I. Introduction
Dr. Shereen Kader, Ph.D., an
Egyptian national, worked for Harris-Stowe State University from 2007-2009.[1]
In 2009, a new dean evaluated Dr.
Kader’s performance.[2]
Dr. Kader believed her scores on the
performance evaluation were unfair and discriminatory.[3]
Dr. Kader wanted to bring her attorney
to a human resources meeting planned to take place between the new dean and Dr.
Kader.[4]
In response, the new dean allegedly told
Dr. Kader that bringing her attorney to the meeting would result in “visa complications”
– the alleged statement was significant to Dr. Kader because her ability to
live and work in the United States depended on acquiring a new visa when her
then-current visa expired in 2010.[5]
Shortly before Dr. Kader’s visa expired,
she applied for a different visa – known as an “extraordinary person” visa –
but was denied.[6]
Harris-Stowe did not appeal the denial
and soon thereafter declined to renew Dr. Kader’s teaching contract based on
her lack of a valid visa.[7]
Dr. Kader sued under the Missouri Human
Rights Act (“MHRA”), alleging that Harris-Stowe unlawfully retaliated against
her and unlawfully discriminated against her based on her race and national
origin.[8]
After a jury trial, Dr. Kader was
awarded $750,000 in compensatory and $1.75 million in punitive damages on her
retaliation and national origin discrimination claims.[9]
However, Harris-Stowe appealed, arguing
the jury instructions in the case were “erroneous and prejudicial.”[10]
The Supreme Court of Missouri agreed,
and the judgment in favor of Dr. Kader was reversed and remanded for a new
trial.[11]
II. Facts and Holding
Dr.
Shereen Kader, Ph.D., is an Egyptian national who, after teaching in Egypt,
immigrated to the United States in 1999 to pursue graduate education.[12]
Following her arrival in the United
States, Dr. Kader first earned a master’s degree in literacy from Indiana
University.[13]
She then pursued a Ph.D. in early
childhood education, creativity, and innovation at Pennsylvania State
University (“Penn State”).[14]
She accepted a teaching position at
Harris-Stowe in 2007 just before completing her Ph.D.[15]
Dr. Kader was promoted to assistant
professor after earning her doctorate degree, and Harris-Stowe elected to renew
Dr. Kader’s teaching contract each year from 2007-2009.[16]
In
2009, a new dean, Dr. LaTisha Smith, was hired in the college of education.[17]
Dean Smith was Dr. Kader’s supervisor
and as such evaluated Dr. Kader’s teaching performance in 2009.[18]
The evaluation entailed scoring Dr.
Kader’s performance in sixteen different areas; scores ranged from one to five,
with one indicating unsatisfactory performance and five indicating outstanding
performance.[19]
Dean Smith gave Dr. Kader fives in
twelve out of sixteen categories, and in the remaining four categories gave Dr.
Kader fours (in the scoring system, a four indicates “excellent” performance but
not “outstanding” performance).[20]
Dean Smith stated the less-than-perfect
scores were the result of student complaints, but Dr. Kader felt they were the
result of discrimination based on her race, religion, and national origin and
subsequently lodged a formal complaint with Harris-Stowe.[21]
Dr. Kader and Dean Smith were scheduled
to meet with the human resources department but Harris-Stowe canceled the
meeting when Dr. Kader stated that she would be bringing an attorney to the
meeting with her.[22]
According to Dr. Kader, Dean Smith
stated that bringing her attorney might result in “visa complications.”[23]
“Dr.
Kader was authorized to reside and work in the United States during her time at
Harris-Stowe pursuant to a J-1 visa, a non-immigrant visa for individuals
approved to participate in work- and study-based exchange visitor programs.”[24]
J-1 visas require an employer sponsor,
and even though Harris-Stowe supplied information to maintain Dr. Kader’s J-1
visa while she was on the faculty, her J-1 was “officially sponsored” by Penn
State from 2007-2010.[25]
When Dr. Kader joined the faculty,
Harris-Stowe indicated it would help Dr. Kader obtain a new visa when her J-1
expired in 2010.[26]
J-1 visa holders typically return to
their home countries for a two-year waiting period after their J-1 visa
expires, at which time they may reapply for a new visa if they wish to return
to the United States.[27]
However, individuals can apply for a
waiver of the two-year waiting period.[28]
Not wanting to return to Egypt, Dr.
Kader applied for a waiver.[29]
If she did not receive a waiver before
her J-1 status expired, she would be required to return to Egypt within thirty days
of her J-1 expiration unless she could acquire a new visa.[30]
Dr. Kader applied for and hoped to be
granted an HB-1 visa.[31]
If she were granted a waiver of the
two-year waiting period and an HB-1 visa, she could continue working at
Harris-Stowe.[32]
While
Dr. Kader waited to discover whether she would be granted a waiver and an HB-1
visa, she also applied for an O-1 “extraordinary person” visa in a “final
effort to maintain work authorization.”[33]
At Dr. Kader’s request, Harris-Stowe
provided documentation to supplement Dr. Kader’s O-1 application.[34] However, weeks passed without word about her
O-1 application, which prompted Dr. Kader to contact the visa agency
responsible for issuing O-1 visas.[35]
Dr. Kader was told the agency needed
more information and had requested such information from Harris-Stowe but had
never received a response.[36]
Dr. Kader contacted Harris-Stowe two
days before her J-1 visa expiration and was told that Harris-Stowe had never
received a request from the visa agency.[37]
Dr. Kader’s O-1 visa application was
denied, and Harris-Stowe did not appeal.[38]
Harris-Stowe then contacted Dr. Kader
and told her that because she lacked a valid visa it would not renew her
teaching contract.[39]
Dr.
Kader sued Harris-Stowe under the MHRA, alleging race and national origin
discrimination in addition to unlawful retaliation.[40]
After a jury trial, Dr. Kader was
awarded $750,000 in compensatory and $1.75 million in punitive damages on her
retaliation and national origin discrimination claims.[41]
The circuit court entered judgment on
the jury’s verdict.[42]
Harris-Stowe appealed, arguing the jury instructions
in the case were “erroneous and prejudicial.”[43]
In particular, instruction Nos. 8 and 9
were at issue.[44]
Both instructions were verdict
directors; instruction No. 8 dealt with Dr. Kader’s national origin
discrimination claim and instruction No. 9 dealt with Dr. Kader’s retaliation
claim.[45]
Instruction No. 8 as submitted to the
jury read as follows:
Your verdict must be for Plaintiff
on Plaintiff’s national origin discrimination claim if you believe:
First, either:
Defendant did not respond to the
USCIS request for evidence to support the O-1 Visa Petition; or
Defendant did not appeal the denial of the O-1 Visa Petition; or
Defendant did not renew Plaintiff’s
employment contract; or
Defendant denied Plaintiff a work
leave of absence; and
Second, Plaintiff’s national origin
was a contributing factor in Defendant’s conduct in any one or more of the
respects submitted in paragraph First, and
Third, such conduct directly caused
or directly contributed to cause damage to Plaintiff.[46]
Instruction No. 9 as submitted to
the jury read as follows:
Your verdict must be for Plaintiff
on Plaintiff’s claim for retaliation if you believe:
First, Plaintiff made complaints of
discrimination, and
Second, either:
Defendant did not respond to the
USCIS request for evidence to support the O-1 Visa Petition; or
Defendant did not appeal the denial of the O-1 Visa Petition; or
Defendant did not renew Plaintiff’s
employment contract; or
Defendant denied Plaintiff a work
leave of absence; or
Defendant opposed Plaintiff’s application
for unemployment benefits; and
Third, Plaintiff’s complaints of
discrimination were a contributing factor in any such actions described in the
preceding paragraph Second, and
Fourth, such conduct directly
caused or directly contributed to cause damage to Plaintiff.[47]
Harris-Stowe
claimed the instructions “permitted the jury to find Harris-Stowe liable for
conduct that is not actionable under the MHRA, resulting in prejudice.”[48]
Specifically, Harris-Stowe argued that its
failure to appeal the decision denying Dr. Kader an O-1 visa did not constitute
an unlawful employment practice under the MHRA and was therefore improperly
submitted to the jury in the disjunctive jury instructions.[49]
The Supreme Court of Missouri agreed.[50] The judgment of the circuit court was
reversed and the case was remanded for a new trial on Dr. Kader’s retaliation
and national origin discrimination claims.[51]
III. Legal Background
Jury instructions are a
critical component in any case that proceeds to a jury trial. The purpose of jury instructions is to inform
jurors what the law is and guide jurors in their decisionmaking. “Instructions must be given to the jury to explain
how its determination of the facts affects the outcome.”[52]
Whether
a jury was properly instructed is a question of law reviewed de novo.[53]
“A jury verdict will not be reversed on
the ground of instructional error unless it appears that the instruction ‘misdirected,
misled, or confused the jury, resulting in prejudice to the party challenging
the instruction.’”[54]
Courts determine whether an instruction
misdirected, misled, or confused the jury by asking “whether an average juror
would correctly understand the applicable rule of law being conveyed by the
jury instruction.”[55]
The party challenging an instruction has
the burden of demonstrating that the jury was misdirected, misled, or confused.[56]
Reversal is only warranted when
instructional error results in prejudice that materially affects the merits of
the case.[57]
Conjunctive
verdict directing instructions are prohibited in Missouri; disjunctive verdict
directors are the proper method for submitting alternative theories to the
jury.[58]
When disjunctive verdict directors are
submitted, “each alternative must be supported by substantial evidence.”[59]
“A disjunctive instruction is
prejudicial when substantial evidence does not support each disjunctive
alternative because ‘there is no way of discerning which theory the jury chose.’”[60]
And, of course, jury instructions must be accurate statements of the law.[61]
IV. Instant Decision
The Supreme Court of Missouri
unanimously agreed instructions Nos. 8 and 9 submitted to the jury in the present
case were prejudicial and required reversal of the circuit court’s judgment on
the jury verdict.[62]
Recall that instruction No. 8 read as
follows:
Your verdict must be for Plaintiff
on Plaintiff’s national origin discrimination claim if you believe:
First, either:
Defendant did not respond to the
USCIS request for evidence to support the O-1 Visa Petition; or
Defendant did not appeal the
denial of the O-1 Visa Petition; or
Defendant did not renew Plaintiff’s
employment contract; or
Defendant denied Plaintiff a work
leave of absence; and
Second, Plaintiff’s national origin
was a contributing factor in Defendant’s conduct in any one or more of the
respects submitted in paragraph First, and
Third, such conduct directly caused
or directly contributed to cause damage to Plaintiff.[63]
Dr.
Kader sued under the MHRA; thus, in order for this instruction to be proper,
Dr. Kader must have submitted substantial evidence at trial demonstrating that
“Harris-Stowe’s failure to appeal the denial of Dr. Kader’s O-1 visa
application was an ‘unlawful employment practice’ under the MHRA.”[64]
Under the MHRA, unlawful employment
practices include those – when based on prohibited classifications like
national origin – that affect the “terms, conditions, or privileges” of
employment or practices that “otherwise adversely affect [an employee’s] status
as an employee.”[65]
Though “privileges of employment” are
not specifically defined in the MHRA, Dr. Kader argued she was denied a
privilege of employment when Harris-Stowe did not appeal the decision denying
her O-1 visa.[66]
In the absence of a statutory
definition, the Supreme Court of Missouri looked to the plain meaning of the
word “privilege.”[67]
Using Webster’s Dictionary, the court found a privilege to be that which is “a
right ... granted as a peculiar benefit, advantage, or favor.”[68]
The court found that Dr. Kader had
presented no evidence demonstrating either that: 1) Harris-Stowe specifically
agreed to appeal a denial of the visa; 2) it was Harris-Stowe’s usual practice
to appeal visa denials; or 3) Harris-Stowe appealed denials “for some employees
but not for Dr. Kader.”[69]
Furthermore, though Dr. Kader argued the
failure to appeal “adversely affected her status as an employee,” the court
found that her “ineligibility for the visa prevented her from receiving it” and
that Harris-Stowe’s decision not to appeal therefore did not have an impact on
her employment status.[70]
The court found the instruction was
therefore improper because failure to appeal the O-1 denial was not an unlawful
employment practice under the MHRA.[71]
As
for Dr. Kader’s retaliation claim, the court reiterated that although the MHRA
proscribes any manner of retaliation,[72]
“the ‘manner’ in which an employer retaliates must nevertheless have some
adverse impact on the plaintiff before it becomes actionable.”[73]
The court reiterated that Dr. Kader had not presented enough evidence
demonstrating that she had a chance of success at receiving the O-1 visa, and
therefore Harris-Stowe’s failure to appeal the denial did not adversely impact
Dr. Kader.[74]
Without an adverse impact, the failure
to appeal the O-1 denial was not actionable retaliation under the MHRA.[75]
Instruction No. 9 was therefore also
improper because it authorized the jury to find for Dr. Kader based on the
failure to appeal the denial of the O-1 visa. Recall that Instruction No. 9 read as follows:
Your
verdict must be for Plaintiff on Plaintiff’s claim for retaliation if you believe:
First,
Plaintiff made complaints of discrimination, and
Second,
either:
Defendant
did not respond to the USCIS request for evidence to support the O-1 Visa
Petition; or
Defendant
did not appeal the denial of the O-1 Visa Petition; or
Defendant
did not renew Plaintiff’s employment contract; or
Defendant
denied Plaintiff a work leave of absence; or
Defendant
opposed Plaintiff’s application for unemployment benefits; and
Third,
Plaintiff’s complaints of discrimination were a contributing factor in any such
actions described in the preceding paragraph Second, and
Fourth,
such conduct directly caused or directly contributed to cause damage to
Plaintiff.[76]
Because the failure to appeal the denial of the O-1 visa constituted neither an “unlawful employment practice” nor an actionable retaliation under the MHRA, instruction Nos. 8 and 9 were “erroneous and prejudicial.”[77] The judgment of the circuit court was reversed and the Supreme Court of Missouri remanded the case for retrial of Dr. Kader’s national origin discrimination and retaliation claims.[78]
V. Comment
The
importance of jury instructions cannot be overstated. Erroneous and prejudicial jury instructions
remain a common reason why verdicts are reversed and cases remanded for
retrial. In the instant case, Dr.
Kader’s submission to the jury that Harris-Stowe’s refusal to appeal the denial
of her O-1 visa could constitute a basis for liability was erroneous. Dr. Kader failed to demonstrate that such an
appeal was a privilege of her employment, and she therefore could not
demonstrate that Harris-Stowe’s refusal to appeal her denial constituted an
“unlawful employment practice” under the MHRA. Nor could Dr. Kader demonstrate (as
retaliation under the MHRA requires) that Harris-Stowe’s actions were the cause
of any adverse impact on her employment status – the root of such adverse
impact was instead her ineligibility for the visa for which she applied. The jury instructions were therefore erroneous
because they permitted the jury to find for Dr. Kader despite a lack of
substantial evidence that the failure to appeal the O-1 denial was cognizable
retaliation or discrimination. Such a
mistake was prejudicial and required reversal.
Though
Dr. Kader will have another opportunity to try her national origin
discrimination and retaliation claims, the reversal of her sizable judgment was
undoubtedly disappointing to her. The
instant case serves as a reminder of the importance of jury instructions and
the consequences of improperly instructing a jury.
–
Taylor Payne
[1]
Kader v. Bd. of Regents of Harris-Stowe State Univ., No. SC 97069, 2019 WL
191090, at *1 (Mo. Jan. 15, 2019) (en banc).
[2]
Id.
[3]
Id.
[4]
Id.
[5]
Id.
[6]
Id. at *1–2.
[7]
Id. at *2.
[8]
Id.
[10]
Id.
[11]
Id. at *1.
[12]
Id.
[13]
Id.
[14]
Id.
[15]
Id.
[16]
Id.
[17]
Id.
[18]
Id.
[19]
Id.
[20]
Id.
[21]
Id.
[22]
Id.
[23]
Id.
[24]
Id.
[25]
Id.
[26]
Id.
[27]
Id.
[28]
Id.
[29]
Id.
[30]
Id.
[31]
Id.
[32]
Id.
[33]
Id. at *2.
[34]
Id.
[35]
Id.
[36]
Id.
[37]
Id.
[38]
Id.
[39]
Id.
[40]
Id.
[42]
Id.
[43]
Id.
[44]
Id.
[45]
Id.
[46]
Id. at *3 (emphasis omitted).
[47]
Id. at *5 (emphasis omitted).
[48]
Id. at *2.
[49]
Id.
[50]
Id.
[51]
Id. at *1.
[52]
John C. Milholland, Mo. Approved Jury Instr. (Civil), Why and How to Instruct a Jury (Stephen H.
Ringkamp, 7th ed.) (last updated Aug. 2018).
[54]
Livingston
v. Baxter Health Care Corp., 313 S.W.3d 717, 727–28 (Mo. Ct. App. 2010) (quoting
Rive v. Bol, 116 S.W.3d 599, 606 (Mo. Ct. App. 2003)); see also Ross-Paige, 492 S.W.3d at 172.
[56]
Ross-Paige, 492 S.W.3d at 172.
[57]
Hervey v. Mo. Dep’t of Corr., 379 S.W.3d 156, 159 (Mo. 2012) (en banc).
[60]
Kader v. Bd. of Regents of Harris-Stowe State Univ., No. SC 97069, 2019 WL
191090, at *3 (Mo. Jan. 15, 2019) (en banc).
[61]
Spring v. Kansas City Area Transp. Auth., 873 S.W.2d 224, 226 (Mo. 1994) (en
banc) (“An instruction must be a correct statement of the law.”).
[62]
Kader, 2019 WL 191090, at *1.
[63]
Id. at *3 (emphasis in original).
[64]
Id.
[66]
Kader, 2019 WL 191090, at *3.
[67]
Id.
[68]
Id.
[69]
Id.
[70]
Id. at *4. The O-1 visa is reserved for truly exceptional
persons – “that small percentage [of persons] who have risen to the very top”
of their field. 8 C.F.R. § 204.5(h)(2)
(2017). The court did “not wish to
diminish the significance of Dr. Kader’s academic achievements” but found she
had not met those very restrictive criteria. Id.
[71]
Id.
[72]
Id. at *5.
[73]
Id. (citing McCrainey v. Kan. City
Mo. Sch. Dist., 337 S.W.3d 746, 753 (Mo. Ct. App. 2011)).
[74]
Id.
[75]
Id. at *5–6.
[76]
Id. at *5 (emphasis in original).
[77]
Id. at *6.
[78]
Id.
