Lynch v. Blanke Baer & Bowey Krimko, Inc.

• Decision Date: 11 April 1995
• Docket Number: No. 65784,65784
• Citation: 901 S.W.2d 147
• Court: Missouri Court of Appeals
• Parties: 11 IER Cases 808 Gerald LYNCH, Plaintiff/Appellant, v. BLANKE BAER & BOWEY KRIMKO, INC., Defendant/Respondent.

Page 147

901 S.W.2d 147

11 IER Cases 808

Gerald LYNCH, Plaintiff/Appellant, v. BLANKE BAER & BOWEY KRIMKO, INC., Defendant/Respondent.

No. 65784.

Missouri Court of Appeals,

Eastern District,

Division Four.

April 11, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 31, 1995.

Application to Transfer Denied

July 25, 1995.

Daniel J. McMichael, McMichael & Logan, Chesterfield, for appellant.

Kevin J. Lorenz, James N. Foster, Jr., Michelle M. Cain, McMahon, Berger, Hanna, Linihan, Cody & McCarthy, St. Louis, for respondent.

AHRENS, Presiding Judge.

In this jury-tried case for wrongful discharge, plaintiff Gerald Lynch appeals the judgment which granted a directed verdict in favor of defendant Blanke Baer and Bowey Krimko, Inc. The judgment is reversed and the cause remanded for a new trial.

Plaintiff originally filed this action in St. Louis City against corporate defendant Blanke Baer and individual defendant Joseph Bryant (president of Blanke Baer). The case against defendant Bryant was dismissed for failure to state a claim and the cause was transferred to St. Louis County. During trial, at the close of all evidence, defendant's motion for a directed verdict was denied. The jury was unable to reach a verdict and the trial court declared a mistrial. The defendant moved for judgment in accordance with its motion for a directed verdict and the trial court sustained that motion.

In his first point on appeal, plaintiff contends that the trial court erred in directing a verdict in favor of defendant because plaintiff made a submissible case for wrongful discharge in violation of public policy for reporting federal violations to his superiors. To review the grant of a directed verdict in favor of a defendant, we view the evidence and permissible inferences most favorably to the plaintiff, disregard contrary evidence and inferences and determine whether, on the evidence so viewed, the plaintiff made a submissible case. Heacox v. Robbins Educ. Tours, Inc., 829 S.W.2d 600, 601 (Mo.App.1992).

Plaintiff began his employment at Blanke Baer in November of 1985 as technical director. One aspect of plaintiff's job included maintaining quality assurance of employer's products by enforcing 21 C.F.R. § 113.3 et seq., the Food and Drug Administration's (FDA) regulation on water activity in food products. ¹ Plaintiff became aware of product violations early in his career. Evidence showed that during this time various products were not within the required thresholds for water activity. When plaintiff inquired of his staff in 1986 as to what efforts they were making with regard to water activity levels, the staff replied that they were working on it and that it was not a major problem. At the end of 1987, plaintiff renewed a product development project initiated by another employee at Blanke Baer before plaintiff began employment. The project's objective was to develop formulas for a group of products with particular water activity and pH levels (a process called reformulation). Plaintiff stated that he made the project a top priority.

Plaintiff testified that in mid-1987 he began raising the issue of the water activity level in Blanke Baer products at every executive committee meeting. ² He ordered more measurements of water activity. He believed that his staff was dissatisfied with his demands for making reformulation a priority. Plaintiff suggested refrigeration of products to the executive committee as a solution to the problem. The committee expressed opinions that refrigeration would be impractical and that it might make it more difficult to sell the products. Plaintiff also urged that the products be registered with the FDA, with the effect of frequent checks by the FDA. In response to the suggestion of product registration, Joseph Bryant, plaintiff's supervisor, said that "he didn't want us to contact the FDA, in effect." Bryant explained registration would complicate the process and the FDA may question other products.

Plaintiff distributed various memoranda in early 1988 regarding high water activity levels and attempted to set up a meeting on the problem. On March 29, 1988, plaintiff distributed a memorandum which set up a meeting for the next day, which stated:

The purpose of this meeting is to develop an action plan that will resolve the serious problems concerning the manufacture of products that have high water activity and low acidity.

I protest that we have three options and we cannot continue operating and ignoring the risk to the public, to our company, and to our personal reputations and careers.

For clarity, simplicity, and ease of recall (memory, not product) I choose to designate these as the three R's ...

1. Reformulate

2. Refrigerate, and/or

3. Register (The process with federal authorities with all the data required to secure approval.)

* * * * * *

I now want to make my position on this issue (products with high water activity and low acidity) perfectly clear--we must come out of this meeting with an action plan that involves the above described three R's in a combination that reflects our concern primarily for the safety of the public, but also for the viability of our business, and lends credibility under close scrutiny, to our reputations as professional managers and good citizens. (Underline in original.)

Plaintiff testified that when Bryant received this memo, he called plaintiff into his office, stating "Jerry, we have to talk about this memo and restrict the circulation," and slammed the door. Bryant said that "the memo was too abrasive and we feel things are not working out. And I know that you had made plans to attend Purdue University to be certified for a course where you would be in contact with FDA people and so forth, and I don't want you to be in contact with anybody from the FDA at this point." At that point, Bryant fired plaintiff but told him not to reveal it "for a short period of time."

One witness for plaintiff, William Baugher, was the vice-president and technical director for the parent company of Blanke Baer, Universal Flavors Corporation. Baugher testified that plaintiff sent him memoranda on a regular basis updating him on the products with high water activity levels. When the witness discussed plaintiff's situation with Bryant, Bryant explained that plaintiff "was getting into things which really he shouldn't be into. 'If he will get off this damn water activity kick and get back on the bench and make products, we would all be a lot better off.' "

Plaintiff also testified that although he never received a written annual performance review, he received raises and bonuses in 1986 and 1987, with a stock option offered in 1987. Plaintiff's bonus for 1987 was higher than anyone's at Blanke Baer except for Bryant.

In the present case, for plaintiff to make a submissible case, he must establish by substantial evidence the elements of the cause of action for wrongful discharge under the public policy exception to the employment at-will doctrine. That doctrine states that "an employer can discharge--for cause or without cause--an at-will employee ... and still not be subject to liability for wrongful discharge." Luethans v. Washington Univ., 838 S.W.2d 117, 119 (Mo.App.1992), (quoting Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661, 662 (Mo. banc 1988)). However, a narrow, public policy exception has been carved out for wrongful discharge for an at-will employee when an employer's act of discharging the employee is violative of a statute, regulation based on a statute, or a constitutional provision. Luethans, 838 S.W.2d at 120.

The case of Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859 (Mo.App.1985) outlined the four categories of the public policy exception cases: (1) discharge of an employee because of his or her refusal to perform an illegal act; (2) discharge because an employee reported violations of law or public policy to superiors or public authorities; (3) discharge because an employee participated in acts that public policy would encourage, such as jury duty, seeking public office, asserting a right to collective bargaining, or joining a union; and (4) discharge because an employee filed a worker's compensation claim. Id. at 873-75.

The claim in the case before us involves the second public policy exception category. To prevail on a claim of wrongful discharge, the plaintiff must prove that the employer discharged the plaintiff because plaintiff "reported to superiors or to public authorities serious misconduct that constitutes a violation of the law and of ... well established and clearly mandated public policy." Loomstein v. Medicare Pharmacies, Inc., 750 S.W.2d 106, 112 (Mo.App.1988) (citing Boyle, 700 S.W.2d at 878). To meet his burden, plaintiff here must present evidence to establish an exclusive causal connection between his discharge and reporting violations to either his superiors or to public authorities. See Loomstein, 750 S.W.2d at 112-13.

Defendant claims that plaintiff's evidence does not fit within the narrow public policy exception to the at-will employment doctrine because plaintiff did not report or threaten to report his concerns to any outside agency or to the FDA. However, plaintiff's evidence, viewed in a light favorable to plaintiff, satisfies the requirement of the public policy exception that plaintiff reported violations to his superiors. Boyle, 700 S.W.2d at 878.

Defendant also contends plaintiff did not prove an exclusive causal connection between his discharge and his activities. Defendant cites Bryant's testimony adduced in plaintiff's case and defendant's evidence that other factors, such as plaintiff's poor performance, his lack of technical knowledge and his inability to supervise effectively, played a role in the decision to terminate him. However, under our standard of review as previously noted, we must view the evidence and permissible inferences therefrom most favorably to the plaintiff, and...