Jury Instruction

Instructing a Jury on “Lawful Justification” under the Missouri Human Rights Act

On March 30, 2021, the Missouri Court of Appeals for the Western District reversed a jury verdict in favor of a defendant-employer—the City of Lee’s Summit (“City”)—in a wrongful discharge case brought by a former employee—Denise Kelly (“Kelly”)—under the Missouri Human Rights Act (“MHRA”), based on a claim of error in how a jury was instructed on the employer’s defense of “lawful justification.” Kelly v. City of Lee’s Summit, Mo., WD83742 (Mo. App. W.D. Mar. 30, 2021).

Background

Kelly was a former HR Director for the City. She signed a “Management Agreement” with the City that stated, in relevant part, she could be terminated by the City “without cause, while Ms. Kelly is willing and able to perform [her] duties…” ‘

After three years of employment, the City fired her “without cause” under the “Management Agreement,” but described in detail several purported deficiencies with her job performance (e.g., failing to understand policies and procedures, inaccurate and late work product, ineffective leadership, etc.).

Kelly thereafter filed suit against the City for race, age, and sex/gender discrimination. The case proceeded to trial. At trial, the City’s evidence consisted mostly of Kelly’s poor work performance.

At the close of evidence, the City submitted a modified version of Missouri Approved Jury Instruction (“MAI”) 38.02. The City’s proposed jury instruction omitted the word “because” and stated that Kelly was terminated “under the Management Agreement ‘without cause.’”

Kelly objected to this modified instruction, asserting “it does not hypothesize a reason” for her termination and the MAI requires the City to state a termination reason if it uses the instruction. The trial court overruled the objection.

During closing arguments, the City’s counsel made several statements that any evidence concerning Kelly’s job performance is not to be a factor in the jury’s determinations, and instead that the sole “issues in this case are race, age, and sex/gender.”

The jury returned a verdict in favor of the City. Kelly’s appeal followed.

Analysis

The Court began its analysis by discussing general background on the MHRA before addressing if, how, and when a defendant-employer may request a “lawful justification” jury instruction. As the Court noted, an employer may request such an instruction where it provides evidence that a termination occurred for a proper, lawful reason (i.e., a lawful justification).

The Court then turned to the lawful justification instruction under the MHRA—that is, MAI 38.02—which states:

Your verdict must be for defendant if you believe:

First, defendant (here insert alleged discriminatory act submitted in plaintiff’s verdict directing instruction such as… “discharged”…) plaintiff because (here set forth the alleged lawful reason such action was taken), and

Second, in so doing (here insert the protected classification submitted by plaintiff, such as race, color, religion, national origin, etc.) was not a contributing factor.

The Court then discussed Missouri case law, Missouri Supreme Court Rules, and other secondary sources on use of MAI’s, which make clear a party must use MAI’s as written to preserve their consistency and integrity across cases.

If a submitted instruction deviates from an MAI, courts consider whether the MAI prescribes a particular form of instruction. If it does, and the appropriate MAI instruction is not used, prejudicial error is presumed, unless the proponent of the jury instruction “makes it perfectly clear” that there was no prejudice. Nonetheless, to be reversible, the instructional error must materially affect the merits of a case.

The Court then applied this analysis to the case. It noted the City did not have to request a lawful justification instruction, but because it did, it had to conform to MAI 38.02. But the City submitted an instruction that modified MAI 38.02 and thus did not conform. The Court found this non-conformance significant here because it resulted in the City not stating any reason for Kelly’s termination; instead, the instruction simply identified reasons that did not explain its termination decision (i.e., those reasons that would constitute “cause” under the Management Agreement). As a result, the Court presumed prejudicial error.

The Court then addressed (and rejected) the City’s argument that the error was not prejudicial. The City argued no prejudice resulted because at-will employees, like Kelly, can be terminated for no reason at all. However, the Court found this argument misplaced and responded by noting the MHRA modifies the at-will employment doctrine and prohibits termination of employees for improper reasons. And the submitted instruction (and the City’s use of it at trial, especially in its closing argument) effectively “did not allow the jury to get to the question of whether there was an underlying lawful reason, not in violation of the MHRA, why Kelly was terminated.” Use of a lawful justification instruction requires inclusion of a non-discriminatory reason, and that was not done in this case.

Emphasizing this point further, the Court also took issue with the removal of the word “because” as it “changes the complexion of the instruction altogether.” The word “because”—unlike the submitted word “under”—necessarily implies the statement of a following reason. Thus, this modification of the MAI at issue invited “distinct questions.”

After the Court detailed the many ways by which the submitted instruction resulted in prejudice, it concluded that “[t]he instruction as given was prejudicial in that it misled the jury in a manner that materially affected the merits of the case.” As a result, Kelly will get a new trial on her claims.

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