Richest v. City of Kan. City

Decision Date15 February 2022
Docket NumberWD 84464
Citation643 S.W.3d 610
Parties B. RICHEST, Appellant, v. CITY OF KANSAS CITY, Missouri, Respondent.
CourtMissouri Court of Appeals

Charles Kevin Baldwin, Liberty, MO, and Mark Buchanan, Independence, MO, for appellant.

Timothy Robert Ertz, Kansas City, MO, for respondent.

Before Special Division: Cynthia L. Martin, Chief Judge, Presiding, Gary D. Witt, Judge and W. Brent Powell, Special Judge

Gary D. Witt, Judge

B. Richest ("Richest") appeals from the Circuit Court of Jackson County's ("trial court") grant of the motion to dismiss for failure to state a claim upon which relief can be granted filed by City of Kansas City, Missouri ("City"). Richest filed a petition alleging whistleblower violations pursuant to section 105.055 against City.1 City moved to dismiss the claim, solely arguing the statute of limitations barred Richest's civil claim. In a single point on appeal, Richest argues the trial court erred in sustaining City's motion to dismiss because the petition alleged a violation that occurred within one year of the filing of the cause of action. We reverse and remand for further proceedings.

Factual Background2

Richest worked for City as a Public Works Inspector for twelve years. In February 2019, Richest had a conversation with his supervisor about a time sheet discrepancy from his previous shift. During the previous shift, Richest worked overtime due to a snow event. The supervisor instructed Richest to retroactively change the hours on his time sheet from his overtime shift to reflect the time he had stopped working during his lunch break. Richest explained to his supervisor it was common practice for employees to record ten hours of overtime regardless of whether a lunch break was taken. The supervisor told Richest if he did not change the time sheet she would "do it for him." The operative collective bargaining agreement ("CBA") required City management to inform the union in writing regarding changes to any established work rules.

Later that day, Richest was told by management to go home for the day due to a pending investigation regarding the conversation he had with the supervisor. The next day, Richest met with management and his union representative in the morning and was permitted to return to work. However, Richest was later informed he had been suspended for two weeks without pay. The union representative requested Richest's paperwork from management. The following week, management informed Richest he was no longer suspended, he could return to work, and he would receive full backpay for the days he was suspended. In April 2019, Richest was informed he was being terminated from his position because he was accused of threatening his supervisor. Richest believed he was actually terminated for "pointing out to [the supervisor] that she was violating company policy" by changing the hours on the time sheet without informing the union in writing.3

Richest was terminated from his position on April 5, 2019. Richest appealed his termination through the internal procedures provided by City, and a hearing was held before the City's Human Resources Board ("Board") on July 16, 2019. The Board upheld Richest's termination on November 5, 2019. Richest then filed a civil suit against City, pursuant to section 105.055.7, on November 2, 2020. City filed a motion to dismiss for failure to state a claim upon which relief can be granted alleging solely that Richest's civil action was filed outside the time permitted by the applicable statute of limitations. The trial court granted City's motion finding Richest's petition was filed outside the one-year statute of limitations for filing a civil suit from his date of termination. This appeal follows.

Standard of Review

"We review the trial court's decision to grant a motion to dismiss de novo. " Hartman , 602 S.W.3d at 835. When a statute of limitations defense is raised, we must give the pleading its broadest intendment, treat all facts as true, and construe the allegations favorably to the plaintiff. Sheehan v. Sheehan , 901 S.W.2d 57, 59 (Mo. banc. 1995). "Where a statute of limitations is asserted in support of a motion to dismiss, the petition should not be dismissed unless the petition clearly establishes on its face and without exception that it is time barred." Patel v. Pate , 128 S.W.3d 873, 877 (Mo. App. W.D. 2004). "A motion to dismiss properly raises the defense of the statute of limitations when it is clear from the face of the petition that the action is barred by time limitations." Id. "Conversely, where the petition does not show on its face that it is barred by limitations, a motion to dismiss should not be sustained." Id.

Discussion

Richest alleges violations of Missouri's whistleblower statute for public employees, section 105.055. The statute protects public employees by prohibiting any supervisor or appointing authority of any public employer from taking "any disciplinary action whatsoever against a public employee for the disclosure of any alleged prohibited activity under investigation or any related activity, or for the disclosure of information which the employee reasonably believes evidences" a violation of any law, rule, or regulation, or other wrongful activity, such as mismanagement or gross waste of funds. Section 105.055.3(1)(a)-(b). "Disciplinary action" is defined in the statute as "any dismissal, demotion, transfer, reassignment, suspension, reprimand, warning of possible dismissal or withholding of work, regardless of whether the withholding of work has affected or will affect the employee's compensation." Section 105.055.1(1). Simply put, a public employer cannot retaliate against a public employee for reporting certain types of wrongdoing. Richest alleges the City violated the statute because it took disciplinary action against him in the form of a "dismissal" after he informed his supervisor she had violated the CBA work rules.

Section 105.055 provides non-exclusive avenues for certain public employees to remedy an employer's violation of the statute.4 First, "any state employee may file an administrative appeal whenever the employee alleges that disciplinary action was taken against the employee in violation of this section." Section 105.055.5 (emphasis added). This appeal "shall be filed with the administrative hearing commission[,]" and the "appeal shall be filed within one year of the alleged disciplinary action." Id. The commission may modify or reverse the agency's action and may recommend discipline for the violating employer. Id. And, the decision of the commission can then itself be appealed as permitted by law. Id. Second, "a person who alleges a violation of this section may bring a civil action against the public employer for damages within one year after the occurrence of the alleged violation." Section 105.055.7.

Richest relies on the second avenue for securing relief in his petition and argues the trial court erred in granting City's motion to dismiss because he filed suit "within one year after the occurrence of the violation." Because Richest's suit was filed November 2, 2020, the "occurrence of the violation" must have taken place after November 2, 2019. The sole event alleged in the petition that occurred after November 2, 2019, was the Board's decision from his appeal to uphold Richest's termination. Accordingly, to satisfy the statute of limitations, the Board's decision to uphold Richest's termination must qualify as "disciplinary action" as defined in section 105.055.1(1). Given the procedural posture of this case, it must be clear from the face of the petition that the Board's decision to uphold Richest's termination did not constitute a "disciplinary action" as so defined.

As an initial matter, City argues Richest's petition does not state a claim because Richest never alleged the Board's decision was a disciplinary action under the statute. Missouri is a "fact-pleading state." R.M.A. by Appleberry v. Blue Springs R-IV School Dist. , 568 S.W.3d 420, 425 (Mo. banc 2019). "But the facts that must be pleaded are the ultimate facts, not evidentiary facts." Id. "Ultimate facts are those the jury must find to return a verdict for the plaintiff." Id. Exercising a faithful application of the standard of review, which "assumes that the allegations set forth are true and liberally grants the plaintiff reasonable inferences based on those allegations," see id. , Richest's petition is factually sufficient. Richest alleged: he was terminated from his position as a public works inspector on April 5, 2019; a hearing for the appeal of his termination was not scheduled until July 16, 2019; the decision to uphold his termination was issued on November 5, 2019; and he was subjected to disciplinary action by Defendant City, which includes "any dismissal[.]" Therefore, we find Richest sufficiently alleged the Board's decision constituted a disciplinary action. We thus turn to whether it can be determined from the face of the petition whether the Board's upholding of Richest's termination constitutes "disciplinary action" for purposes of section 105.055.

When interpreting section 105.055, our primary rule is "to give effect to legislative intent as reflected in the plain language of the statute at issue." Parktown Imports, Inc. v. Audi of Am., Inc. , 278 S.W.3d 670, 672 (Mo. banc 2009). "Absent a statutory definition, words used in statutes are given their plain and ordinary meaning with help, as needed, from the dictionary." Hudson v. O'Brien , 449 S.W.3d 87, 92 (Mo. App. W.D. 2014). "We will look beyond the plain meaning of the statute only when the language is ambiguous or would lead to an absurd or illogical result." Truman Med. Ctr., Inc. v. Am. Standard Ins. Co. , 508 S.W.3d 122, 124 (Mo. App. W.D. 2017).

A statute is ambiguous when its plain language does not
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