In the 

Missouri Court of Appeals

Western District 

TRACY L. REED,

Appellant,

v.

THE KANSAS CITY MISSOURI 

SCHOOL DISTRICT,

Respondent.

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WD78813

OPINION FILED:

December 6, 2016 

Appeal from the Circuit Court of Jackson County, Missouri

The Honorable Sandra Midkiff, Judge

Before Division Three:

Alok Ahuja, P.J., Victor C. Howard, and James Edward Welsh, JJ.

Tracy L. Reed appeals the circuit court's judgment based on a jury's verdict rejecting her 

claims of discrimination and retaliation against her former employer, the Kansas City Missouri 

School District ("District"), which she brought pursuant to the Missouri Human Rights Act 

("MHRA"), sections 213.010, et seq., RSMo.

1

 We affirm.

 

1Statutory references are to the Revised Statutes of Missouri (RSMo) 2000, as updated by the 2013

Cumulative Supplement.
2

Background

Viewed in the light most favorable to the jury's verdict,2the evidence at trial showed that 

Reed began working for the District as a substitute secretary in 1990. She was hired as a fulltime secretary in June 1992 and worked at Westport High School for several years. In July 2010, 

Reed began working at Satchel Paige Elementary as one of two secretaries. For the 2011-12 

school year, however, the District reduced the number of secretaries to one at each elementary 

school. Reed was assigned to stay at Satchel Paige, and, in July 2011, she assumed all of the 

secretarial duties except budgetary issues. 

As a school secretary, Reed was required to perform customer-service oriented tasks in a 

"high-traffic" environment. In May 2011, Reed's direct supervisor at the time, Principal Chester 

Palmer, noted in a performance evaluation that Reed needed improvement in communication and 

customer service. In August 2011, following a complaint that Reed had spoken rudely to a 

person over the telephone, Palmer wrote a memorandum to Reed, reminding her that she was 

"expected to perform [her] duties as a professional" and not to "bicker with" or "confront" others. 

In July 2012, April Flowers was hired to replace Palmer as school principal at Satchel 

Paige Elementary. Satchel Paige was a "focus school" that was at risk of becoming a lowperforming school unless "sweeping changes" were made to help the school improve its 

performance. Flowers testified that "a great many changes" were required with "a quick plan to 

turn around" the school. When Flowers became principal, she had only one month to prepare for 

the upcoming school year that began in early August. As the sole secretary, Reed was expected 

to play a crucial role in helping her prepare. 

 

2Hayes v. Price, 313 S.W.3d 645, 648 (Mo. banc 2010).
3

When Flowers came to Satchel Paige in July 2012, she gave Reed a list of forty-six tasks 

to be completed before school started. These were tasks that every District secretary would 

routinely perform. According to Flowers, Reed's attitude was "very disrespectful, rude and 

inappropriate." In addition, Flowers found that Reed had not properly maintained the filing 

system for student records during the 2011-12 school year (an essential part of her job), and the 

records were still disorganized and incomplete when Reed was terminated in August 2012. By 

the time Reed was terminated, she had finished only a few of her forty-six assigned tasks. As a 

result, Flowers hired Rachel Hayes (a former substitute secretary) to ensure that these tasks were

completed on time.

Reed contends that, during the majority of her time with the District, she suffered from 

chronic mental and physical conditions, including severe depression (bi-polar disorder), 

paranoia, and other mental health issues, as well as degenerative disc disease and "a hip 

condition." Reed was diagnosed with a bi-polar disorder by Dr. James True at Swope Parkway 

Health Centers, who prescribed medication for her condition. Dr. True reported that Reed has

trouble interacting with people, is "quite sensitive to excess stimulation," and "cannot work with 

distractions." Reed's bi-polar disorder and other psychological conditions cause her to have 

trouble concentrating, eating, sleeping, getting out of bed, and sometimes going to work. 

According to Reed, her condition was exacerbated by the stress from being the only secretary at 

Satchel Paige in 2011-12. 

During Reed's employment, the District made reasonable efforts to accommodate her

disabilities. Due to her physical disabilities, Reed requested that the filing cabinets be moved 

closer to her work area. That was done in January 2012. Reed also requested that the security 

monitor/buzzer used to admit visitors into the building be relocated to her desk in the corner of 
4

the front office. When the District offered to move Reed to a workstation in the center of the 

office that would provide ready access to both the video monitor/buzzer and filing cabinets, Reed 

refused. She wrote in a July 2012 email: "[W]ith my condition I cannot have a buzzer intercom 

and telephone on a desk and perform my job with ease, with or without a job accommodation." 

Reed ultimately asked the District to hire "additional staffing" to perform certain of her 

job duties. The District rejected this accommodation request, advising Reed that it was not 

reasonable "to expect [it] to hire someone to perform many of the essential functions of [her] 

job." As an alternative, Reed requested to be transferred to a high school where there were 

multiple secretaries in the office. The District rejected that request because Reed had previously 

been unsuccessful in a secondary school setting.

3

The District terminated Reed's employment on August 3, 2012, after determining -- based 

on information from Reed and her physicians -- that Reed "simply [could not] perform the 

essential duties of [her] job with or without reasonable accommodations." This included Reed's 

admission that her "mental affliction" affected her "ability to concentrate" and her "ability to 

complete daily task[s] in a timely manner or if at all," as well as her physician's statement that 

she "cannot work with distractions." Reed applied for disability insurance benefits following her 

termination and included a statement from Dr. True stating that she was unable to work because 

she "cannot tolerate closeness to people or supervision." Dr. True confirmed at trial that Reed 

suffered from this same inability while employed by the District.

Following her termination, Reed filed a petition against the District in which she asserted

employment discrimination and retaliation claims pursuant to the MHRA. Reed claimed in 

 

3Reed agreed at trial that the high school environment had been "too much" for her when she had 

previously worked at Westport High School. 
5

Count I that the District had discriminated against her based on her disability by failing to 

provide all the accommodations she requested. She claimed in Count III that she had been 

retaliated against for filing complaints and for requesting such accommodations. In Count II, she 

alleged that the District discriminated against her based on her age, which was fifty-three at the 

time of her termination.

Prior to trial, both parties sought the exclusion of certain evidence via motions in limine,

which were addressed at pretrial hearings. The circuit court's decision to admit or exclude 

certain evidence that was the subject of those motions is the basis of this appeal. 

At trial, Reed testified in her own behalf and presented the testimony of various

witnesses, including Flowers. Both parties introduced numerous exhibits. The jury ultimately 

returned a verdict in favor of the District on all three counts. The circuit court entered judgment 

in accordance with the verdict and denied Reed's motion for new trial. 

Standard of Review

A trial court "enjoys considerable discretion in the admission or exclusion of evidence, 

and, absent clear abuse of discretion, its action will not be grounds for reversal." Cox v. Kansas 

City Chiefs Football Club, Inc., 473 S.W.3d 107, 114 (Mo. banc 2015). We presume that the trial 

court's evidentiary rulings are correct. Hurst v. Kansas City, Mo. Sch. Dist., 437 S.W.3d 327, 342 

(Mo. App. 2014). The trial court's discretion is "particularly" considerable in ruling on the 

admissibility of evidence "where a subjective determination of relevancy must be made," such as 

in this case. Frazier v. City of Kansas City, 467 S.W.3d 327, 338 (Mo. App. 2015). An 

evidentiary ruling is an abuse of discretion only if it is "clearly against the logic of the 

circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense 

of justice and indicates a lack of careful, deliberate consideration." Cox, 473 S.W.3d at 114. If 
6

reasonable persons can differ about the propriety of the trial court's action, it cannot be said that 

the court abused its discretion. Kline v. City of Kansas City, 334 S.W.3d 632, 642 (Mo. App. 

2011).

4

 In addition, we will not reverse a judgment unless we find that an error "materially 

affected the merits of the action." Cox, 473 S.W.3d at 114. We "will reverse only if the 

prejudice resulting from the improper admission [or exclusion] of evidence is outcomedeterminative." Hurst, 437 S.W.3d at 342.

Statutory Framework

The MHRA was enacted, inter alia, "[t]o . . . eliminate and prevent discrimination 

because of race, color, religion, national origin, ancestry, sex, age as it relates to employment, 

[or] disability." § 213.030.1(1). Pursuant to section 213.055.1(1), it is unlawful for an employer 

to fail or refuse to hire, or to discharge, or to otherwise discriminate "against any individual with 

respect to his compensation, terms, conditions, or privileges of employment, because of such 

individual's race, color, religion, national origin, sex, ancestry, age or disability." Section 

213.010(1) defines "age," in this context, as "forty or more years but less than seventy years." A 

"plaintiff can prove discrimination by showing [that] age or any protected characteristic[] was a 

contributing factor for the employment action regardless if other factors also exist."

5 Hurst, 437 

 

4While we decline to address Reed's claims regarding the denial of her motion for a new trial (see fn. 9,

infra), we note that the standard of review for such a ruling is the same as for the admission or exclusion of 

evidence: an abuse of discretion. See St. Louis Cnty. v. River Bend Estates Homeowners' Ass'n, 408 S.W.3d 116, 

134 (Mo. banc 2013).

5To establish disability discrimination, a plaintiff must establish that "(1) [she] is legally disabled; (2) [she]

was discharged; and (3) the disability was a [contributing] factor in the . . . discharge." See Hervey v. Mo. Dept. of 

Corr., 379 S.W.3d 156, 160 (Mo. banc 2012). A claim of unlawful age discrimination based on discharge under the 

MHRA requires a plaintiff to show that: "(1) the plaintiff is a member of a protected class; (2) the defendant 

discharged plaintiff; (3) plaintiff's age was a contributing factor in such discharge; and (4) plaintiff was damaged." 

Thomas v. McKeever's Enter., Inc., 388 S.W.3d 206, 214 (Mo. App. 2012) (citing §§ 213.055 and 213.111). To 

establish a claim of retaliation, a plaintiff must prove that "(1) [s]he complained of discrimination; (2) the employer 

took adverse action against [her]; and (3) a causal relationship existed between the complaint and the adverse 

action." McCrainey v. Kansas City Mo. Sch. Dist., 337 S.W.3d 746, 753 (Mo. App. 2011); see § 213.070(2). 
7

S.W.3d at 339; see § 213.055.1. The MHRA also provides that it is an unlawful practice to 

"retaliate or discriminate in any manner against any other person because such person has

opposed any practice prohibited by this chapter or because such person has filed a complaint . . . 

pursuant to this chapter." § 231.070(2). In reviewing a case under the MHRA, we look to 

Missouri law but also are guided by federal employment discrimination cases to the extent that 

they are consistent with Missouri law. Cox, 473 S.W.3d at 115. 

Point I: Exclusion of "Me-Too" Evidence

In Point I, Reed argues that the circuit court erred in ordering the "blanket exclusion" of

"me too" circumstantial evidence of discrimination and retaliation, including the testimony of 

three former employees of the District. Reed contends that this evidence was both logically and 

legally relevant to prove her claims, in that it would have demonstrated the discriminatory

motives and intent of the District and Flowers and corroborated Reed's claim of a "pattern and 

practice" of discriminating and retaliating against older or disabled employees. 

Prior to trial, the District filed a motion in limine to prevent the inclusion of any 

testimony or evidence from any former employees (specifically mentioning the deposition 

testimony of Sheila Nichols-Nelson), who claimed that they were similarly discriminated or 

retaliated against on the basis of disability or age -- so-called "me too" evidence. Reed 

responded that granting the motion would prevent her from presenting evidence from which the 

jury could draw inferences of discriminatory intent against employees who were older or had 

disabilities and, thereby, prevent her from proving her case. Reed claimed that this

circumstantial evidence was necessary to give context to her theory of the case and for the

purpose of submitting her claim for punitive damages.
8

Like other forms of evidence, circumstantial evidence must be both logically and legally 

relevant to be admissible. Cox, 473 S.W.3d at 116. "Evidence is logically relevant if it make[s] 

the existence of any fact that is of consequence to the determination of the action more probable 

or less probable than it would be without the evidence." Frazier, 467 S.W.3d at 338. Legal 

relevance requires the trial court to weigh the probative value of the evidence against its costs,

such as "unfair prejudice, confusion of the issues, undue delay, misleading the jury, waste of 

time, or needless presentation of cumulative evidence." Id. If the cost outweighs the usefulness

of the evidence, it is not legally relevant and should be excluded. Id.

Reed relies heavily on Cox, where the Missouri Supreme Court reversed a judgment for 

the defendant in an employment discrimination suit because the trial court erroneously "issued a 

blanket ruling prior to trial excluding the 'me too' testimony of 17 potential witnesses," and 

refused to engage "in a witness-by-witness reexamination of its order when presented with . . . 

new facts in each offer of proof." Cox, 473 S.W.3d at 118-19. Cox applied the rule previously 

expressed by the United States Supreme Court that "per se exclusion of ['me too'] evidence 

would constitute an abuse of discretion" because admissibility of such evidence is "fact based 

and depends on many factors, including how closely related the evidence is to the plaintiff's 

circumstances and theory of the case." Id. at 118 (quoting Sprint/United Mgmt. Co. v.

Mendelsohn, 552 U.S. 379, 387-88 (2008)).

Here, the record shows that the circuit court did not issue a "blanket ruling" but, instead, 

made a separate ruling for each individual witness after hearing evidence and argument for each

proffered witness:

Shelia Nichols-Nelson was deposed in the case, and the District presented a substantial 

portion of her deposition testimony to the court at a pre-trial hearing in arguing that she should 
9

not be allowed to testify at trial. Nichols-Nelson was a tenured teacher who voluntarily resigned 

from her employment with the District. She claimed that she felt forced to resign, but could not 

explain why she felt that way. She testified that, although Flowers helped get her the only 

accommodation that she remembered requesting, she believed that Flowers retaliated against her

because Flowers was "no help" and "didn't give [her] a break."

The trial court excluded Nichols-Nelson's testimony after finding that her circumstances 

were not "similar enough [to Reed's] to get into devolving into her case." The court explained 

that Nichols-Nelson was a tenured teacher (not a secretary, like Reed) and that "the types of 

treatment here do not seem similar enough to make it relevant in this case." When the trial court 

announced its intention to exclude Nichols-Nelson from testifying, Reed's counsel requested an 

opportunity to make an offer of proof during trial, which the trial court granted. Reed never 

made an offer of proof at trial; she simply submitted a full copy of Nichols-Nelson's deposition 

transcript without reference to any portion that would warrant the admission of her testimony.

Here, the trial court considered the evidence submitted by the District as to NicholsNelson's expected testimony, made a ruling based on that evidence, offered Reed an opportunity 

to make a record at trial, and then maintained that ruling when Reed failed to make an offer of 

proof. Reed cannot now be heard to argue that the court erroneously excluded this evidence as

part of a "blanket exclusion" when Reed failed to make a proper offer of proof.

6

 "When a party 

fails to make an offer of proof, nothing is preserved for appeal." Calzaretta v. Willard, 391 

 

6

"An offer of proof must demonstrate the relevancy of the testimony offered, must be specific, and must be 

definite." Karashin v. Haggard Hauling & Rigging, Inc. 653 S.W.2d 203, 205 (Mo. banc 1983). "In order to 

present and preserve an offer of proof, the questions must be propounded to a witness who is present and has taken 

the stand. This enables the trial court to rule upon the propriety and admissibility of the evidence, and preserves a 

record for appellate review." Id.
10

S.W.3d 488, 493 (Mo. App. 2013). "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[.]" Id.

Hersticene Marshall was also a subject of pre-trial discussions. Marshall had not been 

deposed, and so the trial court deferred ruling on the admissibility of her testimony. Reed's offer 

of proof at trial showed that Marshall was a tenured teacher who voluntarily resigned from her 

employment with the District. She claimed to have a physical disability caused by a bulging disc 

in her back. Marshall testified that she requested and eventually received the accommodation of 

transferring her classroom from the second floor to the first floor, but was uncertain about when 

that happened. She also testified that she did not know whether Flowers was the person in 

charge of granting or denying her request to move. The trial court excluded Marshall's 

testimony, holding as follows:

I'm going to exclude the testimony of the witness for these reasons. First of all, 

she is in a completely different circumstance when she is a tenured teacher who

admittedly . . . ended her employment voluntarily. 

She doesn't know who granted or who denied – there's a complete lack of clarity 

about how her request for accommodation was handled. She clearly said she 

doesn't know if April Flowers delayed it, granted it or denied the request to move 

to the first floor classroom. 

I don't think there's anything really that is enlightening here in the issues in this 

case given the lack of factual knowledge that the witness has. Clearly she has bad 

feelings about April Flowers, but I didn't hear anything that factually is related to 

what occurred in this case. 

Rosalind Smith was first introduced at trial, and the trial court heard an offer of proof for 

her testimony. The court actively participated in the inquiry of Smith to determine whether her 

circumstances were similar to Reed's. Smith was also a tenured teacher who voluntarily resigned 

her employment with the District. Smith testified that she had heard Flowers state, in reference 

to another teacher, "if you can't do the job, you need to retire." Smith believed, based on this 
11

statement, that Flowers treated her differently due to her age. Smith's complaint with Flowers 

was limited to age discrimination, not disability or retaliation. 

The trial court allowed Smith to testify about Flowers' purported comment ("if you can't 

do the job, you need to retire") because it was a "direct comment of animus." The court held that 

Smith could testify about the circumstances surrounding that and any similar comments and 

about the circumstances of her own employment with the District. Otherwise, the trial court 

found that Smith's testimony was not relevant and was inadmissible because her circumstances 

were "apples and oranges" to Reed's.

Although the trial court here did not have the benefit of the Cox decision when it made its 

rulings, it was prescient in complying with that decision by fully considering the offers of proof 

for each witness and making evidentiary rulings consistent with the approach described in Cox. 

Cox holds that the factors to be considered by the trial court in assessing the logical evidence, or 

probative value, of "me too" evidence include "the nature of each employee's allegations," and 

whether a plaintiff and the "me too" witnesses were "similarly situated in relevant respects,"

"were treated in a similar manner," and "were otherwise similarly situated." Id. at 122-23.

Here, the trial court properly considered these factors and then excluded both Marshall's 

and portions of Smith's testimony on the basis of Reed's failure to demonstrate that their

circumstances were sufficiently similar to hers, i.e., they were tenured teachers who retired, as 

opposed to being terminated, and their needs for accommodations or interactions with Flowers 

were not similar enough to be logically relevant.

7

 Thus, the trial court did not apply a blanket 

 

7Unlike Reed, none of the "me too" witnesses were terminated from their employment with the District. 

Marshall voluntarily resigned to move to Oklahoma; Smith resigned after being transferred to a different school 

under a supervisor other than Flowers; and Nichols-Nelson testified that she felt forced to resign, but could not say 

why she felt that way. In addition, all were tenured teachers and could not be "forced" to resign because, unlike 

Reed, they had "indefinite" contracts and enjoyed extensive protections under the Missouri Teacher Tenure Act 

(§§ 168.102, et seq.), which the circuit court noted.
12

rule for excluding "me too" evidence, as Reed suggests. Also, unlike in Cox, the court allowed 

Smith to testify about the circumstances of her departure from the District and her age at the time 

of the events in question. Cf. id. at 119 (finding improper blanket exclusion where trial court 

"specifically prohibited ['me too' witnesses] from even saying how old they were, much less 

testifying about their firings or resignations or any relevance of their ages to those events"). 

As noted, circumstantial evidence must be logically and legally relevant to be admissible. 

Cox, 473 S.W.3d at 116. "Determining whether proffered evidence is relevant is subjective, and 

trial courts are afforded considerable discretion in their admissibility rulings." Williams v. Trans 

States Airlines, Inc., 281 S.W.3d 854, 873 (Mo. App. 2009). We will not find an abuse of 

discretion in excluding evidence "unless the materiality and probative value of the evidence were 

sufficiently clear, and the risk of confusion and prejudice so minimal, that we could say that it 

was an abuse of discretion to exclude it." Id. at 872. Here, Reed does not establish that the court 

abused its discretion in finding that the testimony of these witnesses was not sufficiently relevant 

to be admissible. 

In any event, in order to obtain a reversal based on the exclusion of evidence, Reed had 

the burden of demonstrating that the excluded evidence "would have materially affected the 

merits of the cause of action." Id. Reed did not include an allegation of prejudice in her Point 

Relied On and, thus, failed to preserve it. Under Rule 84.04(e), an appellant shall limit argument 

to those errors included in the points. "We do not consider an argument not preserved in the 

Point Relied On." Frazier, 467 S.W.3d at 340.

8

 

8Reed also argues that the "me too" evidence was admissible on the issue of punitive damages, but rulings 

that affect damages issues "cannot be considered so prejudicial as to constitute reversible error" when a defendant 

prevails on liability. See Frazier, 467 S.W.3d at 342.
13

In sum, Reed fails to show that the trial court made a "blanket exclusion" of "me too"

evidence or that it abused its considerable discretion in excluding the evidence in question. 

Unless the trial court has abused its discretion in excluding evidence on relevancy grounds, and 

unless the appellant properly raises and proves prejudice, there is no basis for reversal. Kline, 

334 S.W.3d at 642. Point I is denied. 

Point II: Prior Complaints and Accommodation Requests

In Point II, Reed argues that the circuit court erred in admitting evidence related to her

prior complaints of discrimination and requests for accommodation. She contends that the 

admission of such evidence was far more prejudicial than probative, was not relevant to the time 

period in question, contravened Missouri public policy and the intent of the MHRA, and 

materially affected the outcome of the case.

9

In Reed's motion in limine #14, she sought to exclude the introduction of Exhibits 573, 

548, 552, and 574, all of which were evidence either of Reed's prior disability discrimination 

complaints or requests for accommodations from the District. The trial court ruled at a pre-trial 

hearing that the District could discuss the accommodations Reed had requested and what she had 

been provided, but not that she had filed prior claims with the MHRA (other than the charge that 

was the subject of the lawsuit). Thus, while prior charges of discrimination would not be 

 

9

In Point II, Reed includes the additional claims that the circuit court erred in failing to grant her motion in 

limine and in failing to grant a new trial. First, a trial court's ruling on a motion in limine is interlocutory only and, 

thus, preserves nothing for appeal. Day Advertising, Inc. v. DeVries and Assoc., P.C., 217 S.W.3d 362, 365 (Mo. 

App. 2007). Furthermore, including these multiple claims of error renders the point "multifarious." See Fastnacht 

v. Ge, 488 S.W.3d 178, 184 (Mo. App. 2016) ("Multiple claims of error in one point relied on render the point 

'multifarious' and violate Rule 84.04."). As a general rule, multifarious points preserve nothing for appellate review 

and, thus, are subject to dismissal. Id. While we have reviewed Reed's claim of error in admitting this evidence, ex 

gratia, we exercise our discretion to disregard the other two claims of error contained in Point II. 
14

admitted and would not be characterized that way, any requests for accommodations included in 

those documents would be admitted. 

As noted, as an alternative to "additional staffing," Reed requested a transfer to a high 

school where there were would be multiple secretaries. The District rejected that request 

because Reed had previously been "unsuccessful in a secondary school." During trial, Reed was 

cross-examined about Exhibits 573, 548, 552, and 574, all of which showed that she had been 

unable to cope in the high school environment.

Exhibit 573 is a January 2006 accommodation request written by Reed when she was a 

secretary at Westport High School, in which she sought a transfer from the front office because 

she was "having difficulty concentrating" in the "noisy, high traffic area." Exhibit 548 is Reed's 

October 2007 letter to the MCHR (about a year and a half after her request in Exhibit 573 was 

granted), in which Reed claimed that the change in her environment from the main office to an 

unused counseling office did not constitute a job accommodation and was discriminatory. 

Exhibit 552 is Reed's November 2008 claim of discrimination and retaliation stating that the 

District inappropriately moved her from the back room to the front office "where [her]

disabilities had been affected." Exhibit 574 is a February 2009 letter written by Reed stating that 

she was "suffering from both mental and physical pain" since being returned to the high school 

front office because it "is 'too excessive' for both of my disabilities" and asking to be removed 

from the main office "during regular working hours."

At trial, when Exhibits 573, 548, 552, and 574 were introduced, Reed failed to re-assert 

the objections from her motion in limine, and all were admitted without objection as to their 
15

admissibility.

10

"To properly preserve a challenge to the admission of evidence, [a] party must 

make a specific objection to the evidence at the time of its attempted admission." St. Louis Cnty. 

v. River Bend Estates Homeowners' Ass'n, 408 S.W.3d 116, 125 (Mo. banc 2013); see also 

Swartz v. Gale Webb Transp. Co., 215 S.W.3d 127, 133 (Mo. banc 2007) ("[t]o preserve an 

alleged error in admitting evidence for appellate review, a party must make a timely and valid 

objection and receive an adverse ruling"). By failing to raise any objections to the introduction 

of these exhibits at trial, Reed failed to preserve this claim for appeal, and we will not consider it. 

"[W]e will not convict a trial court of error on an issue that it had no chance to decide." Kline, 

334 S.W.3d at 641 n.4. 

Reed's failure to object to the admission of the four exhibits at trial is fatal to her Point II, 

absent "plain error" review. Under Rule 84.13(c), "[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." However, 

"plain error review is rarely applied in civil cases, and may not be invoked to cure the mere 

failure to make proper and timely objections." Kline, 334 S.W.3d at 647. We decline to exercise 

our discretion to review this claim for plain error. Consequently, Point II is denied. 

Point III: Evidence of Prior Alcohol Abuse

In Point III, Reed argues that the circuit court erred in admitting evidence related to her

past alcohol abuse (including medical records and the testimony of Dr. True), because the 

evidence was not logically relevant to the issues of the lawsuit, was far more prejudicial than

 

10Prior to the offering of Exhibit 552 (and outside the presence of the jury), Reed's counsel objected to it

being referred to as a "charge of discrimination" and asked for redaction from the exhibit of any reference to "charge 

of discrimination," the EEOC, the MCHR, or filing the charge of discrimination with state or local agencies, all of 

which the circuit court granted. Reed's counsel did not object to the actual introduction of Exhibit 552.
16

probative (in that it confused, misled, and poisoned the jury against Reed), and materially 

affected the outcome of the case.11

In a motion in limine, Reed sought to exclude any evidence of her history of alcohol 

abuse. At the pre-trial hearing, the court deferred its ruling on that motion. When Reed's 

counsel objected to introduction of this evidence at trial, the District argued that Reed's doctor 

testified in his deposition that her alcohol abuse "can trigger her mental conditions that are at 

issue in this case independent of her work environment. And so it's highly relevant and 

probative." Noting that the information was used by Dr. True in forming his opinions about 

Reed's disabilities and required accommodations, the trial court overruled the objection. 

The jury was presented with the deposition testimony of Dr. True, Reed's treating 

psychiatrist, regarding Reed's alcohol use. Dr. True testified that he treated Reed for "substance 

abuse" and that Reed "drank" but that he did not request any accommodations for Reed based on 

that, and he did not recall whether Reed had substance abuse issues during the time period of 

2011-12. When presented with Exhibit 704 (an intake form filled out by Reed and her therapist 

on July 22, 2011), Dr. True acknowledged that Reed had self-reported using alcohol during that

time. Exhibit 704 (to which Reed also objected) stated the "date of last use" for alcohol as "3 

weeks," or about July 1, 2011, when Reed became the sole secretary at Satchel Paige. Dr. True

confirmed that Reed's admitted consumption of "a lot" of alcohol on a "daily" basis for 

"symptom relief" and "relaxation" on the intake form would constitute a substance abuse 

problem, and concluded that her alcohol use could potentially "be a trigger for [her] mental 

disabilities" independent of anything going on at work. 

 

11Again, in this Point Relied On, Reed includes the additional claim that the trial court erred "in failing to 

grant a new trial"; we refer the reader to our discussion of multifarious points in fn. 9, supra.
17

The District was also allowed to question Reed about Exhibit 704 and her alleged past 

alcohol abuse. When asked if alcohol "played a part" in her problems in July 2011, Reed stated 

that "[a]t times I would drink a little bit more than I wanted to, to sleep[,]" "when I became 

depressed or couldn't sleep." When asked, "Well, [on the intake form] you provided daily; didn't 

you?" Reed reiterated, "[a]fter work hours to go to sleep." The District also raised Reed's alleged 

alcohol abuse in closing argument. 

The court did not abuse its discretion in finding that evidence of Reed's past alcohol

abuse was relevant to assessing the causes of symptoms associated with her disabilities and the

effectiveness of accommodations requested by her and her physicians. The evidence was highly 

relevant to the decisive issue of whether Reed could perform the essential functions of her job 

even with reasonable accommodations. See Brown v. Hamid, 856 S.W.2d 51, 56 (Mo. banc 

1993) (evidence is relevant if "an offered fact tends to prove or disprove a fact in issue or 

corroborates other relevant evidence"). In other words, if it is not just the stressful work 

conditions but alcohol abuse affecting her mental condition, then modifying her work conditions 

may be futile. 

Even if we were to find that the circuit court abused its discretion in admitting this 

evidence, Reed fails to establish that a different evidentiary ruling would have changed the 

outcome of the trial. Here, the record fully substantiates Reed's significant and ongoing

performance issues and contains overwhelming evidence that Reed could not perform the 

essential functions of her job regardless of what accommodations were provided. "[T]o be 

disabled under the MHRA, [the plaintiff] must be able to show that she has an impairment but 

can work with or without reasonable accommodation." Medley v. Valentine Radford Commc'ns, 

Inc., 173 S.W.3d 315, 321 (Mo. App. 2005) (emphasis added); see also § 213.010(4). Here, the 
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record included Reed's admission that "with my condition I cannot have buzzer, intercom and 

telephone on a desk and perform my job with ease, with or without a job accommodation," and 

Dr. True's opinion that Reed "cannot tolerate closeness to people or supervision," as well as his 

testimony that he knew of no secretarial position at the District where those circumstances were 

not present. In addition, Reed's claim that the District discriminated and retaliated by failing to 

transfer her to a high school or hire additional staff could certainly be perceived as unreasonable. 

See, e.g., Umphries v. Jones, 804 S.W.2d 38, 41 ( Mo. App. 1991) ("Reasonable accommodation 

does not require the employer to reassign an employee or to restructure a job in a way that would 

usurp the legitimate rights of other employees."); Jewell v. Blue Valley Unified Sch. Dist., 210

F.Supp.2d 1241, 1251 (D. Kan. 2002) ("employers are not required to assign existing employees 

or hire new employees to perform certain functions or duties of a disabled employee's job which 

the employee cannot perform by virtue of his or her disability"). 

In sum, the trial court did not abuse its discretion in admitting this evidence, and Reed 

fails to establish that a different evidentiary ruling would have changed the jury's verdict. Thus, 

Point III is denied.

Point IV: Cumulative and Prejudicial Effect of Errors

Reed contends in Point IV that the circuit court erred in failing to grant her a new trial 

because the cumulative effect of the foregoing errors materially affected the jury's ability to 

consider the evidence in its entirety, which, in turn, directly affected the outcome of this case.

We disagree. There was no cumulative prejudicial error. Rulings I through III were all 

individually correct, and Reed cannot establish that different rulings would have resulted in a 

different outcome in light of the overwhelming evidence that she could not perform her job with 

or without accommodations. As we did not find an abuse of discretion in Reed's first three 
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points, and because she failed to show that any prejudice resulted from any of the trial court's 

rulings, we refuse to grant relief for cumulative error. Frazier, 467 S.W.3d at 347. Point denied. 

Conclusion

Reed fails to identify any reversible errors made by the trial court; thus, we affirm the 

judgment.

/s/ JAMES EDWARD WELSH

James Edward Welsh, Judge

All concur.