Fruits v. LS Construction Services of Kansas et al

Filing 40

ORDER granting 32 Defendant's motion for summary judgment. Signed on 7/12/13 by District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
BRYON FRUITS,
Plaintiff,
v.
LS CONSTRUCTION SERVICES
OF KANSAS, INC.,
and
LS COMMERCIAL REAL ESTATE, INC.,
Defendants.

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No. 4:12-374-CV-W-DGK

ORDER GRANTING SUMMARY JUDGMENT
This case arises out of Plaintiff Byron Fruits employment relationship with Defendant LS
Construction Services of Kansas, Inc. (“LS Construction”) and an allegedly “integrated
enterprise,” Defendant LS Commercial Real Estate, Inc. (“LS Commercial”). The sole count in
the Amended Petition (Doc. 14) alleges LS Construction terminated Plaintiff in violation of the
“whistleblower” public policy exception to Missouri’s at-will employment rule for complaining
about workplace safety hazards.
Now before the Court is “Defendants’ Motion for Summary Judgment” (Doc. 32).
Finding that Plaintiff cannot establish an objectively reasonable belief that LS Construction
violated a law, regulation, or clearly expressed public policy, Defendants’ motion is GRANTED.
Subject Matter Jurisdiction and Choice of Law
This case was removed from Missouri state court pursuant to the Court’s diversity
jurisdiction, 28 U.S.C. § 1441. There is no choice of law issue here; the parties agree Missouri
law provides the applicable rule of decision.

Summary Judgment Standard
A moving party is entitled to summary judgment “if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c). A party who moves for summary judgment bears the
burden of showing that there is no genuine issue of material fact. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986).

When considering a motion for summary judgment, a court

must scrutinize the evidence in the light most favorable to the nonmoving party, and the
nonmoving party “must be given the benefit of all reasonable inferences.” Mirax Chem. Prods.
Corp. v. First Interstate Commercial Corp., 950 F.2d 566, 569 (8th Cir. 1991) (citation omitted).
To establish a genuine issue of fact sufficient to warrant trial, the nonmoving party “must
do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

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nonmoving party must set forth specific facts showing there is a genuine issue for trial.
Anderson, 477 U.S. at 248. But the nonmoving party “cannot create sham issues of fact in an
effort to defeat summary judgment.” RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d
399, 402 (8th Cir. 1995) (citation omitted).
Factual Background
For purposes of summary judgment, the Court finds the facts to be as follows. Properly
controverted facts, facts immaterial to the resolution of the pending motion, and argument have
been omitted.
LS Construction is a construction company that develops and maintains commercial
space in an underground facility known as Carefree Industrial Park (“the facility”), located in

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Independence, Missouri. The facility was an active limestone quarry until approximately 1989.
All remaining mining activities stopped in approximately 1994, and the facility was subsequently
developed into commercial space.
LS Commercial never employed Plaintiff, but LS Construction hired Plaintiff as an atwill employee on or about August 2, 2009.1 After Plaintiff was hired, he read LS Construction’s
employee handbook. The handbook included a section discussing the importance of protecting
company information and an explicit ban on all recording devices in the workplace.
Paul Licausi (“Licausi”) is the president and chairman of both LS Construction and LS
Commercial.

Thomas Sportsman (“Sportsman”) worked at LC Construction as the overall

construction manager until Sportsman retired in February of 2011, when Jerry DeOrnellis
(“DeOrnellis”) transitioned into that position.
While working at the facility, Plaintiff spent about eighty percent of his time in an area
called the shale pockets (“the pockets”). Although trained as a plumber, Plaintiff’s work in the
pockets consisted of knocking loose rocks from the wall, draining water, cleaning up, and
spraying an epoxy paint thinned with Xylene on the walls. Plaintiff worked primarily with Don
Lawrence (“Lawrence”), Jesus Escalante (“Escalante”), and Vicki Cantwell (“Cantwell”).2
LS Construction provided Plaintiff with a safety hard hat, but Plaintiff used his own hard
hat because he believed it was better. LS Construction also provided Plaintiff with a rubber airpurifying respirator with two replaceable screw-on cartridge filters which he used while working

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LS Commercial uses the same employee handbook as LS Construction. The introductory page to the employee
handbook states, “Welcome to LS Construction Services/LS Commercial Real Estate,” and “[a]s an employee of LS
Construction Services/LS Commercial Real Estate, the importance of your contribution cannot be overstated.” Both
Defendants use the same address for their corporate headquarters; use the same phone number; and list the same two
individuals as designees to report complaints of sexual harassment.
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Cantwell did not work in the pockets, she worked as a spotter or observer. Her job was to ensure no one was hurt
by accounting for workers entering and leaving the project area. Cantwell reported to Sportsman and, after he
retired, DeOrnellis. Cantwell was not a member of management and did not have supervisory responsibilities over
other LS Construction employees.

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in the pockets. Plaintiff asked for better filters for the respirator because the paint spray was
going through his mask.
Plaintiff complained about conditions in the pockets. Specifically, he complained that
there was only one way to enter and exit the shale pockets. Additionally, because there was no
ventilation in the pocket, he complained about the lack of an air ventilation system.
Plaintiff spoke directly with Sportsman and DeOrnellis about these problems. Plaintiff
also complained to Cantwell about the working conditions.

Plaintiff understood that any

conversations he had with Cantwell about feeling unsafe on the job would, at most, be conveyed
to DeOrnellis and Sportsman. There is evidence Licausi was aware of Plaintiff’s concerns.3
To remedy these problems, Plaintiff asked that a second hole be cut in the floor to
provide an additional exit and means of ventilation. He also requested LS Construction bring in
someone, such as workers from an adjacent cave, to explain how to work more safely in the
pockets. He also sought better equipment to cope with the paint fumes. Plaintiff asked LS
Construction’s purchasing agent, Bryson Clinkinbeard, to purchase a ventilation fan with a hose
for the shale pocket, cartridges for his respirators that had “something with a chemical on it” to
better filter the epoxy-xylene paint he was spraying, and new gloves. None of these requests
were met.
While Plaintiff was working in the pockets he took twenty-six photographs of the
conditions inside them. At the time he took the photographs, he was working in a shale pocket
where the work consisted mostly of removing falling rock, shale, and concrete. The pocket was
approximately fifteen to sixteen feet above the floor. Plaintiff was afraid that the rocks he was
dealing with would fall and take out the floor on which he was working. He was fearful that
something overhead would come loose or would fall through the floor. Plaintiff told Cantwell,
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DeOrnellis told Lawrence two to three times that Licausi was aware of the safety concerns.

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Bryson, Lawrence, and Escalante about possibly calling the Occupational Safety and Health
Administration (“OSHA”).
Plaintiff showed at least one of the photographs to a truck driver Plaintiff believed
worked at the facility.

Plaintiff acknowledges that taking the photographs violated LS

Construction’s policy on recording devices in the workplace.
On January 11, 2011, DeOrnellis learned Plaintiff had photographed the inside of the
shale pocket and showed the photographs to at least one person. DeOrnellis called Licausi and
asked Licausi how he wanted him to handle it. Although DeOrnellis had earlier received
permission to terminate Lawrence and Escalante for their unwillingness to wear required safety
equipment and poor work performance, DeOrnellis did not recommend Plaintiff’s termination
because he had “no problems” with him.
Licausi instructed DeOrnellis to terminate Plaintiff. Licausi claims the photographs show
proprietary support systems and internal systems within the shale pocket that LS Construction
had developed over the years and had closely guarded from disclosure to the small group of
competitors in the subsurface industrial market in Kansas City.
DeOrnellis terminated Plaintiff, Lawrence, and Escalante on January 11, 2011 and
January 12, 2011. After Plaintiff was terminated, he thanked Sportsman and DeOrnellis for the
opportunity to work there and for the things that he learned, shook both of their hands and had no
hard feelings. DeOrnellis thereafter gave Plaintiff a ride back to his truck and told Plaintiff,
“man, this isn’t my idea.” DeOrnellis also told Plaintiff not to show anyone the pictures because
LS Construction would “prosecute [Fruits] for it.”
Plaintiff never reported any condition inside the shale pocket to OSHA before or after his
termination. He did not show any of the 26 photographs he took to OSHA before or after his

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termination, nor did he complain about any workplace conditions to OSHA before or after his
termination.
Plaintiff has not retained or designated any expert witnesses to testify concerning mining,
OSHA regulations, or on any other topic, and has not submitted any expert testimony for the
Court to consider.
Discussion
“The at-will employment doctrine is well-established Missouri law.”

Margiotta v.

Christian Hosp. Ne. Nw., 315 S.W.3d 342, 345 (Mo. banc. 2010). “In the absence of an
employment contract with a definitive statement of duration of employment, ‘an employment at
will is created.’” Frevert v. Ford Motor Co., 614 F.3d 466, 470-71 (8th Cir. 2010) (quoting
Margiotta, 315 S.W.3d at 345). “An employer may terminate an at-will employee for any reason
or for no reason.” Margiotta, 315 S.W.3d at 345 (internal quotations and citations omitted). “As
a matter of law, the discharged at-will employee has no cause of action for wrongful discharge.”
Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 91 (Mo. banc. 2010).
Missouri’s at-will doctrine is not absolute. Margiotta, 315 S.W.3d at 346. “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.” Id. Missouri also recognizes a
public-policy exception to the at-will employment doctrine. Id.
Where an employer has discharged an at-will employee because
that employee refused to violate the law or any well established
and clear mandate of public policy as expressed in the constitution,
statutes and regulations promulgated pursuant to statute, or
because the employee reported to his superiors or to public
authorities serious misconduct that constitutes violations of the law
and of such well established and clearly mandated public policy,
the employee has a cause of action in tort for damages for
wrongful discharge.

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Fleshner, 304 S.W.3d at 91 (internal quotations, alteration, and citation omitted). The Missouri
Supreme Court has held that where a plaintiff claims that he was wrongfully discharged for
“reporting violations of law or public policy,” he “must show that he reported to superiors or to
public authorities serious misconduct that constitutes a violation of the law and of well
established and clearly mandated public policy.” Margiotta, 315 S.W.3d at 346-47.

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“wrongful discharge action must be based on a constitutional provision, a statute, a regulation
based on a statute or a rule promulgated by a governmental body.” Id., at 346. In the absence of
“such explicit authority, the wrongful discharge action fails as a matter of law.” Id.
To establish wrongful discharge in violation of public policy for “whistleblowing,” a
plaintiff must show (1) a good-faith belief that the employer’s conduct “violated a law,
regulation, or some other clear statement of public policy;” (2) that the plaintiff “‘blew the
whistle’ by reporting this violation to a superior, decisionmaker, or public authorities;” and (3)
that the reporting was a “contributing factor” to the employer’s decision to end the plaintiff’s
employment.

Bazzi v. Tyco Healthcare Group, L.P., 652 F.3d 943, 947 (8th Cir. 2011).

Defendants argue Plaintiff cannot establish any of these elements.
To prove the first element, a plaintiff must not only show that he had a good-faith belief
that his employer was violating a statute, regulation, or public policy, but that this belief was
objectively reasonable. Dunn v. Enter. Rent-A-Car Co., 170 S.W.3d 1, 7-8 (Mo. Ct. App. 2005).
In the present case, Plaintiff cannot do this.
It is well-established that a “mere citation” to a regulation “without a demonstration of
how the reported conduct violated it cannot form the basis for a wrongful discharge action.”
Margiotta, 315 S.W.3d at 347. To survive a motion for summary judgment, “the plaintiff must
substantiate allegations with sufficient probative evidence that would permit a finding in the

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plaintiff’s favor.” Bazzi, 652 F.3d at 948 (quoting Frevert v. Ford Motor Co., 614 F.3d 466,
473-74 (8th Cir. 2010)). Although Plaintiff has identified two OSHA regulations he believes
Defendants may have violated, 29 U.S.C. § 1910.134(d)(1)(i) and 29 U.S.C. § 1926.501(c), he
has failed to put any evidence on the record demonstrating an objectively reasonable belief that
Defendants violated either regulation.
The first regulation, 29 U.S.C. § 1910.134(d)(1)(i), which governs selection of
respirators, states: “The employer shall select and provide an appropriate respirator based on the
respiratory hazard(s) to which the worker is exposed and workplace and user factors that affect
respirator performance and reliability.” While there is evidence that paint got through Plaintiff’s
respirator mask, this is not res ipsa proof that LS Construction violated any regulations. The
Eighth Circuit Court of Appeals has indicated that to establish the kind of regulatory violation
alleged in this case the plaintiff needs expert testimony. See Bazzi, 652 F.3d at 948 (affirming
summary judgment in employer’s favor, suggesting some form of expert testimony needed to
show how the employer’s actions did or did not violate a Food and Drug Act regulation).
Without expert testimony, a jury would have no way of knowing what workplace and user
factors affect a respirator’s performance and reliability or how to evaluate a respirator to
determine if it was appropriate. See id. (affirming grant of summary judgment where the
plaintiff had “failed to submit even a scintilla” of expert evidence). Here there is no testimony
from an engineer, industry personnel, or other expert showing that the respirator provided to
Plaintiff was not appropriate for use in spraying a mixture of epoxy paint and Xylene in an
unventilated environment. Consequently, Plaintiff does not have sufficient evidence to establish
an objectively reasonable belief that Defendants violated 29 U.S.C. § 1910.134(d)(1)(i).

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Plaintiff has similarly failed to establish an objectively reasonable belief that Defendants
may have violated 29 U.S.C. § 1926.501(c), which regulates protection from falling objects.
Section § 1926.501(c) provides:
When an employee is exposed to falling objects, the employer
shall have each employee wear a hard hat and shall implement one
of the following measures:
(c)(1) Erect toeboards, screens, or guardrail systems to prevent
objects from falling from higher levels; or,
(c)(2) Erect a canopy structure and keep potential fall objects far
enough from the edge of the higher level so that those objects
would not go over the edge if they were accidentally displaced; or,
(c)(3) Barricade the area to which objects could fall, prohibit
employees from entering the barricaded area, and keep objects that
may fall far enough away from the edge of a higher level so that
those objects would not go over the edge if they were accidentally
displaced.
The record here demonstrates Plaintiff was exposed to falling objects and was wearing a
hard hat, but it is silent as to whether LS Construction implemented one of the three additional
safety measures, namely erecting: (1) a toeboard, screen, or guardrail system; (2) a canopy
structure; or (3) a barricade. Without proving LS Construction failed to implement any of these
safety measures (or some other set of facts establishing an objectively reasonable belief that LS
Construction violated the regulation), Plaintiff cannot carry his burden of proof with respect to
the first element of his claim, and Defendants are entitled to summary judgment.
Because this finding is dispositive, there is no need to address Defendants’ remaining
arguments.

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Conclusion
For the reasons discussed above, the Court finds Defendants are entitled to summary
judgment on Plaintiff’s sole cause of action. Defendants’ motion for summary judgment (Doc.
32) is GRANTED.
IT IS SO ORDERED.
Date: July 12, 2013

/s/ Greg Kays
GREG KAYS, JUDGE
UNITED STATES DISTRICT COURT

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