Shereen Kader v. Board of Regents of Harris-Stowe State University, 565 S.W.3d 182

Background

Dr. Shereen Kader, an Egyptian national on J-1 status, taught at Harris‑Stowe State University from 2007–2010; Harris‑Stowe assisted with visa paperwork but did not sponsor her J‑1 after 2010.
Kader sought an O‑1 (extraordinary‑ability) visa and asked Harris‑Stowe for supporting documentation; USCIS requested more evidence from the university but the university reported receiving no request and did not appeal the O‑1 denial.
After her J‑1 expired and no new authorization was secured, Harris‑Stowe declined to renew Kader’s contract for 2010–11; Kader sued under the Missouri Human Rights Act (MHRA) for national‑origin discrimination and retaliation.
At trial the jury found for Kader on national‑origin discrimination and retaliation (but not race), awarding $750,000 actual and $1.75 million punitive damages; circuit court entered judgment on the verdict.
On appeal Harris‑Stowe challenged the circuit court’s disjunctive jury instructions (instructions 8 and 9), arguing they allowed liability theories not actionable under the MHRA—specifically the option that Harris‑Stowe’s failure to appeal the O‑1 denial constituted unlawful conduct.
The Missouri Supreme Court reviewed whether including the failure‑to‑appeal O‑1 option in disjunctive instructions was supported by substantial evidence and thus permissible.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an employer’s failure to appeal an employee’s denied O‑1 visa is an "unlawful employment practice" under § 213.055 (national‑origin discrimination)	Kader: seeking an appeal of the O‑1 denial was a privilege of employment and denial of that privilege constitutes discrimination	Harris‑Stowe: no evidence that appealing O‑1 denials was an employment privilege or that an appeal would have succeeded; failure to appeal therefore not actionable	Held: Failure to appeal the O‑1 denial was not shown to be an unlawful employment practice because (1) no evidence it was a privilege of employment and (2) no evidence an appeal would have succeeded, so that act had no adverse impact on employment status.
Whether failure to appeal the O‑1 denial can constitute unlawful retaliation under § 213.070	Kader: university’s failure to appeal was in retaliation for her discrimination complaint	Harris‑Stowe: even if a motivating factor, the act had no adverse impact (appeal unlikely to succeed), so cannot constitute actionable retaliation	Held: Not actionable retaliation—MHRA requires adverse action affecting employment; failing to appeal an unlikely O‑1 denial does not satisfy that element.
Whether disjunctive verdict‑directing instructions are proper when one alternative lacks substantial evidentiary support	Kader: multiple theories were supported by evidence and jury may choose any proven theory	Harris‑Stowe: disjunctive instruction included an alternative (failure to appeal) unsupported by substantial evidence, creating prejudice because jury’s choice cannot be discerned	Held: Disjunctive instructions improper where an alternative is not supported by substantial evidence; inclusion of the failure‑to‑appeal option was erroneous and prejudicial.
Remedy for erroneous, prejudicial jury instructions	Kader: jury verdict should stand	Harris‑Stowe: erroneous instructions warrant reversal and new trial	Held: Reversed and remanded for new trial on national‑origin discrimination and retaliation claims; Kader’s request for appellate fees denied since she did not prevail on appeal.

Key Cases Cited

Ross‑Paige v. St. Louis Metro. Police Dep’t, 492 S.W.3d 164 (Mo. banc 2016) (standard for disjunctive instructions and substantial evidence requirement)
Hervey v. Mo. Dep’t of Corr., 379 S.W.3d 156 (Mo. banc 2012) (reversal only for prejudicial instructional error)
Howard v. City of Kansas City, 332 S.W.3d 772 (Mo. banc 2011) (MHRA protects against unlawful employment practices based on protected traits)
Mantia v. Mo. Dep’t of Transp., 529 S.W.3d 804 (Mo. banc 2017) (use dictionary and statutory context when statute lacks definitions)
Cunningham v. Kansas City Star Co., 995 F. Supp. 1010 (W.D. Mo. 1998) (employer action must have adverse impact to be actionable under MHRA)
McCrainey v. Kansas City Mo. Sch. Dist., 337 S.W.3d 746 (Mo. Ct. App. 2011) (prima facie retaliation under MHRA requires adverse action)
Kazarian v. U.S. Citizenship & Immigration Servs., 596 F.3d 1115 (9th Cir. 2010) (O‑1 visa standards are stringent; courts defer to USCIS determinations)
Visinscaia v. Beers, 4 F. Supp. 3d 126 (D.D.C. 2013) (description of O‑1 extraordinary‑ability evidentiary requirements)