               In the Missouri Court of Appeals
                                Western District

JAMES VAN KIRK,                      )
                          Appellant, )
v.                                   )              WD78577
                                     )
BURNS & McDONNELL ENGINEERING        )
COMPANY, INC., et al.,               )              FILED: March 22, 2016
                       Respondents. )

      APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY
               THE HONORABLE MARCO A. ROLDAN, JUDGE

       BEFORE DIVISION ONE: LISA WHITE HARDWICK, PRESIDING JUDGE,
              VICTOR C. HOWARD AND GARY D. WITT, JUDGES

      James Van Kirk appeals the circuit court's judgment dismissing his wrongful

discharge petition against his former employer, Burns & McDonnell Engineering

Company, Inc., and affiliates of Burns & McDonnell, Does 1-3 (collectively,

"Burns") for failure to state a claim upon which relief could be granted. Van Kirk

contends his petition adequately states two claims that he was wrongfully

discharged for whistleblowing. For reasons explained herein, we reverse and

remand the case for further proceedings.
                          FACTUAL AND PROCEDURAL HISTORY

      On appeal from a dismissal for failure to state a claim, we assume the facts

alleged in the petition to be true. Whispering Oaks Residential Facility, LLC v. Mo.

Dep't of Nat. Res., 456 S.W.3d 46, 49 (Mo. App. 2015). Van Kirk is a

professional engineer and was one of the more senior experienced engineers on his

team at Burns. He has a doctorate in engineering and is licensed in Missouri,

Wyoming, Texas, Illinois, and Ohio, among other states. Van Kirk was employed at

Burns for approximately a decade until he was terminated in April 2009.

      In 2008 and 2009, Van Kirk was working for Burns on the Frontier Boiler

Project, which was based in Cheyenne, Wyoming. He worked on the project

primarily out of Burns's Kansas City office and on a limited basis at Burns's office

in Houston, Texas. Other Burns staff in the Houston office assisted on the project.

During construction, Van Kirk worked several weeks at the Frontier Refinery in

Cheyenne.

      While working on the project, Van Kirk complained to his superiors at Burns

that the company was not ensuring that the project's drawings, specifications, and

contract documents were prepared under the direct supervision of and sealed by

the responsible professional engineers licensed in the state where they were

performing the work. He also complained that individuals who were not licensed

professional engineers in any state were performing mechanical engineering and

engineering project manager work on the project.




                                          2
      During the course of the Frontier Boiler Project, Burns's construction

manager, who was a non-licensed engineer, planned to lift a boiler over a network

of pipes that contained volatile chemicals. Van Kirk complained to the construction

manager and the Vice President of Engineering about the lack of a boiler lifting plan

prepared by a professional engineer licensed in Wyoming.

      Despite Van Kirk's complaints, Burns proceeded with the non-licensed

engineer's plan for lifting the heavy boiler over the volatile chemicals. During the

lift, workers were under the chemical pipes, transferring ropes over the pipes with

the heavy boiler hanging in the wind above them. This method of moving the

boiler and the workers' presence under the boiler were unnecessary to the job and

could have been avoided using proper engineering practices. Van Kirk complained

to his superiors about the unsafe hoisting of the boiler over the network of pipes

containing volatile hydrocarbons. Specifically, the boiler was not adequately

secured and was not hoisted in accordance with prevailing professional standards;

as a result, the client's property and the workers' safety were put at risk.

      Shortly thereafter, one of Van Kirk's supervisors at Burns convened a team

meeting. While looking at Van Kirk so that the rest of the team could see, the

supervisor stated that complaints had been made about sealing practices. The

topic was brought up in a way that clearly targeted Van Kirk. Three days later,

Burns fired Van Kirk.

      Van Kirk subsequently filed a petition asserting claims of wrongful discharge

in violation of public policy. He alleged that he was fired because of his

                                          3
whistleblowing about the unauthorized practice of engineering and his

whistleblowing about unsafe engineering practices.1 Burns moved to dismiss the

petition for failure to state a claim upon which relief could be granted, arguing that

Van Kirk failed to identify any well-established and clearly mandated Missouri

public policy violated by his discharge. The circuit court granted the motion and

issued a judgment dismissing the petition with prejudice. Van Kirk appeals.

                                    STANDARD OF REVIEW

       We review the grant of a motion to dismiss de novo. Vogt v. Emmons, 158

S.W.3d 243, 247 (Mo. App. 2005). In reviewing the petition to determine if it

states a claim, we accept the allegations in the petition as true and grant the

plaintiffs all reasonable inferences from those allegations. Campbell v. Cty.

Comm'n of Franklin Cty., 453 S.W.3d 762, 767 (Mo. banc 2015). We do not

weigh the factual allegations to determine their credibility or persuasiveness.

Bromwell v. Nixon, 361 S.W.3d 393, 398 (Mo. banc 2012). Rather, we review

the petition "'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.'" Id. (citation

omitted).

                                           ANALYSIS

       In Point I, Van Kirk contends the court erred in dismissing his claim that he

was wrongfully discharged in violation of public policy because of his


1
  Van Kirk also asserted two public policy discharge claims premised on Kansas City's Fair
Employment Practices Ordinance. The court dismissed the claims, and Van Kirk does not challenge
their dismissal on appeal.

                                               4
whistleblowing about the unauthorized practice of engineering that he witnessed on

the Frontier Boiler Project. He argues that his petition sufficiently alleges that

Burns was violating engineering laws by allowing the unauthorized practice of

engineering, that he reported those violations to his supervisors, and that he was

fired because of that reporting.

      Generally, an at-will employee, like Van Kirk, may be discharged for any

reason or no reason. Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 92

(Mo. banc 2010). Missouri has adopted a public policy exception to this general

rule, however. Id. "Public policy" refers to "'the principle of law which holds that

no one can lawfully do that which tends to be injurious to the public or against the

public good.'" Id. at 91 (citation omitted).

      The public policy exception is narrowly drawn. Margiotta v. Christian Hosp.

Northeast Northwest, 315 S.W.3d 342, 346 (Mo. banc 2010). Public policy "is

not found 'in the varying personal opinions and whims of judges or courts, charged

with the interpretation and declaration of the established law, as to what they

themselves believe to be the demands or interests of the public.'" Id. (citation

omitted). "[A] wrongful discharge action must be based on a constitutional

provision, a statute, a regulation based on a statute or a rule promulgated by a

governmental body." Id. "Absent such explicit authority, an employee's wrongful

discharge claim fails as a matter of law." Farrow v. Saint Francis Med. Ctr., 407

S.W.3d 579, 595 (Mo. banc 2013). Furthermore, "not every statute or regulation

gives rise to an at-will wrongful termination action." Margiotta, 315 S.W.3d at

                                           5
346. "A vague or general statute, regulation, or rule cannot be successfully pled

under the at-will wrongful termination theory, because it would force the court to

decide on its own what public policy requires." Id. "The pertinent inquiry here is

whether the authority clearly prohibits the conduct at issue in the action." Id. at

347.

       The public policy exception to the at-will employment doctrine provides that

an at-will employee may not be discharged: "(1) for refusing to violate the law or

any well-established and clear mandate of public policy as expressed in the

constitution, statutes, regulations promulgated pursuant to statute, or rules created

by a governmental body or (2) for reporting wrongdoing or violations of law to

superiors or public authorities." Fleshner, 304 S.W.3d at 92. If an employer

discharges an employee for either of the two reasons under the exception, then the

employee has a tort claim for wrongful discharge in violation of public policy. Id.

       Van Kirk's allegation that he was fired for reporting the unauthorized practice

of engineering falls under the second theory of wrongful discharge, which is

commonly referred to as "whistleblowing." Margiotta, 315 S.W.3d at 346-47. To

adequately plead a claim of whistleblowing, an employee must demonstrate that:

(1) he reported serious misconduct that constitutes a violation of the law and of

well-established and clearly mandated public policy to his superiors; (2) the

employer terminated his employment; and (3) there is a causal connection between

his reporting and his termination. See Keveney v. Mo. Military Academy, 304

S.W.3d 98, 103 (Mo. banc 2010). The whistleblowing need only be a contributing

                                          6
factor and need not be the exclusive cause of the termination. Fleshner, 304

S.W.3d at 94-95.

         In Count I of his petition, Van Kirk alleges that he was terminated for

reporting violations of the clearly-established and fundamental public policy

requiring that engineering work be done only under the direct and active

supervision of a licensed engineer and that drawings and other related engineering

documents be properly sealed by licensed engineers. He states that this public

policy is expressed in regulations contained in The Missouri Board for Architects,

Professional Engineers, Professional Land Surveyors, and Landscape Architects

Code of Conduct. Specifically, Van Kirk cites 20 CSR 2030-2.010(7), which

provides, "Licensees shall not assist non-licensees in the unlawful practice of . . .

professional engineering." He also cites 20 CSR 2030-2.010(5), which provides,

"Licensees shall comply with state laws and regulations governing their practice."

Van Kirk alleges that Wyoming's state laws in effect in 2008 and 2009, during

Burns's work on the Frontier Boiler Project, required that persons desiring to

practice engineering in Wyoming first secure a certificate of registration and

provided that it was unlawful for a registrant to sign, stamp, or seal any document

not prepared by him or by an employee under his supervision.2 He also alleges that

Texas, where some of Burns's work on the Frontier Boiler Project was performed,




2
    Van Kirk cites Wyoming Statutes Annotated §§ 33-29-124 and 33-29-129 (2009).


                                               7
had a statute forbidding a person from engaging in the practice of engineering

unless that person held a license issued under the Texas Engineering Practice Act.3

         Van Kirk asserts that he reported to his superiors that Burns was violating

the prohibition against licensed engineers' assisting non-licensed engineers in the

unlawful practice of engineering by: (1) not ensuring that the Frontier Boiler Project

drawings, specifications, and contract documents were prepared under the direct

supervision of and sealed by the responsible professional engineers licensed in the

state where they were performing work; (2) allowing employees in its Houston

office that were not licensed professional engineers in any state to perform

mechanical engineering and engineering project manager work on the Frontier Boiler

Project and other projects; and (3) allowing a non-licensed engineer to prepare the

boiler lifting plan on the Frontier Boiler Project. According to Van Kirk, these

reports to his superiors about the unauthorized practice of engineering were a

contributing factor in his discharge.

         Burns argues that these allegations are insufficient to support a

whistleblowing claim because Van Kirk is relying on violations of Wyoming and

Texas law to create a Missouri wrongful discharge claim. We disagree. Van Kirk's

references to the laws of other states where some of the unauthorized practice of

engineering was allegedly performed do not make his wrongful discharge claim

based on Wyoming and Texas law. The public policy that Burns is alleged to have

violated is squarely rooted in Missouri's regulations. 20 CSR 2030-2.010(7)


3
    Van Kirk cites Texas Occupations Code § 1001.301 (2003).

                                                8
contains no geographical limitation on its prohibition against licensed engineers'

assisting non-licensed engineers in the unlawful practice of engineering, and 20

CSR 2030-2.010(5) does not indicate that Missouri-licensed engineers must

comply only with Missouri state laws and regulations. Van Kirk's claim is simply

that, when read together, 20 CSR 2030-2.010(5) and (7) prohibit licensees from

assisting non-licensees in the practice of engineering in Missouri and in other

jurisdictions.

       Burns further argues that 20 CSR 2030-2.010(5) and (7) are too vague and

impermissibly "force the court to decide on its own what public policy requires,"

citing Margiotta, 315 S.W.3d at 346. Again, we disagree. The public policy

reflected in 20 CSR 2030-2.010(7)'s prohibition against licensees assisting non-

licensees in the practice of engineering and 20 CSR 2030-2.010(5)'s requirement

that licensed engineers follow state laws and regulations is clear: Licensed

engineers are not allowed to delegate engineering tasks to unlicensed engineers in

Missouri or elsewhere. There is nothing vague about this public policy mandate.

See Farrow, 407 S.W.3d at 597 (holding that a nurse sufficiently pled a public

policy wrongful discharge claim when she alleged that she was fired for

complaining about the delegation of nursing procedures to non-nurses in violation

of provisions of the Nursing Practice Act).

       Count I of Van Kirk's petition states a claim for wrongful discharge in

violation of public policy based on his whistleblowing about the unauthorized

practice of engineering. Point I is granted.

                                          9
        In Point II, Van Kirk contends the court erred in dismissing Count II of his

petition in which he alleges that he was wrongfully discharged because of his

whistleblowing about the unsafe hoisting and moving of the boiler on the Frontier

Boiler Project. In his petition, Van Kirk alleges that he was terminated, in part,

after he complained to his supervisors at Burns about the unsafe hoisting of the

boiler over the network of pipes containing volatile hydrocarbons, which he asserts

put the client's property and the workers' safety at risk. According to Van Kirk, 29

C.F.R. § 1926.753 (2008), an OSHA regulation, prohibited workers from being

present under suspended loads except under circumstances not present in this

case.

        Van Kirk further alleges that his complaint to his supervisors at Burns about

the unsafe practices was required and protected under Missouri law. Specifically,

he cites 20 CSR 2030-2.010(6), which provides:

               Licensees at all times shall recognize that their primary
        obligation is to protect the safety, health, property, or welfare of the
        public. If the professional judgment is overruled under circumstances
        where the safety, health, property, or welfare of the public are
        endangered, they shall notify their employer or client and other
        authority as may be appropriate.

Van Kirk alleges that, because his complaint was required and protected under this

regulation, Burns's discharging him for it violated public policy.

        In response, Burns argues that 20 CSR 2030-2.010(6) is too vague to

support a claim for wrongful discharge in violation of public policy. Burns contends

that the regulation is similar to the regulations found insufficiently clear in Lay v.



                                           10
St. Louis Helicopter Airways, Inc., 869 S.W.2d 173 (Mo. App. 1993). In Lay, a

pilot was discharged from his employment after he refused to make three flights in

bad weather. Id. at 175. He alleged that his discharge was wrongful under the

public policy exception because an FAA regulation made the pilot the "final

authority" as to the operation of the aircraft, and the Code of Ethics of the

Helicopter Association International required pilots to use their "best judgment" to

insure "maximum safety" at all times. Id. at 177. The court disagreed, finding

that the regulation and Code of Ethics requirement were not "clear mandates which

allow employee to fall within the public policy exception," as "[n]either imposes a

duty on an employer to refrain from terminating a pilot whose judgment calls are

contrary to the employer's judgment." Id.

      This case is distinguishable from Lay. Unlike the regulations in Lay, the

regulation in this case does not simply provide for engineers to make judgment calls

regarding safety. Rather, 20 CSR 2030-2.010(6) specifically directs that, if those

judgment calls are overruled, the engineers shall report their safety concerns to

their employer, client, or other authority. Van Kirk is not alleging that his discharge

was wrongful because Burns disagreed with his judgment call regarding safety

issues; he is alleging that his discharge was wrongful because Burns fired him for

doing exactly what the regulation required him to do -- report his safety concerns

to Burns. The public policy reflected in 20 CSR 2030-2.010(6) is clear: Licensed

engineers are not only encouraged, but required, to report safety concerns




                                          11
whenever their professional judgment is overruled on a project. Firing a licensed

engineer for making a required report violates this public policy.4

       Count II of Van Kirk's petition states a claim for wrongful discharge in

violation of public policy for his whistleblowing about the unsafe hoisting and

moving of the boiler on the Frontier Boiler Project. Point II is granted.

                                          CONCLUSION

       The circuit court's judgment dismissing Counts I and II of Van Kirk's petition

for failure to state a claim is reversed. The case is remanded for further

proceedings.


                                                     ____________________________________
                                                     LISA WHITE HARDWICK, JUDGE


ALL CONCUR.




4
  See Fleshner, 304 S.W.3d at 96-97 (holding that, where Missouri's minimum wage law makes it a
crime to fire employees who participate in overtime compensation investigations by state officials,
the public policy reflected in that law is that employees should be encouraged to cooperate with
government labor investigators; therefore, an employee who was terminated after speaking with
federal investigators about overtime compensation made a submissible case of wrongful discharge).



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