Ronny D. Saffels Carol S. Morriss v. Kris Rice R.B. Industries, Inc. Randall Haynes
40 F.3d 1546
8th Cir.
1995
Check Treatment

*1 SAFFELS; Ronny D. Carol

S. Morriss; Appellants; Industries, Inc.; RICE; R.B.

Kris Haynes; Appellees.

Randall

No. 94-1789. Appeals, States Court

United

Eighth Circuit. Sept.

Submitted 2, 1994.

Decided Dec. Rehearing

Rehearing Suggestion for 3, 1995.

En Banc Denied Feb. *2 violations of the law to the

authorities.

I. employees Saffels and Morriss were at RBI, small, family-operated business that woodworking equip- manufactures and sells Rice, company by presi- ment. The is run its dent, Haynes, company’s and director of finance. Saffels was hired October 1990 promoted as a telemarketer and was to tele- Summit, MO, Donald Earl Howell of Lee’s marketing manager April rapid- 1991 after Chiarelli, brief), for argued (Joseph on the ly becoming a successful telemarketer. Mor- appellants. began although riss work in March and initially telemarketer, hired as a was as- Nancy Village, of Prairie Merrill Wilson (Frank signed entry KS, the order desk where she argued and E. B.W. McCollum brief), III, appel- incoming telephone on received Edwards calls for orders. John progressed lees. satisfactorily Morriss in her work, promoted and in June was to the accounting department. HANSEN, Judge, Circuit Before HEANEY, Judge, Circuit and Senior July began and Saffels ARNOLD, SHEPPARD MORRIS relationship, romantic which the defendants Judge. allege poor performance resulted in work on parts. say of their It is fair to both

HEANEY, Judge. Senior Circuit commencement of their liaison marked the beginning of their eventual demise at RBI. Ronny D. and Carol S. Morriss1 Saffels By late October Rice was dissatisfied Rice, against Kris filed suit performance telemarketing with Saffels’ as Industries, Haynes, R.B. Randall and manager position and demoted him to the (RBI) wrongful in violation of termination telemarketer. (FLSA) Act the Fair Labor Standards public policy excep- Missouri’s common law Haynes Rice and On November employment tion to the at-will doctrine. The meeting, summoned Saffels for which parties summary filed cross motions for surreptitiously tape At the recorded. meet- granted judgment and the district court each ing, Rice that he had informed Saffels party’s The court held that motion.2 Saffels employees learned from several that Saffels bring and Morriss lacked a claim Occupational Safety and Health called wrongful under either (OSHA) Department Administration and the or Missouri common law and accord- FLSA Wage and Hour Division. Ill of Labor’s ingly dismissed both causes of action. Jt.App. at 689. He also told Saffels he reversal, interpret ask us to aware that Morriss announced conferring as stand- employees had presence of other that OSHA ing to sue on who are terminated Id. at 687. Saffels denied that on their mistaken belief been called.3 based appeal clarity, we for assault. He did not cross his adverse 1. For the sake of shall refer Plain- name, After tiff Morriss her married Morriss. judgment. commenced, she was divorced and this suit was name, appears what to be her maiden retained meeting, days prior Morriss had 3.Several to the Knox. phone call from Saffels at work. At received call, she turned to the other the conclusion of the Haynes asserted a counterclaim for defamation Morriss, department against and commented in her Saffels and added). 215(a)(3) (emphasis Al that Morriss made 29 U.S.C. reported violations he though language was then of this section would Id. Morriss assertion. such meeting. presence, enough, repeatedly In her join the clear courts have invited to seem her com- his concern about repeated interpret what con Rice been asked to Wage and Hour ment that OSHA section. duct is under the Consis *3 at 691. Rice called. Id. had been Division purpose, its the section tent with remedial “real problem,” real he had “a said that liberally example, has been construed. said,” things that are like of faith when lack 15(a)(3) interpreted § to cover em has been 689-90, had further commented he and id. at who, fifing complaint in to ployees addition believing that Saf- basis” “pretty sound instituting proceeding, have been or a formal fact, In Id. at 690. reported violations. fels sending a to terminated after memorandum any reported nor had Saffels neither raise, employer requesting a Love v. their Wage or the and Hour to OSHA violations Am., Inc., 383, 738 F.2d 387 RE/MAX of meeting, At conclusion of Division. (10th Cir.1984); pay refusing to release back given notice of Morriss were Saffels pay awards to their claims or return back RBI. from their termination Am., Parking v. employers, Marshall Co. of (10th Cir.1982) 141, (per cu 670 F.2d 143 court the defendants Before the district Yamaha, Inc., riam); Maxey’s v. Brennan lacked and Morriss argued that Saffels (8th Cir.1975); refusing F.2d 182 to wrongful discharge under standing to sue for oath,” “loyalty rights guaran repudiate, in a 16(a)(3) actually § filed neither because FLSA, to them under the Brock v. teed Wage or and Hour complaint with OSHA the Sales, Inc., Casey F.2d Truck assuming they had Even Division. (2d Cir.1988); communicating with inves record, sue, plaintiffs’ poor work to Division, tigators Wage from the and Hour justified their termi- argued, Atlanta, Daniel v. Winn-Dixie granted the court defen- nation. The district (N.D.Ga.1985). F.Supp. “Courts have summary judgment on dants’ motion apply protec therefore not hesitated to Morriss lacked ground that Saffels and 15(a)(3) of section to activities less di tion standing to sue. rectly proceedings connected to formal where retaliatory chilling a similar ef conduct has II. employees’ rights.” on assertion of fect Brock, 879; at also Tennessee 839 F.2d see for our consideration is question The sole Coal, Iron R.R. v. Muscoda No. & Co. Local 15(a)(3) protects § of the FLSA em- whether 64 S.Ct. ployees terminated from their em- who are (because (1944) of its remedial and L.Ed. ployment on their mistaken based purpose, not humanitarian the FLSA “must of the law violations belief narrow, interpreted applied grudg in a be or engaged in to or otherwise the authorities manner”). ing activity. provides protected Section any person that it shall be unlawful courts, in an The defendants concede that FLSA, goals effort to further the have any other manner dis- to or 15(a)(3)’sapplication employee extended to any employee because criminate expressly conduct not in the act. covered complaint employee any such filed note, however, They in all such cases the any caused to be instituted instituted or acting protect employees courts were who chap- proceeding under or related to this asserting after ter, were testify or is about to or has testified rights. Appellant’s Br. at 35. this case any proceeding, or has served or is such committee; they argue plaintiff industry an neither took action about to serve on Wage Wage and Hour to com- aloud that "OSHA and and Hour have OSHA Division 530-31, 613-14, Jt.App. company’s pay been called.” Ill at plain failure to tele- about the referring 622-24. Morriss was to the fact that marketers overtime. Id. at 616. reportedly at RBI had called another Division, protected activity. during as investigation that could be construed of the com- agreed pany pursuant The district court with the defen- employee’s another com- dants, opinion plaint, however it focused its on the that he had worked overtime hours for extending potentially paid. adverse effect of cover- which he had not been Id. at 122. age actually report Dining who do not later conversations with officers Rice, al., Division, violations. et Wage claimed No. and Hour Banyas’ one of (W.D.Mo. 92-0679-CV-W-8, slip op. employers at 6 Banyas disclosed that fired 1994). 15(a)(3)’s Extending appli- part Mar. because he “had caused trouble ... id., report government,” before with cation to who do not and was employers, believed to wrongdoings their the court have filed a with the reasoned, Wage and Hour would circumvent the statute’s in- Division. Id. at 122-23. *4 purpose requiring employees, tended of not 15(a)(3) finding § wholly applicable, the government, the federal as the en- serve Third Circuit reading relied on courts’ broad mechanism for act. Id. forcement of the section as well as the statute’s remedi al and purpose. humanitarian Id. at 123. “Congress it is true that While did The court noteworthy also found that compliance [with not seek to secure 8(a)(3) § of the National Labor Relations Act through continuing detailed federal FLSA] (NLRA),4 which was cut out of the same supervision,” Mitchell v. Robert DeMario legislation cloth of social as the in the Inc., 332, Jewelry, 80 S.Ct. 1930s and interpretive has been used as an 335, (1960), equally 4 L.Ed.2d 323 it is true analyzing FLSA, aid in provisions of the only of effective enforcement the act can applied employees been who did not actu expected employees if ap “be free to [feel] ally engage protected activity.5 in the Id. at proach proper] griev officials with their [the 124; Co., see N.L.R.B. v. Packing Clinton 15(a)(3) purpose § ances.” Id. The of is not (8th Cir.1972) curiam) 468 F.2d (per merely rights complaining to vindicate the of (employer’s erroneous belief that there was a parties, in but to foster an environment union-inspired slowdown was no defense to employees which are unfettered in their deci employee); his of N.L.R.B. v. Rit grievances sion to voice without “fear of eco (8th Co., Cir.1966) Mfg. chie 354 F.2d id., retaliation,” reprisal. nomic or “It fol (proof practice of an unfair labor does not interpreting lows that courts [then] the anti- require proof activity of actual union or provision retaliation have looked to its ani membership suspected once it is shown that Richardson, mating spirit,” Brock v. 812 F.2d activity motivating union was the factor in (3rd Cir.1987), applying in it to Cheadle, employee’s discharge); Henning & activity express wording that falls outside the N.L.R.B., (7th Inc. v. 522 F.2d of the statute. Cir.1975) (the employ NLRA is violated if an er acts his in the belief only point, In the case on the Third they engaged protected have in activi Brock, supra, in employ held that an so). ties, they actually whether or not did discharged part ee who in was because of his employers’ join mistaken belief that he filed a in We the Third Circuit’s sound inter- 15(a)(3). complaint Wage pretation § with the and Hour Division of In addition to the 15(a)(3). protected Circuit, § by under The em reasons cited the Third we believe ployee, Banyas, George reading was terminated after that a broad of the section would he Wage way told officer of the underlying pur- and Hour no diminish the FLSA’s 8(a)(3) (8th Cir.1994), employer's Section of the NLRA makes it an unfair that an dis- practice employer labor for an to discriminate in criminatory discharge employee suspected of an discourage membership order to organization. labor having pro- of filed a with OSHA was 158(a)(3). § 29 U.S.C. Occupational Safety hibited under Act, seq. § Health 29 U.S.C.A. 651 et reasoning, 5. Consistent with this line of we re- Co., cently Hoy held in Reich v. Shoe 32 F.3d Having govern- not the federal found that Saffels and Mor

pose employees, 15(a)(3) to sue of riss have under ment, enforcement mechanism serve as the FLSA, we turn to the issue of whether Nothing reading in our the act. claim have made out a under discourage prevent employ- or will public policy exception to Missouri’s em reports of coming forward with ees from ployment Although doctrine. Mis at-will employers. Employees by wrongdoing their state, employment souri is an at-will Dake v. not report violations will be disin- inclined (Mo.1985) (en Tuell, 191, 192-93 687 S.W.2d pro- the act simply so because clined to do banc), recognizes public policy excep it still are based on tects who exception gener tion to the at-will rule. The employer’s mistaken belief that their ally applied involving has been cases em engaged in reported violations or otherwise (1) ployees declining fired for to violate activity. (2) statute, reporting violations of the law (3) employers employees, or fellow assert if, Summary judgment proper is ing legal right. Lay Helicop v. St. Louis viewing light the facts in the most upon (Mo. Inc., Airways, ter 869 S.W.2d nonmoving party, giving favorable to App.1993); Boyle Eyewear, Vista all infer him or her the benefit of reasonable (Mo.App.1985). S.W.2d 872-76 *5 ences, genuine is no issue of material there moving party judg the is entitled to fact and argue that The defendants ment as a matter of law. Johnson v. Minne cannot avail themselves of the Society, 931 F.2d 1244 sota Historical exception because their actions do not fall (8th Cir.1991). genuine A issue of fact is any recognized categories. under We “might affect the outcome of material if it the disagree. may employee An at-will state a governing suit under the law.” Anderson v. public policy claim excep under Missouri’s 242, 248, Lobby, Liberty 477 U.S. 106 discharging tion when an act of (1986). 2505, 2510, 91 L.Ed.2d 202 This 5.Ct. statute, employee regu the is violative a of a legal court de novo the conclusion reviews statute, lation based on a or a constitutional genuine issue existed for trial. no provision. Douglas Johnson v. McDonnell (8th Webster, (Mo.1988) (en F.2d 1232 Corp., Moore v. 932 745 S.W.2d Cir.1991). banc); Univ., Washington Luethans v. (Mo.App.1992);

S.W.2d Rothweil v. Wetterau, Inc., (Mo.App. 820 S.W.2d Interpreting taped conversation 1991). Specifically, employer “when an has a Morriss, had with Saffels and statutory, regulatory, duty or constitutional evidence, corroborating as well as other discharging employee to refrain from jury reasonable could find Rice and reason, specified employer and the breach Haynes responsi were believed duty, may employee pos es that the at-will filing ble for with OSHA a, wrongful discharge action sess cause of motivated, that their termination was at least public policy exception under the to the em part, by plain that belief. Whether the Luethans, ployment at-will doctrine.”6 discharged employers’ tiffs due to their were S.W.2d at 120. We therefore find that Saf mistaken belief that called the authori fels and Morriss have a cause of action under poor ties or because of their work record is public policy exception Missouri’s to the em properly jury express issue. We therefore ployment-at-will doctrine. opinion parties’ argu no on the merits of the simply reasons, ments but remand this case for fur foregoing the district proceedings. granting ther court’s order defendants’ motion gests public policy protecting employees 6. We further note that Missouri’s who have been exception, although scope, Lay, narrow in on the mistaken belief protect S.W.2d at was fashioned to work- to the violations of the law authorities is outside public involving ers in cases a clear mandate of public policy the realm of what “sound would policy. Boyle, Nothing See 700 S.W.2d at 874. encourage.” Id. at 875. sug- in the Missouri case law we have reviewed reversed, summary judgment is proceedings ease is remanded for further opinion.

consistent with this

HANSEN, Judge, dissenting. respectfully

I dissent. IWhile understand Supreme Court has instructed us not to narrow,

interpret grudging “in a

manner,” Coal, R.R. Tennessee Iron & Co. v. 590, 597,

Muscoda Local No. (1944),

S.Ct. 88 L.Ed. 949 neither Supreme

do I understand the Court to have

authorized us to amend the statute effec-

tively adding the words “or because the em-

ployer mistakenly believes the above,”

done or is about do

it, opinion which is what our court’s does.

Accordingly, respectfully I dissent. *6 LAM, Plaintiff-Appellant,

Maivan HAWAI'I;

UNIVERSITY OF Albert Si

mone, capacity in his as President of the

University Hawai'i; Jeremy Har

rison, capacity in his as Dean of the Law,

Richardson School of Defendants-

Appellees.

No. 91-16587. Appeals,

United States Court of

Ninth Circuit.

Argued and Submitted Nov. 1992.

Submission Deferred Nov. 1992. April

Resubmitted 1993.

Submission Deferred Feb. 1994. May

Resubmitted 1994.

Decided Oct. 1994.

As Amended Nov. 21 and Dec.