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Ballard v. Siwak

Court of Appeals of Missouri, Eastern District, Writ Second Division

June 20, 2017

LATOYA BALLARD, Relator,
v.
THE HONORABLE ELLEN LEVY SIWAK, Respondent.

         Writ of Prohibition St. Louis County Circuit Court 16SL-CC00213

          GARY M. GAERTNER, JR, PRESIDING JUDGE

         Introduction

         The issue in this case is whether an employer may demand as a condition of continued employment that an employee withdraw a full order of protection that a trial court previously granted after a hearing in which the court found a credible threat to the employee's physical safety. We find that such an action violates the public policy exception to the at-will employment doctrine, in that the Missouri legislature has established a clear mandate of public policy to protect victims of domestic violence in this state. Latoya Ballard (Relator) filed a petition for writ of prohibition or mandamus, seeking to compel the Respondent, the Honorable Ellen Levy Siwak, to vacate her order dismissing Count I of Relator's petition for wrongful discharge. We issued a preliminary order in prohibition, which we now make permanent.

         Background

         The facts here, as set forth by Relator and taken as true, [1] are as follows. Relator began working for Rancho Manor Healthcare and Rehabilitation Center, LLC (Rancho Manor) in September of 2014 as a nurse. Later that month, Rancho Manor also hired Jason Henderson (Henderson) as a floor nurse. Henderson and Relator were in a romantic relationship from 2008 through June of 2014, and they had two children together. On October 11, 2014, Henderson assaulted Relator in her home, causing injuries to her and one of her children. Law enforcement arrested Henderson and Relator obtained an ex parte order of protection against Henderson. The next day, Relator provided her direct supervisor and the Compliance Nurse at Rancho Manor with a copy of the ex parte order of protection, and Relator's direct supervisor stated that she would arrange a schedule so Relator and Henderson did not work together. Later that month, Rancho Manor promoted Henderson to Assistant Director of Nursing, a supervisory position over all nurses, including Relator.

         On October 23, 2014, a trial court entered a full, one-year order of protection against Henderson after a court hearing. The full order of protection prohibited Henderson from entering Relator's place of employment while she was present. Relator again provided her direct supervisor with a copy of the full order of protection. Relator expressed concerns that Henderson was now one of her supervisors and requested Rancho Manor develop an action plan to prevent interaction between Henderson and Relator. Rancho Manor never informed Relator of any proposed action plan.

         On December 19, 2014, Relator called into Rancho to request a sick day. Henderson answered the telephone and was verbally abusive to Relator, and he threatened to file a complaint against her nursing license if she did not report for work. Relator came to work. On her way home, Relator called her direct supervisor who reprimanded her for coming onto Rancho Manor premises while Henderson was present. On December 23, 2014, Rancho Manor's Compliance Nurse requested that Relator withdraw her full order of protection against Henderson.

         Relator refused. Later that same day, Rancho Manor's Compliance Nurse again called to request Relator withdraw her full order of protection against Henderson, saying that Rancho Manor would not place Relator on the work schedule until she withdrew her full order of protection against Henderson. Relator left her position at Rancho Manor because Rancho Manor would no longer place her on the work schedule unless she withdrew her full order of protection against Henderson. Relator filed a petition for damages against Rancho Manor claiming, in Count I, wrongful discharge for violation of the public policy outlined in Missouri's Adult Abuse Act (the MAAA), which encourages individuals to obtain orders of protection to ensure their safety, [2] Rancho Manor filed a motion to dismiss Count I of Relator's petition, asserting Relator failed to state a claim upon which relief could be granted in that the MAAA does not constitute the type of clear mandate of public policy necessary to give rise to a public policy discharge claim. Rancho Manor argued the MAAA does not explicitly prohibit an employer from terminating an employee for obtaining an order of protection. Respondent dismissed Count I, finding that Relator failed to state a claim upon which relief could be granted for the reasons set forth by Rancho Manor. Relator seeks relief through a writ of prohibition or mandamus to reinstate Count I and proceed on the merits.

         Discussion

         A motion to dismiss for failure to state a claim upon which relief can be granted "is solely a test of the adequacy of the plaintiffs petition." Nazeri v. Mo. Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993). Where the petition has stated facts that meet the elements of a recognized cause of action, then dismissal for failure to state a claim upon which relief can be granted is not appropriate. See id.

         This Court has jurisdiction to issue original remedial writs. Mo. Const, art V, sec. 4.1. A writ of prohibition is a discretionary writ that is appropriate to prevent an abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent the exercise of extra-judicial authority. McCoy v. Martinez, 480 S.W.3d 420, 423-24 (Mo. App. E.D. 2016). A writ of prohibition can restrain further enforcement of an order that is beyond the trial court's authority "as long as some part of the court's duties in the matter remain to be performed." State ex rel. Am. Bouvier Des Flanders. Club, Inc. v. Jamison, 413 S.W.3d 359, 361 (Mo. App. E.D. 2013). Relator in essence argues Respondent exceeded her authority in granting Rancho Manor's motion to dismiss Relator's cause of action for wrongful termination as set forth in Count I. We agree.

         It is undisputed that Relator was an at-will employee of Rancho Manor. Employers may terminate the employment of at-will employees at any time "for any reason or for no reason." Margiotta v. Christian Hosp., 315 S.W.3d 342, 346 (Mo. banc 2010) (citation omitted). However, an employer's rights are not unfettered, and Missouri has recognized that an employer may not terminate an at-will employee where the termination would violate a clear mandate of public policy. See id. The public policy exception prevents employers from terminating at-will employees "for doing that which is beneficial to society." Fleshner v. Pepose Vision Inst., 304 S.W.3d 81, 92 (Mo. banc 2010). Missouri courts recognize four categories of the public policy exception to the at-will employment doctrine: (1) refusing to perform an illegal act or an act contrary to a strong mandate of public policy; (2) reporting the employer or fellow employees to superiors or third parties for their violations of law or public policy; (3) acting in a manner that public policy would encourage; or (4) filing a claim for worker's compensation. Delaney v. Signature Health Care Foundation, 376 S.W.3d 55, 57 (Mo. App. E.D. 2012).

         The public policy exception is "narrowly drawn, " and judges and courts may not create public policy absent explicit statutory authority. See Margiotta. 315 S.W.3d at 346. Courts must find a clear mandate of public policy in "the letter and purpose" of the cited statutory authority. Delaney, 376 S.W.3d at 56. For example, a plaintiff claiming wrongful termination cannot cite "a patchwork of various statutes" to cobble together a claim for public policy, but must cite to a specific statute, regulation, or constitutional provision that makes "a clear statement of public policy." Hedrick v. Jay Wolfe Imports I, LLC,404 S.W.3d 454, 459 (Mo. App. W.D. 2013). We do not, however, require a plaintiff to "rely on an employer's direct violation of a statute or regulation, " but rather, "the public policy must be reflected by ...


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