Tuesday, August 14, 2012

Hervey v. Missouri Department of Corrections[1]

Opinion handed down August 14, 2012

Plaintiff Deborah Hervey sued her employer, the Missouri Department of Corrections, under the Missouri Human Rights Act for discriminating against her because of her disability.[2]  The department contested whether Ms. Hervey had a disability at all and defended its decision to terminate her for poor performance.[3]  Despite the department’s objection, the trial court submitted Ms. Hervey’s verdict-directing instruction to the jury instead of the department’s alternate verdict director, which included a separate paragraph requiring the jury to specifically find that Ms. Hervey was indeed disabled in order to find for her.[4]  The jury returned a verdict in Ms. Hervey’s favor for both the discrimination and the retaliation claims.[5]  Ms. Hervey was awarded actual and punitive damages for the disability discrimination claim.[6]  The department appealed and claimed the trial court erred in (1) overruling its objection to Ms. Hervey’s verdict director that did not require the jury to specifically find Ms. Hervey was disabled, as required by the MHRA, and (2) awarding excessive punitive damages as a result of failing to calculate the total in accordance with Section 510.265, RSMO 2011.[7]  On appeal, a majority of the Supreme Court of Missouri agreed with the department, and reversed and remanded the judgment of the trial court since Ms. Hervey’s proffered instruction did not require the jury to find an element that was essential to her MHRA claim.[8]

I.  Facts & Holding

Ms. Hervey was employed by the Missouri Department of Corrections (“the department”) as a probation officer on three separate occasions: from 1983 to 1986; from 2002 to 2005; and from 2007 until her termination nine months later, the action from which this case arose.[9]  Upon being rehired in 2007, Ms. Hervey told the department she had at mental disorder and requested several accommodations.[10]  Some of the requests were granted, but others were denied.[11]  One of the accommodations  Ms. Hervey asked for was to participate in the three-week core training that the department provided for all employees with a gap in employment of two years or more, despite her absence being just shy of the two-year mark.[12]  The department denied the accommodation request and, without providing training or guidance, subjected Ms. Hervey to a probationary period of nine months.[13]  After nine months, the department claimed Ms. Hervey failed to carry a full workload and subsequently discharged her.[14]

At trial, the department contested the existence of Ms. Hervey’s disability and objected to her verdict director because it did not require the jury find that she was indeed disabled, an essential element of her MHRA claim.[15]  The department offered an alternate instruction that included a paragraph specifically requiring the jury to find Ms. Hervey had a disability, but it was rejected and the department’s objection to Ms. Hervey’s instruction was overruled.[16]  The trial court gave Ms. Hervey’s instruction to the jury.[17]  The jury returned a verdict for Ms. Hervey and the trial court entered judgment for Ms. Hervey for $127,056 in actual damages, $97,382.50 for attorney fees, $32,288 in front pay and $1,303,632.50 in punitive damages.[18]  The department appealed and alleged the trial court erred by overruling the department’s objection to Ms. Hervey’s verdict director.[19] 

On appeal, the Supreme Court of Missouri reversed and remanded the trial court’s holding.[20]  While Ms. Hervey’s jury instruction was modeled after Missouri Approved Instructions (“MAI”) 31.24, and even though it included the phrase “disability was a contributing factor,” it did not require the jury expressly find that Ms. Hervey was disabled.[21]  A plaintiff must prove he or she is a member of a protected class under the MHRA, which is one of three essential elements.[22]  As a result, the Supreme Court of Missouri found that the trial court erred by overruling the department’s objection to Ms. Hervey’s verdict director.[23]  Furthermore, the trial court’s error resulted in prejudice that materially affected the merits of the action because the proffered instruction relieved Ms. Hervey from proving a fundamental element of her claim.[24] The department never conceded that Ms. Hervey was disabled.[25]  Therefore, MAI 31.24 was not appropriate since it did not provide direction to the court when the defense contested the plaintiff’s disability.[26]

Ms. Hervey disputed the department’s claim of error and argued that MAI 31.24 states that the jury must find her disability was a contributing factor to her injury and therefore it was implied that the jury found her to be disabled since it found for her.[27]  The Supreme Court of Missouri had already rejected such an argument in Spring v. Kansas City Area Transportation Authority, however, finding that an instruction must hypothesize every element and may assume no element.[28]  

Because the Supreme Court of Missouri reversed the judgment on appeal, Ms. Hervery’s punitive damages award was also reversed.[29]  Still, the Court addressed Ms. Hervey’s claim regarding the proper way to calculate the “net amount of judgment” pursuant to section 510.265.[30]  An issue of first impression, the Court determined that the plain and ordinary meaning of the word “net” combined with the legislature’s intention, which was displayed by choosing the term “judgment” as opposed to “damages,” indicated that the trial court did not err by including attorney fees in the calculation of the net amount of the judgment.[31]  Ms. Hervey was entitled to attorney fees as an award under section 213.111, and as such it was proper to include the award in the sum of the judgment.[32]

The dissent believed the error in the verdict director was not prejudicial.[33]  Unlike the majority, which focused on the lack of an express finding that Ms. Hervey was disabled, the dissent believed that the jury instructions as a whole did require the jury to find she was disabled.[34]  Even though a specific paragraph was not dedicated to the disability element, the trial court provided a definition of disability, which the dissent claimed should have enabled the Court to draw the conclusion that the jury must have contemplated Ms. Hervey’s disability.[35] 

II.  Legal Background

A claim of disability discrimination under section 213.111 of the Missouri Human Rights Act (“MHRA”) requires the plaintiff prove that: (1) he or she is legally disabled; (2) he or she was discharged; and (3) disability was a factor in his or her discharge.[36] 

In Lasky v. Union Electric Company, the Supreme Court of Missouri explained that the purpose of a verdict directing instruction is to submit and hypothesize findings of fact to be determined or rejected by the jury.[37]  Consequently, a verdict director that does not hypothesize all of the disputed elements will be inadequate because assuming a disputed fact constitutes error.[38]  Pursuant to Bach v. Winfield-Foley Fire Protection District, instructional errors are only reversed if they result in prejudice that materially affected the merits of the case.[39]  The party opposing the instruction must prove prejudice by illustrating that the instruction “misdirected, misled, or confused the jury.”[40]

Normally, when there is an MAI on point with the facts of the case that instruction shall be given and all others excluded.[41] Departing from an applicable MAI rule generally constitutes error in and of itself.[42]  Nevertheless, State v. Celis-Garcia clearly indicates that when an MAI does not accurately state the elements of the law at issue, the MAI should not be given.[43]  In most MHRA discrimination cases, the plaintiff’s disability is not at issue.[44]  As such, MAI 31.24 is sufficient since the uncontested disability squarely places the defendant in one of the classifications covered by the MHRA.[45]  The appropriate protected classification can then be inserted into MAI 31.24 without worrying about whether all of the elements of the claim were proven since the element was not disputed.[46]  However, when the first essential element of an MHRA disability claim (that the plaintiff is a member of a protected class) is disputed, MAI 31.24 is insufficient because it does not hypothesize the element as a separate fact; rather, it assumes the element was proven.[47]

In Spring v. Kansas City Area Transportation Authority, the Supreme Court of Missouri held that when an underlying implication of an instruction assumes and does not hypothesize the existence of an essential element, the jury is robbed of its opportunity to determine for itself whether the element was sufficiently proven or not.[48]  Furthermore, the Court referenced Brown v. Van Noy, an appellate level case that relied on Spring.[49]  Brown required each essential element of a claim be set out in a separate paragraph so the jury focuses on each individually.[50]  If a disputed fact is assumed in the verdict director, and the verdict director is submitted to the jury, the submission of the instruction is considered prejudicial error.[51]

III.  Comment

The majority opinion correctly states the applicable law and resolves the case in a satisfactory fashion because it is imperative that jurors scrutinize each element of a claim completely and independently.  The first essential element of Ms. Hervey’s MHRA claim was disputed.  As such, the finding that she was disabled should have been written in a separate paragraph in the verdict director and expressly found by the jury pursuant to Brown and Spring.  It was not, however, and according to Lasky, the submission of such an instruction constitutes prejudicial error because it assumes facts rather than hypothesizing them and allowing the jury to determine their existence.  The Supreme Court of Missouri correctly reversed and remanded the trial court’s holding.

Although the dissenting opinion may appeal to common sense, it is not the correct interpretation of the law.  The dissent’s argument is attractive and simple: the verdict director required the jury to find that Ms. Hervey’s disability was a contributing factor and therefore, the instruction as a whole required the jury to find that Ms. Hervey was in fact disabled.  Unfortunately, the argument’s simplicity is its downfall, and the dissent oversimplifies the law.  Jurors are not experts in the issues of fact they pass judgment upon.  For this reason, jury instructions must explicitly direct jurors to the crucial issues.  An essential element of a claim is about as crucial an issue as there is, and Ms. Hervey’s instruction failed to highlight it.

-  Joe Palumbo

[1]  No. SC92145 (Mo. Aug. 14, 2012) (en banc).  The West reporter citation is Hervey v. Mo. Dept. of Corr., 379 S.W.3d 156 (Mo. Aug. 14, 2012) (en banc).
[2]  Id. at 3.
[3]  Id. at 2-3.
[4]  Id. at 3.
[5]  Id.
[6]  Id.
[7]  Id. at 4.
[8]  Id. at 2.
[9]  Id.
[10]  Id.
[11]  Id.
[12]  Id.
[13]  Id.
[14]  Id. at 3.
[15]  Id.
[16]  Id.
[17]  Id.
[18]  Id. at 4.
[19]  Id.
[20]  Id at 1.
[21]  Id. at 4.
[22]  Id. at 6.
[23]  Id. at 1.
[24]  Id. at 5.
[25]  Id.
[26]  Id. at 8.
[27]  Id.
[28]  Id.
[29]  Id. at 13.
[30]  Id.
[31]  Id. at 17.
[32]  Id.
[33]  Id. at 10.
[34]  Id.
[35]  Id.
[36]  Id. at 6.
[37]  936 S.W.2d797, 800 (Mo. banc 1997).
[38]  Id.
[39]  257 S.W.2d 605, 608 (Mo. banc 2008).
[40]  Id.
[41]  Hervey, slip op. at 5.
[42]  Id.
[43]  344 S.W.3d 150, 158 (Mo. banc 2011)).
[44]  Hervey, slip op. at 7.
[45]  Id.
[46]  Id.
[47]  Id.
[48]  873 S.W.2d 224, 226 (Mo. banc 1994).
[49]  879 S.W.2d 667 (Mo. App. 1994).
[50]  Id.
[51]  Hervey, slip op. at 10.