Reed v. Sale Memorial Hosp. and Clinic, 13376

• Citation: 698 S.W.2d 931
• Decision Date: 23 September 1985
• Docket Number: No. 13376,13376
• Parties: Joyce REED, Plaintiff-Respondent, v. SALE MEMORIAL HOSPITAL AND CLINIC, a partnership, composed of P.B. Anderson, Richard Betz, Robert F. Betz, G.W. Blankenship, J.R. Carter, W.D. Dabbs, Roy E. Kenney, H.C. Lentz and G.C. Olive, and P.B. Anderson, Richard Betz, Robert F. Betz, G.W. Blankenship, J.R. Carter, W.D. Dabbs, Roy E. Kenney, H.C. Lentz, and G.C. Olive, all individually, Defendants-Appellants.
• Court: Court of Appeal of Missouri (US)

Page 931

698 S.W.2d 931

Joyce REED, Plaintiff-Respondent, v. SALE MEMORIAL HOSPITAL AND CLINIC, a partnership, composed of P.B. Anderson, Richard Betz, Robert F. Betz, G.W Blankenship, J.R. Carter, W.D. Dabbs, Roy E. Kenney, H.C Lentz and G.C. Olive, and P.B. Anderson, Richard Betz Robert F. Betz, G.W. Blankenship, J.R. Carter, W.D. Dabbs Roy E. Kenney, H.C. Lentz, and G.C. Olive, all individually, Defendants-Appellants.

No. 13376.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 23, 1985.

Motion for Rehearing or Transfer Denied

Oct. 15, 1985.

Application to Transfer Denied

Nov. 21, 1985.

John Sims, Ruyle, Sims & Lampo, Neosho, Karl W. Blanchard, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for defendants-appellants.

L.R. Buehner, Buehner & Buehner, Joplin, Kenneth H. Reid, Turner, Reid, Duncan, Loomer & Patton, Springfield, for plaintiff-respondent.

HOGAN, Presiding Judge.

Plaintiff Joyce Reed was employed as a medical records clerk by the Sale Memorial Hospital and Clinic, a hospital operated by the individual defendants as a partnership. While she was so employed, plaintiff sustained an injury compensable under the provisions of the Workers' Compensation Law, Chapter 287, RSMo 1978. She was summarily discharged from employment September 29, 1976. Thereafter plaintiff brought this statutory action for wrongful discharge as a result of her exercise of her rights under the Workers' Compensation Law. Section 287.780, RSMo 1978. A jury awarded plaintiff $22,500 in actual damages and $245,000 in punitive damages. The defendants appeal. They have meticulously briefed and argued 17 discrete assignments of error. We shall nevertheless consider only those points essential and necessary to an orderly disposition of the appeal. See Bloomfield Reorganized School Dist. No. R-14 v. Stites, 336 S.W.2d 95, 97 (Mo.1960); Southwest Engineering Co. v. Reorganized School District R-9, 434 S.W.2d 743, 746 (Mo.App.1968). We reverse and remand.

Because trial errors are generally immaterial if plaintiff made no submissible case, Osborn v. McBride, 400 S.W.2d 185, 188 (Mo.1966); Wilkerson v. State Farm Mutual Automobile Ins. Co., 510 S.W.2d 50, 52 (Mo.App.1974), we must first consider the sufficiency of the evidence to support the judgment. In determining submissibility, we are firmly held and bound by the decision of our Supreme Court in Hansome v. Northwestern Cooperage Company, 679 S.W.2d 273 (Mo. banc 1984). Hansome was decided after this case was tried, but the court did not indicate that the decision was to be applied only prospectively. Therefore, and because the decision establishes a new substantive rule of law--the elements of a plaintiff's case in an action brought under § 287.780--Hansome must be given both retrospective and prospective application. State v. Walker, 616 S.W.2d 48, 49 (Mo. banc 1981); Dietz v. Humphreys, 507 S.W.2d 389, 392 (Mo.1974). Without fixing the burden of proof, the court held in Hansome that the action created by § 287.780 has four elements: (1) plaintiff's status as an employee of defendant before injury; (2) plaintiff's exercise of a right granted by Chapter 287; (3) the employer's discharge of or discrimination against plaintiff, and (4) an exclusive causal relationship between the plaintiff's actions and defendant's actions. Hansome, 679 S.W.2d at 275. Nevertheless in determining submissibility, this court considers the evidence in the light most favorable to the plaintiff, giving plaintiff the benefit of all inferences reasonably to be drawn from the evidence and disregarding defendants' evidence which does not support the plaintiff's case. Hansome, 679 S.W.2d at 274; Henderson v. St. Louis Housing Authority, 605 S.W.2d 800, 803 (Mo.App.1979).

So taken and considered, plaintiff's testimony establishes that she was employed by the defendant hospital on March 12 or 13, 1973. Basically, she did clerical work. She sustained a compensable injury on January 24, 1975, when she fell over a waste basket. Plaintiff sustained a head injury and also sustained some injury to her right knee and her left arm. She was given immediate treatment by Dr. Richard Betz, one of the partners who operated the hospital. The physicians by whom she was employed referred plaintiff to a Joplin physician, but later Dr. H.C. Lentz, another partner, treated her for the injuries she had sustained. Plaintiff continued consulting Dr. Lentz up to a month or so before she was discharged.

Immediately after the plaintiff was injured, she was off work four to five weeks. Thereafter, except for a brief period in January 1976, plaintiff continued to work at the hospital. Plaintiff testified that she worked continuously at the hospital up to the time she was fired. She received no reports from her immediate supervisor or the physicians that other employees had complained about her or her work, and nobody warned her about the quality of her performance on the job. She "[got] every raise that was available during [her] entire time ... at the hospital." The fact that plaintiff received pay raises when they were granted to other employees was confirmed by Mrs. Naydene Belka, Assistant Administrator and Superintendent of the hospital.

In early May 1976, plaintiff met with one Dean Johnston, who represented the employer's insurer. Mr. Johnston offered plaintiff $2,500 to settle her compensation claim. Plaintiff was "still hurting" so she decided to consult Dr. G.W. Blankenship. Dr. Blankenship, 70 years of age, "supervised the operation of the hospital and clinic." He stated he was the "chief executive officer, I guess, would be the proper title." He also testified Mrs. Naydene Belka "had charge of the administrative chores" from day to day, but Dr. Blankenship had been "in charge" for more than 20 years before he gave up that job in 1983. The doctor was also president of the corporation which owned the hospital. Medical treatment and some compensation had been routinely furnished by the employer upon a report of injury. No formal claim for compensation had been filed. So, the plaintiff, "still hurting and still injured," consulted Dr. Blankenship about Mr. Johnston's settlement offer and made a "settlement proposition" of her own. Dr. Blankenship's advice was if plaintiff didn't quit complaining, people were going to think she was neurotic. Plaintiff also spoke to Dr. P.B. Anderson about her claim, but he offered no advice.

The insurer was as dissatisfied as the plaintiff with the lack of progress being made toward a final discharge of defendants' liability, and as a consequence requested an informal conference with the Referee. The conference requested was a pre-hearing conference. Plaintiff decided to consult an attorney. Her attorney advised her she was not required to attend the conference, and also advised her to file a formal claim for compensation. As the date for the conference approached, Mrs. Rhames, plaintiff's immediate supervisor, told plaintiff the conference was scheduled for 9:30 a.m. on September 28, 1976, and plaintiff need not report for work on that day, but could report for the conference and then come to work. Plaintiff called her attorney again to see if she was required to attend the conference. She was again advised she was not. Plaintiff went to work early on the morning of September 28 and told Mrs. Belka she was not going to attend the conference, that she had filed a claim for compensation and had been advised that she need not go. Plaintiff worked all day on September 29. September 30 was plaintiff's day off. On September 30, plaintiff received a telephone call from Mrs. Belka, which she repeated as follows:

"She said that Dr. Blankenship had told her to inform me that I had been terminated as of five o'clock the evening before and Dr. Blankenship said I should have attended the meeting, and that the medical staff had met and now they had no choice." (Emphasis added.)

Such, in substance, is the evidence upon which the plaintiff was obliged to rely. Evidentiary detail will be noted when necessary.

I

(A)

The first aspect of submissibility with which we must concern ourselves is whether the evidence is sufficient to warrant the finding of "causality" which was held to be essential in Hansome, 679 S.W.2d at 275 and n. 2. Proof that an employee was discharged solely in consequence of his exercise of some "right" under the Workers' Compensation Law is necessarily indirectly made because ordinarily, the employer is not likely to announce retaliation as his motive. Of course, as we see in this case, the plaintiff may show an express declaration of an actual retaliatory motive for the discharge. Such evidence is very persuasive. L. Larson & P. Borowsky, Unjust Dismissal § 6.05. Other factors to be considered are the proximity in time between the exercise of the right and the time of the firing, coupled with evidence of satisfactory work performance and supervisory evaluations. Axel v. Duffy-Mott Co., Inc., 47 N.Y.2d 1, 416 N.Y.S.2d 554, 389 N.E.2d 1075 (1979); L. Larson & P. Borowsky, op. cit. § 6.05 ). These general principles are reflected in this jurisdiction. In some cases there has been an express declaration of a retaliatory motive; in Mitchell v. St. Louis County, 575 S.W.2d 813 (Mo.App.1978), causality was in part negatived by the fact that the plaintiff was discharged many months after she filed a claim for compensation; in Davis v. Richmond Special Road District, 649 S.W.2d 252 (Mo.App.1983), there was a legitimate non-pretextual reason for the plaintiff's discharge--physical inability to do the job--so, satisfactory performance on the job could not be shown as an element of the plaintiff's case.

In the case at hand, undoubtedly the most persuasive evidence was defendants' declaration of retaliatory purpose. Of course a jury was not bound to accept plaintiff's statement but it was at liberty to do so. Further, in the view of this court, there is other...