Franklin v. Pinnacle Entertainment, Inc.

Filing 149

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that defendant Pinnacle Entertainment, Inc.s motion for summary judgment is GRANTED. [Doc. 135]An appropriate judgment will accompany this Memorandum and Order. re: 135 MOTION for Summary Judgment filed by Defendant Pinnacle Entertainment, Inc. Signed by District Judge Charles A. Shaw on 2/25/14. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DIANE FRANKLIN, et al.,
Plaintiffs,
v.
PINNACLE ENTERTAINMENT, INC.,
Defendant.

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No. 4:12-CV-307 CAS

MEMORANDUM AND ORDER
This matter is before the Court on defendant Pinnacle Entertainment, Inc.’s (“defendant”)
Motion for Summary Judgment on the remaining claims in this action, Counts III and VI of
plaintiffs’ Second Amended Complaint. Plaintiffs oppose the motion and it is fully briefed. For the
following reasons, the motion for summary judgment will be granted.
I. Background
This action was filed in the Circuit Court of the City of St. Louis, State of Missouri, on
November 18, 2011, by sixty-seven plaintiffs asserting state law claims for breach of contract,
employment discrimination in violation of the Missouri Human Rights Act, Mo. Rev. Stat.
§§ 213.010, et seq. (2000), and negligent and intentional infliction of emotional distress. The case
arises out of the plaintiffs’ layoff from employment at defendant’s now-closed President Casino in
St. Louis. Defendant removed the action to this Court based on diversity of citizenship pursuant to
28 U.S.C. §§ 1332 and 1441.
Plaintiffs were granted leave to file a First Amended Petition which added several parties to
the action and asserted additional claims for breach of contract and fraudulent and negligent
misrepresentation. Defendant moved to dismiss the First Amended Petition for failure to state a

claim upon which relief may be granted. By Memorandum and Order of August 9, 2012 (Doc. 70),
the Court granted the motion to dismiss plaintiffs’ breach of contract, fraudulent misrepresentation,
and negligent and intentional infliction of emotional distress claims. The Court refused to dismiss
plaintiffs’ claims for negligent misrepresentation in Counts III and VI, and the age discrimination
claims of fifteen plaintiffs under the Missouri Human Rights Act (“MHRA”) in Count VII.
By Memorandum and Order of December 28, 2012 (Doc. 79), the Court granted defendant’s
motion for sanctions under Rule 11, Fed. R. Civ. P., and struck plaintiffs’ First Amended Petition
from the record for filing error because in it were joined two plaintiffs who lacked standing and it
misnamed approximately fourteen other plaintiffs. The Court ordered plaintiffs to file a Second
Amended Complaint in order to correct the errors detailed in the Order of December 28, 2012.
Plaintiffs filed their Second Amended Complaint on January 4, 2013. This is the current
Complaint in the case, and includes only two counts: Count III by all plaintiffs alleging negligent
misrepresentation in connection with promises to transfer and rehire them at a different gaming
facility owned by defendant if they continued to work at the President Casino until it closed; and
Count VI by fifteen plaintiffs alleging negligent misrepresentation in connection with promises of
severance packages, sick pay and bonuses if they continued to work at the President Casino until
it closed.1
On July 10, 2013, the Court granted plaintiffs’ motion to voluntarily dismiss several
plaintiffs from the action without prejudice, and the claims of plaintiffs Dierder Arnold, Jamie
Bailey, Jose Castorena, Paula Cranmer, Hazel Doss, Michael Holl, Mark Hughes, Scott Johnson,

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Count VI is asserted on behalf of the same fifteen plaintiffs who had previously asserted
MHRA age discrimination claims in Count VII. The age discrimination claims were abandoned
when they were not reasserted in the Second Amended Complaint.
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Timothy Lovett, Joan Nischbach, Darrian Oliver, Antionette Parker, James Perry, Curtis Pettis,
Kevin Saeger, and David Sherrod were dismissed. See Memorandum and Order of July 10, 2013
(Doc. 122).
II. Summary Judgment Standard
The en banc Eighth Circuit recently clarified the appropriate standard for consideration of
motions for summary judgment, including those filed in employment discrimination cases,
explaining as follows:
Summary judgment is proper if the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law. The movant bears the
initial responsibility of informing the district court of the basis for its motion, and
must identify those portions of the record which it believes demonstrate the absence
of a genuine issue of material fact. If the movant does so, the nonmovant must
respond by submitting evidentiary materials that set out specific facts showing that
there is a genuine issue for trial. On a motion for summary judgment, facts must be
viewed in the light most favorable to the nonmoving party only if there is a genuine
dispute as to those facts. Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury functions, not those
of a judge. The nonmovant must do more than simply show that there is some
metaphysical doubt as to the material facts, and must come forward with specific
facts showing that there is a genuine issue for trial. Where the record taken as a
whole could not lead a rational trier of fact to find for the nonmoving party, there is
no genuine issue for trial.
Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc) (internal citations
and quotation marks omitted).
“Although the burden of demonstrating the absence of any genuine issue of material fact
rests on the movant, a nonmovant may not rest upon mere denials or allegations, but must instead
set forth specific facts sufficient to raise a genuine issue for trial.” Wingate v. Gage Cnty. Sch. Dist.,
No. 34, 528 F.3d 1074, 1078-79 (8th Cir. 2008) (cited case omitted). To show that “disputed facts
are material, the party opposing summary judgment must cite to the relevant substantive law in

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identifying ‘facts that might affect the outcome of the suit’” and then “categorize the factual disputes
in relation to the legal elements” of his claim. Quinn v. St. Louis County, 653 F.3d 745, 751-52 (8th
Cir. 2011) (quoted and cited cases omitted). Thus, to survive a motion for summary judgment, the
nonmoving party must “explain the legal significance of [his] factual allegations beyond mere
conclusory statements importing the appropriate terms of art” and provide a “meaningful legal
analysis explaining how, under the applicable law, the disputed facts might prove [his] claim at
trial.” Id. at 752 (internal citations omitted).
III. Findings of Fact
A. Plaintiffs’ Failure to Comply with Local Rule 4.01(E)
As a threshold matter, Local Rule 4.01(E) provides with respect to summary judgment
motions:
A memorandum in support of a motion for summary judgment shall have
attached a statement of uncontroverted material facts, set forth in a separately
numbered paragraph for each fact, indicating whether each fact is established by the
record, and, if so, the appropriate citations. Every memorandum in opposition shall
include a statement of material facts as to which the party contends a genuine dispute
exists. Those matters in dispute shall be set forth with specific references to portions
of the record, where available, upon which the opposing party relies. The opposing
party also shall note for all disputed facts the paragraph number from movant’s
listing of facts. All matters set forth in the statement of the movant shall be deemed
admitted for purposes of summary judgment unless specifically controverted by the
opposing party.
E.D. Mo. L.R. 4.01(E) (emphasis added).
This local rule “exists to prevent a district court from engaging in the proverbial search for
a needle in the haystack. Courts have neither the duty nor the time to investigate the record in search
of an unidentified genuine issue of material fact to support a claim or a defense.” Libel v. Adventure
Lands of America, Inc., 482 F.3d 1028, 1032 (8th Cir. 2007) (internal quotation and citation
omitted).
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In response to defendant’s Statement of Uncontroverted Material Facts (“Statement of
Facts”), the plaintiffs did not comply with the requirements of Local Rule 4.01(E). Instead of
identifying the paragraphs of defendants’ Statement of Facts as to which plaintiffs assert that a
genuine dispute exists in accordance with Rule 4.01(E), plaintiffs reproduced defendants’ Statement
of Facts with modifications, additions and subtractions, usually without specific citations by
plaintiffs to record evidence. Plaintiffs have added new paragraphs of fact to their response and
entirely failed to respond to several of defendant’s Statement of Facts.
Plaintiffs do not provide specific references to record evidence for the majority of their
statements in response to defendant’s Statement of Facts. Although plaintiffs have added in bold,
“Disputed Facts as to ¶__” for some of the paragraphs which they changed from defendant’s
Statement of Facts, most do not contain record citations. In many paragraphs, plaintiffs have
included defendant’s citations to the record (e.g., Pls.’ Resp. ¶¶ 1, 3, 11, 14); in others, they have
either eliminated or changed defendant’s record citations (e.g., Pls.’ Resp. ¶¶ 5, 6, 7, 23, 28, 29).
In some paragraphs, plaintiffs have failed to provide record citations (e.g., Pls.’ Resp. ¶¶ 1, 2, 3, 8,
10), and in others they added non-specific references to affidavits attached to their Response (e.g.,
Pls.’ Resp. ¶¶ 4, 9, 11, 14). In many paragraphs, plaintiffs simply refer to “Affidavit,” “Fink
Affidavit” and/or and “Robinson Affidavit,” (e.g., Pls.’ Resp., ¶¶ 4, 9, 11, 12, 14, 21), without
specifying where in those affidavits the fact is supported. Most egregiously, paragraph 32 of
plaintiffs’ Response provides a citation to “Robinson and Fink Affidavits, the responses of each
Plaintiff a [sic] their Deposition, their Second Amended Complaint.” These references do not
comply with Rule 56(c)(1)(A) and Local Rule 7-4.01(E)’s requirements that references to materials
in the record be “particular” and “specific.”

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More importantly, many of the citations plaintiffs do provide in their Response do not
support their factual statements. See, e.g., Pls.’ Resp., ¶¶ 16, 21, 23, 30, 31, 33, 34, 35. For
example, in Paragraph 16 of plaintiffs’ Response, they contend that statements made by defendant
to employees on March 10, 2010 “were either false or made to mislead employees into staying
employed at the President Casino believing that if they stayed until the Casino closed that they
would be taken care of.” Plaintiffs’ citation for this statement is to “Robinson and Bell Affidavits,”
but neither of those affidavits support plaintiffs’ assertion. Walter Robinson testified that the
statements he made on March 10, 2010 “were true at the time they were made . . . .” (Affidavit of
Walter Robinson (“Robinson Aff.”), (Doc. 146-2), ¶ 15). The Affidavit of Jack Bell (“Bell Aff.”)
(Doc. 146-3) contains no reference at all to the March 10, 2010 meeting and no assertion that the
statements made that day were “false.”
In addition, as defendant points out, a number of the documents plaintiffs attached to their
Response lack foundation. Attached to the Robinson Affidavit, the Affidavit of Michael Fink (“Fink
Aff.”), and plaintiffs’ Response, are the following documents for which there is no foundation and
or authentication, either in the affidavits or elsewhere: Robinson Aff. Exhibits 4, 5, 6, 7, 8 and 9;
Fink Aff. Exhibit 1, and Deposition Exhibits 39, 103 and 112. “To be considered on summary
judgment, documents must be authenticated by and attached to an affidavit made on personal
knowledge setting forth such facts as would be admissible in evidence or a deposition that meets the
requirements of Fed. R. Civ. P. 56(e).” Stuart v. General Motors Corp., 217 F.3d 621, 635 n.20 (8th
Cir. 2000)). “Documents which do not meet those requirements cannot be considered.” Id. “The
burden of authenticating evidence is on the proponent of the evidence. Fed. R. Evid. 901(a). ‘To
satisfy the requirement of authenticating or identifying an item of evidence, the proponent must
produce evidence sufficient to support a finding that the item is what the proponent claims it is.’”
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Fed. R. Evid. 901(a.).” Life Investors Ins. Co. of Am. v. Federal City Region, Inc., 687 F.3d 1117,
1121-22 (8th Cir. 2012). Plaintiffs have set forth no record evidence authenticating these
documents, and therefore the Court will not consider them.
In addition, defendant asserts that Robinson Affidavit Exhibits 1, 2 and 3 and Fink Affidavit
Exhibit 1 were never provided to defendant, despite its written discovery requests that clearly
encompassed these documents. Plaintiffs did not seek leave of Court to file a surresponse to rebut
this assertion, and the Court therefore accepts it as true. Plaintiffs cannot rely on documents that
they did not produce in discovery to oppose defendant’s motion for summary judgment.
Plaintiffs’ failure to comply with Federal Rule 56(c) and Local Rule 4.01(E) warrants the
Court deeming admitted the following of defendant’s Statement of Facts and disregarding the
following of plaintiffs’ Responses that do not comply with the Rules:
• Paragraphs 3, 5, 6, 12, and 21 of defendant’s Statement of Facts are deemed admitted
because plaintiffs’ Response does not deny them and plaintiffs have failed to set forth any
statements, responses, or record evidence in response to, or disputing, the statements contained
therein.
• Paragraphs 1, 2, 4, 7, 8, 9, 10, 11, 13, 15, 16, 17, 19, 20, 21, 22, 23 and 24 of defendant’s
Statement of Facts are deemed admitted because plaintiffs’ Response does not materially alter or
dispute any fact set forth in those paragraphs.
• Paragraphs 1, 2, 3, 4, 5, 7, 9, 10, 12, 13, 14, 15, 16, 17, 19, 20, and 21 of defendant’s
Statement of Facts are deemed admitted because plaintiffs’ Response does not provide specific
references to portions of the record upon which plaintiffs rely.

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• Paragraphs 14, 17, 18, 22 and 24 of defendant’s Statement of Facts are deemed admitted
because the record citations provided in plaintiffs’ Response do not support their disputation of those
paragraphs.
• Paragraphs 16, 17, 21, 23, 30, 31, 32, 33, 34, 35 of plaintiffs’ Response are disregarded
because the record citations provided by plaintiff do not support the factual assertions therein.
• Paragraphs 9 and 20 of plaintiffs’ Response are disregarded because they do not assert
material facts.
B. Findings of Fact
The Second Amended Complaint (“Complaint”) asserts two counts of negligent
misrepresentation and no other claims against defendant. (Doc. 86) In March 2010, the President
Casino, Lumiere Place Casino, and River City Casino – subsidiaries of Pinnacle Entertainment, Inc.
– were operating independently of each other in the St. Louis, Missouri area. (Affidavit of Kerby
Moore (“Moore Aff.”) ¶ 3).
The plaintiffs remaining in this lawsuit are Tanya Armstrong-Gines (“Armstrong-Gines”),
Demarcus Arnold (“Arnold”), Deborah Bailey (“Bailey”), Jack Bell (“Bell”), Terrell Borders
(“Borders”), Kenneth Clay (“Clay”), Cecil Coats (“Coats”), Linda Cotton (“Cotton”), Dietra
Cunningham (“Cunningham”), Gary Eastridge (“Eastridge”), Larry Fellows (“Fellows”), Michael
Fink (“Fink”), Glenn Ford (“Ford”), Diane Franklin (“Franklin”), Pamela Franklin-Hamilton
(“Franklin-Hamilton”), Amy Gavlik (“Gavlik”), Clifton Gordon “(Gordon”), Archie Green
(“Green”), Stephanie Hamiel (“Hamiel”), Lori Hargrove (“L. Hargrove”), Richard Hargrove (“R.
Hargrove”), Martisa Holmon (“Holmon”), Tonja Hull (“Hull”), Joseph Jennemann (“Jennemann”),
Natoya Johnson (“Johnson”), Diane Joyce (“Joyce”), David Kennedy (“Kennedy”), Dennis Lash
(“Lash”), Marilyn Lee-Taylor (“Lee-Taylor”), Jennifer Lippert (“Lippert”), Maxine Love (“Love”),
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Ronald Martin (“R. Martin”), Ronald Martin, Jr. (“R. Martin, Jr.”), Thomas Martin (“T. Martin”),
Jack Maysey (“Maysey”), Myron Minner (“Minner”), Darrel Mueth (“Mueth”), Joseph Pavlik
(“Pavlik”), Craig Rapert (“Rapert”), Perez Rayford (“Rayford”), Diane Rhodes (“Rhodes”),
Demetrius Rich (“Rich”), Tyree Richards (“Richards”), Walter Robinson (“Robinson”), Linda
Schreck (“Schreck”), Katina Scott (“Scott”), John Seibert (“Seibert”), Lizett Simmons (“Simmons”),
Laura Smith (“Smith”), Daniel Spradling (“Spradling”), Alimetric Stewart (“Stewart”), Melvin
Thomas (“Thomas”), Anthony Watson (“Watson”) and Raymond Woods (“Woods “) (hereafter
collectively referred to as “plaintiffs”). (Complaint; Doc. 122).
The plaintiffs were employed by the President Casino during the time period between March
10, 2010 and the closing of the President Casino on or about July 1, 2010. (Complaint, Count III,
¶ 1). No plaintiff or employee had a contract for employment with the President Casino for a
definite period of time in 2010. (Christopher Strobbe Affidavit (“Strobbe Aff.”) ¶ 7). All plaintiffs
and all employees of the President Casino were at-will employees. (Strobbe Aff. ¶ 8).
Since at least 2004, the President Casino has distributed an Employee Handbook and/or
made an Employee Handbook available for all employees to review upon request. (Strobbe Aff. ¶
10). President Casino employees were expected to abide by the policies and procedures set forth
in the President Casino Employee Handbook. (Strobbe Aff. ¶ 11). Since at least 2004, the President
Casino Employee Handbook contained a statement titled “Understanding By Employee” (see, e.g.,
Deposition Exhibits 29 and 40) which was signed by employees upon receipt of the Handbook and
torn out and returned to the President Casino. (Strobbe Aff. ¶ 13 and Dep. Ex. 40; Walter Robinson
Deposition (“Robinson Dep.”) at 42:13-21, 99:21-101:15 and Dep. Ex. 29; Moore Aff. ¶¶ 4, 5).
The Employee Handbook “Understanding By Employee” states, in relevant part:

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I understand that the information in the President Casino’s Handbook represents
guidelines only and that the Company reserves the right to modify this Handbook or
amend or terminate any policies, procedures, or employee benefit programs whether
or not described in this Handbook at any time, or to require and/or increase
contributions toward these benefit programs. I understand that I am responsible for
reading the Handbook, familiarizing myself with its contents, and adhering to all of
the policies and procedures of the President Casino, whether set forth in this
Handbook or elsewhere.
I understand that this Handbook is not a contract of employment, express or implied,
between me and the President Casino and that I should not view it as such, or as a
guarantee of future employment for any specific duration.
I further understand that no manager or representative of the President Casino, other
than the Director of Human Resources or the VP/General Manager has any authority
to enter into any agreement guaranteeing employment for any specified period of
time. I also understand that any such agreement, if made, shall not be enforceable
unless it is in a formal written agreement signed by both me and the Director of
Human Resources or the VP/General Manager.
I acknowledge that no supervisor, manager, or other representative of President
Casino has the authority to make any verbal promises, commitments, or statements
of any kind regarding the President Casino’s policies, procedures, or any other issues
that are legally binding on the Company.
(Robinson Dep. at 99:21-101:15 and Dep. Ex. 29; Strobbe Aff. ¶ 15 and Dep. Ex. 40; Moore Aff.
¶¶ 4, 5).
On March 10, 2010, defendant announced to the public and its employees that the President
Casino would close by July 1, 2010. (Strobbe Aff. ¶¶ 16-17; Complaint, Count III, ¶ 4). On March
10, 2010, the employees, including plaintiffs, were told their employment with the President Casino
would end upon the permanent closure of the President Casino on or about July 1, 2010. (Strobbe
Aff. ¶ 17; Complaint, Count III, ¶ 4).
On March 10, 2010, employees were told they would have the opportunity to apply for jobs
at Lumiere Place Casino or River City Casino under defendant’s past transfer policies and
procedures. (Strobbe Aff. ¶ 18; Complaint, Count III, ¶ 7; Robinson Dep. at 309:11-311:13;

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Robinson Aff. ¶ 6). The statements made to plaintiffs on March 10, 2010 were true at the time they
were made. (Robinson Dep. at 419:2-10; Robinson Aff. ¶ 15). No plaintiff was promised or
guaranteed future employment with defendant, and no plaintiff was promised or guaranteed
employment with defendant for any definite period of time. (Strobbe Aff. ¶¶ 20-21; Robinson Dep.
at 55:8-17). Some employees of the President Casino applied and were hired to work at other
Pinnacle Entertainment, Inc. casinos after March 10, 2010. (Robinson Dep. at 35:3-17; Strobbe Aff.
¶ 22).
Plaintiffs and other employees were orally informed between March 10, 2010 and April 20,
2010 that they would receive severance packages and retention bonuses if they continued to work
until the President Casino closed. (Robinson Aff. ¶ 27). Pinnacle’s corporate management
examined and discussed with President Casino General Manager Christopher Strobbe and Director
of Human Resources Walter Robinson proposed severance packages and bonuses for employees
losing their jobs at the President Casino in 2010. (Strobbe Aff. ¶ 25). Plaintiffs and other employees
were told that defendant was working on a severance package, but ultimately were never provided
with any specific, finalized details regarding severance packages or retention bonuses, either
verbally or in writing, in 2010. (Strobbe Aff. ¶¶ 24, 26).
On or about April 20, 2010, Chris Strobbe informed plaintiffs and other employees, in
writing, that no severance packages or retention bonuses would be provided when the President
Casino closed. (Strobbe Aff. ¶¶ 28–31; Complaint, Count III, ¶ 6, Count VI, ¶ 4; Robinson Dep. at
77:6-20; Robinson Aff. ¶ 30). No written documentation offering job transfers, severance packages,
retention or bonuses regarding the 2010 layoff was ever distributed to employees of the President
Casino. (Complaint, Count III, ¶ 4, Count VI, ¶¶ 2, 3; Strobbe Aff. ¶¶ 7, 27; Robinson Dep. at
338:8-16). Defendants’ employees from the President Casino that were hired at another Pinnacle
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Entertainment, Inc. location were not eligible for severance, retention or other bonus. (Robinson
Dep. at 337:4-93).
IV. Discussion
A. Negligent Misrepresentation - Failure to Transfer or Rehire - Count III
Count III of the Complaint alleges that defendant orally represented to all of the plaintiffs
on March 10, 2010, that if they continued to work at the President Casino until it closed they would
be transferred and rehired at other facilities owned by defendant, at the same salary, benefits and
seniority. Plaintiffs allege that defendant did not know the representations were false and that
plaintiff relied on the representations. Count III asserts a claim of negligent misrepresentation.
Under Missouri law, the elements of negligent misrepresentation are:
(1) the speaker supplied information in the course of his business; (2)
because of the speaker’s failure to exercise reasonable care, the information
was false; (3) the information was intentionally provided by the speaker for
the guidance of limited persons in a particular business transaction; (4) the
hearer justifiably relied on the information; and (5) due to the hearer’s
reliance on the information, the hearer suffered a pecuniary loss. Dancin
Development, L.L.C. v. NRT Missouri, Inc., 291 S.W.3d 739, 744 (Mo. App.
2009). A party must prove every element of a claim for negligent
misrepresentation for the claim to succeed. Id.
Renaissance Leasing, LLC v. Vermeer Mfg. Co., 322 S.W.3d 112, 134 (Mo. 2010) (en banc).
Defendant moves for summary judgment arguing that plaintiffs’ negligent misrepresentation
claims in Count III are precluded by the Missouri at-will employment doctrine, because plaintiffs
cannot establish the element of reliance on a promise of at-will employment as a matter of law. The
Court agrees.
In Missouri, “Employees who do not have a contract for a definite period of time are
considered ‘employees-at-will.’” Amaan v. City of Eureka, 615 S.W.2d 414, 415 (Mo. 1981 (en
banc). It is undisputed that none of the plaintiffs had a contract for employment for a definite period
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of time, and therefore were at-will employees. “Under Missouri’s employment at will doctrine an
employer can discharge–for cause or without cause–an at will employee who does not otherwise fall
within the protective reach of a contrary statutory provision and still not be subject to liability for
wrongful discharge.” Dake v. Tuell, 687 S.W.2d 191, 193 (Mo. 1985) (en banc) (cited case omitted).
The Missouri Supreme Court has stated, “The rule is well established in this state and elsewhere that
in the absence of a contract for employment for a definite term or a contrary statutory provision, an
employer may discharge an employee at any time, without cause of reason, or for any reason and,
in such case, no action can be maintained for wrongful discharge.” Christy v. Petrus, 295 S.W.2d
122, 124 (Mo. 1956) (en banc) (citing cases).
Although the at-will employment doctrine is typically invoked in the context of wrongful
discharge claims, its principles also bar claims asserting detrimental reliance on promises of future
at-will employment. See, e.g., Faust v. Ryder Commercial Leasing & Services, 954 S.W.2d 383, 393
(Mo. Ct. App. 1997) (affirming directed verdict against plaintiff on promissory estoppel and
negligent and intentional misrepresentation claims based on promise to rehire the plaintiff as an atwill employee), abrogated on other grounds by Fleshner v. Pepose Vision Institute, P.C., 304 S.W.3d
81 (Mo. 2010) (en banc); Rosatone v. GTE Sprint Commc’ns, 761 S.W.2d 670, 674 (Mo. Ct. App.
1988) (affirming dismissal of promissory estoppel claim based on a promise of employment at will);
Morsinkhoff v. DeLuxe Laundry & Dry Cleaning Co., 344 S.W.2d 639, 643-44 (Mo. Ct. App. 1961)
(promissory estoppel claim based on a promise to hire failed as a matter of law, where the promise
was for at-will employment).
Missouri courts have also held that employer policies unilaterally imposed on at-will
employees, in other words, the terms and conditions of employment, are not contracts enforceable
at law and the employer reserves the right to modify or discontinue those policies as it chooses.
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Morrow v. Hallmark Cards, Inc., 273 S.W.3d 15, 26 (Mo. Ct. App. 2008); see, e.g., West Central
Missouri Reg’l Lodge No. 50 v. Board of Police Comm’rs of Kansas City, Mo., 939 S.W.2d 565, 569
(Mo. Ct. App. 1997) (employer was free to modify policy contained in its employee personnel
manual regarding educational requirements for positions).
Here, plaintiffs’ claims are for negligent misrepresentation in Count III are based on
defendant’s promises to transfer or rehire them at defendant’s other facilities if they continued to
work at the President Casino until it closed. Plaintiffs allege that defendant made promises of future
employment, but do not allege that the promises of employment were for a definite term. As a result,
the alleged promise was for employment at will. See Faust, 954 S.W.2d at 393 (citing Rosatone, 761
S.W.2d at 672).
To make a submissible case of negligent misrepresentation, plaintiffs must show reliance on
a representation that proximately caused the damages they claim. Faust, 954 S.W.2d at 393 (citing
cases). The Missouri Court of Appeals has stated, “In this respect, the lesson of Morsinkhoff and
Rosatone . . . is clear, no damages can flow from the plaintiff’s misplaced ‘reliance’ on a promise
to hire as an at-will employee, regardless of the creative theory delineated in order to ‘outflank’ the
employment-at-will doctrine.” Faust, 954 S.W.2d at 393-94. “Thus, as a matter of law, claims of
. . . negligent misrepresentation, which are predicated on reliance, will not lie where the reliance is
based on a promise to hire as an employee at-will.” Id. at 394.
Here, plaintiffs were at-will employees. There is no allegation or evidence that defendant’s
alleged promise to transfer or rehire the plaintiffs at its other facilities was a promise to hire or
transfer them for a definite term, nor is there any evidence plaintiffs received assurances or
guarantees that defendant would offer them employment for a definite term if they were transferred

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or rehired at another facility. Defendant is therefore entitled to summary judgment on the negligent
misrepresentation claims in Count III, based on Faust, Rosatone and Morsinkhoff.
In opposing defendant’s summary judgment motion, plaintiffs state they “relied on the very
simple premiss [sic] that they believed and were told by the Defendant . . . by and through its
authorized agents (Chris Strobbe, General Manager and Walter Robinson, Director of Human
Resources), that if they stayed and worked until the closing of the President Casino they would be
allowed to either transfer to jobs within the company . . . or receive a severance and retention bonus.”
Pls.’ Mem. Opp. at 3-4. Plaintiffs then list what they assert to be the elements of their prima facie
case of negligent misrepresentation, citing various affidavits and the “Depositions of the 54
Plaintiffs,” but fail to provide any explanation or argument as to how the referenced materials create
a genuine issue of material fact. Id. at 4. As stated above, to show that disputed facts are material,
parties “opposing summary judgment must cite to the relevant substantive law in identifying ‘facts
that might affect the outcome of the suit’” and then “categorize the factual disputes in relation to the
legal elements” of their claim. Quinn, 653 F.3d at 751-52.
Plaintiffs’ opposition does not mention the Missouri at-will employment cases on which
defendant relies, and makes no attempt to discuss or distinguish those cases. Immediately after their
recitation of the final element of the negligent misrepresentation prima facie case, pecuniary loss,
plaintiffs cite Jennings v. SSM Health Care St. Louis, 355 S.W.3d 526, 537 (Mo. Ct. App. 2011), but
fail to discuss or explain the significance of Jennings. To survive a motion for summary judgment,
the nonmoving parties must “explain the legal significance of [their] factual allegations beyond mere
conclusory statements importing the appropriate terms of art” and provide a “meaningful legal
analysis explaining how, under the applicable law, the disputed facts might prove [their] claim at

15

trial.” Quinn, 653 F.3d at 752 (internal citations omitted). Because plaintiffs do not explain how
Jennings supports their case, they have not met this requirement.
Nonetheless, the Court has examined Jennings to determine whether it precludes summary
judgment on Count III, and concludes that it does not. Jennings was an appeal from the dismissal
of a petition alleging claims including breach of a written employment agreement, breach of a written
severance policy, and fraudulent and negligent misrepresentation. With respect to the negligent
misrepresentation claim, the motion to dismiss asserted only that the plaintiff failed to plead
supporting facts. Id. at 538. As a result, this was the only issue addressed by the court of appeals
with respect to the negligent misrepresentation claim. “The maxim of stare decisis applies only to
decisions on points arising and decided in causes.” Broadwater v. Wabash R. Co., 110 S.W. 1084,
1086 (Mo. 1908) (quotation omitted); see also State ex rel. Baker v. Goodman, 274 S.W.2d 293, 297
(Mo. 1954) (en banc) (“There is no doctrine better settled than that the language of judicial decisions
must be construed with reference to the facts and issues of the particular case, and that the authority
of the decision as a precedent is limited to those points of law which are raised by the record,
considered by the court, and necessary to a decision.”). The Court finds nothing in Jennings that
assists the plaintiffs in this case.
Accordingly, the Court finds that plaintiffs’ claims based on defendant’s alleged promises
to transfer them or rehire them at its other facilities are barred by the Missouri at-will employment
doctrine.

Defendant is therefore entitled to summary judgment on plaintiffs’ negligent

misrepresentation claims in Count III.
B. Negligent Misrepresentation - Severance Packages - Count VI
In Count VI of the Complaint, fifteen plaintiffs allege that defendant negligently
misrepresented to them on March 10, 2010 that if they continued to work until the President Casino
16

closed, they would be paid a severance package, sick pay and retention bonuses (Complaint, Count
VI, ¶ 2), but defendant subsequently advised plaintiffs on April 20, 2010 that “no retention provision
would be offered for them to transfer” to its other facilities, “nor would they be offered a severance
package.” (Complaint, Count VI, ¶ 4).2
Defendant moves to dismiss Count VI on the basis that Missouri’s at-will employment
doctrine is equally applicable to an employer’s right to unilaterally impose or change the terms and
conditions of employment, and that the alleged promises made on March 10, 2010 and later
rescinded were unilateral changes of the term of employment. Defendant cites Morrow, 273 S.W.3d
at 26 (“Employer policies unilaterally imposed on at-will employment (i.e., terms and conditions of
employment) are not contracts enforceable at law.”); Johnson v. McDonnell Douglas Corp., 745
S.W.2d 661, 662 (Mo. 1988) (en banc) (employee handbook containing employer’s policies and
stating that it was subject to change at any time did not create employment contract altering
plaintiff’s at-will employment status); and West Central, 939 S.W.2d at 569 (at-will employees could
not maintain an action for promissory estoppel based on employer’s unilateral adoption of stricter
education requirements for promotions, as employer was free to change its policy in the absence of
promises that the policy would not be modified in the future).
Defendant is correct that because the plaintiffs were at-will employees, the terms and
conditions of their employment were subject to change by defendant at any time, absent promises
by defendant not to change them. See West Central, 939 S.W.2d at 569; Albers v. Cardinal Glennon

2

In Count VI, the fifteen plaintiffs allege that defendant “knew the representations were false
or did not know the representations were false at [the] time but continued to make them.” Complaint
at 4, ¶ 8. The Court dismissed plaintiffs’ fraudulent misrepresentation claims by Memorandum and
Order of August 9, 2012 (Doc. 70). The plaintiffs’ conclusory allegation in Count VI that defendant
knew the representations were false is therefore surplusage that the Court ignores.
17

Children’s Hosp., 729 S.W.2d 519, 523 (Mo. Ct. App. 1987). In Albers, hospital employees filed
suit attempting to enforce a discontinued wage and scheduling program that was set forth in the
employee handbook. Id. The Missouri Court of Appeals held that employees could not recover on
their claims for breach of contract because the employer could unilaterally change or discontinue the
program: “In the absence of some valid, additional legal consideration exchanged for the asserted
continuous nature of the employment, the conditions of the employment may be changed at will of
the employer upon the giving of reasonable notice.” Id. The court also held that the employees
could not maintain a claim for promissory estoppel, as the employer had not promised that the
policies set forth in the employee handbook would not be changed. Id.
Similarly, in West Central, the Missouri Court of Appeals affirmed the dismissal of a
promissory estoppel claim based on allegations that the employer changed the promotion policies
contained in its personnel manual. 939 S.W.2d at 570. Citing Albers, the court held that although
the plaintiffs had been promised a policy regarding requirements for advancement, there was no
allegation that they were promised the policy would not be modified in the future, and therefore the
employees failed to state a claim upon which relief could be granted. Id.
As the Missouri Court of Appeals explained in Morrow, “Employment-at-will is not a legally
enforceable employment relationship because it is terminable at the will of either party, on a
moment-by-moment basis.” 273 S.W.3d at 26. Further, “In at-will employment, either party can
announce at any time that there are new conditions on either working or on providing work. The
other can say yes or no.” Id.
To belabor the obvious: if an employer, for instance, announces to an employee that
he or she will be reassigned to the night shift, and the employee declines the night
shift, the employee is not entitled to legally compel the employer to keep offering the
day shift. Neither is the employer entitled to legally compel the employee to work

18

the night shift. Each one may terminate the employment, but neither one has an
action at law.
Morrow, 273 S.W.3d at 26.
Assuming that defendant on March 10, 2010 orally promised the fifteen plaintiffs that they
would receive severance packages, sick pay and retention bonuses if they continued to work until
the casino closed, it informed the plaintiffs on April 20, 2010, that they would not receive such
benefits. Plaintiffs do not allege that defendant promised it would not modify its promise of these
benefits, or that defendant was not entitled to modify the promise. As at-will employees, the
plaintiffs were not otherwise entitled to severance packages, sick pay or retention bonuses. Under
these circumstances, defendant’s promise of benefits amounted to nothing more than a unilaterally
imposed term of employment, that did not alter defendant’s right to modify or discontinue the term
at its discretion. As a result, the plaintiffs’ only recourse when the promise was rescinded on April
20, 2010 was either to quit or to continue working under the new terms of employment. See
Morrow, 273 S.W.3d at 26; Albers, 729 S.W.2d at 523.
Because there is no genuine issue of material fact that the fifteen plaintiffs received a promise
or guarantee that defendant would not modify or terminate the promised benefit of severance, sick
pay or retention bonuses, defendant is entitled to judgment as a matter of law on Count VI.
C. Plaintiffs Cannot Establish a Prima Facie Case of Negligent Misrepresentation
The Court has concluded that plaintiffs’ negligent misrepresentation claims in Counts III and
VI fail as a matter of law based on the Missouri at-will employment doctrine. Defendant also argues
that plaintiffs cannot establish several of the elements of negligent misrepresentation. A party must
prove every element of a claim for negligent misrepresentation for the claim to succeed. Renaissance
Leasing, 322 S.W.3d at 134.

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1. Plaintiffs Cannot Establish That a False Representation Was Made
The second element of a claim for negligent misrepresentation is that because of the speaker’s
failure to exercise reasonable care, the information was false. Id. Defendant argues that plaintiffs
have not offered any evidence to establish that it failed to exercise reasonable care or competence
in obtaining or communicating the allegedly false information regarding job transfers, rehiring,
severance pay or retention bonuses. More importantly, defendant argues that plaintiffs admit the
statements made on March 10, 2010, that form the basis of their claims, were true at the time they
were made. See Robinson Aff. ¶ 15 (“The statements that I made on March 10, 2010 through April
20, 2010 were true at the time they were made but later became false; that Chris Strobbe and I had
been informed to tell the President Casino employees that they were to receive severance, retention
bonuses, and would be eligible to apply for transfer to the other St. Louis Pinnacle Entertainment,
Inc,. properties.”).
To establish a claim of negligent misrepresentation, plaintiffs must prove that a false
representation was made. Renaissance Leasing, 322 S.W.3d at 134. The admission that the
statements made by defendant through its Director of Human Resources Walter Robinson were true
when they were made is fatal to plaintiffs’ negligent misrepresentation claims. See Baum v. Helget
Gas Prods., Inc., 440 F.3d 1019, 1024 (8th Cir. 2006) (under Missouri law, plaintiff’s admission that
defendant did not make a materially false statement was fatal to his claims of negligent and
intentional misrepresentation). As in this case, “the evidence shows only that [defendant] did not
perform according to a promise (if made), which is insufficient” to establish negligent
misrepresentation. Id. at 1024-25 (citing Urologic Surgeons, Inc. v. Bullock, 117 S.W.2d 722, 726
(Mo. Ct. App. 2003)).

20

When the evidence is viewed in the light most favorable to the plaintiffs, it shows that
defendant promised plaintiffs they would be transferred or rehired, or given severance or retention
packages if they continued to work at the President Casino until it closed, and that this promise was
true when it was made, but defendant subsequently rescinded the promise and did not perform.
Plaintiffs therefore cannot establish an essential element of their negligent misrepresentation claim,
that a false representation was made to them. Defendant is therefore entitled to summary judgment
as a matter of law for this reason as well.
2. Plaintiffs Cannot Establish They Suffered a Pecuniary Loss
The fifth and final element of a claim for negligent misrepresentation is that “due to the
hearer’s reliance on the information, the hearer suffered a pecuniary loss.” Renaissance Leasing, 322
S.W.3d at 134. Defendant asserts that it is entitled to summary judgment because plaintiffs allege
only economic damages and do not allege pecuniary loss. The Court agrees.
“Missouri follows the pecuniary loss rule, which states that ‘the damages recoverable for a
negligent misrepresentation do not include the benefit of the plaintiff’s contract with the defendant.’
Restatement (Second) of Torts § 552B (1977), quoted in Frame v. Boatmen's Bank of Concord Vill.,
824 S.W.2d 491, 496 (Mo. Ct. App. 1992) (emphasis added).” Jenkins v. KLT, Inc., 308 F.3d 850,
858 (8th Cir. 2002); see Hartford Acc. and Indem. Co. v. Contico Int’l, Inc., 901 S.W.2d 210, 212-13
(Mo. Ct. App. 1995). “The rationale is that there should be no liability in tort merely for negligent
conduct by the promisor that interferes with or frustrates the promisee’s pecuniary expectancy arising
from the contract.” Jenkins, 308 F.3d at 858. “A promisee can only recover damages for pecuniary
loss incurred in reasonable reliance on a misrepresentation negligently made by the promisor.” Id.
Thus, under the pecuniary loss rule, a plaintiff in a negligent misrepresentation case may not recover
“benefit-of-the-bargain damages.” Id. at 859.
21

Here, the plaintiffs seek damages for lost wages and benefits. See Complaint, Count III, ¶
11; Count VI, ¶ 10. The Court interprets plaintiffs’ claims for damages as seeking the wages
plaintiffs would have been paid had they been transferred or rehired at defendant’s other facilities
as promised (Count III), and the severance packages, sick leave and retention bonuses they expected
to receive as promised (Count VI).3 Thus, the damages plaintiffs seek in this case are the benefit of
their bargain with the defendant. Cf. Jenkins, 308 F.3d at 859 (incentive and severance awards
plaintiff sought were benefits of his bargain with the defendant). Missouri law precludes plaintiffs
from seeking benefit of the bargain damages for negligent misrepresentation. Hartford, 901 S.W.2d
at 213; Frame, 824 S.W.3d 496-97.4 Plaintiffs do not allege that they incurred any pecuniary loss
incurred through their reliance on the alleged negligent misrepresentations. As a result, plaintiffs
cannot establish the fifth element of the prima facie case of negligent misrepresentation, and
defendant is entitled to summary judgment.
Because the Court concludes that plaintiffs cannot establish either the second or the fifth
elements of a cause of action for negligent misrepresentation, it does not address defendant’s final
argument that plaintiffs also cannot establish the fourth element of the prima facie case, that they
justifiably relied on the representations.
V. Conclusion
For the foregoing reasons, the Court concludes that plaintiffs cannot establish claims of
negligent misrepresentation as a matter of law, because their claims are barred by the Missouri atwill employment doctrine. In addition, plaintiffs’ claims fail because they cannot establish all of the

3

Plaintiffs do not allege that defendant failed to pay them for hours they actually worked.

4

To recover benefit-of-the-bargain damages, plaintiffs would have had to prove fraudulent
misrepresentation. Frame, 824 S.W.2d at 496.
22

elements of a cause of action for negligent misrepresentation. As a result, defendant’s motion for
summary judgment should be granted.
Accordingly,
IT IS HEREBY ORDERED that defendant Pinnacle Entertainment, Inc.’s motion for
summary judgment is GRANTED. [Doc. 135]
An appropriate judgment will accompany this Memorandum and Order.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 25th day of February, 2014.

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