Defendant Larry Kay took the stand Thursday and defended his reason for terminating a former employee of the Missouri Veterans Commission in 2009.
His testimony came on the fourth day of a trial over a gender, age and sexual harassment lawsuit by Pat Rowe Kerr, former ombudsmen for the commission, who was terminated by Kay in November 2009 for what he said were budgetary constraints.
Kerr's attorney, Jerome Dobson, has implied throughout the trial her job could have been saved.
Kay's reasoning for the termination of her employment has rested on a veto ordered by Gov. Jay Nixon in 2009, stating one full-time position had to be eliminated. Kay claims the veto directed the commission to terminate a special assistant professional, the job classification for Kerr's position.
Kay's understanding of the veto has been tested by Dobson, who said there's no documented proof of the veto cited by Kay. On Wednesday, the former assistant director for budget and planning for the state produced the 2009 document ordering the commission to eliminate a veteran service officer, which was not Kerr's position.
"If you get an order to cut a veteran service officer, don't you have to follow it?" Dobson asked.
"It was the directive of the governor, yes," Kay said.
"You didn't follow that order, did you?" Dobson asked.
"I felt like I did," Kay said.
Kay maintains the veto instructed the office to eliminate a special assistant professional but has not been able to produce a document stating that directive.
"(Your decision to terminate Kerr) is all based on that, and there is no document you can produce that shows it," Dobson said. "Why are we here seven years after the fact and you don't have it, your team doesn't have it, the state of Missouri doesn't have it? Maybe because it doesn't exist?"
There was a vacant special assistant professional position in the central office with a roughly $74,000 annual salary; no one had held the position for five years. Dobson questioned why Kay didn't request an appeal from the Office of Administration to eliminate the vacant position.
"My understanding was the veto was about real money and real people," Kay said. "We're not spending money (on the vacant position)."
He thought he had no other option than to terminate a current employee. When determining which position he should eliminate, Kay said he considered terminating the human resources director, but her position was integral to the operation of the commission. He wanted the cut to come from the central office so Kerr was the only logistical option, he said.
Two employees - Kerr and Superintendent of Homes Anne Payne - were terminated, and one employee retired.
After Kerr's termination, former budget director Linda Luebbering emailed Kay, asking why Kerr was terminated. Kay replied the three positions would be consolidated. He did not cite the veto as a reason why Kerr's position was eliminated.
In an email interview in 2009 with Jefferson City News Tribune reporter Bob Watson, Kay had a similar response. He explained the terminated employees were due to budget constraints, and the positions would be eliminated and the jobs would be consolidated.
However, Kay testified Thursday Payne's position was filled and renamed director of homes. He said Thursday Payne was not fired because of the budget but because he'd "lost faith in her ability to lead."
Dobson asked about the different reasoning Kay cited for the termination. Kay admitted his communication about her firing was misleading and unclear.
Kerr previously held the ombudsmen and senior outreach adviser when the positions were melded together. Kerr has testified Kay "berated her" to take the senior outreach adviser position when he decided the jobs should be split. Kay said he "pressured her" to make a decision but never forced her to choose outreach, which is classified as special assistant professional and was terminated several months later.
Kay said he didn't believe he'd have to make any employee cuts when she changed jobs in July. In years past, the Missouri House and Senate have overruled the governor's vetoes for the veterans commission, and he thought they might do it again.
In response to Kay's testimony, Dobson presented documents to the court showing some male employees were given significant raises and promotions during the 2009-10 fiscal year when the three positions were eliminated. Dobson cited one example where a male employee had received up to a $40,000 salary increase due to raises and promotions.
Dobson also introduced documents showing the commission ended the fiscal year with a surplus of $256,000.
The final testimonies Thursday were from Jerry Hodge, a current veteran service officer, and Tim Morff, a former employee of the Office of Administration who was assigned to the commission.
Both said they heard management make discriminatory comments regarding age and gender.
Hodge said he heard former deputy director Bryan Hunt say during a staff meeting, "We need to get rid of the older people." Although, Hodge doesn't remember any context about the statement or anything else Hunt said before, during or after the meeting.
Morff said he also heard the comment and remembers Kay being present. Morff recalled a separate instance when Kay said something to the effect of, "Women can't do men's jobs." He did not know the context of that statement.
During Morff's time at the commission office, he remembered one instance when Kay had been in Kerr's office, and he heard Kay raising his voice through the closed door. He did not know what Kay was saying or the context. Kerr appeared to be upset, but Morff did not ask her for details about the incident.
Testimony is expected to continue through next week.
Previous coverage:
Budget constraints questioned during Kerr trial, July 14, 2016
Kerr testifies as trial continues, July 13, 2016
Kerr's harassment suit spills into court, July 12, 2016
Pat Rowe-Kerr sues Veterans Commission, Kay on several issues, July 26, 2011