Hicock, II v. Casino One Corp.

Filing 29

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that "Defendant's Motion for Summary Judgment" [ECF No. 22 ] is DENIED. Signed by District Judge E. Richard Webber on August 14, 2014. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WILLIAM A. HICOCK II,
Plaintiff,
v.
CASINO ONE CORPORATION
Defendant.

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No. 4:13CV02407 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on “Defendant’s Motion for Summary Judgment”
[ECF No. 22].
I.

BACKGROUND
On October 27, 2013, Plaintiff William A. Hicock II (“Plaintiff”) filed a Petition against

Defendant Casino One Corporation (“Casino One”) in the Twenty-Second Judicial Circuit Court
of the City of St. Louis, Missouri, alleging Casino One violated Missouri’s Service Letter
Statute, Missouri Revised Statutes § 290.140 (“the Service Letter Statute”) [ECF Nos. 1-3, 6].
Thereafter, Casino One timely filed a Notice of Removal, removing the matter to this Court on
the basis of federal diversity jurisdiction, pursuant to 28 U.S.C. § 1331, 1441 and 1446 [ECF
Nos. 1 through 1-6]. Casino One filed its Answer to Plaintiff’s Complaint on December 3, 2013
[ECF No. 9].
Plaintiff filed a Motion to Remand, which the Court denied on January 27, 2014 [ECF
Nos. 13, 15]. However, the Court granted the parties twenty (20) days to submit a joint
stipulation, substantially similar in all respects to the stipulation approved in Workman v.
Kawasaki Motors Corp., U.S.A., 749 F.Supp 1010 (W.D. Mo. 1990), and indicated the Court

would reconsider the remand motion if the parties submitted such a stipulation [ECF Nos. 13,
15]. No stipulation was filed.
Plaintiff subsequently filed an Amended Complaint, to which Casino One filed an
Answer and asserted several affirmative defenses, including failure to comply with the
requirements of the Service Letter Statute [ECF Nos. 16, 17]. On July 8, 2014, Casino One filed
its Motion for Summary Judgment [ECF Nos. 22 through 24-1]. Plaintiff filed his Memorandum
in Opposition, and Casino One filed its Reply [ECF Nos. 26, 28]. The matter was referred to
Alternative Dispute Resolution on August 4, 2014 [ECF No. 27].
II.

LEGAL STANDARD
AThe court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.@ Fed.
R. Civ. P. 56(a). Federal Rule of Civil Procedure 56(c) provides that A[a] party asserting that a
fact cannot be, or is genuinely disputed must support the assertion by: (A) citing to particular
parts of materials in the record, . . . or (B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.@ Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). AAll 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. 7-4.01(E).
AOnly disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.@ Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). Summary judgment will not lie if a genuine dispute about a material
fact is shown; Athat is, if the evidence is such that a reasonable jury could return a verdict for the

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nonmoving party.@ Id. In ruling on a motion for summary judgment, the Court may not make
credibility determinations, weigh the evidence, or draw inferences from the facts. Torgerson v.
City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011).
To satisfy his initial responsibility, the summary judgment movant must inform the court
of the basis for his motion and must identify those portions of the record that he believes
demonstrate the absence of a genuine issue of material fact. Id. at 1042. Once the moving party
has discharged the requisite evidentiary burden, the nonmovant must respond by submitting
evidentiary materials that set out Aspecific facts showing that there is a genuine issue for trial.@
Id. (citations omitted). If the nonmovant fails to produce such evidence, summary judgment in
favor of the moving party is proper. Olson v. Pennzoil Co., 943 F.2d 881, 883 (8th Cir. 1991).
III.

STATEMENT OF UNCONTROVERTED MATERIAL FACTS
The following statement of undisputed or uncontroverted material facts is derived from

the Statement of Uncontroverted Material Facts [ECF No. 24], Plaintiff=s Statement of Material
Facts Which Plaintiff Contends a Genuine Issue Exists [ECF No. 26], Defendant’s Reply
Memorandum in Support of Motion for Summary Judgment [ECF No. 28], the parties= pleadings
and responses thereto [ECF Nos. 16, 17], and uncontroverted exhibits of record [ECF Nos. 24-1,
26-1, 26-2, 26-3].
Casino One does business in St. Louis City, Missouri, under the fictitious name,
“Lumiere Place Casino & Hotels.” Plaintiff was employed by Casino One as a table games
dealer from December 3, 2007, until May 14, 2013. On May 11, 3013, Plaintiff was suspended
due to a violation of Casino One’s Zero Tolerance Harassment and Discrimination Policy, and he
was terminated on May 14, 2013, due to his violation of Casino One’s Zero Tolerance
Harassment and Discrimination Policy. Plaintiff thereafter requested an internal review of the

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decision to terminate his employment. The internal review application was denied.
On July 23, 2013, Casino One received a letter, dated July 19, 2013, from the law firm of
Flesner & Associates, LLC, signed by Ericka Wentzel, Attorney at Law, requesting a service
letter pursuant to Missouri Revised Statutes § 290.140. The July 19, 2013 letter is not addressed
to “a superintendent, manager or registered agent” of Casino One, or to any specific individual.
Plaintiff and Casino One participated in an unemployment benefits appeal hearing on
August 12, 2013, to determine whether Plaintiff was discharged for misconduct associated with
work. An Unemployment Appeals decision issued on August 23, 2013,concluding that Plaintiff
was not fired for misconduct connected with his work, and that Plaintiff was entitled to
unemployment benefits. In its “Findings of Fact,” the Decision of Appeals Tribunal stated:
The final incident giving rise to the claimant’s discharge was a question posed by
the claimant to two customers of Middle Eastern descent about a backpack. The
incident occurred shortly after the Boston Marathon bombing. But the claimant
did not directly make a comment about the customers’ race, religion, or national
origin. There was insufficient evidence that the claimant violated any rule or
standard of the employer. The Appeals Tribunal is not persuaded that the
claimant intend[ed] to harass the customers, or disregard the employer’s interests.
The employer has not proven misconduct with competent and substantial
evidence.
On September 9, 2013, Casino One received a letter, dated September 6, 2013, again
from attorney Ericka Wentzel, and again requesting a service letter on behalf of Plaintiff. This
letter was addressed to “Joyce Ridge, Manager, Lumiere Place Casino and Hotels,” and was
signed by both Wentzel and Plaintiff.
On December 2, 2013, Plaintiff personally sent another service letter request to Casino
One. In response to Plaintiff’s December 2,2013 request for a service letter, Casino One
provided to Plaintiff a service letter, in compliance with Missouri Revised Statutes § 290.140.
Specifically, the December 17, 2013 service letter stated the length of time Plaintiff was

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employed with Casino One and his duties while employed with Casino One, and indicated
Plaintiff was terminated for violating Casino One’s Zero Tolerance Harassment and
Discrimination Policy: “You were terminated due to a finding that you violated Lumiere Place’s
Zero Tolerance Harassment and Discrimination Policy. Lumiere Place concluded you made a
discriminatory remark on the casino floor regarding two guests of Middle Eastern descent.”
IV.

DISCUSSION
In its Motion for Summary Judgment, Casino One characterizes this matter as a case

“entirely about Plaintiff’s multiple deficient requests for a service letter directed to Defendant”
[ECF No. 23 at 1]. Casino One contends it is entitled to judgment as a matter of law on
Plaintiff’s claims, because there are no genuine issues of fact that Casino One complied with
Missouri Revised Statutes § 290.140 upon receipt of Plaintiff’s December 2, 2013 request for a
Service Letter. Casino One argues a plain reading of the Service Letter Statute reveals a request
made by counsel is ineffective, and Casino One asserts there is no genuine issue of material fact
that two prior letters seeking a service letter relating to Plaintiff, dated July 19, 2013, and
September 6, 2013, were sent by Plaintiff’s attorney. Casino One further states the July 19th
letter was noncompliant with the statute’s requirements because it “was not addressed to any one
person or title, but instead simply began with the introductory phrase, ‘To Whom it May
Concern’” [ECF No. 23 at 2]. Casino One contends it was under no duty to respond to these two
prior letters, as they were not in strict compliance with § 290.140.
As pertinent to Casino One’s Motion for Summary Judgment, Missouri Revised Statutes
§ 290.140.1 provides that when a discharged employee, meeting specified qualifications, timely
makes a request to his corporate employer having seven or more employees:
. . . in writing by certified mail to the superintendent, manager or registered agent
of said corporation, with specific reference to the statute, it shall be the duty of the

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superintendent or manager of said corporation to issue to such employee, within
forty-five days after the receipt of such request, a letter, duly signed by such
superintendent or manager, setting forth the nature and character of service
rendered by such employee to such corporation and the duration thereof, and truly
stating for what cause, if any, such employee was discharged or voluntarily quit
such service.
Mo. Rev. Stat. § 290.140.1. In the event the corporate employer fails to issue the requested letter
as required, the employer may be liable for both nominal and punitive damages. Mo. Rev. Stat.
§ 290.140.2.
In his Memorandum in Opposition to Casino One’s Motion for Summary Judgment,
Plaintiff argues Casino One is not entitled to judgment as a matter of law, because Plaintiff’s
September 6, 2013 letter complied with Section 290.140, and Casino One had a duty to respond
to his request for a Service Letter, but failed to do so in a timely fashion1 [ECF No. 26].
“An employee must meet the statutory prerequisites to be entitled to a service letter and
to have a cause of action if the employer fails to issue one.” Bartareau v. Exec. Bus. Prods.,
Inc., 846 S.W.2d 248, 249 (Mo. Ct. App. 1993). Federal and state courts have concluded letters
signed only by an employee’s attorney and not by the employee do not constitute valid Service
Letter requests under Missouri law. See Zeman v. V.F. Factory Outlet, Inc., 911, F.2d 107, 109
(8th Cir. 1990) (affirming grant of summary judgment to employer where attorney signed letter
but employee did not); Cannon v. SSM Health Care, No. 14-848, 2014 WL 3600405 at *5 (E.D.
Mo. July 22, 2014) (granting employer’s motion to dismiss claim, because request made and
signed by employee’s attorney did not meet statutory prerequisites and failed to trigger duty to
provide a Service Letter); Grasle v. Jenny Craig Weight Loss Ctrs., Inc., 167 F.R.D. 406, 412-

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Plaintiff also contends Casino One’s response to his Service Letter request did not fully comply
with the statute’s requirements, because Plaintiff has proof the stated reason for discharge is not
true. In light of the Court’s finding regarding the sufficiency of Plaintiff’s service letter requests,
it need not address this contention.
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413 (E.D. Mo. 1996) (acknowledging that an employer has no legal obligation to respond to
Service Letter request sent by attorney, but noting the defendant was ignoring the fact it had a
legal responsibility to respond to the plaintiff’s earlier request, which was sent by plaintiff
herself); Bartareau, 846 S.W.2d at 250 (recognizing statute was enacted to assure former
employee receives written notice of true nature of employment and termination, and requiring
employee’s signature on Service Letter request).
The circumstances of the instant case, however, add a different dimension to the Court’s
compliance inquiry, because the September 6, 2013 Service Letter Request, although apparently
sent by Plaintiff’s attorney, was signed by both Plaintiff’s attorney and Plaintiff himself. It is not
disputed that Plaintiff’s September 6, 2013 request otherwise meets the statutory prerequisites.
The legal question becomes then, whether a letter, signed by an attorney and the employee, but
sent by the attorney on an employee’s behalf, materially complies with the purpose and spirit of
Missouri’s Service Letter Statute, and whether any technical deficiency causes hardship or
prejudice to the employer. Defendant states the September 6, 2013 letter was mailed from the
law office of Plaintiff’s attorney, and argues “the statute requires the former employee to
personally mail his or her service letter request to the former employer[,]” and contends that a
request by counsel is ineffective [ECF Nos. 23 at 1; 28 at 4]. The Court finds the analysis and
reasoning of the two following court decisions, one by a Missouri state appellate court, and one
by a federal magistrate court in this district, most helpful in resolving its inquiry.
The Bartareau Court considered an employee’s appeal from the entry of summary
judgment in his action seeking damages for his employer’s failure to provide him a Service
Letter. Bartareau, 846 S.W.2d at 249. The trial court had granted the employer summary
judgment on the basis that the employee’s Service Letter request failed to comply with §

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290.140, because the letter was not sent by certified mail and was not signed by the employee.
Id. Upon review, the Missouri Court of Appeals held that a request for a service letter, sent by
regular mail and made by an employee’s attorney, failed comply with § 290.140, and did not
trigger any duty by the employer to furnish a service letter. Id. The appellate court examined the
wording of the statute to determine compliance, taking its words and phrases “in their plain or
ordinary and usual sense.” Id. In its legislative intent analysis, the court found the term
“employee” to be plain and clear to individuals of ordinary intelligence, and, as used in the
statute, did not include attorneys of employees. Id. Stating it would “look beyond the plain and
ordinary meaning of the statute only if the meaning would otherwise lead to an illogical result
which would defeat the purpose of the legislation[,]”the court concluded strict adherence to its
plain language would not defeat the statute’s purpose. Id. at 250. The court noted § 290.140 was
enacted to ensure former employees received written notice of the true nature, character, and
duration of their employment, and the true reasons they were terminated. Id. The court then
determined, in accordance with this identified purpose, that “[b]y requiring an employee’s
signature on a request for service letter, both the employee and employer are assured that an
employee’s private employment information is not given to a third party without the employee’s
knowledge or permission.” Id.
A federal court in this district also considered the intention of Missouri’s Service Letter
Statute to determine whether an employee’s request was sufficient to give rise to a duty by his
employer to furnish a service letter in Davis v. Bemiston-Carondelet Corp., No. 05-941, 2005
WL 2452540 (E.D. Mo. Oct. 4, 2005). The employer contended the employee’s Service Letter
Statute claim should be dismissed, because the employee did not specifically refer to the
appropriate statutory authority and failed to address the letter to “the superintendent, manager or

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registered agent” of the corporation. Id. at *10. The employee’s request incorrectly cited the
statutory section as “209.140,” and was addressed to the corporation’s “Human Resources.” Id.
at *13. In the court’s analysis, it noted Missouri enacted the Service Letter Statute to protect
certain economic and social interests, and to benefit corporate employees. Id. at *12. The court
also recognized the statutory requirements were intended to put the employer on notice that the
employee was making a request under § 290.140, and that failure to respond could subject the
employer to liability. Id. at *13. The court found addressing the request to the human resources
department was sufficient, as it directed the request to a department that “would likely have the
requisite authority and control over personnel matters to be included under the intent of the
statute.” Id. at **13-14. The court further found the service letter request, while technically
deficient due to the typographical error, materially complied with the spirit and purpose of §
290.140, and worked no hardship or prejudice to the defendant. Id. at *13.
Missouri’s Service Letter Statute was enacted to protect the public, and for the benefit of
corporate employees. Cheek v. Prudential Ins. Co., 192 S.W. 387, 390-91 (Mo. 1916).
Although not all requests from former employees are sufficient to trigger employer liability
under § 290.140, substantial compliance with the statutory requirements can entitle an employee
to a service letter, and to a cause of action should the corporation fail to respond in a timely
fashion and in conformance with the statute. See Davis, 2005 WL 2452540 at *13.
The statute’s requirements are meant to further its purpose; that is, to assure a former
employee receives a written statement of the true nature, character, and duration of his
employment, and the true reasons for his termination. Id.at ** 12-13. The signatory requirement
assures the employee’s private information is not shared with a third party without the
employee’s knowledge or permission; and the certified mail requirement provides the employee

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with a record of the requests delivery and the employer with a fixed date from which it must
proceed in a timely fashion. See id.; Bartareau, 846 S.W.2d at 249-50. Contrary to Casino
One’s contention, § 290.140 does not require a former employee to personally mail his or her
service letter request to the former employer. The Court finds that Plaintiff’s September 6, 2013
Service Letter Request substantially and materially complied with § 290.140’s statutory
requirements, and gave Casino One adequate notice that Plaintiff was requesting a Service
Letter. Furthermore, Plaintiff’s signature was affixed to the request, assuring both Plaintiff and
Casino One that Plaintiff’s private employment information would not be given to a third party
without Plaintiff’s knowledge or permission. Because Casino One did not timely furnish
Plaintiff a Service Letter upon receipt of Plaintiff’s September 6, 2013 request, the Court will
deny Casino One’s Motion for Summary Judgment.
Accordingly,
IT IS HEREBY ORDERED that “Defendant’s Motion for Summary Judgment” [ECF
No. 22] is DENIED.
So Ordered this 14th day of August 2014.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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