The Missouri Court of Appeals recently affirmed a trial court’s refusal to give four non-MAI jury instructions in a MHRA employment discrimination case. McCullough v. Commerce Bank, WD71625, 2011 WL 3106914 (Mo. App. W.D. July 26, 2011). The issue on appeal was whether the lower court’s refusal to give the instructions addressing pretextual termination substantially prejudiced the appellants. The court held that it did not as a matter of law.
Rule 70.02(a) of the Missouri Rules of Civil Procedure mandates that jury instructions “shall be given or refused by the court according to the law and the evidence in the case.” (emphasis added). As the language of Rule 70.02(a) makes clear, courts do not have discretion if the proffered instruction is supported by the evidence and the law and is in proper form. Rule 70.02(b) further provides that “[w]henever Missouri Approved Instructions contains an instruction applicable in a particular case that the appropriate party requests or the court decides to submit, such instruction shall be given to the exclusion of any other instructions on the same subject.” (emphasis added).
In McCullough, the plaintiffs brought their claims pursuant to the MHRA. As the Missouri Court of Appeals noted, “in enacting the MHRA, the legislature sought to prohibit any consideration of race or other improper characteristic no matter how slight in employment decisions. The plain meaning of the MHRA imposes liability on an employer when an improper consideration is a contributing factor, regardless if other factors also exist.” (citing McBryde v. Ritenour School Dist., 207 S.W.3d 162, 170 (Mo. App. E.D. 2006). With this in mind, MAI 31.24 was adopted in 2005 as a pattern verdict-directing instruction for MHRA employment discrimination cases. Prior to the adoption of MAI 31.24, Missouri courts analyzed MHRA claims under the guidance of federal authority. Since its adoption, courts have consistently held that in deciding MHRA cases, federal employment discrimination caselaw should only be relied upon to the extent it is consistent with Missouri law. Accordingly, Missouri has effectively abandoned the burden-shifting analysis employed in federal discrimination cases.
Based upon the foregoing principles, the trial court in McCullough submitted only MAI 31.24 and rejected four other proposed instructions submitted by the appellants because they were not MAI approved instructions. The Missouri Court of Appeals upheld this decision, noting that the trial court “may well have been concerned that giving a non-MAI instruction permitting a jury to infer discriminatory intent upon proof of pretext would amount to a reversion to the [federal] burden shift analysis expressly rejected” by Missouri courts.