United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE
matter is before the Court on the motion to dismiss filed by
Defendant PNC Bank, National Association. (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
Factual and Procedural Background
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).
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).
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).
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).
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
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.
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).
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).
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 ...