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Reed v. The Curators of the University of Missouri

Court of Appeals of Missouri, Western District, First Division

November 15, 2016

CHRISTA REED, Appellant,
v.
THE CURATORS OF THE UNIVERSITY OF MISSOURI, ET AL., Respondents.

         Appeal from the Circuit Court of Boone County, Missouri Honorable Jodie Asel, Judge

          Before: Thomas H. Newton, P.J., Cynthia L. Martin, and Edward R. Ardini, Jr., JJ.

          Thomas H. Newton, Presiding Judge

         Ms. Christa Reed appeals a judgment denying her claim for wrongful discharge in violation of public policy based on breach of contract and tortious interference with business expectancy.[1] This claim was resolved after the trial court sustained the motion for directed verdict filed by the Curators of the University of Missouri (University) and Drs. Elizabeth Giuliano and Jacqueline Pearce. We affirm.

         The University employed Ms. Reed from January 2004 to March 2011 as a veterinary technician, serving in multiple departments at the MU Veterinary Health Center (VHC). Ms. Reed worked in the VHC's radiology service from 2004-2006, transferring to the ophthalmology service in November 2006.

         As an employee in the ophthalmology service, her chain of command included Department Chair Dr. John Dodam, VHC Director, Dr. David Wilson, VHC Administrator, Mr. Ron Haffey, Professor of Ophthalmology, ophthalmology section leader, Dr. Elizabeth Guiliano, and Assistant Professor of Ophthalmology, Dr. Jacqueline Pearce. Dr. Dodam oversaw the faculty clinicians, including Drs. Giuliano and Pearce. Dr. Wilson and Mr. Haffey were responsible for hiring, firing, and disciplining VHC staff employees. Ms. Reed was supervised by the ophthalmology clinicians on her service including Drs. Giuliano and Pearce, who directed her work and provided her performance evaluations.

         Each year, Ms. Reed was evaluated by all of the ophthalmology service's faculty and resident clinicians. In January 2009, Ms. Reed received an average score of 3.2 out of 4, containing mixed comments and suggestions for improvement. In February 2010, Ms. Reed received an average score of 2.7 out of 4 on her annual evaluation for the 2009 calendar year. She again received mixed remarks. Ms. Reed's 2009 evaluation documented an unexpected "subtle decline" in her performance. In May 2010, a "precipitous decline" was noticed.

         The May 2010 evaluation noted numerous performance issues that had previously been raised. When she received this review she was also notified that she had been placed on a six-month probation to allow her to correct the identified deficiencies. In October 2010, at the conclusion of her probation, Ms. Reed's progress had not improved. Because she had not been evaluated during her probation, she was issued a written review that her probation was extended until January 2011. The written notice identified previously noted deficiencies.

         In mid-February 2011, Ms. Reed received a two-day suspension for failing to improve her performance by the end of her review period. Ms. Reed's poor performance continued after her suspension, and she was terminated on March 3, 2011, for unsatisfactory performances and unprofessional behavior.

         From November 2010 through March 2011, Ms. Reed filed a series of internal grievances, three of which alleged that her suspension and termination were executed in retaliation for her reports of "potential fiscal irregularities" related to the ophthalmology service.

         After her termination, Ms. Reed filed suit against the University and Drs. Giuliano and Pearce. Ms. Reed's lawsuit asserted five counts: Wrongful Discharge in Violation of Public Policy Based on Breach of Contract (Count I) against all defendants, Tortious Interference with a Business Expectancy (Count II) against Drs. Giuliano and Pearce, and Violations of the Missouri Human Rights Act (Count III) on the basis of age against all defendants.[2] At the close of Ms. Reed's evidence, the trial court granted defendants' motion for directed verdict on her wrongful discharge and tortious interference claims. At the conclusion of trial, the jury returned unanimous verdicts for all defendants on Ms. Reed's remaining Missouri Human Rights Act claim. The trial court overruled Ms. Reed's motion for a new trial. This appeal follows.

         Legal Analysis

In reviewing the grant of a motion for directed verdict, this Court "must determine whether the plaintiff made a submissible case…" Dunn v. Enter. Rent-A-Car Co., 170 S.W.3d 1, 3 (Mo. App. E.D. 2005). "A case may not be submitted unless each and every fact essential to liability is predicated upon legal and substantial evidence." Investors Title Co., Inc. v. Hammonds, 217 S.W.3d 288, 299 (Mo. banc 2007). "An appellate court views the evidence in the light most favorable to the plaintiff to determine whether a submissible case was made…" Tune v. Synergy Gas Corp., 883 S.W.2d 10, 13 (Mo. banc 1994). "The plaintiff may prove essential facts by circumstantial evidence as long as the facts proved and the conclusions to be drawn are of such a nature and are so related to each other that the conclusions may be fairly inferred." Morrison v. St. Luke's Health Corp., 929 S.W.2d 898, 900 (Mo. App. E.D. 1996). "Whether the plaintiff made a submissible case is a question of law subject to de novo review." D.R. Sherry Const., Ltd. v. Am. Family Mut. Ins. Co., 316 S.W.3d 899, 904 (Mo. banc 2010). Further, with respect to evidentiary rulings, the trial court "enjoys considerable discretion in the admission or exclusion of evidence, and, absent clear abuse of discretion, its action will not be grounds for reversal." State v. Mayes, 63 S.W.3d 615, 629 (Mo. banc 2001).

Moore v. Ford Motor Co., 332 S.W.3d 749, 756 (Mo. banc 2011).

         Count I

         In three of her four points, Ms. Reed asserts that the trial court erred in granting the University's motion for a directed verdict on her claim of wrongful discharge in violation of policy based on breach of contract. Because these issues are so closely related, we will address them together.

         "Under Missouri's employment at-will doctrine an employer can discharge-for cause or without cause-an at-will employee who does not otherwise fall within the protective reach of a contrary statutory provision and still not be subject to liability for wrongful discharge. Dake v. Tuell, 687 S.W.2d 191, 193 (Mo. banc 1985). Unless a claim is based on a statute, an at-will employee must plead offer, acceptance, and bargained for consideration. Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661, 662-63 (Mo. banc 1988) ("Absent a valid contract of employment between the parties, plaintiff as an at will employee could be discharged for cause or without cause."). "Without a statement of duration, an employment at will is created which is terminable at any time by either party with no liability for breach of contract." Luethans v. Washington Univ., 894 S.W.2d 169, 172 (Mo. banc 1995), abrogated on other grounds by Keveney v. Mo. Military Acad., 304 S.W.3d 98 (Mo. banc 2010). "Alternatively, if there is not a specific duration expressed, the contract must be one that places limits on the employer's rights to discharge at will." Morrow v. Hallmark Cards, Inc., 273 S.W.3d 15, 26 (Mo. App. W.D. 2008). Because of "its very moment-by-moment nature, " at-will employment is not a legally enforceable employment contract. Id.

         Because of the general language and the potential for alteration at any time, an employee handbook cannot reasonably be interpreted to alter an at-will employment arrangement. Johnson, 745 S.W.2d at 662. Property interests in one's continued employment "'are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.'" Daniels v. Bd. of Curators of Lincoln Univ., 51 S.W.3d 1, 7 (Mo. App. W.D. 2001)(quoting Bd. Of Regents of State College v. Roth, 408 U.S. 564, 577 (1972)). "Missouri has held that if there is a property interest established, the employee is entitled to notice of the reasons for dismissal and an opportunity to be heard prior to having his employment interrupted. The opportunity to be heard must be at a meaningful time and in a meaningful manner." Id. "'A property interest in employment can also be created by implied contract arising out of customs, practices and defacto policies.'" Id. at 8. (quoting Winegar v. Des Moines Indep. Sch. Dist., 20 F.3d 895, 899 (8th Cir. 1994)).

         The at-will doctrine is, however, limited in two respects. "An employer cannot terminate an at-will employee for being a member of a protected class, such as 'race, color, religion, national origin, sex, ancestry, age or disability.'" Margiotta v. Christian Hosp. Ne. Nw., 315 S.W.3d 342, 346 (Mo. banc 2010) (quoting Section 213.055 RSMo. Supp. 2005). The at-will doctrine is also limited by a "public-policy exception." Id. The public-policy exception is narrowly tailored and prevents the termination of an at-will employee "for refusing to perform an illegal act or reporting wrongdoing or violations of law to superiors or third parties." Id. "[A] wrongful discharge action must be based on a constitutional provision, a statute, a regulation based on a statute or a rule promulgated by a governmental body. Absent such explicit authority, the wrongful discharge action fails as a matter of law." Id. "'The mere citation of a constitutional or statutory provision in a [pleading] is not by itself sufficient to state a cause of action for retaliatory discharge, the plaintiff must demonstrate that the public policy mandated by the cited provision is violated by the discharge.'" Id. at 347 (quoting 82 An. Jur. 2d § 61). Thus, to prevail on a whistleblowing claim, the plaintiff must demonstrate that he "'reported to superiors or to public authorities serious misconduct that constitutes a violation of law and of…well-established and clearly mandated public policy.'" Id. (quoting Lynch v. Blanke Vaer & Bowey Krimko, Inc., 901 S.W.2d 147, 150 (Mo. App. E.D. 1995)).

         Sovereign Immunity for Claims Based in Tort

         Ms. Reed asserts that the trial court erred in granting the University's motion for a directed verdict on Count 1 because it found that Ms. Reed's claim was a tort. Ms. Reed asserts that the University was not entitled to sovereign immunity because her claim "was based on an express contractual agreement between her and her employer that it would not retaliate against her if she reported misconduct in good faith." We disagree.

         If an employer terminates an employee for either of the two recognized exceptions to the at-will employment doctrine, "the employee has a cause of action in tort based on the public-policy exception." Fleshner v. Pepose Vision Inst., P.C.,304 S.W.3d 81, 92 (Mo. banc 2010). "The Curators of the University of Missouri 'is "a public entity with the status of a governmental body and, as such, is immune from suit for liability in tort in the absence of an express statutory provision."'" Langley v. Curators of Univ. of Mo., 73 S.W.3d 808, 811 (Mo. App. W.D. 2002) (quoting Brennan by & through Brennan v. Curators of the Univ. ...


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