In July 2008, Laura Thomas and Adaire Stewart (the “plaintiffs”) were discharged from their employment with McKeever’s Price Chopper (“McKeever’s”). At the time, both plaintiffs were over the age of forty. In August 2009, the plaintiffs filed separate suits against McKeever’s alleging age discrimination in violation of the Missouri Human Rights Act (“MHRA”). The two suits were subsequently consolidated.
After a jury trial, the court offered the following guidance to the jury: “Under the law, [the plaintiffs] are required to prove that but for…their age in this case, they would not have been terminated.” After deliberations, the jury returned a verdict in favor of McKeever’s. The plaintiffs thereafter moved for a new trial on the basis that the trial court’s guidance to the jury amounted to instructional error because the “but for” causation test was improper under the MHRA. The trial court denied the motion for new trial and the plaintiffs appealed the judgment.
On appeal, the plaintiffs asserted that the trial court erred in denying them a new trial because the trial court’s instruction to the jury was a misstatement of the law. Specifically, the plaintiffs argued that “the trial court’s curative instruction substituted the incorrect standard that they prove ‘but for’ their ages they would not have been discharged for the correct standard set forth in MAI [Missouri Approved Jury Instruction] 31.24, which requires only that they prove that their ages were a ‘contributing factor’ in their discharges.” As the Missouri Court of Appeals noted, the plaintiffs’ argument presented “fundamental questions regarding causation in MHRA age discrimination cases.”
In its opinion, the Missouri appellate court acknowledged that the “but for” causation test is applicable to nearly all tort cases in Missouri. However, the court made it clear that MHRA cases are separate and distinct from tort cases. Indeed, “MHRA cases turn on whether an illegal factor played a role in the decision to discharge the employee. Under the MHRA, if…[the] age…of the employee was a ‘contributing factor’ to the discharge, then the employer has violated the MHRA.” The court relied upon the Missouri Supreme Court’s decision in Daugherty v. City of Maryland Heights, which held that “[t]he employer’s action is no less reprehensible because that factor was not the only reason…[I]f consideration of age…contributed to the unfair treatment, that is sufficient.”
Considering the foregoing caselaw, the Missouri Court of Appeals ultimately sided with the plaintiffs in holding that the trial court’s instruction to the jury was a misstatement of the law. In support of its decision, the court offered the following explanation:
The trial court’s wording of the but for issue—“but for…their age…, they would not have been terminated”—effectively told the jury that it would not be enough for [the plaintiffs] to prove that their age was an actual contributing cause of their discharge. Under the law, [the plaintiffs] could prevail if the jury believed that age was a “contributing factor” in their discharge; this oral instruction said they could prevail only if the jury believed that their age was the cause, in and of itself, of their discharge.
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…the words used by the trial court amounted to a misstatement of law by implying to the jury that [the plaintiffs] were required to prove that age was the sole or exclusive cause of their discharge.
Furthermore, the court noted that under Missouri law, when an MAI instruction applies to the case, the use of such instruction is mandatory and shall be given to the exclusion of any other instructions on the same subject. Accordingly, the court held that the regardless of whether the “but for” causation test was applicable, “the trial court nevertheless erred by instructing the jury in a manner contrary to MAI 31.24. In doing so, the trial court failed in its duty to give the mandatory MAI to the exclusion of any other instruction on the same subject.”
A complete copy of this decision, styled Laura Thomas and Adaire Stewart v. McKeever’s Enterprises, Inc., can be found here.