Porter v. Reardon MacHine Co.

962 S.W.2d 932, 14 I.E.R. Cas. (BNA) 890, 1998 CCH OSHD 31,528, 1998 Mo. App. LEXIS 327, 1998 WL 71748
CourtMissouri Court of Appeals
DecidedFebruary 24, 1998
DocketWD 54256
StatusPublished
Cited by23 cases

This text of 962 S.W.2d 932 (Porter v. Reardon MacHine Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Porter v. Reardon MacHine Co., 962 S.W.2d 932, 14 I.E.R. Cas. (BNA) 890, 1998 CCH OSHD 31,528, 1998 Mo. App. LEXIS 327, 1998 WL 71748 (Mo. Ct. App. 1998).

Opinion

LAURA DENVIR STITH, Judge.

Appellant Charles Porter appeals the grant of summary judgment to Respondent Reardon Machine Company, arguing that he established a cause of action under the public policy “whistleblower” exception to the employment at-will doctrine. Because we find that Mr. Porter failed to show that the matters he complained about constituted a violation of the constitution or a statute or regula *934 tion or of a clear mandate of public policy, and because we find that he was terminated for refusing to perform his work rather than for whistleblowing, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In the light most favorable to Appellant, the facts show that he worked for Reardon Machine Company in St. Joseph, Missouri. Mr. Porter worked primarily as a welder, but he also performed various other jobs when there was not enough welding work. At one time, Mr. Porter was assigned to a process called “grinding,” but he refused to do this kind of work. Mr. Porter also worked for a period of time in an area that produced liners, but eventually Mr. Porter refused to do that work, too. It is unclear what type of work he was performing for Reardon when he was asked to undertake a project requiring lead welding.

Mr. Porter was assigned to the lead welding operation. While performing these duties, he made a number of oral complaints to his supervisors about the adequacy of the ventilation in Reardon’s lead welding operation and the adequacy of the face masks provided by Reardon for lead welding. John Clayton, a supervisor for Reardon, discussed Mr. Porter’s concerns with Andy Wood, another Reardon supervisor. On October 8, 1993, approximately three weeks prior to Mr. Porter’s termination, Mr. Wood informed Karen Reardon that Mr. Porter continued to complain, that Mr. Porter had stated he was considering calling the EPA about the safety of Reardon’s lead operation, and that Mr. Porter was refusing to do the lead welding work. On that date, Karen Reardon met with Mr. Porter and gave him a verbal warning for his complaints and refusal to do lead welding.

At the beginning of the day on October 27, 1993, Mr. Porter told Mr. Clayton that he refused to perform any further lead welding for “safety reasons.” Mr. Clayton reported that refusal to Mr. Wood. Mr. Porter testified in his deposition that he told Mr. Clayton and Mr. Wood that he was going to call the EPA. Joseph Reardon (owner of Rear-don), Mrs. Reardon, and Mr. Wood met with Mr. Porter approximately thirty minutes later. Mr. Porter was given a written warning on that date, which he signed. That warning stated:

Charlie has complained on numerous occasions about our lead pouring and welding operation. Frequent arguments with others in area. Moving lead welding to center of building away from ventilation. Threats to call EPA

Mr. Reardon informed Mr. Porter that if he refused to do lead welding there was no other work for him to do. The last thing Mr. Porter said when he left Mr. Reardon’s office was that he was going to call the EPA. Mr. Reardon offered to give Mr. Porter the EPA’s number. The EPA number was also provided to Mr. Porter on his complaint form.

October 27,1993, was Mr. Porter’s last day of work. The parties dispute whether Mr. Porter was actually terminated on that day, or whether they simply sent him home since he refused to work on welding and they had no other project at that time which he could work on. The record does show that Mr. Reardon wrote Mr. Porter a letter dated November 5, 1993, in which Mr. Reardon stated that they had unsuccessfully tried to contact Mr. Porter by telephone. The letter also stated:

We have welding work for you at this time, if you are willing to improve your attitude in working with others and doing the job required without continuous complaints.
We have talked to Frank, who has passed our message on to you about your employment, but you have failed to respond to us. We need a welder and are taking applications at this time. Please let use know by noon on Wednesday, November 10, 1993 before we make a decision on a welder. Your insurance is being carried through November 27,1993.

In response, Mr. Porter wrote a letter to Mr. Reardon stating that he needed the income and would like to come back to work, but he still had concerns about the lead operation. Mr. Porter said, “It is unfamiliar territory for me and my instinct tells me that it is unsafe.” Mr. Porter indicated that he *935 was willing to come back to work if Reardon tested the air that the employees in the lead operation were breathing. On November 11, 1998, Mr. Reardon wrote back to Mr. Porter. That letter stated:

We have a business to run and cannot be held back because of the refusal of an employee to do a job. We have taken the suggested precautions in our lead welding operation according to the M.S.D.S. for lead and the suggestions from Linweld (our welding supply vendor). The tests that you request are not easily obtainable at a moments notice. We have made several inquiries to places in Kansas City and St. Louis, and have the name of a place in Tennessee. We are waiting to hear from them.
We need a welder immediately and find that we must have one by Monday, November 15, 1993. Your refusal to work in the plating area and grinding area leaves us with an open position. This position will be filled and we cannot wait until your requested tests are completed. Therefore unless you wish to work under our terms, we have no further need for you in our company.
Please let us know of your decision by Friday, November 12. You are a very talented welder, and we hate to lose your services, but we must continue to conduct our business with the services of a welder.

Reardon claims, based on this correspondence, that Mr. Porter was not terminated until he refused to return to work on November 15, 1998. For the purposes of determining whether summary judgment was proper, however, we accept Mr. Porter’s position that he was terminated on October 27,1993.

Mr. Porter filed suit against Reardon claiming that he was fired in retaliation for threatening to report Reardon’s safety violations to government authorities. His Petition alleged:

16. Porter considered himself fired [on October 27, 1993] because he had continued to complain about the “lead welding operation” and because he had threatened RMC with calling EPA/OSHA. To Porter, Exhibit A [the written warning of October 27, 1993] confirmed that was why he was fired.
17. After October 27, Joe Reardon attempted, by telephone and letter, to rehire Porter by asking him to come back to work if he would stop complaining.
22. Porter by the above acts has engaged in “whistleblowing”, an exception to the Missouri “at will” employee doctrine.
23. As a direct and proximate result of Porter’s “whistleblowing”, Porter was fired and has since suffered loss of income....

Following discovery, the parties filed cross motions for summary judgment. Mr. Porter argued he had proved he was fired for whist-leblowing. In support, Mr.

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962 S.W.2d 932, 14 I.E.R. Cas. (BNA) 890, 1998 CCH OSHD 31,528, 1998 Mo. App. LEXIS 327, 1998 WL 71748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/porter-v-reardon-machine-co-moctapp-1998.