Zasaretti-Becton v. The Habitat Company of Missouri, LL et al

Filing 34

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motion of defendants The Habitat Company and The Habitat Company of Missouri, LLC to dismiss Counts II and III (Doc. 19) is sustained. Counts II and III of plaintiffs second amended complaint are dismissed without prejudice. Signed by Magistrate Judge David D. Noce on 6/25/2012. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARIA ZASARETTI-BECTON,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
THE HABITAT COMPANY OF MISSOURI,
LLC, et al.,
Defendants.

No. 4:12 CV 587 DDN

MEMORANDUM AND ORDER
This action is before the court on the motion of defendants The
Habitat Company of Missouri, LLC and The Habitat Company, LLC to dismiss.
(Doc. 19.)

The parties have consented to the exercise of plenary

authority by the undersigned United States Magistrate Judge pursuant to
28 U.S.C. § 636(c).

(Doc. 29.)

Oral argument was heard on May 23, 2012.

I.

BACKGROUND

On February 6, 2012, plaintiff Maria Zasaretti-Becton commenced this
action

in

the

Circuit

Court

of

St.

Louis

City,

Missouri

against

defendants The Habitat Company of Missouri, LLC; The Habitat Company,
LLC; and Marla Jackson.

(Doc. 1-1 at 19-29.)

On February 23, 2012,

plaintiff filed an amended petition in which she also named a John Doe
Business Entity as a defendant.

(Id. at 1-13.)

On March 30, 2012,

defendants removed the action under 28 U.S.C. § 1441(b), on the basis of
diversity of citizenship jurisdiction, 28 U.S.C. § 1332.

(Doc. 1.)

Also on March 30, 2012, defendants The Habitat Company and The
Habitat Company of Missouri answered and joined defendant Marla Jackson
in moving to dismiss Counts II and III.

(Docs. 3, 5.)

2012, plaintiff filed a second amended complaint.

On April 11,

(Doc. 11-13.)

Upon

the filing of plaintiff’s second amended complaint, the court denied
defendants’ motion to dismiss without prejudice as moot.

(Doc. 12.)

On April 25, 2012, defendants The Habitat Company and The Habitat
Company of Missouri moved to dismiss Counts II and III of plaintiff’s
second amended complaint, and to dismiss defendants Marla Jackson and the

John Doe Business Entity from all counts.

(Docs. 19, 20.)

At the May

23, 2012 hearing, plaintiff’s counsel made an oral motion to dismiss
defendants Marla Jackson and John Doe Business Entity from the action,
which the court sustained.

(Docs. 27, 28.)

Plaintiff makes the following factual allegations in her second
amended complaint.
Plaintiff was employed by The Habitat Company as a property manager
from January 1, 2001, until she was terminated on March 4, 2011.
(Doc. 13 at ¶ 19.)

Specifically, she worked as the property manager of

the Parkview Apartments in the City of St. Louis (Parkview Property).
(Id. at ¶ 23.)

She was born on February 4, 1954; at all relevant times,

she was over 40 years old.

(Id. at ¶ 25.)

The Habitat Company has a contract with the St. Louis Housing
Authority (SLHA), a federally-funded government agency that provides lowincome housing to residents in St. Louis City, to manage certain lowincome housing properties in the St. Louis area.

(Id. at ¶¶ 20-21.)

These low-income housing properties are subject to the statutes and
regulations

of

the

Development (HUD).
public

housing

regulations.

United

States

(Id. at ¶ 22.)

development

Department

of

Housing

and

Urban

The Parkview Property is a low-income

subject

to

federal

statutes

and

HUD

(Id. at ¶ 24.)

From 2005-2007, plaintiff and the Parkview Property received many
awards and recognitions.

(Id. at ¶¶ 26-27.)

In January, 2008, Marla Jackson, then the Vice President of Property
Management and an employee of The Habitat Company, began supervising
plaintiff.

(Id. at ¶ 28.)

Jackson immediately began disciplining

plaintiff for infractions for which other, younger employees were not
disciplined.

(Id. at ¶ 29.)

In January or February, 2009, plaintiff’s direct supervisor, Clint
Grigley, completed a Performance Review for plaintiff for the year 2008,
in

which

he

expectations.”

stated
(Id.

that
at

plaintiff
¶¶

30-31.)

“met

and

many

Jackson,

who

times

exceeded

was

Grigley’s

supervisor, refused to accept Grigley’s Performance Review and asked
Grigley to lower plaintiff’s overall rating.
refused, and was terminated in March, 2009.

- 2 -

(Id. at ¶ 32.)
(Id. at ¶ 33.)

Grigley

In the summer of 2010, plaintiff began having escalating problems
with a tenant (Tenant), and sought to evict Tenant.

(Id. at ¶ 34.)

Tenant was violating federal statutes and HUD regulations by living in
HUD

housing

without

complying

Responsibility Act of 1998,
community

service

(Id. at ¶ 35.)

each

1

with

the

Quality

Housing

and

Work

by not completing the eight hours of

month

required

by

42

U.S.C.

§

1437j.

As of September, 2010, Tenant had not completed any

community service for at least two years, despite not being subject to
any exemption of § 1437j(c)(2).

(Id. at ¶ 36.)

Tenant also physically

assaulted other tenants and was suspected of drug use.

(Id. at ¶ 37.)

However, Jackson asked plaintiff not to evict Tenant and instead to
find a doctor to “say the right things” to get Tenant deemed disabled so
that Tenant would not be required to perform the community service
required by her lease and by § 1437j.
refused.

(Id. at ¶ 40.)

(Id. at ¶¶ 38-39.)

Plaintiff

Tenant later physically threatened plaintiff,

vandalized plaintiff’s apartment, harassed tenants, stole, and slapped
another tenant.

In spite of these actions, Jackson would not allow

plaintiff to evict Tenant and even told plaintiff to destroy the incident
report from when Tenant slapped the other tenant.
In

September,

2010,

Improvement Plan” (PIP).
plaintiff

had

(Id. at ¶ 45.)

been

placed

Jackson

placed

plaintiff

(Id. at ¶ 44.)
on

a

PIP

(Id. at ¶¶ 41-43.)

while

on

a

“Permanent

This was the first time
employed

by

defendants.

Jackson told plaintiff that she was being put on a PIP

due to her inability to complete a report, even though plaintiff was
never trained to complete the report; only other, younger employees were
given this training.

(Id. at ¶¶ 46-47.)

In September, 2010, plaintiff filed a charge of discrimination with
the Equal Employment Opportunity Commission (EEOC), Charge No. 560-201002790, in which she alleged that defendants were discriminating against
her based on her age.

(Id. at ¶ 48.)

In October, 2010, plaintiff e-

mailed Marvin Bostic of the SLHA and informed him of the problems with
Tenant and that The Habitat Company was not supporting her decision to
evict Tenant.

1

(Id. at ¶ 49.)

Plaintiff also asked a SLHA attorney for

Pub. Law. No. 105-276, 112 Stat. 2461 (1998).
- 3 -

advice on how to proceed with evicting Tenant so that she could do so
while complying with HUD laws.

(Id. at ¶ 50.)

In January, 2011, Tenant was evicted.

(Id. at ¶ 51.)

At the time,

plaintiff was 56 years old, managed a property with 300 units, and had
the second-highest occupancy rate, while other property managers managed
properties with between 21 and 155 units.

(Id. at ¶¶ 52-53, 56.)

Despite managing more units than other managers, plaintiff was not given
additional staff, and her request for additional staff was denied.
(Id. at ¶¶ 54-55.)
At some point, Jackson terminated the employment of other, older
employees, most of whom were over 50 years of age.

(Id. at ¶ 57.)

On March 4, 2011, plaintiff attended a mediation to resolve her
employment issues with defendants.

(Id. at ¶ 58.)

That day, plaintiff

was discharged and, at some point, replaced by a younger employee.
(Id. at ¶¶ 59-60.)
In Count I, plaintiff alleges that defendants The Habitat Company
of Missouri and The Habitat Company violated the Missouri Human Rights
Act, Mo. Rev. Stat. § 213.010, et seq. (MHRA), by disciplining and
discharging her because, at least in part, of her age. Plaintiff alleges
that: (a) she was disciplined and put on a PIP when other, younger
employees were not; (b) she was hindered in her ability to perform her
job properly and was asked to circumvent rules and laws when other,
younger employees were not; (c) she was replaced by a younger employee;
and (d) she was terminated when other, younger employees were not.
(Id. at ¶¶ 61-68.)
In Count II, plaintiff alleges that defendants violated Missouri’s
common law against wrongful discharge, in that she was discharged
(a) because she refused to violate the law or engage in conduct which she
reasonably believed would have violated the law, when Jackson asked her
to violate 42 U.S.C. § 1437j(c) by not requiring Tenant to participate
in mandatory community service and by finding a doctor who would be
willing to find Tenant “disabled;” and (b) because she reported these
alleged wrongdoings, which she reasonably believed to be violations of
the law, to the SLHA.

(Id. at ¶¶ 69-79.)

- 4 -

In Count III, plaintiff alleges that defendants violated Missouri’s
common law against wrongful discharge, in that she was terminated after
(a) Jackson asked her to violate the SLHA’s “one strike” policy regarding
evicting tenants, and 24 C.F.R. § 966.4 by destroying the paperwork from
Tenant slapping another tenant, which plaintiff refused to do; and
(b) she reported what she believed to be wrongdoing and violations of law
to the SLHA.

Plaintiff alleges that these were improper contributing

factors in defendants’ decision to discharge her.

(Id. at ¶¶ 81-94.)

In Count IV, plaintiff alleges that defendants violated the MHRA by
retaliating

against

her

by

discharging

her

because

she

filed

a

discrimination charge against them, participated in related mediation,
and

participated

in

an

investigation

Commission on Human Rights (MCHR).

II.

with

the

EEOC

and

Missouri

(Id. at ¶¶ 95-97.)

MOTION TO DISMISS

Defendants argue that Counts II and III should be dismissed because
plaintiff’s

complaint

does

not

allege

facts

that,

if

true,

would

establish a violation of law or well-established and clearly-mandated
public policy.
she

Defendants also argue that plaintiff’s allegations that

reasonably

believed

defendants

violated

insufficient and otherwise unreasonable.

the

law

are

legally

(Docs. 19, 20.)

Plaintiff responds that she refused to violate the law and that she
reported to others, including the SLHA, that she was being asked to
violate the law.

Plaintiff argues, alternatively, that she reasonably

believed that defendants’ conduct was or would have been a violation of
law.

(Doc. 21.)
Defendants reply that plaintiff’s allegations, if true, would not

establish that a law was or would have been violated, nor would they have
supported a reasonable belief that a law was or would have been violated.
(Doc. 24.)

III.

MOTION TO DISMISS STANDARD

A motion to dismiss under Rule 12(b)(6) challenges the legal
sufficiency of the complaint. Carton v. Gen. Motor Acceptance Corp., 611
F.3d 451, 454 (8th Cir. 2010); Young v. City of St. Charles, 244 F.3d

- 5 -

623, 627 (8th Cir. 2001).

To survive a motion to dismiss, the complaint

must include “enough facts to state a claim to relief that is plausible
on its face.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

To meet the plausibility standard, the complaint must contain “more than
labels and conclusions.” Id. at 555. Rather, the complaint must contain
“factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. 662, 678 (2009).

Ashcroft v.

2

The Federal Rules of Civil Procedure demand only that a complaint
present a “short and plain statement of the claim showing that the
pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

And in this

regard, the court must be mindful of Federal Rule of Civil Procedure 84’s
requirement that the attached Forms 10 to 21 be considered examples of
the “simplicity and brevity that [Rule 8] contemplate[s].”

Fed. R. Civ.

P. 84; see Hamilton v. Palm, 621 F.3d 816, 818 (8th Cir. 2010).
A complaint must be liberally construed in the light most favorable
to the plaintiff.
Cir. 2006).
if doubtful.

Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th

The court must accept all the facts alleged as true, even
Twombly, 550 U.S. at 555.

Thus, a well-pleaded complaint

may proceed even if it appears that recovery is very remote or unlikely.
Id.; Young, 244 F.3d at 627.

IV.

DISCUSSION

“Missouri maintains the default rule of at-will employment for
employees without employment contracts for a definite term: an employer
may discharge an at-will employee for any reason or for no reason without
liability for wrongful discharge.”

Taylor v. St. Louis Cnty. Bd. of

2

Although defendants filed answers contemporaneously with their
motion to dismiss, contra Fed. R. Civ. P. 12(b) (“A motion asserting any
of these defenses must be made before pleading if a responsive pleading
is allowed.”), the court nonetheless applies the standard for evaluating
a Rule 12(b)(6) motion to dismiss because the standard is the same as
that for the alternative, a Rule 12(c) motion for judgment on the
pleadings. E.g., Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th
Cir. 1990); Webster Indus., Inc. v. Northwood Doors, Inc., 234 F. Supp.
2d 981, 989 (N.D. Iowa 2002); see also Fed. R. Civ. P. 12(h)(2)(B)
(“Failure to state a claim upon which relief can be granted . . . may be
raised . . . by motion under rule 12(c).”).
- 6 -

Election Comm’rs, 625 F.3d 1025, 1027 (8th Cir. 2010) (per curiam)
(citing Sivigliano v. Harrah’s N. Kan. City Corp., 188 S.W.3d 46, 48 (Mo.
App. W.D. 2006)); accord Margiotta v. Christian Hosp. Ne. Nw., 315 S.W.3d
342, 345-46 (Mo. banc 2010). But in Fleshner v. Pepose Vision Institute,
P.C., 304 S.W.3d 81, 84 (Mo. banc 2010), the Missouri Supreme Court
recognized a limited public policy exception to the at-will employment
doctrine:
An at-will employee may not be terminated (1) for refusing to
violate the law or any well-established and clear mandate of
public policy as expressed in the constitution, statutes,
regulations promulgated pursuant to statute, or rules created
by a governmental body or (2) for reporting wrongdoing or
violations of law to superiors or public authorities.
304 S.W.3d at 92; cf. Missouri Approved Jury Instructions (MAI) § 38.03
n.1 (7th ed. 2012) (discussing the origins of Missouri’s public policy
exception).

“If an employer terminates an employee for either reason,

then the employee has a cause of action in tort for wrongful discharge
based on the public-policy exception.”

Fleshner, 304 S.W.3d at 92.

To succeed on a claim for wrongful discharge in violation of public
policy under Missouri law, a plaintiff must establish that: (1) she
refused to violate the law or a well-established and clear mandate of
public policy, or reported such a violation to a superior or public
authority; (2) the defendant terminated her employment; (3) her refusal
or report was a contributing factor in her termination; and (4) as a
result of her discharge, she sustained damage.

Keveney v. Mo. Military

Acad., 304 S.W.3d 98, 103 (Mo. banc 2010); Custom Hardware Eng’g &
Consulting, Inc. v. Dowell, No. 4:10 CV 653 ERW, at *17 (E.D. Mo. May 5,
2011); cf. MAI § 38.03.
A.

Count II
In Count II, plaintiff alleges that defendants violated Missouri’s

common law against wrongful discharge, in that she was discharged
(a) because she refused to violate the law or engage in conduct which she
reasonably believed would have violated the law, when Jackson asked her
to violate 42 U.S.C. § 1437j(c) by not requiring Tenant to participate
in mandatory community service and by finding a doctor who would be
willing to find Tenant “disabled;” and (b) because she reported these
- 7 -

alleged wrongdoings, which she reasonably believed to be violations of
the law, to the SLHA.

(Id. at ¶¶ 69-79.)

The statute cited by plaintiff, 42 U.S.C. § 1437j(c), regulates HUD
housing and states:
(c) Community service requirement.
(1) In general.
Except as provided in paragraph (2) and notwithstanding
any other provision of law, each adult resident of a
public housing project shall-(A) contribute 8 hours per month of community
service (not including political activities) within
the community in which that adult resides; or
(B) participate in an economic self-sufficiency
program (as that term is defined in subsection (g)
of this section) for 8 hours per month.
42 U.S.C. § 1437j(c)(1).
Defendants first argue that plaintiff has not pleaded an actual
violation

of

§

1437j(c)

because

the

statute

permits

a

tenant

to

participate in an economic self-sufficiency program in lieu of performing
eight hours of community service, and plaintiff has alleged only that
Tenant failed to complete eight hours of community service.
Although plaintiff does not include the “economic self-sufficiency
program” alternative among the allegations of her complaint, construing
the complaint broadly, plaintiff’s allegation that “Tenant had not
completed any community service for at least two years as of September
2010, despite not being subject to any exemption” is sufficient to allege
a violation of § 1437j(c).

See generally Eckert, 514 F.3d at 806

(stating that at the motion to dismiss stage, the court “should construe
the complaint liberally in the light most favorable to the plaintiff”).
Defendants also argue that because § 1437j(c)(4) does not require
immediate eviction, their alleged failure to evict Tenant immediately was
not a violation of the law.

This statutory sub-section states:

(4) Ineligibility for occupancy for noncompliance.
A public housing agency may not renew or extend any lease, or
provide any new lease, for a dwelling unit in public housing
- 8 -

for any household that includes an adult member who was
subject to the requirement under paragraph (1) and failed to
comply with the requirement.
42 U.S.C. § 1437j(c)(4) (emphasis added).

In her complaint, plaintiff

identifies only § 1437j(c) as the law allegedly violated or that would
have been violated had she complied with Jackson’s request.
The court concludes that plaintiff has not alleged a sufficient
basis of a legal violation.

Plaintiff’s assertion that defendants

violated § 1347(c) is not supported by the facts pleaded or, insofar as
the court can discern, the relevant statutory language.3

“The mere

citation of a constitutional or statutory provision in a pleading is not
by

itself

sufficient

discharge.”

to

state

a

cause

of

Margiotta, 315 S.W.3d at 347.

action

for

retaliatory

Rather, the complaint must

“specify the legal provision violated by the employer,” and “it must
affirmatively appear from the face of the [complaint] that the legal
provision in question involves a clear

mandate of public policy.”

Frevert v. Ford Motor Co., 614 F.3d 466, 471 (8th Cir. 2010) (citing
Misischia v. St. John’s Mercy Med. Ctr., 30 S.W.3d 848, 863 (Mo. App.
E.D. 2000)).

It does not appear from the face of the complaint that

defendants, through their alleged conduct, violated the sole legal
provision cited in the complaint, § 1347(c).

Nor has plaintiff alleged,

specifically, a violation of a public policy reflected by the law.

See

generally Farrow v. St. Francis Med. Ctr., ___ S.W.3d ___, 2012 WL
451882, at *7-9 (Mo. App. E.D. 2012) (discussing public policy issue in
this context).

Thus, Count II is legally insufficient.

See Adolphsen

v. Hallmark Cards, Inc., 907 S.W.2d 333, 338 (Mo. App. W.D. 1995) (claims
should be dismissed where the plaintiff fails to plead any specific
criminal violations or that he was directed to violate a specific law).
Therefore, Count II is dismissed without prejudice.

3

The court should not parse through the potentially relevant
statutory framework seeking potential violations of law or public policy
reflected in the law to support plaintiff’s allegations. Plaintiff bears
this burden. See Adolphsen v. Hallmark Cards, Inc., 907 S.W.2d 333, 338
(Mo. App. W.D. 1995) (stating that in a wrongful termination of at-will
employment suit, “the specific facts on which liability is based must be
pleaded with particularity”); see also Frevert v. Ford Motor Co., 614
F.3d 466, 471 (8th Cir. 2010) (stating that the plaintiff must “specify
the legal provision violated by the employer”).
- 9 -

B.

Count III
In Count III, plaintiff alleges that defendants violated Missouri’s

common law against wrongful discharge, in that she was terminated after
(a) Jackson asked her to violate the SLHA’s “one strike” policy regarding
evicting tenants, and 24 C.F.R. § 966.4 by destroying the paperwork from
Tenant slapping another tenant, which plaintiff refused to do; and
(b) she reported what she believed to be wrongdoing and violations of law
to the SLHA.

Plaintiff alleges that these were improper contributing

factors in defendants’ decision to discharge her.

(Id. at ¶¶ 81-94.)

Plaintiff bases her allegations in Count III on 24 C.F.R. § 966.4.
However, insofar as plaintiff has pleaded, 24 C.F.R. § 966.4, which is
a Department of Housing and Urban Development regulation, does not
require eviction of a tenant under these circumstances; the regulation
grants the Public Housing Authority (PHA) discretion as to whether to
evict a tenant:
(a)(2)(iii) At any time, the [PHA] may terminate the tenancy in
accordance with [subsection (l)].
* * *
(l) Termination of tenancy and eviction.-* * *
(2) Grounds for termination of tenancy.
terminate the tenancy only for:

The PHA may

(i) Serious or repeated violations of material
terms of the lease, . . .
* * *
(iii) Other good cause. Other good cause includes,
but is not limited to, the following:
(A) Criminal activity or alcohol abuse as
provided
in
paragraph
(l)(5)
of
this
subsection;
* * *
(5) PHA termination of tenancy for criminal activity or
alcohol abuse.
* * *
- 10 -

(vii) PHA action, generally.
* * *
(B) Consideration of circumstances.
In a
manner
consistent
with
such
policies,
procedures and practices, the PHA may
consider all circumstances relevant to a
particular case such as the seriousness of
the
offending
action,
the
extent
of
participation by the leaseholder in the
offending action, the effects that the
eviction would have on family members not
involved in the offending action, the members
not involved in the offending activity and
the extent to which the leaseholder has shown
personal responsibility and has taken all
reasonable steps to prevent or mitigate the
offending action.
24 C.F.R. § 966.4(a)(2)(iii), (l) (emphasis added).
When the factual allegations of the complaint are accepted as true,
Count

III

is

nonetheless

legally

insufficient

because

plaintiff’s

allegations would not establish that defendants asked her to violate the
law, or that she reported a violation of law, because defendants retained
discretion as to whether to terminate a tenant.4

See Margiotta, 315

S.W.3d at 347 (noting that Missouri law offers no legal protection for
an employee who “merely disagrees personally with an employer’s legallyallowed policy”); cf. Lay v. St. Louis Helicopter Airways, Inc., 869
S.W.2d 173, 175-77 (Mo. App. E.D. 1993) (holding that a regulation which
gave pilots discretion whether to fly did not “impose[]a duty on an
employer to refrain from terminating a pilot whose judgment calls are
contrary to the employer’s judgment”).

4

Moreover, as with Count II,

Defendants also argue that Count III should be dismissed because
24 C.F.R. § 966.4 does not reflect a fundamental or substantial public
policy.
The contours of what constitutes “public policy” for these
purposes is currently pending before the Eighth Circuit Court of Appeals.
See Richter v. Advance Auto Parts, No. 10-01179-CV-W-JTM, 2011 WL 2601201
(W.D. Mo. June 30, 2011), argued, No. 11-2570 (8th Cir. Jan. 11, 2012);
see also Brief for Appellant, 2011 WL 4071731, at *28-35 (arguing that
the district court erred in holding that her complaint did not allege
violations of law that represented clear mandates of public policy).
Because Count III is legally insufficient regardless, as discussed above,
the court does not resolve this issue.
- 11 -

plaintiff has not pleaded that defendants’ conduct violated any other
laws or public policy reflected by a specific law.
Therefore, Count III is dismissed without prejudice.

C.

Reasonable Belief
In Counts II and III, plaintiff pleaded in the alternative that if

the allegedly unlawful conduct did not actually violate the law, she
nonetheless reasonably believed that it did so, thereby giving rise to
her unlawful termination claim.

(Doc. 13 at ¶¶ 76, 90.)

The Missouri

Supreme Court, however, has rejected this legal theory.
In

Margiotta

v.

Christian

Hospital

Northeast

Northwest,

the

plaintiff, a former at-will employee, brought a wrongful termination
claim against his former employer, alleging that the employer terminated
him

for

reporting

violations

of

regulations to his supervisors.

federal

and

state

patient

safety

315 S.W.3d 342, 344-45 (Mo. banc 2010).

The Missouri Supreme Court held that the federal regulation was too vague
to support the plaintiff’s claim and that the Missouri regulation
concerned building safety, not patient treatment, and thus was not
applicable.

Id. at 348.

The court then stated:

What Margiotta asks this Court to do is to grant him protected
status for making complaints about acts or omissions he merely
believes to be violations of the law or public policy. The
public policy exception to the at-will doctrine is not so
broad. A legal duty will not be forced upon parties who have
agreed to an at-will relationship . . . .
Id. (emphasis added); see also id. at 346-47 (explaining that Missouri’s
public policy exception is “very narrowly drawn” and that “[t]he mere
citation of a constitutional or statutory provision in a pleading is not
by

itself

sufficient

to

state

a

cause

of

action

for

retaliatory

discharge[;] the plaintiff must demonstrate that the public policy
mandated by the cited provision is violated by the discharge”).
Recently, the Eighth Circuit had occasion to apply this aspect of
Margiotta.

In Bazzi v. Tyco Healthcare Group, LP, the plaintiff brought

suit against his former employer, alleging that he was terminated either
because he refused to validate adulterated drugs or because he acted as
a whistleblower by directing his subordinate to draft and distribute a
report relating to his concerns with validating the adulterated drugs.
- 12 -

652 F.3d 943, 944-45 (8th Cir. 2011).

The Eighth Circuit agreed with the

district court that the plaintiff failed to establish that the employer
had committed an act or omission that violated the law and thus, the
plaintiff’s case “amounted to no more than complaints about acts or
omissions he subjectively believe[d] to be violations of the law or
public policy.”
explained

that

Id. at 948.
Missouri’s

Relying on Margiotta, the Eighth Circuit

“public

policy

exception

to

the

at-will

doctrine is not so broad” and that because the plaintiff had failed “to
submit even a scintilla of admissible evidence” that a violation of law
had occurred, the employer was entitled to summary judgment.

Id.

Plaintiff relies on Dunn v. Enterprise Rent-A-Car Co., 170 S.W.3d
1, 10-11 (Mo. App. E.D. 2005), and Clark v. Beverly Enterprises-Missouri,
Inc., 872 S.W.2d 522, 525-26 (Mo. App. E.D. 1994), in arguing that her
reasonable belief is sufficient to state a claim of unlawful termination
under Missouri’s public policy exception to the at-will employment
doctrine.

Dunn and Clark, however, were decided by the Missouri Court

of Appeals before Margiotta; as the more recent holding from the highest
Missouri court, Margiotta controls.

To the extent Dunn, Clark, and any

other pre-Margiotta holdings5 recognize the validity of this legal theory,
the court concludes that post-Margiotta, a reasonable belief of legal
wrongdoing is not itself sufficient to succeed on an unlawful termination
claim brought under Missouri’s public policy exception to the at-will
employment doctrine.

V.

CONCLUSION

For the reasons and to the extent discussed above,
IT IS HEREBY ORDERED that the motion of defendants The Habitat
Company and The Habitat Company of Missouri, LLC to dismiss Counts II and
III (Doc. 19) is sustained.

Counts II and III of plaintiff’s second

amended complaint are dismissed without prejudice.

5

See, e.g., Kelly v. Bass Pro Outdoor World, LLC, 245 S.W.3d 841,
847-48 (Mo. App. E.D. 2007) (relying on Dunn in holding that the
plaintiff had “made a submissible case for wrongful termination based
upon his reasonable belief that [his former manager] committed a crime”).
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/S/
David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed on June 25, 2012.

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