Recent Developments Impacting Jury Instructions in Missouri Employment Actions

Transcription

1 Recent Developments Impacting Jury Instructions in Missouri Employment Actions By James R. Ward, Michael W. Kopp and P. Benjamin Cox 1 Introduction Just over a decade ago, the Missouri Supreme Court caused a sea change in the way that employment discrimination claims are litigated in Missouri when it decided State ex rel Diehl v. O Malley. 2 That seminal decision provided plaintiffs with the right to a jury trial in actions for damages under the Missouri Human Rights Act ( MHRA ). In turn, this right led to the 2005 adoption of the general MHRA jury instruction, which requires that a plaintiff establish that his or her protected classification was a contributing factor in the alleged discriminatory employment act. 3 Although Missouri appellate courts have since examined a range of issues related to employment discrimination claims, within the last two years, the courts have produced some of the most significant appellate decisions bearing on how juries should be instructed on these claims. These decisions have benefited both employee and employer litigants. In this regard, the decisions reflect the courts deepening embrace of the contributing factor causation standard, as well as its shift toward requiring greater precision for establishing certain claim elements. This article examines some of these recent developments, including matters where further refinement of Missouri Approved Instructions ( MAI ) for employment discrimination actions would be beneficial. I. Retaliation Claims Workers Compensation Retaliation The Missouri Supreme Court s recent decision in Templemire v. W & M Welding, Inc., 4 continues to signal the Court s broad preference for the contributing factor standard for claims implicating prohibited employment 1 James R. Ward, Michael W. Kopp and P. Benjamin Cox are Assistant Attorneys General in the Litigation Division of the Missouri Attorney General s Office. These authors have been privileged to work on several of the appellate decisions discussed in this article S.W.3d 82 (Mo. banc 2003). 3 The original general MHRA verdict director was adopted under Missouri Approved Instruction ( MAI ) That instruction was replaced in 2012 by MAI 38.01, which has since been replaced by MAI 38.01(A) and MAI 38.01(B), discussed infra, effective January 1, S.W.3d --, Case No. SC 93132, 2014 WL (Mo. banc Apr. 15, 2014). 1

2 actions. In a 5-2 decision, the majority opinion in Templemire overturned thirty years of precedent that held that an actionable claim for workers compensation retaliation required the plaintiff to establish exclusive causation. Previously in both Hansome v. Northwestern Cooperage Co. 5 and Crabtree v. Bugby, 6 the Missouri Supreme Court held that a plaintiff must establish an exclusive causal connection between plaintiff s actions and defendant s actions to prove a workers compensation retaliation claim. 7 Prior to Templemire s overruling of these cases, appellate courts followed this standard for three decades, as found under MAI ( Verdict Directing Retaliatory Discharge or Discrimination Workers Compensation ). Obviously, this instruction will now have to be modified. The Templemire majority found unpersuasive the employer and the dissent s argument urging adherence to stare decisis. 8 It further rejected arguments that the state legislature had left the Supreme Court s construction of the exclusive causation standard intact when it made modifications to the workers compensation statute in Those 2005 legislative modifications expressly revised the workers compensation statute to reject judicial construction of another causation standard for receiving an award for accidental work-related injuries, but did not modify the Supreme Court s longstanding construction of the causation standard for retaliation claims. 10 The touchstone of the Supreme Court s analysis was the Court s more recent trend of applying a contributing factor standard to employment claims. The majority opinion cited both the decision in Daugherty v. City of Maryland Heights, 11 applying the contributing factor standard to discrimination claims under the MHRA, and Hill v. Ford Motor Co., 12 applying the same standard to MHRA retaliation claims. The Supreme Court also found support in its more recent rejection of a heightened causation standard for claims of wrongful discharge in violation of public policy S.W.2d 273 (Mo. banc 1984). 967 S.W.2d 66 (Mo. banc 1998). Hansome, 679 S.W.2d at 275 (emphasis added); see also, Crabtree, 967 S.W.2d at WL , at *6-7. Id. at * Id. at * S.W.3d 814, (Mo. banc 2007) S.W.3d 659, 665 (Mo. banc 2009). 13 Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 92 (Mo. banc 2010). 2

3 On a prospective basis, the Supreme Court s holding in Templemire appears to set the compass for future treatment of causation in other employment claims. The majority opinion noted that the overturning of the exclusive causation standard in workers compensation retaliation claims was appropriate because it was consistent with the purpose of the statute to prevent retaliation and the standard now aligns workers compensation discrimination with other Missouri employment discrimination laws. 14 The Supreme Court further underscored the common public policy implicated across various employment claims and why such claims are appropriately subject to the less stringent contributing factor causation standard: While this Court recognizes a fundamental difference between the purposes of the MHRA and the workers compensation laws as a whole, there can be no tolerance for employment discrimination in the workplace, be it based upon protected classes such as gender, race or age, or an employee blowing the whistle on an employer s illegal practices in violation of public policy, or for exercising workers compensation rights. Discrimination against an employee for exercising his or her rights under the workers compensation law is just as illegal, insidious, and reprehensible as discrimination under the MHRA or for retaliatory discharge under the public policy exception of the at-will employment doctrine. 15 In sum, the Missouri Supreme Court has continued its movement toward a fairly broad application of the contributing factor causation standard to employment claims, irrespective of the type of claim at issue or prior precedent applying different and heightened causation requirements. 16 MHRA Retaliation There is no specific MAI for MHRA retaliation claims, despite their increasingly common presence in MHRA actions. It thus should not come as a surprise that recent appellate decisions have addressed instructions submitting this claim. The elements of an MHRA retaliation claim are: [the] plaintiff (1) complained of discrimination; (2) the employer took adverse action against WL , at *11 (emphasis added). 15 Id. 16 The intermediate appellate courts also have continued to endorse contributing factor as the operative causation standard in recent decisions. See Thomas v. McKeever s Enters., Inc., 388 S.W.3d 206, 216 (Mo. Ct. App. 2012) (rejecting a trial court s attempt to provide a jury with a curative instruction on causation based on a but for argument in closing). 3

4 him; and (3) a causal relationship existed between the complaint and the adverse action. 17 The first element of the claim typically generates little controversy among litigants. As long as the employee opposed or complained of discrimination and had a good faith belief that the complained-of conduct was unlawful, the element typically is satisfied. 18 Accordingly, the first element of a retaliation jury instruction ordinarily should simply state that you must find for the plaintiff if you find: First, plaintiff complained of discrimination based on [whatever protected classification is at issue, e.g., race, sex, or age]. 19 By contrast, the second element of a retaliation claim often elicits vigorous contention. Two recent appellate decisions have turned on how the trial court submitted the adverse action element. The plaintiff in Tisch v. DST Systems, Inc., for example, submitted an instruction that would have required the jury to find that defendant took negative employment actions against plaintiff including denying him work assignments, failing to appoint him to a position, and denying him interviews for open positions. 20 The trial court rejected the instruction, and the Court of Appeals affirmed. 21 The Court of Appeals held that the verdict director for retaliation should be limited to allegations relating to actionable evidence. 22 When, as in Tisch, the word including precedes specific examples of wrongdoing, it inappropriately enlarges the scope of liability and makes actionable the aggregate of all of the defendant s conduct rather than limiting the allegations to actionable conduct. 23 Similarly, in Minze v. Missouri Department of Public Safety, 24 the Court held that the second element of a retaliation jury instruction must specifically identify the alleged act(s) of retaliation. In that case, the trial 17 McCrainey v. Kan. City Mo. Sch. Dist., 337 S.W.3d 746, 753 (Mo. Ct. App. 2011). 18 Id. at Id. at 759. These authors recognize that protected activity other than a common complaint of discrimination may also satisfy the first element. See R.S. Mo (2) (identifying activities protected from retaliation, including testifying or participating in any manner in any investigation, proceeding or hearing conducted pursuant to the MHRA). See also 42 U.S.C.A 2000e-3(a) (identifying similar protected activities under Title VII) S.W.3d 245, 256 (Mo. Ct. App. 2012) (emphasis in original). 21 Id. 22 Id. at Id. at WD 76119, 2014 WL , *2-6 (Mo. Ct. App. Apr. 8, 2014). 4

5 court submitted the second element of retaliation as follows: Second, Defendant took adverse action against [Plaintiff]. 25 The Court of Appeals reversed, holding that [b]ecause the instruction did not contain a description of the alleged retaliatory acts, the jury was given a roving commission. Since it was unclear from the evidence which particular act(s) of the State the jury believed gave rise to its finding of liability, prejudice resulted. 26 In so holding, the Court of Appeals noted that the plaintiff, in submitting her case, is limited to those allegedly retaliatory actions that are actionable as opposed to all allegedly retaliatory actions that were admitted into evidence. 27 The Court of Appeals explained: [I]n many cases, evidence of adverse actions that are time-barred or are otherwise non-actionable may be admissible for other purposes. When such adverse actions are admissible and presented to the jury but are not actionable, the jury instruction needs to be sufficiently clear so that only actionable actions are submitted in the instruction. 28 Thus, Minze directs that specific, actionable retaliatory act(s) must be identified in the instruction. The second element of the claim therefore should be submitted as follows: Second, Defendant [insert the alleged retaliatory act, e.g., terminated Plaintiff or reduced Plaintiff s rate of pay]. 29 Ultimately, Minze has left open the question of what specific acts are actionable and thus capable of satisfying the adverse action element. For purposes of the MHRA, retaliation includes any act done for the purpose of reprisal that results in damage to the plaintiff. 30 What types of acts result in damage (i.e., cause a legal injury) is left for resolution in a future case. Under federal law, a retaliatory act must be material, and whether a given act is material depends on the facts of each case. 31 Perhaps echoing that view, the Minze court noted that [u]nder the facts of this case[,] the term adverse action was not given proper flesh and meaning during the course of the trial. 32 Ultimately, it appears that Missouri trial courts will 25 Id. at *3. 26 Id. at *6. 27 Id. at n Id. (citations omitted). 29 Id. at * Keeney v. Hereford Concrete Prods. Inc., 911 S.W.2d 622, 625 (Mo. banc 1995). 31 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, (2006). 32 WD 76119, 2014 WL , *5 n.12. 5

6 have to exercise a more active and challenging gate-keeping function concerning which adverse actions may be specified in the jury instruction. This may generate additional appellate guidance on the issue, which litigants on both sides almost certainly should welcome. A common debate with respect to the third retaliation element centers on whether causal relationship should be submitted under the contributing factor standard. Both McCrainey and Minze refer to the element simply as causal relationship, but there is no case that directly addresses whether, in an MHRA retaliation case, the causation element should be established using those terms versus the contributing factor standard used in the general discrimination jury instruction. 33 However, given the Supreme Court s extension of the contributing factor standard to both common law 34 and workers compensation retaliation claims, it seems entirely possible that the Court may direct that this standard also apply to MHRA retaliation claims. Accordingly, the following represents a retaliation verdict director instruction based on existing law and a reasonable prediction of how the law may be extended: You must find for the plaintiff if you find: First, plaintiff complained of discrimination based on [whatever protected classification is at issue]; Second, defendant [insert the alleged retaliatory act(s)]; Third, plaintiff s complaint of discrimination based on [whatever protected classification is at issue] was a contributing factor in defendant s decision to [insert the alleged retaliatory act(s)]; and Fourth, as a direct result of such conduct, plaintiff sustained damage. II. New MAIs for MHRA Disability Discrimination (and other) Claims Employment practitioners should be aware that two new MAI jury instructions for MHRA disability discrimination claims took effect earlier this 33 See MAI 38.01(A). 34 See Fleshner, 304 S.W.3d at 95. 6

7 year on January 1, The revised instructions were adopted in the wake of the Missouri Supreme Court s decision in Hervey v. Missouri Dept. of Corrections, 36 which found instructional error in the verdict director on a claim for disability discrimination. The Supreme Court in Hervey held that if the issue of whether a plaintiff is a member of a protected class is disputed, it specifically must be set forth in the jury instruction. 37 The particular instructional error in Hervey arose because the issue of whether Ms. Hervey was legally disabled was contested. 38 The verdict director given by the trial court, however, contained an element that essentially assumed that Ms. Hervey was legally disabled, without requiring the jury to find that she was, in fact, a member of that protected classification under a separately enumerated paragraph. 39 Based on these holdings in Hervey, the Missouri Supreme Court Committee on Civil Jury Instructions issued two new MAI instructions. MAI 38.01(A) The elements of the first new instruction, MAI 38.01(A), essentially are the same as the general employment discrimination jury instruction that it replaced (i.e., MAI 38.01), at least when a plaintiff s membership in a protected class is not in dispute. MAI 38.01(A) states: Your verdict must be for plaintiff if you believe: First, defendant (here insert the alleged discriminatory act, such as failed to hire, discharged or other act within the scope of , RSMo) plaintiff, and Second, (here insert one or more of the protected classifications supported by the evidence such as race, color, religion, national origin, sex, ancestry, age or disability) was a contributing factor in such (here, repeat alleged discriminatory act, such as failure to hire, discharge, ect.), and Third, as a direct result of such conduct, plaintiff sustained damage See MAI 38.01(A) and 38.01(B) S.W.3d 156 (Mo. banc 2012) 37 Id. at Id. at Id. at MAI 38.01(A) (emphasis in original) (footnotes omitted). 7

8 When a plaintiff s membership in one or more protected classes is disputed, MAI 38.01(A) requires that the first element of the instruction direct the jury to find whether plaintiff is a member of the class at issue and that the remaining elements of the general instruction be enumerated after that first element (and renumbered). 41 In this way, MAI 38.01(A) impacts not only disability discrimination claims, but all discrimination claims where plaintiff s membership in a protected class is disputed. As a practical matter, of course, a plaintiff s membership in a protected classification likely would not be disputed in many cases, at least where plaintiff s membership is selfevident. MAI 38.01(B) If a plaintiff s status as disabled is in dispute, the new instructions require that the issue be submitted under MAI 38.01(B), 42 which states: Your verdict must be for plaintiff if you believe: First, plaintiff [ has a (physical)(mental) impairment that substantially limits one or more of plaintiff s major life activities ; is regarded as having a (physical)(mental) impairment that substantially limits one or more of plaintiff s major life activities ; has a (physical)(mental) impairment of record that substantially limits one or more of plaintiff s major life activities ], and Second, such impairment ( would not did not ) interfere with performing the job in question ( if provided reasonable accommodation )( and did not require any accommodation ), and Third, defendant (here insert the alleged discriminatory act, such as failed to hire, discharged or other act within the scope of , RSMo), plaintiff, and Fourth, such disability was a contributing factor in such (here insert the alleged discriminatory act, such as failure to hire, discharge, ect.), and Fifth, as a direct result of such conduct, plaintiff sustained damage MAI 38.01(A), Notes on Use No MAI 38.01(A), Notes on Use No. 3; MAI 38.01(B), Notes on Use No MAI 38.01(B) (emphasis in original) (footnotes omitted). 8

9 In its first element, MAI 38.01(B) specifies both real and perceived impairments that would support a finding that a plaintiff is legally disabled. These impairment options are drawn from the statutory definition of disability under the MHRA and related regulations. 44 As reflected in MAI 38.01(B), if plaintiff satisfies one of the impairment options under the first element, and if the jury additionally finds that the impairment would not interfere with performing the job (with or without reasonable accommodation), the jury must additionally find, under the fourth element, that such disability was a contributing factor in the contested employment action. The reference to such disability in the fourth element is interesting, as no other element contained in the new jury instruction uses that verbiage. Thus, while it should be obvious to practitioners that the first and second elements of the instruction, together, require the jury to determine whether plaintiff is legally disabled, that purpose (and its connection to the fourth element) may not be entirely clear to lay-persons. In turn, some jurors conceivably might be confused as to what the phrase such disability refers to, since, among other reasons, the second element of the director separately refers to such impairment. In other words, there is no clear bridge between the first and second elements of the instruction, on the one hand, and its fourth element, on the other. Of course, time will tell regarding the extent to which these features in the new instruction may create juror confusion or impact trial outcomes. Another area of potential confusion under the new instructions related to disability claims concerns the matter of reasonable accommodation. In this regard, Comment E of the Committee Comments to MAI 38.01(B) seems to acknowledge that the meaning of reasonable accommodation may not be readily known or understandable by jurors, at least based on its citation to a recent appellate decision discussing that term s meaning. 45 However, MAI 38.01(B) does not specify whether a trial court ultimately should provide a definitional instruction of reasonable accommodation. These authors believe that the term is sufficiently technical to warrant a definitional instruction, at least in cases where reasonable accommodation is at issue. 46 However, in the authors experience, trial courts have been somewhat reluctant to allow such an instruction. 44 R.S.Mo (4); 8 C.S.R (1). 45 MAI 38.01(B), Comment E (citing Wells v. Lester E. Cox Med. Ctrs., 379 S.W.3d 919 (Mo. Ct. App. 2012)). 46 As discussed in the cited Wells decision, Missouri authorities provide a ready source for a definition of reasonable accommodation, including under the regulations promulgated under the MHRA. See 8 C.S.R (1)(G) (defining reasonable accommodation ). 9

10 Conclusion Although the recent decisions and new Missouri approved jury instructions discussed herein provide greater instructional guidance to courts and practitioners, there arguably is further work to be done to help minimize instructional error in trials of employment discrimination claims under Missouri law. If developments over the last two years are any indication, there is reason to believe (and hope) that this work may be accomplished much sooner than later. 10