Court of Appeals of Missouri, Western District, First Division
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.
H. Newton, Presiding Judge
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. 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.
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.
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
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"
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
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.
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.
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. 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.
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.
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
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.
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)).
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)).
Immunity for Claims Based in Tort
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.
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.