Noel v. AT&T Corporation

Filing 35

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that defendants motion to dismiss, construed as a motion for judgment on the pleadings, is GRANTED in part and DENIED in part; the motion is GRANTED as to plaintiffs wrongful discharge in violation of public policy claim in Count I, GRANTED as to plaintiffs negligence claim in Count III, and DENIED as to the MHRA claim in Count II. [Doc. 28] An appropriate partial judgment will accompany this Memorandum and Order. Signed by District Judge Charles A. Shaw on 3/27/13. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JACK NOEL,
Plaintiff,
v.
AT&T CORPORATION, et al.,
Defendants.

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No. 4:12-CV-1673 CAS

MEMORANDUM AND ORDER
This matter is before the Court on defendants AT&T Corporation and SBC Internet Services,
Inc.’s (“SBC”) motion to dismiss Counts I, II and III of plaintiff Jack Noel’s First Amended
Complaint, and for judgment on the pleadings as to Count III. Plaintiff opposes the motion and it
is fully briefed. For the following reasons, the Court will construe the motion as a motion for
judgment on the pleadings, grant it as to Counts I and III, and deny it as to Count II.
Background
This action was filed by plaintiff in on June 4, 2012 in the Circuit Court for the City of St.
Louis, State of Missouri. Plaintiff’s two-count Petition asserted claims for wrongful discharge in
against public policy and violation of the Missouri Human Rights Act, §§ 213.010, et seq. Missouri
Revised Statutes. Defendant AT&T Corporation removed the case based on diversity of citizenship,
28 U.S.C. § 1332(a), and then filed a motion to dismiss the Petition. Plaintiff sought and was
granted leave to file a First Amended Complaint (“Complaint”), which added SBC Internet Services,
Inc. as a defendant and added a third count for “Negligence Resulting in Injury.” The defendants
filed an Answer to the Complaint and then filed the instant motion to dismiss and for judgment on
the pleadings.

Plaintiff’s Complaint makes the following allegations: Plaintiff was employed by defendant
SBC from 1979 until June 6, 2010, in increasingly responsible positions. Plaintiff has diabetes but
his diabetes had not been a major health issue for him until 2007, when he began working under a
new manager and was given additional responsibilities and required to travel significantly more.
The additional responsibilities and travel aggravated the symptoms of plaintiff’s diabetes to the
extent that he collapsed at the Tulsa, Oklahoma airport in March 2008 and was hospitalized for
several weeks thereafter. In 2008, two of plaintiff’s treating physicians wrote to plaintiff’s
supervisor, requesting that his work-related travel be restricted because of its effect on his health,
but these requests were ignored. Plaintiff collapsed again in December 2009 because of his diabetes
and was hospitalized. Plaintiff requested short term disability but this request was denied, and
instead plaintiff was placed on a Performance Improvement Plan (“PIP”), in which he was
threatened with termination. Plaintiff was hospitalized again in April 2010 and was “threatened by
his supervisor that his termination was impending upon his return to work as a result of his [PIP].”
Complaint, ¶ 23. Plaintiff’s physician told him that if he continued to maintain his travel schedule,
his life would be endangered. As a result, plaintiff tendered his resignation when he returned to
work on June 9, 2010. Plaintiff is now fully disabled and requires ongoing treatment for his health
condition.
Legal Standard
As a threshold matter, the defendants filed their Answer to plaintiff’s Amended Complaint,
and on the same day filed the instant motion to dismiss Counts I, II and III, and motion for judgment
on the pleadings as to Count III.1 Under Rule 12(b), Fed. R. Civ. P., a motion to dismiss for failure

1

Confusingly, defendants’ motion states that it is a motion to dismiss Counts I, II and III, and
also a motion for judgment on the pleadings on Count III, while the memorandum in support states
2

to state a claim upon which relief can be granted must be “made before pleading if a responsive
pleading is allowed.” Rule 12(h)(2)(B) provides, however, that a defense of failure to state a claim
upon which relief can be granted may be raised in a motion for judgment on the pleadings under
Rule 12(c). The Court will therefore construe defendants’ motion to dismiss as a motion under Rule
12(c). See Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990).
A motion under Rule 12(c) is determined by the same standards that are applied to a motion
under Rule 12(b)(6). Ginsburg v. InBev NV/SA, 623 F.3d 1229, 1233 n.3 (8th Cir. 2010). The
purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency of the
complaint. To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). A plaintiff need not provide specific facts in support of his allegations, Erickson
v. Pardus, 551 U.S. 89, 93 (2007) (per curiam), but “must include sufficient factual information to
provide the ‘grounds’ on which the claim rests, and to raise a right to relief above a speculative
level.” Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008) (citing Twombly,
550 U.S. at 555 & n.3). This obligation requires a plaintiff to plead “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly,
550 U.S. at 555. A complaint “must contain either direct or inferential allegations respecting all the
material elements necessary to sustain recovery under some viable legal theory.” Id. at 562 (quoted

that defendants move to dismiss Count I and II and move for judgment on the pleadings on Count
III. Defendants do not explain why they filed a motion to dismiss Counts I and II and a motion for
judgment on the pleadings on Count III.
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case omitted). This standard “simply calls for enough fact to raise a reasonable expectation that
discovery will reveal evidence of [the claim or element].” Id. at 556.
On a motion to dismiss, the Court accepts as true all of the factual allegations contained in
the complaint, even if it appears that “actual proof of those facts is improbable,” id. at 556, and
reviews the complaint to determine whether its allegations show that the pleader is entitled to relief.
Twombly, 550 U.S. at 555-56; Fed. R. Civ. P. 8(a)(2). The principle that a court must accept as true
all of the allegations contained in a complaint is inapplicable to legal conclusions, however. Iqbal,
129 S. Ct. at 1949-50 (stating “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice”). Although legal conclusions can provide the
framework for a complaint, they must be supported by factual allegations. Id. at 1950. Plausibility
is assessed by considering only the materials that are “necessarily embraced by the pleadings and
exhibits attached to the complaint[.]” Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012)
(quoted case omitted). The plausibility of the plaintiff’s claim is reviewed “as a whole, not the
plausibility of each individual allegation.” Zoltek Corp. v. Structural Polymer Grp., 592 F.3d 893,
896 n.4 (8th Cir. 2010).
Discussion
1. Constructive Discharge in Violation of Public Policy - Count I
Under Missouri law, an employee is considered to be “at-will” unless he is subject to a
contract setting the duration of his employment or delineating the reasons for which he can be fired.
“At-will” employees can be terminated at any time without cause. Margiotta v. Christian Hosp.
Northeast Northwest, 315 S.W.3d 342, 346 (Mo. 2010) (en banc). Nonetheless, the “at-will doctrine
is limited in certain respects. An employer cannot terminate an at-will employee for being a member
of a protected class, such as ‘race, color, religion, national origin, sex, ancestry, age or disability.’
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Section 213.055, RSMo. 2005.” Id. at 347. “In addition, Missouri recognizes the public-policy
exception to the at-will-employment rule.” Id. (citing Fleshner v. Pepose Vision Institute, P.C., 304
S.W.3d 81, 92 (Mo. 2010) (en banc)). “The public policy exception to the at-will employment rule,
often called the wrongful discharge doctrine, is very narrowly drawn. An at-will employee may not
be terminated for refusing to perform an illegal act or reporting wrongdoing or violations of law to
superiors or third parties.” Id. (cited cases and footnote omitted).
Constructive discharge can also be the basis for a wrongful discharge in violation of public
policy claim. Bell v. Dynamite Foods, 969 S.W.2d 847, 853 (Mo. Ct. App. 1998). Under Missouri
law, “Constructive discharge occurs when an employer deliberately renders an employee’s working
conditions so intolerable that the employee is forced to quit his or her job.” Wallingsford v. City
of Maplewood, 287 S.W.3d 682, 686 (Mo. 2009) (en banc) (quoted case omitted). “To effect a
constructive discharge, the working conditions must be such that a reasonable person would find
them intolerable.” Id.
Plaintiff was an at-will employee and asserts a claim of wrongful discharge under the public
policy exception in Count I. Defendants move for judgment on Count I on two grounds: (1) that
plaintiff fails to state a public policy exception claim because the Complaint does not specifically
allege that plaintiff reported a violation of law or public policy (the only possible basis for a public
policy claim in this case), and (2) that even if plaintiff had adequately pleaded a public policy claim,
it is not available where there is a statutory provision that provides a remedy–in this case the
MHRA.
The Court does not address defendants’ first contention because it agrees that plaintiff does
not have a viable action for wrongful discharge in violation of public policy because he has an
independent statutory remedy under the MHRA.
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This Court has previously held that a plaintiff may not bring an action for wrongful discharge
in violation of public policy where he has an available remedy under the MHRA, as the commonlaw remedy is preempted by the comprehensive remedial scheme of the statute. See, e.g., Banks v.
Ameren UE, 2005 WL 2176927, at *4 (E.D. Mo. Sept. 8, 2005); Schneider v. Sullivan Univ., No.
4:01-CV-1237 LMB, slip op. at 20-21 (E.D. Mo. Aug. 4, 2004); Zysk v. Sanford Brown College,
Inc., No. 4:01-CV-637 CAS, slip op. at 7-8 (E.D. Mo. Jan. 22, 2002). All of these decisions,
however, were issued prior to the Missouri Supreme Court’s opinion in Fleshner v. Pepose Vision
Institute, P.C., and therefore are not persuasive as to whether Missouri courts would allow a
common law cause of action for wrongful termination based upon the public policy codified in the
MHRA.
In Fleshner, the Missouri Supreme Court was required to determine whether a wrongful
discharge public policy exception action, in which the plaintiff claimed she was fired after she
cooperated with a U.S. Department of Labor investigation into whether the defendant was paying
its employees overtime, was preempted by the Fair Labor Standards Act. The court stated it “has
consistently held that a statutory right of action shall not be deemed to supersede and displace
remedies otherwise available at common law in the absence of language to that effect unless the
statutory remedy fully comprehends and envelops the remedies provided by common law.”
Fleshner, 304 S.W.3d at 95 (internal quotation marks and quoted case omitted). Under Missouri
law, “A statutory remedy does not ‘comprehend and envelop’ the common law if the common law
remedies provide different remedies from the statutory scheme. For example, if the common law
remedy provides punitive damages, but the statutory scheme does not, then the common law scheme
is not preempted.” Id. at 95-96 (internal citation and quoted case omitted).

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In Missouri, punitive damages are available for wrongful discharge claims brought under the
public policy exception at common law. Id. at 96. Accordingly, to preempt the public policy
exception, the MHRA must provide for punitive damages. See id. (discussing Fair Labor Standards
Act). The MHRA provides a comprehensive remedial scheme that allows a court to award a
plaintiff injunctive relief, actual and punitive damages, costs and attorneys’ fees in an action against
an employer. § 213.111.2, Mo. Rev. Stat. (2000).2 Further, because the MHRA allows the recovery
of attorneys’ fees, it appears to provide plaintiffs with more remedies than the common law, not less,
as Missouri generally follows the American Rule which requires litigants to bear their own
attorneys’ fees unless otherwise authorized by statute. See Holmes v. Kansas City Mo. Bd. of Police
Comm’rs, 364 S.W.3d 615, 630 (Mo. Ct. App. 2012). Accordingly, the Court concludes the
MHRA’s statutory remedies fully “comprehend and envelop” the remedies provided by common
law under the test articulated by the Missouri Supreme Court and, as a result, the MHRA preempts
plaintiff’s public policy exception claim.
Although neither side cited the case, the Court notes that another judge of this Court has held
that the MHRA does not preempt a wrongful discharge claim under the Missouri public policy
exception. See Shelton v. Village of Bel Nor, 2011 WL 3207123, at *3 (E.D. Mo. July 28, 2011).
In reaching this conclusion, Judge Baker cited the Missouri Supreme Court’s statement in Fleshner
that both the MHRA and the public policy exception modify Missouri’s at-will employment doctrine
and that wrongful termination claims can be brought under each. Fleshner, 304 S.W.3d at 94-95.
Judge Baker concluded from this statement that the Missouri Supreme Court “expressed a position
that the public policy exception and the MHRA co-exist” and concluded as a result that “the MHRA

2

All subsequent statutory references are to the Missouri Revised Statutes (2000), unless
otherwise stated.
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does not preempt a wrongful discharge claim brought under the public policy as set forth in Missouri
law.” Shelton, 2011 WL 3207123, at *3.
The undersigned respectfully disagrees. The Missouri Supreme Court’s discussion of the
MHRA and the wrongful discharge public policy exception in Fleshner occurred in the context of
its first explicit recognition of the existence of the public policy exception. The issue under
discussion was how a jury should be instructed as to the proper causal standard for a wrongful
discharge action based on the public policy exception. 304 S.W.3d at 92-94. The defendant argued
for an “exclusive causation” standard and the plaintiff argued for a “because” standard. The court
discussed the “exclusive causation” standard used in workers’ compensation retaliation cases, but
rejected it as inappropriate for wrongful discharge public policy exception cases. The court then
looked to the MHRA and its “contributing factor” standard as a guidepost because the MHRA, like
the public policy exception, is an exception to the at-will employment doctrine with similar
underlying purposes. Id. at 94. The Court discussed the similarities between the MHRA and the
public policy exception, and ultimately concluded that the proper causal standard would be the same
under both:
Essentially, the MHRA modifies the at-will employment doctrine by
instructing employers that they can terminate employees, but their reason for
termination cannot be improper. The MHRA’s employment provisions mandate that
employees may not terminate employees on the basis of their race, color, religion,
national origin, sex, ancestry, age, or disability. Section 213.055.1. The
public-policy exception is the same: it modifies the at-will employment doctrine by
mandating that employers may not terminate employees for reporting violations of
law or for refusing to violate the law or public policy.
Likewise, cases involving both the MHRA and the public-policy exception
turn on whether an illegal factor played a role in the decision to discharge the
employee. The evidence in both types of cases directly relates to the employer's
intent or motivation. The employer discharges the employee, asserting a reason for
the termination that may or may not be pretextual. Under the MHRA, if race, color,
religion, national origin, sex, ancestry, age, or disability of the employee was a
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“contributing factor” to the discharge, then the employer has violated the MHRA.
The employer’s action is no less reprehensible because that factor was not the only
reason. Similarly, if an employee reports violations of law or refuses to violate the
law or public policy as described herein, it is a “contributing factor” to the discharge,
and the discharge is still reprehensible regardless of any other reasons of the
employer.
Fleshner, 304 S.W.3d at 95-96.
This Court reads the foregoing discussion in Fleshner to indicate that while the MHRA and
public policy exception are similar in that both are exceptions to the at-will employment rule, where
a claim of wrongful discharge is based on race, color, religion, national origin, sex, ancestry, age,
or disability, it is governed by the MHRA, and where a claim of wrongful discharge is based on an
employee reporting violations of law or refusing to violate the law, it is governed by the public
policy exception. The Missouri Supreme Court did not address in Fleshner whether a plaintiff could
bring a wrongful discharge action under the public policy exception based on a discharge for one
of the reasons prohibited by the MHRA, and the Court does not interpret Fleshner as providing any
indication that such an action would be appropriate.
In Fleshner, the Missouri Supreme Court also considered whether the plaintiff’s public policy
exception claim was preempted by the federal Fair Labor Standards Act. In so doing, the court
articulated the analysis that must be applied to a claim of preemption under Missouri law. Id. at 9596. The court concluded that Fleshner’s public policy exception claim was not preempted by the
FLSA because the FLSA did not offer all of the remedies that were available to her under the
common law, specifically punitive damages. This Court believes the Missouri Supreme Court
would apply the same analysis to determine whether the MHRA preempts public policy exception
claims based on race, color, religion, national origin, sex, ancestry, age, or disability, and would

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conclude that it does because the MHRA’s comprehensive remedial scheme completely
“comprehends and envelops” the common law remedy, as discussed above.
Defendants’ motion for judgment on the pleadings on Count I should therefore be granted.
2. Missouri Human Rights Act - Count II
Defendants moves for judgment on Count II, plaintiff’s disability discrimination claim under
the MHRA, as untimely. Any action filed under the MHRA must be filed “no later than two years
after the alleged cause occurred or its reasonable discovery by the alleged injured party.”
§ 213.111.1, Mo. Rev. Stat. In Missouri, “Statutes of limitations are favored in the law, and cannot
be avoided unless the party seeking to do so brings himself strictly within some exception. Such
exceptions are strictly construed and are not enlarged by the courts upon considerations of apparent
hardship.” Hunter v. Hunter, 237 S.W.2d 100, 104 (Mo. 1951) (internal quotation marks and quoted
cases omitted).
Under the language of the MHRA’s limitation provision, the issue presented by defendants’
motion is when the plaintiff’s cause of action occurred or was reasonably discovered. Defendants
assert that the statute of limitations begins to run on the date an employer communicates an adverse
action to the employee, citing Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 1328 (8th Cir.
1995). Defendants argue that the statute began to run on plaintiff’s MHRA claim “in December
2009” based on the Complaint’s allegation that plaintiff’s supervisor told him his termination “was
impending upon his return to work as a result of his performance improvement plan,” Complaint,
¶ 23, read in conjunction with the Charge of Discrimination, which asserts that prior to December
18, 2009, plaintiff’s manager told him if he did not improve, he would be terminated on December
29, 2009. In support of their argument, defendants rely primarily on Farrow v. St. Francis Medical
Center, 2012 WL 2395156 (Mo. Ct. App. June 26, 2012), and Dring.
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Plaintiff responds that the actual date of his injury is the date he resigned, June 9, 2010, and
that his Petition was timely under the statute because it was filed within two years of that date.
Plaintiff argues the threat of termination that was hanging over him was speculative, and that
defendants cannot point to any actual communication made by them that would serve as a formal
notification of termination to begin the accrual of the statute of limitations under the MHRA.
Plaintiff asserts that the only notice he had of a potential termination was the existence of the
Performance Improvement Plan, which did not specify a date or explicitly refer to a termination, but
rather laid out conditions under which he could either improve his performance or face discipline,
including termination, if the performance improvement goals were not met. Plaintiff further asserts
that defendants’ motion does not offer a specific date on which the statute began to accrue because
there was no formal notification by defendants of an adverse action under the MHRA. Plaintiff
argues that threats of termination do not constitute notice of an adverse action, and that even if
defendants had given him a specific date for termination, plaintiff brought about the accrual of this
action by the act of tendering his resignation.
Plaintiff does not cite any case law in support of his position, but seeks to distinguish the
Dring v. McDonnell Douglas case on which defendants rely, on the grounds that (1) in Dring, the
plaintiff was given formal notification of a layoff date to occur in the future, while no such formal
notification was given in this case; (2) Dring concerned the 300-day limit for filing an EEOC
complaint, not the running of the two-year MHRA statute of limitation; and (3) Dring addressed the
issue of equitable modification, which is not an issue in this case.
Defendants reply that the MHRA claim is time barred based on plaintiff’s Charge of
Discrimination and Complaint, as he knew prior to December 18, 2009 that defendants intended to
terminate him, based on his allegations that (1) “prior to December 18, 2009,” his manager told him
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he would be terminated on December 29, 2009 if he did not improve his performance; (2) he did not,
in fact, improve his performance; (3) he promptly left work never to return; (4) his supervisor told
him “explicitly” that his termination was “impending upon his return to work”; and (5) he then
resigned in advance of a termination he knew was coming. Defs.’ Reply at 6.
The Court finds it significant that defendants do not cite any MHRA cases decided by
Missouri courts in support of their timeliness argument. The Eighth Circuit’s Dring case, 58 F.3d
1323, is unpersuasive here because it is both factually and legally distinguishable. Dring is factually
distinguishable because there, the plaintiff was given formal notice by his employer that he would
be laid off on a specific date in the future. The notice did not state that the layoff was contingent
on any potential future acts or occurrences, such as the quality of the plaintiff’s performance. The
Eighth Circuit stated that in the “context of an [Age Discrimination in Employment] action, our
court . . . has . . . held that the limitations period begins to run when the plaintiff receives notice of
a termination decision.” 58 F.3d at 1328. The Eighth Circuit accordingly found that the statute of
limitations began to run on the date McDonnell Douglas gave Mr. Dring the layoff notice. Id.
In contrast, in this case, plaintiff was not given a definite termination decision, but rather a
Performance Improvement Plan (“PIP”) which stated that termination on December 29, 2009 was
a possible outcome if he did not improve his job performance. At the time the PIP was given, the
possibility existed that plaintiff’s job performance would improve and he would not be terminated.
Thus, in contrast to the notice in Dring, plaintiff’s possible termination under the PIP was contingent
upon future events. Plaintiff does not allege and defendants do not argue that his employment was
in fact terminated on December 29, 2009. Defendants cite no authority indicating that Missouri
courts would hold the MHRA statute of limitations began to run when plaintiff received a PIP that
addressed the possibility, but not the certainty, of his termination if his performance did not improve.
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Dring is legally distinguishable from the present case because it was decided under standards
applicable to a federal Age Discrimination in Employment Act case. Although Mr. Dring also
asserted an MHRA age discrimination claim, the Eighth Circuit’s timeliness discussion concerned
only the EEOC’s 300-day rule with respect to the ADEA claim. In 1995, when Dring was decided,
the Eighth Circuit routinely applied federal employment discrimination law to cases brought under
the MHRA, which it no longer does as a result of differences between the MHRA and federal laws
articulated by the Missouri Supreme Court. See, e.g., Wierman v Casey’s General Stores, 638 F.3d
984, 1002 (8th Cir. 2011) (citing Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 818-19
(Mo. 2007) (en banc)). Defendants have not cited any Missouri decisions applying Dring to the
MHRA statute of limitations, and the Court declines their invitation to do so here.
The Court also finds that defendants’ reliance on the Missouri Court of Appeals’ decision
in Farrow, 2012 WL 2395156, is not persuasive for two reasons. First, Farrow was transferred to
the Missouri Supreme Court on October 30, 2012, well prior to the filing of defendants’ motion, and
is awaiting decision there as Case No. SC92793. “The decision of the court of appeals in a case
subsequently transferred [to the Missouri Supreme Court] is of no precedential effect.” Philmon v.
Baum, 865 S.W.2d 771, 774 (Mo. Ct. App. 1993); Benton House, LLC v. Cook & Younts Ins., Inc.,
249 S.W.3d 878, 883 (Mo. Ct. App. 2008) (quoting Philmon). Defendants’ counsel should have
informed the Court that the opinion on which they rely had been effectively vacated.
Second, even if Farrow were a final decision with precedential effect, it concerned a different
statute of limitations with different accrual language. Farrow addressed whether the plaintiff’s
common-law defamation claim was time barred. Section 516.140, Mo. Rev. Stat., provides that
defamation claims are subject to a two-year statute of limitations. Section 516.100, Mo. Rev. Stat.,
further provides that:
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Civil actions, other than those for the recovery of real property, can only be
commenced within the periods prescribed in the following sections, after the causes
of action shall have accrued; provided, that for the purposes of sections 516.100 to
516.370, the cause of action shall not be deemed to accrue when the wrong is done
or the technical breach of contract or duty occurs, but when the damage resulting
therefrom is sustained and is capable of ascertainment, and, if more than one item of
damage, then the last item, so that all resulting damage may be recovered, and full
and complete relief obtained.
Farrow, 2012 WL 2395156, at *10. Under this statute, the court stated that a claim for defamation
accrued when it was “capable of being ascertained by a reasonable person using reasonable
diligence,” and that this test “is met when the plaintiff’s right to sue arises and they could have first
maintained the action successfully.” Id. (citations omitted).
Based on these principles, the Missouri Court of Appeals concluded that plaintiff Farrow
objectively should have known that she suffered damages as a result of the alleged defamation well
prior to the time her employment was terminated, and that her damages were ascertainable at least
as early as 2006 and 2007 when she filed complaints about the alleged defamatory statements with
the defendant’s personnel. The court rejected Farrow’s contention that her termination from
employment in 2008 extended the commencement of the running of the statute of limitations beyond
the time she first discovered the alleged comments and ascertained their resulting damage to her.
Id. at **10, 11.
In contrast, the MHRA statute of limitations provides: “Any action brought in court under
this section shall be filed . . . no later than two years after the alleged cause occurred or its
reasonable discovery by the alleged injured party.” § 213.111.1, Mo. Rev. Stat. (emphasis added).
This language is significantly different from that of § 516.100, which states that the cause of action
is “not . . . deemed to accrue when the wrong is done or the technical breach of contract or duty
occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment.”

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Defendants have not cited any Missouri authority for the proposition that cases interpreting
§ 516.100’s “capable of ascertainment” standard are authoritative in interpreting § 213.111.1’s
“cause occurred” or “reasonable discovery” standard. Based on the differences in the relevant
statutory language, the Court declines to accept such authority as persuasive here in the first
instance. Further, even if the “capable of ascertainment” standard were applicable here, which it is
not, it does not appear that plaintiff’s right to sue arose and he could have first successfully
maintained a cause of action for wrongful termination in December 2009, while he was still
employed by the defendants.
For these reasons, the Court concludes that defendants’ motion for judgment on plaintiff’s
MHRA claim as time barred should be denied.
3. Negligence Resulting in Injury - Count III
In Count III of the Complaint, plaintiff alleges that (1) defendants owed him a duty of care
as his employer, (2) putting him under the stress of travel to the extent it affected his health was in
dereliction of that duty, and (3) plaintiff was injured as a result. Defendants move for judgment on
the pleadings on Count III on the basis that the Missouri Workers’ Compensation Act and Missouri
Division of Workers’ Compensation provide the exclusive remedy and venue for the work-related
injuries plaintiff alleges, citing Burns v. Smith, 214 S.W.3d 335, 337 (Mo. 2007) (en banc).
Plaintiff responds that while the Missouri Workers’ Compensation Act is typically the
exclusive remedy for injuries sustained by employees, there is an exception for negligent acts that
is determined on a case-by-case basis and applies here, also citing Burns, id. at 338. Defendants
reply that plaintiff’s citation to Burns fails to recognize that the court in Burns was determining the
circumstances under which a plaintiff might be permitted to bring a negligence claim against an
individual co-worker or supervisor and not, as here, an employer.
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The defendants’ motion for judgment on the pleadings is well taken as to Count III. The
Missouri Workers’ Compensation Law provides the exclusive remedy against employers for injuries
covered by its provisions. Burns, 214 S.W.3d at 337. Section 287.120, Mo. Rev. Stat., provides:
1. Every employer subject to the provisions of this chapter shall be liable,
irrespective of negligence, to furnish compensation under the provisions of this
chapter for personal injury or death of the employee by accident arising out of and
in the course of his employment, and shall be released from all other liability therefor
whatsoever, whether to the employee or any other person. The term “accident” as
used in this section shall include, but not be limited to, injury or death of the
employee caused by the unprovoked violence or assault against the employee by any
person.
2. The rights and remedies herein granted to an employee shall exclude all other
rights and remedies of the employee, his wife, her husband, parents, personal
representatives, dependents, heirs or next kin, at common law or otherwise, on
account of such accidental injury or death, except such rights and remedies as are not
provided for by this chapter.
§ 287.120, Mo. Rev. Stat. Pursuant to this statute, “The employer has a nondelegable duty to
provide a reasonably safe place to work. Suits for breach of this duty are excluded by the workers’
compensation law.” Kelley v. DeKalb Energy Co., 865 S.W.2d 670, 672 (Mo. 1993) (en banc)
(internal citations omitted). Plaintiff’s negligence claim in Count III is barred by the exclusive
remedy of the Workers’ Compensation Act. Defendants’ motion for judgment on the pleadings on
Count III should therefore be granted.
Conclusion
For the foregoing reasons, the Court finds that defendants’ motion to dismiss, construed as
a motion for judgment on the pleadings, should be granted as to Count I based on MHRA
preemption, granted as to Count III based on the exclusive remedy of the Missouri Workers’
Compensation Act, and denied as to Count II.

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Accordingly,
IT IS HEREBY ORDERED that defendants’ motion to dismiss, construed as a motion for
judgment on the pleadings, is GRANTED in part and DENIED in part; the motion is GRANTED
as to plaintiff’s wrongful discharge in violation of public policy claim in Count I, GRANTED as
to plaintiff’s negligence claim in Count III, and DENIED as to the MHRA claim in Count II. [Doc.
28]
An appropriate partial judgment will accompany this Memorandum and Order.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 27th day of March, 2013.

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