Williams v. Thomas

• Decision Date: 20 January 1998
• Docket Number: No. 21515,21515
• Citation: 961 S.W.2d 869
• Parties: Janice WILLIAMS, Plaintiff-Appellant, v. K. George THOMAS, M.D., d/b/a Thomas Medical Clinic, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 869

961 S.W.2d 869

Janice WILLIAMS, Plaintiff-Appellant, v. K. George THOMAS, M.D., d/b/a Thomas Medical Clinic Defendant-Respondent.

No. 21515.

Missouri Court of Appeals,

Southern District,

Division Two.

Jan. 20, 1998.

Craig R. Heidemann, Douglas, Lynch, Haun & Kirksey, P.C., Bolivar, for Plaintiff-Appellant.

Frank M. Evans III, Daniel R. Wichmer, Miller & Sanford, P.C., Springfield, for Defendant-Respondent.

PARRISH, Judge.

Janice Williams (plaintiff) appeals a summary judgment in favor of K. George Thomas, M.D. (defendant). Plaintiff was an employee of defendant. She was discharged. Plaintiff sought recovery contending her discharge was wrongful; that it was in retaliation for reports she made of alleged wrongful conduct by defendant. She claims her employment, under these facts, was protected by the public policy exception to the employment-at-will doctrine that would otherwise have permitted defendant to discharge her at any time. ¹ This court affirms.

From July 1994 through September 15, 1995, defendant employed plaintiff as a lab technician and medical assistant. During that time, Sue Thompson, Maria Cutter and Kimberly Whittle were the only other employees of defendant. Defendant discharged plaintiff from her employment September 15, 1995.

Plaintiff alleges that she was wrongfully discharged. In her petition she states she observed certain acts that she believed were Medicare and Medicaid fraud. The petition alleges that plaintiff reported the matters to federal agencies; ² that as a result, defendant terminated her employment.

Following discovery, defendant filed the motion for summary judgment that produced this appeal. Defendant's motion for summary judgment included allegations of material facts, set forth with particularity in separately numbered paragraphs as required by Rule 74.04(c), about which he contended there were no genuine issues. The motion included specific references to pleadings, discovery and affidavits on which it relied. It met the requirements of Rule 74.04(c)(1). ³

The allegations in defendant's motion for summary judgment included:

...

8. [Defendant] did not have knowledge of plaintiff's intent to report him nor did he have knowledge of any report being made by plaintiff prior to plaintiff's discharge. (Exhibit C [defendant's affidavit], p 5, 6).

9. The only other employees of [defendant] at the time plaintiff was employed by [defendant] were Sue Thompson, Maria Cutter and Kimberly Whittle. (Exhibit C, p 4).

...

12. Plaintiff never told Sue Thompson about her decision to call authorities and report [defendant's] acts. (Exhibit B [deposition of plaintiff], p. 80, lines 17-18).

13. Sue Thompson first heard of any allegation that plaintiff had reported or would report [defendant] for Medicaid or Medicare fraud when [defendant] received the lawsuit in the mail. (Deposition of Sue Thompson attached [to motion for summary judgment] and incorporated ... as Exhibit "D", p. 25, lines 1-4).

...

15. Sue Thompson does not recall plaintiff discussing, in her presence, reporting [defendant] for Medicare or Medicaid fraud. (Exhibit D, p. 26, line 25; p. 27, lines 1-3).

16. Sue Thompson does not recall ever being present when the subject of turning [defendant] in for Medicaid or Medicare fraud was discussed. (Exhibit D. p. 27, lines 19-22).

17. Sue Thompson never told plaintiff that she had talked to [defendant] about plaintiff's comments. (Exhibit B, p. 80, lines 3-5).

18. Maria Cutter, one of [defendant's] employees, never told [defendant] that plaintiff intended to make any report of any sort. (Deposition of Maria Cutter attached [to motion for summary judgment] and incorporated ... as Exhibit "E", p.30, lines 23-25; p. 31, line 1).

19. Maria Cutter has no knowledge of anyone else having told [defendant] that plaintiff intended to make any report of any sort. (Exhibit E, p. 31, lines 2-5).

20. Maria Cutter never told [defendant] that a report had been made by plaintiff. (Exhibit E, p. 31, lines 6-8).

21. Maria Cutter has no knowledge of anyone, at anytime, having told [defendant] that a report had been made by plaintiff. (Exhibit E, p. 31, lines 9-12).

22. Kimberly Whittle, another employee of [defendant], did not tell [defendant] that plaintiff was going to call the Board of Healing Arts. (Deposition of Kimberly Whittle attached [to motion for summary judgment] and incorporated ... as Exhibit "F", p. 35, lines 17-20; p. 36, lines 10-12).

23. Kimberly Whittle did not tell [defendant] that any phone call, reporting [defendant], was actually made. (Exhibit F, p. 36, lines 13-15).

24. Kimberly Whittle never conveyed any of the information regarding the reporting of [defendant] to Sue Thompson. (Exhibit F, p. 36, lines 16-18).

25. Kimberly Whittle has no knowledge of anyone having told [defendant] that plaintiff intended to make any sort of report to anyone (Exhibit F, p. 36, lines 19-22), or that plaintiff had indeed made such a report. (Exhibit F, p. 36, lines 23-25; p. 37, line 1).

...

Rule 74.04(c)(2) establishes the procedure to be followed by an adverse party after a motion for summary judgment is filed. It states:

Within thirty days after a motion for summary judgment is served, the adverse party shall serve a response on all parties, and, if the adverse party is relying on affidavits, the response shall have attached thereto affidavits not previously filed. The response shall admit or deny each of movant's factual statements in numbered paragraphs that correspond to movant's numbered paragraphs, shall state the reason for each denial, shall set out each additional material fact that remains in dispute, and shall support each factual statement asserted in the response with specific references to where each such fact appears in the pleadings, discovery or affidavits. ... [Emphasis added.]

Plaintiff timely filed a response to defendant's motion for summary judgment. The response, however, failed to address the factual statements set out in the numbered paragraphs of defendant's motion. Failure to respond to the factual allegations in defendant's motion for summary judgment is an admission of those facts. Koman v. Soffer, 948 S.W.2d 706, 708 (Mo.App.1997). This is the posture in which this court reviews the issues plaintiff presents on appeal.

Plaintiff's first allegation of trial court error asserts that summary judgment should not have been granted because "there exist material questions of fact as to whether [defendant] knew that [plaintiff] had reported his acts of Medicare/Medicaid fraud to public authorities where, as a matter of law, [defendant's] mere denial of knowing of [plaintiff's] report is insufficient to support summary judgment for [defendant] because a Plaintiff in a 'whistleblower' wrongful discharge case is permitted to prove her case-in-chief via circumstantial evidence."

Point I does not comply with Rule 84.04(d). "A point relied on must meet three requirements; (1) it must state the trial court's action or ruling about which the appellant complains; (2) it must state why the ruling was erroneous; (3) it must state what was before the trial court that supports the ruling appellant contends should have been made." Thomas v. Smithson, 886 S.W.2d 951, 952 (Mo.App.1994). Point I does not state what was before the trial court that supported the ruling plaintiff contends should have been made. It does not state "wherein" the ruling was erroneous. See Rule 84.04(d).

Points on appeal that fail to comply with Rule 84.04(d) present nothing for review. In Interest of J.L.C., 844 S.W.2d 123, 126 (Mo.App.1992). Nevertheless, this court may look to the argument portions of the briefs in order to determine "whether there has been plain error affecting substantial rights which, though not properly preserved, may have resulted in a manifest injustice or a miscarriage of justice." Hoffman v. Koehler, 757 S.W.2d 289, 292 (Mo.App.1988); Rule 84.13(c).

In Interest of S.J.G., 871 S.W.2d 638, 641 (Mo.App.1994).

Plaintiff's brief makes the argument:

[Plaintiff's] retaliatory discharge cause of action against [defendant] necessarily rests upon circumstantial evidence. [Defendant] denies that he fired [plaintiff] because she reported him to the Missouri Board of Healing Arts for Medicare/Medicaid fraud. No one denies that [plaintiff] reported [defendant] to the Missouri Board of Healing arts [sic] for Medicare/Medicaid fraud during the term of her employment. The testimony of Ms. Cutter and Ms. Whittle substantiate this fact. They were present when [plaintiff] called the Board from [defendant's] own office. Rather, [defendant] merely contends that before he fired her, he had no idea that [plaintiff] called the Board to report his illegal activities. [ ⁴] Furthermore, [defendant] contends that his office manager, Sue Thompson, never told him of [plaintiff's] intention to turn him in for Medicare/Medicaid fraud despite the fact that [plaintiff] made her intentions known to Ms. Thompson. [References to legal file omitted.]

Plaintiff's cause of action is founded on the public policy exception to Missouri's employment-at-will doctrine.

The employment-at-will doctrine provides that an employer can discharge an at-will employee at any time for cause or without cause. Boyle v. Vista Eyewear, Inc., 700 S.W.2d at 870-71 [ (Mo.App.1985) ]. The public policy exception to the at-will employment doctrine "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. This narrow exception protects employees who do not have bargaining power to command employment contracts but are "entitled to a modicum of judicial protection when their conduct as good citizens is punished by their employers." Clark v. Beverly Enterprises-Missouri, Inc., 872 S.W.2d 522, 525 (Mo.App.1994) (quoting Sheets v. Teddy's Frosted Foods, Inc., 179...