              IN THE MISSOURI COURT OF APPEALS
                       WESTERN DISTRICT
CINDY HUDSON,                  )
                               )
          Appellant,           )
                               )
     v.                        )                        WD77055
                               )
KIMBERLY O'BRIEN, DEBRA        )                        Opinion filed: October 21, 2014
CHESHIER, AND GAIL VASTERLING, )
                               )
          Respondent.          )

        APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY, MISSOURI
                THE HONORABLE PATRICIA S. JOYCE, JUDGE

                    Before Division Three: Gary D. Witt, Presiding, Judge,
                    Joseph M. Ellis, Judge and Thomas H. Newton, Judge


        Appellant Cindy Hudson appeals from the Circuit Court of Cole County's grant of

summary judgment in favor of Respondents Kimberly O'Brien and Debra Cheshier.1

Appellant contends that the trial court erred in granting summary judgment because it

construed § 105.0552 too narrowly in concluding that her disclosures to Respondents



1
  Margaret Donnelly, the former Director of the Missouri Department of Health and Senior Services, was
also named as a defendant in the suit. Gail Vasterling, the current Director of the Missouri Department of
Health and Senior Services, was subsequently substituted in Donnelly's place. In granting Respondents'
motion for summary judgment, the trial court found that Appellant's "claims against Vasterling do not state
a claim" and, thus, granted summary judgment in favor of Vasterling. Appellant does not challenge the
trial court's findings related to Vasterling on appeal.
2
   Unless otherwise noted, all statutory citations are to RSMo 2000 as updated through the 2009
Cumulative Supplement.
did not constitute "whistleblowing" as a matter of law. For the following reasons, the

judgment is affirmed in part and reversed and remanded in part.

      In 2008, Appellant was employed by the Missouri Department of Health and

Senior Services ("the Department") as a section administrator for the Section of Child

Care Regulation ("SCCR"). SCCR is responsible for inspections of childcare facilities

throughout the state of Missouri. Respondent O'Brien served as the Director of the

Division of Regulation and Licensure, under which SCCR operated.          Respondent

Cheshier served as the Deputy Division Director. Thus, Respondents acted as

Appellant's supervisors.

      On July 24, 2008, Appellant and another employee of the Department conducted

an inspection of Apple Tree Academy, a childcare facility in Jefferson City, Missouri.

Following the inspection, the Department issued a report citing ten categories of rule

violations found at Apple Tree Academy.

      Karen Werner, owner of Apple Tree Academy, contacted the Department after

the report was issued. Werner contested several of the violations listed in the report

and sought to have the violations removed.        Appellant authorized Sue Porting, a

Department employee, to meet with Werner regarding Werner's complaints. After the

meeting, Porting removed several of the rule violations cited in the report. Although

Appellant authorized the removal of one of the violations, Appellant did not approve of

Porting removing several others. Appellant reported Porting's removal of the violations

to O'Brien and requested Porting be disciplined for her actions.


                                            2
          The Department received subsequent correspondences from Werner with

respect to the original and the revised inspection reports. Werner further accused the

Department of harassment due to the fact that Werner had been involved in stopping

the Department's previous attempt to revise its rules regarding childcare facilities.

Werner also contended that the Department inspectors were applying the rules and

regulations inconsistently, especially as to her facilities. Werner was also concerned

about the Department preparing to make inspection reports available online to the

public.

          Respondents subsequently asked Appellant to draft a written response regarding

Werner's complaints so they could better respond to Werner. Respondent Cheshier

also instructed Appellant that, "while [the Department is] trying to go through this rule

revision process,3 . . . it is best that we not cite rule violations at [Werner's] facilities that

are not obvious safety concerns."            Concerned about Cheshier's directive, Appellant

sought further instruction from Respondents. While Respondents did not give Appellant

any written instruction, a meeting occurred at which Respondents explained to

Appellant that childcare facility inspections were part art and part science.

          On November 28, 2008, Appellant wrote a memorandum to Respondents in

response to Werner's complaints.             In the memorandum, Appellant justified the rule

violations cited at Apple Tree Academy and stated that removing the rule violations from

the inspection report "put the Department at risk." The memorandum further responded


3
 In 2008, the Department was considering revising its rules and regulations. It is unclear from the record
whether such revisions ever occurred.
                                                    3
to Werner's claims of harassment and suggested the rule violations had been removed

from Apple Tree Academy's inspection report in order to prevent Werner's complaints

from escalating beyond the SCCR and the Division of Regulation and Licensure.              It

also suggested that SCCR had shown such favoritism to Werner in the past.

         On December 11, 2008, Appellant was notified of her termination, which would

become effective January 15, 2009. The Department stated that Appellant was being

fired because things just were not working out.         After Appellant's termination, the

memorandum written by Appellant in response to Werner's complaints was destroyed.

         On February 4, 2009, Appellant appealed her termination to the Personnel

Advisory Board. In her appeal, Appellant did not allege that she was terminated for

whistleblowing; rather, she claimed she could not be fired without cause. On April 14,

2009, the Board denied Appellant's appeal, finding that she could be terminated without

cause.

         On March 12, 2009, Appellant filed the current action against Respondents

alleging that Respondents violated § 105.055, Missouri's whistleblowing statute, by

firing her for her disclosures regarding rule violations at Werner's facilities. In her third

amended petition, Appellant alleges that "[t]he removal of the violations by the

Department put the Department at risk for failure to follow its own regulations and the

laws of the State of Missouri and also put the children at risk." Appellant further alleges

that Cheshier told her "not to cite rule violations at Werner's facilities" and that she

complained verbally and in writing to Respondents that the removal of rule violations


                                             4
was a danger to the Department and to the children and "misrepresented to the public

and to Karen Werner that there were no violations of [Missouri’s rules and regulations].

       On June 28, 2013, Respondents filed a motion for summary judgment in which

they alleged Appellant was not entitled to relief under § 105.055 as a matter of law. On

October 31, 2013, the trial court granted summary judgment on six grounds: (1)

Appellant's   complaints   of   wrongdoing    to   the   alleged   wrongdoers   were   not

whistleblowing as a matter of law; (2) complaints made only to supervisors are not

whistleblowing as a matter of law under § 105.055; (3) Respondents' alleged

misconduct does not warrant protection under § 105.055; (4) Appellant's claims against

Vasterling do not state a claim; (5) Appellant failed to exhaust her administrative

remedies prior to filing her § 105.055.7 civil action; and (6) Appellant's damages are

limited to non-economic damages as a matter of law.

       Appellant now raises four points of error on appeal from the trial court's grant of

summary judgment.      "The grant of summary judgment is an issue of law that an

appellate court determines de novo." Brehm v. Bacon Twp., 426 S.W.3d 1, 3 (Mo.

2014). We review "the record in the light most favorable to the party against whom

judgment was entered and give[] the non-movant the benefit of all reasonable

inferences from the record." Id. at 3-4 (internal quotation omitted).

       "To prevail on a motion for summary judgment, the movant must show that there

is no dispute of material fact and that he is entitled to judgment as a matter of law."

Lucero v. Curators of Univ. of Mo., 400 S.W.3d 1, 4 (Mo. App. W.D. 2013) (internal


                                             5
quotation omitted). "We may affirm the circuit court's grant of summary judgment under

any theory that is supported by the record." Id. (internal quotation omitted).

       Furthermore, each of Appellant's four points involves a question of statutory

interpretation. We review a trial court's interpretation and application of a statute de

novo. Page v. Scavuzzo, 412 S.W.3d 263, 266 (Mo. App. W.D. 2013).

       In her first point, Appellant contends that the trial court misconstrued § 105.055

when it determined that she failed to make a disclosure under the statute. The trial

court concluded that "reporting wrongdoing to the alleged wrongdoers is not 'whistle

blowing' as a matter of law" under the statute. In reaching its conclusion, the trial court

relied upon common law wrongful discharge cases in which Missouri courts have held

that "a report of wrongdoing to the wrongdoer is insufficient to invoke the whistleblowing

public policy exception" to the at-will employment doctrine.        Drummond v. Land

Learning Found., 358 S.W.3d 167, 171 (Mo. App. W.D. 2011); see also Faust v.

Ryder Commercial Leasing & Servs., 954 S.W.2d 383, 391 (Mo. App. W.D. 1997)

abrogated on other grounds by Fleshner v. Pepose Vision Inst., Inc., 304 S.W.3d 81,

93 (Mo. banc 2010).

       Missouri common law wrongful discharge whistleblower cases do require

disclosures to persons other than the wrongdoers. However, this not a common law

wrongful termination case. Rather, this a purely statutory cause of action set forth

under § 105.055. Therefore, to determine whether Appellant made a disclosure as a

matter of law, we must construe § 105.055.


                                             6
       Our "primary responsibility in statutory interpretation is to determine the

legislative intent from the language of the statute and to give effect to that intent."

Balloons Over the Rainbow, Inc. v. Dir. of Revenue, 427 S.W.3d 815, 825 (Mo. banc

2014) (internal quotation omitted). "If the intent of the legislature is clear and

unambiguous, by giving the language used in the statute its plain and ordinary meaning,

then we are bound by that intent and cannot resort to any statutory construction in

interpreting the statute." State ex rel. Union Elec. Co. v. Pub. Serv. Comm'n of Mo.,

399 S.W.3d 467, 479-80 (Mo. App. W.D. 2013) (internal quotation omitted). "However,

statutory provisions relating to the same subject matter are considered in pari material

and are to be construed together." Crawford v. Div of Emp't Sec., 376 S.W.3d 658,

664 (Mo. banc 2012) (internal quotation omitted).

       When construed together, the provisions of § 105.055 do not exclude reports of

wrongdoing to the wrongdoers. Section 105.055 provides:

       No supervisor or appointing authority of any state agency shall . . .
       [p]rohibit a state employee from or take any disciplinary action 4
       whatsoever against a state employee . . . for the disclosure of information
       which the employee reasonably believes evidences: (a) A violation of any
       law, rule or regulation; or (b) Mismanagement, a gross waste of funds or
       abuse of authority, or a substantial and specific danger to public health or
       safety, if the disclosure is not specifically prohibited by law[.]

§ 105.055.2(1)(a)-(b). Thus, while § 105.055 requires the disclosure of information by a

state employee, it does not identify to whom the disclosure of information must be

made. Rather, it provides only that disciplinary action cannot be taken against state

4
  "Disciplinary action," as used in § 105.055, means "any dismissal, demotion, transfer, reassignment,
suspension, reprimand, warning of possible dismissal or withholding of work, whether or not the
withholding of work has affected or will affect the employee's compensation." § 105.055.4.
                                                  7
employees for the disclosure of certain information. Therefore, the focus of § 105.055 is

not to whom a disclosure is made, but whether a disclosure was made.

        The statute does not define the term "disclosure." "Absent a statutory definition,

words used in statutes are given their plain and ordinary meaning with help, as needed,

from the dictionary."       Balloons Over the Rainbow, 427 S.W.3d at 825 (internal

quotation omitted).      The dictionary defines "disclosure" as "[t]he act or instance of

disclosing: the act or an instance of opening up to view, knowledge, or comprehension:

exposure . . . something that is disclosed: revelation, divulgation."5 Webster's Third

New International Dictionary of the English Language Unabridged 645 (1961).

Black's Law Dictionary defines disclosure as "[t]he act or process of making known

something that was previously unknown; a revelation of facts." Black's Law Dictionary

531 (9th ed. 2009).         Thus, the plain and ordinary meaning of "disclosure" is the

exposure or revelation of something previously unknown.

        Respondents rely on this definition as evidence that an employee does not make

a "disclosure" under the statute when it discloses information to the wrongdoer

because, in doing so, the employee has failed to reveal something previously unknown.

In making their argument, Respondents rely upon federal case law interpreting the

Whistleblower Protection Act ("the WPA"), 5 U.S.C. § 2302. See Huffman v. Office of

Personnel Mgmt., 263 F.3d 1341, 1349-50 (Fed. Cir. 2001) (explaining that reports to

the wrongdoers are not protected disclosures under the WPA because "'disclosure'

5
  "Disclose" means "[t]o make known . . . [t]o reveal in words (something that is secret or not generally
known)." Webster's Third New International Dictionary of the English Language Unabridged 645
(1961).
                                                   8
means to reveal something that was hidden and not known" and finding it significant

that the legislature "did not use a word with a broader connotation such a 'report' or

'state'"). However, recent amendments to the WPA have abrogated the federal courts'

interpretation of the term "disclosure." See 5 U.S.C. § 2302(8)(f)(1) (Supp. 2014) ("A

disclosure shall not be excluded from [protection] because . . . the disclosure was made

to a supervisor or to a person who participated in an activity that the employee or

applicant reasonably believed to be covered by [the statute or] the disclosure revealed

information that had been previously disclosed").6

       Moreover, Respondents have failed to recognize that § 105.055 includes

language absent from the WPA. Section 105.055.7 creates a civil action for employees

alleging violations of § 105.055. Section 105.055.7(3) provides: "An employee must

show by clear and convincing evidence that he or she or a person acting on his or her

behalf has reported or was about to report, verbally or in writing, a prohibited activity

or a suspected prohibited activity." (Emphasis added). The dictionary defines "report"

to mean "to give an account of: NARRATE, RETALE, TELL." Webster's Third New

International Dictionary of the English Language Unabridged 1925 (1961).

Therefore, under the plain language of the statute, a state employee must show, by

clear and convincing evidence, that he or she or a person acting on his or her behalf


6
  Respondents contend that we should not consider the recent amendments to the WPA because the
Missouri legislature has not amended § 105.055 in a similar fashion. In doing so, Respondents aver that
Missouri adopted § 105.055 with the intent that reports to the wrongdoers were not protected. However,
Missouri enacted § 105.055 in 1987. Respondents cite no cases prior to 1987 interpreting the WPA to
require disclosures to persons other than the wrongdoers. Furthermore, no Missouri courts have
interpreted the statute since its enactment. Accordingly, we cannot say the legislature's intent was
aligned with the federal courts previous interpretation of the term "disclosure."
                                                  9
has given or was about to give an account that he or she reasonably believes evidences

prohibited activity or a suspected prohibited activity. 7

        Under the broad language used in § 105.055.7, Appellant did not fail to make a

disclosure as a matter of law. Appellant alleges she reported Porting's removal of rule

violations from the inspection report and Cheshier's directive to cite only obvious safety

violations at Werner's facilities. Respondents do not contest that Appellant made such

complaints.       Rather, they contend only that such complaints did not constitute

disclosures because Appellant made them to "the wrong people."8                              As previously

discussed, § 105.055 contains no requirement as to whom disclosures must be made.

Accordingly, given the broad language used in § 105.055.7(3) and viewing the evidence

in the light most favorable to Appellant, we cannot say that Appellant failed, as a matter

of law, to make disclosures under the statute.

        The trial court further concluded that Appellant was not entitled to relief because

complaints "made only to supervisors are not 'whistle blowing' as a matter of law under

§ 105.055." In reaching its conclusion, the trial court reasoned that the purpose of §

105.055 is to encourage employees to disclose government wrongdoing to persons who

may be in a position to remedy the problem without fearing retaliatory action by their
7
  It is worth mentioning that interpreting § 105.055 to require reports or disclosures to those not involved
in the wrongdoing overlooks the very plausible situation in which an employee is unaware that the
individual he or she is reporting the wrongdoing to is actually a wrongdoer.
8
  We note that, even if we were to accept Respondent's interpretation of the term "disclosure," their own
statement of facts indicates that, at the time Appellant reported the conduct, O'Brien was not a
wrongdoer. Respondents' brief states that Appellant "reported to O'Brien that Porting removed the rule
violations from the inspection report." Moreover, it is clear from the record that initially only Cheshier, not
O'Brien, gave Appellant the instruction to cite only obvious rule violations at Werner's facilities. The fact
that O'Brien subsequently acquiesced or approved of the alleged wrongdoing does not negate the fact
that Appellant initially revealed such information to her or at least gives rise to a factual dispute on the
matter.
                                                     10

                                                          0
supervisors. Thus, it concluded that the persons and bodies enumerated in § 105.055.1

identified such individuals "in a position to remedy the problem" and that "[t]he structure

of [§ 105.055] makes obvious that it protects state employees reporting misconduct to

persons enumerated in [§ 105.055.1] from retaliation by persons enumerated in [§

105.055.2]."

      Nothing in the statute's structure, however, supports the trial court's

interpretation. As previously explained, § 105.055.2 prohibits supervisors or appointing

authorities from taking disciplinary action against state employees for the disclosure of

certain types of information. Section 105.055.1 provides: "No supervisor or appointing

authority of any state agency shall prohibit any employee of the agency from discussing

the operations of the agency, either specifically or generally, with any member of the

legislature, state auditor, attorney general, or any state official or body charged with

investigating such alleged misconduct."       Section 105.055.1, therefore, proscribes

supervisors or appointing authorities from prohibiting employees from discussing

agency operations with the enumerated individuals and bodies. Thus, the two sections

prohibit a supervisor or appointing authority from disciplining employees for two

separate and distinct types of conduct.           Nothing suggests that the individuals

enumerated in § 105.055.1 are also applicable to § 105.055.2. Accordingly, the trial

court erred in granting summary judgment on the basis that complaints made only to

supervisors are not "disclosures" as a matter of law. Point granted.

      In her second point, Appellant contends the trial court erred in finding that the

information disclosed was not protected under § 105.055. Section 105.055.2 requires
                                         11

                                              1
that the employee reasonably believes the disclosed information evidences "(a) [a]

violation of any law, rule or regulation; or (b) [m]ismanagement, a gross waste of funds

or abuse of authority, or a substantial and specific danger to public health or safety, if

the disclosure is not specifically prohibited by law[.]" § 105.055.2(1)(a)-(b). Therefore,

to be entitled to relief under the statute, the employee must disclose information he or

she reasonably believes evidences (1) a violation of any law, rule, or regulation, (2)

mismanagement, (3) a gross waste of funds, (4) a gross abuse of authority, or (5) a

substantial and specific danger to public health or safety.

       The trial court determined that Respondents committed no misconduct and, even

if they did, "it was de minimus and not within the scope of the statute's protections as a

matter of law." In doing so, the trial court focused upon the fact that there was no

specific law, rule, or regulation that prohibited Respondents from reviewing and revising

inspection reports or instructing a subordinate employee on how to cite rule violations.

The trial court is correct that that there is no law, rule, or regulation specifically

prohibiting Respondents' conduct. Additionally, as Respondents point out, Appellant

fails to allege in her petition any law, rule, or regulation that her disclosures reasonably

evidence was violated.

       Nevertheless, the trial court failed to address Appellant's allegations that her

disclosures evidenced a danger to the public's health and safety. Appellant clearly

alleges in her petition that the removal of the rule violations and the instruction not to

cite rule violations at Werner's facilities put the children at risk and misrepresented to


                                            12

                                                 2
the public that Werner's facilities were in compliance with childcare facility rules and

regulations.

       As Appellant points out, § 210.221(3) gives the Department the power and the

duty to "promulgate and issue rules and regulations the department deems necessary

or proper in order to establish standards of service and care to be rendered by such

licensees to children." Section 210.221(2) further provides that the Department has a

duty to "inspect the conditions of the homes and other places in which the applicant

operates a child-care facility . . . [and to] deny, suspend, place on probation or revoke

the license of such persons as fail to obey . . . the rules and regulations made by the

department[.]" Thus, the Department has a duty to promulgate rules and regulations

regarding childcare facilities and to deny, suspend, place on probation or revoke the

license of such persons that fail to obey those rules and regulations.

       If the Department removes violations from inspection reports and cites only

obvious safety violations, it could result in the Department failing to suspend, revoke, or

place on probation childcare facilities that fail to meet the Department's established

standards of service and care to children. There is evidence in the record that the

purpose of the Department's rules and regulations is to protect the children in Missouri

childcare facilities.   There is further evidence in the record that failing to cite rule

violations has the potential to put children's safety at risk. Thus, it can be inferred from

the evidence that if the Department fails to cite rule violations at Werner's facilities, then

the safety of children at those facilities is potentially at risk. Accordingly, it was not

unreasonable for Appellant to believe that her disclosure regarding Cheshier's directive
                                           13

                                                3
to cite only obvious safety concerns at Werner's facilities evidenced a specific threat to

public safety.

          Moreover, there is evidence in the record to support the belief that removal of

rule violations from inspection reports has the potential to put children at risk. One of

the violations removed from the Apple Tree Academy inspection report was that there

was grass and bare soil, not impact-absorbing material, in the "fall-zone" under the

outdoor playground equipment. See 19 C.S.R. § 30-62.082(6)(A)5 ("The fall-zone area

under and around outdoor equipment where children might fall and be injured shall be

covered with impact-absorbing materials which will effectively cushion the fall of a child);

19 C.S.R. § 30-62.082(6)(A)8 ("Concrete, asphalt, carpet, grass or bare soil is not an

acceptable surface under outdoor equipment from which children might fall and be

injured"). Evidence in the record indicates that, by removing such a rule violation from

an inspection report, the facility could continue to operate without implementing the

material required under the Department's rules and regulations.                  Again, the

Department's rules and regulations are intended to protect children in Missouri childcare

facilities. Therefore, one can infer from the record that the removal of rule violations

from inspection reports has the potential to put the safety of children in those facilities at

risk.

          Respondents aver that Appellant could not have reasonably believed her

disclosures evidenced a specific and substantial threat to public safety because her

complaints were merely a concern for the Department, not for the children's or public's

safety.     They further contend that the disclosures amounted to a simple policy dispute
                                              14

                                                4
between Appellant and her supervisors about how to apply the Department's rules and

regulations consistently. As previously discussed, there is evidence in the record to

support Appellant's allegations that she reasonably believed her disclosures evidenced

a threat to public safety. While Respondents' arguments pertain to whether Appellant's

disclosures are protected under the statute, they do not entitle Respondents to

judgment as a matter of law. Rather, they reflect that there are genuine issues of

material fact that must be decided by the trier of fact, specifically whether Appellant

reasonably believed her disclosures evidenced a specific and substantial threat to

public safety. Accordingly, the trial court erred in finding that Appellant failed to prove

her disclosures were protected under § 105.055 as a matter of law. Point granted.9

        In her third point, Appellant contends that the trial court erroneously concluded

that she had to exhaust the administrative remedy set forth under § 105.055.5 before

she was entitled to bring this civil suit pursuant to § 105.055.7. In concluding that

9
   Respondents further cite to Margiotta v. Christian Hospital Northeast Northwest, 315 S.W.3d 342
(Mo. banc 2010), for the proposition that Appellant failed to disclose specific threats to public safety.
However, unlike the present action, Margiotta involves a Missouri common law wrongful discharge action,
which requires a plaintiff to plead and prove elements not required under the plain language of § 105.055.
In Margiotta, a hospital employee filed a common law wrongful discharge action on the basis that he was
fired for continuously reporting safety violations to his supervisors. Id. at 345. In support of his claims,
the employee cited to two regulations, one of which provided that "[t]he patient has the right to receive
care in a safe setting" and the other, which provided that "[a]ny safety hazard or threat to the general
safety of patients, staff, or the public shall be corrected." Id. at 348 (internal quotation omitted). The
Missouri Supreme Court concluded that the regulations cited by the employee failed to specifically
proscribe the conduct the employee reported and were too vague to support a wrongful discharge action.
Id. In reaching its conclusion, the Court explained that common law wrongful discharge claims "must be
based on a constitutional provision, a statute, a regulation based on a statute or a rule promulgated by a
governmental body." Id. at 346. The "pertinent inquiry" in a wrongful discharge case is "whether the
authority clearly prohibits the conduct at issue in the action." Id. at 347. Such is not the pertinent
question in statutory whistleblower claims under § 105.055. Rather, plaintiffs must establish only that "the
employee reasonably believes" his or her disclosure "evidences: (a) [a] violation of any law, rule or
regulation; or (b) [m]ismanagement, a gross waste of funds or abuse of authority, or a substantial and
specific danger to public health or safety, if the disclosure is not specifically prohibited by law[.]" §
105.055.2(1)(a)-(b). Accordingly, Respondents' reliance upon Margiotta is misplaced.
                                                    15

                                                         5
Appellant must seek an administrative appeal prior to filing a civil suit, the trial court

focused on the "[i]n addition to" language in § 105.055.7(1), which provides: "In addition

to the remedies in [§ 105.055.5],10 a person who alleges a violation of this section may

bring a civil action for damages within ninety days after the occurrence of the alleged

violation."

        The trial court reasoned that such language "must mean a supplement to relief

an employee is already pursuing. Thus, where an employee . . . elects not to pursue

administrative relief, there is no remedy for [a] civil action to be '[i]n addition to.'" The "in

addition to" language, however, merely indicates that, besides the remedies set forth in

§ 105.055.5, a plaintiff may file a civil action alleging a § 105.055 violation. Thus, §

105.055.7 creates an additional remedy available under the statute.11

        Moreover, nothing in § 105.055.5 suggests that an employee must seek

administrative relief before pursuing a civil action. Rather, the section provides that the

"employee may file an administrative appeal whenever the employee alleges that

disciplinary action was taken against the employee in violation of [§ 105.055]."                             §

105.055.5 (emphasis added). Thus, the trial court erred in concluding that Respondents

were entitled to summary judgment because Appellant failed to seek administrative

relief prior to filing this civil action. Point granted.


10
   Section 105.055.7(1) actually states "[i]n addition to the remedies in subsection 6 of this section . . . ."
Subsection 6, however, provides: "Each state agency shall prominently post a copy of this section in
locations where it can reasonably be expected to come to the attention of all employees of the agency." §
105.055.6. Thus, as the parties note and agree, the legislature likely intended to refer to subsection 5,
which pertains to administrative appeals.
11
   It should be noted that, prior to 2004, § 105.055.5 provided the only remedy available to employees
alleging violations of the statute.
                                                     16

                                                          6
        Finally, in her fourth point, Appellant avers that the trial court erred in finding that

she is limited to a claim for non-economic damages as a matter of law. The trial court

determined that Appellant "waived her claim for damages beyond non-economic

damages by failing to pursue her administrative appeal."                However, as previously

explained, Appellant was not required to file an administrative appeal prior to bringing

this civil action.

        Thus, Appellant is entitled to the remedies provided for under § 105.055.7.

Section 105.055.7(4) provides: "A court, in rendering a judgment in an action brought

pursuant to this section, shall order, as the court considers appropriate, actual

damages, and may also award the complainant all or a portion of the costs of litigation,

including reasonable attorney fees." Appellant, therefore, is entitled to recover actual

damages12 as well as litigation costs and attorney fees. Thus, the trial court erred in

granting summary judgment on the basis that Appellant is limited to recovery of non-

economic actual damages.

        To the extent Appellant contends she is entitled to equitable relief, such as

reinstatement, such remedy is not provided for in the statute and, thus, is unavailable to

Appellant.    See Sanders v. Ahmed, 364 S.W.3d 195, 205 (Mo. banc 2012) ("The

General Assembly has the right to create causes of action and to prescribe their

remedies."). Accordingly, the trial court correctly determined Appellant is not entitled to

equitable relief under the statute. Point denied in part and granted in part.


12
  Actual damages are the "amount awarded to a complainant to compensate for a proven injury or loss;
damages that repay actual losses." Black's Law Dictionary 445 (9th ed. 2009).
                                                17

                                                     7
       In sum, the trial court correctly determined that Appellant is not entitled to

equitable relief under § 105.055. However, the trial court erroneously concluded that

Appellant failed to establish that she was entitled to relief under the statute as a matter

of law and, therefore, erred in granting summary judgment in Respondents' favor. Thus,

we reverse the trial court's judgment and remand the case for further proceedings

consistent with this opinion.




                                                     ________________________________
                                                     Joseph M. Ellis, Judge
All concur.




                                            18

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