Brenneke v. Department of Missouri, Veterans of Foreign Wars of U.S. of America

• Decision Date: 10 November 1998
• Docket Number: Nos. WD,s. WD
• Citation: 984 S.W.2d 134
• Parties: 137 Lab.Cas. P 58,590, 14 IER Cases 992 Evelyn BRENNEKE, Respondent, v. DEPARTMENT OF MISSOURI, VETERANS OF FOREIGN WARS OF UNITED STATES OF AMERICA, Appellant. 54564, WD 54649.
• Court: Missouri Court of Appeals

Page 134

984 S.W.2d 134

137 Lab.Cas. P 58,590, 14 IER Cases 992

Evelyn BRENNEKE, Respondent, v. DEPARTMENT OF MISSOURI, VETERANS OF FOREIGN WARS OF UNITED

STATES OF AMERICA, Appellant.

Nos. WD 54564, WD 54649.

Missouri Court of Appeals,

Western District.

Nov. 10, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 22, 1998.

Application for Transfer Denied Feb. 23, 1999.

Daniel L. Seiden, Jefferson City, for appellant.

David J. Moen, Jefferson City, for respondent.

Before Presiding Judge FOREST W. HANNA, Judge LAURA DENVIR STITH and Judge EDWIN H. SMITH

LAURA DENVIR STITH, Judge.

The Department of Missouri, Veterans of Foreign Wars of the United States (hereinafter "VFW"), appeals the trial court's judgment based on a jury verdict awarding $100,000.00 to Plaintiff-Respondent, Evelyn Brenneke. The jury found that Ms. Brenneke had been wrongfully terminated in violation of the "whistleblower" public policy exception to Missouri's employment-at-will doctrine. The VFW asserts that the trial court erred in refusing to grant its Motion to Dismiss and its Motion For Judgment Notwithstanding the Verdict (JNOV) on Ms. Brenneke's whistleblower claim. The VFW also claims that Ms. Brenneke's testimony as to her own future lost earnings was unduly speculative, and the court erred in allowing her counsel to discuss future lost earnings during closing argument despite the court's decision not to include the future damages clause of MAI 4.01 in the damage instruction.

We find that the evidence did support the submission of Ms. Brenneke's claim for wrongful termination. We agree with the VFW that the trial court erred in permitting plaintiff's counsel to ask for future lost earnings during closing argument, yet at the same time refusing to instruct the jury that it could award damages for injuries plaintiff was reasonably certain to sustain in the future. However, we do not find plaintiff's testimony as to lost earnings was unduly speculative. As a result, the error was not in allowing plaintiff's counsel to argue future damages, but in failing to include the future damage clause in the instructions. As that error was favorable, rather than prejudicial, to defendant, and as the two evidentiary matters raised by defendant also either do not constitute error or were not prejudicial, the judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

Ms. Brenneke was fired from her job as a bookkeeper at the VFW on April 7, 1994. She filed suit against the VFW, alleging wrongful termination, discrimination based on a disability, and retaliatory discharge for exercise of workers' compensation rights. The VFW filed a motion for summary judgment on all three claims. The trial court granted summary judgment on the claims for disability discrimination and retaliatory discharge. ¹ The trial court denied the VFW's motion for summary judgment on Ms. Brenneke's wrongful discharge claim, however, and permitted the claim to proceed to trial.

At trial, Ms. Brenneke presented evidence that she was fired for reporting to other VFW personnel that her boss, Wayne Bryant, the VFW's Adjutant/Quartermaster in this area, had been stealing VFW monies. Specifically, she alleged that Wayne Bryant was stealing money and charging personal expenses to VFW accounts and then not paying these charges back. She also said that he would handle cash sent by mail by VFW members and would keep some of the money without accounting for it. She said that, in 1992, she spoke about Mr. Bryant's conduct to Jim Mueller, who was on the Council of Administration of the VFW. She said he told her to get evidence, and thereafter she kept records of Mr. Bryant's expense reports seeking reimbursement when he was not traveling. She also claimed she spoke to Mr. Mueller about Mr. Bryant by telephone on three subsequent occasions.

Ms. Brenneke also testified that she spoke with two VFW service officers, Dennis Flynn and Ron Wooderson, about Wayne Bryant's alleged stealing. She asserted that she was fired because she had undertaken such internal "whistleblowing." She also presented the testimony of a former co-worker, Linda Meckfessel. Ms. Meckfessel said she, too, had been fired because she and Ms. Brenneke had reported theft by Mr. Bryant to Dennis Flynn, Jim Mueller, and Ron Wooderson. Ms. Meckfessel further testified that after she told Mr. Wooderson that she had reported Mr. Bryant's stealing to the Jefferson City police, she was treated differently by Mr. Bryant and his secretary. Ms. Meckfessel stated she was discharged shortly thereafter.

Mr. Bryant's secretary, Chris Ordway, testified that after Ms. Meckfessel was terminated, Ms. Brenneke's work performance deteriorated. Although Ms. Ordway claims Ms. Brenneke was never specific about her allegations regarding Mr. Bryant's financial improprieties, she admitted that she never saw Mr. Bryant reimburse the VFW for personal purchases he made on VFW accounts. Mr. Bryant also admitted during his testimony he had purchased with VFW accounts a power sprayer, vacuum, convection oven, as well as other items, for his own personal use. Mr. Bryant was unable to show that he ever reimbursed the VFW for these purchases.

The VFW presented contrary evidence that the members of the council voting on Ms. Brenneke's dismissal did not know of her whistleblowing allegations at the time they voted to terminate her employment and that Ms. Brenneke was discharged for causes other than her whistleblowing activity. Mr. Bryant detailed the reasons for Ms. Brenneke's termination, including missing several days of work, consistently failing to perform duties assigned, arriving late for work, and mistakenly ordering 5,000 poppies for a 500 poppy order. Ms. Ordway testified that Ms. Brenneke had been "scolded" by Bryant and Ordway about her job performance, and the reasons detailed above, before she was fired. Mr. Bryant also offered explanations for his alleged misconduct.

The jury returned a $100,000.00 verdict in favor of Ms. Brenneke. The VFW's post-trial motions for JNOV or for a new trial were denied. It now appeals.

II. STANDARD OF REVIEW

In reviewing the trial court's denial of the VFW's JNOV motion, we review the record to see whether plaintiff 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.' " Washington by Washington v. Barnes Hosp., 897 S.W.2d 611, 615 (Mo. banc 1995), quoting, Houghton v. Atchison, Topeka and Santa Fe R.R. Co., 446 S.W.2d 406, 409 (Mo. banc 1969). In 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 which conflict with that verdict. Id.; Resnik v. Blue Cross and Blue Shield, 912 S.W.2d 567, 570 (Mo.App.1995); Koehler v. Burlington Northern, Inc., 573 S.W.2d 938 (Mo.App.1978). If the record contains probative facts which support the conclusion reached by the jury, we will affirm. Perkins v. Rantz, 631 S.W.2d 907 (Mo.App.1982).

III. THE EVIDENCE SUPPORTED SUBMISSION OF A WHISTLEBLOWING THEORY

The VFW first argues on appeal that Ms. Brenneke failed to state a claim on which relief could be granted on a whistleblower theory and failed to make a submissible case on that theory. In support, the VFW notes that in Missouri, employees such as Ms. Brenneke, who have no contract for a certain term of employment, are employees-at-will. An employee-at-will normally has no right to sue for wrongful discharge even if the employee was terminated without cause. See Dake v. Tuell, 687 S.W.2d 191 (Mo. banc 1985); Hanrahan v. Nashua Corp., 752 S.W.2d 878, 883-84 (Mo.App.1988).

The VFW acknowledges that there are exceptional circumstances in which the Missouri courts have held that public policy requires that an employee-at-will be entitled to sue for wrongful discharge. The VFW notes however, that the only one of these exceptions which the Missouri Supreme Court has expressly adopted is the public policy exception for retaliatory discharge of a person for exercising his or her workers' compensation rights. See, e.g., Crabtree v. Bugby, 967 S.W.2d 66 (Mo. banc 1998). ²

This Court and the other districts of the Court of Appeals have recognized three additional public policy exceptions to the employment-at-will doctrine, however, in cases such as Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859 (Mo.App.1985). Boyle has been followed in many other cases, see, e.g., Porter v. Reardon Mach. Co., 962 S.W.2d 932 (Mo.App.1998); Adolphsen v. Hallmark Cards, Inc., 907 S.W.2d 333 (Mo.App.1995); Clark v. Beverly Enters.-Missouri, Inc., 872 S.W.2d 522 (Mo.App.1994), and we follow it here in the absence of a Missouri Supreme Court decision to the contrary.

Boyle and similar cases have held that a cause of action for wrongful discharge will arise if an employee is discharged for: (1) refusing to perform an illegal act or an act contrary to a strong mandate of public policy; (2) reporting wrongdoing or violations of law or public policy by the employer or fellow employees to superiors or third parties; (3) acting in a manner public policy would encourage, such as performing jury duty, seeking public office, or joining a labor union; or (4) filing a workers' compensation claim. Porter, 962 S.W.2d at 936-3; Boyle v. Vista Eyewear, Inc., 700 S.W.2d at 873-75.

Here, Ms. Brenneke alleged that her firing violated the second of these public policy exceptions to the employee-at-will doctrine. That exception, commonly referred to as the "whistleblower" exception, was first recognized in Boyle. Boyle found that when an employer has discharged an at-will employee "because the employee reported to his superiors or to public authorities serious misconduct that constitutes violations of the law and of such well...