Bass Pro Outdoor World, L.L.C. (Relator) filed a Petition for Writ of Prohibition with this Court, seeking to prohibit the trial court, Honorable Nancy Schneider, (Respondent) from enforcing discovery orders entered on April 3, 2009, May 7, 2009, and July 24, 2009, in the action of Kyle J. Kelly v. Bass Pro Outdoor World, L.L.C. This action is pending in the Circuit Court of St. Charles County, Missouri, Case No. 03-CV-127432, following remand by this Court for a determination of punitive damages. Kelly v. Bass Pro Outdoor World, L.L.C., 245 S.W.3d 841 (Mo.App. E.D. 2007). Relator contends that the trial court abused its discretion when entering these three discovery orders. We previously issued a Preliminary Order in Prohibition.
In making this determination, we review the evidence and reasonable inferences in the light most favorable to the jury's verdict and we disregard all contrary evidence and inferences. Ingham, 608 S.W.3d at 714; Kelly v. Bass Pro Outdoor World, LLC, 245 S.W.3d 841, 849 (Mo. App. E.D. 2007). "Only evidence that tends to support the submission should be considered."
To make a submissible plaintiff must demonstrate that each and every fact essential to liability is predicated upon legal and substantial evidence. Giddens v. Kansas City S. Ry. Co., 29 S.W.3d 813, 818 (Mo. banc 2000); Kelly v.Bass Pro Outdoor World, LLC, 245 S.W.3d 841, 847 (Mo.App. E.D. 2007). "Substantial evidence is that which, if true, has probative force upon the issues, and from which the trier of fact can reasonably decide the case."
and affirmed the judgment on all other grounds. See Kelly v. Bass Pro Outdoor World, LLC, 245 S.W.3d 841 (Mo.App. E.D.2007). Courts review punitive awards using three factors: (1) the reprehensibility of the defendant's misconduct; (2) the disparity between the harm and the punitive award; and (3) the difference between the punitive award and penalties authorized or imposed in comparable cases.
Plaintiff argues that whether defendant violated the regulation is not necessary because wrongful discharge actions may be brought in the absence of a violation and based solely on the belief that a violation occurred. See Kelly v. Bass Pro Outdoor World, LLC, 245 S.W.3d 841, 848-49 (Mo. Ct. App. 2007). However, plaintiff alleges that defendant knowingly violated 29 C.F.R. § 1926.1101, an allegation that necessarily entails the issue of whether defendant violated 29 C.F.R. § 1926.1101, keeping in mind that plaintiff later alleged that his termination also violated Missouri statutory and regulatory laws.
Kyle J. KELLY, petitioner, v. BASS PRO OUTDOOR WORLD, LLC, dba Bass Pro Shops Outdoor World.Case below, 245 S.W.3d 841. Petition for writ of certiorari to the Court of Appeals of Missouri, Eastern District, denied.
To the extent Dunn, Clark, and any other pre-Margiotta holdings recognize the validity of this legal theory, the court concludes that post-Margiotta, a reasonable belief of legal wrongdoing is not itself sufficient to succeed on an unlawful termination claim brought under Missouri's public policy exception to the at-will employment doctrine. See, e.g., Kelly v. Bass Pro Outdoor World, LLC, 245 S.W.3d 841, 847-48 (Mo. App. E.D. 2007) (relying on Dunn in holding that the plaintiff had "made a submissible case for wrongful termination based upon his reasonable belief that [his former manager] committed a crime"). V. CONCLUSION
In order to recover on this claim, he must prove that his employer discharged him in violation of a clear mandate of public policy. Kelly v. Bass Pro Outdoor World, 245 S.W.3d 841, 847 (Mo. Ct. App. 2007). The parties' submissions demonstrate without dispute that neither Pace nor his supervisors were employed by Healthlink at the time he was terminated. Healthlink and Wellpoint are independent companies and Pace was solely employed by Wellpoint for the ten months preceding his termination.
In her reply suggestions, plaintiff indicates that when an allegation of wrongful termination under state law is made, there is no need to prove an actual violation of the law, only a reasonable belief by the complainant that there was a violation of the law. See Kelly v. Bass Pro Outdoor World, LLC, 245 S.W.3d 841, 847 (Mo. App. E.D. 2007) (noting that "an employee who has a reasonable belief that illegal activity is taking place should be able to report such a belief to his or her supervisors without fear of termination."); Lay v. Horizon/CMS Healthcare Corp., 60 F.Supp.2d 1234, 1242 (D. Kan. 1999) (noting that Kansas provides a cause of action for wrongful/retaliatory discharge to employees who make a good faith report or threat to report a serious infraction of rules, regulation, or law). Additionally, plaintiff notes that there is no real dispute that defendants violated the IDEA and related state statutes, in that the state of Kansas has already determined that they did so, reprimanding defendants for same. See Doc. No. 7, Ex. A.
The court held that in order to state a wrongful discharge claim for reporting unlawful conduct, a plaintiff is required to identify a law or clear mandate of public policy he believed his employer violated or would violate. Id. at 11; see also Kelly v. Bass Pro Outdoor World, LLC, 245 S.W.3d 841, 849 (Mo.Ct.App. 2007). In this case, Genasci reasonably believed that the proposed fee increases would violate the Hancock Amendment.