In the Missouri Court of Appeals Western District TRAVIS POKE, ) ) Appellant, ) WD84198 ) v. ) OPINION FILED: September 7, 2021 ) INDEPENDENCE SCHOOL ) DISTRICT, ) ) Respondent. )
Appeal from the Circuit Court of Jackson County, Missouri The Honorable Jennifer M. Phillips, Judge
Before Division Four: Cynthia L. Martin, Chief Judge, Presiding, Gary D. Witt, Judge and Roy L. Richter, Special Judge
Travis Poke ("Poke") appeals from the trial court's entry of summary judgment in
favor of the Independence School District ("School District") on Poke's claim of
retaliatory discharge pursuant to section 287.7801 following Poke's exercise of rights
under the Workers' Compensation Law.2 Poke asserts that the trial court committed legal
error when it concluded that the School District enjoys sovereign immunity from section
1 All statutory references are to RSMo 2016, as supplemented through the date the School District terminated Poke's employment, unless otherwise indicated. 2 Chapter 287. 287.780 claims of retaliatory discharge. Because the General Assembly expressly
waived sovereign immunity for section 287.780 claims of retaliatory discharge, and
because the exception to waiver of sovereign immunity described in section 105.850 does
not apply to the School District, Poke's claim against the School District for retaliatory
discharge is not barred by sovereign immunity. We reverse and remand.
Factual and Procedural Background3
Poke was employed by the School District as a custodian. On December 18, 2019,
Poke injured his lower abdomen and groin while attempting to fold a cafeteria table.
Poke worked through his pain for the next three days until a scheduled holiday break.
When Poke returned to work on January 2, 2020, his pain had decreased, although he had
a knot in his lower abdomen and groin. Over the next two weeks, Poke experienced
intermittent pain that increased with activities.
On January 14, 2020, Poke lifted a full trash barrel liner at work, and then
experienced intense pain and nausea, and had difficulty standing. Poke informed his
supervisor that he needed to seek medical attention. A medical provider informed Poke
that he may have suffered a hernia. Poke realized he sustained the hernia while
attempting to fold the cafeteria table on December 18, 2019.
Poke initiated a workers' compensation claim with the School District on January
15, 2020. He was directed to the School District's authorized treatment provider, who
diagnosed Poke with inguinal tenderness and directed Poke not to lift objects greater than
3 When reviewing the entry of summary judgment, "[w]e view the record in the light most favorable to the party against whom the judgment was entered and accord the non-movant all reasonable inferences from the record." Traweek v. Smith, 607 S.W.3d 779, 784 (Mo. App. W.D. 2020).
2 ten pounds, not to engage in strenuous pulling or pushing, and not to bend or squat. Poke
provided the School District's authorized treatment provider with a urine sample. Poke
returned to work on January 16, 2020.
On January 27, 2020, the School District discharged Poke and provided him with a
termination letter. The letter advised that Poke had been terminated for violating the
School District's policy that "any District employees under the influence of drugs or
controlled substances while on duty are subject to disciplinary action, up to and including
termination." According to the termination letter, Poke's urine sample tested positive for
marijuana. The School District relied on the positive drug test to deny Poke's workers'
compensation claim.
On February 28, 2020, Poke filed a petition ("Petition") against the School District
that alleged the stated basis for his termination was pretextual, and that he was actually
terminated in retaliation for exercising his rights under the Workers' Compensation Law.
Poke's Petition asserted that "[t]he actions of [the School District], including [Poke's]
discharge from employment and denial of [Poke's] previously accepted workers'
compensation claim, were acts of retaliation, in violation of [section] 287.780."
The School District filed an answer ("Answer") to the Petition and denied that
Poke was discharged in retaliation for filing a workers' compensation claim. The Answer
also asserted that "[Poke's] claim[ is] barred by the doctrines of governmental, sovereign,
and/or Eleventh Amendment immunity."
The School District filed a motion for summary judgment ("Motion for Summary
Judgment") on July 29, 2020. The School District's statement of uncontroverted facts
3 alleged: (1) that "[Poke's] claims are based upon events occurring between December
2019 and January 2020"; (2) that "[t]he [School] District maintained a single liability
insurance policy . . . potentially providing coverage in this case"; and (3) that the liability
insurance policy contains a provision that preserves the School District's sovereign
immunity as provided by law. The Motion for Summary Judgment argued that settled
decisional law establishes that public entities like the School District are entitled to
sovereign immunity from section 287.780 retaliatory discharge claims.4 The Motion for
Summary Judgment thus argued that even though the School District had acquired
liability insurance,5 the policy's exclusion of coverage to the extent of the School
District's sovereign immunity was controlling, and required the entry of judgment in
favor of the School District as a matter of law.
Poke's suggestions in opposition to the Motion for Summary Judgment admitted
each of the School District's uncontroverted facts. Poke argued, however, that the
uncontroverted facts did not entitle the School District to judgment as a matter of law.
Poke argued that the General Assembly expressly waived sovereign immunity for section
287.780 retaliatory discharge claims by including governmental bodies within the
definition of "employer" applicable to Chapter 287. Poke further argued that Missouri
4 Although the School District asserted sovereign immunity as an affirmative defense in its Answer, sovereign immunity is not an affirmative defense but is instead a part of the plaintiff's prima facie case, such that Poke had an obligation to plead specific facts in his Petition supporting a waiver of, or an exception to, sovereign immunity. State ex rel. City of Kansas City v. Harrell, 575 S.W.3d 489, 492 (Mo. App. W.D. 2019). The School District did not file a motion to dismiss Poke's Petition for failure to state a claim, and its Motion for Summary Judgment did not argue that Poke failed to plead a waiver of, or an exception to, sovereign immunity. 5 A public entity's purchase of liability insurance generally waives sovereign immunity to the extent of the coverage provided by the policy. See section 537.610.1.
4 cases holding that sovereign immunity is not waived by section 287.780 rely on section
105.850 to reach that conclusion, and have been wrongly decided.
The trial court issued a judgment and order granting the School District's Motion
for Summary Judgment ("Judgment") on November 12, 2020. The Judgment concluded
that, pursuant to Krasney v. Curators of University of Missouri, 765 S.W.2d 646, 648
(Mo. App. W.D. 1989), and King v. Probate Division, Circuit Court of County of St.
Louis, 21st Judicial Circuit, 958 S.W.2d 92, 93 (Mo. App. E.D. 1997), the School
District enjoyed sovereign immunity with respect to Poke's section 287.780 claim for
retaliatory discharge. The Judgment further found that the School District's purchase of a
liability insurance policy did not waive sovereign immunity, as the policy provided that
coverage would not extend to claims that would have been barred by sovereign immunity
but for the existence of the policy.
Poke appeals.
Standard of Review
"We review the grant of summary judgment de novo." Estes as Next Friend for
Doe v. Bd. of Trs. of Mo. Pub. Entity Risk Mgmt. Fund, 623 S.W.3d 678, 686 (Mo. App.
W.D. 2021) (quoting In re Annaliese Brightwell Tr., 605 S.W.3d 143, 145 (Mo. App.
W.D. 2020)). Summary judgment is appropriate if there is no genuine issue as to any
material fact, and where the uncontroverted facts entitle the moving party to judgment as
a matter of law. Id. Where, as here, the movant is the defendant, summary judgment is
appropriate when the movant establishes one of the following:
5 (1) facts negating any one of the claimant's elements necessary for judgment; (2) that the claimant, after an adequate period of discovery, has not been able to--and will not be able to--produce evidence sufficient to allow the trier of fact to find the existence of one of the claimant's elements; or (3) facts necessary to support his properly pleaded affirmative defense.
Scholdberg v. Scholdberg, 578 S.W.3d 831, 834-35 (Mo. App. W.D. 2019) (quoting Love
v. Waring, 560 S.W.3d 614, 618-19 (Mo. App. W.D. 2018)).
In determining whether the trial court's entry of summary judgment was
appropriate, we treat the School District's statement of uncontroverted facts as true unless
properly controverted by Poke. Id. at 834. Poke admitted each of the School District's
uncontroverted facts. Thus, we must determine whether the uncontroverted facts
supported the entry of judgment in favor of the School District as a matter of law. ITT
Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 380
(Mo. banc 1993) ("The key to summary judgment is the undisputed right to judgment as a
matter of law; not simply the absence of a fact question.").
Analysis
Poke asserts in a single point on appeal that the trial court erred as a matter of law
when it entered summary judgment in favor of the School District on the basis of
sovereign immunity. Poke claims that the General Assembly's inclusion of the state and
its political subdivisions in the definition of "employer" for purposes of Chapter 287
constituted an express waiver of sovereign immunity for section 287.780 retaliatory
discharge claims asserted against an employer. Poke argues that Missouri cases holding
6 to the contrary in reliance on section 105.850, an antiquated statute, were wrongly
decided, and should be disregarded.6
The School District concedes that it falls within the definition of "employer" for
purposes of Chapter 287, but argues that section 105.850 has been repeatedly construed
to retain the protection of sovereign immunity for section 287.780 claims of retaliatory
discharge. The School District thus argues that settled precedent requires us to affirm the
trial court's Judgment.
The trial court's Judgment expressly relied on the holdings in Krasney and King to
conclude that the School District enjoys sovereign immunity from section 287.780
retaliatory discharge claims. Krasney and King both hold that, to the extent applicable,
section 105.850 preserves sovereign immunity for tort claims arising under the Workers'
Compensation Law, including claims pursuant to section 287.780. Relying on Krasney
and King, the trial court reached the same conclusion, though the Judgment does not
expressly refer to section 105.850. We must determine whether the trial court's legal
conclusion was correct, notwithstanding the absence of uncontroverted facts. ITT Com.
Fin. Corp, 854 S.W.2d at 380.
Section 105.850 does not apply to the School District and does not operate to preserve the School District's sovereign immunity from section 287.780 retaliatory discharge claims
6 Poke does not challenge the Judgment's conclusion that the School District's purchase of liability insurance did not waive sovereign immunity for section 287.780 retaliatory discharge claims. However, because that conclusion is inherently dependent upon the trial court's conclusion that the School District enjoys sovereign immunity from section 287.780 retaliatory discharge claims, Poke's failure to challenge the Judgment's conclusion regarding the effect of acquiring liability insurance is not fatal to Poke's appeal. Cf. STRCUE, Inc. v. Potts, 386 S.W.3d 214, 219 (Mo. App. W.D. 2012) (holding that an appellant's failure to challenge each ruling that could support affirming a trial court's judgment is fatal to appeal).
7 Section 537.600 addresses sovereign immunity, and provides, in relevant part:
Such sovereign or governmental tort immunity as existed at common law in this state prior to September 12, 1977,7 except to the extent waived, abrogated or modified by statutes in effect prior to that date, shall remain in full force and effect; except that, the immunity of the public entity from liability and suit for compensatory damages for negligent acts or omissions is hereby expressly waived in the following instances: (1) [injuries arising out of the negligent operation of a motor vehicle by a public employee within the course of his or her employment]; [and] (2) [injuries caused by the dangerous condition of a public entity's property].
Section 537.600.1. "Unless [sovereign immunity] is waived or a statutory or recognized
common law exception . . . is applicable, sovereign immunity applies" to protect a public
entity from suit for liability in tort. Metro. St. Louis Sewer Dist. v. City of Bellefontaine
Neighbors, 476 S.W.3d 913, 914 (Mo. banc 2016); see also Wyman v. Mo. Dep't of
Mental Health, 376 S.W.3d 16, 19 (Mo. App. W.D. 2012) ("[A] public entity with the
status of a governmental body . . . is immune from suit for liability in tort in the absence
of an express statutory provision. Liability of a political subdivision for torts is the
exception to the general rule of sovereign immunity . . . ." (quoting Langley v. Curators
of Univ. of Mo., 73 S.W.3d 808, 811 (Mo. App. W.D. 2002))). It is settled law that
school districts are public entities that enjoy sovereign immunity except where waived.
See, e.g., Doe as Next Friend of Doe Minor v. Garagnani, 614 S.W.3d 556, 559 (Mo.
App. S.D. 2020).
The decision to waive sovereign immunity, and the extent to which immunity is
waived, is within the General Assembly's purview. Murray v. Mo. Highway & Transp.
7 September 12, 1977, is the date that the Supreme Court of Missouri abolished sovereign immunity in Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977). Estes as Next Friend for Doe, 623 S.W.3d at 689. The General Assembly restored sovereign immunity by enacting sections 537.600 through 537.650. Id.
8 Comm'n, 37 S.W.3d 228, 235 (Mo. banc 2001). Thus, through the enactment of a statute,
the General Assembly may waive sovereign immunity as it sees fit. Id.
Chapter 287 addresses the duties and obligations of employers with respect to
workers' compensation claims. Section 287.030.1 defines the word "employer" for
purposes of Chapter 287 "to mean: . . . (2) The state, county, municipal corporation,
township, school or road, drainage, swamp and levee districts, or school boards, board of
education, regents, curators, managers or control commission, board or any other political
subdivision, corporation or quasi-corporation, or cities under special charter, or under the
commission form of government." Before 1974, the definition of "employer" in section
287.030.1(2) included a similar list of governmental bodies, but provided that identified
governmental bodies were not bound by the provisions of Chapter 287 unless the entity
"elects to accept [Chapter 287] by law or ordinance." See, e.g., section 287.030.1(2),
RSMo 1969.
In 1969, at a time when submission to the Workers' Compensation Law remained
subject to a governmental body's election "by law or ordinance," the General Assembly
enacted sections 105.800 through 105.850 to make the provisions of Chapter 287
applicable to all "state employees." See sections 105.810 & 105.800 RSMo 1969. "State
employee" was defined as follows:
As used in sections 105.800 to 105.850, the term "state employee" means any person who is an elected or appointed official of the state of Missouri or who is employed by the state and earns a salary or wage in a position normally requiring the actual performance by him of duties on behalf of the state.
9 Section 105.800, RSMo 1969 (emphasis added). Of particular relevance to this case,
section 105.850 provides:
Nothing in sections 105.800 to 105.850 shall ever be construed as acknowledging or creating any liability in tort or as incurring other obligations or duties except only the duty and obligation of complying with the provisions of chapter 287. In 1974, section 287.030.1(2) was amended to delete the provision which made
acceptance of Chapter 287 elective for governmental bodies listed in the definition of
"employer." Section 287.030.1(2), RSMo Supp. 1975. After this amendment, all
governmental bodies identified in section 287.030.1(2) were "employers" bound to
provide workers' compensation coverage pursuant to the provisions of Chapter 287. Id.
The practical effect of the 1974 amendment to section 287.030.1(2) was to eliminate the
need for sections 105.800 through 105.850, at least insofar as those sections extended the
mandate of workers' compensation coverage to "state employees." However, sections
105.800 through 105.850 have never been repealed.
Section 287.780 provides:
No employer or agent shall discharge or discriminate against any employee for exercising any of his or her rights under this chapter when the exercising of such rights is the motivating factor in the discharge or discrimination. Any employee who has been discharged or discriminated against in such manner shall have a civil action for damages against his or her employer. For purposes of this section, "motivating factor" shall mean that the employee's exercise of his or her rights under this chapter actually played a role in the discharge or discrimination and had a determinative influence on the discharge or discrimination.
(Emphasis added.) Before 1973, section 287.780 provided that an employer's discharge
of, or discrimination against, an employee for exercising rights under Chapter 287
10 constituted a criminal misdemeanor. See section 287.780 RSMo 1969. In 1973 section
287.780 was amended to convert an employer's discharge of, or discrimination against,
an employee for exercising rights under Chapter 287 from a criminal misdemeanor to a
private right of action for damages. Section 287.780 RSMo Cum. Supp. 1973. The
effect of this amendment was to "create[] a judicially cognizable independent tort" for
retaliatory discharge. Cook v. Hussmann Corp., 852 S.W.2d 342, 344 (Mo. banc 1993).
The 1973 amendment to section 287.780 occurred one year before the General Assembly
amended section 287.030.1(2) in 1974 to delete the language which made submission to
the Workers' Compensation Law elective for governmental bodies.
The plain language of section 287.780 prohibits all "employers" from engaging in
retaliatory conduct, and creates a civil action for damages against all "employers" who
ignore this prohibition. Poke argues that section 287.780's application to all employers,
and section 287.030.1(2)'s definition of "employer," combine to reflect the General
Assembly's express waiver of sovereign immunity for claims of retaliatory discharge.
Poke further argues that the sequencing of the enactment of sections 105.800 through
105.850 in 1969, and of the amendments to section 287.780 and section 287.030.1(2) in
1973 and 1974, signal the General Assembly's intent to disregard section 105.850's
retention of sovereign immunity for tort claims arising pursuant to the Workers'
Compensation Law, notwithstanding that section 105.850 has never been repealed.
The School District does not contest that it is an "employer" as defined by section
287.030.1(2), and that it is bound to act in accordance with the duties and obligations
imposed by the provisions of Chapter 287. However, the School District contends that it
11 is nonetheless immune from civil liability for the "independent tort" of retaliatory
discharge created by section 287.780 because that section must be read with section
105.850, which states that sections 105.800 to 105.850 are never to be construed as
acknowledging or creating any liability in tort under Chapter 287. The School District
notes that four Missouri cases have so held, and thus argues that section 105.850
prohibits construing section 287.780 as expressly waiving sovereign immunity.
The effect of section 105.850 on civil liability imposed by section 287.780 was
first addressed in Krasney v. Curators of University of Missouri, where we held that
section 105.850 applies to require the conclusion "that, any intimations to the contrary
notwithstanding, none of the provisions of the Workers['] Compensation Law shall be
construed as a waiver of sovereign immunity in favor of a state employee." 765 S.W.2d
at 650 (emphasis added.) Relying on Krasney, the Eastern District similarly held in King
v. Probate Division, Circuit Court of County of St. Louis, 21st Judicial Circuit, that under
section 105.850, "the state has the duty and obligation to comply with the provisions of
Chapter 287, but has not waived tort liability in connection therewith" by virtue of the
plain language of section 105.850. 958 S.W.2d at 93 (emphasis added). We reaffirmed
the holdings in Krasney and King in Wyman v. Missouri Department of Mental Health,
where we concluded that section 105.850 "preserv[es] the State's sovereign immunity
against tort claims, including tort claims for retaliatory discharge based on [section]
287.780," despite the 2005 amendments to the Workers' Compensation Law, and the
12 proviso of section 287.800 requiring strict construction.8 376 S.W.3d at 22 (emphasis
added.) Most recently, the Eastern District rejected an invitation to conclude that
Krasney, King, and Wyman were wrongly decided when it held that "the Board of
Curators is a state employer," and that "sections 105.800 to 105.850 address the
applicability of chapter 287 to state employees and employers." Wille v. Curators of
Univ. of Mo., No. ED109082, 2021 WL 1097876, at *4, *6 (Mo. App. E.D. Mar. 23,
2021).9
As was urged and rejected in Wyman and Wille, Poke argued before the trial court,
and again argues here, that Krasney and its progeny were wrongly decided. We need not
address that broad contention, however, as each case addresses the effect of section
105.850 on the state's civil liability in tort pursuant to section 287.780.10 That is
consistent with the fact that although section 105.850 does not mention the state, or state
employees, it is to be read in pari materia with sections 105.800 through 105.840, since
each provision was enacted at the same time, and for the noted purpose of requiring state
employers to extend workers' compensation coverage to state employees, as defined by
8 Not relevant to this case is the additional holding in Wyman that the State's sovereign immunity does not necessarily bar a retaliatory discharge claim for "injunctive relief which seeks to reverse a state agency's prior violation of its statutory obligations, or to prevent future violations." 376 S.W.3d at 23. 9 When the instant appeal was submitted following oral argument, our Supreme Court had before it the employee's pending application for transfer in Wille, case number SC99110. On August 31, 2021, the Court denied that application for transfer so that the Eastern District's opinion in Wille is now final. 10 In Krasney, King, Wyman, and Wille the employee claimant was employed by the state to perform duties on behalf of the state, and was thus a "state employee" as defined by section 105.800. See Krasney, 765 S.W.2d at 648 (plaintiff was a librarian employed by the Curators of the University of Missouri, an entity through which the State of Missouri functions to govern the University of Missouri system, as held by Tribune Publishing Co. v. Curators of University of Missouri, 661 S.W.2d 575, 584 (Mo. App. W.D. 1983)); King, 958 S.W.2d at 92 (plaintiff was an auditor employed by the Probate Division of the Circuit Court of the County of Saint Louis, a state employer for workers' compensation purposes pursuant to Smith v. Thirty-Seventh Judicial Circuit of Missouri, 847 S.W.2d 755, 758 (Mo. banc 1993)); Wyman, 379 S.W.3d at 18 (plaintiffs were sixteen former or current employees of the Fulton State Hospital, operated by the Missouri Department of Mental Health, an agency of the state); Wille, 2021 WL 1097876, at *1, *4 (plaintiff was the project director employed by the Curators of the University of Missouri, and "the Board of Curators is a state employer").
13 section 105.800. See State ex rel. Evans v. Brown Builders Elec. Co., 254 S.W.3d 31, 35
(Mo. banc 2008) ("In determining the intent and meaning of statutory language, the
words must be considered in context and sections of the statutes in pari materia, as well
as cognate sections, must be considered in order to arrive at the true meaning and scope
of the words." (internal quotation marks omitted))). As a matter of law, section
105.850's restraint on the civil liability otherwise imposed on all employers by section
287.780 is limited to situations where the state is the employer, and a state employee (as
defined by section 105.800) is the workers' compensation claimant. See Treasurer of
State v. Parker, 622 S.W.3d 178, 181 (Mo. banc 2021) (noting that we must ascertain the
intent of the General Assembly by considering the plain and ordinary language of statutes
and then giving effect to that intent if possible).
A school district is a political subdivision of the state. Hughes v. Civil Serv.
Comm'n, 537 S.W.2d 814, 815 (Mo. App. 1976) ("School districts are political
subdivisions of the state . . . ."). Section 70.210(3) defines a "political subdivision" as:
[C]ounties, townships, cities, towns, villages, school, county library, city library, city-county library, road, drainage, sewer, levee and fire districts, soil and water conservation districts, watershed subdistricts, county hospitals, any board of control of an art museum, any 911 or emergency services board authorized in chapter 190 or section 321.243, the board created under section 205.968 to 205.973, and any other public subdivision or public corporation having the power to tax.
A school district "perform[s] the duties of the state in the conduct and maintenance of . . .
public schools," and is "a subordinate agency, subdivision, or instrumentality of the
state." State ex inf. McKittrick v. Whittle, 63 S.W.2d 100, 102 (Mo. banc 1933).
However, that does not make a school district, or any other political subdivision, the
14 "state" with employees who are "state employees." See P.L.S. ex rel. Shelton v. Koster,
360 S.W.3d 805, 815 (Mo. App. W.D. 2011) ("School districts are not typically regarded
as a division or department of state government, but, as already mentioned, are
considered legally separate, special-purpose, local governmental subdivisions with
powers similar to those of a town, village, or county, including the ability to levy taxes.").
The distinction between the "state" and a school district was most recently underscored in
S.M.H. v. Schmitt, 618 S.W.3d 531 (Mo. banc 2021), where our Supreme Court
unequivocally held:
[P]ublic school districts in Missouri are regularly considered political subdivisions--not agencies of the state. See Mo. const. art X, sec. 15 ("The term "other political subdivision," . . .shall be construed to include . . . school [districts'"). Public school districts, as political subdivisions, are distinct from "agencies of the state." See P.L.S., 360 S.W.3d at 812-13. In P.L.S., the court of appeals observed, while school districts are certainly "governmental instrumentalities," they are not "agencies of the state" under the "technical, governmental sense." Id. at 813. Instead, school districts are "political subdivisions" and "considered legally separate, special- purpose, local governmental subdivision with powers similar to those of a town, village, or county." Id. at 815.
Because school districts are not "agencies of the state," district employees are routinely excluded from statutory provisions covering employees of "agencies of the state." See, e.g., id. at 815.
It follows, therefore, that section 105.800 et. seq., which applies by its express terms to
the "state" and to "state employees," has no application to school districts or to school
district employees.
Because the School District is not the "state," and Poke is not a "state employee,"
section 105.850 has no application to this case, and cannot be relied on to support the
conclusion that sovereign immunity is not waived for the School District pursuant to
15 section 287.780. The trial court's express reliance on Krasney and King to reach a
contrary conclusion is legally erroneous.11
Section 287.780 and section 287.030.1(2) combine to expressly waive sovereign immunity
We are nonetheless required to affirm the trial court's grant of summary judgment
on any ground supported by the record. Estes as Next Friend for Doe, 623 S.W.3d at
687. As such, we are required to address the fact that, before it even considered the
implications of section 105.850, Krasney held that "[n]either [section] 287.780 nor any
other component of the Workers['] Compensation Law expresses an intention to submit a
governmental entity to liability for tort for breach of that retaliatory discharge provision."
765 S.W.2d at 650. Krasney reached this conclusion because section 287.780 is silent
with respect to an intent to waive sovereign immunity, and because (according to
Krasney) "[t]he waiver of sovereign immunity . . . must be by express consent to be
sued." Id. In other words, Krasney held that without regard to section 105.850, section
287.780 does not expressly waive sovereign immunity because it is silent on the subject.
In Wyman, we observed that "[t]his aspect of Krasney may be questionable in light
of Bachtel v. Miller County Nursing Home District, 110 S.W.3d 799 (Mo. banc 2003)."
376 S.W.3d at 21. In Bachtel, the Supreme Court of Missouri addressed how the General
Assembly can expressly waive sovereign immunity and held:
Nothing in the statutes or case law requires that certain magic words must be used in order to waive sovereign immunity. The case law . . . merely requires that the intent of the legislature to waive sovereign immunity must 11 We do not fault the trial court, however, as Poke primarily defended the School District's motion for summary judgment by more broadly arguing that Krasney and King were wrongly decided and should be disregarded.
16 be express rather than implied. While the most common way to express that intent may be to specifically state that sovereign immunity is waived, the legislature also expresses its intent through other language.
110 S.W.3d at 804. Though Wyman questioned Krasney's holding that legislative waiver
of sovereign immunity requires an expressly stated consent to be sued, Wyman was not
required to abrogate the holding, and instead relied on Krasney's alternative holding that
section 105.850 legislatively disclaims a waiver of sovereign immunity under the
Workers' Compensation Law in "favor of a state employee." Wyman, 376 S.W.3d at 21
(emphasis added) (quoting Krasney, 765 S.W2d at 650).
In this case, because section 105.850 has no application to the School District, (as
we explain supra), we are now compelled to take the step alluded to, but avoided, in
Wyman. We conclude that, in light of Bachtel, Krasney's holding that section 287.780
does not expressly waive sovereign immunity because it fails to include an express
consent for governmental bodies to be sued should not be followed. Instead, we conclude
that the General Assembly's creation of a civil action for damages in section 287.780 that
can be brought against any employer, and the General Assembly's intent that the
Workers' Compensation Law apply to every governmental body included within the
definition of "employer" at section 287.030.1(2), combine to reflect an express waiver of
sovereign immunity for section 287.780 claims of retaliatory discharge.12 In support of
this conclusion, we note there is no discernable difference between this case and Bachtel,
12 The General Assembly's express waiver of sovereign immunity demonstrated by reading section 287.030.1(2) with section 287.780 remains subject, however, to the retention of sovereign immunity by the state with respect to claims of retaliatory discharge by state employees, as provided in section 105.850, and as held in Krasney, King, Wyman, and Wille. For the reasons herein explained, we need not address Poke's contention that this holding in Krasney, King, Wyman, and Wille should no longer be followed.
17 where the Supreme Court found an express waiver of sovereign immunity "[w]here (1)
the relevant statutes created a private right of action for nursing home employees who
were retaliated against for reporting abuse or neglect of residents, and (2) the statutes
were made generally applicable to nursing home districts (which would otherwise be
entitled to sovereign immunity)." Wyman, 376 S.W.3d at 21 n.6 (citing Bachtel, 110
S.W.3d at 804); see also Otte v. Mo. State Treasurer, 141 S.W.3d 74, 76 (Mo. App. E.D.
2004) ("In Bachtel, . . . the court found that sovereign immunity was waived by statutory
language that created a private right [of] action and defined the state agency being sued
as being subject to the act."); cf. R.M.A. by Appleberry v. Blue Springs R-IV Sch. Dist.,
568 S.W.3d 420, 429 (Mo. banc 2019) (holding that a provision prohibiting "any person"
from discriminating in the use of a public accommodation, read with the definition of
public accommodation which included those owned by the state or its political
subdivisions, constituted an express waiver of sovereign immunity even though the
definition of "person" did not expressly include the state or its political subdivisions).
The School District is not protected by sovereign immunity from Poke's claim for
retaliatory discharge pursuant to section 287.780. The trial court committed legal error in
concluding otherwise in order to grant summary judgment in favor of the School District.
Poke's point on appeal is granted.
18 Conclusion
The trial court's Judgment is reversed. This matter is remanded to the trial court
with instructions to vacate its Judgment, and to conduct further proceedings consistent
with this opinion.
__________________________________ Cynthia L. Martin, Judge
All concur