Petersimes v. Crane Co., 60908

• Decision Date: 30 June 1992
• Docket Number: No. 60908,60908
• Citation: 835 S.W.2d 514
• Parties: 127 Lab.Cas. P 57,594, 7 IER Cases 1014 Ronald J. PETERSIMES, Plaintiff-Appellant, v. CRANE COMPANY, d/b/a Crane National Vendors, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 514

835 S.W.2d 514

127 Lab.Cas. P 57,594, 7 IER Cases 1014

Ronald J. PETERSIMES, Plaintiff-Appellant, v. CRANE COMPANY, d/b/a Crane National Vendors, Defendant-Respondent.

No. 60908.

Missouri Court of Appeals,

Eastern District,

Division Three.

June 30, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

July 30, 1992.

Application to Transfer Denied Sept. 22, 1992.

Mary Anne Sedey, William E. Moench, Kenneth H. Gibert, St. Louis, for plaintiff-appellant.

McMahon, Berger, Hanna, Linihan, Cody & McCarthy, D. Michael Linihan, John B. Renick, St. Louis, Mo., for defendant-respondent.

PUDLOWSKI, Presiding Judge.

Appellant, Ronald J. Petersimes, brought an action for wrongful discharge based upon the public policy ¹ exception to the employment at will doctrine. Respondent, Crane Company, moved to dismiss on the basis that Missouri does not recognize such an exception. The trial court dismissed appellant's petition. Thus, the narrow issue before this court is whether Missouri recognizes a public policy exception to the employment at will doctrine where an employee is discharged because he refused to commit an unlawful act or acts in violation of a clear mandate of public policy. We reverse and remand.

This case is before us on a motion to dismiss for failure to state a claim for relief. Therefore, we accept as true the facts properly pleaded, giving the averments a liberal construction, and making those reasonable inferences fairly deducible from the facts stated. Concerned Parents v. Caruthersville School District, 548 S.W.2d 554, 558 (Mo. banc 1977).

Appellant was hired by respondent as its Quality Assurance Manager in May 1989. At the time respondent was engaged in the manufacture of 1,000 postal commodity vending machines pursuant to a contract with the U.S. Postal Service. This contract required respondent to meet certain safety and quality standards in the manufacture of the vending machines and certify in writing at the time of delivery of the machines that these standards had been met. Appellant's job was to assure compliance with these standards and certify to the government that they had been met.

During appellant's tenure at this job he observed and reported repeated instances of non-compliance with the specific quality and safety provisions set forth in the contract. Eventually, on October 25, 1989, appellant notified his supervisor that he would not certify a specific shipment scheduled for October 27, 1989, because of these violations. Appellant was told to destroy the memo and his job security was threatened. Appellant remained firm in his conviction and was instructed to stay home on October 27. Appellant did not go to work that day and his supervisor certified the shipment.

As a result of appellant's refusal to certify the shipment he was transferred to another of respondent's plants. At the new plant appellant continued to attempt to assure compliance with requirements set forth in various other vending contracts of respondent. Finally, on June 15, 1990, appellant was discharged.

Appellant filed this wrongful discharge action claiming he was discharged as a direct result of refusing to violate the statutes and regulations of the United States. In particular appellant points to 18 U.S.C. § 1001 which forbids the making of any false or fraudulent statements with regard to any matter within the jurisdiction of any department or agency of the United States and the making or use of any such false or fraudulent statements is a crime. Appellant's petition was dismissed by the trial court and appellant appeals that judgment.

Appellant's sole point on appeal is that the trial court erred in dismissing his petition which stated a cause of action for wrongful discharge. Appellant's contention is based on a public policy exception to Missouri's employment at will doctrine. Respondent filed a motion to dismiss arguing there was no such exception. The trial court agreed. Thus, the question before this court is whether a person under the facts alleged can file a wrongful discharge suit in Missouri founded upon a public policy exception to the employment at will doctrine.

Employees who do not have a contract for a definite period of time are considered employees at will and can be discharged for cause or without cause and the employer will not be liable for wrongful discharge unless the employee falls within the protective reach of a contrary statutory provision. Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661, 662 (Mo. banc 1988). However, this at will doctrine has been judicially expanded in some instances.

Our research reveals that the rationalization for the expansion of the at will rule is expressed in Sides v. Duke University, 74 N.C.App. 331, 328 S.E.2d 818, 826 (1985), "[w]hile there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. A different interpretation would encourage and sanction lawlessness, which law by its very nature is designed to discourage and prevent."

The expansion in Missouri began in Smith v. Arthur C. Baue Funeral Home, 370 S.W.2d 249 (Mo.1963). In Baue the Missouri Supreme Court found that an employee at will had a cause of action for wrongful discharge where the employer fired the employee for exercising his constitutional right to choose collective bargaining representatives to bargain for him. Id. at 254. The court ruled that the constitutional provision giving employees this right modified the employer's rights as to discharging an employee at will. Id.

In Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859 (Mo.App.1985) the Western District applied the public policy exception to the employee at will doctrine. This 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. Id. at 871. The public policy alleged to be violated in Boyle was the Federal Food and Drug Administration's regulation found in 21 C.F.R. § 801.410 which proscribed a process of manufacturing eyeglasses. Boyle, the plaintiff, was fired when she warned the defendants that she would notify the FDA that they were in violation of 21 C.F.R. § 801.410 if they did not comply with the regulation....