Faust v. Ryder Commercial Leasing & Services

• Decision Date: 05 August 1997
• Docket Number: Nos. WD,s. WD
• Citation: 954 S.W.2d 383
• Court: Missouri Court of Appeals
• Parties: 13 IER Cases 226 Bill W. FAUST, Appellant-Respondent, v. RYDER COMMERCIAL LEASING & SERVICES f/k/a Ryder Truck Rental, a division of Ryder Systems, Inc., Respondent-Appellant. 52481, WD 52513.

Page 383

954 S.W.2d 383

13 IER Cases 226

Bill W. FAUST, Appellant-Respondent, v. RYDER COMMERCIAL LEASING & SERVICES f/k/a Ryder Truck

Rental, a division of Ryder Systems, Inc.,

Respondent-Appellant.

Nos. WD 52481, WD 52513.

Missouri Court of Appeals,

Western District.

Aug. 5, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Sept. 30, 1997.

Application to Transfer Denied

Nov. 25, 1997.

Dennis E. Egan, James S. Margolin, Kansas City, for Appellant-Respondent.

John M. Edgar, Robert J. Hoffman, Kansas City, for Respondent-Appellant.

Before ULRICH, C.J., P.J., and LOWENSTEIN and EDWIN H. SMITH, JJ.

EDWIN H. SMITH, Judge.

Bill W. Faust (appellant), a former employee of Ryder Commercial Leasing & Services (respondent), in his first amended petition, sought damages against respondent in five counts for: Count I--Wrongful Retaliatory Discrimination and Discharge in Violation of Public Policy; Count II--Breach of Contract; Count III--Promissory Estoppel; Count IV--Fraudulent Misrepresentation; and, Count V--Negligent Misrepresentation. Counts II-V were dismissed by the trial court pursuant to respondent's motion to dismiss at the close of appellant's evidence. Count I was submitted to the jury in a bifurcated proceeding with the jury returning a verdict in the first phase for appellant for compensatory damages in the amount of $530,250 and finding respondent was liable for punitive damages. In the punitive damage phase, the jury returned a verdict assessing punitive damages of $4 million. Respondent filed a motion for judgment notwithstanding the verdict (JNOV), new trial, and remittitur. The trial court sustained respondent's motion for JNOV, finding that Missouri had not yet recognized a public policy "whistleblower" action based on facts as pled and proven by appellant, but overruled respondent's motion for new trial and remittitur.

In his appeal, appellant raises three points. In Point I, he alleges that the trial court erred in sustaining respondent's motion for JNOV on Count I because his whistleblower claim was not an extension of the public policy exception to the employment-at-will doctrine, but was simply a new factual pattern. In Points II and III, appellant alleges that the trial court erred in sustaining respondent's motion for directed verdict at the close of appellant's evidence as to Counts III-V because he had made a submissible case as to all three counts.

In its cross-appeal, respondent raises five points. Points I and II deal with alleged instructional error in submitting appellant's Count I claim. Points III and IV deal with the appropriate measure of damages the jury should have been allowed to consider under Count I. Point V alleges that the trial court erred in denying respondent's motion for remittitur.

As to appellant's appeal, we affirm. As such, the claims raised in respondent's cross-appeal are rendered moot.

Facts

Before he resigned on December 5, 1991, Bill Faust (appellant) was employed by Ryder Commercial Leasing & Services (respondent) for approximately twenty years, having started his employment on April 5, 1971. Appellant felt compelled to resign because of acts of retaliation for his reporting of alleged criminal activity, stealing from respondent, by Norm King, District Maintenance Manager for respondent's facilities in Kansas and Missouri, and Huey Farris, District Manager for the Midwest Division of Ryder. In subsequent employment applications, appellant gave his reason for leaving respondent as he wanted to try something else or left for a better job.

When appellant resigned, he was employed as a tire technician and mechanic at respondent's Lenexa, Kansas, location, although from time to time he worked and trained tire technicians and mechanics at other locations in Kansas and Missouri. Appellant had been at the Lenexa location since 1988. His supervisor at the Lenexa location was Bill Klinksick. Appellant was, by all accounts, an excellent employee, receiving superior employee evaluations, until immediately after a confrontation with King regarding suspected stealing of company property by King and Farris. Because he was highly thought of by management, appellant was the only non-managerial employee appointed to serve on respondent's Continuous Improvement Process Evaluation Committee (CIPEC), a program designed to consider employees' ideas for improving the company.

In September 1991, after a meeting of the CIPEC, appellant privately confronted King with his belief that King and Farris were stealing from the company and threatened to expose them to "Ryder corporate officials and/or authorities if the stealing didn't stop." King responded by saying, "You ever mention that again to anybody, and that's going to be your career choice." Appellant's stated purpose for his confrontation with King was to give King and Farris an opportunity to stop their stealing before he exposed them. Appellant did not mention his concerns about King and Farris to the CIPEC. He did not confront Farris with his allegations nor did he report his suspicions to company security, company auditors, or King's and Farris' superiors until after he had resigned. Appellant testified he did not know the proper procedure for reporting up the chain of command. He did advise Bill Klinksick about the stealing in the spring of 1991.

In the spring of 1992, after his resignation from respondent, appellant contacted Harry Rosenfeld, the head auditor at respondent's corporate headquarters in Miami, regarding the alleged criminal activities of King and Farris. In return for his cooperation with an audit, appellant told Rosenfeld that he wanted his job back with back pay and an apology letter. Rosenfeld responded by saying, " Sounds fair to me." In subsequent conversations, Rosenfeld assured appellant he was going to get his job back for cooperating with the audit. Appellant cooperated fully with the audit, which ultimately resulted in King's and Farris' termination. Appellant was never rehired and did not receive a letter of apology. His long-distance telephone bills incurred in cooperating with the audit were paid by respondent.

Within forty-eight hours of his confrontation with King, King began making complaints about appellant's job performance. King told Donald Racinowski, a former district manager, that they "were going to put a silver bullet" in appellant. Shortly after the confrontation, King made a claim that appellant was defrauding the Bridgestone tire warranty program by improperly measuring tread depths and removing Department of Transportation (DOT) numbers from Bridgestone tires in violation of company policy and federal regulations. Appellant denied any wrongdoing, and insisted he was following company policy. A report concerning the Bridgestone allegations against the appellant was sent by Getty Faul, National Tire Manager, to Farris, with copies to Ed Justis, Regional Vice President, Ike Luna, Director of Maintenance, and several other high-level management employees within the company.

As a result of the DOT allegation, the appellant went to the Missouri Highway Patrol station in Lee's Summit to determine for himself whether the removal of the DOT numbers from the tires was a violation of federal regulations as claimed by King. While there, he mentioned his suspicions regarding stealing by King and Farris. He admitted, however, that he did not advise the trooper he talked to of the name of his company nor was he certain he gave him King's and Farris' full names. He also called the DOT to inquire about the application of any regulations concerning the removal of the DOT numbers from the tires.

After his confrontation with King, appellant was eventually stripped by him of certain job duties, i.e., warranty work and training, and was not allowed to use the telephone on his desk. As a result of these events and the allegations as to the Bridgestone tire program, appellant was under a great deal of pressure and found it increasingly difficult to perform his job duties. He also feared that he would soon be discharged. As a result, he made the decision to resign.

Upon resigning from respondent, appellant went to work as a field engineer for Goodyear Tire & Rubber Co., a job he had obtained prior to his resignation from respondent. When appellant left the employ of respondent, he was making $14 per hour plus benefits and hoped to retire at age fifty-two. At Goodyear, he had a monthly guarantee of $2,500 per month for six to eight weeks and the use of a company vehicle. In February, 1992, while appellant was still employed by Goodyear, at King's urging, appellant made application to respondent for rehire. The application contained the following certification of appellant:

If an employee relationship is established, I understand that such employment is terminable at will by either myself or the company at any time for any reason. I also understand that any period of employment is not for specific duration. In addition, I understand that, with the exception of the chief executive officer of Ryder System, Inc., no company representative has the authority to make any oral or written agreements which are contrary to the foregoing.

Appellant advised King he would not apply for rehire unless King assured him that the stealing would stop. King told him to go see Bill Klinksick to fill out an application. Appellant was not rehired.

Appellant left Goodyear after three and one-half months and went to work for KCR International as a line mechanic making $11 per hour. Appellant left KCR International after three and one-half months even though he was offered a $3 per hour raise and a promotion. He testified that when he left Goodyear and KCR, he thought he was going back to work for respondent. Appellant then went to work for MFA Propane for a short period of time making $1,100 per month. When he left MFA, he went to work for Fry-Wagner for $12 per hour. After approximately two...