Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of the City of St. Louis Honorable
Mark H. Neill
T. Quigless, J.
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.
and Procedural History
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.
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.
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
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. 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.
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
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.
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.
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. 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.
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.
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
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,  and retaliated against her for opposing
HSSU's discriminatory practices.
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
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 ...