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King v. Southwest Foodservice Excellence, LLC

United States District Court, E.D. Missouri, Eastern Division

December 11, 2017

LINDA KING, Plaintiff,



         On 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.

         Legal Standard

         Under 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)).


         At all 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.

         King 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 diversity jurisdiction.

         Southwest 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.


         In 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.

         Southwest 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.[1] 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.

         Here, § 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.[2] 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.

         The question remains, however, as to what statute of limitations applies.

         An 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, ...

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