MISSOURI COURT OF APPEALS WESTERN DISTRICT
PHILLIP CRISP, ) ) Appellant, ) WD85660 ) v. ) OPINION FILED: ) MISSOURI SCHOOL FOR THE DEAF, ) October 31, 2023 DEPARTMENT OF ELEMENTARY & ) SECONDARY EDUCATION, ) ) Respondent. ) )
Appeal from the Circuit Court of Boone County, Missouri Honorable Robert Jeffrey Harris, Judge
Before Division Two: Janet Sutton, Presiding Judge, Alok Ahuja, Judge, and Mark D. Pfeiffer, Judge
Phillip Crisp (Crisp) filed a petition in the Circuit Court of Boone County against the
State of Missouri, Missouri School for the Deaf, and the Department of Elementary and
Secondary Education (MSD), alleging disability discrimination and retaliation under the
Missouri Human Rights Act (MHRA), 1 and wrongful discharge under the Whistleblower’s
Protection Act. After a trial, the jury found in favor of MSD on all claims. On appeal, Crisp
raises four points alleging instructional error. Crisp’s points relied on all contend that the trial
1 Section 213.010 et seq. All statutory references are to the post-Senate Bill 43 language of the Missouri Human Rights Act.
1 court erred by instructing the jury with two instructions that followed the Missouri Approved
Instruction (MAI) 38.08, 2 known as the business judgment instruction. He argues that MAI
38.08 fails to reflect the intended meaning of section 213.101.2 of the MHRA requiring such
business judgment instruction, and that the instructions, for various reasons, confused and
misdirected the jury and prejudiced him. We affirm.
Factual and Procedural Background 3
In October 2017, Crisp applied for, and was hired by, MSD as a custodial supervisor.
Crisp had previously worked on the MSD campus as a maintenance worker. In April 2018, a
female custodian complained to MSD’s superintendent about her supervisor Crisp’s behavior,
believing it to be unprofessional. She reported that Crisp used profanity, he pointed his fingers at
her in an intimidating and accusatory manner, made her feel uncomfortable, and that she felt
humiliated by Crisp. MSD did not terminate Crisp’s employment at that time, and both Crisp
and the female custodian were directed to complete an online employee training development
course. The female custodian continued to have issues with Crisp causing her to visit the human
resources office, often in tears. The female custodian eventually resigned.
In July 2020, four employees documented complaints about Crisp and presented them to
the superintendent. In response, on July 14, 2020, the superintendent assigned an impartial
employee to gather information about the situation, to make recommendations, and submit such
information to the superintendent. The complaining employees, as well as Crisp, were asked
2 All references to the Missouri Approved Instructions (MAI) are to the Missouri Approved Jury Instructions – Civil (8th ed.) unless otherwise noted. 3 This Court reviews the evidence and reasonable inferences therefrom in a light most favorable to the jury’s verdict, and we disregard evidence to the contrary. Shuttlewagon, Inc. v. Higgins, 628 S.W.3d 185, 189 n.1 (Mo. App. W.D. 2021).
2 general questions about their work environment. A report was completed summarizing what
each employee stated, including a recommendation on what action should be taken with respect
to Crisp.
Based on the interviews, the impartial investigator determined that Crisp acted in an
unprofessional manner, he was insubordinate toward his supervisor and other MSD
administrators, he showed favoritism toward male employees, he used intimidation toward his
staff, and he retaliated against those who questioned his actions. Crisp denied losing his temper,
using profanity, speaking negatively about his supervisor, and talking to his subordinates about
other staff. Crisp stated that he treated his staff fairly and equally. The report indicated that
Crisp’s actions violated the Department of Elementary and Secondary Education’s (DESE)
conduct standards.
One day later, on July 15, an employee who had been interviewed told the investigator
that Crisp had discussed the investigation, violating a confidentiality agreement. Crisp said that
he intended to retaliate in the future against a complaining employee by not granting her
requested time off for comments Crisp believed she made during the investigation. This
information was provided to the superintendent.
After receiving all this information, and believing that Crisp exhibited unacceptable
behavior at work, the superintendent recommended to DESE that Crisp either be terminated from
his employment at MSD, or be demoted from a supervisory position.
Crisp went to human resources on July 17, 2020, to request a copy of his personnel file.
Crisp wanted a copy of his file because he felt that the superintendent was targeting and
harassing him because of his “condition.” Crisp was unsatisfied with what the contents of his
personnel file contained related to the investigation, and he asked who he could contact in “Jeff
3 City” about that, and he also wanted to complain about alleged discrimination. The human
resources representative gave Crisp the name and phone number of the DESE human resources
coordinator in Jefferson City, Missouri. Crisp told the human resources representative that if the
person in Jefferson City, Missouri, could not assist him, he would seek legal counsel. Crisp
asked to keep his visit to human resources confidential. The human resources representative told
Crisp that she was obligated to inform her supervisors, including the superintendent, that Crisp
was there. Crisp did not call the Jefferson City, Missouri, DESE human resources coordinator.
The decision was made to terminate Crisp from his position and the superintendent hand-
delivered a termination letter, dated July 22, 2020, to Crisp. The letter notified Crisp of his
immediate dismissal from employment, and it provided the following reasons for the dismissal:
that Crisp demonstrated improper treatment toward staff, that he was insubordinate with a
supervisor’s directives, and that he exhibited behavior that was considered abusive toward other
employees. The letter also listed examples of this behavior that were discovered during the
internal investigation.
In April 2021, Crisp filed a three-count petition against MSD, alleging disability
discrimination and retaliation under the MHRA, and wrongful discharge under the
Whistleblower’s Protection Act. Crisp alleged that during a July 14, 2020, meeting with an
administrator he felt targeted and harassed, and that on July 17, 2020, he went to human
resources and stated that he felt he was being discriminated against because of his disability.
Crisp alleged that after he complained to human resources, he was terminated in retaliation for
his complaint. On the whistleblower claim, Crisp alleged that he was a public employee who
reported unlawful disability discrimination and his employment was terminated in retaliation for
4 reporting such discrimination to his public employer. Crisp sought actual, compensatory, and
punitive damages.
The case proceeded to a jury trial in April 2022. Crisp testified that his disability was a
neurological impairment—essential tremors—and it causes him to have tremulous speech and
involuntary trembling of his hands, arms, head, and upper extremities. He testified that his voice
shook, but that it did not mean he was mad or upset, and that he explained this to his staff. Crisp
testified that he sometimes spoke loudly and got close to people in order to be understood, and he
used hand gestures like a “coach,” and that others could perceive those actions as intimidating.
Crisp denied using profanity and denied taking retaliatory action against complaining staff, or
that he intended to do so in the future.
At trial, MSD contended that Crisp’s firing was proper, justified, and not related to
Crisp’s disability. The superintendent testified that his recommendation to terminate Crisp was
because of the information uncovered during the investigation and from the situation in 2018,
and that Crisp’s disability did not factor into his decision to terminate Crisp’s employment. The
superintendent stated that he had worked with people with disabilities for thirty-five years and
Crisp’s disability had no effect on his decision. The superintendent stated that Crisp going to
human resources would not have impacted his decision to terminate Crisp’s employment.
MSD proposed that the trial court instruct the jury using a business judgment instruction,
which followed pattern instruction MAI 38.08. Crisp objected to MSD’s proposed business
judgment instruction in a pretrial brief and he objected again at the instruction conference. Crisp
objected to this instruction for many reasons, including, inter alia, that he believed that MAI
38.08 did not follow section 213.101’s intent, it did not follow substantive law, and therefore, the
trial court should not use MAI 38.08 to instruct the jury.
5 Crisp tendered Alternate Instruction A for the trial court to give instead as the business
judgment instruction, which was based on 8th Circuit Model Jury Instruction 5.02. Crisp’s
Alternate Instruction A stated: “You may not return a verdict for the plaintiff just because you
might disagree with the defendant’s decision or believe it to be harsh or unreasonable.”
The trial court ruled that it was legally bound to give MAI 38.08, even though it stated it
had concerns about the approved form instruction, ultimately concluding that its concerns did not
rise to a level that would allow it to depart from MAI. The trial court rejected Crisp’s Alternate
Instruction A. The trial court, however, modified a section of MSD’s proposed language in the
38.08 instruction describing MSD’s non-discriminatory business reasons for Crisp’s discharge to
better align with what was described in his July 22, 2020, termination letter. In modifying the
instruction, the trial court changed the word “or” to “and” in the reasons listed for discharge over
MSD’s objection. 4 Although the instruction was modified at Crisp’s request and to his benefit,
Crisp advised the trial court that he still believed he would be “prejudiced” by the instruction,
and the trial court responded that it did not believe Crisp was waiving any objection to the
instruction.
4 The proposed business judgment instruction originally read as follows: Your verdict must be for defendant if you believe defendant discharged plaintiff because of improper treatment towards staff, being insubordinate with directives given by a supervisor, or exhibiting behavior that is considered abusive toward other employees as an exercise of sound business judgment without regard to plaintiff’s disability even if you disagree with such decision or believe it to be harsh.
(Emphasis added).
6 The jury was given the following business judgment instruction, over Crisp’s objection,
in Instructions 9 and 14, as follows:
Your verdict must be for defendant if you believe defendant discharged plaintiff because of improper treatment towards staff, being insubordinate with directives given by a supervisor, and exhibiting behavior that is considered abusive toward other employees as an exercise of sound business judgment without regard to plaintiff’s disability even if you disagree with such decision or believe it to be harsh.
(Emphasis added). The trial court gave the business judgment instructions directly after each
verdict director for Crisp’s claims of disability discrimination and retaliation.
At the close of the evidence, the jury returned a verdict in favor of MSD on all of Crisp’s
claims. Crisp filed a motion for new trial, renewing his objections that the trial court erred in
giving the business judgment instructions in Instructions 9 and 14 and in refusing Crisp’s
proffered alternate instruction. The trial court denied Crisp’s motion for new trial.
Crisp appeals.
Standard of Review
Whether a jury was properly instructed is a question of law that we review de novo.
Hervey v. Missouri Dept. of Corrections, 379 S.W.3d 156, 159 (Mo. banc 2012). “The trial
court’s refusal to give a party’s proffered instruction is reviewed de novo, evaluating whether the
instructions were supported by the evidence and the law.” Cluck v. Union Pac. R.R. Co., 367
S.W.3d 25, 32 (Mo. banc 2012). Rule 70.02(a) compels this standard of review, which provides
that jury instructions “shall be given or refused by the court according to the law and the
evidence in the case.” Church v. CNH Indus. Am., LLC, 671 S.W.3d 829, 837 (Mo. App. W.D.
2023) (quoting Marion v. Marcus, 199 S.W.3d 887, 892 (Mo. App. W.D. 2006)).
To reverse a jury verdict on the ground of instructional error, the party challenging the
instruction must show that: (1) the instruction at issue misled, misdirected, or confused the jury;
7 and (2) prejudice resulted from the instructional error. SKMDV Holdings, Inc. v. Green
Jacobson, P.C., 494 S.W.3d 537, 553 (Mo. App. E.D. 2016).
Legal Analysis
In four points on appeal, Crisp argues that the trial court erred in giving the business
judgment instruction as worded in Instructions 9 and 14 on Crisp’s disability discrimination and
retaliation claims. In Crisp’s first and third points, he argues the trial court erred in giving
Instructions 9 and 14, patterned after MAI 38.08, the business judgment instruction, because
MAI 38.08 failed to reflect section 213.101.2’s intended meaning requiring such business
judgment instruction.
Crisp’s second and fourth points also challenge the business judgment instruction given
in Instructions 9 and 14, alleging these confused and misdirected the jury. Specifically, Crisp
asserts that the instructions confused and misdirected the jury for several reasons: (1) the
instructions were affirmative converse instructions with detailed evidentiary facts violating Rule
70.02 without any paragraph or conjunctive language; (2) the instructions conflicted with the
required “motivating factor” language of the verdict directors; (3) both instructions submitted
undefined legal conclusions not reflected in the MHRA; (4) the instructions conflicted with
MSD’s obligation not to discriminate or retaliate against a disabled employee.
Crisp’s second and fourth points are impermissibly multifarious in violation of Rule
84.04(d)(1). Rule 84.04 is violated if a point “groups together multiple, independent claims
rather than a single claim of error, and a multifarious point is subject to dismissal.” Kirk v. State,
520 S.W.3d 443, 450 n.3 (Mo. banc 2017). “Separate issues should be stated in separate points
relied on.” Hale v. Burlington N. & Santa Fe Ry. Co., 638 S.W.3d 49, 61 (Mo. App. S.D. 2021)
(quoting Wheeler v. McDonnell Douglas Corp., 999 S.W.2d 279, 283 n.2 (Mo. App. E.D.
8 1999)). This is so because “separate and distinct inquiries . . . require discrete legal analyses.”
Lollar v. Lollar, 609 S.W.3d 41, 45 n.4 (Mo. banc 2020). A multifarious point on appeal
preserves nothing for appellate review. Kirk, 520 S.W.3d at 450 n.3.
In our discretion, we may review all, some, or none of a multifarious point relied on. See,
e.g., Fowler v. Missouri Sheriffs’ Retirement Sys., 623 S.W.3d 578, 582-83 (Mo. banc 2021)
(electing to review none of the claims in a multifarious point relied on); Griffitts v. Old Republic
Ins. Co., 550 S.W.3d 474, 478 (Mo. banc 2018) (electing to review only the first of two claims in
a multifarious point relied on).
While the single broad issue is the same—whether the trial court erred by instructing the
jury with Instructions 9 and 14 that followed MAI 38.08—Crisp includes at least four different
legal reasons in his second and fourth points about how each confused and misdirected the jury,
and as such, these points are multifarious. See Cedar Cnty. Comm’n v. Governor Michael
Parson, 661 S.W.3d 766, 772 n.6 (Mo. banc 2023) (concluding that a point relied on asserting
two separate and independent challenges to legislation under the Missouri Constitution was
multifarious, violated Rule 84.04, and preserved nothing for review). Though we may choose to
not address a multifarious point, we prefer to decide cases on their merits. We may exercise our
discretion to address the merits of each claim in a multifarious point relied on when we can
readily discern and separate the independent claims of error asserted in the point. Cityview Real
Estate Servs., LLC v. K.C. Auto Panel, Inc., 576 S.W.3d 187, 191 (Mo. App. W.D. 2019).
We therefore exercise our discretion to address the merits of the deficient points on
appeal and we will separate Crisp’s “contentions, as best we can discern them, and respond to
each one individually.” Wennihan v. Wennihan, 452 S.W.3d 723, 728 (Mo. App. W.D. 2015)
(citation omitted).
9 Points One and Three
In Crisp’s first and third points, he argues the trial court erred in giving Instructions 9 and
14, patterned after MAI 38.08, because he contends that MAI 38.08 fails to reflect the intended
meaning of section 213.101.2 requiring the jury be given a business judgment instruction. Crisp
argues that the trial court erred by rejecting his proffered Alternate Instruction A, which was
based on 8th Circuit Model Instruction 5.02.
Generally, “[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.”
Rule 70.02(b); See also Hervey, 379 S.W.3d at 159; Syn, Inc. v. Beebe, 200 S.W.3d 122, 128
(Mo. App. W.D. 2006) (“The law is well-settled that where an MAI instruction applies to the
case, the use of such instruction is mandatory.”). “And, since ‘MAI instructions, promulgated
and approved by the Supreme Court, are authoritative if applicable to the factual situation . . .
this [C]ourt, as was the trial court, is bound by them as surely as it is bound by Supreme Court
cases and rules.’” Clark v. Missouri & N. Arkansas R.R. Co., 157 S.W.3d 665, 671 (Mo. App.
W.D. 2004) (quoting Lindsay v. McMilian, 649 S.W.2d 491, 493–94 (Mo. App. W.D. 1983)).
“Rule 70.02 further provides that departure from an applicable MAI constitutes error, its
prejudicial effect to be judicially determined.” Hervey, 379 S.W.3d at 159. If, however, a
particular MAI does not accurately state or it conflicts with the substantive law, it should not be
given. See id.; Rhoden v. Missouri Delta Med. Ctr., 621 S.W.3d 469, 480 (Mo. banc 2021);
Clark, 157 S.W.3d at 671 (“If an instruction following MAI conflicts with the substantive law,
any court should decline to follow MAI.”). We consider and read all the instructions together
10 when assessing any claim of error. See SKMDV Holdings, Inc., 494 S.W.3d at 554; Yoos v.
Jewish Hosp. of St. Louis, 645 S.W.2d 177, 189 (Mo. App. E.D. 1982).
A business judgment instruction and its use in an MHRA case was addressed in 2006 in
McBryde v. Ritenour School District, 207 S.W.3d 162 (Mo. App. E.D. 2006). In McBryde, the
Eastern District of this Court held that a trial court did not commit reversible error by failing to
submit a business judgment instruction to a jury. Id. at 171. The defendant offered a business
judgment instruction at trial that referenced an Eight Circuit Model Civil Jury Instruction, which
the trial court refused to give. Id. at 170-71. On appeal, the defendant argued that Missouri
courts should follow the Eight Circuit’s view that “in employment discrimination cases, a
business judgment instruction is crucial to a fair presentation of the case, and the . . . court must
offer it whenever it is proffered by the defendant.” Id. at 171. The Court disagreed, stating that
“[i]f the Missouri Supreme Court had wished to adopt the language of the Eighth Circuit’s model
jury instruction regarding the business judgment instruction, it could have done so when it
drafted and subsequently adopted MAI jury instructions specifically addressing the MHRA.” Id.
The Court found that it was not error for the trial court to refuse the defendant’s business
judgment instruction. Id.
In 2017, the Missouri General Assembly significantly amended the MHRA through
Senate Bill 43 (SB 43). The General Assembly also abrogated all Missouri approved jury
instructions specifically addressing civil actions brought under chapter 213 in effect before
August 28, 2017. § 213.101.6. Section 213.101.2, amended as part of SB 43, also provided the
following:
The general assembly hereby expressly abrogates the case of McBryde v. Ritenour School District, 207 S.W.3d 162 (Mo. App. E.D. 2006), and its progeny as it relates to the necessity and appropriateness of the issuance of a business judgment
11 instruction. In all civil actions brought under this chapter, a jury shall be given an instruction expressing the business judgment rule.
§ 213.101.2.
After this, in May 2018, the Supreme Court of Missouri adopted and approved new and
revised civil instructions, notes on use, committee comments, and historical notes for use in
employment discrimination cases. The revised and new instructions became mandatory on
January 1, 2019. MAI 38.08, titled “[2018 New] Missouri Human Rights Act—Business
Judgment Rule (for actions accruing on or after August 28, 2017)” was one of the new
instructions approved by the Missouri Supreme Court for use in cases alleging a cause of action
under chapter 213, the MHRA. MAI 38.08 provides the following:
Your verdict must be for defendant if you believe defendant (here insert the alleged discriminatory act submitted in plaintiff’s verdict directing instruction such as “failed to hire,” “discharged,” or other act within the scope of §§ 213.055, RSMo) plaintiff because (here insert non-discriminatory business reason for defendant’s action) as an exercise of sound business judgment without regard to plaintiff’s (here insert the applicable protected classification submitted by plaintiff such as race, color, religion, national origin, etc.) even if you disagree with such decision or believe it to be harsh.
(Footnotes omitted).
Crisp alleged disability discrimination and retaliation under the MHRA, and he alleged
the unlawful actions took place after August 28, 2017. 5 Therefore, the new instructions,
including MAI 38.08, applied to Crisp’s case.
We look to the statutes that govern an MHRA discrimination claim, and specifically
section 213.101.2, as it relates to Crisp’s claims on appeal related to the business judgment
instructional errors as the substantive law. See Hervey, 379 S.W.3d at 159 (stating that “[t]he
source of the substantive law in [an employment discrimination action under the MHRA] is the
5 Crisp also alleged a non-MHRA claim that he was wrongfully discharged for whistleblowing.
12 statutes that govern an MHRA discrimination claim.”) As we have already stated, section
213.101.2 provides that in civil actions brought under chapter 213, “a jury shall be given an
instruction expressing the business judgment rule.” Crisp argues that Instructions 9 and 14 failed
to follow the intent of section 213.101.2 because those instructions were not “instruction[s]
expressing the business judgment instruction,” but instead were improperly expressed
affirmative converse defenses that were not based on statutory language or other precedent
intended by the MHRA.
Crisp argues that when the Missouri Legislature enacted section 213.101.2, it did not
intend for jurors to be instructed with the language of the business judgment instruction
subsequently adopted and approved in MAI 38.08, from which Instructions 9 and 14 were
patterned. Crisp contends the trial court should have instructed the jury using his Alternate
Instruction A, which was based on 8th Circuit Model Instruction 5.02.
Crisp argues the trial court should have used this alternative instruction because it was the
only existing “business judgment rule” in employment discrimination jurisprudence as McBryde
expressly considered a version of the 8th Circuit business judgment model instruction before
holding that the trial court did not commit reversible error by failing to submit it to the jury. In
somewhat confusing reasoning, Crisp theorizes that the Missouri Legislature’s purpose was
aimed at authorizing and sanctioning the 8th Circuit business judgment model instruction when
the Legislature specifically abrogated McBryde’s ruling in section 213.101.2. Crisp asserts that
8th Circuit Model Instruction 5.02 is superior to MAI 38.08 as it is a general instruction without
factual assertions, it would not be repeated for each case theory, and it does not use affirmative
converse language.
13 We are unpersuaded by Crisp’s arguments. “If a non-MAI instruction is proffered, the
party offering the non-approved instruction must prove that the MAI instructions submitted to
the jury misstate the law.” State ex rel. Missouri Highway and Transp. Comm’n v. Dale, 309
S.W.3d 380, 385 (Mo. App. S.D. 2010) (internal quotation marks omitted). Crisp has not shown
that MAI 38.08 misstates the law.
Section 213.101.2 states that a jury shall be given an instruction expressing the business
judgment rule. MAI 38.08 does just that. The MAI itself is titled “38.08 [2018 New] Missouri
Human Rights Act—Business Judgment Rule (for actions accruing on or after August 28,
2017).” Instructions 9 and 14 followed MAI 38.08 and the Notes on Use. The trial court was
bound to instruct the jury using MAI 38.08 and “it is not an error for the trial court to offer an
MAI instruction that is directly applicable.” Wickham v. Hummel, 659 S.W.3d 345, 365 (Mo.
App. W.D. 2022).
“[T]here is a plethora of law which states that instructions should not be unnecessarily
modified and trial courts should utilize MAI whenever possible.” Dale, 309 S.W.3d at 386.
Therefore, the trial court did not err in refusing Crisp’s proffered non-MAI instruction, Alternate
Instruction A. The trial court would have committed error in this circumstance had it given
Crisp’s Alternate Instruction A instead of Instructions 9 and 14 that were patterned after MAI
38.08. See Dale, 309 S.W.3d at 386 (“[T]he giving [of] a non-MAI instruction instead of an
applicable MAI instruction is presumed to be reversible error.”).
“The law is well-settled that where an MAI instruction applies to the case, the use of such
instruction is mandatory.” Syn, Inc., 200 S.W.3d at 128. “In insisting that the appropriate MAI
be followed, the Supreme Court of Missouri has explained that use of the MAI is key to the
14 integrity of the court system.” Id. (citing Brown v. St. Louis Pub. Serv. Co., 421 S.W.2d 255,
258 (Mo. banc 1967)). The Supreme Court of Missouri has cautioned litigants:
“[I]f we are to have a system of patterned instructions, those patterned instructions must be followed. To invite one unapproved ‘improvement’ invites more unapproved, nonuniform ‘improvements.’ Ultimately, the result would be no patterned instructions. Patterned instructions serve to clarify the law as succinctly and clearly as possible. To invite additions, in areas covered by MAI civil or criminal, is to invite confusion.”
Clark, 157 S.W.3d at 672 (quoting State v. Phillips, 583 S.W.2d 526, 530 (Mo. banc 1979)). We
do not accept the premise that the 8th Circuit’s model business judgment instruction is superior
to MAI 38.08. Sporadic use of the 8th Circuit’s model business judgment instruction instead of
MAI 38.08 would violate the “system of instruction such as MAI [that] is inherently
standardized and inflexible [such that] [i]f this [C]ourt is to make this system work, and preserve
its integrity and very existence, we must insist that mandatory directions be followed and that the
pattern instructions be used as written.” Brown, 421 S.W.2d at 258.
Crisp’s argument presumes that the General Assembly’s 2017 amendments to section
213.101.2 were intended to adopt the precise wording of 8th Circuit Model Instruction 5.02,
rather than to mandate the use of a “business judgment rule” instruction generally. We are not
persuaded. The amendments to section 213.101 cite to numerous court decisions, including
McBryde. The Legislature was plainly capable of citing specifically to 8th Circuit Model
Instruction 5.02 if it chose to do so; or it could have quoted the specific language of the model
instruction (which is brief) if it had intended to mandate the use of that precise language.
Crisp argues that the General Assembly must have intended to adopt the specific wording
of the 8th Circuit model instruction, because “[t]he only existing ‘business judgment rule’ in
employment discrimination jurisprudence, and one expressly referred to in § 213.101.2, was 8th
Circuit Model Instruction 5.52, expressly at issue in McBryde, 207 S.W.3d at 170.” That
15 statement is inaccurate. McBryde itself cites to two cases from other federal Circuits, in which
different language was proposed for “business judgment rule” instructions in employment
discrimination cases. 6 Further, at least one case from the 8th Circuit endorsed instructional
language reflecting the “business judgment rule” that was different from the Model Instruction. 7
6 See Julian v. City of Houston, 314 F.3d 721, 727 (5th Cir. 2002), in which the employer proposed the following instruction: You are instructed that an employer is free to direct its work force as it considers best to meet its objectives. You are not being asked to judge whether acts by the Defendant were wise, whether they represented good management, or whether you would have handled matters in a different fashion. The City is free to use its own judgment, so long as it did not act with the intent to discriminate against Mr. Julian because of his age.
See also Kelley v. Airborne Freight Corp., 140 F.3d 335, 350 n.4 (1st Cir. 1998), in which the employer proposed this “business judgment rule” instruction: Mr. Kelley must show more than that Airborne made an unwise business decision, unnecessary personnel move, or acted arbitrarily . . . Good faith errors in an employee’s business judgment are not, standing alone, evidence of age discrimination.
7 In Walker v. AT & T Techs., 995 F.2d 846 (8th Cir. 1993), the Court held that the following instruction accurately stated “the substantive law that an employer has the right to make business decisions . . . for good reason, bad reason, or no reason at all, absent intentional age discrimination”: It is not unlawful for an employer to assign work to an employee, or require that employee to meet certain performance standards or expectations where the action is based on factors other than age. It is not unlawful for an employer to discriminate against an employee because of the employer’s view of the employee’s capabilities.
...
Put another way, the basic principle is that an employer has the right to assign work to an employee, to change an employee’s duties, to refuse to assign a particular job to an employee or even to discharge an employee for good reason, bad reason, or no reason at all absent intentional age discrimination . . . .
Id. at 848, 849-50.
16 Moreover, Crisp’s argument ignores that the most common use of “the business judgment rule”
in Missouri law involves the personal liability of corporate officers or directors for actions taken
on the corporation’s behalf. The most common formulation of “the business judgment rule” in
that context uses terminology similar to MAI 38.08. 8
The trial court properly instructed the jury with Instructions 9 and 14, which were
patterned after MAI 38.08, because MAI 38.08 was applicable to the case and it did not misstate
the law.
Points one and three are denied.
Points Two and Four
Next, we turn to Crisp’s arguments in his second and fourth points, that the business
judgment instruction given in Instructions 9 and 14 confused and misdirected the jury for several
independent reasons. As we have already said, these points are multifarious. We exercise our
discretion to provide ex gratia review of Crisp’s arguments in these points and will separate
Crisp’s contentions as best as we can discern them and respond to each individually.
8 See S.M.S. v. J.B.S., 588 S.W.3d 473 (Mo. App. E.D. 2019): The business judgment rule protects the directors and officers of a corporation from liability for intra vires decisions within their authority and made in good faith, uninfluenced by any consideration other than an honest belief that the action promotes the corporation’s best interest. The rule vests the directors and shareholders with wide latitude in making judgments that affect the running of the corporation. The rule precludes courts from interfering with the decisions of corporate officers and directors absent a showing of fraud, illegal conduct, an ultra vires act, or an irrational business judgment.
Id. at 499 (quoting Virgil Kirchoff Revocable Trust v. Moto, Inc., 482 S.W.3d 834, 841-42 (Mo. App. E.D. 2016)).
17 First, Crisp asserts that the instructions confused and misdirected the jury because the
instructions were affirmative converse instructions with detailed evidentiary facts violating Rule
70.02 without any paragraph or conjunctive language.
“Affirmative converse instructions are described in MAI 33.01 and 33.05.” Zerpa v.
XPO Logistics Freight, Inc., 662 S.W.3d 1, 6 (Mo. App. W.D. 2022). “An affirmative converse
instruction begins with ‘Your verdict must be for defendant if you believe’ followed by a
hypothesized ultimate issue which, if true, would defeat plaintiff’s claim.” Intertel, Inc., v.
Sedgwick Claims Mgmt. Serv. Inc., 204 S.W.3d 183, 208 (Mo. App. E.D. 2006). “The facts
hypothesized in an affirmative converse instruction must be sufficient in law to defeat the
plaintiff’s claim.” Id. at 209. “A defendant may submit his theory of the case through the use of
an affirmative converse instruction.” Id. The defendant, however, “must then produce
independent evidence supporting those facts submitted in the instruction and the facts must be
sufficient in law to defeat plaintiff’s claim.” Id.
The affirmative converse instruction is not to be used merely as a means of conversing, in different language, the very same issue submitted in the verdict director instruction . . . An affirmative converse instruction is appropriate where the verdict director assumes as true or omits a disputed ultimate issue . . . An affirmative converse instruction may be appropriate where it is used by a defendant to submit an ultimate issue that was erroneously excluded from plaintiff’s verdict director . . . Affirmative converse instructions are suspect unless the converse submits a contested ultimate issue that was omitted from or assumed as true in the verdict director.
Zerpa, 662 S.W.3d at 6 (internal quotation marks and citations omitted).
Instructions 9 and 14 begin as affirmative converse instructions, with the language, “Your
verdict must be for defendant if you believe . . . .” This language is then followed by a
hypothesized ultimate issue which, if true, would defeat Crisp’s claims—that there were several
non-discriminatory business reasons for MSD’s discharge of Crisp and that the decision to
18 discharge Crisp was done as an exercise of sound business judgment and without regard to
Crisp’s disability.
We acknowledge that “Missouri [c]ourts generally disfavor affirmative converse
instructions.” Medley v. Joyce Meyer Ministries, Inc., 460 S.W.3d 490, 500 n.8 (Mo. App. E.D.
2015). In Hiers v. Lemley, the Supreme Court of Missouri set forth the following reasons why:
Such instruction, like the true converse, is an accessory and unnecessary to the instruction package. An affirmative converse instruction tends to resemble a prohibited ‘sole cause’ instruction. The affirmative converse instruction is often merely a resubmission of the issues found in the verdict director. It requires evidentiary support to justify its submission. In addition, it has the propensity to violate the general premise of the approved instruction format by including unnecessary evidentiary details instead of ultimate issues. Rule 70.02(a).
834 S.W.2d 729, 735–36 (Mo. banc 1992). Crisp argues MAI 38.08’s business judgment
instruction assumes, rather than hypothesizes, an issue of ultimate fact, and does not make clear
that each element is in dispute. We disagree.
Instructions 9 and 14 did not improperly assume as true any disputed fact. Although
affirmative converse instructions have been disfavored by Missouri courts and their use can
come with risk, affirmative converse instructions are approved by the MAI and are appropriate in
certain situations. See Douglas v. St. Louis Cold Drawn, Inc., 439 S.W.3d 775, 779 n.5 (Mo.
App. E.D. 2014). The use of MAI 38.08 was appropriate in this case as the verdict directors
omitted a disputed ultimate issue—that there were legitimate reasons for MSD to discharge Crisp
from employment and that those reasons were not related to his disability.
Instructions 9 and 14, patterned after MAI 38.08, did not merely resubmit the issues
found in the verdict directors and the instructions did not violate the general premise of the
approved instruction format by including unnecessary evidentiary details instead of ultimate
issues. Instructions 9 and 14 were not improper affirmative converse instructions and the trial
court did not err in giving them. 19 Next, we address Crisp’s contention that Instructions 9 and 14 confused or misdirected
the jury because the instructions contained detailed evidentiary facts in violation of Rule 70.02
without paragraph format or conjunctive language and he was prejudiced because the jury could
not readily understand the instructions. Crisp argues that the format allowed the jury to assume
that the stated reasons for Crisp’s discharge as set forth in the July 22, 2020, termination letter
were each true without any opportunity to find to the contrary.
It is well settled in Missouri that before reversible error can be predicated on the giving of a MAI, the complaining party need show that, under all the evidence, the instruction was a misdirection to the jury resulting in prejudicial error. To this end, therefore, all the instructions are to be read together as a whole, and as being given to and considered by jurors of reasonable intelligence.
Yoos, 645 S.W.2d at 189-90 (internal citations omitted).
As we have already said, Instructions 9 and 14 followed MAI 38.08 and its
accompanying Notes on Use. The form of the instruction and the language criticized by Crisp
“was deliberately and carefully chosen by the Missouri Supreme Court Committee on Civil Jury
Instructions, and then subsequently approved by the Missouri Supreme Court itself.” Clark, 157
S.W.3d at 672. “[W]e are to assume that the special committee carefully considered the precise
words to use in each approved instruction in order to provide simple, concise and understandable
instructions.” Id. (internal quotation marks omitted) (quoting State ex rel. Kansas City Power &
Light Co. v. Campbell, 433 S.W.2d 606, 611 (Mo. App. W.D. 1968)). We must “credit jurors
with ordinary intelligence, common sense, and average understanding of the English language,”
Williams v. Daus, 114 S.W.3d 351, 370 (Mo. App. S.D. 2003) (citation omitted), when we
review jury instructions and we do not believe that the jury was confused or misdirected because
of the format of Instructions 9 and 14.
This Court, as well as the trial court, is bound by the approved MAI, and MAI 38.08 did
not require paragraph form. Further, the trial court modified Instructions 9 and 14 to Crisp’s 20 benefit when it changed MSD’s proposed language in the section of its 38.08 instruction
describing MSD’s non-discriminatory business reasons for Crisp’s discharge to better align with
what was described in the July 22, 2020, termination letter, by changing the word “or” to “and”
in the reasons listed for discharge.
Further, the format of Instructions 9 and 14 did not require the jury to assume that the
stated reasons for Crisp’s discharge set forth in the July 22, 2020, termination letter were each
true. The instructions clearly stated jurors could only return a verdict for MSD if they
determined MSD discharged Crisp because of the stated reasons as an exercise of sound business
judgment and without regard to Crisp’s disability. Jurors could believe or disbelieve the
evidence presented on that issue. Additionally, “[i]n testing the legal sufficiency of instructions,
a court ‘should not be hypertechnical in requiring grammatical perfection, the use of certain
words or phrases, or any particular arrangement or form of language . . . .’” McDowell v.
Southwestern Bell Tel. Co., 546 S.W.2d 160, 171 (Mo. App. 1976) (quoting Bartleman v.
Humphrey, 441 S.W.2d 335, 348 (Mo. 1969)). We do not believe that a lack of paragraph
format prejudiced Crisp when we credit jurors, as we must, as having ordinary intelligence and
common sense and we conclude that Crisp has not established confusion or misdirection.
Next, we address Crisp’s argument that Instructions 9 and 14 confused and misdirected
the jury in that the instructions conflicted with the required “motivating factor” language of the
verdict directors for the disability discrimination and retaliation claims.
The verdict director for Crisp’s disability discrimination claim, Instruction 8, read as
follows:
On the claim of plaintiff for compensatory damages for disability discrimination, your verdict must be for plaintiff if you believe: First, plaintiff has a physical impairment that substantially limits one or more of plaintiff’s major life activities, and
21 Second, such impairment would not interfere with performing the job in question if provided reasonable accommodation, and Third, defendant discharged plaintiff’s employment, and Fourth, such disability actually played a role in and had a determinative influence on such action, and Fifth, such conduct directly caused damage to plaintiff.
The verdict director for Crisp’s retaliation claim, Instruction 13, read as follows:
On the claim of plaintiff for compensatory damages for retaliation, your verdict must be for plaintiff if you believe: First, plaintiff reported to defendant his reasonable, good faith belief that he was being discriminated against because of his disability, and Second, defendant discharged plaintiff, and Third, plaintiff’s report mentioned in paragraph First actually played a role in and had a determinative influence on such discharge, and Fourth, such conduct directly caused damage to plaintiff.
The verdict directors were not modified by adding affirmative defense tails, which would refer
the jury directly from the verdict directors to Instructions 9 and 14, which, as we discussed
supra, were affirmative converse instructions. 9
Motivating factor is defined in section 213.010(19) as “the employee’s protected
classification actually played a role in the adverse action or decision and had a determinative
influence on the adverse decision or action.” As part of the 2017 amendments to the MHRA, the
“contributing factor” standard was changed to a “motivating factor” standard. Bracely-Mosley v.
9 We note that unlike a true converse instruction, affirmative converse instructions require “that the verdict director contain a phrase, commonly referred to as an ‘affirmative defense’ tail, which refers the jury directly from the verdict director to the affirmative converse instruction.” Intertel, Inc., v. Sedgwick Claims Mgmt. Serv. Inc., 204 S.W.3d 183, 208-209 (Mo. App. E.D. 2006). See also Hollis v. Poplar Bluff Reg’l Med. Ctr., LLC, 674 S.W.3d 76, 85 n.1 (Mo. App. S.D. 2023) (“The MAI 33.05(1) Notes on Use direct that where an affirmative converse instruction is properly submitted, the verdict director is modified by adding an affirmative defense tail, which refers the jury directly from the verdict director to the affirmative converse instruction.). Here, neither verdict director for Crisp’s claims for disability discrimination nor retaliation contained such affirmative defense tail. Crisp did not raise this issue before the trial court in his motion for new trial and has not raised this on appeal so we do not address it further.
22 Hunter Eng’g Co., 662 S.W.3d 806, 815 n.10 (Mo. App. E.D. 2023). As part of his argument on
this issue, Crisp points out that the old lawful justification instruction, MAI 38.02, 10 for actions
accruing before August 28, 2017, and for which a new post-SB 43 version was not promulgated
and approved, contains the contributing factor language and MAI 38.08 does not contain the
parallel motivating factor language.
As we have already said, both the form of the instructions and the language criticized by
Crisp were “deliberately and carefully chosen by the Missouri Supreme Court Committee on
Civil Jury Instructions, and then subsequently approved by the Missouri Supreme Court itself.”
Clark, 157 S.W.3d at 672. “[W]e are to assume that the special committee carefully considered
the precise words to use in each approved instruction in order to provide simple, concise and
understandable instructions.” Id. (internal quotation marks omitted) (quoting Kansas City
Power & Light Co., 433 S.W.2d at 611). The jury was instructed on motivating factor in the
verdict director. We do not believe the jury was misdirected on the issue of whether Crisp’s
disability actually played a role in and had a determinative influence on his discharge.
Crisp also argues that Instruction 9 omitted the consideration of reasonable
accommodations, which conflicts with the verdict director on the disability discrimination claim.
Crisp argues that the jury was misdirected in that Instruction 9 allowed the jury to erroneously
10 MAI 38.02 provides the following: Your verdict must be for defendant if you believe: First, defendant (here insert alleged discriminatory act submitted in plaintiff's verdict directing instruction such as “failed to hire,” “discharged” or other act within the scope of § 213.055, RSMo) plaintiff because (here set forth the alleged lawful reason such action was taken), and Second, in so doing (here insert the protected classification submitted by plaintiff, such as race, color, religion, national origin, etc.) was not a contributing factor.
23 believe MSD could disregard and act “without regard to” Crisp’s disability and the reasonable
accommodations necessary for Crisp to perform his job duties. We disagree. Instruction 9 did
not instruct the jury that MSD could disregard Crisp’s disability.
While Crisp would prefer additional language related to reasonable accommodations
included as part of a business judgment instruction, this is not the language that the Supreme
Court of Missouri carefully considered and approved as part of MAI 38.08.
Instructions 9 and 14 did not conflict with MSD’S obligation not to discriminate or
retaliate against an employee, and MAI 38.08’s language does not, as Crisp contends, rewrite the
MHRA. Instructions 9 and 14 were properly given in that they applied to the facts of the case,
they followed the pattern MAI 38.08, which itself did not misstate or conflict with substantive
law, and therefore the use of MAI was mandatory in this situation.
Points two and four are denied.
Conclusion
The judgment of the circuit court is affirmed.
Janet Sutton, Presiding Judge
Alok Ahuja, Judge and Mark D. Pfeiffer, Judge concur.