Krasney v. Curators of University of Missouri

• Decision Date: 31 January 1989
• Docket Number: No. WD,WD
• Citation: Krasney v. Curators of University of Missouri, 765 S.W.2d 646 (Mo. App. 1989)
• Parties: 121 Lab.Cas. P 56,832, 52 Ed. Law Rep. 434 Rina KRASNEY, Appellant, v. The CURATORS OF the UNIVERSITY OF MISSOURI, Respondent. 40246.
• Court: Missouri Court of Appeals

Page 646

765 S.W.2d 646

121 Lab.Cas. P 56,832, 52 Ed. Law Rep. 434

Rina KRASNEY, Appellant, v. The CURATORS OF the UNIVERSITY OF MISSOURI, Respondent.

No. WD 40246.

Missouri Court of Appeals Western District.

Jan. 31, 1989.

Doris Gregory Black, St. Louis, for appellant.

Jerry K. Rodriguez, Phillip James Hoskins, Columbia, for respondent.

Before SHANGLER, P.J., CLARK, J., and COVINGTON, Special Judge.

SHANGLER, Presiding Judge.

The plaintiff Krasney appeals from the dismissal without prejudice of a petition against the defendant Curators of the University of Missouri. The judgment of dismissal gives no formal ground, but is consequent upon the motion of the defendant that the petition fails to state a claim for relief because the matters pleaded assert actions in tort, and the Curators enjoy the immunity of the sovereign against such suits. The plaintiff argued to the trial court, and now on appeal, that the petition sounds in contract, not tort, and therefore the Curators must answer.

The plaintiff was employed by the defendant in January of 1981 as Librarian II for a period of one year on a nonregular academic status. ¹ Her employment was renewed for each successive academic year until 1985 when the reappointment as Librarian II was for a three-month period, from September 1, 1985 to November 30, 1985. The appointment was not renewed thereafter. In December of 1984 the plaintiff had been injured during the course of employment, and was treated for her injuries. The regimen of medical and hospital care caused her absence from work for various periods. On June 25, 1985, the plaintiff filed a claim for worker's compensation against the Curators under chapter 287. ²

On these essential facts, the plaintiff undertakes to formulate three separate grounds for redress.

Count I of the petition alleges an unlawful retaliatory discharge of the plaintiff by the Curators in violation of § 287.780 RSMo 1986. That section provides:

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.

That count pleads that the Curators intentionally imposed on the plaintiff duties which required excessive physical exertions contrary to the advice of her physicians, that the Curators failed to provide a timely description of job accommodations after her injury ³, and then terminated her employment without an opportunity to work in accordance with the accommodations. The count also pleads that the Curators harassed, humiliated, degraded and demeaned the plaintiff, so that she suffered not only loss of wages and professional reputation, but also humiliation and emotional distress. The prayer was for actual and punitive damages.

Count II alleged in addition that the plaintiff submitted a written request to the Curators to provide her a service letter, but that the Curators--in violation of § 290.140, RSMo 1986, submitted a response which failed to state the true reason why she was discharged. The prayer was for actual and punitive damages.

Count III alleged that the work performance of the plaintiff was more than satisfactory and that the actions of the Curators were in violation of the employee personnel manual ⁴ then in effect and constituted a wrongful discharge. The prayer was for actual and punitive damages.

The judgment to dismiss the petition for failure of the several counts to state a cause of action was responsive to the motion of the defendant that the Curators are a public entity within § 537.600, RSMo 1986, and so enjoy the immunity of the sovereign from suit for money damages in tort. And, indeed, the Board of Curators of the University of Missouri is invested by constitutional mandate as a public entity with the status of a governmental body and, as such, is immune from suit for liability in tort in the absence of an express statutory provision. Todd v. Curators of Univ. of Mo., 347 Mo. 460, 147 S.W.2d 1063, 1064[1, 2] (1941); Tribune Pub. Co. v. Curators of Univ. of Mo., 661 S.W.2d 575, 579 (Mo.App.1983); Mo.Const.Art. IX, § 9(a). The plaintiff does not dispute these principles or the prerogative of the Curators to invoke them against suits in tort, but argues that each of the three counts is based on contract and so may be maintained, even against a public entity. The plaintiff alludes to the text of § 537.600 which expressly limits the scope of the immunity to liability and suit for tortious acts, but not to breaches of contract. See V.S. DiCarlo Constr. Co. v. State, 485 S.W.2d 52, 54 (Mo.1972); Gavan v. Madison Memorial Hosp., 700 S.W.2d 124, 126[1, 2] (Mo.App.1985).

COUNT I

It is the theory of the argument as to Count I, that by subscription to the coverage of the Workers Compensation Act for its employees, the Curators agreed also--as a matter of contract--to any liability that Act imposes on an employer for noncompliance or breach of its provisions. To sustain the argument, the plaintiff cites from Welborn v. Southern Equip. Co., 395 S.W.2d 119 (Mo. banc 1965) at 124:

[T]he Workmen's Compensation Law is contractual in that it is elective by the employer and the employee and when so accepted its provisions become an integral part of the employment contract.

From this general declaration, the plaintiff concludes that the duty of the Curators as an employer under § 287.780 to refrain from a retaliatory discharge of an employee is an obligation of contract, so that a breach of that statute is only a contract to which the doctrine of sovereign immunity does not relate. Welborn, however, dealt with the quintessential obligation of an employer under the Law: to pay an employee compensation, medical aid and other attendant benefits of a compensable injury. It was that obligation which became a matter of contract with the Curators and its breach a breach of its statutory obligation to the worker. A retaliatory discharge in violation of § 287.780, on the other hand, constitutes an independent tort for which an award for punitive damages lies. Reed v. Sale Memorial Hosp. and Clinic, 698 S.W.2d 931, 940 (Mo.App.1985). Punitive damages are not a usual recovery for breach of contract. Williams v. Kansas City Pub. Serv. Co., 294 S.W.2d 36, 40[7, 8] (Mo.1956). And, indeed, it is punitive damages Count I seeks.

Count I, therefore, sounds in tort, and not in contract, as the plaintiff argues. The Curators, as a governmental entity, are immune from suit in tort in the absence of an express statutory waiver. Todd, 147 S.W.2d at 1064[1, 2]. We assume the plaintiff means to argue that § 287.030 of the Law which defines employer to include not only persons, partnerships, corporations and other business entities, but also, the state, county, municipal corporations, curators, and other governmental entities, places them on a parity so far as the obligation to comply with the several components of the Law--retaliatory discharge § 287.780 included--so that one kind of employer is as equally amenable to suit as the other. The waiver of sovereign immunity, however, must be by express consent to be sued. Charles v. Spradling, 524 S.W.2d 820, 823[4, 5] (Mo. banc 1975); Community Fed. Sav. & Loan Assoc. v. Director of Revenue, 752 S.W.2d 794, 796[1, 2] (Mo. banc. 1988), cert denied, 488 U.S. 893, 109 S.Ct. 231, 102 L.Ed.2d 221 (1988). Nor, in the usual course of the construction of statutes, are the state and its agencies considered within the purview of a statute, inclusive though the language of the enactment may be, unless an intention to include them is clear. "The rule reflects the notion that the state is a unique entity in our society as the reservoir of the power and rights of all people. Narrowly construing the general provisions of a statute in favor of the state serves to preserve the state's sovereign rights and protect its capacity to perform necessary governmental functions." Carpenter v. King, 679 S.W.2d 866, 868 (Mo. banc 1984). Neither § 287.780 nor any other component of the Workers Compensation Law expresses an intention to submit a governmental entity to liability for tort for breach of that retaliatory discharge provision.

The premise of the argument that § 287.030 means to waive the immunity from suit in tort the Curators share with the sovereign is even more conclusively rebutted by an express legislative disclaimer. In 1969 the General Assembly enacted sections 105.800 through 105.850 to extend the provisions of the Workers Compensation Law [chapter 287] to include all state employees. ⁵ Section 105.850 provides:

Nothing in sections 105.800 to 105.850 shall ever be construed as acknowledging or creating any liability in tort or as incurring other obligations or duties except only the duty and obligation of complying with the provisions of chapter 287, RSMo.

[emphasis added]

This declaration means that, any intimations to the contrary notwithstanding, none of the provisions of the Workers Compensation Law shall be construed as a waiver of sovereign immunity in favor of a state employee. Jones v. State Highway Comm., 557 S.W.2d 225, 229 (Mo. banc 1977); O'Dell v. School Dist. of Independence, 521 S.W.2d 403, 408 (Mo. banc 1975), cert. denied, 423 U.S. 865, 96 S.Ct. 125, 46 L.Ed.2d 94 (1975).

Count I was properly dismissed for failure to state a cause of action against the Curators under § 287.780.

COUNT II

Count II undertakes to plead a violation of service letter § 290.140, RSMo.1986, in that the plaintiff submitted a written request to the Curators to provide her a service letter, but that the response failed to state the true reason for her discharge. The breach of that section, which by explicit terms allows a recovery for compensatory, nominal and punitive damages for its breach, gives rise to a statutory action in tort. Lowery v. Kansas City, 337 Mo. 47, 85 S.W.2d 104, 110[8-12] (1935); Love...