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Kader v. Board of Regents of Harris-Stowe State University

Court of Appeals of Missouri, Eastern District, Third Division

January 9, 2018

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

         Appeal from the Circuit Court of the City of St. Louis Honorable Mark H. Neill

          OPINION

          Angela T. Quigless, J.

         The Board of Regents of Harris-Stowe State University (the "Board") appeals from the judgment of the Circuit Court of the City of St. Louis entered following a jury verdict. The jury found the Board liable on Dr. Shereen Kader's ("Dr. Kader") claims of national origin discrimination and retaliation, and awarded Dr. Kader $750, 000 in actual damages and $1, 750, 000 in punitive damages. The Board raises four points on appeal. The third claim, involving instructional error, is dispositive. Because the trial court erred in submitting the verdict directing instructions, which resulted in prejudice, we reverse and remand for a new trial.

         Factual and Procedural History

         In 1999, Dr. Kader came to the United States from Egypt to study and obtain a master's degree from Indiana University and a Ph.D. from Pennsylvania State University ("Penn State"). Dr. Kader was in the United States legally on a J-1 visa, which is a non-immigrant visa for individuals approved to participate in work- and study-based exchange visitor programs. In 2007, Harris-Stowe State University ("HSSU") hired Dr. Kader as an instructor in Early Childhood Development in the College of Education. Dr. Kader was later promoted to assistant professor. From 2007 to 2009, Dr. Kader's employment contract was annually renewed.

         Penn State sponsored Dr. Kader's J-1 visa for the 2007, 2008, and 2009 academic years. During this time, HSSU submitted employment information to Penn State so Dr. Kader could maintain her J-1 visa. Shortly after accepting the position at HSSU, Dr. Kader spoke with Virginia Malone ("Ms. Malone"), Director of Human Resources, and Dr. Dwayne Smith ("Dr. Smith"), Vice President of Academic Affairs, about continuing to work at HSSU after her J-1 visa expired in May 2010. Both Ms. Malone and Dr. Smith indicated that HSSU would assist Dr. Kader with obtaining a visa beyond her J-1 status.

         In 2009, HSSU appointed Dr. LaTisha Smith (the "Dean"), an African-American woman, as co-chair of the College of Education. Thereafter, HSSU promoted her to Dean of the College of Education, making her Dr. Kader's direct supervisor.

         On October 15, 2009, the Dean conducted a faculty evaluation of Dr. Kader's teaching performance. As part of the evaluation process, Dr. Kader performed a self-evaluation, which was then reviewed simultaneously with the Dean's evaluation. The Dean gave Dr. Kader lower marks than Dr. Kader gave herself.[1] The Dean explained the differences were due to written and verbal complaints she received from students about Dr. Kader. Dr. Kader testified she believed the differences were due to her immigration status, national origin, and race.

         The next day, Dr. Kader went to the Dean's office to further discuss the evaluation, and expressed concern that she was being treated unfairly because of her national origin and immigration status. After the meeting, the Dean sent an email to Dr. Kader, HSSU's President, Dr. Smith, and Ms. Malone, explaining the conversations that occurred with Dr. Kader during the faculty evaluation. Specifically, the Dean confirmed that Dr. Kader's immigration status had come up during the faculty evaluation, and she told Dr. Kader that "it was not fair to bring up the race card." The Dean requested a meeting with Ms. Malone in the Human Recourses Department ("HR") to resolve the conflict.

         After receiving the email, Dr. Kader met with Dr. Smith and told him she felt the Dean was targeting her because of her national origin. Dr. Smith indicated he would schedule a meeting with HR so the department could investigate Dr. Kader's complaint. Dr. Kader indicated she intended to bring an attorney to the HR meeting, and she testified Dr. Smith informed her that if she did, she would "face visa complications." It is HSSU's policy that when an employee makes a complaint of discrimination, the complaint must be reported to and investigated by HR. However, neither a meeting was scheduled with HR to address Dr. Kader's complaint nor did HR ever conduct an investigation.

         Dr. Kader's J-1 visa was originally set to expire on May 14, 2010. Once her visa expired, Dr. Kader would no longer be legally authorized to work at HSSU. However, Penn State granted Dr. Kader an extension of her J-1 visa and work authorization through June 13, 2010. After June 13, Dr. Kader would no longer be in J-1 status, and she would have a thirty-day grace period to depart from the United States if she was unable to obtain a new visa. During the thirty-day grace period, HSSU would be unable to employ Dr. Kader because she would no longer be legally authorized to work in the United States.

          Around March 2010, Dr. Kader met with Dr. Smith, Ms. Malone, and HSSU's Vice President of Administration Dr. Robin Shaw ("Dr. Shaw") to discuss the process of obtaining either an O-1 visa or an H-1B visa so she could remain in the United States and continue working following the expiration of her J-1 visa. Both visas require an employer sponsor. To qualify for the H-1B visa, Dr. Kader had to receive a waiver of the two-year home country residency requirement.[2] Dr. Kader asked that HSSU provide the paperwork for the O-1 visa along with the H-1B visa while she waited for the waiver. HSSU agreed to submit the paperwork.

         Following the meeting, Dr. Kader hired an attorney, Mr. Stephen Fleming ("Mr. Fleming"), to file the O-1 visa petition. Mr. Fleming sent an email to Dr. Shaw, requesting information in order to file the petition, which Dr. Shaw subsequently provided. On May 21, 2010, Mr. Fleming filed the O-1 visa petition with the United States Citizenship and Immigration Services ("USCIS"). After two weeks passed without being informed of whether the O-1 visa was granted, Dr. Kader contacted the USCIS. The USCIS told Dr. Kader they had requested additional information and supporting documentation from HSSU, but no one from HSSU responded.

         On June 11, 2010, two days before her J-1 visa was set to expire, Dr. Kader contacted Dr. Shaw about her visa application. Dr. Shaw denied receiving any such request from the USCIS, and informed Dr. Kader that her visa application had been denied, she had to leave HSSU within thirty days, and her position would be advertised. Dr. Kader then requested a work leave of absence, which Dr. Shaw said HSSU would not provide. On June 14, Dr. Kader also emailed Dr. Smith, requesting a leave of absence, but he never responded. Thereafter, Dr. Kader received a letter from Dr. Smith, stating the USCIS denied her O-1 visa application, and HSSU would not appeal the denial.

         In August 2010, Dr. Kader filed a charge of discrimination with the EEOC and filed an application for unemployment benefits. Ms. Malone submitted an employer statement, opposing Dr. Kader's application for unemployment benefits, and the application was subsequently denied. Thereafter, Dr. Kader filed a petition in the Circuit Court of the City of St. Louis under the Missouri Human Rights Act, alleging HSSU discriminated against her on the basis of race, national origin, and religion, [3] and retaliated against her for opposing HSSU's discriminatory practices.

         A jury trial was held. The jury returned verdicts in favor of Dr. Kader on the claims of national origin discrimination and retaliation, but found in favor of HSSU on the racial discrimination claim. The trial court awarded Dr. Kader $750, 000 in actual damages, and $1, 750, 000 in punitive damages. The Board now appeals. The Board raises four claims of trial court error. The third claim, involving instructional error, is dispositive, and thus we do not address the remaining claims.[4]

         Standard of Review

         Whether the trial court properly instructed the jury is a question of law that we review de novo. Hervey v. Mo. Dep't of Corr., 379 S.W.3d 156, 159 (Mo. banc 2012). We conduct our review in the light most favorable to the record, and an instruction's submission is proper where it is supported by any theory. Id. We reverse instructional error only if the error resulted in prejudice and materially affected the merits of the action. DeWalt v. Davidson Serv./Air, Inc., 398 S.W.3d 491, 502 (Mo. App. E.D. 2013). The ...


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