Francis v. Compass Group USA, Inc.
MEMORANDUM AND ORDER: Therefore, the Court grants Compass's 15 Motion to Dismiss Count 2 of the Complaint. The Court notes that Francis seeks leave to amend her complaint but has not complied with the undersigned's Judge's Requir ements regarding such motions. See Doc. 19. The Court accordingly denies the motion without prejudice and directs Francis to file a compliant motion no later than November 22, 2021. (Response to Court due by 11/22/2021.) Signed by District Judge Stephen R. Clark on 11/16/2021. (LNJ)
Case: 4:21-cv-00823-SRC Doc. #: 20 Filed: 11/16/21 Page: 1 of 11 PageID #: 104
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
COMPASS GROUP USA, INC.,
Case No. 4:21-cv-00823-SRC
Memorandum and Order
Christine Francis worked as a Campus Quality Assurance Manager for Compass, which
prepares and serves food at multiple hospital campuses, including the one where Francis worked.
In her four years on the job, Francis made repeated complaints about food-safety violations, and
she believes that these complaints led to Compass terminating her in 2021. Soon after, Francis
brought this suit, claiming that Compass wrongfully discharged her because of her complaints
about food safety, among other things, in violation of the Missouri Whistleblower’s Protection
Act (the Act) and the common law. Compass moved to dismiss Francis’s common-law claim as
preempted by the Act. Because the Court finds that the Act abrogates Francis’s common-law
claim, or alternatively, that the Act does not infringe on the Missouri constitutional right to a jury
trial, the Court dismisses Count 2.
The Court accepts Francis’s well-pleaded factual allegations as true for motion to dismiss
purposes. Christine Francis began working for Compass as Campus Quality Assurance Manager
in January 2017. Doc. 1-2 at ¶ 6. Francis claims that over the next few years she made repeated
complaints about food safety and documented instances of improper food safety protocol which
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resulted in the destruction of numerous batches of meat. See Doc. 1-2 at pp. 2–10. Francis
alleges that she reported violations of law and well-established public policy to her superiors at
Compass and claims that her reporting contributed to her employment termination in May 2021.
Id. at ¶¶ 73, 75–77.
Following her termination, Francis filed a Complaint 1 against her former employer in
state court. Count 1 of her Complaint asserts a claim for wrongful termination under the Act,
Mo. Rev. Stat. § 285.575, and Count 2 asserts a Missouri common-law claim for wrongful
termination in violation of public policy. Doc. 1-2 at pp. 8–11. Having removed the case to this
Court, Compass now moves to dismiss Count 2 of the Complaint for failure to state a claim upon
which relief can be granted, arguing that the Missouri legislature abrogated common-law
wrongful-termination claims in 2017 when it passed the Act. Doc. 15.
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to
dismiss a claim for “failure to state a claim upon which relief can be granted.” The notice
pleading standard of Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a plaintiff to
give “a short and plain statement showing that the pleader is entitled to relief . . . .” To meet this
standard and to survive a Rule 12(b)(6) motion to dismiss, “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, 556 U.S. 662, 678 (2009) (internal quotations and citation omitted). This requirement of
facial plausibility means the factual content of the plaintiff's allegations must “allow the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Park
Irmat Drug Corp. v. Express Scripts Holding Co., 911 F.3d 505, 512 (8th Cir. 2018) (quoting
A “petition” in Missouri state court serves as the analog of a federal “complaint.”
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Iqbal, 556 U.S. at 678). The Court must grant all reasonable inferences in favor of the
nonmoving party. Lustgraaf v. Behrens, 619 F.3d 867, 872–73 (8th Cir. 2010). Ordinarily, only
the facts alleged in the complaint are considered for purposes of a motion to dismiss; however,
materials attached to the complaint may also be considered in construing its sufficiency.
Reynolds v. Dormire, 636 F.3d 976, 979 (8th Cir. 2011).
When ruling on a motion to dismiss, a court “must liberally construe a complaint in favor
of the plaintiff . . . .” Huggins v. FedEx Ground Package Sys., Inc., 592 F.3d 853, 862 (8th Cir.
2010). However, if a claim fails to allege one of the elements necessary to recover on a legal
theory, the Court must dismiss that claim for failure to state a claim upon which relief can be
granted. Crest Constr. II, Inc. v. Doe, 660 F.3d 346, 355 (8th Cir. 2011). Threadbare recitals of
a cause of action, supported by mere conclusory statements, do not suffice. Iqbal, 556 U.S. at
678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although courts must accept all
factual allegations as true, they are not bound to take as true a legal conclusion couched as a
factual allegation. Twombly, 550 U.S. at 555 (internal quotations and citation omitted); Iqbal,
556 U.S. at 677–78.
When interpreting state law, this Court is “bound to apply the law of the state as
articulated by the state’s highest court.” Travelers Prop. Cas. Ins. Co. of Am. v. Nat'l Union Ins.
Co. of Pittsburg, Pa., 621 F.3d 697, 707 (8th Cir. 2010) (citing Baribeau v. City of Minneapolis,
596 F.3d 465, 475 (8th Cir. 2010)). Though not bound by intermediate state court decisions, if
“the state’s highest court has not spoken, our job is to predict how the state’s high court would
resolve the issue,” and the Court may consider intermediate courts’ decisions “to the extent they
contain sound reasoning.” Id. (citing Lancaster v. Am. & Foreign Ins. Co., 272 F.3d 1059, 1062
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(8th Cir. 2001)). Such decisions are often “the best evidence” of how the highest court would
In Count 2, Francis claims that after she reported violations of law and well-established
public policy to her superiors, Compass wrongfully terminated her, in violation of the commonlaw public-policy exception to the at-will employment doctrine. Doc. 1-2 at ¶¶ 73, 77. Compass
argues that the Act abrogates Francis’s common-law claim. Doc. 16 at p. 1. Francis responds
that the Act is unconstitutional because it interferes with the right to a trial by jury guaranteed by
the Missouri Constitution. Doc. 17 at p. 2. The Court agrees with Compass.
Read plainly, the Act abrogated common-law claims for wrongful
termination in violation of public policy.
In 2017—before Compass terminated Francis—the Missouri legislature revised portions
of the statutes relating to unlawful employment practices. One of these statutes, the Act, states in
This section is intended to codify the existing common law exceptions to the at-will
employment doctrine and to limit their future expansion by the courts. This section, in
addition to chapter 213 and chapter 287, shall provide the exclusive remedy for any and all
claims of unlawful employment practices.
Mo. Rev. Stat. § 285.575.3. Section 213.070.2 similarly states: “[t]his chapter, in addition to
chapter 285 and chapter 287, shall provide the exclusive remedy for any and all claims for injury
or damages arising out of an employment relationship.”
Compass argues that, read plainly, these three statutes—the Act (chapter 285), the
Missouri Human Rights Act (chapter 213), and the Missouri Workers’ Compensation Law
(chapter 287)—abrogate common-law claims like the one in this case. Doc. 16 at p. 3 (citing
Peters v. Wady Indus., Inc., 489 S.W.3d 784, 789 (Mo. 2016) (“If the intent of the legislature is
clear and unambiguous, by giving the language used in the statute its plain and ordinary
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meaning, then [this Court is] bound by that intent and cannot resort to any statutory construction
in interpreting the statute.”) (internal quotation omitted)); see also Abrogate, Black’s Law
Dictionary (11th ed. 2019) (defining “abrogate” as “to abolish (a law or custom) by formal or
authoritative action; to annul or repeal.”).
The Missouri Supreme Court has identified that “[t]he primary goal of statutory
interpretation is to give effect to legislative intent, which is most clearly evidenced by the plain
text of the statute.” State ex rel. Goldsworthy v. Kanatzar, 543 S.W.3d 582, 585 (Mo. 2018).
Courts must give undefined statutory words “their plain and ordinary meaning as found in the
dictionary.” Sun Aviation, Inc. v. L-3 Commc'ns Avionics Sys., Inc., 533 S.W.3d 720, 723 (Mo.
Here, the Court finds that the Missouri legislature abolished common-law wrongfultermination claims by providing that these three statutes serve as the “exclusive remedy for any
and all claims of unlawful employment practices.” Mo. Rev. Stat. § 285.575.3. The plain text of
the statute compels this conclusion. “Exclusive” means “single” or “sole.” Webster’s Third New
International Dictionary 793 (2002). “Remedy” means “the legal means to recover a right or to
prevent or obtain redress for a wrong.” Id. at 1920. Thus, these three statutes provide the sole
means to obtain redress for employment-related wrongs. Wrongful termination claims plainly
involve “unlawful employment practices,” Mo. Rev. Stat. § 285.575.3, and “aris[e] out of an
employment relationship,” Mo. Rev. Stat. § 213.070.2, and thus fall within the ambit of the
statutes. Additionally, “codify” means “to reduce to a code (as laws).” Webster’s Third New
International Dictionary 438 (2002). Thus, the legislature’s stated intent to “codify the existing
common law exceptions,” Mo. Rev. Stat. § 285.575.3, reinforces the conclusion that the statutes
“reduced to a code” the common law remedies relating to employment.
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Neither the Missouri Supreme Court nor the Missouri Court of Appeals has addressed
this question, though other judges on this Court have. The only two Missouri appellate cases the
Court found that mention the Act involved claims arising before the Act’s effective date. See
Jaeger v. Res. for Hum. Dev., Inc., 605 S.W.3d 586, 590 n.5 (Mo. Ct. App. 2020)
(acknowledging that “[e]ffective August 2017, a new ‘Whistleblower’s Protection Act,’ RSMo §
285.575, purports by its terms ‘to codify the existing common law exceptions to the at-will
employment doctrine and to limit their future expansion by the courts,’ and ‘in addition to
chapter 213 and chapter 287, [to] provide the exclusive remedy for any and all claims of
unlawful employment practices’”); Yerra v. Mercy Clinic Springfield Communities, 536 S.W.3d
348, 351 n.3 (Mo. Ct. App. 2017) (same).
In contrast, Judge Stephen N. Limbaugh, Jr. found that “[i]t is apparent that the [Act], the
Missouri Human Rights Act, and the Missouri Workers’ Compensation Law are the ‘exclusive
remedy for any and all claims of unlawful employment practices.’” Cooksey v. All. Bank, No.
1:20-cv-219-SNLJ, 2021 WL 2187911, at *4 (E.D. Mo. May 28, 2021) (quoting Mo. Rev. Stat. §
285.575.3) (dismissing common-law wrongful-discharge claim). Other judges on this Court
have similarly ruled. See Abts v. Mercy Health, 4:19-cv-02768-JCH, 2020 WL 2308413, at *5
(E.D. Mo. May 8, 2020), reconsideration denied, 4:19-cv-02768-JCH, 2020 WL 3469357 (E.D.
Mo. June 25, 2020) (“Count III [common-law wrongful-discharge claim] is precisely the sort of
claim explicitly abrogated by statute, and is therefore barred by Missouri law and must be
dismissed.”); Mucci v. St. Francois Cnty. Ambulance Dist., 4:19-cv-01868-NCC, 2019 WL
6170721, at *5 (E.D. Mo. Nov. 20, 2019) (dismissing common-law wrongful-discharge claim
because “the [Act] explicitly replaces the common law cause of action”); see also Huskey v.
Petsmart, Inc., No. 18-00813-CV-W-NKL, 2019 WL 122873, at *2 (W.D. Mo. Jan. 7, 2019)
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(“[I]n Missouri, damages arising from the employment relationship cannot be redressed except
through the specified statutes.”).
The Missouri legislature possesses the authority to abrogate common law
The plain language of the statutes makes clear that the legislature intended to abrogate
common-law employment-related claims—and Missouri law makes equally clear the authority of
the legislature to do so. Under Missouri law, “no act of the general assembly or law of this state
shall be held to be invalid, or limited in its scope or effect by the courts of this state, for the
reason that it is in derogation of, or in conflict with, the common law . . . .” Mo. Rev. Stat. §
Recently, in Ordinola v. Univ. Physician Assocs., 625 S.W.3d 445 (Mo. 2021), the
Missouri Supreme Court considered a constitutional challenge to Mo. Rev. Stat § 538.210, which
states in relevant part: “[a] statutory cause of action for damages against a health care provider
for personal injury or death arising out of the rendering of or failure to render health care
services is hereby created, replacing any such common law cause of action.” Upholding the
constitutionality of the statute, the court applied Sanders v. Ahmed, 364 S.W.3d 195 (Mo.
2012)—a Missouri Supreme Court case dealing with statutorily created causes of action—rather
than Watts v. Lester E. Cox Med. Centers, 376 S.W.3d 633 (Mo. 2012), in which that court
addressed common-law claims. Ordinola, 625 S.W.3d at 450–51. The court stated that “[i]t is
undisputed that the General Assembly possesses the authority to abolish common law causes of
action.” Id. at 450 (citing Kilmer v. Mun, 17 S.W.3d 545, 550 (Mo. 2000)).
Drawing on Ordinola, Compass argues that “[t]he same is true here – the legislature had
the authority to enact the [Act], replacing the common law cause of action, and doing so was
constitutional.” Doc. 18 at p. 4. For the reasons explained above, the Court agrees. And as a
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result, the Court finds that the Act abrogates the common-law wrongful-termination claim that
Francis alleges in Count 2 of her complaint.
The Act does not violate the right to a jury trial under the Missouri
Attempting to differentiate this case from Ordinola—decided after Francis filed her
complaint—Francis argues that because “[o]n its face, the [Act] states that it codifies the
common law exception, . . . the analysis here is more like Watts – which addressed common law
claims – than [Ordinola], which did not.” Doc. 17 at p. 5. Seemingly echoing language from the
dissent in Ordinola, Francis argues that the Act must be unconstitutional under Watts because it
interferes with the right under the Missouri Constitution to a trial by jury. Doc. 17 at pp. 5–11
(“The framers of statutes cannot abolish a common law claim, with its rights and remedies, and
simultaneously reinstate it in an altered form, without the rights and remedies, when the effect is
to deprive citizens of their right to trial by jury. They cannot, that is, do an end run around the
Missouri Constitution.”); see also Ordinola, 625 S.W.3d at 455 (Draper, J., dissenting)
(describing the Missouri legislature’s abolition of a common-law cause of action and
replacement with an identical statutory one as a “blatant end-run around the Missouri
Constitution”). But even if the Court assumes that Watts applies, the Court disagrees with
Francis regarding the Act’s constitutionality.
Generally, as the party challenging the constitutionality of the Act, Francis bears a heavy
burden to “clearly and undoubtedly” establish the Act’s unconstitutionality. See Rentschler v.
Nixon, 311 S.W.3d 783, 786 (Mo. 2010), as modified on denial of reh’g (May 11, 2010). “A
statute is presumed valid and will not be held unconstitutional unless it clearly contravenes a
constitutional provision.” Id.; see also Etling v. Westport Heating & Cooling Servs., 92 S.W.3d
771, 773 (Mo. 2003) (internal quotation omitted) (noting that “Missouri [s]tatutes are presumed
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to be constitutional, and the party attacking the constitutionality of a statute bears an extremely
Article I, § 22(a) of the Missouri Constitution establishes “[t]hat the right of trial by jury
as heretofore enjoyed shall remain inviolate.” As Francis properly emphasizes, courts should
“scrutinize with utmost care” any curtailment of the constitutional right to trial by jury. Doc.
17 at p. 2 (quoting State ex rel. M.D.K. v. Dolan, 968 S.W.2d 740, 746 n.4 (Mo. Ct. App. 1998)).
“Article I, section 22(a) is one of the fundamental guarantees of the Missouri Constitution . . . .”
Watts, 376 S.W.3d at 637.
The Watts court stated that “[t]he plain language of article I, section 22(a) requires
analysis of two propositions to determine if the [statute in question] violates the state
constitutional right to trial by jury.” Id. First, a court must identify whether the claim at issue “is
included ‘within the right of trial by jury as heretofore enjoyed.’” Id. at 637–38 (quoting Mo.
Const. art. I, § 22(a)). “The phrase ‘heretofore enjoyed’ means that ‘[c]itizens of Missouri are
entitled to a jury trial in all actions to which they would have been entitled to a jury when the
Missouri Constitution was adopted’ in 1820.” Id. at 638 (quoting State ex rel. Diehl v. O'Malley,
95 S.W.3d 82, 85 (Mo. 2003)). An affirmative answer to the first inquiry requires analysis of the
second: “determin[ing] whether the right to trial by jury ‘remain[s] inviolate.’” Id. (quoting Mo.
Const. art. I, § 22(a)) (noting that according to Webster’s Third New International Dictionary
1190 (1993), “[t]he plain meaning of the word ‘inviolate’ means ‘free from change or blemish,
pure or unbroken’”).
Here, Francis argues that “[t]he tort of wrongful discharge in violation of public policy is
deeply rooted in our law.” Doc. 17 at p. 3 (citing Boyle v. Vista Eyewear Inc., 700 S.W.2d 859
(Mo. Ct. App. 1985); Fleshner v. Pepose Vision Institute, 304 S.W.3d 81 (Mo. 2010)). The
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Court agrees in the sense that “public policy”—defined in Boyle as “that principle of law which
holds that no one can lawfully do that which tends to be injurious to the public or against the
public good”—“finds its sources” in Missouri law. See Boyle, 700 S.W.2d at 871. But
according to the Missouri Supreme Court, the proper question is whether a right to a jury trial
existed at common law in 1820 for wrongful discharge in violation of public policy. See Watts,
376 S.W.3d at 638. Compass argues that according to Missouri case law, no such common-law
right existed in 1820. Doc. 18 at p. 2. The Court agrees with Compass.
In Missouri, courts historically followed the at-will employment-termination doctrine.
See, e.g., Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661, 663 (Mo. 1988) (“Absent a
valid contract of employment between the parties, plaintiff as an at will employee could be
discharged for cause or without cause.”); Christy v. Petrus, 295 S.W.2d 122, 124 (Mo. 1956)
(“The rule is well established in this state and elsewhere that in the absence of a contract for
employment for a definite term or a contrary statutory provision, an employer may discharge an
employee at any time, without cause or reason, or for any reason and, in such case, no action can
be maintained for wrongful discharge.”).
The Missouri Court of Appeals first recognized the public-policy exception to the at-will
employment doctrine in 1985 in Boyle, 700 S.W.2d at 878, and the Missouri Supreme Court first
recognized it twenty-five years later in Fleshner, 304 S.W.3d at 91–92. In Fleshner, the
Missouri Supreme Court noted that “[s]ince [Boyle], the court of appeals has recognized the
public-policy exception to the at-will-employment rule” and observed that the Missouri Supreme
Court itself had “never explicitly recognized the public-policy exception.” Id. at 91 (citing prior
cases where the Missouri Supreme Court had declined to alter the common-law employment-atwill doctrine); see also Brenneke v. Dep’t of Mo., Veterans of Foreign Wars of U.S. of Am., 984
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S.W.2d 134, 138 (Mo. Ct. App. 1998) (“That exception, commonly referred to as the
‘whistleblower’ exception, was first recognized in Boyle.”). Because the public-policy exception
did not exist in Missouri until more than a century and a half after adoption of the Missouri
Constitution, the Court need not address the second Watts inquiry, and Francis’s constitutional
The Court finds that Ordinola applies here, and that the Act abrogates Francis’s common-
law claim for wrongful termination in violation of public policy. Alternatively, even if Watts
applies, the Court finds that the Act does not violate the Missouri constitutional right to a jury
trial. Therefore, the Court grants Compass’s  Motion to Dismiss Count 2 of the Complaint.
The Court notes that Francis seeks leave to amend her complaint but has not complied with the
undersigned’s Judge’s Requirements regarding such motions. See Doc. 19. The Court
accordingly denies the motion without prejudice and directs Francis to file a compliant motion
no later than November 22, 2021.
So Ordered this 16th day of November 2021.
STEPHEN R. CLARK
UNITED STATES DISTRICT JUDGE
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