Causation confusion: Missouri's adoption of a contributing factor standard for workers' compensation retaliation claims.

• Author: Specker, Suzanne L.

Templemire v. W&M Welding, Inc., 433 S.W.3d 371 (Mo. 2014) (en banc).

1. INTRODUCTION

   "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." (1) Causation within the context of workers' compensation law is no exception. (2) Chapter 287 of the Missouri Revised Statutes is known as "The Missouri Workers' Compensation Act." (3) Section 287.780 of the Act grants workers a civil right to recover against an employer who wrongfully discharges or discriminates against a worker for exercising her rights under Chapter 287, such as when a worker files a workers' compensation claim. (4) Rather than shedding light on the causation confusion, Section 287.780 only further contributes to it; the statute's plain language is silent on the requisite standard of causation that a worker must satisfy to recover, leaving it up to Missouri courts to determine the appropriate causation standard. (5)

   For decades, courts applied an exclusive cause standard to Section 287.780 claims. (6) Under the exclusive cause standard, a worker could recover for wrongful termination only if the worker could demonstrate that the exercising of his rights under Chapter 287 was the exclusive cause for the employer's decision to terminate him. (7) Thus, the worker could not recover if the employer could demonstrate any other valid and non-pretextual reason for termination, even if the employer's decision was significantly influenced by the worker's exercise of his rights under Chapter 287. (8)

   As this Note argues, the exclusive cause standard frustrated the statute's purpose and effectively sanctioned employer discrimination and retaliation against employees who filed workers' compensation claims. (9) In Templemire v. W&M Welding, Inc., the Supreme Court of Missouri corrected this mistake by adopting the "contributing factor" causation standard in lieu of the exclusive cause standard. (10) In Part II, this Note analyzes the facts and holding of Templemire v. W&M Welding, Inc. (11) Next, in Part III, this Note explores the legal background of Missouri's workers' compensation laws, the historical context and policy considerations behind the development of Section 287.780, and the judicial interpretations of Section 287.780's causation element. (12) 13 14 Part IV examines the court's rationale in Templemire. (13) Lastly, Part V assesses the validity of employer concerns about the implications that may arise from the standard's adoption; provides guidance for employers grappling with how to respond proactively; and considers the pending legislation that, if passed, would overrule Templemire. (14) This Note concludes by discussing what Missouri's adoption of the contributing factor standard represents for Missouri employment discrimination law going forward. (15)

2. FACTS AND HOLDING

   Defendant employer W&M Welding, Inc. ("W&M"), located in Sedalia, Missouri, offers a variety of welding and construction-related services as well as machinery and tool rentals. (16) In October 2005, W&M hired Plaintiff John Templemire to work as a painter and general laborer for approximately $8.50 per hour. (17) During his employment, Templemire was generally considered a good employee. (18) While working at W&M on January 9, 2006, however, a large beam fell and crushed Templemire's left foot, severely injuring him. (19) His injury required surgery and the installation of plating and screws. (20) After reporting his injury to W&M, Templemire filed a workers' compensation claim and received benefits. (21)

   Due to his injury, Templemire was absent from work for approximately four weeks after the incident. (22) He returned to work with various physician-imposed restrictions, including wearing a protective boot on his injured foot. (23) In July 2006, Templemire's doctor further restricted Templemire to seated work because of continuing surgery complications. (24) Although the seated work restriction was removed in September 2006, Templemire's doctor ordered Templemire to avoid standing for longer than one hour without a fifteen-minute break to elevate his foot. (25) To accommodate these restrictions, W&M's owner, Gary McMullin, placed Templemire on light duty by making him a tool room assistant. (26)

   On the morning of November 29, 2006, a customer requested that W&M wash and paint a railing for pick-up that afternoon. (27) According to Templemire, his supervisor instructed him to wash the railing later, after it had been prepared for washing. (28) Around 1:50 p.m., Templemire walked toward the wash bay to wash the railing but stopped to rest his foot, which was infected. (29) While taking this break, McMullin began cursing (30) at Templemire for failing to wash the railing. (31) Templemire attempted to explain that the railing had only just arrived in the wash bay and that he planned to wash it immediately after his break. (32) McMullin fired Templemire on the spot, disregarding W&M's progressive disciplinary policy. (33) After leaving the worksite, Templemire contacted Liz Gragg, the insurance adjuster on his workers' compensation claim. (34) When Gragg later called McMullin to discuss Templemire's discharge, McMullin "went on a [tirade] about [Templemire] 'milking' his injury and [said] that [Templemire could] sue him for whatever." (35)

   Subsequently, Templemire filed suit against W&M in the Circuit Court of Pettis County, Missouri. (36) Templemire brought his claim under Missouri Revised Statute Section 287.780, (37) alleging that W&M fired him in retaliation for filing a workers' compensation claim. (38) At trial, McMullin contradicted Templemire's version of events by testifying that McMullin had placed the railing in the wash bay early that morning and had personally directed Templemire to wash the railing immediately, ignoring other assignments until he was finished. (39) McMullin contended that he returned two hours later to discover the railing still unwashed and Templemire taking a break. (40) According to McMullin, Templemire responded that he needed his break and that McMullin could "take it up with [his doctor]." (41) In response, McMullin alleged that he terminated Templemire for insubordination. (42)

   Templemire provided evidence that McMullin referred to injured employees as "whiners" and had yelled at him because of his injury. (43) One witness testified to overhearing Templemire and McMullin arguing just prior to Templemire's termination with McMullin yelling, "All you do is sit on your a-- and draw my money." (44) Templemire also presented evidence that another employee was never fired, despite receiving multiple disciplinary write-ups and having a drug problem; in contrast, Templemire had only ever received one (45) disciplinary write-up. (46)

   Before the case was submitted to the jury, W&M proposed using Missouri Approved Instructions47 ("MAI") 23.13, (48) This verdict director required the jury to find for W&M unless Templemire's filing of a workers' compensation claim was the "exclusive (49) factor" in W&M's decision to terminate him. (50) Templemire, however, contended that by using an exclusive factor standard, W&M's proposed jury instruction misstated the law. (51) For this reason, Templemire proposed a modified version of MAI 23.13, substituting a contributing factor standard for the MAI's exclusive factor standard. (52) In the alternative, Templemire submitted a pretext instruction, which advised the jury that if it found W&M's stated reason for firing Templemire to be mere pretext, the jury could find exclusive causation in favor of Templemire. (53) The trial court refused both of Templemire's proposed instructions and instead instructed the jury on MAI 23.13's exclusive factor standard. (54) The jury returned a verdict for W&M. (55)

   Templemire appealed to the Western District of the Missouri Court of Appeals, alleging that the trial court erred by rejecting both of his proposed instructions. (56) Applying the standard first articulated by the Supreme Court of Missouri in Hansome v. Northwestern Cooperage Company, (57) the Court of Appeals determined that the trial court was correct in using the exclusive causation standard. (58)

   In the alternative, Templemire argued that the trial court erred by refusing to submit his pretext instruction. (59) Templemire contended that without a pretext instruction, the exclusive causation standard required the jury to find that if there was any other possible reason for his discharge other than retaliation, then W&M was entitled to a verdict. (60) The appellate court disagreed, however, because Templemire failed to satisfy "his burden to demonstrate that the MAI instructions submitted actually misstate[d] the law." (61) The Court of Appeals affirmed the trial court's judgment, holding that a pretext instruction was not required, and the trial court did not abuse its discretion in refusing to give one. (62)

   After the Court of Appeals issued its opinion, the Supreme Court of Missouri granted transfer. (63) The Supreme Court reversed and remanded, holding that to prove a claim under Section 287.780, an employee must prove that her filing of a workers' compensation claim was a "contributing factor" to the employer's discrimination or the employer's decision to discharge the employee. (64) The Supreme Court further held that Hansome and Crabtree v. Bugby were overruled to the extent that their holdings were inconsistent with the court's decision. (65)

3. LEGAL BACKGROUND

   In this Part, Section A surveys the development of Missouri's workers' compensation laws, including the public-policy exception to Missouri's at will employment doctrine and the statutory exceptions under the Missouri Human Rights Act ("MHRA") and Section 287.780 of the Missouri Workers' Compensation Act. Section B discusses the historical context and policy considerations behind Missouri's workers' compensation law, the development of...