Autumn Crabtree, Respondent, v. Hannelore E. Bugby, d/b/a Silver Maple Farm, et al., Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Autumn Crabtree, Respondent, v. Hannelore E. Bugby, d/b/a Silver Maple Farm, et al., Appellant. Case Number: 71412 Handdown Date: 12/09/1997 Appeal From: Circuit Court of St. Louis County, Hon. Kenneth W. Weinstock Counsel for Appellant: Ira M. Potter Counsel for Respondent: Kevin A. Nelson Opinion Summary: Hannelore E. Bugby d/b/a Silver Maple Farm (employer) appeals the judgment entered by the St. Louis County Circuit Court after a jury found employer discharged Autumn Crabtree(employee) in retaliation for employee filing a worker's compensation claim. Employee cross-appeals from several pre-trial and post-trial rulings. TRANSFERRED TO MISSOURI SUPREME COURT. Division One Holds: Employee's cross-appeal is denied without comment, pursuant to Rule 84.16(b). With respect to employer's challenge, employee made a submissible case that the exclusive cause of her discharge was filing a worker's compensation claim. However, with respect to employer's challenge to the verdict director, due to the various courts' implicit approval of varying verdict directors for a cause of action undersection 287.780, RSMo, which has caused and may continue to cause confusion for parties at the trial level, we transfer to the Missouri Supreme Court, pursuant to Rule 83.02. Citation: Opinion Author: Gary M. Gaertner, Judge Opinion Vote: TRANSFERRED TO MISSOURI SUPREME COURT. Grimm, P.J., concurs in transferring in separate

Opinion: Appellant/cross-respondent, Hannelore E. Bugby d/b/a Silver Maple Farm ("employer"), appeals the August 26, 1996 judgment entered by the St. Louis County Circuit Court after a jury found employer discharged respondent/cross-

appellant, Autumn Crabtree ("employee") in retaliation for employee filing a worker's compensation claim. Employee cross-appeals from several pre-trial and post-trial rulings. We transfer to the Missouri Supreme Court. Employer operated a pet grooming and boarding service. Mark Clancy was the general manager in charge of pet grooming and boarding operations. Clancy reported to employer's son, Paul Schifano. Employee began working for employer as a groomer in May 1993. She was paid on a per-pet basis and received fifty percent of the charges paid for grooming services. In July 1993, employee received a pay raise to $7.50 per hour. Two months later, employee received a second pay raise to $8.00 per hour. In November 1993, employee was made assistant manager of the grooming department and went from hourly pay to salary of $18,000 per year. On April 26, 1994, employee sustained an on-the-job injury when she injured her back lifting a dog into a bathing tub. Employee thereafter underwent surgery followed by physical therapy. Employee received $8,406.63 in temporary disability benefits, and employer's worker's compensation paid her medical bills which came to $16, 902.07. Employee also filed a worker's compensation claim. Employee returned to work on January 19, 1995. Approximately one month prior, employer had reorganized the grooming department. The grooming manager had been dismissed and a new position of "grooming supervisor" had been created. Rachel Champion had been hired as grooming supervisor. After she returned to work, employee received the following discipline reports in an eight day period: (1) Champion claimed employee left a dog unattended in the bathing room; (2) Champion claimed employee took unauthorized breaks; (3) Clancy claimed employee failed to bring a doctor's note to document an absence from work and placed employee on thirty days probation; and (4) Champion claimed she saw employee copying confidential client information in her journal. On February 10, 1995, Clancy informed employee, in front of another employee, George Sorge, she was being discharged for writing confidential information in her journal. Employee filed for unemployment benefits which employer challenged. Employee was initially denied benefits on the basis she had been terminated for misconduct connected with work. In March 1995, employee filed an action against employer alleging retaliatory discharge. Employee's action against employer, brought pursuant to RSMo section 287.780 (1994), alleged she had been discharged for filing a worker's compensation claim. Employer claimed employee was discharged because of discipline problems and claimed none of employee's supervisors knew about employee's worker's compensation claim at the time employee was discharged. At trial, employee testified regarding her injury on April 26, 1994, and her surgery. She testified employer's insurance paid her medical bills and for physical therapy. Employee settled her worker's compensation claim, some time

after she was discharged, for about $24,000. Employee testified she did not commit the acts alleged in the four discipline reports; the fact she signed the first two reports was not an admission. She was not provided with a copy of the third discipline report. Employee denied the allegation she had copied confidential client information into her journal, as alleged in the fourth discipline report. Employee testified she offered to show Clancy her journal, but he told her it was not necessary because he believed his unnamed source and thought employee was lying.(FN1) Employee testified she thought she was fired because she filed a worker's compensation claim; she had been a model employee before her injury but when she returned to work, she was treated as if she were no longer trusted. Dr. Terence Rohen, a psychologist, testified he evaluated employee and, in his opinion, she suffered from post traumatic stress disorder. Employee filed a motion to amend her complaint to allege the fact she filed a worker's compensation claim was "the exclusive cause of her termination." The trial court granted the motion. Employer's motion to dismiss all counts except count I, alleging retaliatory discharge, was granted.(FN2) Champion testified she saw employee writing in her journal near open client records, and "in her mind" felt employee had to be copying client information. Champion admitted she could not see what employee was writing, did not ask to look at employee's journal, and had never read employee's journal. Champion testified she knew employee had been hurt and had filed for worker's compensation. When asked if she learned about employee's worker's compensation claim after this suit was filed, Champion responded "probably so." Clancy testified Champion told him she had seen employee copying client information in her journal. When employee came to work on February 10, 1995, he told her, in front of Sorge, she was being terminated for the above reason. Clancy testified Sorge was present "as a witness." Clancy testified he did not tell employee who made the accusation because he knew Champion was intimidated by employee and was afraid employee would "do something" to Champion. Clancy testified he did not know about employee's worker's compensation claim until she filed this suit. Schifano testified he met with Clancy about once a week to go over things. Schifano testified he knew, when Clancy called and told him he wanted to fire employee, employee had filed a worker's compensation claim. After deliberating for less than two hours, the jury found for employee on the remaining count for retaliatory discharge and awarded her $42,000 in actual damages and $36,000 in punitive damages. Employer appeals raising four issues; the first, second, and fourth are based upon the contention employee failed to plead and prove an element necessary to establish a cause of action for retaliatory discharge. Employer's third issue raises questions concerning the verdict director submitted to the jury. Employee filed a cross-appeal challenging pre-trial

and post-trial rulings. Employee's action for retaliatory discharge was brought pursuant to RSMo section 287.780 which provides: No employer . . . shall discharge . . . any employee for exercising any of his rights under this chapter [governing worker's compensation law]. Any employee who has been discharged . . . shall have a civil action for damages against his employer. To establish a cause of action under RSMo section 287.780 employee had the burden of proving the following four elements: (1) status as an employee of the defendant before injury; (2) exercise of a right granted by Chapter 287; (3) employer's discharge of employee; and (4) an exclusive causal relationship between employee's actions and employer's actions. Hansome v. Northwestern Cooperage Co., 679 S.W.2d 273, 275 (Mo.banc 1984); Hickman v. May Dept. Stores Co., 887 S.W.2d 628, 630 (Mo.App.E.D. 1994); Wiedower v. ACF Industries, Inc., 715 S.W.2d 303, 305 (Mo.App.E.D. 1986). In her second point on appeal,(FN3) employer claims employee failed to make a submissible case that the "exclusive cause" of her discharge was in retaliation for filing a worker's compensation claim, therefore the trial court should have granted her motion for a directed verdict. In reviewing the denial of a motion for directed verdict we view the evidence in the light most favorable to the plaintiff, giving all reasonable inferences therefrom, to determine whether a submissible case was made. Winn-Senter Const. v. Katie Franks, Inc., 816 S.W.2d 943, 944 (Mo.App.W.D. 1991). Viewing the evidence in the light most favorable to employee, we find employee made a submissible case that the exclusive cause of her discharge was filing a worker's compensation claim. Employee produced evidence, albeit indirect, that she was discharged for filing a worker's compensation claim. "Proof of this causal connection is necessarily indirect because the employer is not likely to admit that retaliation is his motive." Wiedower, 715 S.W.2d at 306. The evidence was that employee had been a good employee before her injury. She had received at least two raises and had been promoted to assistant manager of the grooming department. There were no discipline reports in her employee file before she returned to work following her injury.(FN4) Once employee produced sufficient evidence to show the four elements set out in Hansome, the burden shifted to employer to show there was a legitimate reason for the discharge. See Wiedower, 715 S.W.2d at 307. Employer claimed the legitimate reason for employee's discharge was that employee copied confidential records into her journal, and there had been discipline problems. Employer offered the following evidence in support: (1) the confidentiality agreement employee had signed; (2) the four discipline reports, the fourth one alleging employee copied employer's confidential records, the stated reason for her discharge; and (3) the testimony of Champion, who accused employee of the allegations made in the first, second, and fourth discipline reports, and Clancy, who prepared all four discipline reports and

discharged employee. "Even though an employer produces evidence of a legitimate reason for the employee's discharge, the plaintiff who is able to persuade the jury that the employer's reason is pretextual, and not causal, is entitled to a verdict." Wiedower, 715 S.W.2d at 307. Employee offered the following evidence that the alleged "legitimate reason" for her discharge was pretextual. She denied the accusation in the first discipline report, and Clancy admitted he did not have first hand knowledge of this violation. The second discipline report alleged employee had taken unauthorized breaks, which she denied. Furthermore, Clancy admitted there was no "company policy" regarding breaks. Clancy admitted there was no basis for the third discipline report. With regard to the fourth discipline report, Champion admitted she did not see what employee wrote, neither Champion nor Clancy ever looked at the journal, and portions of the journal were admitted at trial and revealed employee had only written the names of three dogs, which Clancy admitted was not important. Finally, the evidence was employer knew about employee's worker's compensation claim at the time employee was discharged; Schifano testified he was aware of the claim and that he and Clancy met once a week to discuss the business. Based upon the foregoing, we find the trial court did not err in denying employer's motion for a directed verdict. Employer's third issue on appeal is the claim the trial court erred in giving instruction No. 4, the verdict directing instruction, which read: Your verdict must be for the Plaintiff if you believe: First, that Plaintiff, while employed by the Defendant, exercised certain of her rights under the worker's compensation law by filing a claim for compensation, and, Second, as a direct result of Plaintiff's filing a claim for compensation, Defendant discharged Plaintiff, and Third, as a direct result of such discharge Plaintiff sustained damage. (Emphasis ours). Employer's argument is the verdict directing instruction failed to include all substantive elements of a cause of action under RSMo section 287.780 because it used the words "as a direct result of" rather than "exclusive cause." No MAI instruction has been promulgated for a cause of action under RSMo section 287.780. Because there is no applicable MAI instruction, the non-MAI instruction must be composed of the substantive elements of a cause of action under RSMo section 287.780 as delineated by the Missouri Supreme Court in Hansome. Hopkins v. Tip Top Plumbing and Heating Co., 805 S.W.2d 280, 285 (Mo.App.W.D. 1991). As stated above, the substantive elements to establish a cause of action under RSMo section 287.780 include proof of an "exclusive causal relationship" between plaintiff's discharge and employer's actions. Hansome, 679 S.W.2d at 275; Wiedower, 715 S.W.2d at 305. Employer argues cases decided since Hansome dictate the use of the word "exclusive" in a verdict director for a

cause of action under RSMo section 287.780. Therefore, we briefly review cases that have been decided since Hansome. One year after Hansome, the Southern District decided Reed v. Sale Memorial Hosp. and Clinic, 698 S.W.2d 931, 937-938 (Mo.App.S.D. 1985), in which employer challenged a jury instruction similar to the one in the case at hand for a variety of reasons, though none were based upon the claim the instruction, which contained the language "as a direct result of" failed to include the word "exclusive." Although the court did not specifically comment on the fact that the instruction did not include the word "exclusive," the court found no prejudice resulted from using a verdict director containing the language "as a direct result" and not the words "exclusive cause." Id. In Wiedower, 715 S.W.2d at 305, this Court reviewed the trial court's action granting employer's motion for a new trial. Employee appealed, in part arguing the verdict director was proper, and was not, as employer alleged, too broad. Id. That instruction, in relevant part, read: A...As a direct result of Plaintiff exercising his rights under the Worker's Compensation law of Missouri by filing a Worker's Compensation claim, defendant discharged Plaintiff, . . . Id. We stated that "because the plaintiff's verdict director contains all four elements [required under RSMo section 287.780], it complies with the requirement that a not-in-MAI instruction should follow the substantive law." Id. While we did not specifically comment with regard to the language used in the instruction, we did find it "specifically connected [employee's] discharge to the filing of his claim for compensation; therefore, there is no merit to the charge that the instruction was too broad." Wiedower, 715 S.W.2d at 306. One year later, the Southern District decided Blair v. Steadley Co., 740 S.W.2d 329, 331 (Mo.App.S.D. 1987), wherein employee claimed the use of the word "exclusive" in an instruction requiring jury to find discharge was "a direct and exclusive result" of employee's action, was unduly restrictive. Employee argued the clear intent of RSMo section 287.780 was that an employer may not use the exercise of worker's compensation law rights "as even part of the reason for discharge." Id. The Southern District found no error with the instruction citing Hansome as "a declaration of substantive law" on the subject. Blair, 740 S.W.2d at 332. Four years later, the Western District decided Hopkins v. Tip Top Plumbing and Heating Co., 805 S.W.2d 280, 285 (Mo.App.W.D. 1991), in which employee claimed the trial court erred in giving an instruction which mirrored language in Blair, and read, in relevant part, as follows: "...as a direct and exclusive result of plaintiff exercising said rights, [to receive medical treatment and remain off work until released by his doctor], or either of them, under the Worker's Compensation Law, defendant discharged plaintiff . . . " The Western District found the use of the words "direct and exclusive result" proper noting the instruction followed the

model approved in Blair. Hopkins, 805 S.W.2d at 285. The court went on the state, "[t]he propositions that compose the verdict director approved in Blair are the substantive elements of the cause of action under [RSMo Section] 287.780 as delineated by our Supreme Court en banc in [Hansome, 679 S.W.2d at 275]." Id. In 1992, this Court had another opportunity to address this issue in Fitzgerald v. City of Overland, 829 S.W.2d 98, 99 (Mo.App.E.D. 1992), where employee claimed the use of both "direct" and "exclusive" imposed a greater burden than required by Hansome. This court found the instruction followed the substantive law and was readily understandable. Id. More recently, in Lynch v. Blanke Baer & Bowey Krimko, 901 S.W.2d 147, 150 (Mo.App.E.D. 1995), we addressed plaintiff's burden of proving an "exclusive causal connection" between his discharge and the illegal reason behind it, in the context of wrongful discharge. In Lynch, we cited with approval our decision in Wiedower, where the verdict directing instruction did not include the word "exclusive." Lynch, 901 S.W.2d at 152. The instruction complained of here is virtually identical to the instructions in Wiedower, 715 S.W.2d at 305, and Reed, 698 S.W.2d at 937, which were found to set forth the substantive elements as dictated by Hansome, and gave at least tacit approval of the use of the phrase "direct result" as opposed to "exclusive cause." Moreover, even if we were to assume it was error to give a verdict directing instruction that failed to include the word "exclusive," this error would not automatically be a basis to reverse. Instead, the issue becomes whether the failure to include the word exclusive "materially affected" the verdict, Clark v. Beverly Enterprises-Missouri, 872 S.W.2d 522, 526 (Mo.App.W.D. 1994), or the instruction was then not legally sufficient, Wiedower, 715 S.W.2d at 306. We cannot say the verdict directing instruction "materially affected" the verdict or that the instruction was legally insufficient. Employer's fourth point on appeal is the claim the trial court erred in denying her motion for judgment notwithstanding the verdict (JNOV) because employee failed to prove by clear and convincing evidence she was discharged exclusively for exercising her rights under Chapter 287, and thus, the verdict for punitive damages was improper. In reviewing the denial of a JNOV motion, this court views the evidence and all reasonable inferences therefrom in the light most favorable to the prevailing party to determine whether a submissible case was made. Feely v. City of St. Louis, 898 S.W.2d 708, 709 (Mo.App.E.D. 1995). "Where reasonable minds can differ on the question before the jury, the court may not disturb the jury's verdict." Id. In the case at hand, viewing the evidence and all reasonable inferences therefrom in the light most favorable to employee, we find the trial court did not err in denying employer's JNOV motion, and the verdict for punitive damages was proper. As set out in greater detail above, employee made a submissible case that she was discharged in retaliation for filing a worker's compensation claim.

The claim for wrongful discharge under RSMo section 287.780 is "a judicially cognizable independent tort" which may warrant punitive damages. Wiedower, 715 S.W.2d at 308. "The evidence that supports the elements of this tort encompass the elements of knowledge and intent which are necessary to support the legal malice required for punitive damages." Id. Legal malice is defined as an inference of malice which can be reasonably drawn from wrongful acts. Self v. Lenertz Terminal, Inc., 854 S.W.2d 571, 575 (Mo.App.E.D. 1993). Legal malice embraces any improper motive. Fust v. Francois, 913 S.W.2d 38, 50 (Mo.App.E.D. 1995). Actual malice means ill will, spite, personal hatred, or vindictive motives. Id. Our courts have consistently upheld punitive damages in cases of retaliatory discharge, when there is "sufficient evidence" for the jury to find legal or actual malice on the part of employer. Wiedower, 715 S.W.2d at 308. There was "sufficient evidence" of legal malice or actual malice on the part of employer.(FN5) The stated reason for employee's discharge was the allegation she copied confidential information into her journal. However, Champion admitted she did not actually see what employee wrote in her journal. Clancy chose to fire employee without verifying the accusation, which would have required no more than looking at employee's journal. Employee testified she offered to show both Champion and Clancy her journal. Schifano, who knew employee had filed a worker's compensation claim on the date Clancy told him he wanted to fire her, did not intervene. Discharging an employee without verifying the allegation made against her constitutes a wrongful act from which an inference of malice can be drawn. See Self, 854 S.W.2d at

As stated, employer claimed, as further support for discharging employee, that there had been discipline problems, citing the other three discipline reports. Arguably, the circumstances surrounding these three discipline reports constitutes "sufficient evidence" of employer's legal malice or actual malice toward employee. With regard to the first discipline report, Clancy admitted he did not know in fact employee had committed the violation yet he prepared a discipline report. Clancy admitted there was no "company policy" regarding employee breaks, yet he prepared the second discipline report accusing employee of taking unauthorized breaks. The third discipline report alleged employee failed to bring a doctor's note to document an absence. Clancy admitted he told employee she could return to work without a doctor's note but nevertheless wrote up this report in which he stated employee was placed on thirty days suspension. Clancy further admitted he failed to give employee the third discipline report. The above vindictive behavior by employer was sufficient evidence of actual malice, and thus, the punitive damages award was proper. See Wiedower, 715 S.W.2d at 308. With regard to employee's cross-appeal, we have reviewed the briefs, the legal file and the transcript and find the judgment of the trial court is supported by substantial evidence and is not against the weight of the evidence, and does

not erroneously declare or apply the law. Accordingly, while we believe the jury instruction given here sets forth the substantive law in this area, due to the various courts' implicit approval of varying jury instructions for a cause of action under RSMo section 287.780, which has caused and may continue to cause confusion for plaintiffs and defendants at the trial level, we transfer to the Missouri Supreme Court, pursuant to Rule 83.02, so the court might further clarify what constitutes a proper verdict director under these circumstances. Footnotes: FN1.Portions of employee's journal were introduced at trial. These pages reflect employee had written the names of three dogs who were groomed at employee's place of business in her journal. FN2.Employee's original petition against employer alleged in count I, retaliatory discharge; count II, defamation by Clancy; and Count III, that employer had negligently failed to supervise Clancy. In her amended petition, employee alleged in Count I, retaliatory discharge; Count II, defamation by Clancy; Count III, defamation by Champion; and Count IV, conspiracy between Schifano and Clancy to terminate her. FN3.We decline to address employer's first point on appeal, alleging the trial court erred in denying her motion to dismiss, as the denial of a motion to dismiss is not appealable. Reis v. Peabody Coal Co., 935 S.W.2d 625, 632 (Mo.App.E.D. 1996). FN4.Clancy testified that although there were no discipline reports in employee's file, there "should have been." The jury apparently did not find that testimony credible. FN5.Pursuant to Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 111 (Mo.banc 1996), "[t]he clear and convincing standard of proof for punitive damages shall apply...to all cases in which trial begins after February 1, 1997, and all pending cases in which a proper objection has been preserved." Trial in this case began on August 21, 1996 and concluded on August 23, 1996. Employer did not object to the punitive damage instruction, instruction #8, at trial. Employer's motion for new trial, filed September 19, 1996, alleged "plaintiff provided no clear and convincing proof of legal malice required to sustain a punitive damage award." Separate Opinion:

clarification of the elements for the verdict directing instruction is highly desirable. I write to briefly make two observations. The first decision after Hansome was the southern district case, Reed v. Sale Memorial Hosp. and Clinic, 698 S.W.2d 931 (Mo.App.S.D. 1985). Hansome was decided after Reed was tried, although the Reed opinion indicates it is applying the holding of Hansome. Id. at 934. In Reed, the employer complained about the verdict director. However, it did not raise the question before us, i.e. whether the submission should be "a direct result" or "a direct and exclusive result." Reed, 698 S.W.2d at 937-939.

Thus, Reed is not persuasive on this issue. Nor is our case of Wiedower v. ACF Industries, Inc., 715 S.W.2d 303 (Mo.App.E.D. 1986) controlling. In Wiedower, this court said that the "instructional errors of which the defendant complains do not justify a new trial. The instruction is not perfect; neither is it legally insufficient." Id. at 306 (emphasis added). Most importantly, the appellant in Wiedower did not complain about the issue before us. Id. 305-06. Thus, Wiedower should not be construed more broadly than its holding. This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.