Bell v. Dynamite Foods, 72236

• Decision Date: 02 June 1998
• Docket Number: No. 72236,72236
• Citation: 969 S.W.2d 847
• Parties: Albert BELL, Appellant, v. DYNAMITE FOODS, Respondent.
• Court: Missouri Court of Appeals

Page 847

969 S.W.2d 847

Albert BELL, Appellant, v. DYNAMITE FOODS, Respondent.

No. 72236.

Missouri Court of Appeals,

Eastern District,

Division Four.

June 2, 1998.

John D. Lynn, Denner & Lynn, L.L.C., St. Louis, for Appellant.

Robert J. Radice, Horas & Radice, L.L.C., St. Louis, for Respondent.

SIMON, Judge.

Albert Bell (Bell) appeals the trial court's grant of summary judgment in favor of Dynamite Foods, Inc. (Dynamite), his former employer, in an action brought by him for wrongful discharge. On appeal, Bell contends that the trial court erred when it: (1) suggested that an actual discharge is an element of the tort of wrongful discharge in violation of public policy; and (2) ruled that he cannot maintain a claim of constructive discharge because he did not give Dynamite a reasonable opportunity to work out his dispute with Dynamite before resigning in that he gave Dynamite ample opportunity. We affirm.

It is well-settled that when considering an appeal from summary judgment, we review the record in the light most favorable to the non-movant. ITT Commercial Finance v. Mid-Am Marine, 854 S.W.2d 371, 376[1-3] (Mo.banc 1993). Our review is essentially de novo. Id. at 376[4-6]. The criteria on appeal for testing the propriety of summary judgment are no different from those which are employed by the trial court to determine the propriety of sustaining the motion initially. Id. The burden on a summary judgment movant is to show a right to judgment flowing from facts about which there is no genuine dispute. Id. at 387.

A "defending" party may establish a right to judgment by showing: (1) facts that negate any one of the claimant's element facts; (2) that the non-movant has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements; or (3) that there is no genuine dispute as to the existence of the facts necessary to support the movant's properly pleaded affirmative defense. Id. at 381.

The non-movant must show by affidavit, depositions, answer to interrogatories, or admissions on file, that one or more of the material facts shown by the movant to be above any genuine dispute is, in fact, genuinely disputed. ITT at 381. A "genuine issue" exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts. Id. at 382. A "genuine issue" is a dispute that is real, not merely argumentative, imaginary or frivolous. Id.

On May 3, 1996, Bell filed his second amended petition, alleging, in pertinent part, that:

4. [Bell] was initially employed by [Dynamite] in March, 1989 as a "floor man," responsible for cleaning, stripping and waxing the floors of [Dynamite's] facility.

* * *

6. As of February 5, 1994, [Bell's] normal working hours were 8:00 p.m. to 6:00 a.m. [Bell] was typically alone in [Dynamite's] facility during his working hours.

7. On February 5, 1994, [Dynamite] informed [Bell] that henceforth all means of exit from [Dynamite's] facility, including the means by which [Bell] could reach the fire doors, would be locked during [Bell's] working hours. [Bell] was not provided with a key to the exits.

8. [Dynamite's] policy of locking all means of exit from its facility, including the means by which [Bell] could reach the fire doors, violated the Fire Code established by the ordinances of the City of St. Louis, Ordinance 61981, Section 1 (1990) ... and safety regulations promulgated by the Occupational Safety and Health Administration, 29 C.F.R. Section 1910.35-40.

9. On February 5, 1994, [Bell] protested the fact that all exits would be locked and threatened to report these conditions to the [F]ire [M]arshal.

10. In response to [Bell's] protests and threat to inform the [F]ire [M]arshal, Dynamite's owner, Marshall Stein, told [Bell] to leave the premises.

11. On February 7, 1994, [Bell] reported the conditions at [Dynamite's] facility to the [F]ire [M]arshal of the City of St. Louis and to the Occupational Safety and Health Administration.

12. After February 5, 1994, [Dynamite] refused to amend its policy of locking all means of exit and to allow [Bell] to return to work, and thus discharged Plaintiff.

13. [Dynamite] discharged [Bell] because he opposed [Dynamite's] policy of locking all means of exit from its facility, threatened to report the policy to public authorities, and did report it to public authorities.

* * *

We note that Bell's original petition is not in the record on appeal.

Subsequently, Dynamite filed its motion for summary judgment and memorandum in support, contending that there was no genuine issue of fact that Bell was an at-will employee, was not discharged by Dynamite but resigned, and the "public policy" exception to at-will employment could not be addressed since it had not discharged Bell.

In support of its motion, Dynamite filed several exhibits including: (1) an excerpt of Bell's deposition; (2) an excerpt of the deposition of Larry Morice (Morice), Bell's supervisor; (3) Bell's April 20, 1994 charge of discrimination with the Missouri Commission on Human Rights; (4) the Missouri Division of Employment Security's determination dated 3/07/94; and (5) an excerpt from Bell's response to Dynamite's supplemental interrogatories.

Dynamite addresses Bell's deposition, where he testified, in pertinent part, that: (1) no one from Dynamite told him that has was either fired or terminated and (2) he did not resign his position. In his deposition, Morice testified, in pertinent part, that: (1) he would be the normal person to hire or fire someone in Bell's position unless it was matter of a dishonest nature, such as stealing; (2) he did not fire Bell; and in fact, Bell quit; (3) other types of work could have been made available during the daytime shift on a short-term basis; (4) the work may have gotten down to only a four hour shift; and (5) it never got to the point of a potential permanent position because Bell quit.

Bell's charge of discrimination with the Missouri Commission on Human Rights provided, in pertinent part:

I. On February 6, 1994, I submitted my resignation ...

* * *

III. I believe that I was constructively discharged due to my race in that ...

c. Fearing for my safety and believing the situation would not change,

I felt that there was nothing I could do but to quit.

* * *

I declare under penalty of perjury that the foregoing is true and correct.

4-20-94 Albert Bell (signed)

The Missouri Division of Employment Security's determination provided, in pertinent part:

DETERMINATION:

THE CLAIMANT IS NOT DISQUALIFIED BECAUSE OF THE QUIT ON 02/05/94. THE CLAIMANT QUIT WITH GOOD CAUSE ATTRIBUTABLE TO HIS WORK OR EMPLOYER.

REASON:

THE CLAIMANT QUIT BECAUSE HE DID NOT WANT TO BE L[O]CKED IN THE BUILDING. THE FIRE DOOR WHICH HAD BEEN PREVIOUSLY OPENED WAS NOW LOCKED.

In pertinent part, Bell's response to Dynamite's supplemental interrogatories indicated that his employment with respondent was from "approximately April, 1989--February 6, 1994" and his reason for leaving employment was "constructive discharge."

Bell filed a response to Dynamite's motion for summary judgment, admitting that Bell was an at-will employee during his employment with Dynamite but contending that a jury could reasonably conclude that Bell was "constructively discharged" in contravention of public policy in that Bell had no choice but resign his employment. In support, Bell filed excerpts from his deposition, which provided, in pertinent part:

Bell: ... Well, when I show[ed] up on February 5, Mr. Morice says, "Tonight they're going to start locking the doors, did they tell you?" I say, "Yes. Ken told me they was only going to just pull the gate; that they wasn't going to be padlocking it." And Mr. Morice says, "No, no. They're going to lock it. They're going to lock it in."

And I say, "Well, how am I going to be able to get out if there is a fire or something happens that I need to get out?' And Mr. Morice said, "You'll have to take that up with Marshal[l] and Ken." And I said, "Well, Mr. Morice, you're my boss, you know, can't you talk to them or ask them, you know."

At this time, this is when Mr. Stein, the owner, interrupts and walks over. He walks over and interrupts and he says, "You can use a crow bar and get out if you want to get out of here. You can break the lock." He said, "I give you my permission to break the lock with my crow bar." I asked him, "Well, why do I have to have a crow bar?" And he says, "Because. If I don't want to stay in the store with the doors locked, then I can leave," you know. I can get out of his place. And I was still trying to talk to Mr. Morice.

* * *

Q: When he said that, what did you do?

Bell: I asked Mr. Morice, I said, "Mr. Morice, I need my job. Isn't there something I can do?" He says, "You have to take it up with Marshal[l]." Marshal[l], you know, he's the boss, he owns the place.

So I ask Mr. Morice, I said, "Well, can I come in in the morning." And he told me, ["]Well, yeah, you can come in in the morning. You can come in the morning, but you know you won't be able to continue to do it anyway because you won't have enough time every morning to clean the store. It takes ten hours a night to do it, so we'll have to find somebody to replace you. You can come in until we find somebody to replace you in the mornings."

* * *

Q: What did you mean by that? Could you come in in the morning?

Bell: In the morning when the produce people come in. They come in every morning around five o' clock or so---

Q: Okay.

Bell:--- in the morning. And so Mr. Morice says, yeah, I could come in. I said, "Well, are you going to let Bob know tomorrow that I'm coming in"--- who's the manager. And he said, "Bob." And I said, "Are you going to let him know." And he said yes.

* * *

Q: So I'm not--- maybe I'm a little confused here. [Morice] told you you could show up at five o' clock the next morning?

Bell: Right.

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