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.
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
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
Dr. Kader sued Harris-Stowe under the Missouri Human Rights Act (MHRA),
"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.
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.
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
"[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
Jury instruction No. 8 was the verdict director submitted to the jury for Dr. Kader's national origin discrimination claim. The instruction stated:
(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.
Section 213.055 defines unlawful employment practices. It provides, in pertinent part:
§ 213.055.1(1)(a)-(b) (emphasis added). Dr. Kader argues seeking an appeal of her O-1 visa denial was a privilege of her employment with Harris-Stowe under § 213.055.1(1)(a). "Privileges of employment" are not defined in the MHRA or the code of state regulations. "In the absence of statutory definitions, the plain and ordinary meaning of a term may be derived from a dictionary, and by considering the context of the entire statute in which it appears." Mantia v. Mo. Dep't of Transp., 529 S.W.3d 804, 809 (Mo. banc 2017). A privilege is "a right ... granted as a peculiar benefit, advantage, or favor." WEBSTER'S THIRD NEW INT'L DICT. 1805 (2002). Dr. Kader alleges Harris-Stowe denied her a "peculiar benefit, advantage, or favor" of her employment when Harris-Stowe did not appeal her visa denial.
What constitutes a privilege of employment necessarily varies depending on where the person is employed and what is considered a privilege, term or condition of that employment. While appealing the denial of a visa application for a foreign teacher could be a privilege of employment at some institutions, there was no evidence Harris-Stowe specifically agreed to seek an appeal of an O-1 visa denial on Dr. Kader's behalf. There was no evidence it was Harris-Stowe's practice to appeal O-1 visa denials for employees nor that it appealed
Furthermore, while Dr. Kader also argues Harris-Stowe's failure to seek an appeal of her O-1 visa denial "adversely affected [her] status as an employee" in violation of § 213.055.1(1)(b), her argument is misplaced in that it assumes she was eligible for the O-1 visa and would have received the extraordinary person visa had Harris-Stowe appealed its denial. The O-1 "extraordinary person" visa is reserved for aliens who possess "extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim..., and whose achievements have been recognized in the field through extensive documentation." 8 U.S.C. § 1101(a)(15)(O)(i) (2010). "Extraordinary ability means a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2) (2010). "The `extraordinary ability' designation is thus `extremely restrictive' by design." Visinscaia v. Beers, 4 F.Supp.3d 126, 131 (D.D.C. 2013). Indeed, federal courts have upheld the denial of extraordinary person visas to remarkable individuals and overturned denial only in the rarest of circumstances. Compare Kazarian v. U.S. Citizenship and Immigration Servs., 596 F.3d 1115, 1122 (9th Cir. 2010) (affirming denial of theoretical physicist's application who solved 20-year old physics problem) with Muni v. I.N.S., 891 F.Supp. 440, 445 (N.D. Ill. 1995) (overturning denial of professional hockey player's application who played on the NHL's best team for several years, won three Stanley Cups, earned a salary significantly higher than the average player, and was widely regarded as one of the league's best defenders). To qualify for the O-1 extraordinary person visa, an applicant must present "documentation of either (1) a one-time achievement (that is, a major, international [sic] recognized award); or (2) at least three of the ten types of lesser achievements enumerated in the regulations." Visinscaia, 4 F.Supp.3d at 131 (internal quotations and citation omitted).
Dr. Kader was just beginning her professional career. Although she gained teaching experience in Egypt before coming to the United States, there was no evidence presented at trial Dr. Kader had become a preeminent expert in her field. Dr. Kader's immigration attorney did not provide documentation, and the evidence presented at trial does not show, Dr. Kader had received a major internationally recognized award or that she had accomplished at least three of the "lesser" achievements. To be sure, this Court does not wish to diminish the significance of Dr. Kader's academic achievements, but the evidence presented at trial does not show Dr. Kader is "one of that small percentage who have risen to the very top" of her field. 8 C.F.R. § 204.5(h)(2).
Dr. Kader may have preferred Harris-Stowe seek an appeal of her denied O-1 visa application, but the failure to act on such an appeal does not automatically constitute an unlawful employment practice.
Accordingly, the failure to appeal the denied O-1 visa application was not an unlawful employment practice under the MHRA. The circuit court, therefore, erred by including in instruction 8 a disjunctive alternative concerning Harris-Stowe's failure to seek an appeal of Dr. Kader's denied O-1 visa application in its national origin discrimination instruction because the evidence presented at trial failed to establish that either appealing the denial of the visa application was a privilege of Dr. Kader's employment with Harris-Stowe or failing to seek an appeal of the denial otherwise adversely affected her status as an employee.
Harris-Stowe also argues the circuit court's disjunctive jury instruction on Dr. Kader's retaliation claim was erroneous and prejudicial because at least one option did not constitute actionable retaliation under the MHRA. Jury instruction No. 9 was the verdict director submitted to the jury for Dr. Kader's retaliation claim. Instruction No. 9 stated:
(Emphasis added). Similar to the instruction on Dr. Kader's national origin discrimination claim, substantial evidence must have been presented at trial based on which the jury could find the failure to appeal the denied O-1 visa prevented Dr. Kader from obtaining an O-1 visa. Ross-Paige, 492 S.W.3d at 172.
Dr. Kader argues Harris-Stowe failed to seek an appeal of the denial of her O-1 visa application in retaliation for Dr. Kader alleging she received an unfavorable faculty evaluation because of her race, religion, and national origin. Under the MHRA, it is unlawful "To retaliate ... in any manner against any other person because such person has opposed any practice prohibited by this chapter." § 213.070.1(2). Although
Here, the evidence presented at trial does not provide a basis for finding Harris-Stowe's failure to seek an appeal of the denied O-1 visa application adversely impacted Dr. Kader. As explained above, failing to seek an appeal of the denied application did not have an adverse impact on Dr. Kader because there was no evidence to suggest the appeal had any chance of succeeding. O-1 visas are reserved for "that small percentage who have risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). The evidence presented at trial does not show Dr. Kader is a member of this elite class eligible for the O-1 visa, so there was no evidence presented at trial showing the appeal would have been successful. Therefore, the failure to seek and pursue the appeal did not have an adverse impact on Dr. Kader's employment status.
An action is not adverse simply because it is upsetting or disappointing to an employee. Cunningham, 995 F.Supp. at 1025. Accordingly, the failure to appeal the denied visa application, therefore, was not unlawful retaliation under the MHRA. The circuit court, therefore, erred by including a disjunctive alternative concerning Harris-Stowe's failure to seek an appeal of Dr. Kader's denied visa application in its retaliation instruction because the evidence presented at trial did not establish that failing to appeal Dr. Kader's denied O-1 visa application adversely affected her employment with Harris-Stowe.
The circuit court's disjunctive verdict directing instructions 8 and 9 were erroneous and prejudicial because they included at least one alternative that did not constitute actionable conduct under the MHRA. The circuit court's judgment is reversed, and the case is remanded for a new trial on Dr. Kader's retaliation and national origin discrimination claims.
All concur.