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Jun 15, 2021

Are Jury Instructions "At-Will?" Not Under the Missouri Human Rights Act

ABSTRACT: At-will...the ability to do something as one pleases. While most employment relationships are at-will, may an employer modify, at-will, Missouri Approved Jury Instructions in a case involving a violation of the Missouri Human Rights Act?  As the Western District Court of Appeals explains, you better have a lawful reason…

Practically every employee handbook has one: a statement that the employee’s employment is at-will. Many times, employers require employees to sign an acknowledgment, affirming that the employees know and understand that their positions may be terminated with or without cause. However, is at-will employment a lawful reason to modify a Missouri approved jury instruction at one’s will? No dice, says Missouri’s Western District Court of Appeals.

In Kelly v. City of Lee’s Summit, the court examined whether the trial court erred in overruling the plaintiff-employee’s objection to a modified jury instruction presented by the defendant-employer regarding the plaintiff’s at-will employment status and the lawful reason for her termination. The plaintiff sued under the Missouri Human Rights Act (MHRA), claiming she was terminated by her employer in violation of the MHRA, on account of her race, age, and gender.

Like many employers, the defendant-employer required the plaintiff to sign an agreement indicating that she understood that her employment was at-will, and that she could be terminated without cause. Plaintiff was terminated, and in a dismissal letter, the employer stated that, although plaintiff was being terminated without cause, the “reason for [her] termination was overall unacceptable performance,” including “[f]ailure to understand policies, procedures, ordinances, laws, and processes…[i]naccurate and late work product…[f]requent shifting of responsibility for assigned work…and [i]neffective leadership” (Huh? Kinda sounds like cause to me, but IDK…). At trial, the employer presented evidence of the plaintiff’s poor work performance, but during closing argument, maintained that the plaintiff’s job performance was essentially irrelevant in the jury’s determination (I don’t get it employer…why bring it up then?).

In general, every employee’s employment is deemed to be at-will. A fundamental exception to this rule comes into play, however, if an employee is terminated based on her race, color, religion, national origin, sex, ancestry, age, or disability, as spelled out in the MHRA, Title VII, and other anti-discrimination statutes.

If an employee claims that her termination was improper under the MHRA, the employer can present evidence that the employee was terminated for a lawful reason. An employer that has presented such evidence can request the “lawful justification” jury instruction (i.e., MAI 38.02), which (in essence) provides that the verdict must be for the employer if the employer terminated the plaintiff because of a specific lawful reason, and in doing so, the improper reasons under the MHRA were not contributing factors in the decision to terminate.[1] The rules are clear that if the aforementioned “lawful justification” instruction is utilized, it must not be amended.

In Kelly, the employer requested the “lawful justification” jury instruction (I mean, which employer wouldn’t?), but changed the verbiage of the instruction, deleting the word “because” from the instruction. The employer’s jury instruction was modified to read as “Defendant terminated Plaintiff under the Management Agreement “without cause” and “in doing so, neither race, age, nor sex/gender was a contributing factor.” The employer maintained that the “lawful reason” for the termination was its at-will policy (Wait…but the MHRA is an exception to the at-will employment doctrine…not following you employer…).

The court emphasized a familiar point:  if an MAI instruction applies to a case, the MAI instruction must be used. The court determined that the employer modified the instruction, as counsel deleted the word “because” from the instruction. Further, the court determined that the employer’s proffered reason for termination (i.e., its ability to do so under the at-will agreement) was not an actual reason for plaintiff’s termination; rather, it was a statement that the employer did not act for specified reasons. According to the Court, the fact that the employer “did not act for certain reasons, or that it acted for ‘no reason,’ are not themselves statements of a ‘lawful reason’ for…termination.”

Having found that the modifications to the jury instruction were improper, the court next looked to whether the employer could demonstrate that there was no prejudice as a result of the modification. The court determined that the employer’s modified instruction “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 [plaintiff] was terminated”; rather, the modified instruction “kept the jury from getting to the question of whether there was a lawful reason for discharge” (sounds prejudicial to me). According to the court, “the intention of the instruction was thwarted by asking the jury to answer an entirely different question: was [plaintiff] an at-will employee.” Accordingly, the court held that the employer had not met its burden of demonstrating a lack of prejudice.

Next, the court determined if any prejudicial effect occurred as a result of the modification. The court determined that the modification was prejudicial, as a non-discriminatory reason for the plaintiff’s termination was not stated in the instruction. Rather, the modified instruction allowed the jury to conclude that it could find for the employer if it believed that plaintiff was terminated from employer pursuant to its “at-will”/”without cause” policy. According to the court, “[w]here, as here, the defendant is provided the benefit of the [lawful justification instruction], yet is able to sidestep the need to provide any lawful reason at all and submit a wholly different, contractually-based cause for termination, prejudice occurs.” Further, the court noted that the employer introduced evidence at trial related to the plaintiff’s poor performance, but during closing argument, essentially advised the jury that plaintiff’s performance was irrelevant for determining the reason for employee’s termination. According to this court, such an assertion ignored a powerful circumstantial evidence tool for plaintiffs in discrimination cases, as stated reasons for an employee’s discharge can be determined to be pretexual. In essence, by arguing that the performance issues were irrelevant, the employer “virtually suggested to the jury that only direct evidence of discriminatory animus could support a verdict in [employee’s] favor.” Accordingly, the appellate court reversed the decision of the trial court and remanded the case for further proceedings.

Lessons Learned: (1) an at-will/no-cause agreement is not a lawful reason for terminating an individual when faced with MHRA violations; and (2) you can’t change an approved Missouri instruction at-will in a MHRA case unless you want to risk re-trying the case.

[1] Kelly's termination occurred before the August 2017 amendments to the MHRA, which raised a plaintiff’s burden of proof in a discrimination case. A plaintiff now must show that her race, gender/sex, or age was a determining (rather than merely "contributing") factor in the employment decision. MAI was changed accordingly, and for cases arising after August 28, 2017, new MAI 38.06 directs that a plaintiff must show that her protected classification "played a role and was a determinative factor" in the employment decision.