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Meehan v. PNC Financial Services Group, Inc.

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

May 8, 2018

JOSEPH MEEHAN, Plaintiff,
v.
PNC FINANCIAL SERVICES GROUP, INC., Defendant.

          MEMORANDUM AND ORDER

          PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on the motion to dismiss filed by Defendant PNC Bank, National Association.[1] (ECF No. 8). Plaintiff Joseph Meehan opposes the motion. (ECF No. 15). The Court heard oral arguments on February 6, 2018, and the parties submitted post-hearing briefs. (ECF Nos. 25, 29, 30). For the reasons stated below, the Court denies the motion.[2]

         I. Factual and Procedural Background

         On October 18, 2017, Plaintiff filed this action in the Circuit Court of Saint Louis County seeking monetary relief for wrongful termination in violation of public policy. (ECF No. 4). Defendant removed the action to this Court on grounds of diversity jurisdiction. (ECF No. 1).

         The facts, as alleged in the petition, are as follows: Plaintiff, a state-certified appraiser, worked for Defendant as a “Senior Review Appraiser.” (ECF No. 4 at ¶¶ 7, 12). Plaintiff's responsibilities included “evaluating and approving commercial real estate appraisals conducted by local appraisers throughout the United States, for loans financed by [Defendant].” (Id. at ¶ 12-13). On October 20, 2015, Defendant notified Plaintiff that it was terminating his employment. (Id. at ¶ 18).

         In his petition, Plaintiff states that, under Missouri and federal law, appraisers must comply with the Uniform Standards of Professional Appraisal Practice (“USPAP”). (Id. at ¶ 7) (citing Mo. Rev. Stat. § 339.535; 15 U.S.C. § 1639e(e)). USPAP requires appraisers to perform “comprehensive, analytical review of appraisals” with “impartiality, objectivity, and independence.” (Id. at ¶¶ 8-9). According to Plaintiff, his supervisors “routinely require[d] him to ignore such standards when reviewing appraisals” and his “refusal to violate USPAP, state, and other federal guidelines . . . was a contributing factor in his termination.” (Id. at ¶¶ 13, 24).

         Defendant moves to dismiss Plaintiff's petition under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (ECF No. 8). Defendant argues that the Missouri Whistleblower's Protection Act (“WPA”), Mo. Rev. Stat. § 285.575, effective August 28, 2017, preempts Plaintiff's common law claim and applies retroactively to the conduct alleged in the petition. (ECF Nos. 8 & 9). Plaintiff counters that retroactive application of the WPA is prohibited by the Missouri Constitution's prohibition on ex post facto laws. (ECF No. 15).

         II. Legal Standard

         In examining a Rule 12(b)(6) motion to dismiss for failure to state a claim, the Court accepts all of Plaintiff's factual allegations as true and construes those allegations in Plaintiff's favor. Kulkay v. Roy, 847 F.3d 637, 641 (8th Cir. 2017). To survive such a motion, Plaintiff's complaint “must include sufficient factual allegations to provide the grounds on which the claim rests.” Drobnak v. Andersen Corp., 561 F.3d 778, 783 (8th Cir. 2009). Put simply, Plaintiff's claim for relief must be “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         Because this is a diversity case, the Court applies state substantive law and federal procedural law. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996). The parties agree that Missouri substantive law controls.

         III. Discussion

         Defendant moves for dismissal on the ground that the WPA applies retroactively to preempt Plaintiff's common law, wrongful-discharge claim because: (1) the legislature intended the WPA to supplant the common law action; and (2) the WPA is “procedural or remedial in nature.” (ECF No. 8). In response, Plaintiff asserts that the WPA applies prospectively because: (1) the plain language of the statute does not “manifest a clear intent” to apply retroactively; and (2) the additional requirements for litigants “as outlined by the WPA are not procedural only and do affect substantive rights of the parties.” (ECF No. 15 at 4, 6).

         The general rule in Missouri “is that an at-will employee may be terminated for any reason or no reason[.]” Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 92 (Mo. banc 2010). Certain exceptions exist, however, including a public-policy exception, which prohibits termination of an at-will employee for either: (1) “refusing to violate the law or any well-established and clear mandate of public policy as expressed in the constitution, statutes, regulations promulgated pursuant to statute, or rules created by a governmental body”; or (2) “reporting wrongdoing or violations of law to superiors or public authorities, also known as ‘whistleblowing.'” Newsome v. Kansas City, Mo. Sch. Dist., 520 S.W.3d 769, 777 (Mo. banc 2017) (quoting Fleshner, 304 S.W.3d at 92).

         To prevail on a Missouri common law whistleblowing action, a plaintiff must demonstrate that: (1) he reported serious misconduct that constituted a violation of law and of well-established and ...


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