Davis v. Richmond Special Road Dist., WD

• Decision Date: 22 March 1983
• Docket Number: No. WD,WD
• Citation: 649 S.W.2d 252
• Parties: Michael DAVIS, Plaintiff-Appellant, v. RICHMOND SPECIAL ROAD DISTRICT, Defendant-Respondent. 32653.
• Court: Missouri Court of Appeals

Page 252

649 S.W.2d 252

Michael DAVIS, Plaintiff-Appellant, v. RICHMOND SPECIAL ROAD DISTRICT, Defendant-Respondent.

No. WD 32653.

Missouri Court of Appeals Western District.

March 22, 1983.

James D. Worthington, of Aull, Sherman & Worthington, Lexington, for plaintiff-appellant.

A.V. McCalley, Richmond, for defendant-respondent.

Before PRITCHARD, P.J., and MANFORD and NUGENT, JJ.

MANFORD, Judge.

This is an action for money damages for the alleged wrongful discharge of plaintiff by defendant in violation of § 287.780, RSMo 1978. At the close of the evidence, the trial court directed a verdict for defendant. The judgment is affirmed.

Plaintiff presents one point on this appeal, charging that the trial court erred in directing a verdict for the defendant because, under his evidence, he made a submissible case.

By statute, employers are prohibited from discriminating against employees for the latters' exercising of any rights under our workers' compensation laws. The pertinent statute is § 287.780 and reads:

"287.780. Discrimination because of exercising compensation rights prohibited--civil action for damages.--No employer or agent shall discharge or in any way discriminate against any employee for exercising any of his rights under this chapter. Any employee who has been discharged or discriminated against shall have a civil action for damages against his employer."

On this appeal, the parties have stipulated to the pertinent facts. That stipulation discloses that plaintiff commenced employment with defendant in May, 1977. Plaintiff sustained a minor injury on May 31, 1977. A few days later, plaintiff returned to work. On June 22, 1977, plaintiff was again injured (unrelated to the May 31, 1977 accident), said injury being more serious. Plaintiff obtained medical treatment on June 23, June 28, and July 2, 1977. On July 2, 1977, the treating physician sent a note to the defendant to allow plaintiff to attempt working on a trial basis on July 11, 1977. On July 11, plaintiff returned to work, but passed out on the job. Plaintiff's request to see a doctor was agreed to by defendant. On the evening of July 12, 1977, the Commissioners of defendant met at a regular meeting. During this meeting, a discussion of plaintiff ensued. At this meeting, the Commissioners voted to terminate plaintiff. On July 13, 1977, a fellow employee delivered plaintiff's "final check" and advised plaintiff, "Curtis says if you can't work, we can't use you." On July 20, 1977 and subsequent to his termination, plaintiff filed his formal claim under the workers' compensation laws for both injuries. Upon a hearing, it was ruled that plaintiff was temporarily disabled for forty weeks and that he suffered permanent partial disability of 15% of his body as a whole. Plaintiff has never returned to work.

In addition, there is no dispute between the parties that plaintiff has received full entitlement under the workers' compensation laws.

Plaintiff presents a bifurcated argument. He first acknowledges that the statute (§ 287.780) requires a wrongful discharge or discrimination. He further acknowledges the fact that wrongful discharge can be shown by direct evidence as shown in Henderson v. St. Louis Housing Authority, 605 S.W.2d 800, 803 (Mo.App.1979). In Henderson, the court pointed out: "A cause of action under § 287.780 lies only if an employee is discharged discriminatorily by reason of exercising his or her rights under the Workmen's Compensation Law." In Henderson, the court noted that the evidence in that case revealed and supported that plaintiff's claim that he had been discharged because he had filed a workers' compensation claim. The Henderson court found the evidence to be substantial to show a discriminatory discharge of the plaintiff employee. There is no such direct evidence in the instant case. With that element lacking, plaintiff suggests that a submissible case under the statute can be made by indirect evidence or inference.

To support this contention, plaintiff initially and flatly concludes that the ruling in Henderson (which declares that a cause of action under the statute lies only if an employee is discharged discriminatorily) is wrong. Plaintiff makes the same attack upon the court's ruling in Mitchell v. St. Louis County, 575 S.W.2d 813 (Mo.App.1978). Plaintiff argues that the rule in both of those cases runs contra to the language of the statute.

Plaintiff further argues that it was the intent of the Missouri General Assembly, within the statute, that a discharge for exercising workers' compensation rights is and of itself discriminatory. Plaintiff submits that it is not his contention that all discharges of injured employees give rise to a claim under the statute; to the contrary, only those discharges which arise or are based or caused by the employee's exercise of his or her workers' compensation rights.

Plaintiff suggests that the distinguishing feature in Mitchell and Rodriguez v. Civil Service Commission, 582 S.W.2d 354 (Mo.App.1979) is that the employees were discharged for absenteeism after they became healthy enough to return to work. Plaintiff further suggests that an employee claim under the statute, by indirect evidence or inference, must be allowed because there will be few cases where an employer would admit, concede, or acknowledge, by direct evidence, that the discharge was due or related to the employee's exercise of his or her rights under the workers' compensation law.

In the second half of his argument, plaintiff reemphasizes the factual situation herein (noted above), claiming that he was possessed of all his rights to pursue his workers' compensation claim. He then argues that he "had a right to return to his job if and when he was well and able." Plaintiff neither suggests nor admits the applicability of any time schedule or time frame for the claim of his right to return to his employment. He merely suggests that the employer can hire temporary labor pending the employee's return. In support of this secondary contention, plaintiff urges this court to "strike down the portion of Rodriguez which holds under headnote one (1) on page 355 that employees have no absolute right to retain their jobs for 40 weeks after work-related injuries so long as they are unable to return to work." It is plaintiff's further argument that the court in Rodriguez made an improper distinction-if the worker is unable to return to work he may be discharged. It is plaintiff's position that § 287.190, RSMo 1978, setting forth the particulars of permanent partial disability relative to workers' compensation claims, does not "stand alone." It is his further suggestion that "in combination with 287.780, [§ 287.190] does hold that a job must be held and be available for 40 weeks if the employee is injured in a worker's compensation accident and is temporarily totally disabled and unable to work during that time."

Briefly summarized, plaintiff's argument urges to this court that (a) a claim under § 287.780 is provable by indirect evidence or by inference premised simply from the fact that an employee pursues his or her rights under our workers' compensation laws and is terminated regardless if the termination is shown to have been without discrimination because of the exercise of those rights; (b) that this court strike down that portion of Rodriguez which holds that an employee may be discharged if it be shown that the employee is unable to return to work; and (c) that in the instant case, this court find that plaintiff made a submissible case under § 287.780.

Defendant road district meets plaintiff's contention by relying upon Mitchell which, upon declaring that a cause of action arises under the statute "only if an employee is discharged discriminatorily by reason of exercising his or her rights under the Workmen's Compensation Law" (Mitchell at 815), went further and noted that under the facts and circumstances, plaintiff failed to prove the "critical element of discrimination"; upon Rodriguez which ruled (at 356) that while an employer is required (under our workers' compensation laws) to pay benefits to an injured employee for a period not to exceed 40 weeks as a healing period (§ 287.190), that same statute (§ 287.190) "does not attempt to guarantee injured employees jobs. Rather, the purpose of the section is to provide monetary...