SUPREME COURT OF MISSOURI
en banc
JOHN TEMPLEMIRE, )
)
Appellant, )
)
vs. ) No. SC93132
)
W & M WELDING, INC., )
)
Respondent. )
APPEAL FROM THE CIRCUIT COURT OF PETTIS COUNTY
The Honorable Robert L. Koffman, Judge
Opinion issued April 15, 2014, and modified on Court’s own motion May 27, 2014
John Templemire (hereinafter, “Templemire”) appeals from a jury verdict entered
in favor of W & M Welding, Inc. (hereinafter, “Employer”) on Templemire’s claim of
retaliatory discharge in violation of section 287.780, RSMo 2000, 1 after Templemire
sought workers’ compensation benefits and was discharged from his employment.
Templemire raises two claims of instructional error regarding: (1) the proper causation
standard an employee must demonstrate to make a prima facie case for retaliatory
discharge under this statute and (2) whether an employee is entitled to submit an
instruction regarding an employer’s alleged pretextual motive for the employee’s
discharge.
1
All statutory references are to RSMo 2000 unless otherwise indicated.
This Court holds that to make a submissible case for retaliatory discharge under
section 287.780, an employee must demonstrate his or her filing of a workers’
compensation claim was a “contributing factor” to the employer’s discrimination or the
employee’s discharge. To the extent the decisions in Hansome v. Northwestern
Cooperage Co., 679 S.W.2d 273 (Mo. banc 1984), and Crabtree v. Bugby, 967 S.W.2d
66 (Mo. banc 1998), are inconsistent with this decision, they are overruled. This Court
need not reach Templemire’s alternative claim of instructional error regarding pretext.
The circuit court’s judgment is reversed, the case is remanded. 2
Factual and Procedural History
Employer hired Templemire in October 2005 to work as a painter and general
laborer whose job duties included driving trucks and washing parts in the wash bay. On
January 9, 2006, Templemire was injured in the course and scope of his employment
when a large metal beam fell from a forklift and crushed his left foot. Templemire’s
injury required surgery and the installation of plating and screws into his foot.
Templemire reported the injury to Employer and filed a workers’ compensation claim for
which he received benefits.
Approximately three to four weeks following his injury, Templemire was cleared
to return to work with certain restrictions. Templemire was instructed to wear a
protective boot on his injured foot while at work and was prohibited from climbing
2
This Court transferred this case after an opinion by the Missouri Court of Appeals,
Western District. Portions of the court of appeals opinion are incorporated without
further attribution.
ladders. The following month, Templemire’s physician added a restriction preventing
Templemire from driving a vehicle with a clutch. In July 2006, Templemire’s physician
ordered that he only perform seated work due to continuing complications from his
injury. In September 2006, the seated restriction was lifted, but Templemire’s physician
implemented new restrictions, which included restraining him from climbing stairs,
pushing, pulling, and standing longer than one hour without a fifteen-minute break.
As a result of these restrictions, Employer placed Templemire on “light duty”
when he returned to work even though light duty work was not available when
Templemire returned. Employer’s owner, Gary McMullin (hereinafter, “McMullin”),
accommodated the restrictions and created a light duty work assignment for Templemire
by assigning him to be a tool room assistant to Nick Twenter (hereinafter, “Twenter”).
On November 29, 2006, Templemire remained on light duty. McMullin received
a request from a customer to have a railing washed and painted for pick up later that
afternoon. Templemire testified that when he arrived at work that morning, he did not
speak to McMullin. Instead, Twenter informed Templemire that he would need to wash
the railing, but that it was not ready. Twenter then assigned him to complete other tasks
while the railing was prepared for washing. Templemire completed these tasks and
returned to the job site. Around 1:50 p.m., Templemire went toward the wash bay to
wash the railing. Before reaching the wash bay, Templemire stopped to rest his foot,
which was infected.
During this break, McMullin confronted Templemire and cursed at him because
the railing had not been washed. Templemire tried to explain the railing had just arrived
3
in the wash bay, and he intended to wash the railing as soon as his break was over. After
continuing to curse at Templemire, McMullin discharged Templemire effective
immediately. Templemire asked McMullin if he was sure he wanted to fire him “because
[he] was going to go home and call workman’s [sic] comp?” to which McMullin replied,
“I don’t give a f--- what you do, this is my f---ing place.”
After being terminated, Templemire contacted Liz Gragg (hereinafter, “Gragg”),
the insurance adjuster on his workers’ compensation claim. Gragg subsequently
contacted McMullin to discuss Templemire’s discharge. Gragg’s notes from her
conversation with McMullin reflected that, after Gragg indicated Templemire had work
restrictions that required him to take a break, McMullin “went on a [tirade] about
[Templemire] ‘milking’ his injury and that he can sue him for whatever reason that is
what he pays his premiums for and the [attorneys].”
Templemire subsequently filed suit against Employer pursuant to section 287.780
alleging he was discharged in retaliation for filing a workers’ compensation claim. At the
trial, McMullin characterized Templemire as a “high maintenance employee” and
disputed Templemire’s account of what transpired between them. McMullin testified he
placed the railing in the wash bay early in the morning. McMullin directed Templemire
to wash the railing immediately and to disregard any other assignments from Twenter or
anyone else until the washing was complete. McMullin returned to check on
Templemire’s progress two hours later and found the railing unwashed and Templemire
taking a break. McMullin testified that Templemire told him that he needed a break for
his foot and if McMullin did not like it, he could take it up with Templemire’s physician.
4
McMullin advised Templemire that he did not work for Templemire’s physician and
discharged Templemire for insubordination.
Templemire presented evidence that McMullin yelled at him due to this injury and
referred to other workers who had been injured as “whiners.” Templemire also offered
testimony from former employees who were belittled as a result of their injuries and who
did not receive work accommodations. One witness testified he was discharged shortly
after filing a workers’ compensation claim. Another witness testified that he overheard
McMullin yell at Templemire, “[a]ll you do is sit on your a-- and draw my money”
during the argument that resulted in Templemire’s discharge. Templemire’s immediate
discharge was contrary to Employer’s progressive discipline policy, which was submitted
into evidence. Templemire presented evidence about another employee who received
multiple disciplinary write-ups and had a drug problem but had not been discharged. By
contrast, after returning to work, Templemire received his only disciplinary write-up for
failing to wear a paint mask while in the paint booth. Despite this one issue, Templemire
was regarded as a good employee who performed his tasks efficiently.
During the jury instruction conference, Templemire argued MAI-23.13, 3 the
applicable MAI-approved verdict director, misstated the law insofar as it required a
finding that Templemire’s filing of a workers’ compensation claim was the exclusive
factor in Employer’s decision to terminate him to prevail on his claim. Templemire
offered an alternative instruction stating the jury could find in his favor if the filing of the
workers’ compensation claim was a contributing factor to Employer’s decision to
3
MAI 23.13 has been replaced with MAI 38.04.
5
discharge him. 4 Alternatively, Templemire submitted a pretext instruction, which
advised the jury that it could find exclusive causation if it found that Employer’s stated
reason for his discharge was a mere pretext, rather than the true reason stated. 5 The
circuit court refused both of Templemire’s instructions and advised the jury it had to find
the filing of a workers’ compensation claim was the exclusive factor considered by
Employer when it terminated Templemire for him to prevail on his claim. The jury
returned a verdict in Employer’s favor. After an opinion by the court of appeals, this
Court granted transfer. 6 Mo. Const. art. V, sec. 10.
Standard of Review
Whether a jury was instructed properly is a question of law that this Court reviews
de novo. Edgerton v. Morrison, 280 S.W.3d 62, 65 (Mo. banc 2009). “Instructional
errors are reversed only if the error resulted in prejudice that materially affects the merits
4
Templemire’s rejected verdict director stated: “On the claim of plaintiff for
compensatory damages for retaliatory discharge against defendant, your verdict must be
for plaintiff if you believe:
First, plaintiff was employed by defendant, and
Second, plaintiff filed a workers’ compensation claim, and
Third, defendant discharged plaintiff, and
Fourth, plaintiff’s filing of the workers’ compensation claim was a contributing
factor in such discharge, and
Fifth, as a direct result of such discharge plaintiff sustained damage.”
5
Templemire’s rejected pretext instruction stated: “You may find that plaintiff
exercising his workers’ compensation rights was the exclusive cause of defendant’s
decision to discharge plaintiff if the defendant’s stated reason for its decision are not the
true reasons, but are a pretext to hide retaliation against plaintiff for exercising his
workers’ compensation rights.”
6
The Missouri Association of Trial Attorneys and The St. Louis and Kansas City
chapters of the National Employment Lawyers Association filed amicus briefs in support
of Templemire. The Missouri Chamber of Commerce and Industry and The Missouri
Organization of Defense Lawyers filed amicus briefs in support of Employer.
6
of the action.” Bach v. Winfield-Foley Fire Protection Dist., 257 S.W.3d 605, 608 (Mo.
banc 2008).
Generally, “[w]henever Missouri Approved Instructions contains an instruction
applicable to the facts of a case, such instruction shall be given to the exclusion of any
other instructions on the same subject.” Rule 70.02(b). Rule 70.02 further provides that
departure from an applicable MAI constitutes error, with its prejudicial effect to be
determined judicially. Rule 70.02(b)-(c). If, however, a particular MAI does not state
the substantive law accurately, it should not be given. State v. Celis-Garcia, 344 S.W.3d
150, 158 (Mo. banc 2011).
Section 287.780 Causation Standard
Templemire argues the circuit court erred in refusing his verdict director that
modified the applicable MAI by substituting “contributing factor” for the “exclusive
cause” language. Templemire claims that submitting the MAI as written misstates the
law. Templemire asserts the MAI’s use of the phrase “exclusive cause” is contrary to the
plain language of section 287.780 and this Court’s recent decisions construing the
Missouri Human Rights Act (“the MHRA”) and public policy wrongful termination
claims, which both hold liability attaches if the employer’s prohibited motive was a
“contributing factor” in the employee’s subsequent discharge.
Generally, an employer can discharge an at-will employee for any reason.
Keveney v. Missouri Military Acad., 304 S.W.3d 98, 101 (Mo. banc 2010). There are
exceptions and limits, however, to the at-will employment doctrine. For example, an
employer cannot terminate an at-will employee for being a member of a protected class
7
based on “race, color, religion, national origin, sex, ancestry, age or disability.” Fleshner
v. Pepose Vision Institute, P.C., 304 S.W.3d 81, 92 (Mo. banc 2010) (quoting section
213.055 of the MHRA). Additionally, this Court has adopted the following public policy
exception to the at-will employment doctrine:
An at-will employee may not be terminated (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…. If an employer
terminates an employee for either reason, then the employee has a cause of
action in tort for wrongful discharge based on the public-policy exception.
Id. at 92. 7
Section 287.780’s Historic Construction
Section 287.780 is a statutory exception to the at-will employment doctrine and
provides: “No employer or agent shall discharge or in any way discriminate against any
employee for exercising any of his [or her] rights under this chapter. Any employee who
has been discharged or discriminated against shall have a civil action for damages against
his [or her] employer.” This section was enacted in 1925 as a part of the original
Missouri workers’ compensation law. Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122,
124 (Mo. 1956). At the time of enactment, the workers’ compensation law was construed
liberally in favor of the worker and the award of benefits. Maltz v. Jackoway-Katz Cap
7
The legislature has provided statutory protection against discrimination or discharge for
other whistle-blowing activities as well. See section 191.908.1 (protection for reporting
Medicaid fraud); section 162.068.1 (protection for school employees who report sexual
misconduct committed by teachers and other school employees); and section 84.342.1
(protection for municipal police officers).
8
Co., 336 Mo. 1000, 82 S.W.2d 909, 911 (Mo. 1934). Section 287.780 was amended in
1973 to provide employees with the private right of action that remains today.
The first case to address the statute after the legislature provided employees with a
private cause of action was Mitchell v. St. Louis County, 575 S.W.2d 813 (Mo. App. E.D.
1978). In Mitchell, the plaintiff alleged her discharge was discriminatory because it
occurred six months after she filed a workers’ compensation claim for a back injury. Id.
at 814. The court affirmed the circuit court’s entry of a directed verdict in the employer’s
favor after the employer demonstrated the plaintiff was discharged due to excessive
absenteeism unrelated to the injury. Id. The court stated, “It is palpable that a cause of
action lies only if an employee is discharged discriminatorily by reason of exercising his
or her rights” under the workers’ compensation law. Id. at 815. Here, the employer
presented evidence of a valid and nonpretextual motive to discharge the plaintiff. Id.
A plaintiff’s need to demonstrate a causal connection between his or her exercise
of workers’ compensation rights and the subsequent discharge was discussed in Davis v.
Richmond Special Road Dist., 649 S.W.2d 252 (Mo. App. W.D. 1983). The court
explained:
By its wording, section 287.780 is, to the extent of authorizing recovery of
damages by a civil action, penal in nature. The statute predicates recovery
upon the discharge or discrimination of an employee for the exercise of his
or her workers’ compensation rights. By its wording, the statute does not
convey an intent that mere discharge of an employee gives rise to a claim
against the employer. On the other hand, the statute reveals a legislative
intent that there must be a causal relationship between the exercise of the
right by the employee and his discharge by his employer arising precisely
from the employee’s exercise of his rights, and upon proof, that the
discharge was related to the employee’s exercise of his or her rights. In its
enactment of section 287.780, the General Assembly did not prohibit
9
(although it could have) the discharge of employees merely during the
pendency of a claim for workers’ compensation. On the other hand, the
General Assembly, by its wording of section 287.780, enacted a prohibition
against employers (to the extent they might be liable for damages in a
separate civil proceeding) not to discriminate or discharge employees
because of the employee’s exercise of his or her rights relative to a
workers’ compensation claim. Stated another way, the legislative intent
conveyed by the statute is to authorize recovery for damages if, upon proof,
it be shown that the employee was discriminated against or discharged
simply because of the exercise of his or her rights regarding a workers’
compensation claim.
Id. at 255. (Emphasis added).
For the first time in Hansome v. Northwestern Cooperage Co., this Court set forth
the elements a plaintiff must demonstrate to make a submissible case for a claim brought
pursuant to section 287.780: “(1) plaintiff’s status as employee of defendant before
injury, (2) plaintiff’s exercise of a right granted by Chapter 287, (3) employer’s discharge
of or discrimination against plaintiff, and (4) an exclusive causal relationship between
plaintiff’s actions and defendant’s actions.” Hansome, 679 S.W.2d at 275. (Emphasis
added). This Court did not analyze or interpret the wording of section 287.780; rather, it
cited Mitchell and Davis as support for its declaration that the exclusive causation
standard was appropriate for this cause of action. This Court further explained,
“Causality does not exist if the basis for discharge is valid and nonpretextual.” Id. at 277,
n.2.
This Court reaffirmed the holding in Hansome in Crabtree v. Bugby. In Crabtree,
the employer challenged the verdict director submitted by the discharged employee that
directed the jury to return a verdict in her favor if it found “as a direct result of plaintiff’s
filing of a claim for [workers’] compensation, defendant discharged plaintiff.” Crabtree,
10
967 S.W.2d at 71. (Emphasis added). This Court found the instruction was erroneous
because it permitted the jury to return a verdict for the plaintiff even though the reasons
for her discharge included causes other than filing a workers’ compensation claim. Id.
This Court held the jury should have been instructed that it had to find the exclusive
cause of the plaintiff’s discharge was the filing of her claim as articulated in Hansome.
Id. This Court explained:
Once this Court by case law has resolved the elements of a cause of action
pursuant to section 287.780, neither the trial court nor the court of appeals
is free to redefine the elements in every case that comes before them. Mo.
Const. art. V, sec. 2. Similarly, this Court should not lightly disturb its own
precedent. Mere disagreement by the current Court with the statutory
analysis of a predecessor Court is not a satisfactory basis for violating the
doctrine of stare decisis, at least in the absence of a recurring injustice or
absurd results. 8
Id. at 71-72.
The disagreement regarding the statutory analysis was set forth in the dissenting
opinion in Crabtree. The dissent stated section 287.780 did not contain any language
suggesting that an employee is entitled to relief only when he or she has been discharged
8
Echoing this concern in Crabtree, the dissenting opinion likewise asserts the reason this
Court has overruled Hansome and Crabtree is due solely to a change of heart by the
changed membership of the Court, not based upon a legal need. Undoubtedly, the
membership of this Court, as well as that of the legislature, has changed dramatically
since Hansome was decided in 1984 and Crabtree in 1998. However, today’s decision
stems from this Court’s duty to address an appellant’s properly raised challenge
requesting reexamination of this Court’s precedent in light of the current legal landscape.
Moreover, reexamination is warranted given the legislature’s expansive enactment of a
number of statutes that protect Missouri’s citizens from discrimination, most notably
passage of the MHRA. Given the legislature’s demonstrated intent that discrimination,
based on any number of factors, will not be tolerated in the workplace, it is appropriate
for this Court to reevaluate the accuracy of the exclusive causation standard.
11
“solely” or “exclusively” because the employee sought the protection afforded by
workers’ compensation. Id. at 73. The dissent also characterized the holding in
Hansome as “an aberration” in which the “exclusive” language “appears to be plucked
out of thin air” because neither Mitchell nor Davis used the word “exclusive” to describe
the causation standard. Id. at 74.
Hansome and its progeny remained unquestioned until this Court’s recent decision
in Fleshner v. Pepose Vision Institute, P.C.. In Fleshner, this Court explicitly recognized
for the first time the public policy exception to the at-will employment doctrine.
Fleshner, 304 S.W.3d at 92. The defendant in Fleshner modeled its jury instruction after
the MAI-approved instruction that relied on the Hansome factors to prove a claim of
retaliatory discharge and used the exclusive cause language. This Court noted, “Nowhere
in the workers’ compensation laws does ‘exclusive causal’ or ‘exclusive causation’
language appear.” Id. The Court acknowledged there was a key distinction between
workers’ compensation retaliation cases and public policy exception cases, in that the
former arises under the statute, while the latter arises under the common law. Id. at 93.
Fleshner found the exclusive causation standard was “inconsistent with the proximate
cause standard typically employed in tort cases.” Id. Moreover, this Court found
application of the exclusive causation standard would discourage employees from
reporting their employers’ violations of the law or for refusing to violate the law. Id. In
other words, application of the exclusive causation standard “would result in an exception
that fails to accomplish its task of protecting employees who refuse to violate the law or
public policy.” Id.
12
Stare Decisis
Templemire acknowledges the applicable holdings in Hansome and Crabtree but
urges this Court to reexamine those cases in light of this Court’s recent criticisms in
Fleshner. Templemire argues Hansome and Crabtree should be reversed or modified
because they erroneously analyzed section 287.780 and the appropriate causation
standard from its inception. Employer and its amici argue that this Court should adhere
to the principles of stare decisis and continue to follow the precedent set by Hansome and
Crabtree.
“The doctrine of stare decisis promotes security in the law by encouraging
adherence to previously decided cases.” Independence-Nat. Educ. Ass’n v. Independence
Sch. Dist., 223 S.W.3d 131, 137 (Mo. banc 2007). “But, the adherence to precedent is
not absolute, and the passage of time and the experience of enforcing a purportedly
incorrect precedent may demonstrate a compelling case for changing course.” Watts v.
Lester E. Cox Medical Centers, 376 S.W.3d 633, 644 (Mo. banc 2012) (quoting Med.
Shoppe Intern., Inc. v. Dir. of Revenue, 156 S.W.3d 333, 335 (Mo. banc 2005)).
“[W]here it appears that an opinion is clearly erroneous and manifestly wrong, the rule
[of] stare decisis is never applied to prevent the repudiation of such a decision.”
Southwestern Bell Yellow Pages, Inc. v. Dir. of Revenue, 94 S.W.3d 388, 390-91 (Mo.
banc 2002) (quoting Novak v. Kansas City Transit, Inc., 365 S.W.2d 539, 546 (Mo. banc
1963).
Here, adherence to stare decisis is ill-advised when one carefully examines this
Court’s sua sponte creation of the exclusive causation standard articulated in Hansome.
13
Hansome’s reliance on Mitchell and Davis to support an exclusive causation standard is
unfounded. Neither Mitchell nor Davis contains any reference whatsoever to a
heightened or exclusive causation standard for a plaintiff to prevail on a claim for
retaliatory discharge under the workers’ compensation law. Mitchell did not address
causation explicitly, while Davis recognized causation was an element of the claim but
did not allude to an “exclusive causation” standard by any means. The dissent in
Crabtree aptly described the holding in Hansome as “an aberration” in which the
“exclusive” language “appears to be plucked out of thin air” with no support in the
caselaw or statutory interpretation. As the learned jurist Justice Oliver Wendell Holmes
Jr. admonished, “It is revolting to have no better reason for a rule of law than that so it
was laid down in the time of Henry IV. It is still more revolting if the grounds upon
which it was laid down have vanished long since, and the rule simply persists from blind
imitation of the past.” Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev.
457, 469 (1897).9 Thus, the holdings in Hansome and Crabtree are clearly erroneous and
stare decisis should not be applied to prevent their repudiation. 10
9
The dissenting opinion cites another learned jurist, Justice Louis Brandeis, for the
proposition that “it is more important that the applicable rule of law be settled than that it
be settled right.” Staunch adherence to stare decisis based solely on this notion would
result in a society in which insidious discrimination still would subject school children to
being segregated into schools that were purportedly separate but equal, women could not
serve on juries, interracial marriage still would be subject to criminal prosecution, and
crime victims would be prohibited from offering impact testimony during the punishment
phase of death penalty trials.
10
The dissenting opinion accuses this Court of failing to acknowledge that the common
law is the exclusive prerogative of the judiciary, for which this Court is the ultimate
authority, and that stare decisis is at its strongest in cases of statutory interpretation. This
Court did not employ the tenets of statutory construction when it articulated the exclusive
14
Legislative Inaction
Employer and its amici assert the legislature had ample opportunity to correct any
misstatement by this Court of the exclusive causation standard and chose not to do so,
particularly when it substantially revised the workers’ compensation laws in 2005.11
Templemire argues that legislative inaction is not a factor that trumps other rules of
statutory construction, and that section 287.780 has been construed improperly since
Hansome.
If this Court rejects a litigant’s pleas to overrule existing caselaw, a party can seek
redress with the legislature to implore it to change an incorrect or otherwise undesirable
interpretation of a statute. Med. Shoppe, 156 S.W.3d at 334. This Court explained the
fallacy of relying upon legislative inaction as tacit approval of an interpretation of a
statute:
The General Assembly’s inaction has sometimes been interpreted to be
approval of the Court’s reading of a statute. Legislative inaction, however,
causation standard in Hansome or when it reaffirmed the standard in Crabtree. Rather,
Hansome merely turned to common law causation principles to fill the causation void in
an otherwise silent statute. In doing so, this Court misconstrued the holdings in Mitchell
and Davis, which the dissent does not contest. Only now is this Court examining the
plain meaning of the statute to determine legislative intent to discern the appropriate
causation standard.
11
The dissenting opinion asserts that today’s decision encroaches on the legislature’s
implicit adoption of the exclusive causation standard given the extensive amendments to
the workers’ compensation statutes in 2005 and fears this decision will invite the
legislature to do away with the private right of action altogether. The dissent’s fear is
speculative at best given the legislature’s enactment of a number of statutes that protect
citizens from discrimination since Hansome was decided. It was this Court’s misguided
proclamation of the exclusive causation standard in Hansome that effectively eviscerated
the legislature’s plain intent to prohibit employers from discriminating “in any way”
against an employee who exercised his or her workers’ compensation rights.
15
can just as well mean that the forces arrayed in favor of changing the law
are matched by the forces against changing it. In truth, the match does not
have to be an even one, for the legislative process in our republican form of
government is designed more to prevent the passage of legislation than to
encourage it. An incorrect judicial interpretation of a statute may also stand
simply because the legislature has paid no attention to it. Thus, it is
speculative to infer legislative approval from legislative inaction.
Id. at 334-35.
“Workers’ compensation law is entirely a creature of statute, and when
interpreting the law the court must ascertain the intent of the legislature by considering
the plain and ordinary meaning of the terms and give effect to that intent if possible.”
Hayes v. Show Me Believers, Inc., 192 S.W.3d 706, 707 (Mo. banc 2006) (quoting
Greenlee v. Dukes Plastering Service, 75 S.W.3d 273, 276 (Mo. banc 2002)). “Insight
into the legislature’s object can be gained by identifying the problems sought to be
remedied and the circumstances and conditions existing at the time of the enactment.”
Bachtel v. Miller County Nursing Home Dist., 110 S.W.3d 799, 801 (Mo. banc 2003).
The plain language of section 287.780 prohibits an employer from discharging or
in any way discriminating against an employee for exercising his or her workers’
compensation rights. At the time section 287.780 was enacted and when this Court
decided Hansome, workers’ compensation laws were to be construed liberally. This
Court’s imposition of the exclusive causation standard ran afoul of this statutory
imperative. Even if this Court strictly construed the statute as it must do pursuant to
section 287.800, “[a] strict construction of a statute presumes nothing that is not
expressed.” Robinson v. Hooker, 323 S.W.3d 418, 423 (Mo. App. W.D. 2010). “The
operation of the statute must be confined to ‘matters affirmatively pointed out by its
16
terms, and to cases which fall fairly within its letter.’” Id. (quoting Allcorn v. Tap
Enters., Inc., 277 S.W.3d 823, 828 (Mo. App. S.D. 2009)). Undisputedly, section
287.780 does not contain the word “exclusively” or “solely” or “only” to support the
exclusive causation standard articulated in Hansome. 12 Further, the legislative dictate is
clear that it is inappropriate for an employer to give any consideration to the fact that an
employee filed a workers’ compensation claim when making employment decisions.
Moreover, in Reed v. Sale Memorial Hosp. and Clinic, 698 S.W.2d 931, 935 (Mo.
App. S.D. 1985), the court explained that section 287.780 is an exception to Missouri’s
employment at-will doctrine and that the statute declared “public policy” by addressing
“the evil to be remedied,” which was “want of an effective remedy for retaliatory
discharge arising out of the exercise of rights” under the workers’ compensation law. Id.
As it stands today, an employer’s discrimination against or discharge of an employee who
12
Compare, Ala. Code § 25-5-11.1 (“No employee shall be terminated by an employer
solely because the employee has instituted or maintained any action against the employer
to recover workers’ compensation benefits ….”); Haw. Rev. Stat. § 386-142 (“It shall be
unlawful for any employer to suspend or discharge any employee solely because the
employee suffers any work injury which is compensable under this chapter and which
arises out of and in the course of employment with the employer unless it is shown to the
satisfaction of the director that the employee will no longer be capable of performing the
employee’s work as a result of the work injury and that employer has no other available
work which the employee is capable of performing.”); Md. Code Labor & Emply, § 9-
1105 (“An employer may not discharge a covered employee from employment solely
because the covered employee files a claim for [workers’] compensation ….”); N.M. Stat.
Ann. § 52-1-28.2A (“An employer shall not discharge, threaten to discharge or otherwise
retaliate in the terms or conditions of employment against a worker who seeks workers’
compensation benefits for the sole reason that that employee seeks workers’
compensation benefits.”); and Va. Code Ann. § 65.2-308A (“No employer or person shall
discharge an employee solely because the employee intends to file or has filed a claim
under this title or has testified or is about to testify in any proceeding under this title.”).
17
exercises his or her rights under section 287.780 is acceptable so long as it is not the
exclusive cause of the employer’s action. Thus, the imposition of an exclusive causation
standard effectively deprives an employee’s right to remedy the evil of being
discriminated against or discharged for exercising workers’ compensation rights.
Hence, the reasoning in Hansome, and the cases it relied on, is flawed. Therefore,
to the extent Hansome, Crabtree, and their progeny require a plaintiff to demonstrate his
or her exercise of workers’ compensation rights was the exclusive cause of his or her
discharge or discrimination, they no longer should be followed.
Appropriate Causation Standard
Because the exclusive causation standard is unsupported by the plain language of
section 287.780 and the caselaw relied upon in Hansome and Crabtree, the issue remains
what causation standard must a plaintiff demonstrate to make a submissible case for
retaliatory discharge under this statute. Templemire and his amici argue this Court
should align workers’ compensation discrimination cases with MHRA employment
discrimination and public policy exception cases by adopting the “contributing factor”
standard. Employer and his amici disagree, urging this Court to adopt a “heightened” or
“motivating factor” test to avoid marginally competent employees from filing the pettiest
of claims in an effort to avoid a valid termination.
“There is nothing in the entire field of law which has called forth more
disagreement, or upon which the opinions are in such a welter of confusion” than
causation. Prosser and Keeton on Torts, §41 at 263 (5th ed. 1984). This Court explained
the confusion that has permeated tort law due to the different terminology used by the
18
classic Prosser and Keeton treatise and the Restatement (Second) of Torts in Callahan v.
Cardinal Glennon Hosp., 863 S.W.2d 852 (Mo. banc 1993). “The ‘but for’ causation test
provides that ‘the defendant’s conduct is a cause’ of the event if the event would not have
occurred ‘but for’ that conduct.” Callahan, 863 S.W.2d at 860-61 (quoting Prosser, §41
at 266). Prosser uses the term “proximate cause” to encompass all “but for” cases, except
for the certain limited exception to the “two fires case” in which each of two or more
causes would be sufficient, standing alone, to cause the plaintiff harm. 13
By comparison, Restatement section 430 requires a plaintiff to demonstrate the
defendant was the legal cause of his or her harm for liability to attach. Section 431
provides that legal cause is shown when the defendant’s conduct is a “substantial factor”
in bringing about the harm. However, section 432 instructs that the defendant’s conduct
is not a “substantial factor” unless it meets the “but for” test. Thus, the confusion arises
13
“Two fires case” is an illustration used to demonstrate when the application of the “but
for” causation test fails to test for causation in fact accurately. The scenario entails two
independent tortfeasors who set fires being swept by the wind toward a piece of property,
with either fire sufficiently strong, standing alone, to burn down the property. Before
either fire reaches the property, they combine and burn the property. If each actor
negligently set his or her respective fire, each could claim that he or she is not a factual
cause of the harm under the “but for” causation rule because, in the absence of setting
one fire, the other fire would have burned the property. Therefore, because both actors
could make the same argument, a court that applied the “but for” causation test
effectively would bar the victim from recovery from either of two negligent actors who
were obvious factual causes of the damages. “Thus, application of the ‘but for’ test
“leads to a result that is almost always condemned as violating both an intuitive sense of
causation and good legal policy. Cases like the two fires cases have consequently put the
simple but-for test in doubt and courts have in fact modified that test to deal with such
cases.” See 1 Dan B. Dobbs, Paul T. Hayden and Ellen M. Bublick, The Law of Torts,
§189 at 631-32 (2d ed. 2011).
19
wherein the Restatement labels all cases in which legal cause is present as requiring the
“substantial factor” analysis but provides they must meet the “but for” causation test.
This Court recognizes that whether one adheres to the Restatement or Prosser, this
historical causation analysis typically pertains to common law tort and negligence actions
as opposed to statutory actions. However, as stated in Fleshner, an exclusive causation
standard is inconsistent with the proximate cause standard typically employed in tort
cases. Fleshner, 304 S.W.3d at 93. Moreover, this Court cautioned that these semantic
differences are of little consequence in Missouri because “under the MAI we do not use
the terms 1) ‘proximate cause,’ 2) ‘but for causation,’ or 3) ‘substantial factor’ when
instructing the jury.” Callahan, 863 S.W.2d at 863. See also Sundermeyer v. SSM
Regional Health Services, 271 S.W.3d 552, 555 (Mo. banc 2008). Rather, “[s]uch terms
are standards by which the courts determine whether a submissible case has been made
and instructing the jury by use of such terms creates the potential for confusion.” Thomas
v. McKeever’s Enterprises, Inc., 388 S.W.3d 206, 216 (Mo. App. W.D. 2012) (internal
citations omitted). “We merely instruct the jury that the defendant’s conduct must
‘directly cause’ or ‘directly contributed to cause’ plaintiff’s injury.” Callahan, 863
S.W.3d 863 and Sundermeyer, 271 S.W.3d 555.
In recent years, this Court has addressed what causation standard Missouri
plaintiffs must demonstrate to make a submissible case for various forms of employment
discrimination. In Daugherty v. City of Maryland Heights, 231 S.W.3d 814 (Mo. banc
2007), this Court held a plaintiff must prove his or her protected status under the MHRA
was a “contributing factor” to his or her discrimination or discharge to make a
20
submissible case. Daugherty, 231 S.W.3d at 820. This Court made it clear that
Missouri’s discrimination safeguards under the MHRA were not identical to the federal
standards and could offer greater protection. Id. at 818-19. As such, this Court rejected
the application of the burden-shifting analysis that McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973), employed in federal discrimination cases, commonly referred
to as the “motivating factor” analysis. Further, the plain statutory language of the MHRA
did not require a plaintiff to prove that discrimination was a “substantial” or
“determining” factor in an employment decision. Id. at 819. The MHRA is clear that if
an employer considers age, disability or other protected characteristics when making an
employment decision, an employee has made a submissible case for discrimination. Id.
Two years later, this Court reaffirmed the application of the “contributing factor”
analysis to the plaintiff’s MHRA retaliation claims in Hill v. Ford Motor Co., 277
S.W.3d 659, 665 (Mo. banc 2009), and once again rejected the burden-shifting
framework employed under McDonnell Douglas. This Court explained that although
claims for discrimination and retaliation under the MHRA were contained in different
sections of the act, there was no substantive difference between the claims with respect to
causation. Id.
The following year, this Court addressed the appropriate standard a plaintiff must
satisfy to prevail on a wrongful discharge claim pursuant to the public policy exception in
Fleshner. This Court rejected the exclusive causation standard, as discussed previously,
and adopted the “contributing factor” test articulated in Daugherty and Hill. Fleshner,
304 S.W.3d at 94-95. This Court found both the MHRA and the public policy exception
21
modified Missouri’s at-will employment doctrine by instructing that an employer can
terminate employees, but its reasoning cannot be improper. Id. at 94. This Court
explicitly renounced a heightened standard, stating:
Likewise, cases involving both the MHRA and the public-policy exception
turn on whether an illegal factor played a role in the decision to discharge
the employee. The evidence in both types of cases directly relates to the
employer’s intent or motivation. The employer discharges the employee,
asserting a reason for the termination that may or may not be pretextual.
Under the MHRA, if race, color, religion, national origin, sex, ancestry,
age, or disability of the employee was a “contributing factor” to the
discharge, then the employer has violated the MHRA. The employer’s
action is no less reprehensible because that factor was not the only reason.
Similarly, if an employee reports violations of law or refuses to violate the
law or public policy as described herein, it is a “contributing factor” to the
discharge, and the discharge is still reprehensible regardless of any other
reasons of the employer.
Id. at 94-95.
Taking into account the statutory language and this Court’s precedent in other
discrimination cases, this Court holds that the “contributing factor” standard should apply
to causes of action that arise pursuant to section 287.780. Adopting the “contributing
factor” standard serves two purposes. First, the legislature’s use of the phrase, “in any
way,” is consistent with this Court’s analysis of the “contributory factor” language
articulated in Daughtery, Hill, and Fleshner. Therefore, application of the “contributory
factor” standard fulfills the purpose of the statute, which is to prohibit employers from
discharging or in any way discriminating against an employee for exercising his or her
rights under chapter 287. Second, the standard now aligns workers’ compensation
discrimination with other Missouri employment discrimination laws.
22
While this Court recognizes a fundamental difference between the purposes of the
MHRA and the workers’ compensation laws as a whole, there can be no tolerance for
employment discrimination in the workplace, be it based upon protected classes such as
gender, race or age, or an employee blowing the whistle on an employer’s illegal
practices in violation of public policy, or for exercising workers’ compensation rights.
Discrimination against an employee for exercising his or her rights under the workers’
compensation law is just as illegal, insidious, and reprehensible as discrimination under
the MHRA or for retaliatory discharge under the public policy exception of the at-will
employment doctrine.
Employer and his amici, along with this Court in Crabtree, expressed the concern
that abandoning the exclusive causation standard would render the statute a “job security
act.” Crabtree stated to find otherwise would permit “an employee who admittedly was
fired for tardiness, absenteeism, or incompetence at work [to] still be able to maintain a
cause of action for discharge if the worker could persuade a factfinder that, in addition to
the other causes, a cause of discharge was the exercise of rights under the workers’
compensation law. Such a rule would encourage marginally competent employees to file
the most petty claims in order to enjoy the benefits of heightened job security.”
Crabtree, 967 S.W.2d at 72.
This concern was legitimate at the time section 287.780 was amended to include a
private cause of action because it was one of only a few statutes that limited the at-will
employment doctrine. Since that time, the legislature has seen fit to carve out additional
23
statutory exceptions to the at-will employment doctrine, with the MHRA being one of the
most significant, which has demonstrated that these concerns are unwarranted. 14
Prejudice
In addition to demonstrating the circuit court erred in requiring a faulty
instruction, Templemire bears the burden of demonstrating he suffered prejudice.
Prejudicial error “is an error that materially affected the merits and outcome of the case.”
D.R. Sherry Const., Ltd. v. American Family Mut. Ins. Co., 316 S.W.3d 899, 904 (Mo.
banc 2010).
Here, Templemire demonstrated he suffered prejudice from the submission of the
“exclusive cause” language as opposed to the “contributing factor” language in the
verdict director. Templemire presented substantial evidence of Employer’s
discrimination against him due to his filing of a workers’ compensation claim that a
reasonable trier of fact could determine directly caused or contributed to cause his
discharge. There was evidence that McMullin repeatedly yelled at Templemire and
complained to others about his injury, characterizing Templemire as a “high maintenance
employee” who “s[a]t on his a-- and dr[e]w my money.” Other injured workers were
belittled for their injuries and described as “whiners,” did not receive accommodations
when injured, and one was discharged shortly after filing a workers’ compensation claim.
14
Other statutory exceptions to the at-will employment doctrine enacted since 1973 that
protect an employee from being discharged or discriminated against for exercising a
variety of rights, in addition to those statutory exceptions noted in footnote 7, include:
section 494.460.1 (jury service); section 595.209 (responding to a subpoena in a criminal
matter); section 288.375.1 (testifying in employment security hearings); and section
115.102.1 (serving as an election judge).
24
Templemire also presented evidence that his discharge was contrary to Employer’s
progressive discipline policy. Finally, Templemire presented evidence of McMullin’s
statements to Gragg, the workers’ compensation insurance claims adjuster, that he
believed Templemire was “milking his injury” and that Templemire could sue him for
whatever reason he wanted because he paid his premiums and attorneys to handle the
issues.
By instructing the jury that it had to determine Templemire was discharged
exclusively in retaliation for filing a workers’ compensation claim, any evidence of
Templemire’s purported insubordination, even in the face of substantial and direct
evidence of discrimination, negated Templemire’s claim. As stated previously, the
statute does not dictate such a standard and the law will not tolerate even a portion of an
employer’s motivation to be discriminatory when discharging an employee.
Accordingly, Templemire is entitled to a new trial with the submission of a verdict
director that instructs the jury that it must determine whether his filing of a workers’
compensation claim was a “contributing factor” to his discharge.
Pretext
Alternatively, Templemire argues that should this Court retain the exclusive
causation standard, the circuit court erred in refusing to submit his instruction regarding
Employer’s pretextual reason for his discharge. This Court need not resolve whether
Templemire was entitled to a pretext instruction given this Court’s holding that the
exclusive causation standard should be followed no longer. Templemire raised this claim
in the alternative, and his concerns regarding pretext are no longer valid given that a jury
25
now will be instructed to determine whether Templemire’s exercise of his rights under
the workers’ compensation law was a contributing factor in Employer’s decision to
discharge him.
Conclusion
The circuit court’s judgment is reversed, and the case is remanded.
______________________________
GEORGE W. DRAPER III, JUDGE
Russell, C.J., Breckenridge, Stith and
Teitelman, JJ., concur; Fischer, J., dissents
in separate opinion filed; Wilson, J., concurs
in opinion of Fischer, J.
26
SUPREME COURT OF MISSOURI
en banc
)
JOHN TEMPLEMIRE, )
)
)
Appellant, )
)
v. ) No. SC93132
)
)
W & M WELDING, INC., )
)
Respondent. )
DISSENTING OPINON
I respectfully dissent from the majority's overruling of Hansome v. Nw. Cooperage
Co., 679 S.W.2d 273 (Mo. banc 1984), and Crabtree v. Bugby, 967 S.W.2d 66 (Mo. banc
1998). The Court is not free to decide this case, which is merely a matter of statutory
construction, as though presented with the issue of causation as a matter of first
impression.
What makes this country's legal system the envy of the modern democratic world,
and what sets it apart from most others, is the reliability of the outcome of cases based on
the doctrine of stare decisis. The principal opinion gives short shrift to the doctrine of
stare decisis, and it fails to recognize that adherence to precedent is most important when
that precedent concerns settled questions of statutory interpretation. The principal
opinion adopts a new statutory interpretation of an identical statute based solely on
arguments that this Court has already considered and rejected twice. I would affirm the
circuit court, which dutifully followed this Court's prior decisions in Hansome and
Crabtree.
Section 287.780, RSMo 2000, permits an employee to bring a civil action against
his or her employer for discharging the employee in retaliation for seeking workers'
compensation benefits. In Hansome, this Court held that, for a workers' compensation
retaliation claim against the employer pursuant to § 287.780, the employee must prove
that his or her action in seeking workers' compensation benefits was the "exclusive
cause" of termination. 679 S.W.2d at 275, 277 n.2.
Fourteen years later, this Court reaffirmed that interpretation of § 287.780.
Crabtree, 967 S.W.2d at 71. In Crabtree, this Court endorsed the exclusive cause
standard of Hansome because any other rule "would encourage marginally competent
employees to file the most petty [sic] claims in order to enjoy the benefits of heightened
job security." Id. The Court rejected the plaintiff's argument to give a more expansive
construction to § 287.780 than that adopted in Hansome due, in part, to the absence of
any intervening legislative action. Id. On the questions of stare decisis, this Court stated:
"[T]his Court should not lightly disturb its own precedent. Mere disagreement by the
current Court with the statutory analysis of a predecessor Court is not a satisfactory
basis for violating the doctrine of stare decisis, at least in the absence of a recurring
injustice or absurd results." Id. (emphasis added).
2
Other than 16 years and the changing membership of this Court, nothing has
changed that can explain why there is a legal need to change the standard of causation
required by § 287.780.1 The statutory language never provided, and still does not
provide, a causation standard. This Court was originally forced to construe the statute in
Hansome and provide a standard for the element of causation. This Court in Crabtree
and Hansome declared that "exclusive cause" was the law. Now this Court declares
"contributing factor" is the law. The doctrine of stare decisis would have little practical
or intellectual value if all it took to change the law was the passage of time and Court
membership. As Justice Sonia Sotomayor put it most succinctly, "[E]stablishing that a
decision was wrong does not, without more, justify overruling it." Alleyne v. United
States, 133 S. Ct. 2151, 2164 (2013).
Adherence to precedent is especially vital in my view with respect to prior cases
interpreting statutes. Justice Louis Brandeis said it well in 1932:
Stare decisis is usually the wise policy, because in most matters it is more
important that the applicable rule of law be settled than that it be settled
right. This is commonly true even when the error is a matter of serious
concern, provided correction can be had by legislation. But in cases
involving the Federal Constitution, where correction through legislative
action is practically impossible, this court has often overruled its earlier
decisions. . . . In cases involving the Federal Constitution the position of
this court is unlike that of the highest court of England, where the policy of
stare decisis was formulated and is strictly applied to all classes of cases.
1
The principal opinion concludes that it is appropriate for this Court to reexamine the law
because the legislature since has enacted the MHRA, which created private causes of action for
specific categories of discrimination not related to filing a workers' compensation claim. This
rationale seems misplaced in light of the fact that the legislature is presumed to have adopted this
Court's prior interpretation of § 287.780 if it does not take any action, particularly in the context
of enacting workers' compensation legislation modifying causation standards without changing
this Court's prior construction of § 287.780, as explained infra.
3
Parliament is free to correct any judicial error; and the remedy may be
promptly invoked.
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting)
(internal citations omitted), overruled by Helvering v. Mountain Producers Corp., 303
U.S. 376, 387 (1938). The United States Supreme Court has continually upheld this
principle. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 138-39 (2008)
(reaffirming a prior interpretation of a statute and stating that "stare decisis in respect to
statutory interpretation has 'special force,' for 'Congress remains free to alter what we
have done'"); California v. F.E.R.C., 495 U.S. 490, 500 (1990) (expressly adopting
Justice Brandeis's view that statutory interpretations are given greater stare decisis effect
than constitutional interpretations); see also Alleyne, 133 S. Ct. at 2163 & n.5 (stating that
the force of stare decisis is at its lowest point in cases concerning procedural rules that
implicate constitutional protections).
As these cases make clear, stare decisis is most essential regarding prior statutory
interpretations because it is there that the rule of law and respect for the separation of
powers meet. The General Assembly is presumed to rely on this Court's prior decisions
interpreting statutes. State ex rel. Howard Elec. Co-op. v. Riney, 490 S.W.2d 1, 9 (Mo.
1970) ("[T]he General Assembly must be presumed to have accepted the judicial and
administrative construction of its enactments . . . ."); see State v. Grubb, 120 S.W.3d 737,
740-41 (Mo. banc 2003) (Teitelman, J., dissenting) (noting that the General Assembly is
4
presumed to know the law in enacting statutes and stating that it had implicitly adopted a
prior court of appeals decision by amending the law but not overruling the case). 2
Cases interpreting statutes carry the legislature's approval when it does not take
action to overrule them, and the legislature ratifies them by allowing them to stand while
enacting particular legislation on the same subject matter. See F.E.R.C., 495 U.S. at 500
("We are especially reluctant to reject this presumption in an area that has seen careful,
intense, and sustained congressional attention."). To overrule a legislative ratification of
this Court's prior statutory interpretations is to encroach on the function of the
legislature. 3
2
State ex rel. Howard Elec. Co-op. is the last holding on point. Although this Court has stated
that the presumption of legislative reliance on precedent is disfavored, this Court has never
overruled its own prior decision after stating that the presumption is insufficient reasoning, on its
own, to reaffirm the prior decision. The Medicine Shoppe case, cited by the majority, reaffirmed
this Court's prior interpretation of a statute. Med. Shoppe Int'l, Inc. v. Dir. of Revenue, 156
S.W.3d 333, 335 n.5 (Mo. banc 2005).
3
Although the People are ultimately sovereign and can change a constitution by amendment, it
is up to this Court to say what the Missouri Constitution means. Mo. Const. art. V, sec. 3
(stating that this Court shall have exclusive appellate jurisdiction in all cases involving the
validity of a statute); see Marbury v. Madison, 5 U.S. 137, 177 (1803) ("It is emphatically the
province and duty of the judicial department to say what the law is."); see also City of Boerne v.
Flores, 521 U.S. 507, 519 (1997) (holding that section five of the Fourteenth Amendment gives
Congress power to enforce its provisions, not power to interpret them). Constitutional
reinterpretation is not disfavored to the extent statutory reinterpretation is disfavored because it is
more problematic to infer that the People have approved or ratified a prior constitutional
interpretation without explicit amendment, as compared to legislation, which is relatively easier
to enact.
Although the People may amend the Constitution to overrule or approve of a constitutional
interpretation, this kind of amendment has been rare and is difficult to achieve. E.g., U.S. Const.
amend. XI (overruling Chisholm v. Georgia, 2 U.S. 419 (1793)). And although the Missouri
Constitution is amended more readily than the United States Constitution, and, therefore, cases
interpreting it deserve somewhat greater stare decisis effect, the amendment process is still
cumbersome and "much more difficult than a legislative change to correct an unwarranted
interpretation of a statute." Med. Shoppe Int'l, Inc., 156 S.W.3d at 335 n.5.
5
The principal opinion cites various cases for the proposition that this Court may
overrule its wrong decisions. Only one of those cases overruled a prior statutory
interpretation—a 56-year old decision that the Court held could not be reconciled with
the language of the statute. Sw. Bell Yellow Pages, Inc. v. Dir. of Revenue, 94 S.W.3d
388, 391 (Mo. banc 2002). In the other cases cited by the majority, this Court either
reaffirmed its prior statutory interpretation or considered only a prior constitutional
interpretation or common law doctrine and not a questions of statutory interpretation. See
Watts v. Lester E. Cox Med. Ctrs., 376 S.W.3d 633 (Mo. banc 2012) (interpreting article
I, section 22(a), involving the right of trial by jury); Independence-Nat'l Educ. Ass'n v.
Independence Sch. Dist., 223 S.W.3d 131, 137 (Mo. banc 2007) (interpreting article I,
section 29, involving the right to bargain collectively); Med. Shoppe Int'l, Inc., 156
S.W.3d 333 (reaffirming this Court's prior interpretation of a statute); Novak v. Kansas
City Transit, Inc., 365 S.W.2d 539, 547 (Mo. banc 1963) (per curiam) (overruling a prior
decision that refused to recognize a cause of action under the common law).
The principal opinion also points to Fleshner v. Pepose Vision Institute, P.C., 304
S.W.3d 81, 92-93 (Mo. banc 2010), in support of its holding that the Court need not stick
with the exclusive cause standard set out in Hansome and Crabree. In Fleshner, the
Court decided that "contributing factor" causation was better than "exclusive cause" for
wrongful discharge claims based on the public policy exception to the at-will doctrine.
Id. The "key distinction" between such wrongful termination claims and workers'
compensation retaliation claims is that public policy termination claims arise under the
common law of torts. Id.; slip op. at 12. What the majority fails to acknowledge is that
6
the common law is the exclusive prerogative of the judiciary, for which this Court is the
ultimate authority. 4 Although this Court has adopted the contributing factor causation
standard for retaliation claims under the MHRA, as the principal opinion notes, this Court
in Hill v. Ford Motor Co. merely reaffirmed its interpretation of the MHRA. 277 S.W.3d
659, 665 (Mo. banc 2009) (reaffirming Daugherty v. City of Maryland Heights, 231
S.W.3d 814, 819-20 (Mo. banc 2007)); slip op. at 21.
The holdings in Hansome and Crabtree were not based on judicially created
common law doctrine, nor were they interpretations of an infrequently amended state
constitution or the tough-to-amend United States Constitution. They were interpretations
of a Missouri statute, on which the General Assembly is presumed to rely, and to which
this Court should give the greatest stare decisis effect. State ex rel. Howard Elec. Co-op.,
490 S.W.2d at 9.
The principal opinion states that this Court did not "analyze or interpret the
wording of section 287.780" in Hansome. Slip op. at 10. This Court in Hansome quoted
§ 287.780, then stated the four elements necessary to make a claim. 679 S.W.2d at 275-
76. It did cite Davis and Mitchell as precedent for all four elements, but then analyzed
those cases and another court of appeals case regarding the element of causation. Id. at
4
Because stare decisis is at its strongest in cases involving statutory interpretation, it
necessarily is at its weakest in cases involving common law doctrines. Although the rule of law
still demands that this Court not lightly overrule its prior common law decisions (because it is
imperative to retain them in the interests of reliance, predictability, and stability), this Court is
the ultimate authority on questions of Missouri common law. In deciding whether to overrule
prior decisions based solely on common law doctrine, this Court does not face the same
separation of powers concerns it faces in deciding whether to overrule prior interpretations of
statutes and, to a lesser degree, the United States and Missouri constitutions.
7
275-76 & n.2. This Court recognized that the text of § 287.780 did not provide a specific
causation standard. Then, this Court's opinion analyzed how enacting § 287.780
necessarily modified the at-will employment doctrine and how that justified the holdings
of the prior court of appeals decisions construing § 287.780 to require the filing of a
workers' compensation claim to be the exclusive cause for the termination. Id. at 275 n.2.
While reasonable minds may differ in hindsight as to whether that construction was
correct, there is no doubt that this Court was required to, and did, construe § 287.780 in
Hansome.
The presumption of legislative reliance on Hansome and Crabtree has even
greater weight here because the General Assembly overhauled the workers' compensation
law in 2005. Not only did it expressly abrogate other prior cases of this Court and the
court of appeals by name and citation, see, e.g., Drewes v. Trans World Airlines, Inc.,
984 S.W.2d 512, 514-15 (Mo. banc 1999); Kasl v. Bristol Care, Inc., 984 S.W.2d 852,
853-54 (Mo. banc 1999); Bennett v. Columbia Health Care, 80 S.W.3d 524, 531-32 (Mo.
App. 2002), the 2005 amendments took affirmative steps to abrogate a different
causation standard, while leaving this Court's decisions in Hansome and Crabtree
undisturbed. The General Assembly thereby demonstrated its intent to retain the
exclusive cause standard for workers' compensation retaliation claims. 5
5
In 2005, the General Assembly repealed 35 sections of the revised statutes of Missouri and
enacted 40 new sections "relating to workers' compensation law." Act of Mar. 30, 2005, S.B. 1
& 130, 2005 Mo. Laws 907, 907 (codified as amended at chapters 286 and 287, RSMo Supp.
2013). This Court and the court of appeals had previously held that, to obtain a workers'
compensation award for accidental injury, an employer need only show that the employee's work
was a "substantial factor" in the cause of the injury. Drewes, 984 S.W.2d at 514-15; Kasl, 984
8
Contrary to the suggestion in the principal opinion, the 2005 amendments discredit
the attempt to characterize this case as merely involving "legislative inaction." The
General Assembly took affirmative steps that demonstrate its intent to retain the
exclusive cause standard. It enacted a new causation standard for determining workers'
compensation coverage of accidental injuries by expressly abrogating two of this Court's
prior decisions by name. It could have enacted a new causation standard for workers'
compensation retaliation cases by abrogating Hansome and Crabtree. It did not.
Accordingly, the principal opinion's failure to adhere to this Court's prior interpretation of
§ 287.780 offends the separation of powers by encroaching on the General Assembly's
ratification of the exclusive cause standard. Even if the "contributing factor" standard is
the better rule, this Court should not usurp the legislative function by re-deciding settled
questions of statutory construction due solely to a change of heart.
Finally, it should be noted that the principal opinion assumes that, if the legislature
dislikes this Court's decision to change the law from "exclusive cause" to "contributing
factor," the General Assembly is free to abrogate this holding by passing a bill to
reinstate the exclusive cause standard. Once this Court puts this burden on the
legislature, however, there is no reason why the General Assembly could not go the next
step and repeal § 287.780 to eliminate the private cause of action entirely. Rather than
S.W.2d at 853-54; Bennett, 80 S.W.3d at 531-32. The General Assembly expressly abrogated
those three decisions and replaced the "substantial factor" causation test with the "prevailing
factor" causation test. 2005 Mo. Laws at 910-11 (codified at §§ 287.020(3)(1), 287.020(10),
RSMo Supp. 2013).
9
risk watching such a debate, I would adhere to the principle of stare decisis, reaffirm this
Court's holdings in Hansome and Crabtree, and affirm the circuit court's judgment.
___________________________
Zel M. Fischer, Judge
10