Moss v. City of Arnold, Missouri et al

Filing 30

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that the motion of defendants to dismiss (Doc. 12 ) is sustained as to Counts I, III, and IV. These counts are dismissed with leave to amend not later than March 13, 2015. The motion to dismiss is de nied as to Count II. IT IS FURTHER ORDERED that the motion of defendants to dismiss (Doc. 3 ) is denied as moot. It was originally filed in the Missouri Circuit Court and was replaced by the motion to dismiss ruled above (Doc. 12).. Signed by Magistrate Judge David D. Noce on 2/13/15. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

REBECCA MOSS,
Plaintiff,
v.
CITY OF ARNOLD, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 4:14 CV 1256 DDN

MEMORANDUM AND ORDER
This action is before the court on the motion of defendant City of Arnold to
dismiss Counts I and II of plaintiff’s claims against it and her Counts III and IV claims
against defendant Matthew Unrein in his official capacity as the City of Arnold’s City
Administrator, all for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). (Doc. 12.) 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.
24.) The court heard oral arguments on January 21, 2015.

I. BACKGROUND
Plaintiff Rebecca Moss commenced this action in the Circuit Court of Jefferson
County, Missouri. Plaintiff subsequently filed a first and then a second amended petition
in that court. Defendants removed this action to this court pursuant to 28 U.S.C. § 1331
for federal question jurisdiction and supplemental jurisdiction pursuant to 28 U.S.C. §
1367(a).
According to plaintiff’s factual allegations in her second amended petition, the
following occurred. Plaintiff was hired as a secretary for the Parks and Recreation
division of the City of Arnold on August 29, 2005. (Doc. 1-4 at ¶6.) Defendant Matthew

Unrein, Arnold’s City Administrator, terminated plaintiff on September 8, 2010 and gave
no specific reason for the termination. (Id. at ¶¶ 7, 8.) Plaintiff filed a written appeal
request to the Personnel Board of Review on September 14, 2014. (Id. at ¶ 11.) This
comports with Arnold’s Personnel Policy Manual which allows for an appeal of a
dismissal if a request is made within 10 calendar days after the effective date of
dismissal. (Id. at ¶ 9.) Additionally, the City of Arnold appeals process provides that the
appeals process and all related documents will be confidential. (Id. at ¶¶ 10, 33.)
Plaintiff alleges that between March 7, 2011 and January 23, 2012, she contacted
Arnold’s City Attorney, Robert K. Sweeney, several times about scheduling a hearing
before the City's Personnel Review Board. Mr. Sweeney acknowledged that her appeal
request was timely (id. at ¶¶ 12-18), but did not otherwise respond to her inquiries until
plaintiff received a letter from Mr. Sweeney on July 20, 2012. In the letter he stated that
the City of Arnold had scheduled a Personnel Review Board hearing in late 2011, but the
City had "failed to pull it off;" he offered to hold a hearing, if she wanted one. (Id. at ¶¶
19, 21.) Plaintiff wrote Mr. Sweeney on July 23, 2012, requesting a hearing. (Id. ¶ 22.)
To date, no hearing has been scheduled. (Id. at ¶ 23.)
Plaintiff alleges that in August 2010, the Arnold City Police Department
conducted a criminal investigation of plaintiff regarding an accusation that she stole
services from the City of Arnold in the alleged amount of approximately $600.00..
Charges have never been filed against her and the statute of limitations has since passed.
(Id. at ¶¶ 24-32.)
Plaintiff alleges that defendant Matt Unrein, the City Administrator, published and
disseminated a statement that indicated plaintiff was terminated for stealing services and
concealing the theft. (Id. at ¶ 33.) Defendant William Moritz, while an acting member of
Arnold’s City Council, published and disseminated a statement that indicated plaintiff
was terminated for stealing services. (Id. at ¶ 34.) The City of Arnold published to the
media an investigative report disclosing confidential information regarding plaintiff’s
termination; specifically, it said plaintiff was terminated for stealing services. (Id. at ¶¶
35-36.)
-2 

Upon these alleged facts, plaintiff alleges in Count I that the defendant City of
Arnold violated her right to due process under the 14th Amendment to the United States
Constitution and 42 U.S.C. § 1983, as well as Article 1, Section 10 of the Missouri
Constitution. More specifically, she alleges her rights to due process were violated
because she was not given notice of a hearing, she was not given a hearing, the Board of
Review failed to issue a decision, and the information about the matter was not kept
confidential. (Id. at ¶ 43.)
In Count II, plaintiff alleges the defendant City of Arnold breached its contract
with her by failing to provide her a Board of Review Hearing as set out in Arnold’s
Personnel Policy Manual. (Id. at ¶¶ 45-51.)
In Count III, plaintiff alleges that defendant Unrein, in his official and individual
capacities, invaded her privacy by disclosing private facts, in violation of the statement in
his September 8, 2010 letter to her that "Your appeal, and all documents relating to it,
will be considered by the Personnel Board of Review, its findings and a written decision
shall be promptly filed in the office of the City Administrator. All such records shall be
held confidential." (Id. at ¶¶ 53-58.)
In Count IV, plaintiff alleges that defendant Unrein, in his official and individual
capacities, slandered her, by stating in December 2012 and January 2013 that she had
been terminated for stealing services and attempting to conceal the theft. (Id. at ¶¶ 6271.)
In Count V, plaintiff alleges that defendant Moritz, in his official and individual
capacities, invaded her privacy by disclosing private facts, in violation of the City of
Arnold Personnel Policy Manual statement that all related records would be kept
confidential.. (Id. ¶¶ 75-79.)
In Count VI, plaintiff alleges that defendant Moritz, in his official and individual
capacities, libeled her. She alleges that in March 2013 in a written blog viewable by the
public, published a statement that she, identified as Ken Moss' sister, was discovered to
have stolen services and that she was reportedly fired. (Id. at ¶¶ 83-89.)

-3 

In Count VII, plaintiff alleges the defendant City violated her right to liberty under
the 14th Amendment to the U.S. Constitution and 42 U.S.C. § 1983, as well as Article 1,
Section10 of the Missouri Constitution, by failing to provide her notice of a Board of
Review hearing to clear her name, failing to provide such a hearing, failing to issue a
written decision by the Board of Review, and failing to keep the related information
confidential.. (Id. at ¶ 99.)
Plaintiff seeks compensatory damages in excess of $25,000, punitive damages,
court costs, and reasonable attorney’s fees. (Id. at ¶¶ 5-9, 11-12.)

II. MOTION TO DISMISS
Defendant City of Arnold moves to dismiss Counts I and II, arguing that plaintiff
fails to state a claim. The City also moves to dismiss Counts III and IV against defendant
Matthew Unrein in his official capacity for failure to state a claim. Plaintiff's other claims
are not challenged

III. MOTION TO DISMISS STANDARD
Defendant's motion to dismiss under F. R. Civ. P. 12(b)(6) challenges the legal
sufficiency of plaintiff's allegations. See Carton v. Gen. Motor Acceptance Corp., 611
F.3d 451, 454 (8th Cir. 2010). To survive a Rule 12(b)(6) motion to dismiss, the pleading
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. The pleading
must contain “factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Factual allegations made by the plaintiff are accepted as true and viewed in the
light most favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007).

-4 

IV. DISCUSSION
Plaintiff seeks relief for the manner in which she was terminated from the
employment of the City of Arnold. Plaintiff alleges that her termination violated her
federal and Missouri constitutional rights to due process and liberty; was a breach of
contract; and, amounted to disclosure of private facts, slander, and libel.

Count I – Deprivation of Due Process by City of Arnold
Defendants argue that plaintiff fails to state a claim regarding the violation of her
due process rights under the federal and Missouri constitutions. (Doc. 13 at 2-4.) Plaintiff
argues that because the City of Arnold’s Personnel Policy Manual provides for a hearing
with a written record after a dismissal, the City of Arnold has created a property right in
that process. (Doc. 7 at ¶¶ 1-10.)
A governmental entity cannot deprive a person of life, liberty, or property without
due process, normally notice and opportunity to be heard. U.S. Const. amend. XIV; Mo.
Const. art. I, § 10. Congress enacted 42 U.S.C. § 1983 to enforce the federal right to due
process. The Missouri Constitution does not have a similar enforcement statute and
whether or not “such a cause of action should be permitted is best left to the discretion of
the General Assembly.” Moody v. Hicks, 956 S.W.3d 398, 402 (Mo. Ct. App. 1997); see
also Smith v. Heimer, 35 Fed. App’x 293, 294 n.1 (8th Cir. 2002) (per curiam). "No
Missouri precedent exists permitting suits for monetary damages by private individuals
resulting from violations of the Missouri Constitution.” Collins-Camden P’ship v. Cnty.
of Jefferson, 425 S.W.3d 210, 214 (Mo. Ct. App. 2014).
In order to recover damages for a federal constitutional violation under § 1983, the
plaintiff must prove “(1) violation of a constitutional right, (2) committed by a state actor,
(3) who acted with the requisite culpability and causation to violate the constitutional
right.” McDonald v. City of Saint Paul, 679 F.3d 698, 704 (8th Cir. 2012). Analysis
always begins with an examination of the interest at issue. Id. “Property interests are not
created by the Constitution. Rather they are created and their dimensions are defined by
-5 

existing rules or understandings that stem from an independent source such as state law—
rules or understandings that secure certain benefits and that support claims of entitlement
to those benefits.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972).
Procedures alone do not create a property interest. “'Property' cannot be defined by the
procedures provided for its deprivation any more than can life or liberty.” Cleveland Bd.
of Educ. v. Loudermill, 470 U.S. 532, 541 (1985).
Generally, employees in Missouri are at-will employees, terminable at any time
for any reason or no reason, unless there is a valid employment contract. Crews v.
Monarch Fire Prot. Dist., 771 F.3d 1085, 1090-91(8th Cir. 2014) (citing Johnson v.
McDonnell Douglas Corp., 745 S.W.2d 661, 662 (Mo. 1988) (en banc)).

Post-

termination grievance procedures do not create a constitutionally protected property
interest in the employment. Allen v. City of Pocahontas, Ark., 340 F.3d 551, 555 (8th
Cir. 2003).
The “granting of a right to appeal does not of itself change an employee’s status as
an employee at will.” Bowen v. Mo. Dep’t of Conservation, 46 S.W.3d 1, 8-9 (Mo. Ct.
App. 2001) (quoting Daniels v. Bd. Of Curators of Lincoln Univ., 51 S.W.3d 1, 8-9 (Mo.
Ct. App. W.D. 2001). The procedures must place substantive restrictions on the ability to
discharge an employee. See Skeets v. Johnson, 816 F.2d 1213, 1217 (8th Cir. 1983) (en
banc) (Bowman, J., concurring). Without additional qualifying language regarding how
an employee may be terminated, post-termination procedures alone will not suffice to
create a property interest. Daniels v Bd. of Curators of Lincoln Univ., 51 S.W.3d at 9-10
(language in employee manual stating “rules concerning dismissal are intended with good
judgment and fair treatment” changed the conditions under which an at-will employee
could be terminated and created a property right); Cole v. Conservation Com’n, 884
S.W.2d 18, 20 (Mo. Ct. App. 1994) (plaintiff an at-will employee with no property rights
because employee manual contains nothing about requiring just cause to terminate an
employee); Moon v. City of Sedalia, 723 S.W.2d 597 (Mo. Ct. App. 1987) (employee
was an at-will employee with no property right because the Personnel Policies and
Procedures Manual never limited conditions under which plaintiff could be fired).
-6 

Plaintiff has not alleged facts which indicate she was more than an at-will
employee of the City of Arnold. The language of the Personnel Policy Manual is not
alleged by plaintiff to contain language that limits or qualifies the City of Arnold’s ability
to terminate plaintiff. At-will employees in Missouri do not have a property interest in
continued employment. Crews 771 F.3d at 1090. The facts alleged clearly describe this
hearing as occurring post-termination: “. . . any employee who is dismissed in such a
manner as to suffer a loss of compensation may appeal that action in writing within 10
calendar days after the effective date of the action.” (Doc. 1-1 at ¶ 9) (emphasis added). A
post-termination grievance procedure does not create a constitutionally protected
property interest in continued employment. Allen, 340 F.3d at 555; see Loudermill, 470
U.S. at 541 (procedures do not create the property right).
Plaintiff has alleged no claim under 42 U.S.C. § 1983 or the 14th Amendment
upon which this court can grant relief, because as an at-will employee there is no property
interest in plaintiff’s continued employment. Additionally, because there is no
enforcement statute for Article I, Section 10 of the Missouri Constitution, there can be no
cause of action for a due process violation under the Missouri Constitution. USCOC of
Greater Mo. V. Cnty. of Franklin, Mo., No. 4:07 CV 1426 JCH, 2008 WL 2065060, at *3
(E.D. Mo. May 14, 2008).
Accordingly, Count I is dismissed without prejudice.

Count II – Breach of Contract by City of Arnold
Defendants argue that plaintiff fails to state a claim, because there was no contract
created between plaintiff and the City of Arnold regarding a post-termination hearing
before the Board of Review. (Doc. 13 at 5.) Plaintiff alleges that when she timely
requested a Board of Review hearing a contract requiring the City of Arnold to provide
her with such a hearing was created. (Doc. 7 at ¶¶ 12-15.)
Under Missouri law employee handbooks are generally not contracts because they
lack the essential elements of a contract: offer, acceptance, and bargained for
consideration. McIntosh v. Tenet Health Systems Hosps., Inc., 48 S.W.3d 85, 89 (Mo. Ct.
-7 

App. 2001). Missouri Courts have found when an employee handbook’s terms are
general in nature and open to interpretation they are not enforceable as a contract. See
e.g., Johnson v. McDonnell Douglas Corp, 745 S.W.2d at 662. However, when terms are
separately agreed to in a contract then those terms become an enforceable contract.
Patterson v. Tenet Healthcare, Inc., 113 F.3d 832, 834-35 (8th Cir. 1997) (arbitration
agreement signed separately enforceable even for an at-will employment); Leatherberry
v. Village Green Management Co., No. 4:09 CV 2101 MLM, 2010 WL 546871 (E.D.
Mo. Feb. 9, 2010) (same).
Plaintiff has not alleged that her employment status was changed from at-will to
something more permanent by the employee handbook. Rather her pleadings state that
the Personnel Policy Manual created a contract with a condition precedent because of the
manual’s specific and mandatory language—“. . . shall have the right to present relating
facts to the Board in a closed hearing.” (Doc. 7 at ¶¶ 12-15). This was followed by a letter
from Matthew Unrein on September 8, 2010 confirming her right to a hearing. (Id.)
Finally, another letter was sent on July 20, 2012 by City Attorney Robert Sweeney again
asking if she wanted a Personnel Board of Review hearing. (Id.) Plaintiff alleges she
accepted this offer, in writing on September 14, 2010. Therefore, plaintiff alleges that a
contract was formed after she met the condition precedent, that she request a hearing no
later than 10 days after the effective date of termination. This is enough to meet the Iqbal
standard of pleading facts that leads to the reasonable inference that the defendant is
liable for the conduct alleged.

Counts III & IV – Disclosure of Private Facts and Slander by Matthew Unrein
Defendant City of Arnold argues for a partial dismissal of Counts III and IV
because defendant Unrein, in his official capacity, is protected by the City’s sovereign
immunity. (Doc. 13 at 5-6.) Plaintiff argues that defendant Arnold purchased an
insurance policy, thereby waiving sovereign immunity. (Doc. 7 at ¶ 16.)
Both invasion of privacy and slander are recognized as torts under Missouri
common law. Fisher v. Wal-Mart Stores, Inc., 619 F.3d 811, 820 (8th Cir. 2010)
-8 

(slander); Balke v. Ream, 33 S.W.3d 589, 594 (Mo. Ct. App. 2000) (disclosure of private
facts as an invasion of privacy tort). Generally, municipalities are not liable for tort
claims arising from actions undertaken as a part of the municipality’s governmental
functions due to sovereign immunity. Kunzie v. City of Olivette, 184 S.W.3d 570 (Mo.
2006) (en banc). Sovereign immunity extends to municipal employees when they are
sued in their official capacity. Betts-Lucas v. Hartman, 87 S.W.3d 310, 327 (Mo. Ct.
App. 2002). Municipalities may specifically waive sovereign immunity in four ways:
(1) Where a plaintiff’s injury arises from a public employee’s negligent
operation of a motor vehicle in the course of his employment (section
537.600.1(1)); (2) where the injury is caused by the dangerous condition of
the municipality’s property (section 537.600.1(2)); (3) where the injury is
caused by the municipality performing a proprietary function as opposed to
a government function; and (4) to the extent the municipality has procured
insurance, thereby waiving sovereign immunity up to but not beyond the
policy limit and only for actions covered by the policy (section 537.610).
Brooks v. City of Sugar Creek, 340 S.W.3d 201, 206 n.2 (Mo. Ct. App. 2011)
(quoting Bennartz v. City of Columbia, 300 S.W.3d 251, 259 (Mo. Ct. App. W.D.
2009).
Missouri requires that if a waiver of sovereign immunity applies, the plaintiff must
plead the facts specific to that waiver as part of the plaintiff’s prima facie case. Townsend
v. E. Chem. Waste Sys., 234 S.W.3d 452, 470 (Mo. Ct. App. 2007). As this court has
previously held, sufficient facts of waiver cannot be pled merely in a response to a
motion to dismiss. Jacobson v. Metro. St. Louis Sewer Dist., No 4:14 CV 1333 AFG,
2014 WL 7027881, at *4 (E.D. Mo. Dec. 11, 2014) (dismissing claim with opportunity to
replead for failure to state facts specific to waiver of sovereign immunity) (quoting Epps
v. City of Pine Lawn, 353 F.3d 588, 594 (8th Cir. 2003)).
Plaintiff did not allege an exception to municipal sovereign immunity, nor has she
amended her pleadings in this court to include it. (Docs. 1-1, 1-3, 1-4.) The first
indication of a possible exception to sovereign immunity was made in plaintiff’s response
to defendant’s motion to dismiss in the Circuit Court of Jefferson County. (Doc. 7 at ¶
16.) Therein plaintiff states that in response to her first set of interrogatories, defendant
-9 

admitted that Missouri Intergovernmental Risk Management has an interest in the
outcome of this litigation identifying the City of Arnold as the insured. (Id.) This policy
was also produced for plaintiff in response to plaintiff’s request for production of
documents #1. (Id.)
Counts III and IV as to Matthew Unrein in his official capacity are insufficient to
state a claim, because plaintiff has not pled an exception to sovereign immunity.

V. CONCLUSION
For the reasons stated above,
IT IS HEREBY ORDERED that the motion of defendants to dismiss (Doc. 12) is
sustained as to Counts I, III, and IV. These counts are dismissed with leave to amend not
later than March 13, 2015. The motion to dismiss is denied as to Count II.
IT IS FURTHER ORDERED that the motion of defendants to dismiss (Doc. 3)
is denied as moot. It was originally filed in the Missouri Circuit Court and was replaced
by the motion to dismiss ruled above (Doc. 12).

/S/ David D. Noce
u
UNITED STATES MAGISTRATE JUDGE
Signed on February 13, 2015.

-10