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Welch v. Boonville No. 2, Inc.

Court of Appeals of Missouri, Western District, Second Division

September 23, 2014

KIM WELCH, Appellant,
v.
BOONVILLE NO. 2, INC, d/b/a RIVERDELL CARE CENTER, Respondent

Appeal from the Circuit Court of Cooper County, Missouri. The Honorable Robert L. Koffman, Judge.

Dennis Egan, Kansas City, MO, Counsel for Appellant.

Kimberley Mathis, St. Louis, MO, Counsel for Respondent.

Robert Tomaso, St. Louis, MO, Co-Counsel for Respondent.

Before Division Two: Victor C. Howard, P.J., James Edward Welsh, and Anthony Rex Gabbert, JJ. All concur.

OPINION

James Edward Welsh, Judge.

Page 38

Kim Welch appeals the circuit court's grant of summary judgment in favor of Boonville No. 2, Inc., doing business as Riverdell Care Center (" Riverdell" ), on Welch's claim that she was wrongfully discharged from her employment with Riverdell because she made complaints to her employer that a dog was allowed to be in the kitchen area of her work place in violation

Page 39

of a sanitation regulation. Welch asserts that the circuit court erred in granting summary judgment because (1) genuine issues of material fact existed as to whether a contributing factor in her discharge was due to her complaints to Riverdell's administrator about the Director of Nursing's dog repeatedly entering the dining and kitchen areas of the facility in violation of a sanitation regulation, (2) the court erroneously determined that her complaints about Riverdell's violation of the sanitation regulation did not invoke a clear mandate of public policy, (3) the court erroneously determined that, as a matter of law, Welch's complaints to Riverdell's administrator did not constitute protected whistle-blowing. We affirm the circuit court's grant of summary judgment in Riverdell's favor.

When considering appeals from summary judgments, we view the record in the light most favorable to the party against whom judgment was entered, and we afford that party the benefit of all reasonable inferences. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record established that Riverdell provided care for elderly and disabled individuals. The facility administrator was Monte Hanson, and the Director of Nursing was Mary Luscombe. In Hanson's absence, Luscombe would serve as the acting administrator for the facility.

Welch was employed as a dietary aid at Riverdell, and her duties included helping to prepare meals, serving resident meals, and washing dishes. During Welch's orientation, Hanson explained Missouri's nursing home regulations, including sanitation regulations regarding animals, to Welch. According to Welch, she was told that animals were not allowed in the kitchen or in the dining room during meal times. Welch said that she understood that she could be written up and fired if an animal was found in the kitchen or in the dining room during meal times. Welch agreed that she was responsible for keeping animals out of the kitchen and out of the dining area at meal times.[1] Indeed, Welch acknowledged that Riverdell had two cats at the facility and that she had no problem with being responsible for keeping them out of the kitchen and out of the dining area at meal times.

In March 2008, Luscombe brought a puppy to the facility.[2] According to Welch, the dog was constantly in the dining area. Welch also said that the dog would enter the kitchen on numerous occasions. According to Welch, she would remove the dog from the kitchen or dining room, put the dog in Luscombe's office, and shut the door. Welch then said that shortly thereafter, the dog would be " right back down there during meal time." Welch said that it was " a constant back and forth." Welch made numerous complaints about the dog to both Luscombe and Hanson and requested that Luscombe should be responsible for keeping the dog out of the dining room and kitchen. Welch also requested that the dog be locked in a kennel, ...


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