemed his claim to be 

meritorious. 

Though Cox seeks plain error review of this claim, it is not subject to plain error 

review. Cox's counsel timely objected during the Chiefs' closing and told the trial court 

that the aforesaid argument misstated the law by suggesting that the MCHR's findings 

controlled whether Cox could file a lawsuit. Cox's counsel then said: "I'm going to ask 

for an instruction to have the jury disregard it." After additional discussion with counsel, 

the trial court responded: "What I can tell the jury is that they should be guided by the 

instructions from this Court and the evidence that was presented in this case." Cox's 

counsel responded: "Yes, sir. That will do." (Emphasis added.)
42

Clearly, Cox objected, sought a curative instruction, received a curative 

instruction, and expressed his satisfaction with the curative instruction. He sought no 

other relief from the trial court for his sustained objection. "[A] request for a mistrial 

based on improper closing argument comes too late where it is not requested at the time 

the objection is made." McMillin v. Union Elec. Co., 820 S.W.2d 352, 355 (Mo. App.

W.D. 1991). Cox waived the remedy of mistrial when he failed to request it at the time 

of his sustained objection and when he affirmatively advised the trial court that the 

curative instruction it was prepared to give "would do." Id. 

Point four is denied.

Point Five

In his fifth point on appeal, Cox claims that the trial court abused its discretion in 

failing to grant Cox a new trial based on the cumulative effect of the errors identified in 

points one through four on appeal. As we have determined no error occurred with respect

to any of those points, point five is without merit and is denied.

Conclusion

The trial court's judgment is affirmed.

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Cynthia L. Martin, Judge

All concur