Jennings v. Board of Curators of Missouri State University

NANCY STEFFEN RAHMEYER, J.,

dissenting.

I respectfully disagree with the majority opinion that Plaintiff did not plead a cause of action.

The standard of review for the granting of a motion to dismiss is de novo. Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462, 464 (Mo. banc 2001). Where a trial court fails to state a basis for its dismissal, the appeals court will presume that the dismissal is based on the grounds stated in the motion to dismiss. Shaver v. Shaver, 913 S.W.2d 443, 444 (Mo.App. E.D.1996). The appeals court will affirm the dismissal if it can be granted on any grounds supported by the motion to dismiss. McBride v. McBride, 288 S.W.3d 748, 750-51 (Mo.App. S.D.2009).

A motion to dismiss for failure to state a cause of action is solely a test of the *801adequacy of the plaintiffs petition. [The court] assumes that all of plaintiffs averments are true, and liberally grants to plaintiff all reasonable inferences therefrom. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.

Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993) (internal citations omitted). A petition cannot be dismissed for failure to state a claim if it asserts any facts which, if proved, would entitle the plaintiff to relief. Duggan v. Pulitzer Pub. Co., 913 S.W.2d 807, 810 (Mo.App. E.D.1995).

Plaintiffs first count in Jennings II, as noted herein, was for a breach of the implied covenant of good faith and fair dealing. MSU argues that to be able to recover for that breach, there must be a contract and that Plaintiff never claimed there was a contract. Her petition sets forth the additional factual allegations that have a bearing on whether she stated a claim:

2. Missouri State University (“MSU”), formerly known as Southwest Missouri State University, is an institution of higher education created pursuant to §§ 174.020 to 174.500 (RSMo. 2004) located in Springfield, Greene County, Missouri.
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8. At all times relevant to this petition, [Plaintiff] was offered and accepted employment as associate professor of social work with tenure.

Thus, taking Plaintiffs averments as true and liberally granting her all reasonable inferences, we note Plaintiff pled that she was employed as an associate professor with tenure. Given the liberal inferences, as we must, Plaintiff claims she has an employment contract with MSU by virtue of her tenured status as an associate professor; she further claims that because of that status, employer MSU promised to expressly and impliedly follow the Faculty Handbook.1 She claims this contract includes a promise to act in good faith. Plaintiff claims MSU did not act in good faith when it reassigned her and that she was damaged in the reassignment. All of the questions posited by the majority opinion are more aptly the discussion on a motion for a more definite statement or will be flushed out in discovery. On the basis of the petition, we cannot ascertain that there was no contract.2 As such, I would find Plaintiff has adequately pled a claim that MSU breached the implied covenant of good faith and fair dealing in her contract.

The alternative ground in the motion to dismiss was abatement. Abatement of a *802second action is appropriate when a subsequent suit is instigated by the plaintiff in a previous suit; however, the second action must involve the same subject matter. State ex rel. J.E. Dunn, Jr. & Associates, Inc. v. Schoenlaub, 668 S.W.2d 72, 74 (Mo. banc 1984). The principles involved in abatement are “intended to manage the potential conflicts and inefficiency that can occur when more than one court has jurisdiction of the same subject matter.” Kelly v. Kelly, 245 S.W.3d 308, 313 (Mo.App. W.D.2008). Abatement technically does not apply unless the issues are the same. Id. at 314. . Plaintiff contends that the cause of action for a violation of the MHRA is not the same as an action for a breach of the implied covenant of good faith and fair dealing contained within a contract or for a claim for an injunction against her employer. She is correct. Although Jennings I and Jennings II involve the same parties, the subject matter is not the same.

The MHRA, section 213.070,3 states that it is “an unlawful discriminatory practice” to “retaliate or discriminate in any manner against any other person because such person has opposed any practice prohibited by this chapter or because such person has filed a complaint ... pursuant to this chapter[.]”

To prevail on a claim for hostile work environment, a plaintiff must prove: (1) he is a member of a protected group; (2) he was subjected to unwelcome [protected group] harassment; (3) his [membership in a protected group] was a contributing factor in the harassment; (4) a term, condition, or privilege of his employment was affected by the harassment; and (5) the [employer] knew or should have known of the harassment and failed to take appropriate action.

Alhalabi v. Missouri Dept. of Natural Resources, 300 S.W.3d 518, 527 (Mo.App. E.D.2009). Plaintiff pled each of these allegations in Jennings I.

On the other hand, a claim for a breach of the implied covenant of good faith and fair dealing requires that there be a contract. “As a general statement, a covenant of good faith and fair dealing is present in every contract.” Bishop v. Shelter Mut. Ins. Co., 129 S.W.3d 500, 505 (Mo.App. S.D.2004). “If such a term is not expressed in the contract, then it will be implied.” Id. Good faith is “an obligation imposed by law to prevent opportunistic behavior, that is, the exploitation of changing economic conditions to ensure gains in excess of those reasonably expected at the time of contracting.” Schell v. LifeMark Hospitals of Missouri, 92 S.W.3d 222, 230 (Mo.App. W.D.2002).

Clearly, the cause of action in Jennings I is not the same cause of action as in Jennings II. The biggest difference, of course, is that there is no contract requirement for a claim under the MHRA. It would certainly be possible to violate the MHRA without breaching a contract. Likewise, an employment contract could be violated for a myriad of reasons that did not violate the MHRA. There is no possibility of inconsistent judgments. In theory, MSU may have violated either the contract or the MHRA without violating the other.

In Count II, Plaintiff gives the specifics of her complaints concerning MSU’s failure to follow the Faculty Handbook:

16. [MSU’s] Faculty Handbook, provides, inter alia, “13.4.2.4 Reassignment — A faculty member can be removed from classroom teaching or reassigned to other University duties while the PPRP or APGP or PCTP process is proceeding if at least two of the following three administrators agree ... ”.
*80317. ... After her reassignment, she availed herself of [MSU’s] grievances procedures in which her and [MSU’s] legal rights, duties or privileges of specific parties were required by [MSU’s] Faculty Handbook to be determined after hearing.
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19. Furthermore, [Plaintiff] was not afforded a completed hearing on her grievance that complied with [MSU’s] Faculty Handbook. Despite a requirement that President Nietzel timely issue formal recommendations of the UHP’s findings, he failed to do so.

The pleadings allege provisions where a faculty member can be removed from classroom teaching or reassigned. Plaintiff claims she was entitled to due process before she was reassigned but that she was reassigned without any of the processes being implemented. She pleads that she availed herself of the grievance procedures as required by the university but the decision was not in accord with the clear and unambiguous rules, therefore, the recommendations were unconstitutional, unlawful, unreasonable, arbitrary, or capricious or involved an abuse of discretion. In its memorandum in support of its motion to dismiss, MSU merely claims, “Since the University’s grievance procedure includes the required due process safeguards, the University cannot be considered an agency within the meaning of the MAPA, and Plaintiff has no possible right to relief under the MAPA.” The majority accepts that reasoning. While all of this may be shown by evidence, it certainly cannot be “proven” by a motion to dismiss. Whether MSU is an “agency” that has established constitutionally adequate safeguards remains to be proven. Plaintiff adequately set forth claims in her petition for a cause of action for judicial review.

I believe the trial court erred in dismissing Jennings II for abatement or for failure to state a claim.

. See Snowden v. Northwest Missouri State University, 624 S.W.2d 161, 163-64 (Mo.App. W.D.1981) (where teacher sued for wrongful termination based on provisions in Faculty Handbook), and Grantham v. Rockhurst University, 563 S.W.2d 147, 151-52 (Mo.App. K.C.D.1978) (where teacher sued for non-renewal of contract and the Faculty Handbook was used as guidance to the decision).

. The majority opinion cites to Missouri Consolidated Health Care Plan v. Community Health Plan, 81 S.W.3d 34, 46 (Mo.App. W.D. 2002), and Roger v. Hartford Life Ins. Co., 28 S.W.3d 405, 412 (Mo.App. W.D.2000). Missouri Consolidated involved a determination after the evidence was presented at a jury trial. Missouri Consolidated, 81 S.W.3d at 37-38. Roger granted a motion for summary judgment after evidence was presented to a special master. Roger, 28 S.W.3d at 408-09. Neither involved a motion to dismiss based on the pleadings.

. All references to statutes are to RSMo 2000, unless otherwise specified.