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Berger v. Emerson Climate Technologies

Court of Appeals of Missouri, Southern District, Second Division

October 5, 2016

PHILIP H. BERGER, Plaintiff-Appellant,


          DON E. BURRELL, P.J. JUDGE


         Philip H. Berger ("Employee") appeals the judgment ("the dismissal judgment") that dismissed with prejudice his second amended petition ("the petition") against Emerson Climate Technologies ("Emerson"), Scroll Compressors LLC ("Scroll"), and George Svaranowic (collectively, "Respondents").

         The petition presented three counts: (1) ("the discrimination claim") Respondents intentionally and outrageously discriminated against Employee between November 2013 and March 2015 in violation of the Missouri Human Rights Act, section 213.010 et. seq.[1]("the MHRA"), by not reasonably accommodating Employee's disability after Employee received a verdict for money damages in his lawsuit against Respondents ("the Copeland case" or "the Copeland trial") "for injuries to his lungs from exposure to dangerous chemical products in [Respondent]s' work environment";[2] (2) ("the retaliation claim") Respondents retaliated against Employee in violation of the MHRA based upon his "reports and complaints of discrimination"; and (3) ("the wrongful discharge claim") Employee was wrongfully discharged in violation of a "public policy" allowing "access to the courts for redress of wrongs" when Respondents discharged him after the jury's verdict in the Copeland trial.

         Employee presents seven points on appeal that contend the trial court erred in granting Respondents' motion to dismiss the petition ("the dismissal motion") because: (1) Employee was not judicially or collaterally estopped from asserting his claims; (2) the petition properly pleads claims for disability discrimination, retaliation, and "wrongful termination in violation of public policy"; and (3) Emerson was operating as "an integrated entity" with Scroll, and Emerson was acting in the interest of an employer of Employee.

         Finding merit in Employee's first five points (and the last two moot), we reverse the dismissal judgment and remand the case.

         Applicable Principles of Review and Governing Law

         We review de novo the trial court's grant of a motion to dismiss. Lang v. Goldsworthy, 470 S.W.3d 748, 750 (Mo. banc 2015); Avery Contracting, LLC v. Niehaus, 492 S.W.3d 159, 161-62 (Mo. banc 2016). "When considering whether a petition fails to state a claim upon which relief can be granted, this Court must accept all properly pleaded facts as true, giving the pleadings their broadest intendment, and construe all allegations favorably to the pleader." Bromwell v. Nixon, 361 S.W.3d 393, 398 (Mo. banc 2012). As a result, no factual averments are weighed for their credibility or persuasive effect. Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 306 (Mo. banc 1993). "Evidence outside the pleadings cannot serve as the basis for granting a motion to dismiss." In re Estate of Ridgeway, 369 S.W.3d 103, 109 (Mo. App. E.D. 2012). A trial court goes beyond a petition when it takes judicial notice of matters in another court file that were not incorporated into the challenged pleading. Cf. Chesterfield Vill., Inc. v. City of Chesterfield, 64 S.W.3d 315, 318 n.1 & 5 (Mo. banc 2002) (the earlier judgment was described in the petition and attached to it as an exhibit, thus "the circuit court had the earlier judgment before it and did not need to refer to matters outside the pleadings"); Gardner v. City of Cape Girardeau, 880 S.W.2d 652, 654-55 (Mo. App. E.D. 1994) ("the trial court did not confine itself to the face of the petition, but rather treated the motion as a request for summary judgment" as it "considered and took judicial notice of" jury instructions "and the circuit court records" in a previous case). Indeed, "neither the trial court nor the appellate court on de novo review may consider matters outside the pleadings when adjudging a motion to dismiss." Naylor Senior Citizens Hous., LP v Side Constr. Co., 423 S.W.3d 238, 241 n.1 (Mo. banc 2014).


         Employee filed his original petition in the instant case in November 2014, and Respondents responded with a motion to dismiss. Employee filed a first amended petition, and Respondents moved to dismiss that petition. An April 2015 docket entry reflects that the trial court held a hearing, and, after having taken judicial notice of the court file and transcripts from the Copeland case, granted Respondents' second motion to dismiss (without prejudice) "for the [r]easons [s]et [f]orth [i]n" it. Employee responded by filing the petition at issue in this appeal.

         The averments in the petition include, inter alia, that: Employee brought the Copeland case "against [Respondents] and others based on conditions in the plant that were negatively impacting [Employee]'s health"; Employee shifted to a different area of the plant as a result of his health conditions; Employee worked at the plant "until the week before trial" of the Copeland case in an area of the plant that "had the presence of chemicals that aggravated [Employee's] condition." The petition alleges that Respondents "were already aware of [the] type of work environment that [he] would need[, ]" and a reasonable accommodation would have been to place Employee in an open warehouse position for which he was qualified.

         In alleging facts about evidence presented at the Copeland trial, the petition refers to testimony from two doctors who testified on Employee's behalf as expert witnesses. One doctor "testified that he believed [Employee] was doing fine and could continue working, including working at [the plant]." The other doctor testified that if Employee continued to work "'the approach would be to minimize the exposure to those environments'" that triggered Employee's health problems.

         The petition avers that after Employee received a favorable verdict in the Copeland trial, he "attempted to return to work" but was told "that he would not be allowed to return to work." The petition also alleges that Employee was later told by Mr. Svaranowic that he "would not be allowed to return to work unless he provided medical documentation clearing him to return or explaining what limitations he might have."

         Employee's subsequent complaint to the Missouri Commission on Human Rights and a "right to sue" letter issued by that commission are attached to the petition, but no other materials or exhibits are attached to or incorporated into the petition. Additional averments from the petition will be discussed in our analysis of points 3 through 7.

         Respondents filed the dismissal motion with supporting suggestions. The dismissal motion contends, inter alia, that: (1) Employee's position on his disability as expressed in the Copeland case judicially estopped him from asserting in the instant case that his disability could be accommodated; and (2) Employee's litigation in the Copeland case of his "ability to perform his job" collaterally estopped him from re-litigating that same issue in the instant case. The dismissal motion also asserts that each of the petition's counts fail to state a claim. Additional details from the dismissal motion will be addressed in our analysis of points 3 through 7.

         Respondents incorporated their prior briefing in support of their motion to dismiss the first amended petition, and Respondents cited materials outside the petition, including the trial transcript, the jury's verdict, and the initial judgment in the Copeland case. The citations to the Copeland trial transcript include testimony from two doctors Employee had called as witnesses and an expert on economic damages. The exhibits included in Respondents' prior briefing were the petition in the Copeland case, four separate, multi-page portions of the Copeland trial transcript, and the "AMENDED FINAL JUDGMENT" in the Copeland case. Portions of these materials relevant to an analysis of judicial estoppel will be described in our analysis of points 1 and 2.

         Employee filed suggestions in opposition to the dismissal motion ("Employee's suggestions") that addressed the concept of treating the dismissal motion as a motion for summary judgment (without objecting to that procedure), made similar arguments against the dismissal motion as were made against ...

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