Hervey v. Mo. Dep't of Corrs., WD72899

CourtCourt of Appeal of Missouri (US)
Writing for the CourtGary D. Witt.
Docket NumberWD72899
Decision Date13 September 2011



Missouri Court of Appeals Western District

OPINION FILED: September 13, 2011

Appeal from the Circuit Court of Jackson County, Missouri
The Honorable J. Dale Youngs, Judge

Before Division Two: Thomas H. Newton, Presiding Judge, Cynthia L. Martin, Judge
and Gary D. Witt, Judge

The Missouri Department of Corrections appeals the Judgment of the Circuit Court of Jackson County in favor of Deborah Hervey for a claim of disability discrimination under the Missouri Human Rights Act, Sections 213.010 - 213.137 ("MHRA").1 We affirm.

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Factual Background2

Deborah Hervey ("Hervey") filed an employment discrimination lawsuit against her employer, the Missouri Department of Corrections ("DOC"), pursuant to the MHRA, alleging that DOC terminated her employment because of her mental disability and in retaliation for her complaints of discrimination.

The following facts were elicited at trial. Having been successfully employed as a probation officer by DOC on two prior occasions, Hervey was rehired in 2007. On her first day back to work, Hervey informed DOC that she had a "mental disorder diagnosis" and she may need "accommodations" as a result. Some accommodations were provided to Hervey and some were not. There was continuous conflict between Hervey and her supervisor over whether she actually needed the accommodations and which accommodations would be provided to her. Regardless, DOC claimed it found Hervey's work performance unsatisfactory and terminated her employment for failing to successfully complete her nine-month probationary period. Hervey, on the other hand, argued the DOC discriminated against her because of her disability and discharged her in retaliation for complaining of discrimination.

Following a jury trial on both claims of disability discrimination and retaliatory discharge, the jury returned a verdict in Hervey's favor, awarding her actual and punitive damages for her claim that the DOC discriminated against her due to a disability. 3 The jury assessed damages in the amount of $127,056 in actual damages, and following

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additional evidence on the issues of punitive damages in a bifurcated hearing, awarded Hervey $2,500,000 in punitive damages. After taking into consideration post-trial motions, the trial court issued its Judgment awarding Hervey the following: $127,056 in actual damages; $97,382.50 in attorneys' fees; $36,288 in front pay; and $1,303,632.50 in punitive damages. The trial court reduced the punitive damage award pursuant to section 510.265.4 The trial court denied DOC's Motion for Judgment Notwithstanding the Verdict and DOC's Motion for New Trial and, in the Alternative, Motion to Amend Judgment, and DOC now appeals. Further factual details will be provided in the analysis section below as necessary.


In Point One, DOC argues that the trial court erred in giving Hervey's disability discrimination verdict director, Instruction Number Eight, because the instructions did not require the jury to find that Hervey was disabled and, therefore, did not follow the substantive law of Missouri and misdirected the jury, and thus gave the jury a roving commission.

"We review a trial court's decision not to give a proffered instruction under a de novo standard of review, determining whether it was supported by the evidence and the law." Rader Family Ltd. P'ship, L.L.L.P. v. City of Columbia, 307 S.W.3d 243, 252 (Mo. App. W.D. 2010) (citing Marion v. Marcus, 199 S.W.3d 887, 893-94 (Mo. App.

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W.D. 2006)). "We reverse only if the refusal caused prejudice materially affecting the merits of the action." Id. (citingMarion, 199 S.W.3d at 894).

The verdict directing instruction submitted to the jury for Hervey's discrimination claim was Instruction Number Eight, which conformed to MAI 31.24. Instruction Number Eight states:

Your verdict must be for the Plaintiff if you believe:
First, Defendant discharged Plaintiff; and
Second, disability was a contributing factor in such discharge; and Third, as a direct result of such conduct, Plaintiff sustained damage.

DOC argues that this instruction was inadequate because it omitted a finding on the second element of Hervey's disability discrimination claim, namely whether Hervey was legally disabled.

We have previously held that a claim of disability discrimination under the MHRA requires the plaintiff "to show that: (1) she is [disabled]5 ; (2) she was discharged; and (3) there is evidence from which to infer that the [disability] was a factor in her discharge." Medley v. Valentine Radford Commc'ns, Inc., 173 S.W.3d 315, 320 (Mo. App. W.D. 2005) (citing Devor v. Blue Cross & Blue Shield of Kansas City, 943 S.W.2d 662, 665 (Mo. App. W.D. 1997)).

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"Jury instructions are not to be viewed in isolation, but are to be taken as a whole to determine whether error occurred." State v. Storey, 40 S.W.3d 898, 912 (Mo. banc 2001). Instruction Number Six was also submitted to the jury and states the following:

"A disability is a physical or mental impairment which substantially limits one or more of a person's major life activities, which with or without reasonable accommodation does not interfere with performing the job."

This definition comports verbatim to the definition of disability in the MHRA, section 213.010(4), and adheres to the required findings elaborated in Medley. The jury was also instructed in Instruction Number Two that they "should consider each instruction in light of and in harmony with the other instructions, and [they] should apply the instructions as a whole to the evidence. Words and phrases which are not otherwise defined for you as part of these instructions should be accorded their ordinary meaning." (Emphasis added.) We must assume the jury followed the instructions provided by the trial court and that they are jurors of reasonable intelligence. Brown v. Cedar Creek Rod & Gun Club, 298 S.W.3d 14, 21 (Mo. App. W.D. 2009) (citing Cole ex rel. Cole v. Warren Cnty. R-III Sch. Dist., 23 S.W.3d 756, 759 (Mo. App. E.D. 2000)); Berra v. Danter, 299 S.W.3d 690, 703-04 (Mo. App. E.D. 2009). Per Instruction Number Eight, to render a verdict in favor of Hervey, the jury was required to find that "disability was a contributing factor in [her] discharge." (Emphasis added.) This point was extensively argued by both parties in closing arguments to the jury. Therefore, we must assume that the jury considered the provided definition of "disability," which comports with the substantive law on what a plaintiff must prove to establish disability discrimination under the MHRA.

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The dissent analogizes this case to Agri Process Innovations Inc. v. Envirotrol, Inc., 338 S.W.3d 381 (Mo. App. W.D. 2001), but we believe this case is distinguishable. In Agri Process, this court found error when the trial court failed to submit as an essential element whether an agent acted within the scope and course of his agency when that fact was contested. Id. at 387-88. In that case, while the phrase "scope and course of agency" was defined in a separate instruction, it did not appear anywhere in the verdict director. Id. at 388. In the case at bar, "disability" was defined in Instruction Number Six, and Instruction Number Eight, the verdict director, required the jury to find that "disability was a contributing factor" in Hervey's discharge. Whereas in Agri Process, as the dissent correctly argues, nowhere in the verdict director did it require the jury to consider whether the agent was acting within the scope and course of his agency, here the jury was instructed to consider whether disability, properly defined in the jury instructions, contributed to Hervey's discharge. Hervey's alleged disability could not be a contributing factor absent a finding by the jury that she did in fact have a disability, as was fully explained to the jury by the attorneys for both parties in their respective closing arguments.

Further, the dissent also argues that, because the trial court failed to modify MAI 31.24 to include a separate paragraph submitting the issue of disability, the court did not pattern Instruction Number Eight after MAI 31.24. We disagree. The dissent agrees that "MAI 31.24 as drafted does not expressly address the submission of a plaintiff's status as a member of a protected classification when that status is contested." However, the dissent goes on to argue that the parenthetical, "(here insert one or more of the protected

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classifications supported by the evidence such as race, color, religion, national origin, sex, ancestry, age, or disability)," and its inclusion of the phrase, "supported by the evidence," shows the MAI's drafters intent that this be submitted as a separate paragraph when the issue is contested. If the submission of the plaintiff's disability is not "supported by the evidence" then the defendant would be entitled to a directed verdict. We do not believe that the trial court's failure to alter MAI 31.24 in a way that is not expressly sanctioned or contemplated by the MAI or its notes on use warrants a finding that the court failed to pattern the instruction in conformity with MAI 31.24 and, therefore, committed reversible error.

We do not endorse the verdict directing instruction...

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