Keveney v. Missouri Military Academy

• Citation: 304 SW 3d 98
• Decision Date: 09 February 2010
• Docket Number: No. SC 89925.,SC 89925.
• Parties: Michael KEVENEY, Respondent/Cross-Appellant, v. MISSOURI MILITARY ACADEMY, Appellant/Cross-Respondent.
• Court: United States State Supreme Court of Missouri

304 S.W.3d 98

Michael KEVENEY, Respondent/Cross-Appellant,
v.
MISSOURI MILITARY ACADEMY, Appellant/Cross-Respondent.

No. SC 89925.

Supreme Court of Missouri, En Banc.

February 9, 2010.

304 SW 3d 100

Ian P. Cooper, Katherine L. Nash, Tueth Kenney Cooper Mohan & Jackstadt, P.C., St. Louis, for Appellant/Cross-Respondent.

Michelle Dye Neumann, Gregory A. Rich, Dobson, Goldberg, Berns & Rich, LLP, St. Louis, for Respondent/Cross-Appellant.

RICHARD B. TEITELMAN, Judge.

Missouri Military Academy (Employer) appeals from a judgment awarding Michael Keveney (Employee) $13,300 in damages for breach of an employment contract. This part of the judgment is affirmed. Employee appeals from the dismissal of his claim for wrongful discharge in violation of public policy. This part of the judgment is reversed.

I. Background

Employee worked as a teacher pursuant to a written employment contract. The contract provided that Employer could terminate

304 SW 3d 101

Employee's employment for cause. In October 2003, Employer terminated Employee for cause.

Employee filed suit alleging that his termination was a result of his insistence that his superiors report to the Division of Family Services (DFS) evidence that a student was being abused physically. Specifically, Employee observed bruises on the student's arms and reported his observation to administrators at the school. Employee alleges that his superiors refused to report the cadet's bruises to DFS and told him his job would be jeopardized if he reported to DFS. Employee was discharged the same day he reported the suspected abuse to his superiors.

Employee filed a petition alleging wrongful discharge and breach of contact. Employee sought punitive damages and damages for emotional distress under both counts. The circuit court dismissed Employee's wrongful discharge claim and did not allow submission of his claim for punitive damages and damages for emotional distress for his breach of contract claim. The case proceeded to trial on the breach of contract claim. The jury awarded Employee $13,300 in damages for breach of contract.

Employer appealed, asserting that the circuit court erred in overruling its motion for directed verdict because the evidence established that Employee failed to perform his contractual obligations and that he engaged in misconduct constituting cause for termination. Employee cross-appealed, asserting wrongful discharge claims should be available to contract employees and, alternatively, that contract employees should be able to obtain punitive damages and damages for emotional distress under a whistleblower breach of contract claim.

II. Wrongful Discharge

A. Standard of Review

A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition. State ex rel. Henley v. Bickel, 285 S.W.3d 327, 329 (Mo. banc 2009) (quoting Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462, 464 (Mo. banc 2001)). The plaintiff's allegations are taken as true, and no attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Id. The petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action or of a cause that might be adopted in that case. Id.

B. Wrongful Discharge in Violation of Public Policy

Generally, an employer can discharge an at-will employee for any reason. Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661, 663 (Mo. banc 1988). There are limits to the at-will employment doctrine. An employer cannot terminate an at-will employee for being a member of a protected class, such as "race, color, religion, national origin, sex, ancestry, age or disability." Section 213.055, RSMo Supp. 2005. Missouri courts also recognize a public policy exception to the employment at-will doctrine. Fleshner v. Pepose Vision Institute, Inc., 304 S.W.3d 81, 92, (Mo. banc 2010). The public policy exception "provides that an at-will employee who has been discharged by an employer in violation of a clear mandate of public policy has a cause of action against the employer for wrongful discharge." Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859, 871 (Mo.App.1985). Public policy "finds its sources in ... the letter and purpose of a constitutional, statutory or regulatory provision or scheme...." Id.

304 SW 3d 102

To date, Missouri courts have declined to extend the wrongful discharge cause of action to contract employees. Therefore, the dispositive issue in this point is whether a contract employee, like an at-will employee, can pursue a claim for wrongful discharge in violation of public policy.

Previous cases support Employer's assertion that the tort of wrongful discharge applies only to at-will employees. In Luethans v. Washington University, 894 S.W.2d 169, 173 (Mo. banc 1995), this Court stated that "a wrongful discharge action is only available to an employee at will."¹ Subsequent cases discussing the tort of wrongful discharge all have involved at-will employees. See Drury v. Missouri Youth Soccer Ass'n, Inc., 259 S.W.3d 558, 566 (Mo.App.2008); Sivigliano v. Harrah's, 188 S.W.3d 46, 48 (Mo.App. W.D.2006); Williams v. Thomas, 961 S.W.2d 869, 873 (Mo.App.1998). Although no Missouri case has permitted a contract employee to bring a wrongful discharge action, it is also true that none of these cases has offered a detailed justification for allowing an at-will employee to recover for wrongful discharge while denying the same remedy to a contract employee.

There are at least three compelling reasons for allowing contract employees to pursue an action for wrongful discharge in violation of public policy. First, limiting the wrongful discharge cause of action to at-will employees fails to recognize the distinct underlying purpose of the wrongful discharge cause of action. A breach of contract action enforces privately negotiated terms and conditions of employment. In contrast, the wrongful discharge action is premised on a conflict between the conditions of employment and constitutional, statutory, or regulatory provisions that are applicable irrespective of the terms of contractual employment. A discharge is not "wrongful" because it violates the contractual terms of employment. A discharge is "wrongful" because it is based on the employer's attempt to condition employment on the violation of public policy expressed in applicable constitutional, statutory or regulatory provisions. See Smith v. Bates Technical College, 139 Wash.2d 793, 991 P.2d 1135, 1141 (2000) (citing Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330, 1335 (1980)). Limiting wrongful discharge actions to at-will employees rests implicitly on the incorrect assumption that the constitutional, statutory or regulatory interests at issue can be limited through private contracts. An employer's obligation to refrain from discharging an employee who refuses to participate in or conceal actions inconsistent with public policy does not depend on the terms...