Sivigliano v. Harrah's

• Decision Date: 21 February 2006
• Docket Number: No. WD 65131.,WD 65131.
• Parties: Pamela L. SIVIGLIANO, Appellant, v. HARRAH'S NORTH KANSAS CITY CORPORATION, et al, Respondent.
• Court: Missouri Court of Appeals

188 S.W.3d 46

Pamela L. SIVIGLIANO, Appellant, v. HARRAH'S NORTH KANSAS CITY CORPORATION, et al, Respondent.

No. WD 65131.

Missouri Court of Appeals, Western District.

February 21, 2006.

Motion for Rehearing and/or Transfer to Supreme Court Denied March 28, 2006.

Application for Transfer Denied May 2, 2006.

William Pickett and Mark Meyer, Kansas City, for appellant.

Paul Pautler, Jr., and Julianne Popper, Kansas City, for respondent.

RONALD R. HOLLIGER, Judge.

Pamela Sivigliano appeals from the circuit court's dismissal of her petition alleging wrongful discharge by Harrah's North Kansas City Corp. ("Harrah's"). Sivigliano's sole point on appeal alleges that the circuit court incorrectly concluded that her petition fails to state a cause of action under the public policy exception to the at-will employment doctrine. Affirmed.

Standard of Review

We review de novo a trial court's grant of a motion to dismiss. Weems v. Montgomery, 126 S.W.3d 479, 484 (Mo.App. 2004).

A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition. It assumes that all of plaintiff's averments are true, and liberally grants to plaintiff all reasonable inferences therefrom. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.

Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 306 (Mo. banc 1993) (citation omitted).

Facts

Ms. Sivigliano's petition alleged the following facts: She was employed by Harrah's from September 1994 until her termination in November 2000. At all times of her employment, she was an employee at-will. On September 15, 2000, she was working as Relief Shift Manager of Finance when her fellow employee Ms. Davis (whose place in Harrah's chain of command is unstated in the petition) informed her that two of Ms. Sivigliano's subordinates had been accused of sexually harassing another employee. Davis ordered Sivigliano to tell the accused to stop their inappropriate behavior. Sivigliano protested that Harrah's company policy on handling allegations of harassment prohibited her from speaking directly with the accused. Davis told Sivigliano that if she did not do as instructed, Sivigliano would be "written up."

Sivigliano reported this conversation and her concern about following Harrah's harassment-reporting procedure to her immediate supervisor, comptroller Mr. Kolikias, who ordered her to follow Davis's instructions. The next day, Davis asked Sivigliano if she had spoken to the accused, and she said she had not, and again expressed her concern about violating company policy. Davis again ordered Sivigliano to speak to the accused. Davis reiterated that failing to follow this order would result in Sivigliano being written up for insubordination.

Sivigliano then spoke to the accused as directed, and subsequently reported to Harrah's Human Resources Department the preceding conversations and events. Sivigliano was then reprimanded and demoted and her pay was reduced because she had spoken to the accused, in violation of the procedures prescribed by Harrah's company policy. In November 2000, Sivigliano was fired for reasons she alleges are false and pretextual. Sivigliano's petition alleges that she was actually fired for whistle blowing, "and as such her termination was wrongful and in violation of the public policy of Missouri, and [her] discharge was otherwise in violation of Missouri public policy."

The circuit court granted Harrah's motion to dismiss for failure to state a claim pursuant to Rule 55.27(a)(6). This appeal followed.

Discussion

"Missouri's employment-at-will doctrine historically has permitted an employer to discharge an at-will employee, for cause or without cause, without liability for wrongful discharge, provided that the employee is not otherwise protected by a contrary statutory provision." Adolphsen v. Hallmark Cards, Inc., 907 S.W.2d 333, 335-36 (Mo.App.1995) (citing Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661, 662 (Mo. banc 1988)). Missouri appellate courts have carved—and the Missouri Supreme Court has acknowledged¹ —a narrow exception to the at-will doctrine:

An [at-will] employee has a cause of action for wrongful discharge if he or she was discharged for: (1) refusing to perform an illegal act or an act contrary to a strong mandate of public policy; (2) reporting wrongdoing or violations of law or public policy by the employer or fellow employees to superiors or third parties; (3) acting in a manner public policy would encourage ...; or (4) filing a workers' compensation claim.

Dunn v. Enterprise Rent-A-Car Co., 170 S.W.3d 1, 6 (Mo.App.2005) (internal quotation marks omitted). We must review her pleading's factual allegations in light of these to determine if she has adequately pled the applicability of one or more of these exceptions.

Sivigliano alleges on appeal that her petition satisfactorily pleads the public policy provision of each of the first three exceptions. However, she plainly does not plead an illegal act under the first exception, or a violation of law under the second exception, because the petition alleges that she was ordered to violate a provision of Harrah's company policy, not a provision of any law or regulation. She argues, however, that because the company policy was adopted pursuant to state and federal policies against sexual harassment in the workplace, her...