PHILIP H. BERGER v. EMERSON CLIMATE TECHNOLOGIES, SCROLL COMPRESSORS LLC, and GEORGE SVARANOWIC, Defendants-Respondents. ( 2016 )

PHILIP H. BERGER, )
)
Plaintiff-Appellant, )
)
v. ) No. SD34288
)
EMERSON CLIMATE ) Filed: Oct. 5, 2016
TECHNOLOGIES, SCROLL )
COMPRESSORS LLC, and GEORGE )
SVARANOWIC, )
)
Defendants-Respondents. )
APPEAL FROM THE CIRCUIT COURT OF LACLEDE COUNTY
Honorable Kenneth M. Hayden
REVERSED AND REMANDED
Philip H. Berger (“Employee”) appeals the judgment (“the dismissal judgment”) that
dismissed with prejudice his second amended petition (“the petition”) against Emerson
Climate Technologies (“Emerson”), Scroll Compressors LLC (“Scroll”), and George
Svaranowic (collectively, “Respondents”).
The petition presented three counts: (1) (“the discrimination claim”) Respondents
intentionally and outrageously discriminated against Employee between November 2013
and March 2015 in violation of the Missouri Human Rights Act, section 213.010 et. seq.1
(“the MHRA”), by not reasonably accommodating Employee’s disability after Employee
1
Unless otherwise indicated, all statutory references are to RSMo 2000. All rule references are to Missouri
Court Rules (2016).
1
received a verdict for money damages in his lawsuit against Respondents (“the Copeland
case” or “the Copeland trial”) “for injuries to his lungs from exposure to dangerous chemical
products in [Respondent]s’ work environment”;2 (2) (“the retaliation claim”) Respondents
retaliated against Employee in violation of the MHRA based upon his “reports and
complaints of discrimination”; and (3) (“the wrongful discharge claim”) Employee was
wrongfully discharged in violation of a “public policy” allowing “access to the courts for
redress of wrongs” when Respondents discharged him after the jury’s verdict in the
Copeland trial.
Employee presents seven points on appeal that contend the trial court erred in
granting Respondents’ motion to dismiss the petition (“the dismissal motion”) because: (1)
Employee was not judicially or collaterally estopped from asserting his claims; (2) the
petition properly pleads claims for disability discrimination, retaliation, and “wrongful
termination in violation of public policy”; and (3) Emerson was operating as “an integrated
entity” with Scroll, and Emerson was acting in the interest of an employer of Employee.
Finding merit in Employee’s first five points (and the last two moot), we reverse the
dismissal judgment and remand the case.
Applicable Principles of Review and Governing Law
We review de novo the trial court’s grant of a motion to dismiss. Lang v.
Goldsworthy, 470 S.W.3d 748, 750 (Mo. banc 2015); Avery Contracting, LLC v. Niehaus,
2
Employee’s suggestions in opposition to Respondents’ motion to dismiss his second amended petition
asserted that the Copeland case was against “Copeland Compressor Corporation” (“Copeland”) based on
“conditions within the plant where [Employee] worked[.]” A new trial was granted in the Copeland case, and
this court affirms that judgment in Berger v. Copeland Corporation, LLC, No. SD34193, handed down this
same day. The petition in the instant case does not expressly allege that Copeland is a part of one or more of
Respondents or vice versa, and the “First Petition” in the Copeland case did not name Respondents as
defendants. Without finding it as a fact, but simply for convenience in analyzing the legal issues in this appeal,
we will assume that the facility in which Employee worked for purposes of the Copeland case and the facility
he alleges he tried to return to after the Copeland trial are one and the same, a place we will refer to as “the
plant.”
2
492 S.W.3d 159, 161-62 (Mo. banc 2016). “When considering whether a petition fails to
state a claim upon which relief can be granted, this Court must accept all properly pleaded
facts as true, giving the pleadings their broadest intendment, and construe all allegations
favorably to the pleader.” Bromwell v. Nixon, 361 S.W.3d 393, 398 (Mo. banc 2012). As a
result, no factual averments are weighed for their credibility or persuasive effect. Nazeri v.
Mo. Valley Coll., 860 S.W.2d 303, 306 (Mo. banc 1993). “Evidence outside the pleadings
cannot serve as the basis for granting a motion to dismiss.” In re Estate of Ridgeway, 369
S.W.3d 103, 109 (Mo. App. E.D. 2012). A trial court goes beyond a petition when it takes
judicial notice of matters in another court file that were not incorporated into the challenged
pleading. Cf. Chesterfield Vill., Inc. v. City of Chesterfield, 64 S.W.3d 315, 318 n.1 & 5
(Mo. banc 2002) (the earlier judgment was described in the petition and attached to it as an
exhibit, thus “the circuit court had the earlier judgment before it and did not need to refer to
matters outside the pleadings”); Gardner v. City of Cape Girardeau, 880 S.W.2d 652, 654-
55 (Mo. App. E.D. 1994) (“the trial court did not confine itself to the face of the petition, but
rather treated the motion as a request for summary judgment” as it “considered and took
judicial notice of” jury instructions “and the circuit court records” in a previous case).
Indeed, “neither the trial court nor the appellate court on de novo review may consider
matters outside the pleadings when adjudging a motion to dismiss.” Naylor Senior Citizens
Hous., LP v Side Constr. Co., 423 S.W.3d 238, 241 n.1 (Mo. banc 2014).
Background
Employee filed his original petition in the instant case in November 2014, and
Respondents responded with a motion to dismiss. Employee filed a first amended petition,
and Respondents moved to dismiss that petition. An April 2015 docket entry reflects that
3
the trial court held a hearing, and, after having taken judicial notice of the court file and
transcripts from the Copeland case, granted Respondents’ second motion to dismiss (without
prejudice) “for the [r]easons [s]et [f]orth [i]n” it. Employee responded by filing the petition
at issue in this appeal.
The averments in the petition include, inter alia, that: Employee brought the
Copeland case “against [Respondents] and others based on conditions in the plant that were
negatively impacting [Employee]’s health”; Employee shifted to a different area of the plant
as a result of his health conditions; Employee worked at the plant “until the week before
trial” of the Copeland case in an area of the plant that “had the presence of chemicals that
aggravated [Employee’s] condition.” The petition alleges that Respondents “were already
aware of [the] type of work environment that [he] would need[,]” and a reasonable
accommodation would have been to place Employee in an open warehouse position for
which he was qualified.
In alleging facts about evidence presented at the Copeland trial, the petition refers to
testimony from two doctors who testified on Employee’s behalf as expert witnesses. One
doctor “testified that he believed [Employee] was doing fine and could continue working,
including working at [the plant].” The other doctor testified that if Employee continued to
work “‘the approach would be to minimize the exposure to those environments’” that
triggered Employee’s health problems.
The petition avers that after Employee received a favorable verdict in the Copeland
trial, he “attempted to return to work” but was told “that he would not be allowed to return
to work.” The petition also alleges that Employee was later told by Mr. Svaranowic that he
4
“would not be allowed to return to work unless he provided medical documentation clearing
him to return or explaining what limitations he might have.”
Employee’s subsequent complaint to the Missouri Commission on Human Rights
and a “right to sue” letter issued by that commission are attached to the petition, but no other
materials or exhibits are attached to or incorporated into the petition. Additional averments
from the petition will be discussed in our analysis of points 3 through 7.
Respondents filed the dismissal motion with supporting suggestions. The dismissal
motion contends, inter alia, that: (1) Employee’s position on his disability as expressed in
the Copeland case judicially estopped him from asserting in the instant case that his
disability could be accommodated; and (2) Employee’s litigation in the Copeland case of his
“ability to perform his job” collaterally estopped him from re-litigating that same issue in
the instant case. The dismissal motion also asserts that each of the petition’s counts fail to
state a claim. Additional details from the dismissal motion will be addressed in our analysis
of points 3 through 7.
Respondents incorporated their prior briefing in support of their motion to dismiss
the first amended petition, and Respondents cited materials outside the petition, including
the trial transcript, the jury’s verdict, and the initial judgment in the Copeland case. The
citations to the Copeland trial transcript include testimony from two doctors Employee had
called as witnesses and an expert on economic damages. The exhibits included in
Respondents’ prior briefing were the petition in the Copeland case, four separate, multi-page
portions of the Copeland trial transcript, and the “AMENDED FINAL JUDGMENT” in the
Copeland case. Portions of these materials relevant to an analysis of judicial estoppel will
be described in our analysis of points 1 and 2.
5
Employee filed suggestions in opposition to the dismissal motion (“Employee’s
suggestions”) that addressed the concept of treating the dismissal motion as a motion for
summary judgment (without objecting to that procedure), made similar arguments against
the dismissal motion as were made against Respondents’ motion to dismiss the first
amended petition, and incorporated similar exhibits.
A hearing was held on the dismissal motion, but no transcript of that hearing is
included in the record on appeal. Docket entries indicate that the trial court took the motion
under advisement after hearing argument and after taking judicial notice of the legal file and
transcripts from the Copeland case. Nothing in the record indicates the trial court notified
the parties that it would be treating the motion to dismiss as a motion for summary
judgment, and the trial court did not indicate what it found to be the undisputed material
facts established by the various materials submitted by the parties in support of and in
opposition to the dismissal motion. The stated rationale for entering the dismissal judgment
was “the reasons set forth in [the dismissal motion.]” Employee filed an amended motion to
reconsider, and it was deemed denied when the trial court did not rule on the motion within
90 days. See Rule 78.06; cf. Taylor v. United Parcel Serv., Inc., 854 S.W.2d 390, 392-93
(Mo. banc 1993) (treating a motion to reconsider as a motion for new trial). This appeal
timely followed.
Analysis
Points 1 and 2 ─ Judicial and Collateral Estoppel
We first take up point 2, which challenges collateral estoppel as a basis for granting
the dismissal motion. Because both sides indicated in their briefing that a new trial was
ordered in the Copeland case, we consider that fact as though it were a part of the record.
6
See New Madrid Cty. v. St. John Levee & Drainage Dist., 436 S.W.3d 573, 574 n.2 (Mo.
App. S.D. 2013). During oral argument, Respondents’ counsel informed this court that there
is presently no final judgment in favor of Employee in the Copeland case, and he further
stated that “today collateral estoppel is no longer a grounds for dismissing” the petition.
Based upon that concession, we grant Employee’s second point. See Ellis v. Hehner, 448
S.W.3d 320, 330 (Mo. App. E.D. 2014) (collateral estoppel requires a judgment on the
merits).
Point 1 claims the trial court erred in dismissing the petition with prejudice based
upon an application of judicial estoppel because “Missouri law allows application of judicial
estoppel to bar a claim only when a party’s later position is clearly inconsistent with its
earlier position” and Employee “has not taken a position that is inconsistent with the
position taken in [the Copeland case.]”3
“[J]udicial estoppel embodies the notions of common sense and fair play.” Egan v.
Craig, 967 S.W.2d 120, 126 (Mo. App. E.D. 1998). “Missouri courts in particular have
consistently refused to allow litigants to take contrary positions in separate proceedings to
ensure the integrity of the judicial process.” In re Contest of Primary Election Candidacy
of Fletcher, 337 S.W.3d 137, 146 (Mo. App. W.D. 2011). There is no precise formula for
determining whether judicial estoppel applies, Vinson v. Vinson, 243 S.W.3d 418, 422 (Mo.
App. E.D. 2007), but three considerations have commonly been used to guide the
determination: “(1) a party’s later position was clearly inconsistent with its earlier position,
(2) the party succeeded in persuading a court to accept the earlier position, and (3) . . . the
party asserting inconsistent positions would derive an unfair advantage or impose an unfair
3
Point 1 asserts additional reasons why, in Employee’s view, the trial court erred in applying judicial estoppel
in this case, but given our resolution of this primary argument, we need not address the others.
7
detriment on the opposing party.” Minor v. Terry, 475 S.W.3d 124, 133 (Mo. App. E.D.
2014); see also Zedner v. U.S., 547 U.S. 489, 505 (2006).
The petition avers that Respondents discriminated against Employee by not
reasonably accommodating his disability under the MHRA when he returned to the plant
after the Copeland trial, retaliated against him based on his reports and complaints of
discrimination, and then wrongfully discharged him for accessing the courts as his filing of
the Copeland case was “a contributing factor in [Respondent]s’ decision to prevent
[Employee] from returning to work and earning an income.” We agree with Employee that
the petition does not identify a position taken by Employee during the Copeland case that is
clearly inconsistent with the positions he has taken in the instant case. For instance, the
petition does not aver that Employee’s prior position was that he could not work at the plant
in a position for which he was qualified if a reasonable accommodation were made for him.
See sections 213.010(4), 213.055.1(1)(a), and 213.070(2).
Assuming, arguendo, that our analysis of judicial estoppel in the instant case could
include a review of materials outside the petition (for example, portions of the Copeland trial
transcript), nothing in that expanded review would support a finding that Employee had
taken a clearly inconsistent position in the Copeland case.4 In his brief, Employee rightly
insists that “no positions were taken or conclusions reached in the [Copeland case] as to
4
Despite Employee’s references in its appellate brief to the dismissal motion as “Respondents’ Motion to
Dismiss and/or Motion for Summary Judgment[,]” Respondents’ counsel took the position at oral argument
that the dismissal judgment was not a judgment deciding a summary judgment motion. Of course, a motion to
dismiss may be converted to a summary judgment motion and then uncontroverted facts outside the petition’s
allegations may be considered, if the proper procedure is followed. See Naylor Senior Citizens Hous., 423
S.W.3d at 241 n.1. Respondents’ counsel nonetheless argued that it was appropriate for the trial court to take
judicial notice of the entire file in the Copeland case based on language in Chesterfield Vill., 64 S.W.3d at 315.
We first observe that the issue in that case was res judicata, not judicial estoppel. More importantly, the single
item judicially noticed by the trial court in Chesterfield Vill. was a judgment “attached as an exhibit in the
second action[.]” Thus, the document at issue was the trial court’s own judgment, not a deposition transcript,
and because the judgment was attached to the pleading, the trial court “did not need to refer to matters outside
the pleadings[.]” Id. at 318 n.1. As a result, Chesterfield Vill. is of no help to Respondents.
8
whether . . . a reasonable accommodation was available to him that would allow him to
perform his duties[.]” A “threshold issue” under the MHRA is whether the person is
“disabled within the statute.” Medley v. Valentine Radford Commc’ns, Inc., 173 S.W.3d
315, 321 (Mo. App. W.D. 2005). “[T]o be disabled under the MHRA, [the plaintiff] must be
able to show that she has an impairment but can work with or without reasonable
accommodation.” Id. (emphasis added); see also section 213.010(4).
Respondents claim Employee’s position that he could “continue to work with
reasonable accommodation is clearly inconsistent with” his position taken in the Copeland
trial, but the evidence they cite does not support that claim. Respondents point to Dr. Allen
Parmet’s testimony recommending that Employee “ought to leave” the plant and that he did
not think Employee would “be able to continue to work[.]” Doctor Parmet stated: “If he is
declining, even removed where he is now with his controlled medication, I would
recommend he be removed.” (Emphasis added.) The doctor is not cited as offering an
opinion about Employee’s ability to work at the plant if “reasonable accommodations” were
made.
The same fundamental problem plagues Respondents’ reliance on Copeland trial
testimony from Dr. Peter Tuteur that “the best thing for [Employee] would be to be out of
that environment now[,]” and testimony from Dr. Jack Ward (an economic damages expert)
regarding differing economic damages depending on whether Employee were to retire
immediately at the age of 55 (based on an assumption that “he really needs to retire now”) or
if he were to retire seven years later at the age of 62. In fact, Dr. Tuteur testified that if
Employee continued to work, he should minimize his exposure to environments harmful to
his lungs. Again, none of this testimony clearly addressed whether Employee could work at
9
the plant with a reasonable accommodation. Cf. Cleveland v. Policy Mgmt. Sys. Corp., 526
U.S. 795, 803 (1999) (reversing summary judgment against a worker for an Americans With
Disabilities Act (“ADA”) claim because “an ADA suit claiming that the plaintiff can
perform her job with reasonable accommodation may well prove consistent with an [Social
Security Disability Insurance] claim that the plaintiff could not perform her own job (or
other jobs) without it“). None of these distinctions would prevent a fact-finder from
eventually deciding that Employee would be unable to work at the plant either with or
without a reasonable accommodation, but such hedging is an insufficient foundation upon
which to build a case for the application of judicial estoppel.
Finally, Respondents argue that “[i]n closing argument [in the Copeland trial,
Employee’s] attorney argued that his client’s lost earnings were ‘about a million dollars’
because he needed ‘to get out of there.’” The cited language comes from the following
passage of the trial transcript:
And so the economic damages that [Employee] suffered that’s on that
chart is about a million dollars. So that’s the benchmark for the economic
damages that he will suffer.
And that was originally based on retiring at 62. And now if you
believe that he ought to get out of there, that’s the economic damages that
we’re talking about. (Emphasis added.)
The economic damages calculated for an immediate retirement at age 55 are not made clear,
and the record does not reveal whether a figure greater than a million dollars based on an
immediate retirement was represented on the “chart” to which the attorney was apparently
directing the jury’s attention.
In any event, it appears that an immediate retirement figure would be based upon
Employee not returning to the same position he had at the time of trial; it cannot be said that
10
this was a clear representation that Employee not only had to retire from his current position
but would also be completely unable to work again, even in a different, accommodated
position. To the contrary, Employee’s position in the petition is that he had been working in
an area of chemical exposure at the time of trial but there were “open positions for
employment in the warehouse” after the Copeland trial “which would not expose
[Employee] to metal working fluids (MWF), and for which [Employee] was qualified.” The
petition also asserts that placing Employee in a warehouse job “would have been a
reasonable accommodation that would not impose any hardship on [Respondents].”
Employee may, of course, be called upon to explain various aspects of the positions he took
in the Copeland case as the instant case moves forward, but the prior positions cited by
Respondents are not sufficiently clear to support the trial court’s decision to prevent
Employee from pursuing his claims by the application of judicial estoppel. Point 1 is
granted.
Point 3 ─ The Discrimination Claim
Respondents sought dismissal of the discrimination claim on the ground that
Employee “fails to plead in good faith that a position existed with [Respondents] (a) which
is vacant, and (b) for which [Employee] is qualified[.]” In their brief, Respondents rely on
Umphries v. Jones, 804 S.W.2d 38, 41 (Mo. App. E.D. 1991), and Berkowski v. St. Louis
Cnty. Bd. of Election Comm’rs, 854 S.W.2d 819, 827 (Mo. App. E.D. 1993), as support for
this claim.5 The Umphries decision construed an older version of the statue that used the
term “handicap” instead of “disability,” but, consistent with the more recent Medley opinion,
5
Respondents also contend that Employee’s “allegation that a vacant position exists that satisfies his stringent
medical criteria violates Rule 55.03(c) and need not be accepted.” This rule addresses the representations
made by a party and his counsel by virtue of presenting and filing matters with the court. This argument, of
course, assumes that Employee clearly represented to the court in the Copeland case that no accommodation
would enable him to work at the plant – a position we reject in our analysis of point 1.
11
it teaches that “if reasonable accommodations can be made so the employee can perform the
job[,]” then the person’s physical condition does not remove them from the protections of
the MHRA. Cf. Umphries, 804 S.W.2d at 41, and Medley, 173 S.W.3d at 321.
The employee in Umphries was appealing a school board’s post-hearing decision
that the employee should be suspended from one position and reassigned to another, and the
board’s decision was affirmed. 804 S.W.2d at 40 and 41. The case did not hold that an
accommodation to a different position is not an accommodation under the MHRA, rather it
found that “[e]mployers are not required to find another job for an employee who is not
qualified for the job he or she was doing although an employer cannot deny an employee
alternative employment opportunities reasonably available under the employer’s existing
policies. Id. at 41.
Berkowski involved a motion to dismiss for failure to state a claim, and it is still
consistent with the more recent decision in Hervey v. Mo. Dept. of Corr., 379 S.W.3d 156,
160 (Mo. banc 2012), regarding a plaintiff’s burden of proof in a disability discrimination
claim: “(1) the plaintiff is legally disabled; (2) the plaintiff was discharged; and (3) the
disability was a factor in the plaintiff’s discharge.” See Berkowski, 854 S.W.2d at 826.
Berkowski also teaches that “an employer cannot deny an employee alternative employment
opportunities reasonably available under the employer’s existing policies.” Id. In that case,
however, the employee failed to allege that “there was a vacant position for which she was
qualified.” Id. at 827.
Here, the petition alleges that Respondents “were already aware of they [sic] type of
work environment that [Employee] would need” from evidence presented at the Copeland
trial, but they “refused to allow [him] to return to work[,]” they “constructively terminated
12
[his] employment[,]” and his termination was “effective March 2015.” It also avers that a
reasonable accommodation was available “in an open position in the warehouse or in
another position where there [are not exposures that would] exacerbat[e] his lung disease”
and Respondents “have refused to provide a reasonable accommodation” by allowing
Employee to work in one of those open positions or take measures to ascertain whether there
were other acceptable areas in which Employee could work.
The petition does not fail to state a claim for discrimination for the reasons asserted
by Respondents and adopted by the trial court in the dismissal judgment. Point 3 is granted.
Point 4 ─ The Retaliation Claim
Respondents sought dismissal of the retaliation claim because Employee’s filing of
the Copeland case “is not ‘protected activity’ within the meaning of the MHRA[,]” and
Employee did not plead facts showing that his complaints about discrimination contributed
to Respondents’ actions in terminating him. Their position is that “[i]t is not possible for
Respondents to have retaliated against [Employee] in November 2013 for engaging in
protected activity when he did not complain about disability discrimination until December
2013 and February 2014.” Respondents also contend that the retaliation claim rests on the
conclusory allegation in the petition that their “conduct constitutes retaliation for
[Employee’s] reports of discrimination.”
Employee contends that the petition avers facts satisfying the elements for such a
cause of action. “To establish a prima facie case of retaliation under the MHRA, a plaintiff
must prove that: (1) he complained of discrimination; (2) the employer took adverse action
against him; and (3) a causal relationship existed between the complaint and the adverse
13
action.” McCrainey v. Kansas City Mo. Sch. Dist., 337 S.W.3d 746, 753 (Mo. App. W.D.
2011); see section 213.070(2).
Employee’s averments in the petition concerning retaliation include that his lawyer
reported the discrimination to “members of management and to human resources” in
December 2013; and then, in February 2014, Employee “filed a charge of discrimination[.]”
The petition alleges that Respondents retaliated against him “by failing to conduct an
investigation into his complaints of discrimination[, . . .] failing to take appropriate remedial
action in response to his complaints[, . . .] refusing to allow [him] to return to work, refusing
to conduct testing to evaluate the safety of the work environment, and by opposing [his]
application for unemployment benefits[, . . . . and] by terminating [his] employment.” The
petition alleges that Employee was terminated in March 2015. The petition also alleges that
Employee’s “reports and complaints of discrimination . . . contributed to [Respondents’]
retaliatory acts against [him].” In reviewing whether a claim has been stated, we must
assume that the averments in the petition, and the reasonable inferences flowing from them,
are true. Nazeri, 860 S.W.2d at 306. The petition alleges enough specific facts to claim that
adverse action was taken against Employee after he made at least one complaint of
discrimination in February 2014 because it is reasonable to infer that a claim for
unemployment compensation would only be made after a termination of employment. See
Walsh v. City of Kansas City, 481 S.W.3d 97, 106 (Mo. App. W.D. 2016) (discrimination
complaint may be only one of the contributing factors leading to “an act of reprisal against
the claimant”). It is, of course, possible that something other than retaliation motivated
Respondents’ termination of Employee, but one reasonable inference from Employee’s
allegations that Respondents did not permit him to work at the plant at all after the Copeland
14
trial and refused to place him in an open position that he was qualified to fill is that his
termination was in retaliation for his reports and complaints of discrimination. Point 4 is
granted.
Point 5 ─ The Wrongful Discharge Claim
Respondents maintain in the dismissal motion that the wrongful discharge claim
should be dismissed because Employee’s “allegations establish that he voluntarily left his
employment and was not terminated.” Respondents argue that Employee “voluntarily left
his employment when he declined to provide the requested note from his doctor clearing
him to return to work.” But the petition avers that Respondents were already aware of
Employee’s medical needs in relation to his workplace from testimony presented at the
Copeland trial, and our review is not to determine whether Respondents suggest a viable
defense to Employee’s claim. “The issue is not whether the plaintiff is entitled to a
judgment in his favor, rather it is whether he is entitled to be heard on his claim.”
Rychnovsky v. Cole, 119 S.W.3d 204, 210 (Mo. App. W.D. 2003). In addition to averring
that Employee “was denied entry to the workplace” in November 2013 when he “attempted
to return to work” after the Copeland trial, and that Respondents refused to allow Employee
to return for over a year, the petition also avers that Employee was terminated in March
2015. The petition further alleges that these acts were “in retaliation for [Employee]
accessing the courts and seeking a remedy for his work environment that contained
dangerous chemicals harmful to and injurious to the employees in that work environment.”
The wrongful discharge claim adequately alleges a termination. Point 5 is granted.
15
Points 6 and 7 ─ Emerson’s Role
Employee contends in his sixth point that the trial court erred in dismissing Emerson
from the case because an “employer” for purposes of the MHRA includes “‘persons directly
acting in the interest of an employer[,]’” and Emerson directly acted in Scroll’s interest. See
section 213.010(7). Point 7 claims it was error to dismiss Emerson because Emerson
operated as one with Scroll as to “constitute an integrated entity[.]” These points are moot
as they do not address rulings made in the dismissal judgment. Cf. Merlyn Vandervort Inv.,
LLC v. Essex Ins. Co., 309 S.W.3d 333, 336 n.2 (Mo. App. S.D. 2010) (appellant’s
argument that insurance policy endorsement provided coverage beyond “unendorsed policy
limits” was not addressed on appeal because it was not an issue included in the grant of the
respondent’s motion for summary judgment).
It is true that the dismissal with prejudice was in favor of all Respondents based upon
“the reasons set forth in” the dismissal motion, and the dismissal motion generally contends
that the grounds remained the same as those in Respondent’s previous motion to dismiss the
first amended petition. But, as the dismissal motion points out, the petition adds a new
sentence regarding Emerson to two existing paragraphs and also includes eight new
paragraphs “relating to the issue of whether [Emerson] is [Employee’s] joint employer.”
One of the new paragraphs alleges that Emerson operated Scroll and another alleges that
Emerson “provid[ed] employment policies and otherwise manag[ed] employees of [Scroll.]”
As a part of their discussion of the newly added allegations in the petition,
Respondents do not reassert a challenge to Emerson’s alleged role; they simply note that
“[t]hese new paragraphs do nothing to address the main deficiencies that caused the [f]irst
[a]mended [p]etition to be dismissed such as judicial estoppel and collateral estoppel.” The
16
dismissal motion does not claim that the petition must be dismissed against Emerson
because the petition failed to allege facts supporting a claim that Emerson directly acted in
the interest of Scroll.
While Respondents now argue in their brief that “[t]here is no good faith basis on
which [Employee] can allege he is also employed by [Emerson]” and no direct participation
by Emerson is alleged in the petition, these arguments are insufficient to belatedly assert
theories supporting a position that Employee failed to state claims against Emerson. “A
court of appeals may not review a case upon a theory different from that which was
presented to the trial court.” City of Univ. City v. AT & T Wireless Serv., 371 S.W.3d 14,
22 (Mo. App. E.D. 2012). Points 6 and 7 are dismissed as moot.
The dismissal judgment is reversed, and the case is remanded for further proceedings
consistent with this opinion.
DON E. BURRELL, P.J. – OPINION AUTHOR
GARY W. LYNCH, J. – CONCURS
WILLIAM W. FRANCIS, JR., J. – CONCURS
17