Proof of a legitimate reason for termination will not defeat the exclusive causation requirement and entitle the employer to summary judgment. Kummer v. Royal Gate Dodge, Inc., 983 S.W.2d 568, 572 (Mo.App.E.D. 1998); Lynch, v. Blanke Baer Bowey Krimko, Inc., 901 S.W.2d 147, 152 (Mo.App.E.D. 1995); Wiedower v. ACF Industries, Inc., 715 S.W.2d 303, 307 (Mo.App.E.D. 1986). Once the employee has produced sufficient evidence to show exclusive causation, the burden shifts to the employer to rebut the employee's evidence by showing a legitimate reason for the discharge.

Hopkins v. Tip Top Plumbing and Heating Co., 805 S.W.2d 280, 283 (Mo. App. 1991). The exclusive cause for the employee's termination must be the exercise of a right under the Workers' Compensation Law.Wiedower v. ACF Industries, Inc., 715 S.W.2d 303, 306 (Mo. App. 1986). Proof that an employee was terminated solely in consequence of his exercise of his rights under the Workers' Compensation Laws is necessarily indirect because the employer is not likely to admit that retaliation was his motive.

It is the argument that in those cases where a submissible issue of discriminatory discharge under § 287.780 was made out, the exercise of right to workers' compensation occurred prior to the discriminatory action of the employer. See, e.g., Hansome v. Northwestern Cooperage Co., 679 S.W.2d at 275; Wiedower v. ACF Industries, 715 S.W.2d 303 (Mo.App. 1986); Russell v. United Parcel Serv., 666 F.2d 1188 (8th Cir. 1981). In this case, Tip Top argues, the proof of exclusive causal relationship between the employee's exercise of right and the employer's act of termination fails because "[Hopkins] was pulled off the job [only] because he did not have a doctor's release to go back to work."

Once the employee has made a prima facie showing of retaliatory discharge, the burden of production shifts to the employer. Lyles v. Washington Metro. Area Transit Auth. (Lyles I), H AS No. 83-46, OWC No. 004258, at 8 n. 3 (Feb. 29, 1988) (Amended Final Compensation Order), aff'd, 572 A.2d 81 (D.C. 1990);see also Twilley v. Daubert Coated Products, Inc., 536 So.2d 1364, 1369 (Ala. 1988) (defendant has burden of producing evidence to rebut inference of discrimination raised by plaintiff's prima facie case); Ford v. Blue Cross Blue Shield of Conn., Inc., 216 Conn. 40, 53-54, 578 A.2d 1054, 1060-61 (1990) (same); Wiedower v. ACF Indus., Inc., 715 S.W.2d 303, 307 (Mo.Ct.App. 1986) (same); Buckner, supra, 760 P.2d at 806-07 (same); cf. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254-56, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1981) (same in a Title VII case); Atlantic Richfield Co. v. District of Columbia Comm'n on Human Rights, 515 A.2d 1095, 1099-1100 (D.C. 1986) (same). The employer, however, "need not persuade the court that it was actually motivated by the proffered reasons."

Twilley cites several cases in his brief that involve wrongful termination as a result of filing a worker's compensation claim. They are: Wiedower v. A CF Industries, Inc., 715 S.W.2d 303 (Mo.App. 1986); Smith v. Piezo Technology Professional Administrators, 427 So.2d 182 (Fla. 1983); Clifford v. Cactus Drilling Corp., 109 Mich. App. 776, 312 N.W.2d 380 (1981) rev'd, 419 Mich. 356, 353 N.W.2d 469 (1984); Judson Steel Corp. v. Worker's Compensation Appeals Board, 22 Cal.3d 658, 150 Cal.Rptr. 250, 586 P.2d 564 (1978); and Santex, Inc. v. Cunningham, 618 S.W.2d 557 (Tex.Civ.App. 1981). We agree with Daubert that these cases are distinguishable.

Id. at 592. Plaintiff responds that Defendants have not asserted that Plaintiff's “retaliatory discharge” was not supported by substantial evidence and that the jury's verdict in Plaintiff's favor on that claim “necessarily encompassed a finding that Defendant[s] acted with a deliberate intent to deprive [Plaintiff] of her job in order to get back at her” and that “[s]uch a vindictive state of mind was sufficient” for an award of punitive damages, citing Wiedower v. ACF Indus. Inc., 715 S.W.2d 303 (Mo.App. E.D.1986). In that case, Wiedower claimed he had been fired for exercising his rights under the workers' compensation law—a retaliatory discharge suit brought under section 287.780, RSMo 1978.

"Even though an employer produces evidence of a legitimate reason for the employee's discharge, the plaintiff who is able to persuade the jury that the employer's reason is pretextual and not causal is entitled to a verdict." Wiedower v. ACF Industries, Inc., 715 S.W.2d 303, 307 (Mo. App. 1986). In such circumstances, "[i]f facts are in dispute as to whether or not conduct by an employer towards an employee is discriminatory, the question is one for a jury."

"Proof of this causal connection is necessarily indirect because the employer is not likely to admit that retaliation is his motive." Wiedower v. ACF Industries, Inc., 715 S.W.2d 303, 306 (Mo.App. E.D. 1986). Discrimination may take various forms including "denying the employee advancement, salary or hourly pay increases, assignment to less desirous jobs or locations, etc."

In some of those cases, the employer offered nonretaliatory reasons for the employee's discharge. For example, in Wiedower v. ACF Indus., Inc., 715 S.W.2d 303 (Mo.App. 1986), the plaintiff-employee alleged that his discharge was because of filing a worker's compensation claim, and the employer claimed that employee was discharged because of his inability to perform the work physically necessary to his job. Id. at 306.

Since the employer is unlikely to admit that retaliation is its motive for firing a "whistleblower," proof of this causal connection is by indirect or circumstantial evidence. Wiedower v. ACF Industries, Inc., 715 S.W.2d 303 (Mo.App. 1986). The jury could reasonably infer from this circumstantial evidence that Ms. Olinger's discharge was wrongful and that GHC's avowal of Ms. Olinger's negative effect on company morale and productivity in its Service Letter was pretextual.