Brooks v. City of Sugar Creek

• Decision Date: 22 March 2011
• Docket Number: No. WD 71855.,WD 71855.
• Citation: 340 S.W.3d 201
• Parties: Jim BROOKS, Appellant,v.CITY OF SUGAR CREEK, et al., Respondent.
• Court: Missouri Court of Appeals

340 S.W.3d 201

Jim BROOKS, Appellant,

v.CITY OF SUGAR CREEK, et al., Respondent.

No. WD 71855.

Missouri Court of Appeals, Western District.

March 22, 2011.Motion for Rehearing and/or Transfer to

Supreme Court Denied May 3, 2011.

Application for Transfer Denied

June 28, 2011.

Rodney A. Ames, Liberty, MO, for appellant.Robert O. Jester and Matthew J. Gist, Kansas City, MO, for respondent.Before Division Three: CYNTHIA L. MARTIN, Presiding Judge, GARY D. WITT, Judge and ZEL M. FISCHER, Special Judge.GARY D. WITT, Judge.

Jim Brooks filed suit against the City of Sugar Creek, Herbert Soule, and Jonathan Fields, as it pertained to his alleged wrongful discharge from his position as a police officer for the City. After the City moved for summary judgment, the trial court granted its motion and then subsequently also granted Soule and Fields's motion to dismiss. For the reasons explained herein, we affirm.

Factual Background

On December 22, 2008, Brooks filed his wrongful discharge and wrongful termination petition in the Circuit Court of Jackson County. As amended, Brooks's Petition alleged that on March 25, 2008, he had been employed as a police officer with the City for almost a year. On that evening, Brooks was on patrol in his squad car when he stopped a vehicle for running a red light. After questioning the driver,¹ Brooks “determined that the operator of the vehicle had been drinking alcohol” because the “suspect failed the field sobriety tests.”

Brooks placed this individual under arrest, and then transported the suspect to the City's police headquarters. The suspect subsequently refused a breathalyzer test, and then made threats to Brooks that she had a “close relationship with the Police Department of the City of Sugar Creek” and that “she could arrange to have the Plaintiff terminated by the Police Department.”

Sergeant Jonathan Fields, who was Brooks's superior in the Police Department, was informed by Brooks that he had arrested this specific suspect. Fields responded by saying, “Do you know who you have in there?” and “Fields then informed Plaintiff that the suspect was the owner of a well known business in Sugar Creek and was then instructed by his superior to ‘Make it go away!’ ” Fields further instructed Brooks “to shred all records relating to the detention, field testing, and arrest of the suspect” and Brooks “complied with this directive from his superior officer and shredded the file.”

On the next day, Brooks “was summoned to Police Headquarters by the Police Chief,” Herbert Soule. “Upon arriving in the Chief's office, the Plaintiff was informed that he was terminated effective immediately.”

On May 1, 2009, the City filed its Motion for Summary Judgment on the basis that Brooks's wrongful discharge and wrongful termination claims were barred, as a matter of law, by the doctrine of sovereign immunity. On September 22, 2009, the circuit court issued its Judgment granting Defendant City of Sugar Creek's Motion for Summary Judgment.

Soule and Fields also filed a motion to dismiss Brooks's Petition on the basis that, as a matter of law, Brooks could not bring his wrongful discharge and wrongful termination claims against them because they are individuals and not his employer. On October 29, 2009, the trial court entered its Judgment granting Soule and Fields's Motion to Dismiss.

Brooks now appeals.

Analysis

In Point One, Brooks alleges that the trial court erred in granting summary judgment over his claims, as it pertained to the City, “because the actions of the City through its agents are not protected acts under sovereign immunity in that sovereign immunity is only intended to protect actions that benefit the general public so as to be deemed a governmental function.” Here, the trial court granted the City's motion for summary judgment, as it pertained to the City, based on its conclusion that “the doctrine of sovereign immunity bars common law claims for wrongful termination and/or wrongful discharge.”

Our applicable standard of review was outlined by the Missouri Supreme Court in Daugherty v. City of Maryland Heights:

Appellate review of summary judgment is de novo. Summary judgment is appropriate where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law. A “genuine issue” that will prevent summary judgment exists where the record shows two plausible, but contradictory, accounts of the essential facts and the “genuine issue” is real, not merely argumentative, imaginary, or frivolous. This Court reviews the record in the light most favorable to the party against whom judgment was entered. The movant bears the burden of establishing a legal right to judgment and the absence of any genuine issue of material fact required to support the claimed right to judgment.

231 S.W.3d 814, 818 (Mo. banc 2007) (citations omitted).

A municipality has sovereign immunity from actions at common law tort “for those actions they undertake as a part of the municipality's governmental functions-actions benefiting the general public.” Kunzie v. City of Olivette, 184 S.W.3d 570, 574 (Mo. banc 2006) (internal quotation marks omitted). However, “[m]unicipalities have no immunity for torts while performing proprietary functions-actions benefiting or profiting the municipality in its corporate capacity.” Id. The Missouri Supreme Court has repeatedly “held that termination of a city employee is a governmental function” and that, therefore, “the city is protected by governmental immunity unless some exception applies.” Id.²

Here, Brooks argues that, based on his well-pled allegations, which we must take as true for the purpose of this appeal, public policy prevents the City from enjoying sovereign immunity from his wrongful termination lawsuit in that “logic cannot support a doctrine that terminating a police officer for arresting a drunk driver because that drunken driver is [a] personal friend of the police supervisors or chief of police is in anyway a benefit to the general public.” This Court recently addressed, and ultimately rejected, a similar issue in Bennartz v. City of Columbia in which we held the following:

[C]laims of wrongful discharge and constructive discharge have consistently been found to be barred by sovereign immunity.... Bennartz argues that his constructive discharge for whistleblowing is not barred by sovereign immunity because the improper conduct of his supervisors could not possibly be “in furtherance of the common good.” But employee misconduct, no matter how egregious, does not render actions that are otherwise governmental, proprietary. Case law is replete with appellate decisions dismissing or summarily disposing of claims based on alleged misconduct by municipal employees, even though in such cases all facts alleged by the plaintiff are assumed to be true. If Bennartz's assertion were correct, no actionable conduct of any kind could ever fall within the protection of sovereign immunity. Bennartz cites no authority supporting his position. In fact, an examination of the common law leads to the opposite result, for sovereign immunity shields municipalities from liability even from intentional torts.

A review of Missouri constructive discharge cases where a municipality is the employer also leads to the conclusion that the bad conduct of supervisors or coworkers causing a plaintiff employee to resign does not turn a municipality's governmental functions into proprietary ones....

....

The conduct of Bennartz's coworkers and his supervisor's acquiescence in the situation, although reprehensible, similarly do not change the governmental function of operating and managing a municipal department, into a proprietary one. Negligent performance of a public function, even grossly negligent performance, does not make a governmental function proprietary. In many of the whistleblower cases cited above, the plaintiffs' supervisors knew about the alleged bad acts and either failed to correct them or affirmatively punished the plaintiffs for complaining.

300 S.W.3d at 260–62 (citations and internal quotation marks omitted).

Brooks expressly acknowledges our recent holding in Bennartz that disposes of his claim on appeal. Yet he cites to a concurring opinion in that very case that expressly found that “[g]iven the current status of the law on municipal sovereign immunity, the result reached today is correct” because “we are bound by that precedent.” Id. at 262–63, 264 (Pfeiffer, J., concurring). We do not dispute Brooks's contention on appeal that a strong policy argument can be made for a different outcome when exceptional circumstances are alleged, like the facts pled in the instant lawsuit. However, we reject this policy argument today for the same reasons we rejected them in Bennartz:

Despite this finding, we are sympathetic to and understand the precarious position that well-intentioned and law-abiding municipal employees may face in cases involving whistle-blower retaliation ... Because of the sovereign immunity protection afforded to municipalities, municipal employees find themselves in a precarious and threatening situation, which creates a very real potential for abuse by municipal governments. Municipal employees who have genuine concerns about the legality and propriety of their employer's acts know that, if they report the alleged wrongdoings, they risk losing their jobs and have no recourse. They are “second-class” employees with fewer rights and protections than employees in the private sector.

Id. at 262 (citations omitted). “Our legislature has apparently found that this unfair burden on municipal employees is offset by the protection offered the public purse by protecting cities from bearing the cost of defending suits under the common law.” Id.

Accordingly, since the General Assembly has not acted upon our invitation to review this area of the law, (maybe the outrageous facts of this case...