Bennartz v. City of Columbia

• Decision Date: 22 December 2009
• Docket Number: No. WD 70457.,WD 70457.
• Citation: 300 S.W.3d 251
• Parties: Donny BENNARTZ, Respondent, v. CITY OF COLUMBIA, Missouri, Appellant.
• Court: Missouri Court of Appeals

300 S.W.3d 251

Donny BENNARTZ, Respondent, v. CITY OF COLUMBIA, Missouri, Appellant.

No. WD 70457.

Missouri Court of Appeals, Western District.

December 22, 2009.

Robert J. Krehbiel, St. Louis, MO, for Appellant.

George S. Smith and Randall B. Johnston, Columbia, MO, for Respondent.

Before Division III: THOMAS H. NEWTON, Chief Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.

KAREN KING MITCHELL, Judge.

This is an appeal from a judgment of the Circuit Court of Boone County ("trial court") for respondent Donny Bennartz ("Bennartz") following a jury verdict awarding Bennartz $68,000. We reverse the judgment of the trial court dated September 9, 2008.

Factual and Procedural Background¹

In the fall of 1996 or 1997, Bennartz was hired by the City of Columbia ("City") to work as a water utility maintenance mechanic at City's water treatment plant. He was an at-will employee. For most of his tenure, his direct supervisor in the maintenance department was Lonnie Nichols ("Nichols"). The maintenance department was located across the street from the main water treatment plant. The water treatment plant operations department was located in the main plant building. Ed Fisher ("Fisher") was the chief operator. John Betz ("Betz") was the plant superintendent and was in charge of the operations department. He oversaw Fisher and, at least unofficially, oversaw Nichols and the maintenance department as well. There was also a manager of water operations, who supervised the entire water department, but was not officed at the plant. From the time he was hired, Bennartz intended to stay at the water plant for the rest of his career. He believed he had "the best job in the City of Columbia. It was a great place to work."

Sometime in 2003, the manager of water operations retired and the position became available. Betz applied for the position, but it was awarded to Floyd Turner ("Turner") instead. This upset Betz, who reportedly complained that, "[t]hey hired that nigger over me." Bennartz testified that, at roughly that time, Betz and Fisher steadily became more abusive to the plant workers. Betz and Fisher would use abusive and profane language on a daily basis, although apparently all of the employees at the plant admitted to using profanity regularly. Fisher would get angry and throw tools, although most of the workers testified that he never threw them at anyone.

Betz's and Fisher's hostility seemed to be directed especially toward the maintenance department. Betz did not feel that the maintenance department and Nichols as its supervisor were doing a good job. There was a sign-out sheet at the plant where the maintenance mechanics would log their time spent away from the plant on water maintenance jobs, and several times when Bennartz and other maintenance workers would return to the plant, they would find "shopping," "personal business," "South Pump Station," "fag," or "Fucking off" written on the sign-out sheet. Bennartz and other maintenance workers also found voluntary resignation forms in their personal mailboxes, which they believed were placed there by Betz and Fisher. Betz also would follow Bennartz and other maintenance workers to their off-site jobs in disguise to see whether they were really working. He also once hid a tape recorder in one of the trucks in an attempt to catch the maintenance crew doing things other than their off-site jobs.

Betz was quite a movie buff and would, on a regular basis, quote movie lines and make references to movies that some of the water plant employees found to be threatening. These included:

He might wake up with a horse's head in his bed.

There could be an accident.

In the mob, they dispose of rats.

Revenge is a dish best served cold.

If you are going to shoot someone, do it, don't talk about it.

A true friend helps you hide the body.

He only understands a slap in the face or a slug from a .45.

Betz also made many other comments about the maintenance department in general, and Nichols in particular, that were hostile and profanity-laden and that the maintenance workers and Bennartz found abusive.

When overtime shifts at the water plant were available, the sign-up sheets were usually posted during the day shift, and any interested workers could sign up for the available overtime shifts. However, at some time, Betz and Fisher began posting the available overtime when they knew that the maintenance crew would be gone, or overtime shifts were otherwise offered first to the workers favored by Betz and Fisher. Bennartz claims that eight times over several years, he was forced to take less favorable overtime shifts. Still, Bennartz had more overtime than anyone else at the water plant.

Bennartz also testified that Betz drove by his house after hours and that he would sometimes sit in his car in front of Bennartz's house for up to thirty minutes. While Betz testified that his father lived very near Bennartz and he visited his father daily, Bennartz testified that Betz's actions were not explainable by his visiting his father but were rather further attempts to intimidate Bennartz.

Bennartz went to Turner several times to complain about Betz and Fisher from 2003 until the time when he left the water plant in April of 2005. Turner repeatedly failed to take any action with respect to Betz's and Fisher's behavior. In April, 2005, Bennartz applied for and was offered a position with City in its public works department. Although the position offered a greater hourly wage, it had less overtime available and virtually no opportunity for advancement, unlike at the water plant, where Bennartz had risen from the position of Maintenance One to Operator One and could realistically receive additional future promotions. Bennartz genuinely wanted to remain at the water plant, so before accepting the public works position, he made one more attempt to speak to Turner. This time, he told Turner he wanted to file a formal grievance against Betz (and possibly Fisher). Turner told Bennartz, "[y]ou know how John Betz is, and if you—if you file a grievance, things are just going to get worse." After that meeting, Bennartz returned to the water plant, where Betz had written on the schedule board an appointment for "crying on Floyd's shoulder," referring to Bennartz and a coworker, Jeff Scronce, who accompanied Bennartz to the meeting with Turner. At that time, Bennartz accepted the position with public works and resigned from the water department.

On June 19, 2006, Bennartz filed his petition with the trial court against City and Betz individually for constructive discharge in violation of public policy, alleging that he was constructively discharged in retaliation for reporting the actions of his supervisors. He also alleged tortious interference with contract against Betz individually and requested punitive damages against both defendants. Both defendants filed motions for summary judgment alleging that Bennartz was not constructively discharged in that he was still employed with City and that he never filed a formal grievance. Defendants also alleged that City was protected by sovereign immunity from Bennartz's claims. The trial court denied the motions for summary judgment. A jury trial was held.

At the close of Bennartz's evidence, City filed a motion for directed verdict, again claiming sovereign immunity and also claiming that Bennartz had failed to make a submissible case as to constructive discharge in violation of public policy. City claimed that Bennartz failed to make a submissible case for any of the public-policy exceptions to the employment-at-will doctrine, that he failed to establish a causal connection between his alleged constructive discharge and his alleged whistleblowing, and that the evidence of his damages was too speculative. This motion was also denied.

City renewed its motion for a directed verdict at the close of all of the evidence on the same grounds as its previous motions, adding that Bennartz failed to establish any of the requirements for constructive discharge. This motion was also denied.

The jury returned a verdict against City in the amount of $68,000. The jury also found for Bennartz against Betz as an individual but assessed damages of zero dollars against Betz. Judgment was entered accordingly on September 9, 2008. On September 16, 2008, City filed a motion for judgment notwithstanding the verdict (JNOV), making the same arguments as it did in its motions for directed verdict. On September 19, 2008, the trial court made a docket entry that purported to set aside the judgment of September 9, as having been erroneously entered.² Neither party objected to the court's setting aside of the judgment, but Bennartz filed suggestions in opposition to City's motion for JNOV. The court did not rule on the motion, and City appeals from the September 9, 2008 judgment.

Standard of Review

In reviewing the trial court's denial of City's motion for JNOV, we review the record to see whether Bennartz made a submissible case. "A case may not be submitted unless each and every fact essential to liability is predicated upon legal and substantial evidence." Brenneke v. Dep't of Mo. VFW, 984 S.W.2d 134, 137 (Mo.App. W.D.1998) (internal quotations omitted). As noted above, "[i]n determining whether the evidence was sufficient to support the jury's verdict, we view the evidence in the light most favorable to the result reached by the jury, giving the plaintiff the benefit of all reasonable inferences and disregarding evidence and inferences [that] conflict with the verdict." Id. "If the record contains probative facts which support the conclusion reached by the jury, we will affirm." Id. We review errors of law de novo. Jungerman v. City of Raytown, 925 S.W.2d 202, 204 (Mo. banc 1996).

Legal Analysis

An at-will employee, like Bennartz, who works for a governmental entity, has two high hurdles to clear before he can make a submissible case for common-law wrongful...