Cannon v. SSM Health Care St. Louis
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the defendant's motion to dismiss counts V, VI, and VII of plaintiff's petition [#9] is GRANTED. IT IS FURTHER ORDERED that the defendants motion to strike plaintiffs memorandum of law in opposition to defendant's motion to dismiss [#21] is hereby DENIED. Signed by District Judge Catherine D. Perry on July 22, 2014. (MCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SSM HEALTH CARE,
Case No. 4:14CV848 CDP
MEMORANDUM AND ORDER
In November 2012, Plaintiff Carla Cannon was employed by SSM Health
Care1 when she applied and was approved for intermittent leave under the Family
Medical Leave Act because of complications from gallbladder surgery. In
February 2013, Cannon was discharged from her employment with the defendant.
Cannon has now filed this lawsuit asserting a total of seven claims against SSM
This action is before me now on SSM Health‘s partial motion to dismiss
three of Cannon‘s seven claims as well as its motion to strike Cannon‘s response in
opposition to the motion to dismiss. SSM Health has moved to dismiss Cannon‘s
claims for wrongful discharge; violation of Missouri‘s service letter statute, Mo.
Plaintiff has named ―SSM Health Care‖ as the defendant in this matter, but ―SSM Health Care
St. Louis‖ claims it is the proper defendant and was improperly named in the Complaint.
Rev. Stat. § 290.140; and defamation. Because I find that Cannon has failed to
allege the correct elements of a wrongful discharge claim, failed to properly
request a service letter under Mo. Rev. Stat. § 290.140, and stated insufficient facts
in support of a claim for defamation, I will grant the defendant‘s partial motion to
dismiss. Because I find that the delay in Cannon‘s response was not intentional
and caused no prejudice to SSM Health, I will deny the motion to strike.
SSM Health’s Motion to Strike
I will first address defendant‘s motion to strike plaintiff‘s response in
opposition to the motion to dismiss. Plaintiff Cannon filed her response in
opposition to the defendant‘s motion to dismiss nearly three weeks late, without
receiving an extension or leave from this Court. In its motion to strike, SSM
Health asks the court to strike plaintiff Cannon‘s opposition for failure to adhere to
the Court‘s procedural rules and grant SSM Health‘s motion to dismiss as
unopposed. Cannon responds that the motion to strike should be denied because
her delay in filing was the result of excusable neglect in that she believed she was
filing in a timely manner.
Because dismissal with prejudice is an extreme sanction, it is only to be used
in cases of willful disobedience of a court order or where a party exhibits a pattern
of intentional delay. Hutchins v. A.G. Edwards & Sons, Inc., 116 F.3d 1256, 1260
(8th Cir. 1997); see also SMA Irrevocable Trust v. R. Capital Advisors, LLC, No.
4:11CV00697 ERW, 2012 WL 5194332, at *4 (E.D. Mo. Oct 19, 2012) (granting a
motion to strike and for dismissal where there was ―ample evidence‖ that that
defendant‘s delay was deliberate). I find that Cannon‘s delay in this instance was
accidental and that she has not demonstrated any ongoing pattern of deliberate
delay. For this reason, and because I find no resulting prejudice to SSM Health, I
will deny SSM Health‘s motion to strike.
Motion to Dismiss Standard
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal
sufficiency of the complaint. When considering a 12(b)(6) motion, the court
assumes the factual allegations of a complaint are true and construes them in favor
of the plaintiff. Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).
Rule 8(a)(2), Fed. R. Civ. P., provides that a complaint must contain ―a short
and plain statement of the claim showing that the pleader is entitled to relief.‖ In
Bell Atlantic Corp. v. Twombly, the Supreme Court clarified that Rule 8(a)(2)
requires complaints to contain ―more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action.‖ 550 U.S. 544, 555 (2007); accord
Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). Specifically, to survive a motion
to dismiss, a complaint must contain enough factual allegations, accepted as true,
to state a claim for relief ―that is plausible on its face.‖ Twombly, 550 U.S. at 570.
The issue in considering such a motion is not whether the plaintiff will ultimately
prevail, but whether the plaintiff is entitled to present evidence in support of the
claim. See Neitzke, 490 U.S. at 327.
After undergoing gall bladder surgery in October, 2012, plaintiff Cannon
experienced post-operative complications including intermittent episodes of
abdominal pain, nausea and vomiting that impeded her ability to work. Because of
these complications, she was approved for intermittent FMLA leave by SSM
Health in November 2012.
On January 13, 2013, Cannon arrived at work feeling ill and asked to take
FMLA leave for the day but was told that if she left she would be terminated.
Because she was particularly fatigued, Cannon closed her eyes for a few seconds at
the nurses‘ station during her shift but did not fall asleep. On February 7, 2013,
Cannon was discharged by SSM Health. In a letter to Cannon regarding her
discharge, Cannon‘s supervisor seemed to indicate that Cannon was being
discharged for a combination of sleeping on the job, wearing a blanket while at
work, and failing to wear a department tracker.
After her discharge, Cannon spoke with an attorney (not her counsel in this
action) regarding her termination. In a letter dated March 6, 2013, and addressed
The facts contained herein are taken from the allegations set out in Cannon‘s complaint. They
are considered true for the purpose of this Memorandum and Order. See Ashcroft v. Iqbal, 556
U.S. 662, 678–79 (2009); Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).
to SSM Health Care, Cannon‘s attorney asked that SSM Health provide a letter,
under Mo. Rev. Stat. § 290.140, stating the type of work Cannon performed for
SSM Health, the dates of her employment, and the cause of her discharge. The
letter indicated that the attorney had been retained to represent Cannon with
respect to her termination. The letter was signed by the attorney but not by
Cannon, and it asked that SSM Health send the ―termination letter,‖ and any other
communications regarding Cannon, directly to the attorney. As of the date that
Cannon‘s complaint in this matter was filed, neither Cannon nor her attorney had
received a response to this letter.
Finally, since her discharge, Cannon has been scheduled for multiple job
interviews, prior to which each interviewing company has called and told her,
allegedly falsely, that the position she was supposed to interview for is no longer
available. It is Cannon‘s belief that in these instances, SSM Health or its agents
communicated with Cannon‘s prospective employers and made false statements
about her that caused her not to be hired.
Cannon has asserted seven claims against SSM Health. They are: Count I –
Violation of Family Medical Leave Act (Interference); Count II – Violation of
Family Medical Leave Act (Retaliation); Count III – Violation of the Americans
with Disabilities Act; Count IV – Violation of the Human Rights Act; Count V –
Wrongful Discharge in Violation of Public Policy; Count VI – Violation of RSMO
§ 290.140; and Count VII – Defamation. SSM Health‘s motion seeks dismissal of
Counts V, VI and VII.
Count V – Wrongful Discharge in Violation of Public Policy
SSM Health argues that Cannon‘s wrongful discharge claim must be
dismissed on two grounds. First, SSM Health asserts that Cannon has failed to
properly allege the legal elements or plead sufficient supporting facts for a
wrongful discharge claim. SSM Health avers that under Missouri law, in order to
state a claim for wrongful discharge, Cannon was required to allege that she was
discharged either (1) because she refused to violate the law or any well established
and clear mandate of public policy, or (2) because she reported to her superiors or
to public authorities serious misconduct that constitutes violations of the law or of
well-established and clearly mandated public policy. Because Cannon alleged
neither of these two scenarios or any facts that would support these elements, SSM
Health argues Cannon‘s wrongful discharge claim should be dismissed.
Second, SSM Health asserts that where there is a statutory remedy for a
claim, Missouri courts do not recognize a common law wrongful discharge claim
based on the same unlawful conduct. Therefore, because statutory remedies exist
under the FMLA, ADA, and MHRA to address Cannon‘s improper termination,
SSM Health claims Missouri law does not recognize her common law claim for
In response to SSM Health‘s first point, Cannon argues that the defendant
has inaccurately stated the law as to wrongful discharge. She claims that Missouri
courts also recognize a third scenario in which an at-will employee is permitted to
bring a wrongful discharge claim—where an employee has been fired for asserting
a legal right. Here, Cannon argues she was fired because she ―assert[ed] her legal
right to exercise her duly authorized leave under the [FMLA], her legal rights
under the [MHRA], and her right to reasonable accommodations under the
[ADA].‖ As to SSM Health‘s second point, Cannon claims that statutory remedies
do not preempt a wrongful discharge claim unless the statutory remedies ―fully
comprehend and envelop those remedies available under the Missouri public
policy exception.‖ Cannon avers that because SSM Health has failed to show that
the statutory remedies available under the FMLA, ADA, and MHRA comprehend
and envelop the remedies available to Cannon under a common law wrongful
discharge claim, her claim should not be dismissed.
For at-will employees in Missouri, a common law wrongful discharge claim
is considered the ―public-policy exception to the at-will employment doctrine.‖
Fleshner v. Pepose Vision Institute, P.C., 304 S.W.3d 81, 92 (Mo. 2010) (en banc).
Generally, an at-will employee may be discharged at any time, with or without
cause. Id. Under the public policy exception, however, 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.‖
Fleshner, 304 S.W.3d at 92; see also Margiotta v. Christian Hosp. Northeast
Northwest, 315 S.W.3d 342, 346 (Mo. 2010) (en banc), Frevert v. Ford Motor Co.,
614 F.3d 466, 471 (8th Cir. 2010), and Mo. Approved Jury Instr. (Civil) 38.03 n. 1
When an employee is terminated under either of these circumstances,
Missouri courts have held that she has a cause of action in tort for wrongful
discharge based on the public-policy exception. See Fleshner, 304 S.W.3d at 92.
Therefore, in order to properly plead a claim of wrongful discharge in violation of
public policy under Missouri law, a plaintiff must allege 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; and (3) there is a causal connection between her
discharge and her refusal or report. See Keveney v. Mo. Military Acad., 304
S.W.3d 98, 103 (Mo. 2010) and Custom Hardware Eng’g & Consulting, Inc. v.
Dowell, No. 4:10cv653 ERW, 2011 WL 1743662, at *9 (E.D. Mo. May 5, 2011).
Cannon‘s argument that Missouri recognizes a third scenario in which a
wrongful discharge cause of action arises is not well taken. In support of her
argument, Cannon cites to Callantine v. Staff Builders, Inc., 271 F.3d 1124 (8th Cir.
2001). In Callantine, the 8th Circuit determined that the public policy exception
had been applied in cases involving employees fired for (a) declining to violate a
statute, (b) reporting violations of the law by employers of fellow employees, or (c)
asserting a legal right. Id. at 1130. Although Cannon is correct as to Callantine‘s
holding, that case was decided nine years before the Missouri Supreme Court in
Fleshner first expressly recognized and delineated the contours of a common law
wrongful discharge claim based on the public policy exception. See Fleshner, 304
S.W.3d at 91-92 (noting that the Missouri Supreme Court had never before
explicitly acknowledged the existence of a public policy exception). The law as
stated in Fleshner is the current law for the state of Missouri, and it is Fleshner that
I must follow here.
In light of the foregoing, Cannon has failed to state a claim for wrongful
discharge because at no point in her complaint does she assert that she was
terminated for refusing to perform an illegal act or reporting wrongdoing or
violations of law to superiors or third parties. In fact, in Count V, Cannon
explicitly claims that SSM Health terminated her ―for having had a disability for
which she sought and was approved for family medical leave.‖
Because SSM Health‘s first ground for dismissal of Count V is sufficient, I
need not address the validity of its second ground. SSM Health‘s motion to
dismiss Count V is granted and Cannon‘s ―Count V – Wrongful Discharge in
Violation of Public Policy‖ is dismissed.
Count VI – Violation of Mo. Rev. Stat. § 290.140
SSM Health next asserts that Cannon‘s Count VI, alleging a violation of
Missouri‘s ―service letter statute,‖ found at Mo. Rev. Stat. § 290.140, should be
dismissed because Cannon failed to meet the statutory prerequisites entitling her to
a letter. Specifically, SSM Health argues the statute requires a service letter
request be made by an employee, and Cannon‘s request was invalid because it was
made and signed by Cannon‘s attorney. As a result, SSM Health claims it had no
legal duty to provide a service letter.
Mo. Rev. Stat. § 290.140 provides:
Whenever any employee of any corporation doing business in this state and which
employs seven or more employees, who shall have been in the service of said
corporation for a period of at least ninety days, shall be discharged or voluntarily
quit the service of such corporation and who thereafter within a reasonable period
of time, but not later than one year following the date the employee was discharged
or voluntarily quit, requests 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 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.
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Mo. Rev. Stat. § 290.140.1 (emphasis added). 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 provide one. Labrier v. Anheuser Ford, 621 S.W.2d 51, 56
(Mo. 1981) (en banc). The Missouri appellate court, the 8th Circuit and this Court
have found that the term ―employee,‖ as used in this statute, does not include
attorneys of employees. See Bartareau v. Executive Business Products, Inc., 846
S.W.2d 248, 249 (Mo. Ct. App. 1993) (―a request for a service letter made by an
attorney for an employee does not comply with § 290.140 and does not give rise to
any duty by the employer to furnish a service letter‖); Zeman v. V.F. Factory
Outlet, Inc., 911 F.2d 107, 109 (8th Cir. 1990) (upholding district court‘s
determination that a letter signed only by the employee‘s attorney and not by the
employee is not a valid request for a service letter); and Grasle v. Jenny Craig
Weight Loss Centres, 167 F.R.D. 406, 413 (E.D. Mo. 1996) (―[d]efendant correctly
argues that an employer has no legal obligation to respond to a service letter
request sent by an attorney‖).
Cannon‘s service letter request is attached to her Petition as Exhibit D.
There is no dispute that the request was neither sent from nor signed by Cannon
herself. As a result, she failed to meet the statutory prerequisites entitling her to a
service letter and SSM had no legal duty to provide such a letter. Therefore, I will
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grant SSM Health‘s motion to dismiss Cannon‘s ―Count VI – Violation of RSMO
Count VII – Defamation
The last question before me is whether Cannon has provided sufficient facts
to state a plausible claim for defamation in Count VII of her petition. ―To survive
a motion to dismiss, a claim must be facially plausible, meaning that the ‗factual
content ... allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.‘‖ Cole v. Homier Dist. Co., Inc., 599 F.3d 856,
861 (8th Cir. 2010) (quoting Iqbal, 556 U.S. at 678). Where a court can infer from
the factual allegations in a complaint no more than a ―mere possibility of
misconduct,‖ the complaint must be dismissed. Id.
The elements of defamation under Missouri law are 1) publication, 2) of a
defamatory statement, 3) that identifies the plaintiff, 4) is false, 5) is published
with the requisite degree of fault, and 6) damages the plaintiff's reputation. Fisher
v. Wal–Mart Stores, Inc., 619 F.3d. 811, 820 (8th Cir.2010), State ex rel. BP
Products North America Inc. v. Ross, 163 S.W.3d 922, 929 (Mo. 2005) (en banc).
Although Cannon‘s complaint roughly asserts these elements, it alleges no
substantive facts to support them.
―Upon information and belief,‖ Cannon claims:
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―[d]efendant or its agents communicated with other prospective
employers about Plaintiff;‖
SSM Health ―made false statements about Plaintiff to prospective
the statements made by SSM Health were derogatory;
the statements made by SSM Health were made ―maliciously with
intent to cause Plaintiff not to be hired;‖ and
the statements ―caused Plaintiff not to be hired.‖
Not only does Cannon allege nothing regarding the actual substance of SSM
Health‘s purported statements (other than that they were false and derogatory), but
she also fails to assert any facts tending to show in what form the statements were
made (orally or in writing), when they were made, or to whom they were
communicated. Such a complete lack of any facts to support Cannon‘s defamation
claim allows me to infer no more than a ―mere possibility of misconduct‖ by SSM
Health, see Cole, 599 F.3d at 861, and fails to meet the federal pleading standard.
See King v. Union Station Holdings, LLC, No. 4:12cv696 SNLJ, 2012 WL
5351598, at *4 (E.D. Mo. Oct. 30, 2012) (holding that plaintiff‘s defamation claim
failed to meet federal pleading standards where she alleged defendant‘s statements
were false and malicious but failed to provide supporting facts).
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IT IS HEREBY ORDERED that the defendant‘s motion to dismiss counts
V, VI, and VII of plaintiff‘s petition [#9] is GRANTED.
IT IS FURTHER ORDERED that the defendant‘s motion to strike
plaintiff‘s memorandum of law in opposition to defendant‘s motion to dismiss
[#21] is hereby DENIED.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 22nd day of July, 2014.
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