Lincoln University seeks reversal of 2015 jury verdict

State appeals court hears lawsuit on WWU campus

FULTON, Mo. - Lincoln University wants the state appeals court to overturn a Cole County jury's March 2015 verdict that LU discriminated against Kenneth Ferguson when it terminated his job in August 2012 - and that the Jefferson City school owes Ferguson $104,901.

"Context is everything," LU attorney Kent Brown told a three-judge panel of the state appeals court Wednesday afternoon at a hearing in William Woods University's mock courtroom in Fulton.

"The context of what occurred in this case is a discussion - which was as simple as questioning an individual who was slated to be let go because of budget constraints, whether he was going to retire - and then making plans as to whether he would retire or not," he added.

Michael Berry, Ferguson's lawyer, told the court: "Missouri has a definition of discrimination; it is any unfair treatment."

Ferguson was 60 at the time of his termination but was eligible for retirement because his age plus years of service were more than 80.

"You have to look at the purpose of the age-discrimination prohibition - the purpose is to prevent invidious, threatening, stereotyping sorts of treatment of aged individuals," Brown said. "We're talking about evidence - not the policy - of age discrimination."

Berry countered: "These weren't minor discussions about retirement."

Curtis Creagh, who was Lincoln's vice president for Academics and Finance in 2012, recommended the terminations to then-President Carolyn Mahoney as his response to a directive to save money. At the time, LU administrators feared a 12.5 percent cut in state aid.

Brown acknowledged the final cut was only 1 percent, but officials didn't know that until after Ferguson was told his job was being cut. Ferguson was LU's government affairs official at the time, after nearly 40 years in several jobs.

He said Creagh's rationale included his own ability to take over Ferguson's duties.

But, Berry told the court, Creagh's email recommending the two terminations noted Ferguson was eligible to retire at the time of his termination.

"I can give up his position and departmental expenses if necessary," Berry said Creagh wrote. "And he put it in his initial budget proposal."

Chief Judge Alok Ahuja asked if that wasn't just a discussion about the timing of the terminations, not whether they should be made.

Berry said the jury could have taken it that way but didn't.

Brown said the jury "didn't have to accept Mr. Creagh's testimony, but they couldn't create (discrimination) out of thin air."

The judges questioned why the jury couldn't decide there was discrimination when the two people dismissed saved about $135,000, at the same time a 2 percent raise given the remaining employees cost more than $500,000.

"We can't let the jury second-guess business decisions, because the decision to starve every one else in order to feed these two positions is a decision that, respectfully, neither you nor the jury get to make," Brown said. "It's the appointed leaders of Lincoln University who make that decision."

The judges pointed to Ferguson's grievance hearing, where panel member K.D. Paul told Ferguson he could justify letting an older person go while keeping a younger person who has fewer resources and more obligations.

"That was stray comment," Brown said. "Dr. Paul was not stating (that) - he was asking in an open forum."

And, he argued, the grievance hearing came after Ferguson's dismissal and shouldn't have been included as proof LU administrators discriminated against Ferguson.

Berry said: "It is unfair to say "you don't need the money as much' as someone else."

Judges Ahuja, Mark Pfeiffer and Karen King Mitchell didn't say when their decision in the case would be released.