Christa Reed v. The Curators of the University of Missouri , 509 S.W.3d 816 ( 2016 )

MISSOURI COURT OF APPEALS
WESTERN DISTRICT
CHRISTA REED, )
) WD79371
Appellant, )
v. ) OPINION FILED:
)
THE CURATORS OF THE ) November 15, 2016
UNIVERSITY OF MISSOURI, ET )
AL., )
)
Respondents. )
Appeal from the Circuit Court of Boone County, Missouri
Honorable Jodie Asel, Judge
Before Division One: Thomas H. Newton, P.J.,
Cynthia L. Martin, and Edward R. Ardini, Jr., JJ.
Ms. Christa Reed appeals a judgment denying her claim for wrongful discharge
in violation of public policy based on breach of contract and tortious interference with
business expectancy. 1 This claim was resolved after the trial court sustained the motion
for directed verdict filed by the Curators of the University of Missouri (University) and
Drs. Elizabeth Giuliano and Jacqueline Pearce. We affirm.
The University employed Ms. Reed from January 2004 to March 2011 as a
veterinary technician, serving in multiple departments at the MU Veterinary Health
1
At trial claims of a Missouri Human Rights Act violation, defamation, and violations of the U .S.
constitution were also addressed, however, these issues are not on appeal.
1
Center (VHC). Ms. Reed worked in the VHC’s radiology service from 2004 -2006,
transferring to the ophthalmology service in November 2006.
As an employee in the ophthalmology service, her chain of command included
Department Chair Dr. John Dodam, VHC Director, Dr. David Wilson, VHC
Administrator, Mr. Ron Haffey, Professor of Ophthalmology, ophthalmology section
leader, Dr. Elizabeth Guiliano, and Assistant Professor of Ophthalmology, Dr.
Jacqueline Pearce. Dr. Dodam oversaw the faculty clinicians, including Drs. Giuliano
and Pearce. Dr. Wilson and Mr. Haffey were responsible for hiring, firing, and
disciplining VHC staff employees. Ms. Reed was supervised by the ophthalmology
clinicians on her service including Drs. Giuliano and Pearce , who directed her work
and provided her performance evaluations.
Each year, Ms. Reed was evaluated by all of the ophthalmology service’s faculty
and resident clinicians. In January 2009, Ms. Reed received an average score of 3.2
out of 4, containing mixed comments and suggestions for improvement. In February
2010, Ms. Reed received an average score of 2.7 out of 4 on her annual evaluation for
the 2009 calendar year. She again received mixed remarks. Ms. Reed’s 2009
evaluation documented an unexpected “subtle decline” in her performance. In May
2010, a “precipitous decline” was noticed.
The May 2010 evaluation noted numerous performance issues that had
previously been raised. When she received this review she was also notified that she
had been placed on a six-month probation to allow her to correct the identified
deficiencies. In October 2010, at the conclusion of her probation, Ms. Reed’s progress
had not improved. Because she had not been evaluated during her probation, she was
2
issued a written review that her probation was extended until January 2011. The written
notice identified previously noted deficiencies.
In mid-February 2011, Ms. Reed received a two-day suspension for failing to
improve her performance by the end of her review period. Ms. Reed’s poor
performance continued after her suspension, and she was terminated on March 3, 2011,
for unsatisfactory performances and unprofessional behavior.
From November 2010 through March 2011, Ms. Reed filed a se ries of internal
grievances, three of which alleged that her suspension and termination were executed
in retaliation for her reports of “potential fiscal irregularities” related to the
ophthalmology service.
After her termination, Ms. Reed filed suit against the University and Drs.
Giuliano and Pearce. Ms. Reed’s lawsuit asserted five counts: Wrongful Discharge in
Violation of Public Policy Based on Breach of Contract (Count I) against all
defendants, Tortious Interference with a Business Expectancy (Count II) against Drs.
Giuliano and Pearce, and Violations of the Missouri Human Rights Act (Count III) on
the basis of age against all defendants. 2 At the close of Ms. Reed’s evidence, the trial
court granted defendants’ motion for directed verdict on her wrongful discharge and
tortious interference claims. At the conclusion of trial, the jury returned unanimous
verdicts for all defendants on Ms. Reed’s remaining Missouri Human Rights Act claim.
The trial court overruled Ms. Reed’s motion for a new trial. This appeal follows.
Legal Analysis
In reviewing the grant of a motion for directed verdict, this Court
“must determine whether the plaintiff made a submissible case…” Dunn v.
2
The court had previously dismissed Count IV, Defamation as to Dr. Giuliano, and deemed Count V,
alleged constitutional violations against Drs. Giuliano and Pearce, abandoned.
3
Enter. Rent-A-Car Co., 170 S.W.3d 1,3 (Mo. App. E.D. 2005). “A case may
not be submitted unless each and every fact essential to liability is predicated
upon legal and substantial evidence.” Investors Title Co., Inc. v. Hammonds,
217 S.W.3d 288, 299 (Mo. banc 2007). “An appellate court views the
evidence in the light most favorable to the plaintiff to determine whether a
submissible case was made…” Tune v. Synergy Gas Corp., 883 S.W.2d 10,
13 (Mo. banc 1994). “The plaintiff may prove essential facts by
circumstantial evidence as long as the facts proved and the conclusions to
be drawn are of such a nature and are so related to each other that the
conclusions may be fairly inferred.” Morrison v. St. Luke’s Health Corp.,
929 S.W.2d 898, 900 (Mo. App. E.D. 1996). “Whether the plaintiff made a
submissible case is a question of law subject to de novo review.” D.R.
Sherry Const., Ltd. v. Am. Family Mut. Ins. Co., 316 S.W.3d 899, 904 (Mo.
banc 2010). Further, with respect to evidentiary rulings, the trial court
“enjoys considerable discretion in the admission or excl usion of evidence,
and, absent clear abuse of discretion, its action will not be grounds for
reversal.” State v. Mayes, 63 S.W.3d 615, 629 (Mo. banc 2001).
Moore v. Ford Motor Co., 332 S.W.3d 749, 756 (Mo. banc 2011).
Count I
In three of her four points, Ms. Reed asserts that the trial court erred in granting
the University’s motion for a directed verdict on her claim of wrongful discharge in
violation of policy based on breach of contract. Because these issues are so closely
related, we will address them together.
“Under Missouri’s employment at-will doctrine an employer can discharge—for
cause or without cause—an at-will employee who does not otherwise fall within the
protective reach of a contrary statutory provision and still not be subject to lia bility for
wrongful discharge. Dake v. Tuell, 687 S.W.2d 191, 193 (Mo. banc 1985). Unless a
claim is based on a statute, an at-will employee must plead offer, acceptance, and
bargained for consideration. Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661,
662-63 (Mo. banc 1988) (“Absent a valid contract of employment between the parties,
plaintiff as an at will employee could be discharged for cause or without cause.”).
4
“Without a statement of duration, an employment at will is created which is terminable
at any time by either party with no liability for breach of contract.” Luethans v.
Washington Univ., 894 S.W.2d 169, 172 (Mo. banc 1995), abrogated on other grounds
by Keveney v. Mo. Military Acad., 304 S.W.3d 98 (Mo. banc 2010). “Alternatively, if
there is not a specific duration expressed, the contract must be one that places limits
on the employer’s rights to discharge at will.” Morrow v. Hallmark Cards, Inc., 273
S.W.3d 15, 26 (Mo. App. W.D. 2008). Because of “its very moment-by-moment
nature,” at-will employment is not a legally enforceable employment contract. Id.
Because of the general language and the potential for alteration at any time, an
employee handbook cannot reasonably be interpreted to alter an at -will employment
arrangement. Johnson, 745 S.W.2d at 662. Property interests in one’s continued
employment “‘are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law —rules or
understandings that secure certain benefits and that support claims of entitlement to
those benefits.’” Daniels v. Bd. of Curators of Lincoln Univ., 51 S.W.3d 1, 7 (Mo. App.
W.D. 2001)(quoting Bd. Of Regents of State College v. Roth, 408 U.S. 564, 577 (1972)).
“Missouri has held that if there is a property interest established, the employee is
entitled to notice of the reasons for dismissal and an opportunity to be heard prior to
having his employment interrupted. The opportunity to be heard must be at a
meaningful time and in a meaningful manner.” Id. “‘A property interest in employment
can also be created by implied contract arising out of customs, practices and defacto
policies.’” Id. at 8. (quoting Winegar v. Des Moines Indep. Sch. Dist., 20 F.3d 895, 899
(8th Cir. 1994)).
5
The at-will doctrine is, however, limited in two 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.’” Margiotta v. Christian
Hosp. Ne. Nw., 315 S.W.3d 342, 346 (Mo. banc 2010) (quoting Section 213.055 RSMo.
Supp. 2005). The at-will doctrine is also limited by a “public-policy exception.” Id.
The public-policy exception is narrowly tailored and prevents the termination of an at -
will employee “for refusing to perform an illegal act or reporting wrongdoing or
violations of law to superiors or third parties.” Id. “[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. Absent such explicit authority, the
wrongful discharge action fails as a matter of law.” Id. “‘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. ’” Id. at 347
(quoting 82 An. Jur. 2d § 61). Thus, to prevail on a whistleblowing claim, the plaintiff
must demonstrate that he “‘reported to superiors or to public authorities serious
misconduct that constitutes a violation of law and of…well-established and clearly
mandated public policy.’” Id. (quoting Lynch v. Blanke Vaer & Bowey Krimko, Inc.,
901 S.W.2d 147, 150 (Mo. App. E.D. 1995)).
Sovereign Immunity for Claims Based in Tort
Ms. Reed asserts that the trial court erred in granting the University’s motion for
a directed verdict on Count 1 because it found that Ms. Reed’s claim was a tort. Ms.
Reed asserts that the University was not entitled to sovereign immunity because her
6
claim “was based on an express contractual agreement between her and her employer
that it would not retaliate against her if she reported misconduct in good faith. ” We
disagree.
If an employer terminates an employee for either of the two recognized
exceptions to the at-will employment doctrine, “the employee has a cause of action in
tort based on the public-policy exception.” Fleshner v. Pepose Vision Inst., P.C., 304
S.W.3d 81, 92 (Mo. banc 2010). “The Curators of the University of Missouri ‘is “a
public entity with the status of a governmental body and, as such, is immune from suit
for liability in tort in the absence of an express statutory provision.”’” Langley v.
Curators of Univ. of Mo., 73 S.W.3d 808, 811 (Mo. App. W.D. 2002) (quoting Brennan
by & through Brennan v. Curators of the Univ. of Mo., 942 S.W.2d 432, 434 (Mo. App.
W.D. 1997) (quoting Krasney v. Curators of Univ. of Mo., 765 S.W.2d 646, 649 (Mo.
App. W.D. 1989))).
At trial, Ms. Reed disclaimed the tortious nature of her claims, instead arguing
that she may skirt sovereign immunity because this is a wrongful termination in
violation of a public policy as a contract. 3 In making this assertion, Ms. Reed relies on
Holmes v. Kansas City Bd. of Police Comm’rs, 364 S.W.3d 615 (Mo. App. W.D. 2012).
In Holmes, the plaintiff alleged that he suffered retaliation for whistleblowing. Id. at
624-26. Although this Court acknowledged that sovereign immunity does not apply to
breach of contract suits, the plaintiff’s claim was denied because “we cannot find it
was submitted as a claim in contract rather than a claim in common -law tort.” Id. at
3
Specifically, Ms. Reed asserts, “[t]his is not a breach of an employment contract. This is a breach of
a promise, for a promise contained in their anti-retaliation practices. It’s not precatory, it’s not wishful,
it’s not aspirational. It’s clear retaliation and will not be tolerated.”
7
625. Therefore, Ms. Reed asserts that this case “opened the door and the possibility
that if [the claim is] pled as a contract and it’s presented as a contract in the verdict
director, it is a contract and skirts the sovereign immunity.”
Ms. Reed, however, has failed to demonstrate the essential elements of a
contract. See Holmes, 364 S.W.3d at 624 (“[A] claim for breach of contract requires:
‘(1) the existence and terms of a contract; (2) that plaintiff performed or tendered
performance pursuant to the contract; (3) breach of the contract by the defendant; and
(4) damages suffered by the plaintiff.’”). In her amended petition, Ms. Reed
specifically states that her position was one of at-will employment. 4 Count 1 of her
petition asserts a claim of wrongful discharge. Thus, the facts alleged in Ms. Reed’s
petition clearly highlight the disposable nature of her employment. See Dake, 687
S.W.2d at 193 (Missouri law has consistently held that an at-will employee can be
terminated for any reason and an employer cannot be held liable for a claim of wrongful
discharge.); see also Luethans, 894 S.W.2d at 172 (“‘Without a statement of duration,
an employment at will is created which is terminable at any time by either party with
no liability for breach of contract.’”) (quoting McCoy v. Spelman Memorial Hosp., 845
S.W.2d 727, 730 (Mo. App. 1993)). Further, regardless of Ms. Reed’s failure to prove
a valid employment contract, Ms. Reed did not have explicit authority as a basis for
her alleged wrongful discharge and, thus, fails as a matter of law. See Margiotta, 315
S.W.3d at 346 (“[A] wrongful discharge action must be based on a constitutional
4
Ms. Reed also contends that, because an employee handbook can create a protected property interest
for an at-will employee, the University’s human resources policies can create binding contractual
promises protecting an at-will employee from retaliation, relying on Daniels v. Bd. of Curators of
Lincoln Univ., 51 S.W.3d 1 (Mo. App. W.D. 2001). In Daniels, however, we noted that a protected
property interest only entitled the plaintiff to due process in dismissal, an issue not on appeal in this
case. Id. at 7. Therefore, this matter is not pertinent to the issue on appeal.
8
provision, a statute, a regulation based on a statute or a rule promulgated by a
governmental body. Absent such explicit authority, the wrongful discharge action fails
as a matter of law.”). Finally, at trial, counsel for Ms. Reed specifically stated that,
“[t]his is not a breach of an employment contract.” Therefore, because this is not a
breach of contract claim, Ms. Reed’s claims fall within the public-policy tort exception,
under which the University has sovereign immunity. Point is denied.
HR-520
Ms. Reed also asserts that the trial court erred in granting the University’s
motion for a directed verdict on Count 1 by finding that University policy HR-520 did
not contain specific binding promises because the parties’ intent to enter into a contract
and whether a promise not to retaliate is a binding obligation are questions f or the fact-
finder. We disagree.
“Contracts embody the intention of two or more parties to bind themselves
legally to promises, and are often characterized by the concepts of mutual promises.”
Morrow, 273 S.W.3d at 22. “The essential elements of a valid contract include offer,
acceptance, and bargained for consideration.” Johnson, 745 S.W.2d at 662. A bilateral
contract is one in which there are mutual promises between two parties. Baier v.
Darden Rests., 420 S.W.3d 733, 738 (Mo. App. W.D. 2014). “[I]f a contract contains
mutual promises, such that a legal duty or liability is imposed on each party as a
promisor to the other party as a promisee, the contract is a bilateral contract supported
by sufficient consideration.” Frye v. Speedway Chevrolet Cadillac, 321 S.W.3d 429,
438 (Mo. App. W.D. 2010). A promise is not sufficient consideration unless there is
mutual obligation, meaning that “an obligation rests upon each party to do or permit to
9
be done something in consideration of the act or promise of the other; that is, neither
party is bound unless both are bound.” Sumners v. Serv. Vending Co., Inc., 102 S.W.3d
37, 41 (Mo. App. S.D. 2003) (citation omitted).
“Under Missouri law, employee handbooks generally are not considered
contracts because they normally lack the traditional prerequisites of a contract.”
Johnson v. Vatterot Educ. Ctrs., Inc., 410 S.W.3d 735, 738 (Mo. App. W.D. 2013)
(citation omitted). This is because employee handbooks are “self-imposed policies,
providing a nonexclusive list of acts for which an employee might be subject to
discipline.” Johnson, 745 S.W.2d at 662. “Terms and conditions of at-will employment
are not enforceable at law as contractual duties.” Morrow, 273 S.W.3d at 26.
Here, Ms. Reed bases her breach of contract claim on her appointment
notification and HR-520: Reporting University-Related Misconduct. Ms. Reed’s
signed appointment notification reflects her acceptance of an “Administrative, Service
and Support” appointment as a Senior Veterinary Technician beginning in January
2004. The appointment notification also states:
Please read this document carefully before signing it. This
document and the Collected Rules and Regulations of the University of
Missouri (Collected Rules) state the terms of your employment with the
University of Missouri. To the extent conversations or other documents
are inconsistent with this document or the Collected Rules, the Collected
Rules followed by this document will govern…. All Administrative,
Service and Support and academic administrative appointments,
including, but not limited to Department Chair, Dean and Chancellor, are
indefinite and may end at any time. I agree to accept the position on the
terms specified above.
This language clearly forms an at-will employment relationship. See Margiotta,
315 S.W.3d at 345 (“Absent an employment contract with a ‘definite statement of
duration…an employment at will is created.’”) (quoting Luethans v. Washington Univ.,
10
894 S.W.2d 169, 172 (Mo. banc 1995)). This document did not relay any clear or
definite promises regarding the terms and conditions of Ms. Reed’s employment.
Instead, the appointment simply offered her an at-will employment along with the
related unilaterally imposed terms and conditions. HR-520, at most, is one of the
unilaterally adopted terms and conditions of employment. The language of HR-520
states:
Summary
Faculty, staff, and students are encouraged to make good faith
reports of University-related misconduct. Retaliation as a response to
such disclosure will not be tolerated.
Reporting
Information of University-related misconduct of illegal, improper
or dishonest acts should be reported to an employee’s supervisor or other
University official or other reporting mechanism established by the
University. Such acts would include, but not be limited to, corruption,
burglary, theft of University property, fraud, coercion, discrimi nation,
sexual harassment, civil rights violations, misuse of University property,
and conflicts of interest. Remedies to address University-related
misconduct may include termination of employment, requirement of
restitution and presentation of such information to the appropriate
authorities for criminal prosecution.
Definition
A good faith report is the disclosure of University-related
misconduct made with a belief in the truth of the information which a
reasonable person could hold based upon the facts. A disclosure is not
made in good faith if made with knowledge of its falsity or reckless
disregard of the facts. University-related misconduct includes any
activity which affects the University by a University department or by any
University employee which is in violation of any state or federal law or
University policy, as described in more detail in the preceding section.
11
Retaliation
Any threat of or attempt to penalize or retaliate against an
employee for filing a good faith report or participating in the investigation
of a good faith report regarding University-related misconduct will be
considered a separate and distinct violation of University policy.
To uphold her wrongful discharge claim, Ms. Reed needed to identify a clear,
definite promise to modify her at-will employee status. See Johnson, 745 S.W.2d at
662. The language of HR-520 does not explicitly promise that employees would not
be fired for reporting University misconduct. Instead, the language simply explains
the University’s general policy toward misconduct reports. The language of HR-520,
does not “require” an employee to report misconduct. The policy language did not
expose Ms. Reed to any legal duties or liabilities. Instead, it explains that employees
are simply “encouraged” to report misconduct. Therefore, the policy language does
not provide a specific binding promise, meaning a bilateral contract does not exist ,
because there is not sufficient consideration of mutual promises. Instead, HR-520 is
nothing more than a term of Ms. Reed’s employment that neither party had a right to
legally enforce. Morrow, 273 S.W.3d at 26-27 (“[T]he only legally enforceable
promise created out of at-will employment is the employer’s promise, whether express
or implied, to pay the employee for the work performed by the employee. The
employer can enforce, through employee discipline, many different conditions of
employment; but the employer has no legal cause of action for breach of contract.”) .
Further, even if the terms and conditions outlined in HR-520 attempted to alter
Ms. Reed’s status as an at-will employee, the alteration is voided through the language
of the Appointment Notification (which created an at-will employment relationship),
stating, “[t]o the extent conversations or other documents are inconsistent with this
12
document or the Collected Rules, the Collected Rules followed by this document will
govern.” Therefore, even if HR-520 attempted to create an employment relationship—
which it did not—the language of the appointment notification corrects the ambiguity,
resolving it in favor of at-will employment. See Lacey v. State Bd. of Registration for
the Healing Arts, 131 S.W.3d 831, 838 (Mo. App. W.D. 2004) (“‘[A]mbiguity depends
on context. Contract language is not interpreted in a vacuum, but by reference to the
contract as a whole.’”) (quoting J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491
S.W.2d 261, 264 (Mo. banc 1973)). Point denied.
Rule 72.01(a)
In the fourth and final point, Ms. Reed asserts that the trial court erred in
granting the University’s motion for a directed verdict on Count 1 because the motion
was insufficient to present a basis for relief in the trial court by failing to state the
specific grounds as required by Rule 72.01(a). 5 We disagree.
Rule 72.01(a) states:
A party may move for a directed verdict at the close of the evidence
offered by an opponent. The filing of such motion does not constitute a
waiver of movant’s right to offer evidence to the same extent as if the
motion had not been made. A motion which is not granted is not a waiver
of trial by jury even though all parties to the action have moved for
directed verdicts. A motion for directed verdict shall state the specific
grounds therefor. The order of the court granting a motion for a directed
verdict is effective without any assent of the jury.
A motion for directed verdict must contain more than “boilerplate generaliti es” to
effectively comply with Rule 72.01. See Pope v. Pope, 179 S.W.3d 442, 452 (Mo. App.
W.D. 2005) (Where this Court en banc held that a motion containing no specific
5
Rule references are to Missouri Supreme Court Rules of Civil Procedure (2015), unless otherwise
indicated.
13
grounds relating to the sufficiency of the evidence regarding a partnership and the
consequent vicarious liability was insufficient because the m otion contained only
general language. For example, the first assertion in the challenged motion stated,
“Plaintiff has failed to prove a submissible case against this Defendant.” The claims
failed to even include the word “partnership,” which was the main issue of the case.
Further, defense counsel decided not to orally elaborate on the basis for the general
claims when invited.). Further, when considering a motion for directed verdict, the
motion may be considered together with arguments of counsel. Wadlow v. Lindner
Homes, Inc., 722 S.W.2d 621, 633 (Mo. App. E.D. 1986). Here, the grounds for the
University’s motion for directed verdict are:
1. Defendants are entitled to directed verdict on Count I, Plaintiff’s “Wrongful Discharge”
claim.
a. Missouri does not recognize a “wrongful discharge” claim based on breach of
contract.
b. The university is entitled to sovereign immunity from plaintiff’s wrongful
discharge claim.
c. Plaintiff failed to make a submissible breach of contract claim.
Each of these grounds was accompanied by detailed explanations by using specific
facts from the evidence presented and the arguments of counsel. Specifically, the
University’s motion recited the fact, established by undisputed evidence at trial, that
Ms. Reed was an at-will employee. In addition, it included the relevant portions of
HR-520. The University, in both its written motion and oral argument, explained why
Ms. Reed could not establish the essential elements of a valid contract because of her
status as an at-will employee and the language of HR-520. Thus, because the motion
provided grounds and facts specific to this case and because the motion was cons idered
14
together with arguments of counsel, it is clear that the motion was sufficient under rule
72.01(a). Point is denied.
Count II
In relation to Count II, Ms. Reed asserts that the trial court erred in granting Drs.
Giuliano and Pearces’ motion for a directed verdict because she provided sufficient
evidence to establish that they were acting outside of the interest of their employer and
the scope of their employment by retaliating against Ms. Reed. She argues that the
retaliation occurred when Drs. Giuliano and Pearce sought her dismissal after she
reported them for violating University and college policy and rules. We disagree.
In Count II, Ms. Reed alleges that Drs. Giuliano and Pearce tortuously interfered
with her business expectancy as an act of retaliation after she complained that they
were using University equipment to perform off-site CERF exams.
A claim for tortious interference with a contract or business
expectancy requires proof of each of the following: (1) a contract or a
valid business expectancy; (2) defendant’s knowledge of the contract or
relationship; (3) intentional interference by the defendant inducing or
causing a breach of the contract or relationship; (4) absence of
justification; and (5) damages resulting from defendant’s conduct.
Cmty. Title Co. v Roosevelt Fed. Sav. & Loan Ass’n, 796 S.W.2d 369, 372 (Mo. banc
1990) (citing Fischer, etc. v. Forrest T. Jones & Co., 586 S.W.2d 310, 315 (Mo. banc
1979). “Where the individual being sued is an officer or agent of the defendant
corporation, the officer or agent acting for the corporation is the corporation for
purposes of tortious interference.” Zipper, D.O., v. Health Midwest, 978 S.W.2d 398,
419 (Mo. App. W.D. 1998).
15
The trial court stated the following in granting Respondent’s motion for
directed verdict:
“And the Farrow case indicates—there was no facts alleged
supporting lack of justification that as the supervisor he had a legal right
to criticize work performance and is the hospital’s agent and not a third
party. Summary judgment was properly granted. So I’ll show the motion
is sustained as to Count II of Plaintiff’s Second Amended Petition.
The main authority in dispute on this count is Farrow v. Saint Francis Medical Center,
407 S.W.3d 579 (Mo. banc 2013). In Farrow, the plaintiff alleged that her supervisor
interfered with her employment-related business expectancies by retaliating against her
for rebuffing his sexual advances. Id. at 585-86. Specifically, she accused her
supervisor of intimidating and harassing her and making defamatory comments about
her performance. Id. The court, however, held that her supervisor had a right to
criticize her work performance and that the plaintiff could not assert a successful claim
because “while acting as [plaintiff’s] supervisor, he was the [employer’s] agent, not a
third party. Id. at 603.
Similar to Farrow, Ms. Reed claims that Drs. Giuliano and Pearce interfered
with her employment in retaliation for complaining about misconduct by providing
unwarranted criticisms of her work performance, creating a hostile work environment ,
and engaging in efforts to get her fired. At trial, ample evidence was presented to
determine Drs. Giuliano and Pearce were Ms. Reed’s supervisors. 6 In this role Drs.
Giuliano and Pearce were employed by the University, directed Ms. Reed’s work , and
6
Ms. Reed’s second amended petition for damages states: “14. At all relevant times hereto, Defendants
Giuliano and Pearce, as supervisors of Plaintiff or as persons directly acting in the interest of their
employer, Defendant University, were Plaintiff’s “employer,” for purposes of Plaintiff’s MHRA
action.”
16
performed her evaluations. Thus, under Farrow, Drs. Giuliano and Pearce had a legal
right to criticize Ms. Reed’s work. Farrow, 407 S.W.3d at 602.
Ms. Reed attempts to distinguish Farrow, alleging that “[t]here was no allegation
in Farrow that the doctor being sued had misrepresented Farrow’s work performance;
merely that he had criticized it.” In Farrow, however, the plaintiff “contend[ed] Doctor
made defamatory statements about the quality of her work” and “made several false
statements about her job performance.” Farrow, 407 S.W.3d at 585, 602. Ms. Reed
also attempts to distinguish the case by highlighting that Drs. Giuliano and Pearce met
with the VHC administrator to express that they wanted her fired. This too, however,
is similar to Farrow, in which the supervisor allegedly told the plaintiff that he was
“still going to get her out.” Farrow, 407 S.W.3d at 586. Ms. Reed also attempted to
distinguish from Farrow by stating that Drs. Giuliano and Pearce were not her
supervisors because they did not have the authority to discipline or terminate her. 7 But
in Farrow, the plaintiff did not allege that the supervisor disciplined or terminated her.
Instead, these actions were performed by others. See 407 S.W.3d at 585-86. Finally,
Ms. Reed asserts that the nature of Drs. Giuliano and Pearces’ actions implies that they
could not have acted “for” the University. In Farrow, however, the supervising doctor
under scrutiny had allegedly retaliated against the plaintiff for rejecting his sexual
advances, an action that would violate federal and state discrimination laws. See 407
S.W.3d 585-86. Farrow is indistinguishable from this case in relation to the material
elements and is therefore controlling.
7
This allegation, however, is contradicted by Ms. Reed’s second amended petition for damages where
she states that Dr. Pearce issued her a verbal warning and placed her on probation and issued her a
written warning.
17
As stated in Farrow, “an action for tortious interference with a business
expectancy will lie against a third party only. Where the individual being sued is an
officer or agent of the defendant corporation, the officer or agent acting for the
corporation is the corporation for purposes of tortious interference.” 407 S.W.3d at
602 (quoting Zipper v. Health Midwest, 978 S.W.2d 398, 419 (Mo. App. W.D. 1998)).
Therefore, as in Farrow, because Drs. Giuliano and Pearce were Ms. Reed’s supervisors
and not a third party, Ms. Reed’s claim against them for tortious interference with
business expectancy fails. 8 Whether Ms. Reed can establish the remaining elements of
a tortious interference claim is irrelevant because of the doctors’ status as Ms. Reed’s
supervisors. See Farrow, 407 S.W.3d at 602-03; Zipper, 978 S.W.2d at 419.
Conclusion
Due to the at-will nature of Ms. Reed’s employment and the legally
unenforceable nature of employee handbooks and policies, Ms. Reed’s wrongful
discharge claim does not qualify as a breach of contract and is instead one sounding in
tort. Because the claim alleged in Count I was a tort, the University, as a government
body, has sovereign immunity. In addition, the language of the motion for directed
8
Further, as an at-will employee, Ms. Reed does not have a valid contract or business expectancy that
Drs. Giuliano and Pearce could interfere with, without justification. Under the at-will employment
doctrine, an at-will employee may only challenge the reasons for her term ination by proving the
existence of a valid contract, the violation of a statutory provision , or a claim under the public policy
exception. See Margiotta, 315 S.W.3d at 346. If Ms. Reed were allowed to maintain a tortious
interference claim against Drs. Giuliano and Pearce as her supervisors, she would have a claim for
wrongful termination without a valid employment contract, statutory violation , or public policy claim
and, thus, would create a new exception to the at-will employment doctrine. Ms. Reed contends that
“Farrow…cannot stand for a proposition that any person in a supervisory position…can violate
statutory or public employer’s rules and regulations and use improper means to retaliate against the
employee who exposes their misdeed on the grounds that the ‘supervisor’ is acting in the employer’s
interest.” Farrow does not hold that supervisors may retaliate again st subordinates in this fashion;
instead it recognizes that the employee may have a claim under the “public policy” exception. See 407
S.W.3d at 595-98. The decision also does not preclude an employee from holding its supervisor liable
under another actionable tort theory. See id. at 598-600. Ms. Reed, however, did not make any of
these claims.
18
verdict contained grounds and facts specific to the case and is therefore sufficient under
Rule 72.01(a). Finally, because Drs. Giuliano and Pearce were Ms. Reed’s supervisors,
a claim of tortious interference cannot lie. We affirm.
/s/ THOMAS H. NEWTON
Thomas H. Newton, Presiding Judge
Martin and Ardini, JJ. concur.
19