Case Summary for November 4, 2009

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Case Summary for November 4, 2009

THE FOLLOWING DOCKET SUMMARIES ARE PREPARED BY THE COURT'S STAFF FOR THE INTEREST AND CONVENIENCE OF THE READER. THE SUMMARIES MAY NOT INCLUDE ALL ISSUES PENDING BEFORE THE COURT AND DO NOT REFLECT ANY OPINION OF THE COURT ON THE MERITS OF A CASE. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION. SUMMARIES ARE UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9 a.m. Wednesday, Nov. 4, 2009

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SC89925
Michael Keveney v. Missouri Military Academy
Audrain County
Wrongful discharge of employee
Listen to the oral argument:

The academy was represented during argument by Ian P. Cooper of Tueth Keeney Cooper Mohan & Jackstadt, P.C. of St. Louis, and Keveney was represented by Michelle Dye Neumann of Dobson, Goldberg, Berns & Rich, LLP of St. Louis.

Michael Keveney was a teacher at Missouri Military Academy from 2002 to 2003. In October 2003, Keveney noticed bruises on one of his student's arms and urged his superiors to report the matter to the Missouri division of family services. His superiors refused to report the bruises and terminated Keveney. In May 2004, Keveney sued the academy for wrongful discharge in violation of public policy. He argued the academy terminated him because of his insistence that school authorities report the bruises to the division of family services as required by law. He also alleged that the academy breached his employment contract by terminating his employment without cause prior to the end of the contract's term. The school moved to dismiss Keveney's wrongful discharge claim, arguing that he was a contractual employee rather than an at-will employee and that Keveney failed to allege the elements of a wrongful discharge claim. The school also moved to strike Keveney's requests for emotional distress damages and punitive damages in connection with his breach of contract claim. The trial court sustained both of the school's motions. In July 2007, the academy moved for a directed verdict at the close of all evidence and later moved for judgment notwithstanding the verdict. The trial court overruled its motions and awarded Keveney $13,300 in accordance with the jury's verdict. Both parties appeal the trial court's judgment.

The academy argues Keveney failed to perform his contractual obligations and failed to make a submissible case for breach of his employment agreement. It contends the evidence established Keveney engaged in misconduct constituting cause for termination pursuant to the terms of his employment contract. In response to Keveney's cross-appeal, the academy argues the trial court properly sustained its motion to dismiss Keveney's petition for wrongful discharge because Keveney's petition failed to state a claim for wrongful discharge. The academy further responds that the trial court properly struck Keveney's claims for emotional distress and punitive damages because Missouri law does not recognize a claim for such damages under the facts Keveney pleaded.

Keveney responds that he presented substantial evidence that he performed his contract obligations and that the academy failed to perform its obligations by terminating him without cause. In his cross-appeal, he argues the trial court erred in granting the academy's motion to dismiss his wrongful discharge claim. Keveney argues a claim for wrongful discharge should be extended to contractual employees because the state has a vital interest in prohibiting employers from acting contrary to public policy, which should not vary depending on an employee's contractual status. Keveney asserts the facts he alleged are sufficient to state a claim that he was discharged wrongfully for acting in a manner that public policy would encourage and for refusing to perform an illegal act. He further argues he is entitled to emotional distress and punitive damages because the academy breached his contract in violation of public policy.

SC90032
Michelle Fleshner v. Pepose Vision Institute, P.C.
St. Louis County
Wrongful termination and no-compete clause
Listen to the oral argument:

The company was represented during argument by Robert A. Kaiser of Armstrong Teasdale LLP of St. Louis, and Fleshner was represented by Jerome J. Dobson of Dobson, Goldberg, Berns & Rich, LLP of St. Louis.

Michelle Fleshner was an employee of Pepose Vision Institute P.C. from September 2000 to May 2003. In April 2003, the federal department of labor began investigating whether Pepose failed to pay its employees overtime in violation of federal law. The department interviewed Fleshner and, shortly thereafter, Pepose terminated Fleshner. In July 2003, another eye doctor's office hired Fleshner, and Pepose subsequently sued to enforce its non-competition restriction in Fleshner's contract. In September 2003, the new employer fired Fleshner, and Pepose dismissed the lawsuit. Fleshner then sought declaratory judgment and injunctive relief against Pepose, arguing she should have been released from the non-competition restrictions in her contract. The parties settled during a December 2003 hearing, and Fleshner went to work for another doctor. In June 2004, Fleshner sued Pepose for wrongful termination in violation of public policy. Pepose requested an instruction prohibiting the jurors from considering evidence from the non-competition lawsuits. The trial court rejected the proposed instruction. The company moved for directed verdict and judgment notwithstanding the verdict. The trial court overruled its motions In October 2007, the trial court awarded Fleshner $30,000 in compensatory damages and $95,000 in punitive damages in accordance with the jury's verdicts. Afterward, a juror approached Pepose and said that, during jury deliberations, another juror had made derogatory, anti-Semitic comments about Pepose's employees who testified for Pepose. The company moved for a new trial due to jury misconduct. The trial court overruled the motion. The company appeals.

The company argues the trial court violated its due process rights by overruling the company's motion for a new trial. It asserts a new trial was proper because anti-Semitic remarks made by members of the jury impaired the company's ability to have its case heard by an impartial jury. The company contends Fleshner's public policy argument is pre-empted by the fair labor standards act, which provides a range of remedies for Fleshner's wrongful termination claim. In addition, the company argues, Fleshner did not offer substantial evidence to support the elements necessary to recover for wrongful termination because she failed to prove her allegedly protected activity was the "exclusive cause" of her termination. It asserts the trial court erred in allowing the jury to hear evidence about the company's enforcement of its non-competition agreement with Fleshner and then rejecting the company's limiting instruction because the evidence was not relevant to the issue of liability.

Fleshner responds that juror testimony alleging misconduct by other jurors cannot be used to impeach a verdict. She argues the fair labor standards act does not pre-empt her claim for wrongful termination because, given that it does not allow for punitive damages, it does not provide her with a comprehensive remedy and because a federal district judge already rejected Pepose's assertion that federal subject matter jurisdiction existed. Fleshner asserts she offered substantial evidence to support her claim that her termination violated public policy because the Missouri minimum wage law expresses a public policy against terminating employees who cooperate in state and federal government investigations. She further responds that the trial court used the proper standard in determining the cause of her termination. Because public policy discharge claims seek to remedy improper employment decisions, requiring an "exclusive causation" standard for wrongful termination in violation of public policy claims would result in wrongful activity by employers going unreported, unremedied and unsanctioned. Fleshner also asserts the trial court did not err in admitting evidence of the non-compete agreement or in rejecting Pepose's limiting instruction because the evidence was relevant to the company's motive as well as her right to certain actual and punitive damages.

The Anti-Defamation League argues, as a friend of the Court, that Pepose was denied the right to a fair and impartial jury. It contends Missouri law permits juror testimony when a litigant's right to a fair trial is jeopardized by racial or religious prejudice during jury deliberations and provides that a verdict may be set aside when passion, prejudice or misconduct on the part of the jury affects a trial issue.

The Kansas City and St. Louis chapters of the National Employment Lawyers Association argue, as friends of the Court, that the "exclusive causation" standard must be rejected in cases involving the public policy cause of action because it is inconsistent with Missouri case law and the goals of the cause of action. They contend the overwhelming majority of jurisdictions outside Missouri have rejected the "exclusive causation" standard in cases involving the public policy cause of action.

SC90249
Daniel Margiotta v. Christian Hospital Northeast d/b/a Christian Hospital, and BJC Health System
St. Louis County
Whistleblower, wrongful termination
Listen to the oral argument:

Margiotta was represented during argument by Ferne P. Wolf of Sowers & Wolf, LLC in St. Louis, and the hospital was represented by Joann T. Sandifer of Husch Blackwell Sanders LLP of St. Louis.

Daniel Margiotta worked for Christian Hospital in St. Louis from April to December 2005. In December 2005, Margiotta reported concerns about the safety of patients and staff and, three days later, his employment was terminated. Margiotta filed a whistleblower action against the hospital, alleging the hospital fired him because he reported unsafe patient practices. In March 2008, the hospital moved for summary judgment, arguing that Margiotta did not have sufficient evidence to prove an exclusive causal connection between reporting violations to his superiors and his discharge. The trial court sustained the hospital's motion. Margiotta moved for an extension of time to supplement the record. The trial court overruled his motion. Margiotta appeals.

Margiotta argues the trial court erred in sustaining the hospital's motion for summary judgment. He contends that the hospital argued Margiotta did not establish his complaints were the exclusive cause of his discharge but that "exclusive causation" should not be an element of his claim for a discharge in violation of public policy. Margiotta asserts the summary judgment should be reversed because the hospital did not follow the mandatory provisions of Rule 74.04(c)(1) in writing its summary judgment motion. He contends the hospital included multiple facts in paragraphs when the rule requires each fact to be a separate numbered paragraph. He argues the trial court should not have granted summary judgment because there were contested issues of material facts as to the cause of his termination. Margiotta asserts that he contested the reasons the hospital gave for discharging him and that the evidence would allow a jury to infer reasonably that his protests against the hospital's unsafe practices, which he argued violated state and federal regulations requiring patient safety, were the real reason for Margiotta's discharge. He further argues the trial court erred in overruling his motion for an extension of time to supplement the summary judgment record. Margiotta contends the hospital failed to update its discovery responses in a timely manner to allow him to depose another hospital employee whose testimony raised contested issues of material fact.

The hospital responds that Margiotta did not produce any probative evidence that his complaints about patient care played any causal role in his discharge and, therefore, the trial court properly sustained its motion for summary judgment. It contends Margiotta did not present evidence he was discharged exclusively because of his complaints. The hospital responds that its statement of facts in its summary judgment motion sufficiently complied with Rule 74.04(c) by setting forth factual allegations in numbered paragraphs, allowing Margiotta to respond. It asserts the trial court did not abuse its discretion in denying Margiotta's motion for a continuance to supplement the summary judgment record because Margiotta failed to establish that the additional materials would create an issue of fact relevant to the summary judgment motion.