*1 MARGIOTTA, Appellant, Daniel HOSPITAL NORTHEAST
CHRISTIAN Hospi Christian
NORTHWEST d/b/a System,
tal, Respon and BJC Health
dents. 90249.
No. SC Missouri,
Supreme Court of
En Banc.
Feb. *2 alleging (“Hospital”),
Northwest vio- reporting him for Hospital terminated regulations. federal and state lations of *3 summary judg- granted The trial court judg- The Hospital. favor of the ment in ment is affirmed. Posture Facts and Procedural
II. Summary A. The Procedure for Judgment 1 for sum required procedure The in Rule mary motions is found judgment summary judg party seeking The 74.04. “a of uncon- ment must attach statement ... with [stated] material facts troverted separately numbered particularity ” “with supported and paragraphs discovery, ex pleadings, references to the 74.04(c)(1)(em hibits, Rule or affidavits.” added). responding party phasis deny each of the must then “admit statements in numbered movant’s factual Rule based on the record. paragraphs” 74.04(c)(1). “may also set response that remain material facts forth additional consecutively num dispute presented movant to which the paragraphs,” bered with a state respond supplemental must each factual asser ment that controverts the record. Id. “A denial tion from Wolf, Sowers, M. Beth P. D. Eric Feme or deni upon allegations rest the mere LLC, Wolf, Fetterman, St. Sowers & Rule party’s pleading.” als of Louis, Appellant. for 74.04(c)(2). not discre procedure Arnold, Sandifer, Mark G. Mi- JoAnn T. and must be fol tionary; mandatory it is Miller, Nolan, F. Husch chael P. Christine lowed. Louis, LLP, St. Blackwell Sanders Respondents. B. Uncontroverted Facts Controverted PRICE, JR., RAY Chief
WILLIAM Justice. Margi- that Daniel It is uncontroverted I. Introduction an at-will medical technician otta was unit Hospital’s April scan from an at-will medical CT Margiotta,
Daniel J. technician, until termination on December wrongful ter- his brought a image remaining facts are Although the his former em- 2007. mination action controverted, they are not material to the Hospital Northeast ployer, Christian Any safety as a matter of law and serve ties. hazard or threat to the general safety patients, for this case. only provide context staff or the public shall be corrected. 19 30- C.S.R. it alleged that terminated Hospital 20.108(3). because he had a violent out- Margiotta Hospital 2007. In that inci- Christian filed a motion for burst on December dent, first, summary judgment arguing, at co- Margiotta reportedly yelled prove reporting workers in front of a and threw a did not that the room, of violations was the pillow knocking across canister exclusive cause of his and, second, termination regula- off the wall. denies *4 or that he in tions at issue engaged incident was violent did not constitute clear man- public policy. dates of aggressive behavior. contrast, granted summary trial court Margiotta alleges judg-
In he was grounds. ment on both has continuously because he re- Court terminated Const, V, jurisdiction. safety per- incidents of violations Mo. art. sec. 10. ported taining patient supervisors. care to his Analysis III. separate claims that three inci- First, his termination. dents led to A. Standard Review of 2005, July reported supervi- he June This Court reviews the trial patients being were left unat- sors granting summary judgment court’s of de Second, Hospital’s hallways.
tended in the
Corp.
novo.
ITT Commercial Fin.
v.
2005, he
during
complained
the fall of
Supply Corp.,
Mid-Am. Marine
854
Hospital
only
orderly
would use
one
1993).
371,
(Mo.
ap
S.W.2d
376
banc
An
patient
transfer a
from the stretcher to the
pellate court can sustain the trial court’s
table, which,
incident,
scanning
CT
one
any ground
on
as a matter of
Third,
patient being dropped.
led to a
law,
if
posited
even
different than one
July
September
sometime between
granting summary
judgment.
order
2005,
pregnant
he
that a
woman
Fin.,
ITT
854 S.W.2d at
Commercial
387-
scan, practice
underwent a
a
he consid-
CT
88.
ered unsafe.
reports
of
Although
pre-
dates
these
Employment
B. The Atr-Will
years,
date his termination
almost two
The at-will employment doctrine
Margiotta argued
Hospital
that the
retali-
is well-established Missouri
Johnson
him
against
reporting
ated
these inci-
Corp.,
v.
745
Douglas
McDonnell
S.W.2d
by terminating
Accordingly,
him.
dents
(Mo.1988);
Tuell,
661
Dake v.
687 S.W.2d
a
of
Margiotta brought
cause
(Mo.1985);
Eureka,
City
191
Amaan v.
termi-
hospital
(Mo.1981).
an
see also Caldwell Well Established and (Mo. 427, 2004); Policy S.W.3d 429 banc Han Mandated Public Co., Cooperage 679 some Northwestern It public pol is well-settled that (Mo. 1984); n. 2 banc 275 icy varying personal is not found “in the Johnson, 662; Dake, 745 S.W.2d at courts, opinions judges and whims of Amaan, 192-93; S.W.2d at 615 S.W.2d at charged with interpretation and decla 415. The at-will doctrine “[r]ooted law, ration of the established as to what private freedom of contract and property they themselves believe to be the demands principles, designed yield efficiencies or interests of public.” In re Rahn’s range across a broad industries.” Estate, 492, 501, 120, 123 316 Mo. 291 S.W. Sonne, Firing James A. Thoreau: Con (Mo.1926). Therefore, a wrongful dis Employment, science and At-Will Pa.U. charge action must be based on a constitu (2007); J. & L. Emp. Lab. Richard A. statute, provision, tional a regulation Epstein, In the Contract at Defense at promulgated based on statute or a rule Will, (1984). 51 U. Chi. L.Rev. 953-58 governmental body. See Johnson v. *5 661, Douglas Corp., McDonnell 745 S.W.2d However, the at-will is doctrine (Mo. 1988). explicit 663 banc Absent such respects. employer limited in certain An authority, wrongful discharge action cannot terminate an at-will for Moreover, fails as a matter of Id. class, being protected a member of a such every statute or regulation gives rise to an color, “race, religion, as origin, national See, wrongful at-will termination action. sex, ancestry, age or disability.” Section e.g., Lay v. St. Helicopter Airways, Louis 213.055, addition, RSMo. Supp.2005. In Inc., 869 173 (Mo.App.1993). S.W.2d Missouri recognizes public-policy ex ception at-will-employment to the rule. statute, A vague general regulation, Institute, Inc., v. Pepose Fleshier Vision successfully pled rule cannot be under (Mo. 81, 2010); 304 S.W.3d 92 banc Adol at-will theory, termination Cards, Inc., phsen v. Hallmark 907 S.W.2d it because would force the court to decide (Mo.App.1995). 333 on its own what public policy requires.
See id. vagueness Such would also cause Policy Exception C. The Public imposed upon employers “the duties [to] Wrongful Discharge vague” become more and create difficulties employers “for plan liability to around public policy exception to vagaries based on the of judges.” Timo- rule, employment the at-will often called Heinz, thy Employ- Assault on the doctrine, the wrongful discharge very Doctrine, 855, ment at Will 48 Mo. L.Rev. narrowly drawn. An at-will employee may (1983). 876 not be terminated refusing perform an illegal act or reporting wrongdoing or A Reporting Violations of violations of law to superiors par or third Law: Whistleblowing Co., ties. See Porter Reardon Mach. 962 932 (Mo.App.1998); S.W.2d See also claims that he falls into Inc., Boyle v. Vista Eyewear, 700 theory S.W.2d second of wrongful discharge, (Mo.App.1985).1 859 that of reporting public violations of law or filing compensa- Retaliation for a worker’s is distinct from other ac- however, prohibited; tion action is also it is tions. by specific statutory authority controlled
347 Inc., commonly ways, referred where a superiors, helicopter pilot to his policy alleged Lynch v. “whistleblowing.” to as Blanke he that was terminated because he re Krimko, & Inc. 901 Bowey Baer S.W.2d fused, against wishes, employer’s his 147, For (Mo.App.1995). 150 to make three flights he believed be in he “reported he must show that prevail, of regulations. violation FAA superiors public or to authorities serious 175. The regulation cited he mandated misconduct that constitutes violation of that pilots “member’s will exercise their the law and of ... well established and best to insure a maximum safety (em- clearly public policy.” mandated Id. at all factor times.” Id. The court found added). phasis vague too and noted that of a
“The mere citation constitu pilot any did not cite to regula tional or statutory provision [pleading] showing tion the flights unsafe. Id. by is not itself to state a sufficient cause retaliatory discharge, plain action for Margiotta’s IV. Claim public
tiff must demonstrate poli cy provision mandated the cited is vio regulations two that Margiot- 82 discharge.” lated Am.Jur.2d vague statements, ta cites are similarly Geneva, § citing City 61 Fellhauer and he directs this to no specific Court Ill.2d 154 Ill.Dec. 568 N.E.2d proscribe the conduct at (1991); Johnson, generally See the allegedly issue incidents. Generally, at 663. there is no *6 relies, in part, Boyle on whistleblowing protection employee an Eyewear, originating Vista Inc. the au- who merely disagrees personally with an thority action, of the wrongful discharge employer’s legally-allowed policy. Daniel Westman, Whistleblowing (Mo.App.1985). Boyle P. the Law is 112(1991). Retaliatory Discharge, inapposite See to the facts and § also 82 Am.Jur.2d 54. case, present. eye glass In that an manu- facturing employer instructed one of its at- However, the violation of the employees perform to will never tests to applicable authority need not result the ensure lens would not shatter so that criminal sanctions. the Whether viola company the could turn around orders fines, injunctions, tion in civil results or Id. at Drug faster. 862. A Food and disciplinary against professional regulation “require[d] Administration all license is immaterial the to dis eye glass glass manufacturers to test all Moreover, charge action. as our com breaking lenses their resistance to opinion panion Pepose Fleshner Vision shattering before such be lenses sold Institute, Inc., announced, “there is no public.” or distributed to the Id. The em- requirement that the violations that the employee the reports employee ployee consistently affect to her em- complained nor personally, pro order, that the law violated ployer, comply refused to with the or penalize hibit retaliation those reported and the violation to the FDA and reporting its violation.” ultimately OSHA. She was terminated. pertinent The here inquiry is wheth at 863. The employee Boyle report- Id. authority clearly prohibits er the regulation a clear ed violation of a conduct at action. issue explicitly eye- forbade actions glass manufacturer. did not occur in
An This principle illustration of this was dis in Lay Helicopter cussed v. St. the instant. Louis Air Margiotta’s treatment. regu- ty, a federal not first relies on right regulation to re- “mere citation” to this without a patient has
lation. “The setting.” reported 42 C.F.R. conduct in a safe demonstration of how ceive care 482.13(c)(2). of Health Department The violated it cannot form the basis for regula- this enacted Human Services and action. statutory authori- federal to pursuant tion Margiotta asks this Court to do is What 1395hh, §§ and See ty. 42 U.S.C. grant protected making him status for to (2009). em- regulation clearly This 1395rr he mere- complaints about acts or omission their right to
powers patients to assert of the law or ly believes to be violations juris- cases other safety, and public policy exception The public policy. regulation recognize this.2 dictions A to the at-will doctrine is not so broad. part No textual patient. personal to duty upon parties legal will not be forced requires employees to grants protection agreed relationship; who have to an at-will such as an conduct duty upon nor will an additional be forced report to violations. Most duty affirmative a contractual parties agreed who have specifically pro- importantly, it does employment relationship absent a suffi- Margiotta re- three incidents scribe the statute, ciently regulation definite based vague is too ported. statute, or rule provision, on constitutional discharge ac- Margiotta’s wrongful support promulgated by government body tion. clearly gives parties notice to of its regulation Margiotta The second requirements. Hospital was entitled Depart was enacted Missouri’s cites judgment as a matter of pursu Senior Services ment of Health and authority. V. Conclusion statutory Sections
ant 197.080, RSMo. 192.006 and The trial court’s is affirmed. 197.154, regula Supp.2005. RSMo. shall devel tion states “[e]ach *7 RUSSELL, WOLFF, a for the identification and op mechanism BRECKENRIDGE, and FISCHER occupant safety hazards in abatement of STITH, JJ., concur; TEITELMAN, J., safety Any their facilities. hazard separate opinion dissents in filed. safety patients, general threat to the TEITELMAN, Judge, B. RICHARD corrected.” public staff or the shall be 19 dissenting. 30-20.108(3). C.S.R. principal opinion in holds that applicable is not the Mar- regulation
This claim regulation appears giotta’s wrongful discharge in a fails present case. Safety, Safety regulations pro- because the cited do not section titled “Fire General Id. The other the conduct re- Operating and Features.” scribe parts regulation speak ported superiors. specificity of the “disaster to his Such required required. construction and re- is not What is is plans” and 20.108(1)—(4). a clear and regulation express This the modeling. 19 C.S.R. 30— clearly building important public policy. with safe- regulation deals Health, Kidd, (C.D.Cal.2005) (mental patient pled reg- 214 Mental Inc. v. 1073 See NCED 28, 2006) (Pa- (Tex.App.El Paso part S.W.3d 36 an ulation in section as action under regu- bringing citing tient suit violation of and patient 42 1983 due to disclosure of U.S.C. rape by hospital while lation due staff med- records). Alamao, icated.); F.Supp.2d v. 360 Hubbs
349 express impor- regulation, in this case a clear and statute or and therefore the public requiring hospitals to policy tant “public policy,” definition of becomes clear steps safety. to ensure take applied when particular to the facts of a patients being Procedures that result in case. dropped unquestionably off tables involve The principal opinion avoids this conclu in the hospital’s regula- matters included sion in relying large part on Lay St. tory provide obligation to a safe environ- Inc., Louis Helicopter Airways, 869 Therefore, patients. ment for its I re- 173 (Mo.App.1993), S.W.2d to conclude spectfully dissent. the regulation in this case is “too Inc., In Boyle Eyewear, Vista 700 vague” Margiotta’s and that claim fails the (Mo.App.1985), S.W.2d court identify because he does not a regulation public policy exception held that the to at- specifically proscribing the conduct at is employment “provides
will
that an at-will
sue. Lay did not hold that the regulations
discharged by
who has been
at
issue
that case were “too vague” to
employer
violation of a clear mandate of
support a wrongful discharge action.
In
public policy
has
cause of action
stead, Lay held that the pilot could not
employer
the
wrongful discharge.”
wrongful
state a claim for
discharge be
The clear
of public policy
mandate
finds its
(1)
cause the regulation
specifically
did not
“in
purpose
source
the letter and
of a
prohibit
the employer
discharging
from
constitutional, statutory,
regulatory pro-
(2)
the pilot
subject
did not
pilot
the
...”
Mercy Hosp.
vision or scheme
Kirk v.
criminal sanctions if he
engaged
Tri-County,
activity required by
employer.
Id.
(Mo.App.1993)(quoting
Boyle,
Neither of these conclusions is valid.
871).
There is
nothing
long
this
standing
wrongful
formulation of the
dis
Lay
authority
cited no
require-
this
charge
requiring
plaintiff
action
to iden ment
the regulation underlying a
tify
regulation specifically
proscribing wrongful discharge
specifically
must
contrary,
conduct. To the
prohibit
the employer
discharging
from
recognize
the cases
that a
dis
employee.
If
pro-
must
charge action can be
on reported
based
employer
hibit the
discharging
from
conduct that
prohibited by
only
employee, there would be no need for a
“letter”
“pur
of the law but also
common
law
action be-
pose” of the
formulation of the
employee’s “remedy
cause the
flow
would
*8
wrongful discharge action recognizes the
any
alleged
from
such
violation” of the
reality
many
that
valid statutes or regula
Kirk,
regulation.
professional pur- with the Lay
nale in is inconsistent
pose cause of
action and should not be followed. case, regu-
In this the federal and state by Margiotta
lations cited set forth a clear adopt procedures that hospitals
mandate patients’ safety. their
to ensure These
general safety spe- concerns are illustrated allegation un-
cifically by Margiotta’s that patient practices
safe transfer caused a to off a table.
patient dropped be There is dispute dropping patients poses
no patient safety. importance
threat magnified
of these because
many rely entirely must patients on the employees to ensure their safety
right personal to basic and suste- incapaci- An unconscious
nance is met. position
tated be no right to safety
assert his or her or even
recognize safety compro- has been Margiotta reported
mised. violations of
safety regulations that constitute clear public policy.
mandates of He should be
given opportunity prove his case to a
jury. grant I would reverse the of sum-
mary defendants this
case. Missouri,
STATE et
al., Respondents,
Stephanie SPILTON, LCSW, Appellant.
No. SC 90586. Missouri,
Supreme Court
En Banc.
June