Margiotta v. Christian Hospital Northeast Northwest

315 S.W.3d 342, 30 I.E.R. Cas. (BNA) 550, 2010 Mo. LEXIS 12

• Court: Supreme Court of Missouri
• Decided: February 9, 2010
• Docket: SC 90249
• Status: Published

Opinions

WILLIAM RAY PRICE, JR., Chief Justice.

I. Introduction

Daniel J. Margiotta, an at-will medical image technician, brought a wrongful termination action against his former employer, Christian Hospital Northeast Northwest (“Hospital”), alleging that the Hospital terminated him for reporting violations of federal and state regulations. The trial court granted summary judgment in favor of the Hospital. The judgment is affirmed.

II. Facts and Procedural Posture

A. The Procedure for Summary Judgment 1

The required procedure for summary judgment motions is found in Rule 74.04. The party seeking summary judgment must attach “a statement of uncon-troverted material facts ... [stated] with particularity in separately numbered paragraphs ” and supported “with specific references to the pleadings, discovery, exhibits, or affidavits.” Rule 74.04(c)(1) (emphasis added). The responding party must then “admit or deny each of the movant’s factual statements in numbered paragraphs” based on the record. Rule 74.04(c)(1). The response “may also set forth additional material facts that remain in dispute presented in consecutively numbered paragraphs,” to which the movant must respond with a supplemental statement that controverts each factual assertion from the record. Id. “A denial may not rest upon the mere allegations or denials of the party’s pleading.” Rule 74.04(c)(2). This procedure is not discretionary; it is mandatory and must be followed.

B. Uncontroverted and Controverted Facts

It is uncontroverted that Daniel Margi-otta was an at-will medical technician in the Hospital’s CT scan unit from April 2005 until his termination on December 8, 2007. Although the remaining facts are controverted, they are not material to the judgment as a matter of law and serve only to provide context for this case.

The Hospital alleged that it terminated Margiotta because he had a violent outburst on December 6, 2007. In that incident, Margiotta reportedly yelled at coworkers in front of a patient and threw a pillow across the room, knocking a canister off the wall. Margiotta denies that the incident was violent or that he engaged in aggressive behavior.

In contrast, Margiotta alleges he was terminated because he continuously reported incidents of safety violations pertaining to patient care to his supervisors. Margiotta claims that three separate incidents led to his termination. First, in June or July 2005, he reported to supervisors that patients were being left unattended in the Hospital’s hallways. Second, during the fall of 2005, he complained that the Hospital would use only one orderly to transfer a patient from the stretcher to the CT scanning table, which, in one incident, led to a patient being dropped. Third, sometime between July and September 2005, he reported that a pregnant woman underwent a CT scan, a practice he considered unsafe.

Although the dates of these reports predate his termination by almost two years, Margiotta argued that the Hospital retaliated against him for reporting these incidents by terminating him. Accordingly, Margiotta brought a cause of action against the hospital for wrongful termination of an at-will employee under the following regulations:

Margiotta points to a federal and a Missouri regulation as being at issue:

The patient has the right to receive care in a safe setting. 42 C.F.R. 482.13(c)(2). Each hospital shall develop a mechanism for the identification and abatement of occupant safety hazards in their facilities. Any safety hazard or threat to the general safety of patients, staff or the public shall be corrected. 19 C.S.R. 30-20.108(3).

Christian Hospital filed a motion for summary judgment arguing, first, that Margiotta did not prove that the reporting of violations was the exclusive cause of his termination and, second, that the regulations at issue did not constitute clear mandates of public policy.

The trial court granted summary judgment on both grounds. This Court has jurisdiction. Mo. Const, art. V, sec. 10.

III. Analysis

A. Standard of Review

This Court reviews the trial court’s granting of summary judgment de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). An appellate court can sustain the trial court’s judgment on any ground as a matter of law, even if different than one posited in the order granting summary judgment. ITT Commercial Fin., 854 S.W.2d at 387-88.

B. The Atr-Will Employment

The at-will employment doctrine is well-established Missouri law. Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661 (Mo.1988); Dake v. Tuell, 687 S.W.2d 191 (Mo.1985); Amaan v. City of Eureka, 615 S.W.2d 414 (Mo.1981). Absent an employment contract with a “definite statement of duration ... an employment at will is created.” Luethans v. Washington University, 894 S.W.2d 169 (Mo.1995); McCoy v. Spelman Memorial Hosp., 845 S.W.2d 727 (Mo.App.1993). An employer may terminate an at-will employee “for any reason or for no reason.” Crabtree v. Bugby, 967 S.W.2d 66, 70 (Mo. banc 1998); see also McCoy v. Caldwell County, 145 S.W.3d 427, 429 (Mo. banc 2004); Hansome v. Northwestern Cooperage Co., 679 S.W.2d 273, 275 n. 2 (Mo. banc 1984); Johnson, 745 S.W.2d at 662; Dake, 687 S.W.2d at 192-93; Amaan, 615 S.W.2d at 415. The at-will doctrine is “[r]ooted in freedom of contract and private property principles, designed to yield efficiencies across a broad range of industries.” James A. Sonne, Firing Thoreau: Conscience and At-Will Employment, 9 U. Pa. J. Lab. & Emp. L. 235 (2007); Richard A. Epstein, In Defense at the Contract at Will, 51 U. Chi. L.Rev. 947, 953-58 (1984).

However, the at-will doctrine is limited in certain respects. 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.” Section 213.055, RSMo. Supp.2005. In addition, Missouri recognizes the public-policy exception to the at-will-employment rule. Fleshier v. Pepose Vision Institute, Inc., 304 S.W.3d 81, 92 (Mo. banc 2010); Adolphsen v. Hallmark Cards, Inc., 907 S.W.2d 333 (Mo.App.1995).

C. The Public Policy Exception for Wrongful Discharge

The public policy exception to the at-will employment rule, often called the wrongful discharge doctrine, is very narrowly drawn. An at-will employee may not be terminated for refusing to perform an illegal act or reporting wrongdoing or violations of law to superiors or third parties. See Porter v. Reardon Mach. Co., 962 S.W.2d 932 (Mo.App.1998); See also Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859 (Mo.App.1985).¹

1. Well Established and Clearly Mandated Public Policy

It is well-settled that public policy is not found “in the varying personal opinions and whims of judges or courts, charged with the interpretation and declaration of the established law, as to what they themselves believe to be the demands or interests of the public.” In re Rahn’s Estate, 316 Mo. 492, 501, 291 S.W. 120, 123 (Mo.1926). Therefore, a 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. See Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661, 663 (Mo. banc 1988). Absent such explicit authority, the wrongful discharge action fails as a matter of law. Id. Moreover, not every statute or regulation gives rise to an at-will wrongful termination action. See, e.g., Lay v. St. Louis Helicopter Airways, Inc., 869 S.W.2d 173 (Mo.App.1993).

A vague or general statute, regulation, or rule cannot be successfully pled under the at-will wrongful termination theory, because it would force the court to decide on its own what public policy requires. See id. Such vagueness would also cause “the duties imposed upon employers [to] become more vague” and create difficulties “for employers to plan around liability based on the vagaries of judges.” Timothy Heinz, The Assault on the Employment at Will Doctrine, 48 Mo. L.Rev. 855, 876 (1983).

A Reporting Violations of Law: Whistleblowing

Margiotta claims that he falls into the second theory of wrongful discharge, that of reporting violations of law or public policy to his superiors, commonly referred to as “whistleblowing.” Lynch v. Blanke Baer & Bowey Krimko, Inc. 901 S.W.2d 147, 150 (Mo.App.1995). For Margiotta to prevail, 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.” Id. (emphasis added).

“The mere citation of a constitutional or statutory provision in a [pleading] is not by itself sufficient to state a cause of action for retaliatory discharge, the plaintiff must demonstrate that the public policy mandated by the cited provision is violated by the discharge.” 82 Am.Jur.2d § 61 citing Fellhauer v. City of Geneva, 142 Ill.2d 495, 154 Ill.Dec. 649, 568 N.E.2d 870 (1991); See generally Johnson, 745 S.W.2d at 663. Generally, there is no whistleblowing protection for an employee who merely disagrees personally with an employer’s legally-allowed policy. Daniel P. Westman, Whistleblowing the Law of Retaliatory Discharge, 112(1991). See also 82 Am.Jur.2d § 54.

However, the violation of the applicable authority need not result in criminal sanctions. Whether the violation results in civil fines, injunctions, or disciplinary action against a professional license is immaterial to the wrongful discharge action. Moreover, as our companion opinion Fleshner v. Pepose Vision Institute, Inc., announced, “there is no requirement that the violations that the employee reports affect the employee personally, nor that the law violated prohibit or penalize retaliation against those reporting its violation.” 304 S.W.3d at 97. The pertinent inquiry here is whether the authority clearly prohibits the conduct at issue in the action.

An illustration of this principle was discussed in Lay v. St. Louis Helicopter Airways, Inc., where a helicopter pilot alleged that he was terminated because he refused, against his employer’s wishes, to make three flights he believed to be in violation of FAA regulations. 869 S.W.2d at 175. The regulation he cited mandated that “member’s pilots will exercise their best judgment to insure a maximum safety factor at all times.” Id. The court found that regulation too vague and noted that the pilot did not cite to any specific regulation showing the flights unsafe. Id.

IV. Margiotta’s Claim

The two regulations that Margiot-ta cites are similarly vague statements, and he directs this Court to no specific regulations that proscribe the conduct at issue in the allegedly reported incidents.

Margiotta relies, in part, on Boyle v. Vista Eyewear, Inc. the originating authority of the wrongful discharge action, 700 S.W.2d 859 (Mo.App.1985). Boyle is inapposite to the facts and regulations present. In that case, an eye glass manufacturing employer instructed one of its at-will employees to never perform tests to ensure the lens would not shatter so that the company could turn around orders faster. Id. at 862. A Food and Drug Administration regulation “require[d] all eye glass manufacturers to test all glass lenses for their resistance to breaking or shattering before such lenses may be sold or distributed to the public.” Id. The employee consistently complained to her employer, refused to comply with the order, and reported the violation to the FDA and OSHA. She was ultimately terminated. Id. at 863. The employee in Boyle reported a clear violation of a regulation that explicitly forbade the actions of the eyeglass manufacturer. This did not occur in the instant.

Margiotta first relies on a federal regulation. “The patient has the right to receive care in a safe setting.” 42 C.F.R. 482.13(c)(2). The Department of Health and Human Services enacted this regulation pursuant to federal statutory authority. See 42 U.S.C. §§ 1302, 1395hh, and 1395rr (2009). This regulation clearly empowers patients to assert their right to safety, and reported cases in other jurisdictions recognize this.² The regulation is personal to the patient. No textual part grants protection to employees or requires specific conduct by an employee such as an affirmative duty to report violations. Most importantly, it does not specifically proscribe the three incidents Margiotta reported. This regulation is too vague to support Margiotta’s wrongful discharge action.

The second regulation Margiotta cites was enacted by Missouri’s Department of Health and Senior Services pursuant to statutory authority. Sections 192.006 and 197.080, RSMo. 2000, and 197.154, RSMo. Supp.2005. The regulation states that “[e]ach hospital shall develop a mechanism for the identification and abatement of occupant safety hazards in their facilities. Any safety hazard or threat to the general safety of patients, staff or the public shall be corrected.” 19 C.S.R. 30-20.108(3).

This regulation is not applicable in the present case. The regulation appears in a section titled “Fire Safety, General Safety and Operating Features.” Id. The other parts of the regulation speak to “disaster plans” and hospital construction and remodeling. 19 C.S.R. 30 — 20.108(1)—(4). This regulation clearly deals with building safety, not patient treatment. Margiotta’s “mere citation” to this regulation without a demonstration of how the reported conduct violated it cannot form the basis for a wrongful discharge action.

What Margiotta asks this Court to do is to grant him protected status for making complaints about acts or omission he merely believes to be violations of the law or public policy. The public policy exception to the at-will doctrine is not so broad. A legal duty will not be forced upon parties who have agreed to an at-will relationship; nor will an additional duty be forced upon parties who have agreed to a contractual employment relationship absent a sufficiently definite statute, regulation based on statute, constitutional provision, or rule promulgated by a government body that clearly gives notice to the parties of its requirements. The Hospital was entitled to judgment as a matter of law.

V. Conclusion

The trial court’s judgment is affirmed.

RUSSELL, WOLFF, BRECKENRIDGE, FISCHER and STITH, JJ., concur; TEITELMAN, J., dissents in separate opinion filed.

1 . Retaliation for filing a worker’s compensation action is also prohibited; however, it is controlled by specific statutory authority and is distinct from other wrongful discharge actions.

2 . See NCED Mental Health, Inc. v. Kidd, 214 S.W.3d 28, 36 (Tex.App.El Paso 2006) (Patient bringing suit and citing violation of regulation due to rape by hospital staff while medicated.); Hubbs v. Alamao, 360 F.Supp.2d 1073 (C.D.Cal.2005) (mental patient pled regulation in section as part of an action under 42 U.S.C. 1983 due to disclosure of patient records).