James Van Kirk v. Burns & McDonnell Engineering Company, Inc. , 2016 Mo. App. LEXIS 267 ( 2016 )

In the Missouri Court of Appeals
Western District
JAMES VAN KIRK, )
Appellant, )
v. ) WD78577
)
BURNS & McDONNELL ENGINEERING )
COMPANY, INC., et al., ) FILED: March 22, 2016
Respondents. )
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY
THE HONORABLE MARCO A. ROLDAN, JUDGE
BEFORE DIVISION ONE: LISA WHITE HARDWICK, PRESIDING JUDGE,
VICTOR C. HOWARD AND GARY D. WITT, JUDGES
James Van Kirk appeals the circuit court's judgment dismissing his wrongful
discharge petition against his former employer, Burns & McDonnell Engineering
Company, Inc., and affiliates of Burns & McDonnell, Does 1-3 (collectively,
"Burns") for failure to state a claim upon which relief could be granted. Van Kirk
contends his petition adequately states two claims that he was wrongfully
discharged for whistleblowing. For reasons explained herein, we reverse and
remand the case for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
On appeal from a dismissal for failure to state a claim, we assume the facts
alleged in the petition to be true. Whispering Oaks Residential Facility, LLC v. Mo.
Dep't of Nat. Res., 456 S.W.3d 46, 49 (Mo. App. 2015). Van Kirk is a
professional engineer and was one of the more senior experienced engineers on his
team at Burns. He has a doctorate in engineering and is licensed in Missouri,
Wyoming, Texas, Illinois, and Ohio, among other states. Van Kirk was employed at
Burns for approximately a decade until he was terminated in April 2009.
In 2008 and 2009, Van Kirk was working for Burns on the Frontier Boiler
Project, which was based in Cheyenne, Wyoming. He worked on the project
primarily out of Burns's Kansas City office and on a limited basis at Burns's office
in Houston, Texas. Other Burns staff in the Houston office assisted on the project.
During construction, Van Kirk worked several weeks at the Frontier Refinery in
Cheyenne.
While working on the project, Van Kirk complained to his superiors at Burns
that the company was not ensuring that the project's drawings, specifications, and
contract documents were prepared under the direct supervision of and sealed by
the responsible professional engineers licensed in the state where they were
performing the work. He also complained that individuals who were not licensed
professional engineers in any state were performing mechanical engineering and
engineering project manager work on the project.
2
During the course of the Frontier Boiler Project, Burns's construction
manager, who was a non-licensed engineer, planned to lift a boiler over a network
of pipes that contained volatile chemicals. Van Kirk complained to the construction
manager and the Vice President of Engineering about the lack of a boiler lifting plan
prepared by a professional engineer licensed in Wyoming.
Despite Van Kirk's complaints, Burns proceeded with the non-licensed
engineer's plan for lifting the heavy boiler over the volatile chemicals. During the
lift, workers were under the chemical pipes, transferring ropes over the pipes with
the heavy boiler hanging in the wind above them. This method of moving the
boiler and the workers' presence under the boiler were unnecessary to the job and
could have been avoided using proper engineering practices. Van Kirk complained
to his superiors about the unsafe hoisting of the boiler over the network of pipes
containing volatile hydrocarbons. Specifically, the boiler was not adequately
secured and was not hoisted in accordance with prevailing professional standards;
as a result, the client's property and the workers' safety were put at risk.
Shortly thereafter, one of Van Kirk's supervisors at Burns convened a team
meeting. While looking at Van Kirk so that the rest of the team could see, the
supervisor stated that complaints had been made about sealing practices. The
topic was brought up in a way that clearly targeted Van Kirk. Three days later,
Burns fired Van Kirk.
Van Kirk subsequently filed a petition asserting claims of wrongful discharge
in violation of public policy. He alleged that he was fired because of his
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whistleblowing about the unauthorized practice of engineering and his
whistleblowing about unsafe engineering practices.1 Burns moved to dismiss the
petition for failure to state a claim upon which relief could be granted, arguing that
Van Kirk failed to identify any well-established and clearly mandated Missouri
public policy violated by his discharge. The circuit court granted the motion and
issued a judgment dismissing the petition with prejudice. Van Kirk appeals.
STANDARD OF REVIEW
We review the grant of a motion to dismiss de novo. Vogt v. Emmons, 158
S.W.3d 243, 247 (Mo. App. 2005). In reviewing the petition to determine if it
states a claim, we accept the allegations in the petition as true and grant the
plaintiffs all reasonable inferences from those allegations. Campbell v. Cty.
Comm'n of Franklin Cty., 453 S.W.3d 762, 767 (Mo. banc 2015). We do not
weigh the factual allegations to determine their credibility or persuasiveness.
Bromwell v. Nixon, 361 S.W.3d 393, 398 (Mo. banc 2012). Rather, we review
the petition "'to determine if the facts alleged meet the elements of a recognized
cause of action, or of a cause that might be adopted in that case.'" Id. (citation
omitted).
ANALYSIS
In Point I, Van Kirk contends the court erred in dismissing his claim that he
was wrongfully discharged in violation of public policy because of his
1
Van Kirk also asserted two public policy discharge claims premised on Kansas City's Fair
Employment Practices Ordinance. The court dismissed the claims, and Van Kirk does not challenge
their dismissal on appeal.
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whistleblowing about the unauthorized practice of engineering that he witnessed on
the Frontier Boiler Project. He argues that his petition sufficiently alleges that
Burns was violating engineering laws by allowing the unauthorized practice of
engineering, that he reported those violations to his supervisors, and that he was
fired because of that reporting.
Generally, an at-will employee, like Van Kirk, may be discharged for any
reason or no reason. Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 92
(Mo. banc 2010). Missouri has adopted a public policy exception to this general
rule, however. Id. "Public policy" refers to "'the principle of law which holds that
no one can lawfully do that which tends to be injurious to the public or against the
public good.'" Id. at 91 (citation omitted).
The public policy exception is narrowly drawn. Margiotta v. Christian Hosp.
Northeast Northwest, 315 S.W.3d 342, 346 (Mo. banc 2010). Public policy "is
not found 'in the varying personal opinions and whims of judges or courts, charged
with the interpretation and declaration of the established law, as to what they
themselves believe to be the demands or interests of the public.'" Id. (citation
omitted). "[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." Id. "Absent such explicit authority, an employee's wrongful
discharge claim fails as a matter of law." Farrow v. Saint Francis Med. Ctr., 407
S.W.3d 579, 595 (Mo. banc 2013). Furthermore, "not every statute or regulation
gives rise to an at-will wrongful termination action." Margiotta, 315 S.W.3d at
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346. "A vague or general statute, regulation, or rule cannot be successfully pled
under the at-will wrongful termination theory, because it would force the court to
decide on its own what public policy requires." Id. "The pertinent inquiry here is
whether the authority clearly prohibits the conduct at issue in the action." Id. at
347.
The public policy exception to the at-will employment doctrine provides that
an at-will employee may not be discharged: "(1) for refusing to violate the law or
any well-established and clear mandate of public policy as expressed in the
constitution, statutes, regulations promulgated pursuant to statute, or rules created
by a governmental body or (2) for reporting wrongdoing or violations of law to
superiors or public authorities." Fleshner, 304 S.W.3d at 92. If an employer
discharges an employee for either of the two reasons under the exception, then the
employee has a tort claim for wrongful discharge in violation of public policy. Id.Van Kirk's allegation that he was fired for reporting the unauthorized practice
of engineering falls under the second theory of wrongful discharge, which is
commonly referred to as "whistleblowing." Margiotta, 315 S.W.3d at 346-47. To
adequately plead a claim of whistleblowing, an employee must demonstrate that:
(1) he reported serious misconduct that constitutes a violation of the law and of
well-established and clearly mandated public policy to his superiors; (2) the
employer terminated his employment; and (3) there is a causal connection between
his reporting and his termination. See Keveney v. Mo. Military Academy, 304
S.W.3d 98, 103 (Mo. banc 2010). The whistleblowing need only be a contributing
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factor and need not be the exclusive cause of the termination. Fleshner, 304
S.W.3d at 94-95.
In Count I of his petition, Van Kirk alleges that he was terminated for
reporting violations of the clearly-established and fundamental public policy
requiring that engineering work be done only under the direct and active
supervision of a licensed engineer and that drawings and other related engineering
documents be properly sealed by licensed engineers. He states that this public
policy is expressed in regulations contained in The Missouri Board for Architects,
Professional Engineers, Professional Land Surveyors, and Landscape Architects
Code of Conduct. Specifically, Van Kirk cites 20 CSR 2030-2.010(7), which
provides, "Licensees shall not assist non-licensees in the unlawful practice of . . .
professional engineering." He also cites 20 CSR 2030-2.010(5), which provides,
"Licensees shall comply with state laws and regulations governing their practice."
Van Kirk alleges that Wyoming's state laws in effect in 2008 and 2009, during
Burns's work on the Frontier Boiler Project, required that persons desiring to
practice engineering in Wyoming first secure a certificate of registration and
provided that it was unlawful for a registrant to sign, stamp, or seal any document
not prepared by him or by an employee under his supervision.2 He also alleges that
Texas, where some of Burns's work on the Frontier Boiler Project was performed,
2
Van Kirk cites Wyoming Statutes Annotated §§ 33-29-124 and 33-29-129 (2009).
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had a statute forbidding a person from engaging in the practice of engineering
unless that person held a license issued under the Texas Engineering Practice Act.3
Van Kirk asserts that he reported to his superiors that Burns was violating
the prohibition against licensed engineers' assisting non-licensed engineers in the
unlawful practice of engineering by: (1) not ensuring that the Frontier Boiler Project
drawings, specifications, and contract documents were prepared under the direct
supervision of and sealed by the responsible professional engineers licensed in the
state where they were performing work; (2) allowing employees in its Houston
office that were not licensed professional engineers in any state to perform
mechanical engineering and engineering project manager work on the Frontier Boiler
Project and other projects; and (3) allowing a non-licensed engineer to prepare the
boiler lifting plan on the Frontier Boiler Project. According to Van Kirk, these
reports to his superiors about the unauthorized practice of engineering were a
contributing factor in his discharge.
Burns argues that these allegations are insufficient to support a
whistleblowing claim because Van Kirk is relying on violations of Wyoming and
Texas law to create a Missouri wrongful discharge claim. We disagree. Van Kirk's
references to the laws of other states where some of the unauthorized practice of
engineering was allegedly performed do not make his wrongful discharge claim
based on Wyoming and Texas law. The public policy that Burns is alleged to have
violated is squarely rooted in Missouri's regulations. 20 CSR 2030-2.010(7)
3
Van Kirk cites Texas Occupations Code § 1001.301 (2003).
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contains no geographical limitation on its prohibition against licensed engineers'
assisting non-licensed engineers in the unlawful practice of engineering, and 20
CSR 2030-2.010(5) does not indicate that Missouri-licensed engineers must
comply only with Missouri state laws and regulations. Van Kirk's claim is simply
that, when read together, 20 CSR 2030-2.010(5) and (7) prohibit licensees from
assisting non-licensees in the practice of engineering in Missouri and in other
jurisdictions.
Burns further argues that 20 CSR 2030-2.010(5) and (7) are too vague and
impermissibly "force the court to decide on its own what public policy requires,"
citing Margiotta, 315 S.W.3d at 346. Again, we disagree. The public policy
reflected in 20 CSR 2030-2.010(7)'s prohibition against licensees assisting non-
licensees in the practice of engineering and 20 CSR 2030-2.010(5)'s requirement
that licensed engineers follow state laws and regulations is clear: Licensed
engineers are not allowed to delegate engineering tasks to unlicensed engineers in
Missouri or elsewhere. There is nothing vague about this public policy mandate.
See Farrow, 407 S.W.3d at 597 (holding that a nurse sufficiently pled a public
policy wrongful discharge claim when she alleged that she was fired for
complaining about the delegation of nursing procedures to non-nurses in violation
of provisions of the Nursing Practice Act).
Count I of Van Kirk's petition states a claim for wrongful discharge in
violation of public policy based on his whistleblowing about the unauthorized
practice of engineering. Point I is granted.
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In Point II, Van Kirk contends the court erred in dismissing Count II of his
petition in which he alleges that he was wrongfully discharged because of his
whistleblowing about the unsafe hoisting and moving of the boiler on the Frontier
Boiler Project. In his petition, Van Kirk alleges that he was terminated, in part,
after he complained to his supervisors at Burns about the unsafe hoisting of the
boiler over the network of pipes containing volatile hydrocarbons, which he asserts
put the client's property and the workers' safety at risk. According to Van Kirk, 29
C.F.R. § 1926.753 (2008), an OSHA regulation, prohibited workers from being
present under suspended loads except under circumstances not present in this
case.
Van Kirk further alleges that his complaint to his supervisors at Burns about
the unsafe practices was required and protected under Missouri law. Specifically,
he cites 20 CSR 2030-2.010(6), which provides:
Licensees at all times shall recognize that their primary
obligation is to protect the safety, health, property, or welfare of the
public. If the professional judgment is overruled under circumstances
where the safety, health, property, or welfare of the public are
endangered, they shall notify their employer or client and other
authority as may be appropriate.
Van Kirk alleges that, because his complaint was required and protected under this
regulation, Burns's discharging him for it violated public policy.
In response, Burns argues that 20 CSR 2030-2.010(6) is too vague to
support a claim for wrongful discharge in violation of public policy. Burns contends
that the regulation is similar to the regulations found insufficiently clear in Lay v.
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St. Louis Helicopter Airways, Inc., 869 S.W.2d 173 (Mo. App. 1993). In Lay, a
pilot was discharged from his employment after he refused to make three flights in
bad weather. Id. at 175. He alleged that his discharge was wrongful under the
public policy exception because an FAA regulation made the pilot the "final
authority" as to the operation of the aircraft, and the Code of Ethics of the
Helicopter Association International required pilots to use their "best judgment" to
insure "maximum safety" at all times. Id. at 177. The court disagreed, finding
that the regulation and Code of Ethics requirement were not "clear mandates which
allow employee to fall within the public policy exception," as "[n]either imposes a
duty on an employer to refrain from terminating a pilot whose judgment calls are
contrary to the employer's judgment." Id.This case is distinguishable from Lay. Unlike the regulations in Lay, the
regulation in this case does not simply provide for engineers to make judgment calls
regarding safety. Rather, 20 CSR 2030-2.010(6) specifically directs that, if those
judgment calls are overruled, the engineers shall report their safety concerns to
their employer, client, or other authority. Van Kirk is not alleging that his discharge
was wrongful because Burns disagreed with his judgment call regarding safety
issues; he is alleging that his discharge was wrongful because Burns fired him for
doing exactly what the regulation required him to do -- report his safety concerns
to Burns. The public policy reflected in 20 CSR 2030-2.010(6) is clear: Licensed
engineers are not only encouraged, but required, to report safety concerns
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whenever their professional judgment is overruled on a project. Firing a licensed
engineer for making a required report violates this public policy.4
Count II of Van Kirk's petition states a claim for wrongful discharge in
violation of public policy for his whistleblowing about the unsafe hoisting and
moving of the boiler on the Frontier Boiler Project. Point II is granted.
CONCLUSION
The circuit court's judgment dismissing Counts I and II of Van Kirk's petition
for failure to state a claim is reversed. The case is remanded for further
proceedings.
____________________________________
LISA WHITE HARDWICK, JUDGE
ALL CONCUR.
4
See Fleshner, 304 S.W.3d at 96-97 (holding that, where Missouri's minimum wage law makes it a
crime to fire employees who participate in overtime compensation investigations by state officials,
the public policy reflected in that law is that employees should be encouraged to cooperate with
government labor investigators; therefore, an employee who was terminated after speaking with
federal investigators about overtime compensation made a submissible case of wrongful discharge).
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