IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
CINDY HUDSON, )
)
Appellant, )
)
v. ) WD77055
)
KIMBERLY O'BRIEN, DEBRA ) Opinion filed: October 21, 2014
CHESHIER, AND GAIL VASTERLING, )
)
Respondent. )
APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY, MISSOURI
THE HONORABLE PATRICIA S. JOYCE, JUDGE
Before Division Three: Gary D. Witt, Presiding, Judge,
Joseph M. Ellis, Judge and Thomas H. Newton, Judge
Appellant Cindy Hudson appeals from the Circuit Court of Cole County's grant of
summary judgment in favor of Respondents Kimberly O'Brien and Debra Cheshier.1
Appellant contends that the trial court erred in granting summary judgment because it
construed § 105.0552 too narrowly in concluding that her disclosures to Respondents
1
Margaret Donnelly, the former Director of the Missouri Department of Health and Senior Services, was
also named as a defendant in the suit. Gail Vasterling, the current Director of the Missouri Department of
Health and Senior Services, was subsequently substituted in Donnelly's place. In granting Respondents'
motion for summary judgment, the trial court found that Appellant's "claims against Vasterling do not state
a claim" and, thus, granted summary judgment in favor of Vasterling. Appellant does not challenge the
trial court's findings related to Vasterling on appeal.
2
Unless otherwise noted, all statutory citations are to RSMo 2000 as updated through the 2009
Cumulative Supplement.
did not constitute "whistleblowing" as a matter of law. For the following reasons, the
judgment is affirmed in part and reversed and remanded in part.
In 2008, Appellant was employed by the Missouri Department of Health and
Senior Services ("the Department") as a section administrator for the Section of Child
Care Regulation ("SCCR"). SCCR is responsible for inspections of childcare facilities
throughout the state of Missouri. Respondent O'Brien served as the Director of the
Division of Regulation and Licensure, under which SCCR operated. Respondent
Cheshier served as the Deputy Division Director. Thus, Respondents acted as
Appellant's supervisors.
On July 24, 2008, Appellant and another employee of the Department conducted
an inspection of Apple Tree Academy, a childcare facility in Jefferson City, Missouri.
Following the inspection, the Department issued a report citing ten categories of rule
violations found at Apple Tree Academy.
Karen Werner, owner of Apple Tree Academy, contacted the Department after
the report was issued. Werner contested several of the violations listed in the report
and sought to have the violations removed. Appellant authorized Sue Porting, a
Department employee, to meet with Werner regarding Werner's complaints. After the
meeting, Porting removed several of the rule violations cited in the report. Although
Appellant authorized the removal of one of the violations, Appellant did not approve of
Porting removing several others. Appellant reported Porting's removal of the violations
to O'Brien and requested Porting be disciplined for her actions.
2
The Department received subsequent correspondences from Werner with
respect to the original and the revised inspection reports. Werner further accused the
Department of harassment due to the fact that Werner had been involved in stopping
the Department's previous attempt to revise its rules regarding childcare facilities.
Werner also contended that the Department inspectors were applying the rules and
regulations inconsistently, especially as to her facilities. Werner was also concerned
about the Department preparing to make inspection reports available online to the
public.
Respondents subsequently asked Appellant to draft a written response regarding
Werner's complaints so they could better respond to Werner. Respondent Cheshier
also instructed Appellant that, "while [the Department is] trying to go through this rule
revision process,3 . . . it is best that we not cite rule violations at [Werner's] facilities that
are not obvious safety concerns." Concerned about Cheshier's directive, Appellant
sought further instruction from Respondents. While Respondents did not give Appellant
any written instruction, a meeting occurred at which Respondents explained to
Appellant that childcare facility inspections were part art and part science.
On November 28, 2008, Appellant wrote a memorandum to Respondents in
response to Werner's complaints. In the memorandum, Appellant justified the rule
violations cited at Apple Tree Academy and stated that removing the rule violations from
the inspection report "put the Department at risk." The memorandum further responded
3
In 2008, the Department was considering revising its rules and regulations. It is unclear from the record
whether such revisions ever occurred.
3
to Werner's claims of harassment and suggested the rule violations had been removed
from Apple Tree Academy's inspection report in order to prevent Werner's complaints
from escalating beyond the SCCR and the Division of Regulation and Licensure. It
also suggested that SCCR had shown such favoritism to Werner in the past.
On December 11, 2008, Appellant was notified of her termination, which would
become effective January 15, 2009. The Department stated that Appellant was being
fired because things just were not working out. After Appellant's termination, the
memorandum written by Appellant in response to Werner's complaints was destroyed.
On February 4, 2009, Appellant appealed her termination to the Personnel
Advisory Board. In her appeal, Appellant did not allege that she was terminated for
whistleblowing; rather, she claimed she could not be fired without cause. On April 14,
2009, the Board denied Appellant's appeal, finding that she could be terminated without
cause.
On March 12, 2009, Appellant filed the current action against Respondents
alleging that Respondents violated § 105.055, Missouri's whistleblowing statute, by
firing her for her disclosures regarding rule violations at Werner's facilities. In her third
amended petition, Appellant alleges that "[t]he removal of the violations by the
Department put the Department at risk for failure to follow its own regulations and the
laws of the State of Missouri and also put the children at risk." Appellant further alleges
that Cheshier told her "not to cite rule violations at Werner's facilities" and that she
complained verbally and in writing to Respondents that the removal of rule violations
4
was a danger to the Department and to the children and "misrepresented to the public
and to Karen Werner that there were no violations of [Missouri’s rules and regulations].
On June 28, 2013, Respondents filed a motion for summary judgment in which
they alleged Appellant was not entitled to relief under § 105.055 as a matter of law. On
October 31, 2013, the trial court granted summary judgment on six grounds: (1)
Appellant's complaints of wrongdoing to the alleged wrongdoers were not
whistleblowing as a matter of law; (2) complaints made only to supervisors are not
whistleblowing as a matter of law under § 105.055; (3) Respondents' alleged
misconduct does not warrant protection under § 105.055; (4) Appellant's claims against
Vasterling do not state a claim; (5) Appellant failed to exhaust her administrative
remedies prior to filing her § 105.055.7 civil action; and (6) Appellant's damages are
limited to non-economic damages as a matter of law.
Appellant now raises four points of error on appeal from the trial court's grant of
summary judgment. "The grant of summary judgment is an issue of law that an
appellate court determines de novo." Brehm v. Bacon Twp., 426 S.W.3d 1, 3 (Mo.
2014). We review "the record in the light most favorable to the party against whom
judgment was entered and give[] the non-movant the benefit of all reasonable
inferences from the record." Id. at 3-4 (internal quotation omitted).
"To prevail on a motion for summary judgment, the movant must show that there
is no dispute of material fact and that he is entitled to judgment as a matter of law."
Lucero v. Curators of Univ. of Mo., 400 S.W.3d 1, 4 (Mo. App. W.D. 2013) (internal
5
quotation omitted). "We may affirm the circuit court's grant of summary judgment under
any theory that is supported by the record." Id. (internal quotation omitted).
Furthermore, each of Appellant's four points involves a question of statutory
interpretation. We review a trial court's interpretation and application of a statute de
novo. Page v. Scavuzzo, 412 S.W.3d 263, 266 (Mo. App. W.D. 2013).
In her first point, Appellant contends that the trial court misconstrued § 105.055
when it determined that she failed to make a disclosure under the statute. The trial
court concluded that "reporting wrongdoing to the alleged wrongdoers is not 'whistle
blowing' as a matter of law" under the statute. In reaching its conclusion, the trial court
relied upon common law wrongful discharge cases in which Missouri courts have held
that "a report of wrongdoing to the wrongdoer is insufficient to invoke the whistleblowing
public policy exception" to the at-will employment doctrine. Drummond v. Land
Learning Found., 358 S.W.3d 167, 171 (Mo. App. W.D. 2011); see also Faust v.
Ryder Commercial Leasing & Servs., 954 S.W.2d 383, 391 (Mo. App. W.D. 1997)
abrogated on other grounds by Fleshner v. Pepose Vision Inst., Inc., 304 S.W.3d 81,
93 (Mo. banc 2010).
Missouri common law wrongful discharge whistleblower cases do require
disclosures to persons other than the wrongdoers. However, this not a common law
wrongful termination case. Rather, this a purely statutory cause of action set forth
under § 105.055. Therefore, to determine whether Appellant made a disclosure as a
matter of law, we must construe § 105.055.
6
Our "primary responsibility in statutory interpretation is to determine the
legislative intent from the language of the statute and to give effect to that intent."
Balloons Over the Rainbow, Inc. v. Dir. of Revenue, 427 S.W.3d 815, 825 (Mo. banc
2014) (internal quotation omitted). "If the intent of the legislature is clear and
unambiguous, by giving the language used in the statute its plain and ordinary meaning,
then we are bound by that intent and cannot resort to any statutory construction in
interpreting the statute." State ex rel. Union Elec. Co. v. Pub. Serv. Comm'n of Mo.,
399 S.W.3d 467, 479-80 (Mo. App. W.D. 2013) (internal quotation omitted). "However,
statutory provisions relating to the same subject matter are considered in pari material
and are to be construed together." Crawford v. Div of Emp't Sec., 376 S.W.3d 658,
664 (Mo. banc 2012) (internal quotation omitted).
When construed together, the provisions of § 105.055 do not exclude reports of
wrongdoing to the wrongdoers. Section 105.055 provides:
No supervisor or appointing authority of any state agency shall . . .
[p]rohibit a state employee from or take any disciplinary action 4
whatsoever against a state employee . . . for the disclosure of information
which the employee reasonably believes evidences: (a) A violation of any
law, rule or regulation; or (b) Mismanagement, a gross waste of funds or
abuse of authority, or a substantial and specific danger to public health or
safety, if the disclosure is not specifically prohibited by law[.]
§ 105.055.2(1)(a)-(b). Thus, while § 105.055 requires the disclosure of information by a
state employee, it does not identify to whom the disclosure of information must be
made. Rather, it provides only that disciplinary action cannot be taken against state
4
"Disciplinary action," as used in § 105.055, means "any dismissal, demotion, transfer, reassignment,
suspension, reprimand, warning of possible dismissal or withholding of work, whether or not the
withholding of work has affected or will affect the employee's compensation." § 105.055.4.
7
employees for the disclosure of certain information. Therefore, the focus of § 105.055 is
not to whom a disclosure is made, but whether a disclosure was made.
The statute does not define the term "disclosure." "Absent a statutory definition,
words used in statutes are given their plain and ordinary meaning with help, as needed,
from the dictionary." Balloons Over the Rainbow, 427 S.W.3d at 825 (internal
quotation omitted). The dictionary defines "disclosure" as "[t]he act or instance of
disclosing: the act or an instance of opening up to view, knowledge, or comprehension:
exposure . . . something that is disclosed: revelation, divulgation."5 Webster's Third
New International Dictionary of the English Language Unabridged 645 (1961).
Black's Law Dictionary defines disclosure as "[t]he act or process of making known
something that was previously unknown; a revelation of facts." Black's Law Dictionary
531 (9th ed. 2009). Thus, the plain and ordinary meaning of "disclosure" is the
exposure or revelation of something previously unknown.
Respondents rely on this definition as evidence that an employee does not make
a "disclosure" under the statute when it discloses information to the wrongdoer
because, in doing so, the employee has failed to reveal something previously unknown.
In making their argument, Respondents rely upon federal case law interpreting the
Whistleblower Protection Act ("the WPA"), 5 U.S.C. § 2302. See Huffman v. Office of
Personnel Mgmt., 263 F.3d 1341, 1349-50 (Fed. Cir. 2001) (explaining that reports to
the wrongdoers are not protected disclosures under the WPA because "'disclosure'
5
"Disclose" means "[t]o make known . . . [t]o reveal in words (something that is secret or not generally
known)." Webster's Third New International Dictionary of the English Language Unabridged 645
(1961).
8
means to reveal something that was hidden and not known" and finding it significant
that the legislature "did not use a word with a broader connotation such a 'report' or
'state'"). However, recent amendments to the WPA have abrogated the federal courts'
interpretation of the term "disclosure." See 5 U.S.C. § 2302(8)(f)(1) (Supp. 2014) ("A
disclosure shall not be excluded from [protection] because . . . the disclosure was made
to a supervisor or to a person who participated in an activity that the employee or
applicant reasonably believed to be covered by [the statute or] the disclosure revealed
information that had been previously disclosed").6
Moreover, Respondents have failed to recognize that § 105.055 includes
language absent from the WPA. Section 105.055.7 creates a civil action for employees
alleging violations of § 105.055. Section 105.055.7(3) provides: "An employee must
show by clear and convincing evidence that he or she or a person acting on his or her
behalf has reported or was about to report, verbally or in writing, a prohibited activity
or a suspected prohibited activity." (Emphasis added). The dictionary defines "report"
to mean "to give an account of: NARRATE, RETALE, TELL." Webster's Third New
International Dictionary of the English Language Unabridged 1925 (1961).
Therefore, under the plain language of the statute, a state employee must show, by
clear and convincing evidence, that he or she or a person acting on his or her behalf
6
Respondents contend that we should not consider the recent amendments to the WPA because the
Missouri legislature has not amended § 105.055 in a similar fashion. In doing so, Respondents aver that
Missouri adopted § 105.055 with the intent that reports to the wrongdoers were not protected. However,
Missouri enacted § 105.055 in 1987. Respondents cite no cases prior to 1987 interpreting the WPA to
require disclosures to persons other than the wrongdoers. Furthermore, no Missouri courts have
interpreted the statute since its enactment. Accordingly, we cannot say the legislature's intent was
aligned with the federal courts previous interpretation of the term "disclosure."
9
has given or was about to give an account that he or she reasonably believes evidences
prohibited activity or a suspected prohibited activity. 7
Under the broad language used in § 105.055.7, Appellant did not fail to make a
disclosure as a matter of law. Appellant alleges she reported Porting's removal of rule
violations from the inspection report and Cheshier's directive to cite only obvious safety
violations at Werner's facilities. Respondents do not contest that Appellant made such
complaints. Rather, they contend only that such complaints did not constitute
disclosures because Appellant made them to "the wrong people."8 As previously
discussed, § 105.055 contains no requirement as to whom disclosures must be made.
Accordingly, given the broad language used in § 105.055.7(3) and viewing the evidence
in the light most favorable to Appellant, we cannot say that Appellant failed, as a matter
of law, to make disclosures under the statute.
The trial court further concluded that Appellant was not entitled to relief because
complaints "made only to supervisors are not 'whistle blowing' as a matter of law under
§ 105.055." In reaching its conclusion, the trial court reasoned that the purpose of §
105.055 is to encourage employees to disclose government wrongdoing to persons who
may be in a position to remedy the problem without fearing retaliatory action by their
7
It is worth mentioning that interpreting § 105.055 to require reports or disclosures to those not involved
in the wrongdoing overlooks the very plausible situation in which an employee is unaware that the
individual he or she is reporting the wrongdoing to is actually a wrongdoer.
8
We note that, even if we were to accept Respondent's interpretation of the term "disclosure," their own
statement of facts indicates that, at the time Appellant reported the conduct, O'Brien was not a
wrongdoer. Respondents' brief states that Appellant "reported to O'Brien that Porting removed the rule
violations from the inspection report." Moreover, it is clear from the record that initially only Cheshier, not
O'Brien, gave Appellant the instruction to cite only obvious rule violations at Werner's facilities. The fact
that O'Brien subsequently acquiesced or approved of the alleged wrongdoing does not negate the fact
that Appellant initially revealed such information to her or at least gives rise to a factual dispute on the
matter.
10
0
supervisors. Thus, it concluded that the persons and bodies enumerated in § 105.055.1
identified such individuals "in a position to remedy the problem" and that "[t]he structure
of [§ 105.055] makes obvious that it protects state employees reporting misconduct to
persons enumerated in [§ 105.055.1] from retaliation by persons enumerated in [§
105.055.2]."
Nothing in the statute's structure, however, supports the trial court's
interpretation. As previously explained, § 105.055.2 prohibits supervisors or appointing
authorities from taking disciplinary action against state employees for the disclosure of
certain types of information. Section 105.055.1 provides: "No supervisor or appointing
authority of any state agency shall prohibit any employee of the agency from discussing
the operations of the agency, either specifically or generally, with any member of the
legislature, state auditor, attorney general, or any state official or body charged with
investigating such alleged misconduct." Section 105.055.1, therefore, proscribes
supervisors or appointing authorities from prohibiting employees from discussing
agency operations with the enumerated individuals and bodies. Thus, the two sections
prohibit a supervisor or appointing authority from disciplining employees for two
separate and distinct types of conduct. Nothing suggests that the individuals
enumerated in § 105.055.1 are also applicable to § 105.055.2. Accordingly, the trial
court erred in granting summary judgment on the basis that complaints made only to
supervisors are not "disclosures" as a matter of law. Point granted.
In her second point, Appellant contends the trial court erred in finding that the
information disclosed was not protected under § 105.055. Section 105.055.2 requires
11
1
that the employee reasonably believes the disclosed information evidences "(a) [a]
violation of any law, rule or regulation; or (b) [m]ismanagement, a gross waste of funds
or abuse of authority, or a substantial and specific danger to public health or safety, if
the disclosure is not specifically prohibited by law[.]" § 105.055.2(1)(a)-(b). Therefore,
to be entitled to relief under the statute, the employee must disclose information he or
she reasonably believes evidences (1) a violation of any law, rule, or regulation, (2)
mismanagement, (3) a gross waste of funds, (4) a gross abuse of authority, or (5) a
substantial and specific danger to public health or safety.
The trial court determined that Respondents committed no misconduct and, even
if they did, "it was de minimus and not within the scope of the statute's protections as a
matter of law." In doing so, the trial court focused upon the fact that there was no
specific law, rule, or regulation that prohibited Respondents from reviewing and revising
inspection reports or instructing a subordinate employee on how to cite rule violations.
The trial court is correct that that there is no law, rule, or regulation specifically
prohibiting Respondents' conduct. Additionally, as Respondents point out, Appellant
fails to allege in her petition any law, rule, or regulation that her disclosures reasonably
evidence was violated.
Nevertheless, the trial court failed to address Appellant's allegations that her
disclosures evidenced a danger to the public's health and safety. Appellant clearly
alleges in her petition that the removal of the rule violations and the instruction not to
cite rule violations at Werner's facilities put the children at risk and misrepresented to
12
2
the public that Werner's facilities were in compliance with childcare facility rules and
regulations.
As Appellant points out, § 210.221(3) gives the Department the power and the
duty to "promulgate and issue rules and regulations the department deems necessary
or proper in order to establish standards of service and care to be rendered by such
licensees to children." Section 210.221(2) further provides that the Department has a
duty to "inspect the conditions of the homes and other places in which the applicant
operates a child-care facility . . . [and to] deny, suspend, place on probation or revoke
the license of such persons as fail to obey . . . the rules and regulations made by the
department[.]" Thus, the Department has a duty to promulgate rules and regulations
regarding childcare facilities and to deny, suspend, place on probation or revoke the
license of such persons that fail to obey those rules and regulations.
If the Department removes violations from inspection reports and cites only
obvious safety violations, it could result in the Department failing to suspend, revoke, or
place on probation childcare facilities that fail to meet the Department's established
standards of service and care to children. There is evidence in the record that the
purpose of the Department's rules and regulations is to protect the children in Missouri
childcare facilities. There is further evidence in the record that failing to cite rule
violations has the potential to put children's safety at risk. Thus, it can be inferred from
the evidence that if the Department fails to cite rule violations at Werner's facilities, then
the safety of children at those facilities is potentially at risk. Accordingly, it was not
unreasonable for Appellant to believe that her disclosure regarding Cheshier's directive
13
3
to cite only obvious safety concerns at Werner's facilities evidenced a specific threat to
public safety.
Moreover, there is evidence in the record to support the belief that removal of
rule violations from inspection reports has the potential to put children at risk. One of
the violations removed from the Apple Tree Academy inspection report was that there
was grass and bare soil, not impact-absorbing material, in the "fall-zone" under the
outdoor playground equipment. See 19 C.S.R. § 30-62.082(6)(A)5 ("The fall-zone area
under and around outdoor equipment where children might fall and be injured shall be
covered with impact-absorbing materials which will effectively cushion the fall of a child);
19 C.S.R. § 30-62.082(6)(A)8 ("Concrete, asphalt, carpet, grass or bare soil is not an
acceptable surface under outdoor equipment from which children might fall and be
injured"). Evidence in the record indicates that, by removing such a rule violation from
an inspection report, the facility could continue to operate without implementing the
material required under the Department's rules and regulations. Again, the
Department's rules and regulations are intended to protect children in Missouri childcare
facilities. Therefore, one can infer from the record that the removal of rule violations
from inspection reports has the potential to put the safety of children in those facilities at
risk.
Respondents aver that Appellant could not have reasonably believed her
disclosures evidenced a specific and substantial threat to public safety because her
complaints were merely a concern for the Department, not for the children's or public's
safety. They further contend that the disclosures amounted to a simple policy dispute
14
4
between Appellant and her supervisors about how to apply the Department's rules and
regulations consistently. As previously discussed, there is evidence in the record to
support Appellant's allegations that she reasonably believed her disclosures evidenced
a threat to public safety. While Respondents' arguments pertain to whether Appellant's
disclosures are protected under the statute, they do not entitle Respondents to
judgment as a matter of law. Rather, they reflect that there are genuine issues of
material fact that must be decided by the trier of fact, specifically whether Appellant
reasonably believed her disclosures evidenced a specific and substantial threat to
public safety. Accordingly, the trial court erred in finding that Appellant failed to prove
her disclosures were protected under § 105.055 as a matter of law. Point granted.9
In her third point, Appellant contends that the trial court erroneously concluded
that she had to exhaust the administrative remedy set forth under § 105.055.5 before
she was entitled to bring this civil suit pursuant to § 105.055.7. In concluding that
9
Respondents further cite to Margiotta v. Christian Hospital Northeast Northwest, 315 S.W.3d 342
(Mo. banc 2010), for the proposition that Appellant failed to disclose specific threats to public safety.
However, unlike the present action, Margiotta involves a Missouri common law wrongful discharge action,
which requires a plaintiff to plead and prove elements not required under the plain language of § 105.055.
In Margiotta, a hospital employee filed a common law wrongful discharge action on the basis that he was
fired for continuously reporting safety violations to his supervisors. Id. at 345. In support of his claims,
the employee cited to two regulations, one of which provided that "[t]he patient has the right to receive
care in a safe setting" and the other, which provided that "[a]ny safety hazard or threat to the general
safety of patients, staff, or the public shall be corrected." Id. at 348 (internal quotation omitted). The
Missouri Supreme Court concluded that the regulations cited by the employee failed to specifically
proscribe the conduct the employee reported and were too vague to support a wrongful discharge action.
Id. In reaching its conclusion, the Court explained that common law wrongful discharge claims "must be
based on a constitutional provision, a statute, a regulation based on a statute or a rule promulgated by a
governmental body." Id. at 346. The "pertinent inquiry" in a wrongful discharge case is "whether the
authority clearly prohibits the conduct at issue in the action." Id. at 347. Such is not the pertinent
question in statutory whistleblower claims under § 105.055. Rather, plaintiffs must establish only that "the
employee reasonably believes" his or her disclosure "evidences: (a) [a] violation of any law, rule or
regulation; or (b) [m]ismanagement, a gross waste of funds or abuse of authority, or a substantial and
specific danger to public health or safety, if the disclosure is not specifically prohibited by law[.]" §
105.055.2(1)(a)-(b). Accordingly, Respondents' reliance upon Margiotta is misplaced.
15
5
Appellant must seek an administrative appeal prior to filing a civil suit, the trial court
focused on the "[i]n addition to" language in § 105.055.7(1), which provides: "In addition
to the remedies in [§ 105.055.5],10 a person who alleges a violation of this section may
bring a civil action for damages within ninety days after the occurrence of the alleged
violation."
The trial court reasoned that such language "must mean a supplement to relief
an employee is already pursuing. Thus, where an employee . . . elects not to pursue
administrative relief, there is no remedy for [a] civil action to be '[i]n addition to.'" The "in
addition to" language, however, merely indicates that, besides the remedies set forth in
§ 105.055.5, a plaintiff may file a civil action alleging a § 105.055 violation. Thus, §
105.055.7 creates an additional remedy available under the statute.11
Moreover, nothing in § 105.055.5 suggests that an employee must seek
administrative relief before pursuing a civil action. Rather, the section provides that the
"employee may file an administrative appeal whenever the employee alleges that
disciplinary action was taken against the employee in violation of [§ 105.055]." §
105.055.5 (emphasis added). Thus, the trial court erred in concluding that Respondents
were entitled to summary judgment because Appellant failed to seek administrative
relief prior to filing this civil action. Point granted.
10
Section 105.055.7(1) actually states "[i]n addition to the remedies in subsection 6 of this section . . . ."
Subsection 6, however, provides: "Each state agency shall prominently post a copy of this section in
locations where it can reasonably be expected to come to the attention of all employees of the agency." §
105.055.6. Thus, as the parties note and agree, the legislature likely intended to refer to subsection 5,
which pertains to administrative appeals.
11
It should be noted that, prior to 2004, § 105.055.5 provided the only remedy available to employees
alleging violations of the statute.
16
6
Finally, in her fourth point, Appellant avers that the trial court erred in finding that
she is limited to a claim for non-economic damages as a matter of law. The trial court
determined that Appellant "waived her claim for damages beyond non-economic
damages by failing to pursue her administrative appeal." However, as previously
explained, Appellant was not required to file an administrative appeal prior to bringing
this civil action.
Thus, Appellant is entitled to the remedies provided for under § 105.055.7.
Section 105.055.7(4) provides: "A court, in rendering a judgment in an action brought
pursuant to this section, shall order, as the court considers appropriate, actual
damages, and may also award the complainant all or a portion of the costs of litigation,
including reasonable attorney fees." Appellant, therefore, is entitled to recover actual
damages12 as well as litigation costs and attorney fees. Thus, the trial court erred in
granting summary judgment on the basis that Appellant is limited to recovery of non-
economic actual damages.
To the extent Appellant contends she is entitled to equitable relief, such as
reinstatement, such remedy is not provided for in the statute and, thus, is unavailable to
Appellant. See Sanders v. Ahmed, 364 S.W.3d 195, 205 (Mo. banc 2012) ("The
General Assembly has the right to create causes of action and to prescribe their
remedies."). Accordingly, the trial court correctly determined Appellant is not entitled to
equitable relief under the statute. Point denied in part and granted in part.
12
Actual damages are the "amount awarded to a complainant to compensate for a proven injury or loss;
damages that repay actual losses." Black's Law Dictionary 445 (9th ed. 2009).
17
7
In sum, the trial court correctly determined that Appellant is not entitled to
equitable relief under § 105.055. However, the trial court erroneously concluded that
Appellant failed to establish that she was entitled to relief under the statute as a matter
of law and, therefore, erred in granting summary judgment in Respondents' favor. Thus,
we reverse the trial court's judgment and remand the case for further proceedings
consistent with this opinion.
________________________________
Joseph M. Ellis, Judge
All concur.
18
8
Cindy Hudson v. Kimberly O'Brien, Debra Cheshier and Gail Vasterling
Combined Opinion