James W. Riner1

Daniel N. McPherson1

Brian D. Byrd1

I. Introduction

The Missouri doctrine of at-will employment holds that "an employer can discharge—for cause or without cause—an at will employee . . . and still not be subject to liability for wrongful discharge."² This draconian result was tempered when the tort of wrongful discharge under the public policy exception to the at-will doctrine was first recognized in 1985 in the case of Boyle v. Vista Eyewear, Inc.³ Plaintiff Boyle had complained to her supervisor that the defendant was not testing the glasses it manufactured for break resistance as required by the Food and Drug Administration. The company told Boyle to mind her own business, and that it had insurance to cover any claims customers might make for injury to their eyes. Plaintiff and other employees then complained to the Occupational Safety and Health Administration (OSHA) and to the Food and Drug Administration (FDA). Plaintiff was subsequently fired on the basis that she had accused her supervisor of using drugs. Plaintiff then brought, inter alia, a claim for wrongful discharge because she had filed complaints with OSHA and the FDA. This claim was dismissed by the trial court.

After reviewing cases from some of the 28 other states that had adopted such a public policy exception to the at-will employment doctrine, and after assuring the employers within the state that they had nothing to fear so long as they complied with the law and did not ask their employees to commit wrongful acts, the Missouri Court of Appeals for the Western District stated:

Accordingly, where an employer has discharged an at-will employee because that employee refused to violate the law or any well established and clear mandate of public policy as expressed in the constitution, statutes and regulations promulgated pursuant to statute, or because the employee reported to his superiors or to public authorities serious misconduct that constitutes violations of the law and of such well established and clearly mandated public policy, the employee has a cause of action in tort for damages for wrongful discharge.⁴

The Missouri doctrine of wrongful discharge in violation of public policy has developed through case law into three distinct categories of conduct for which an employee may not be discharged. If an employee is discharged within any of these categories, he has a tort claim for damages against his employer:

• Refusing to perform an illegal act or an act contrary to a strong mandate of public policy.

• Reporting wrongdoing or violations of law or public policy by the employer or fellow employees to superiors or third parties who have authority over the wrongdoer.

• Acting in a manner that public policy would encourage, such as performing jury duty, seeking public office, or joining a labor union.

A fourth protected activity for which an at-will employee cannot be terminated is the filing of a workers' compensation claim. This protection was created by the General Assembly in 1973 through enactment of § 287.780, RSMo.

Each of these exceptions will be explored in turn. A recent text dealing with this subject is Stephen M. Kohn's book, Concepts and Procedures in Whistleblower Law (Quorum Books 2001).

A. Refusing to Perform an Illegal Act

To come within this prong of the exception to the at-will employment doctrine, the employee has to show that he was discharged for refusing to perform an unlawful act or for performing a mandated lawful act contrary to the directions of his employer. The conduct required by the employer must amount to a violation of a statute, constitutional provision, ordinance or regulation.⁵

In Petersimes v. Crane Co.,⁶ plaintiff was defendant's quality assurance manager. When plaintiff refused to certify a shipment of postal commodity vending machines because they failed to meet the safety and quality specifications of the contract, he was told to stay home on the date of the shipment "and his supervisor certified the shipment." Plaintiff was moved to another plant, where he continued to seek compliance with contract specifications on other vending contracts of defendant. Plaintiff was terminated approximately seven months after he refused to certify the postal shipment. He filed suit, claiming he was terminated for refusing to violate a federal statute forbidding "the making of any false or fraudulent statements . . . [on] any matter within the jurisdiction of . . . [a] United States agency." The court found plaintiff's claim that he was terminated because of his refusal to certify the postal shipment stated a cause of action. The defendant's argument that the seven month gap between plaintiff's refusal to violate the statute and his dismissal was ruled an evidentiary matter.

Another example of an employee refusing to perform an illegal act can be found in Beasley v. Affiliated Hosp. Prods.⁷ There an employee alleged he was terminated because he refused "to fraudulently predetermine the winner of a . . . raffle" of defendant's products. The court found that he was held to have pled a clear violation of public policy as set out in both state and federal criminal statutes.

An employee must plead specific facts to fall within this exception. For example, when a plaintiff alleged that defendant hospital had committees "prepare bogus minutes of the meetings" for submission to the Joint Commission on the Accreditation of Hospitals, but failed to plead that she was directed to prepare such minutes or that she was discharged for failing to prepare such minutes, the court found that she failed to state a cause of action. The court reiterated that "[t]he public policy exception . . . is narrow;" "plaintiff . . . must expressly plead" discharge "because of . . . refusal to violate the law."⁸

In a similar case, a village marshal alleged he was told by the village trustees not to prosecute an individual for sale and possession of drugs, but did not allege that he prosecuted the individual and was discharged because of such action. While the marshal alleged he was discharged because "he enforced the . . . drug and traffic laws" of the state, he did not allege that the village trustees told him not to enforce those laws. The court held that , as he had failed to cite any "statute, constitutional provision or regulation . . . which would have been violated," the marshal failed to state a cause of action for wrongful discharge against the village trustees.⁹

B. Reporting Wrongdoing

The second prong of the protected conduct exceptions to the at-will employment doctrine is colloquially known as the "whistle blower" exception. To fall within this exception, the employee must report wrongdoing to someone who can do something about it, i.e., a supervisor other than the wrongdoer, or a third party who has some authority over the situation. It is not sufficient to tell the wrongdoer you know of his wrongdoing in the hope that he will cease, or to tell a co-worker who has no authority over the situation.

Reporting criminal activity, even internal theft, is mandated by public policy and the reporter is protected by this exception. Internal reporting of theft is sufficient so long as the superior is not also the wrongdoer.¹⁰

In Boyle, the public policy found to have been violated was an FDA regulation relating to the manufacture and testing of eyeglass lenses.¹¹ The court found that in alleging she was fired for threatening to report defendant's conduct to the FDA, plaintiff stated a cause of action for wrongful discharge.

Proof that the whistle blowing related to violation of a constitutional provision, statute, regulation, or clear mandate of public policy can be met by proof that the discharge itself is prohibited by constitution, statute, or regulation. Where plaintiff alleged abuse of laboratory animals, a federal regulation prohibiting reprisal or discrimination for reporting violations of the Animal Welfare Act provided the basis for suit.¹²

Some whistle blower actions are statutory. Section 198.070, RSMo, requires nursing home employees to report abuse or neglect of residents. When a nursing home employee reported allegations of abuse to the Missouri Division of Aging, she was terminated and brought a wrongful discharge claim. The court found that the statute created a clear public policy to report such suspicions, and she could not be terminated for having done so. In so finding, the court cited case law from other jurisdictions where employees had reported misconduct of the employer "either to their superiors or to the proper authority pursuant to statutes or ordinances. . . ."¹³

Reporting of an employer's criminal scheme to the FBI and assisting them in their investigation of the employer also clearly fall within this category of protected conduct.¹⁴ Likewise, plaintiff's demands to his supervisors to correct products that violated Food and Drug Administration regulations, his subsequent firing and instruction from his employer that he not contact the FDA was sufficient to make him a whistle blower.¹⁵

A fireworks manufacturer's employees made complaints to their employer that working conditions were unsafe and then contacted the United States Department of Labor to determine if plant conditions violated the Occupational Safety and Health Act (OSHA). On March 23, 1994, employees met with the employer's representative, discussed safety concerns and informed him that they had contacted the Department of Labor. The employees were fired on March 24. Plaintiffs' claim for wrongful discharge was based on a federal statute prohibiting employers from discharging an employee who has complained, instituted an action or exercised any right available under OSHA. The court held that the provisions of OSHA do not preempt Missouri's wrongful discharge remedy, and that the public policy exception was applicable to plaintiffs' claims.¹⁶

Not every complaint or report of wrongdoing is sufficient to trigger the whistle blower exception. An employee's questioning of payments to a secretary for hours not worked contained in a memo to a fellow employee did not constitute whistle blowing.¹⁷

Reporting to the person suspected of wrongdoing that you suspect him is not whistle blowing. After telling his boss he suspected the boss of stealing from the employer, employee was harassed by the boss and employee resigned. The court held the employee could not bring a whistle blower action because he had not blown the whistle — he did not report the alleged wrongdoing to anyone except the alleged wrongdoer.¹⁸

The employer also has to know that the whistle has been blown at the time it discharges the employee. Where plaintiff reported her employer's alleged Medicare and Medicaid fraud, but defendant had no knowledge plaintiff had done so at the time he terminated her, the exception was not applicable.¹⁹

A bare assertion that the employer was violating Federal Aviation Administration safety regulations without identifying the regulation or the applicable mandate of public policy is not sufficient to state a claim for wrongful discharge:

Henceforth, it will not be considered sufficient merely to plead that an employee was discharged because the employee reported the violation of a regulation by the employer. A petition must specify the legal provision violated by the employer, and it must affirmatively appear from the face of the petition that the legal provision in question involves a clear mandate of public policy.²⁰

A mere listing of the federal regulations alleged to have been violated by the employer is also not sufficient; the employee "must specify the legal provision violated by the employer" to adequately plead a cause of action for wrongful discharge. However, the employee is not required to show that the statute violated by the employer also explicitly prohibited discharge of the employee.²¹

C. Acting in a Manner Public Policy Would Encourage

Plaintiff, a registered nurse at defendant hospital, believed a patient under her care was not receiving proper medical care. She reported this to her supervisor, who told her to "stay out of it." Plaintiff then voiced her concerns to the chief of medical staff; proper treatment was then provided, but the patient died from the failure to earlier treat her condition appropriately. Plaintiff was terminated on the day her supervisor learned she had stated that decedent's physician was "paving [decedent's] way to heaven" and one or two days after the supervisor learned "[p]laintiff had offered to obtain [decedent's] medical records for the family." The court found that the Nursing Practice Act, §§ 335.011 to 335.096, RSMo, and the regulations enacted thereunder, "sets forth a clear mandate of public policy that Plaintiff not 'stay out' of a dying patient's improper treatment."²²

However, a pilot who refused to fly was not protected by an FAA regulation stating the pilot is "the final authority as to the operation of [the] aircraft" or by the Code of Ethics of the Helicopter Association International requiring pilots to "exercise their best judgment to insure (sic) . . . maximum safety." The court held neither provision prevented the employer from terminating a pilot whose judgment calls were different than his employer's.²³

Nor does the public policy exception protect an employee who is terminated for illegal use of drugs.²⁴

1. Damages

Plaintiff need not prove actual damages for such wrongful termination. He can receive nominal as well as punitive damages if the jury finds a wrongful discharge.²⁵

2. Constructive Discharge

Constructive discharge is recognized in the context of actions for wrongful discharge based on the public policy exception to the at-will employment doctrine if the employee is able to show that the employer created working conditions a reasonable person would regard as intolerable.²⁶

3. Causation

The causation standard remains unclear. Some past cases have required exclusive causation, even though the Boyle case did not.

In 1995, in Lynch v. Blanke, Baer & Bowey Krimko, Inc.,²⁷ the Court of Appeals for the Eastern District held that employee's action must be the exclusive cause for his termination. The court recommended, however, as it had done in a workers' compensation case, that when the employer advanced a nonretaliatory basis for the termination, that a burden shifting analysis be employed similar to that utilized in McDonnell Douglas Corp. v. Green.²⁸

The most recent case dealing with causation is Brenneke v. Department of Mo., Veterans of Foreign Wars²⁹ in 1998. The trial court's instruction required only that the firing be "because of" the whistle blowing, not that the whistle blowing was the exclusive cause for termination. The Missouri Court of Appeals for the Western District reviewed the decisions of the courts of appeals and concluded that those courts requiring exclusive causation ( Bell, Lynch, & Loomstein) had borrowed that "requirement from Missouri Supreme Court cases interpreting statutory actions for retaliatory discharge due to filing a workers' compensation claim. Those cases require proof of exclusive causation."³⁰ The court goes on to state that other jurisdictions, like Missouri, which treat wrongful discharge cases as tort actions only require the employee to prove by a preponderance of the evidence that termination was for an impermissible reason. But the court declined to resolve this issue, finding that it was not preserved for appeal.

D. Wrongful Discharge for Filing a Workers' Compensation Claim

This cause of action for wrongful discharge is not born from common law, but rather is a creature of statute. In 1973, by amending § 287.780 of the Missouri Revised Statutes, the General Assembly granted an employee the right to file a civil action for damages against an employer who discharged or in any way discriminated against him for exercising any rights under the workers' compensation law. Prior to 1973, any such discharge was a misdemeanor violation.

This statutory exception to the at-will doctrine, although at first glance a seemingly powerful tool for employees, has been very narrowly construed by the courts. There must be an exclusive causal relationship between the employee's exercise of his right, i.e. the filing of a claim, and the discharge. This has been an extremely difficult burden for an employee to meet.

The courts have enumerated a four-part test an employee must meet to establish a claim for retaliatory discharge: (1) an employment relationship existed between the employee and the employer prior to the time at which an employee's injury or occupational disease occurs; (2) the employee must have exercised a right under the workers' compensation law; (3) the employer discharged or discriminated against the employee; and "(4) an exclusive causal relationship between" the employee's exercise of a right granted by the workers' compensation law and the discharge or discrimination by the employer.³¹

An employee has no cause of action for retaliatory discharge if the employer can show that a "valid and nonpretextual" reason exists for the discharge.³² For instance, an employer can dismiss an employee if that employee has recovered from their injuries, but is either unwilling or unable to perform her job duties.³³ The workers' compensation law is not designed to ensure employment, and an employer has no duty to hold a job open or retain an injured employee where the necessary work can not be performed.³⁴ In such a situation, an employee may still have rights to certain benefits allowed under the workers' compensation law; i.e. temporary total disability, medical, and permanent partial or permanent total disability benefits. But that does not save an employee's job with the employer, and no cause of action for retaliatory discrimination exists.

Very rarely, if ever, will direct evidence exist that an employee was discharged or discriminated against for exercising her rights under the workers' compensation law; therefore, indirect evidence must be used to establish a cause of action. As such, proving a claim for retaliatory discharge under § 287.780 is a challenging endeavor.

Endotes

¹ Mr. Riner is a principal of the firm of Riner & Walker, P.C. in Jefferson City. He received his L.L.B. from the University of Missouri-Columbia in 1960. Mr. McPherson is a member of the firm of Riner & Walker, P.C. He received his J.D. from Drake University in 1996. Mr. Byrd is in private practice in Jefferson City. He received his J. D. from the University of Missouri-Columbia in 1999.

² Dake v. Tuell, 687 S.W.2d 191, 193 (Mo. banc 1985).

³ 700 S.W.2d 859 (Mo. App. W.D. 1985). The Supreme Court of Missouri had touched upon an exception to the at-will doctrine, but did not enunciate a public policy exception in Smith v. Arthur C. Baue Funeral Home, 370 S.W.2d 249 (Mo. 1963). The Supreme Court held that the right to choose union representatives granted to an employee by the Missouri Constitution also guaranteed the employee the right not to be terminated for exercising that right.

⁴ Id. at 878.

⁵ Crockett v. Mid-America Health Servs., 780 S.W.2d 656 (Mo. App. W.D. 1989).

⁶ 835 S.W.2d 514 (Mo. App. E.D. 1992).

⁷ 713 S.W.2d 557 (Mo. App. E.D. 1986).

⁸ Crockett, 780 S.W.2d at 656.

⁹ Yow v. Village of Eolia, 859 S.W.2d 920, 922 (Mo. App. E.D. 1993).

¹⁰ Faust v. Ryder Commercial Leasing & Servs., 954 S.W.2d 383 (Mo. App. W.D. 1997).

¹¹ 700 S.W.2d at 871.

¹² Luethans v. Washington Univ., 894 S.W.2d 169 (Mo. banc 1995). The employee was found to be a contract employee; therefore, the exceptions to the at-will employment doctrine were not applicable. Id. at 172-73.

¹³ Clark v. Beverly Enterprises-Missouri, Inc., 872 S.W.2d 522, 526 (Mo. App. W.D. 1994).

¹⁴ Olinger v. General Heating & Cooling Co., 896 S.W.2d 43 (Mo. App. W.D. 1994).

¹⁵ Lynch v. Blanke Baer & Bowey Krimko, Inc., 901 S.W.2d 147 (Mo. App. E.D. 1995).

¹⁶ Shawcross v. Pyro Prods., Inc., 916 S.W.2d 342 (Mo. App. E.D. 1995).

¹⁷ Adcock v. Newtec, Inc., 939 S.W.2d 426 (Mo. App. E.D. 1996).

¹⁸ Faust, 954 S.W.2d at 383.

¹⁹ Williams v. Thomas, 961 S.W.2d 869 (Mo. App. S.D. 1998).

²⁰ Adolphsen v. Hallmark Cards, Inc., 907 S.W.2d 333, 338-39 (Mo. App. W.D. 1995).

²¹ Porter v. Reardon Machine Co., 962 S.W.2d 932 (Mo. App. W.D. 1998).

²² Kirk v. Mercy Hosp. Tri-County, 851 S.W.2d 617, 622 (Mo. App. S.D. 1993).

²³ Lay v. St. Louis Helicopter Airways, Inc., 869 S.W.2d 173 (Mo. App. E.D. 1993). For an excellent article on judicial decisions as the source of public policy, see Brock Rowatt, Comment, The Public Policy Exception to Employment At Will: Can Judicial Decisions be Used as a Source of Public Policy?, 62 UMKC L. Rev. 325 (1993).

²⁴ Rothweil v. Wetterau, Inc., 820 S.W.2d 557 (Mo. App. E.D. 1991).

²⁵ Clark, 872 S.W.2d at 526.

²⁶ Bell v. Dynamite Foods, 969 S.W.2d 847 (Mo. App. E.D. 1998).

²⁷ Lynch, 901 S.W.2d 147.

²⁸ Id. at 152, citing Wiedower v. ACF Indus., Inc., 715 S.W.2d 303, 307 (Mo. App. E.D. 1986). See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

²⁹ 984 S.W.2d 134 (Mo. App. W.D. 1998).

³⁰ Id. at 140.

³¹ Hansome v. Northwestern Cooperage Co., 679 S.W.2d 273, 275 (Mo. banc 1984).

³² Coleman v. Winning, 967 S.W.2d 644 (Mo. App. E.D. 1998).

³³ Wolfe v. Central Mine Equip. Co., 895 S.W.2d 83 (Mo. App. E.D. 1995).

³⁴ Self v. Lenertz Terminal, Inc., 854 S.W.2d 571 (Mo. App. E.D. 1993).