United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.
October 20, 2014, defendant Southwest Foodservice Excellence,
LLC, discharged plaintiff Linda King from her employment when
she attempted to return to work after serving on a grand jury
in the fall of 2014. In this diversity action, King claims
that her discharge violated the public policy of Missouri, as
expressed in Mo. Rev. Stat. § 494.460. Southwest
Foodservice moves to dismiss King's wrongful discharge
claim, arguing that it is barred by § 494.460's
ninety-day statute of limitations. Because I conclude that
King's claim was timely filed, I will deny the motion.
Fed.R.Civ.P. 12(b)(6), a defendant may move to dismiss a
complaint “for failure to state a claim upon which
relief can be granted.” The purpose of a motion to
dismiss under Rule 12(b)(6) is to test the legal sufficiency
of the complaint. When considering a Rule 12(b)(6) motion,
the factual allegations of a complaint are assumed true and
construed in favor of the plaintiff. Neitzke v.
Williams, 490 U.S. 319, 326 (1989). “The possible
existence of a statute of limitations defense is not
ordinarily a ground for 12(b)(6) dismissal unless the
complaint itself establishes the defense.” Joyce v.
Armstrong Teasdale, LLP, 635 F.3d 364, 367 (8th Cir.
2011) (quoting Jessie v. Potter, 516 F.3d 709, 713
n. 2 (8th Cir. 2008)).
times relevant to her complaint, King worked for Southwest
Foodservice in the St. Louis Public Schools. During the fall
of 2014, including during the month of October, she served on
a grand jury for the Twenty-Second Judicial Circuit of
Missouri. Southwest Foodservice discharged King from her
employment on October 20, 2014, when she attempted to return
to work after completing her jury service.
brought this action in Missouri state court on August 27,
2017. She claims that Southwest Foodservice wrongfully
terminated her employment because of her grand jury service,
in violation of Missouri public policy as expressed in Mo.
Rev. Stat. § 494.460. As relief, King seeks monetary
damages for lost wages and benefits, compensatory damages for
emotional distress, and punitive damages. On October 10,
2017, Southwest Foodservice, whose members are Arizona
citizens, removed the action to this Court, invoking federal
Foodservice now seeks to dismiss King's complaint,
arguing that King brought her claim outside the ninety-day
statute of limitations provided under Mo. Rev. Stat. §
494.460(2) for employees who claim they were discharged for
jury service. While King concedes that she cannot bring a
statutory claim because of the time-bar, she contends that
she brings her claim under Missouri common law, which
provides protection to at-will employees who are discharged
in violation of public policy. Kings argues, therefore, that
Missouri's general statute of limitations applies to her
claim, and not the period prescribed under § 494.460(2)
for a statutory claim. I agree.
Missouri, an employer may discharge an at-will employee with
or without cause. Certain exceptions exist to this employment
at-will doctrine, however, including a public policy
exception, which establishes a cause of action for an at-will
employee who has been discharged by an employer in violation
of a clear mandate of public policy as reflected in the
constitution, a statute, statutory regulation, or
governmental rule. Fleshner v. Pepose Vision Inst.,
P.C., 304 S.W.3d 81, 92 (Mo. banc 2010); Drury v.
Missouri Youth Soccer Ass'n, Inc., 259 S.W.3d 558,
566 (Mo.Ct.App. 2008). While the public policy exception is a
narrow one, it includes the discharge of employees who engage
in actions normally encouraged by public policy, such as
reporting for jury duty. Jones v. Galaxy 1 Mktg.,
Inc., 478 S.W.3d 556, 563 (Mo.Ct.App. 2015); Boyle
v. Vista Eyewear, Inc., 700 S.W.2d 859, 875
(Mo.Ct.App. 1985). This particular public policy is reflected
in Mo. Rev. Stat. § 494.460(1), which prohibits an
employer from terminating an employee “on account of
that employee's receipt or response to a jury
summons.” Section 494.460(2) permits an employee
discharged in violation of this section to bring a civil
action against her employer.
Foodservice argues that, under Missouri law, an aggrieved
employee may not bring a common law public policy claim where
a statute provides an adequate remedy for her
grievance. Therefore, Southwest contends, because
§ 494.460 provides an adequate remedy for King's
specific claim here, she may not rely on the public policy
exception to bring this cause of action. In Fleshner v.
Pepose Vision Inst., P.C., 304 S.W.3d 81 (Mo. banc
2010), however, the Missouri Supreme Court squarely rejected
the blanket application of this proposition, recognizing that
it has “consistently held that a statutory right of
action shall not be deemed to supersede and displace remedies
otherwise available at common law in the absence of language
to that effect unless the statutory remedy fully comprehends
and envelops the remedies provided by common law.”
Id. at 95 (internal quotation marks and citation
omitted). “A statutory remedy does not
‘comprehend and envelop' the common law if the
common law remedies provide different remedies from the
statutory scheme.” Id. “For example, if
the common law remedy provides punitive damages, but the
statutory scheme does not, then the common law scheme is not
preempted.” Id. at 95-96.
§ 494.460 provides that an employee discharged “in
violation of this section” may bring an action for
recovery of “lost wages and other damages caused by the
[termination] and for an order directing
reinstatement[.]” Mo. Rev. Stat. § 494.460(2). The
employee is also entitled to attorney's fees if she
prevails. Id. While punitive damages are available
for wrongful discharge claims brought under the public policy
exception at common law, Fleshner, 304 S.W.3d at 96,
they do not appear to be available under §
494.460. Accordingly, because King seeks a remedy
available under common law that does not appear to be
provided by the statute, she is not precluded from bringing a
common law claim. Id.
question remains, however, as to what statute of limitations
action under § 494.460 must be brought within ninety
days from the date of the employee's discharge. Mo. Rev.
Stat. § 494.460(2). However, King does not bring this
action under the statute. Instead, as discussed above, King
brings this action under the common law public policy
exception to at-will employment. In Fleshner, the
Missouri Supreme Court clearly held that these common law
actions arise “in tort for wrongful discharge based on
the public-policy exception.” 304 S.W.3d at 92. See
also Keveney v. Missouri Military Acad.,304 S.W.3d 98,
103 (Mo. banc 2010) (where an employer's actions violate
clear and substantial public policy, the employer is liable
in tort). Under Missouri law, general tort claims are
governed by Mo. Rev. Stat. § 516.120, which applies a
five-year limitations period to “an action for taking,
detaining or injuring any goods or chattels, ...