Pitcher v. Centene Corp.
| Decision Date | 03 March 2020 |
| Docket Number | WD 82564 |
| Citation | 602 S.W.3d 216 |
| Parties | Christine PITCHER, Respondent, v. CENTENE CORPORATION, et al., Appellants. |
| Court | Missouri Court of Appeals |
Aiman A. Dvorak, Kansas City, MO, Counsel for Respondent.
Robert T. Adams, Kansas City, MO, Counsel for Appellants.
Before Division One: Thomas N. Chapman, Presiding Judge, Mark D. Pfeiffer, Judge, Anthony Rex Gabbert, Judge
Centene Corporation ("Centene") and AcariaHealth Pharmacy, Inc. ("Acaria") ("Appellants" collectively) appeal the circuit court's judgment entered on a jury verdict finding in favor of Christine Pitcher on her common-law retaliatory discharge claim against Appellants. Appellants assert eight points on appeal, contending that the circuit court, 1) erred in overruling Acaria's motion to dismiss, arguing the trial court had no jurisdiction over Acaria; 2) erred in overruling Centene's motion for judgment notwithstanding the verdict, arguing Centene was not Pitcher's employer; 3) erred in overruling Appellants’ motion for judgment notwithstanding the verdict, arguing Pitcher failed to make a submissible claim of retaliatory discharge; 4) erred in admitting evidence of a separation agreement offered Pitcher; 5) erred in excluding evidence of an ADT report; 6) erred in awarding front pay, arguing Pitcher did not plead a request for front pay; 7) erred in awarding front pay, arguing front pay was inappropriate under the circumstances, and; 8) erred in awarding front pay to retirement age. We affirm.
Pitcher, a licensed pharmacist and Missouri resident, was hired in May 2014 by Acaria as the director of a pharmacy located in Lenexa, Kansas (also called "PC20"). Acaria is a corporation incorporated in California with corporate headquarters in Orlando, Florida. Centene is Acaria's parent company. Centene is a Delaware corporation with its principal place of business in St. Louis, Missouri.
In July 2016, Pitcher raised concerns about the legality of a transaction involving a Kansas Medicaid recipient. A Kansas Medicaid beneficiary who had an HIV infection and was immunocompromised required refill of an anti-parasitic medication called Daraprim
. The cost of a one-month supply of Daraprim is $54,000. Pitcher sent an email to Acaria's Houston, Texas pharmacy (also called "PC11") requesting a transfer of Daraprim to the Lenexa Pharmacy. In response, she received an email from Adnan Raza, an intern specialist, stating:
On July 22, 2016, Alexis Baez, an account executive with Acaria, sent an email to Maurice Bundage, the inventory manager in Houston, with a copy to a number of other coworkers, reading: "...
Jonalan Smith, Vice-President of Sunflower's Pharmacy Division and liaison with the Kansas Medical Assistance Program (KMAP), emailed to Baez and others, including Pitcher: Later that day, Jason Ng wrote to Pitcher's supervisor, Steve Cobb:
A "virtual transfer" occurs when a pharmacy provides a service at one location, and bills for that service as if it was provided at a different location. Based on the above email exchange, Pitcher became concerned that the virtual transfer involving shipping Daraprim
from the Houston pharmacy to the patient, but billing for it as if it was shipped from Kansas, was prohibited by Kansas regulations on Medicaid reimbursements as fraudulent and could result in her losing her license.
That same day, Cobb emailed to approve the virtual transfer. In response, Pitcher emailed Cobb and others:
I apologize for the inconvenience that this may cause but because Sunflower stated that this could not be shipped from another location, I ethically bond [sic] and unable to complete this transfer. Please complete this transfer by those who did receive the authorization from Sunflower to perform the virtual transfer. The correspondence that I am included on did not authorize this from Sunflower. If there is authorization that I missed, please forward this and I am more than happy to complete the transfer.
On July 26, 2016, Bundage emailed: That same day, Pitcher forwarded the email string related to Daraprim
to John Vandervoot, Centene's Compliance Officer, with this accompanying explanation, testifying at trial that she sent the email because she was feeling harassed for doing the right thing:
Pitcher received no response from Vandervoot.
That same day, Pitcher emailed Baez, Cobb, and others:
... Unfortunately, the VP of Sunflower stated that all shipments should come out of Lenexa. Until Compliance/legal weighs in on this, we are unable to complete this transfer since it is not in compliance with Kansas Law. Additionally, if Jonalan would authorize this exception, then there is no problem.
After Pitcher raised concerns about the legality of the virtual transfer of Daraprim
, Appellants engaged in a pattern of conduct Pitcher believed was retaliatory for Pitcher having raised concerns. Although Cobb had reviewed Pitcher's performance on July 25, 2016, indicating Pitcher's performance exceeded expectations, on August 18, 2016, Cobb issued a "Last Chance Agreement" to Pitcher stating that her conduct was unprofessional and unacceptable. Prior to this agreement, Pitcher had received no verbal or written discipline or counseling.
On November 29, 2016, Mr. Jackson emailed Richard Giles, with a copy to Cobb and Kenyata Virgil, "... On December 1, 2016, Cobb and Virgil called Pitcher at her home in Missouri to terminate Pitcher's employment. The claimed reason for Pitcher's termination was that she had left the pharmacy unattended on November 18, 2016; Pitcher testified that she never left the pharmacy unattended and never admitted to leaving the pharmacy unattended. Contemporaneous with Pitcher's termination, Appellants offered Pitcher a Separation Agreement.
On May 3, 2017, Pitcher filed a common law retaliatory discharge claim against Appellants in Jackson County, Missouri. The claim was tried to a jury on October 1-4, 2018, in a bifurcated trial. On October 4, 2018, the jury returned a verdict in Pitcher's favor, awarding her $80,012 in compensatory and $750,000 in punitive damages against each appellant. On November 2, 2018 the court held an evidentiary hearing on whether Pitcher was entitled to the equitable relief of front pay. On November 27, 2018, the court entered its judgment on the jury's verdict and also awarded $525, 449.60 (with interest accruing at 7.20%) to Pitcher "for an Award of Front Pay."2 Appellants filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial, and a motion for remittitur or to amend the judgment. The trial court denied the motions on February 11, 2019. This appeal follows.
Our standard of review is set forth in Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976). Schollmeyer v. Schollmeyer , 393 S.W.3d 120, 122 (Mo. App. 2013). We will affirm the circuit court's judgment unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 122-123.
In Appellants’ first point on appeal, Appellants contend the circuit court erred in overruling Acaria's motion to dismiss, arguing the trial court does not have personal jurisdiction over Acaria because Acaria did not commit a tort in Missouri and Acaria does not have sufficient minimum contacts with Missouri to establish specific personal jurisdiction. Acaria argues that the fact that Acaria contacted Pitcher at her Missouri residence to advise her she was fired was insufficient to establish personal jurisdiction under Missouri's long-arm statute.
"[W]hen the issue is whether Missouri courts have personal jurisdiction over a defendant, a reviewing court defers to the fact-finding court with regard to any facts that are essential to that determination[.]" Pearson v. Koster , 367 S.W.3d 36, 44 (Mo. banc 2012). "[H]owever, the ultimate question of whether the exercise of jurisdiction meets the standards of the Missouri long-arm statute and the constitution remains a legal question, which is reviewed independently on appeal." Id. "A plaintiff has the burden to establish that a defendant's contacts with the forum state were sufficient." Andra v. Left Gate Property Holding, Inc. , 453 S.W.3d 216, 224 (Mo. banc 2015) (internal quotation marks and...
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