Crisp v. Mo. Sch. for The Deaf

• Docket Number: WD85660
• Decision Date: 31 October 2023
• Parties: PHILLIP CRISP, Appellant, v. MISSOURI SCHOOL FOR THE DEAF, DEPARTMENT OF ELEMENTARY & SECONDARY EDUCATION, Respondent.
• Court: Missouri Court of Appeals

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PHILLIP CRISP, Appellant, v. MISSOURI SCHOOL FOR THE DEAF, DEPARTMENT OF ELEMENTARY & SECONDARY EDUCATION, Respondent.

No. WD85660

Court of Appeals of Missouri, Western District, Second Division

October 31, 2023

Appeal from the Circuit Court of Boone County, MissouriHonorable Robert Jeffrey Harris, Judge

Before Division Two: Janet Sutton, Presiding Judge, Alok Ahuja Judge, and Mark D. Pfeiffer, Judge

OPINION

Janet Sutton, Presiding Judge

Phillip Crisp(Crisp) filed a petition in the Circuit Court of Boone County against the State of Missouri, Missouri School for the Deaf, and the Department of Elementary and Secondary Education(MSD), alleging disability discrimination and retaliation under the Missouri Human Rights Act (MHRA),^[1] and wrongful discharge under the Whistleblower's Protection Act.After a trial, the jury found in favor of MSD on all claims.On appeal, Crisp raises four points alleging instructional error.Crisp's points relied on all contend that the trial court erred by instructing the jury with two instructions that followed the Missouri Approved Instruction (MAI) 38.08,^[2] known as the business judgment instruction.He argues that MAI 38.08 fails to reflect the intended meaning of section 213.101.2 of the MHRA requiring such business judgment instruction, and that the instructions, for various reasons, confused and misdirected the jury and prejudiced him.We affirm.

Factual and Procedural Background^[3]

In October 2017, Crisp applied for, and was hired by, MSD as a custodial supervisor.Crisp had previously worked on the MSD campus as a maintenance worker.In April 2018, a female custodian complained to MSD's superintendent about her supervisor Crisp's behavior, believing it to be unprofessional.She reported that Crisp used profanity, he pointed his fingers at her in an intimidating and accusatory manner, made her feel uncomfortable, and that she felt humiliated by Crisp.MSD did not terminate Crisp's employment at that time, and both Crisp and the female custodian were directed to complete an online employee training development course.The female custodian continued to have issues with Crisp causing her to visit the human resources office, often in tears.The female custodian eventually resigned.

In July 2020, four employees documented complaints about Crisp and presented them to the superintendent.In response, on July 14, 2020, the superintendent assigned an impartial employee to gather information about the situation, to make recommendations, and submit such information to the superintendent.The complaining employees, as well as Crisp were asked general questions about their work environment.A report was completed summarizing what each employee stated, including a recommendation on what action should be taken with respect to Crisp.

Based on the interviews, the impartial investigator determined that Crisp acted in an unprofessional manner, he was insubordinate toward his supervisor and other MSD administrators, he showed favoritism toward male employees, he used intimidation toward his staff, and he retaliated against those who questioned his actions.Crisp denied losing his temper, using profanity, speaking negatively about his supervisor, and talking to his subordinates about other staff.Crisp stated that he treated his staff fairly and equally.The report indicated that Crisp's actions violated the Department of Elementary and Secondary Education's (DESE) conduct standards.

One day later, on July 15, an employee who had been interviewed told the investigator that Crisp had discussed the investigation, violating a confidentiality agreement.Crisp said that he intended to retaliate in the future against a complaining employee by not granting her requested time off for comments Crisp believed she made during the investigation.This information was provided to the superintendent.

After receiving all this information, and believing that Crisp exhibited unacceptable behavior at work, the superintendent recommended to DESE that Crisp either be terminated from his employment at MSD, or be demoted from a supervisory position.

Crisp went to human resources on July 17, 2020, to request a copy of his personnel file.Crisp wanted a copy of his file because he felt that the superintendent was targeting and harassing him because of his "condition."Crisp was unsatisfied with what the contents of his personnel file contained related to the investigation, and he asked who he could contact in "Jeff City" about that, and he also wanted to complain about alleged discrimination.The human resources representative gave Crisp the name and phone number of the DESE human resources coordinator in Jefferson City, Missouri.Crisp told the human resources representative that if the person in Jefferson City, Missouri, could not assist him, he would seek legal counsel.Crisp asked to keep his visit to human resources confidential.The human resources representative told Crisp that she was obligated to inform her supervisors, including the superintendent, that Crisp was there.Crisp did not call the Jefferson City, Missouri, DESE human resources coordinator.

The decision was made to terminate Crisp from his position and the superintendent hand-delivered a termination letter, dated July 22, 2020, to Crisp.The letter notified Crisp of his immediate dismissal from employment, and it provided the following reasons for the dismissal: that Crisp demonstrated improper treatment toward staff, that he was insubordinate with a supervisor's directives, and that he exhibited behavior that was considered abusive toward other employees.The letter also listed examples of this behavior that were discovered during the internal investigation.

In April 2021, Crisp filed a three-count petition against MSD, alleging disability discrimination and retaliation under the MHRA, and wrongful discharge under the Whistleblower's Protection Act.Crisp alleged that during a July 14, 2020, meeting with an administrator he felt targeted and harassed, and that on July 17, 2020, he went to human resources and stated that he felt he was being discriminated against because of his disability.Crisp alleged that after he complained to human resources, he was terminated in retaliation for his complaint.On the whistleblower claim, Crisp alleged that he was a public employee who reported unlawful disability discrimination and his employment was terminated in retaliation for reporting such discrimination to his public employer.Crisp sought actual, compensatory, and punitive damages.

The case proceeded to a jury trial in April 2022.Crisp testified that his disability was a neurological impairment-essential tremors-and it causes him to have tremulous speech and involuntary trembling of his hands, arms, head, and upper extremities.He testified that his voice shook, but that it did not mean he was mad or upset, and that he explained this to his staff.Crisp testified that he sometimes spoke loudly and got close to people in order to be understood, and he used hand gestures like a "coach," and that others could perceive those actions as intimidating.Crisp denied using profanity and denied taking retaliatory action against complaining staff, or that he intended to do so in the future.

At trial, MSD contended that Crisp's firing was proper, justified, and not related to Crisp's disability.The superintendent testified that his recommendation to terminate Crisp was because of the information uncovered during the investigation and from the situation in 2018, and that Crisp's disability did not factor into his decision to terminate Crisp's employment.The superintendent stated that he had worked with people with disabilities for thirty-five years and Crisp's disability had no effect on his decision.The superintendent stated that Crisp going to human resources would not have impacted his decision to terminate Crisp's employment.

MSD proposed that the trial court instruct the jury using a business judgment instruction, which followed pattern instruction MAI 38.08.Crisp objected to MSD's proposed business judgment instruction in a pretrial brief and he objected again at the instruction conference.Crisp objected to this instruction for many reasons, including, inter alia, that he believed that MAI 38.08 did not follow section 213.101's intent, it did not follow substantive law, and therefore, the trial court should not use MAI 38.08 to instruct the jury.

Crisp tendered Alternate Instruction A for the trial court to give instead as the business judgment instruction, which was based on 8th Circuit Model Jury Instruction 5.02.Crisp's Alternate Instruction A stated: "You may not return a verdict for the plaintiff just because you might disagree with the defendant's decision or believe it to be harsh or unreasonable."

The trial court ruled that it was legally bound to give MAI 38.08, even though it stated it had concerns about the approved form instruction, ultimately concluding that its concerns did not rise to a level that would allow it to depart from MAI.The trial court rejected Crisp's Alternate Instruction A.The trial court, however, modified a section of MSD's proposed language in the 38.08 instruction describing MSD's non-discriminatory business reasons for Crisp's discharge to better align with what was described in his July 22, 2020, termination letter.In modifying the instruction, the trial court changed the word "or" to "and" in the reasons listed for discharge over MSD's objection.^[4] Although the instruction was modified at Crisp's request and to his benefit, Crisp advised the trial court that he still believed he would be "prejudiced" by the instruction, and the trial court responded that it did not believe Crisp...