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Hudson v. O'Brien

Court of Appeals of Missouri, Western District, Third Division

October 21, 2014

CINDY HUDSON, Appellant,
v.
KIMBERLY O'BRIEN, DEBRA CHESHIER, AND GAIL VASTERLING, Respondent

APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY, MISSOURI. THE HONORABLE PATRICIA S. JOYCE, JUDGE.

David J. Moen, for Appellant.

Chuck Henson, for Respondents.

Before: Gary D. Witt, Presiding, Judge, Joseph M. Ellis, Judge and Thomas H. Newton, Judge. All concur.

OPINION

Page 88

Joseph M. Ellis, Judge

Appellant Cindy Hudson appeals from the Circuit Court of Cole County's grant of summary judgment in favor of Respondents Kimberly O'Brien and Debra Cheshier.[1]

Page 89

Appellant contends that the trial court erred in granting summary judgment because it construed § 105.055[2] too narrowly in concluding that her disclosures to Respondents did not constitute " whistleblowing" as a matter of law. For the following reasons, the judgment is affirmed in part and reversed and remanded in part.

In 2008, Appellant was employed by the Missouri Department of Health and Senior Services (" the Department" ) as a section administrator for the Section of Child Care Regulation (" SCCR" ). SCCR is responsible for inspections of childcare facilities throughout the state of Missouri. Respondent O'Brien served as the Director of the Division of Regulation and Licensure, under which SCCR operated. Respondent Cheshier served as the Deputy Division Director. Thus, Respondents acted as Appellant's supervisors.

On July 24, 2008, Appellant and another employee of the Department conducted an inspection of Apple Tree Academy, a childcare facility in Jefferson City, Missouri. Following the inspection, the Department issued a report citing ten categories of rule violations found at Apple Tree Academy.

Karen Werner, owner of Apple Tree Academy, contacted the Department after the report was issued. Werner contested several of the violations listed in the report and sought to have the violations removed. Appellant authorized Sue Porting, a Department employee, to meet with Werner regarding Werner's complaints. After the meeting, Porting removed several of the rule violations cited in the report. Although Appellant authorized the removal of one of the violations, Appellant did not approve of Porting removing several others. Appellant reported Porting's removal of the violations to O'Brien and requested Porting be disciplined for her actions.

The Department received subsequent correspondences from Werner with respect to the original and the revised inspection reports. Werner further accused the Department of harassment due to the fact that Werner had been involved in stopping the Department's previous attempt to revise its rules regarding childcare facilities. Werner also contended that the Department inspectors were applying the rules and regulations inconsistently, especially as to her facilities. Werner was also concerned about the Department preparing to make inspection reports available online to the public.

Respondents subsequently asked Appellant to draft a written response regarding Werner's complaints so they could better respond to Werner. Respondent Cheshier also instructed Appellant that, " while [the Department is] trying to go through this rule revision process,[3]. . . it is best that we not cite rule violations at [Werner's] facilities that are not obvious safety concerns." Concerned about Cheshier's directive, Appellant sought further instruction

Page 90

from Respondents. While Respondents did not give Appellant any written instruction, a meeting occurred at which Respondents explained to Appellant that childcare facility inspections were part art and part science.

On November 28, 2008, Appellant wrote a memorandum to Respondents in response to Werner's complaints. In the memorandum, Appellant justified the rule violations cited at Apple Tree Academy and stated that removing the rule violations from the inspection report " put the Department at risk." The memorandum further responded to Werner's claims of harassment and suggested the rule violations had been removed from Apple Tree Academy's inspection report in order to prevent Werner's complaints from escalating beyond the SCCR and the Division of Regulation and Licensure. It also suggested that SCCR had shown such favoritism to Werner in the past.

On December 11, 2008, Appellant was notified of her termination, which would become effective January 15, 2009. The Department stated that Appellant was being fired because things just were not working out. After Appellant's termination, the memorandum written by Appellant in response to Werner's complaints was destroyed.

On February 4, 2009, Appellant appealed her termination to the Personnel Advisory Board. In her appeal, Appellant did not allege that she was terminated for whistleblowing; rather, she claimed she could not be fired without cause. On April 14, 2009, the Board denied ...


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