Kader v. Bd. of Regents of Harris-Stowe State Univ.

• Decision Date: 15 January 2019
• Docket Number: No. SC 97069,SC 97069
• Citation: 565 S.W.3d 182
• Parties: Shereen KADER, Respondent, v. BOARD OF REGENTS OF HARRIS-STOWE STATE UNIVERSITY, Appellant.
• Court: Missouri Supreme Court

565 S.W.3d 182

Shereen KADER, Respondent,

v.BOARD OF REGENTS OF HARRIS-STOWE STATE UNIVERSITY, Appellant.

No. SC 97069

Supreme Court of Missouri, en banc.

Opinion issued January 15, 2019

Harris-Stowe was represented by Deputy Solicitor Peter T. Reed and Robert Isaacson of the attorney general’s office in Jefferson City, (573) 751-3321.

Kader was represented by Jonathan Sternberg of Jonathan Sternberg, Attorney, PC in Kansas City, (816) 292-7000.

Eric S. Playter and Chris R. Playter of Playter & Playter LLC in Lee’s Summit, (816) 666-8902.

W. Brent Powell, Judge

The board of regents of Harris-Stowe State University appeals the circuit court’s judgment following a jury verdict. The jury found Harris-Stowe liable on Dr. Shereen Kader’s claims of national origin discrimination and retaliation under the Missouri Human Rights Act after Harris-Stowe declined to renew Dr. Kader’s teaching contract. The jury awarded Dr. Kader $750,000 in actual damages and $1.75 million in punitive damages. On appeal, Harris-Stowe claims the circuit court improperly instructed the jury on Dr. Kader’s claims of national origin discrimination and retaliation. Because the circuit court’s jury instructions were erroneous and prejudicial, the judgment is reversed and the case remanded for a new trial.

Factual and Procedural History

Dr. Shereen Kader, Ph.D., came to the United States in 1999 to pursue graduate education. Dr. Kader is an Egyptian national with prior teaching experience in her home country. Dr. Kader received her master’s degree in literacy from Indiana University and her Ph.D. in early childhood education, creativity, and innovation from Pennsylvania State University. Dr. Kader accepted a faculty position at Harris-Stowe shortly before completing her doctorate in 2007. Harris-Stowe promoted her to assistant professor upon receiving her degree. Thereafter, Harris-Stowe renewed Dr. Kader’s teaching contract annually from 2007 to 2009.

In 2009, Harris-Stowe promoted Dr. LaTisha Smith to dean of the college of education, making her Dr. Kader’s supervisor. Dean Smith evaluated Dr. Kader’s teaching performance in October 2009. The faculty evaluation contains 16 categories, each of which are rated on a scale of 1 (unsatisfactory) to 5 (outstanding). Dean Smith gave Dr. Kader ratings of 5 in 12 categories and 4 (excellent) in the remaining categories. Dr. Kader gave herself a rating of 5 in all 16 categories. Dean Smith testified she based Dr. Kader’s slightly reduced marks on written and verbal complaints from students about Dr. Kader’s teaching. Dr. Kader testified she believed she received lower ratings because of her race, religion, and national origin. Dr. Kader lodged a complaint of discrimination with Harris-Stowe. Harris-Stowe arranged for Dr. Kader and Dean Smith to meet with the human resources department to discuss Dr. Kader’s concerns, but Harris-Stowe cancelled the meeting after Dr. Kader informed Harris-Stowe she would be bringing an attorney with her to the meeting. Dr. Kader testified Dean Smith told her bringing an attorney to the meeting could cause her to "face visa complications."

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. J-1 visas require an employer sponsor. Harris-Stowe supplied information necessary to maintain Dr. Kader’s visa while she was on the faculty, but Penn State officially sponsored her visa from 2007 until it expired in 2010. When she joined the faculty, Harris-Stowe indicated it would assist Dr. Kader with obtaining a new visa after her J-1 visa expired. Exchange visitors in the United States on J-1 visas usually return to their home countries for at least two years after their J-1 visas expire. Visitors then apply for a new visa when they wish to return to the United States. Dr. Kader, however, did not wish to return to Egypt for any period of time, so she filed for a waiver of the two-year waiting period to obtain an H1-B visa so she could continue teaching at Harris-Stowe. Dr. Kader did not receive the waiver before her J-1 visa expired June 13, 2010. After June 13, Dr. Kader no longer had J-1 status, and she was required to depart the United States during a 30-day grace period unless she secured another visa.

While waiting to learn if she would receive a waiver of the two-year waiting period and obtain an H1-B visa, Dr. Kader also applied for an O-1 "extraordinary person" visa in a final effort to maintain work authorization. Dr. Kader, through her immigration attorney, requested Harris-Stowe provide documentation to supplement her application, and Harris-Stowe complied. After several weeks without hearing whether her O-1 visa was granted, Dr. Kader contacted the agency responsible for processing the visa application. The agency told Dr. Kader it had requested additional information and supporting documentation from Harris-Stowe and received no response. On June 11, 2010, two days before her J-1 visa was set to expire, Dr. Kader contacted Harris-Stowe about her O-1 visa application and the agency’s request for additional information and supporting documentation. Harris-Stowe denied receiving any such request. The O-1 visa application was subsequently denied, and Harris-Stowe did not appeal. Because she lacked a valid visa, Harris-Stowe notified Dr. Kader her teaching contract for the 2010-11 academic year would not be renewed, and Harris-Stowe began seeking another individual to fill her position.

Dr. Kader sued Harris-Stowe under the Missouri Human Rights Act (MHRA),¹ alleging discrimination based on race and national origin. She also sued for retaliation. The case proceeded to trial, and the jury returned a verdict in Harris-Stowe’s favor on the race discrimination claim, but in Dr. Kader’s favor on her retaliation and national origin discrimination claims, awarding $750,000 in actual damages and $1.75 million in punitive damages. The circuit court entered judgment on the jury’s verdict.² Harris-Stowe appeals, arguing the circuit court’s jury instructions were erroneous and prejudicial.³ Among the circuit court’s jury instructions were two disjunctive jury instructions, instruction Nos. 8 and 9, which are the subject of this appeal.

Standard of Review

"Whether a jury was instructed properly is a question of law that this Court reviews de novo. " Ross-Paige v. St. Louis Metro. Police Dep't , 492 S.W.3d 164, 172 (Mo. banc 2016). Instructional error requires reversal only if the error resulted in prejudice materially affecting the merits of the case. Hervey v. Mo. Dep't of Corr. , 379 S.W.3d 156, 159 (Mo. banc 2012). "This Court views the evidence in the light most favorable to submission of the instruction." Ross-Paige , 492 S.W.3d at 172. "The party challenging the instruction must show that the offending instruction misdirected, misled, or confused the jury, resulting in prejudice to the party challenging the instruction." Id.

Analysis

In its dispositive point on appeal, Harris-Stowe argues the circuit court’s disjunctive jury instructions 8 and 9 misled and confused the jury, thereby resulting in prejudice. Harris-Stowe contends the instructions permitted the jury to find Harris-Stowe liable for conduct that is not actionable under the MHRA, resulting in prejudice. This Court agrees. Because the evidence presented at trial does not establish Harris-Stowe violated the MHRA when it did not appeal the denial of Dr. Kader’s O-1 visa application, the circuit court’s jury instructions were erroneous and prejudicial.

A. National Origin Discrimination

Harris-Stowe argues the circuit court erred by including at least one alternative in the disjunctive national origin discrimination instruction that did not constitute actionable conduct under the MHRA. The MHRA prohibits discrimination in the workplace. Howard v. City of Kansas City , 332 S.W.3d 772, 779 (Mo. banc 2011). "The MHRA protects important societal interests by prohibiting unlawful employment practices on the basis of race, color, religion, national origin, sex, ancestry, age, or disability." Id. (emphasis added).

"[F]or disjunctive verdict directing instructions to be deemed appropriate, each alternative must be supported by substantial evidence." Ross-Paige , 492 S.W.3d at 172. 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." Id. at 176.

Jury instruction No. 8 was the verdict director submitted to the jury for Dr. Kader’s national origin discrimination claim. The instruction stated:

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.

(Emphasis added). Accordingly, substantial evidence must have been presented at trial showing Harris-Stowe’s failure to appeal the denial of Dr. Kader’s O-1 visa application was an "unlawful employment practice" under the MHRA.⁴

Section 213.055 defines unlawful employment practices. It provides, in pertinent part:

It shall be an unlawful employment practice ... For an employer ...

(a) To fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment , because of such individual’s ... national origin ...; [or]

(b) To

...