# Mucci v. St. Francois County Ambulance District

> District Court, E.D. Missouri · November 20, 2019

URL: https://www.frixlaw.com/law-library/cases/10232134

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** November 20, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10232134

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

)
MARC MUCCI, )
)
Plaintiff, )
) Case No. 4:19-CV-01868-NCC
v. )
)
ST. FRANCOIS COUNTY )
AMBULANCE DISTRICT, )
DAVID TETRAULT, DAVID KATER, )
SONJA HAMPTON, SUSIE WEBB, )
RON KENNON, LAURA MORAN, )
and STAN SOUDEN, )
)
Defendants. )

MEMORANDUM AND ORDER
This matter is before the Court on Defendants St. Francois County Ambulance District,
David Tetrault, David Kater, Sonja Hampton, Susie Webb, Ron Kennon, Laura Moran, and Stan
Souden’s (collectively “Defendants”) Motion to Dismiss (Doc. 13). The Motion is fully briefed
and ready for disposition. The parties have consented to the jurisdiction of the undersigned
United States Magistrate Judge pursuant to 28 U.S.C. 636(c)(1) (Doc. 17). For the following
reasons, Defendants’ Motion will be GRANTED, in part and DENIED, in part.
I. Legal Standard for a Motion to Dismiss
Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Federal Rule of Civil Procedure 12(b)(6) provides
for a motion to dismiss based on the “failure to state a claim upon which relief can be granted.”
To survive a motion to dismiss a complaint must show “‘that the pleader is entitled to relief,’ in
order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice” to defeat a motion to dismiss. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “[O]nly a complaint that states a
plausible claim for relief survives a motion to dismiss.” Id. at 679 (citing Twombly, 550 U.S. at

556). The pleading standard of Rule 8 “does not require ‘detailed factual allegations,’ but it
demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678
(quoting Twombly, 550 U.S. at 555). “When ruling on a defendant’s motion to dismiss, a judge
must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus,
551 U.S. 89, 94 (2007). All reasonable inferences from the complaint must be drawn in favor of
the nonmoving party. Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 1999).
II. Background
On July 1, 2019, Plaintiff Marc Mucci (“Mucci”) filed this six-count action pursuant to
42 U.S.C. § 1983, the Missouri Constitution, and Missouri state law against St. Francois County

Ambulance District (“the District”) and David Tetrault, David Kater, Sonja Hampton, Susie
Webb, Ron Kennon, Laura Moran, and Stan Souden (the “Individual Defendants”) (Doc. 1).
David Tetrault (“Tetrault”) is the Administrator of the District (Id. at ¶8). The remaining
Individual Defendants are members of the District’s Board (Id. at ¶¶9-14). The Individual
Defendants are sued in their individual and official capacities. Mucci alleges that he was
wrongfully terminated after speaking at a public meeting of the District’s Board in violation of
his right to free speech (Count I), right to freedom of association (Count II), and rights to free
speech, freedom of assembly/association, and collective bargaining under the Missouri

2
Constitution (Count III). Mucci further alleges that his termination constitutes unlawful
retaliation in violation of the right of freedom of association under Missouri Revised Statute §
105.500, et seq. (Count IV), unlawful disciplinary action in violation of Missouri Revised Statute
§ 105.055, et seq. (Count V), and wrongful discharge in violation of Missouri public policy
(Count VI). Mucci seeks monetary, injunctive and declaratory relief.

The relevant facts, in the light most favorable to Mucci, are as follows. Mucci was
employed by the District as a paramedic. Mucci was, at the time of the events underlying the
current action, and continues to be, through December 31, 2020, the elected President of the
International Association of Fire Fighters, Local 3705 (“the Union”), a labor association
representing the emergency medical technicians and paramedics of the District. At a public
District Board meeting on November 26, 2018, Mucci, acting in his role as President of the
Union, raised several issues to the District’s Board. After this meeting, Mucci was placed on
administrative leave, was forced to undergo a mental health evaluation, and was ultimately
terminated.

On August 30, 2019, Defendants filed the current Motion to Dismiss Counts III, IV, V,
and VI of Mucci’s Complaint (Doc. 12). Defendants assert that Count III fails to state a claim
upon which relief can be granted (Doc. 13 at 2-5). Defendants argue that Count IV fails as a
matter of law and should be dismissed because Mucci cannot bring a civil action for damages
pursuant to Missouri Revised Statute § 105.510 (Id. at 5). Defendants assert that Count V
against the Individual Defendants fails because they are not a “public employer” under Missouri
Revised Statute § 105.055 (Id. at 5-7). Defendants alternatively assert that any claims against the
Individual Defendants in their official capacities are redundant of the claims against the District

3
and should be dismissed (Id. at 7).1 Defendants assert that Count VI fails as a matter of law
under the Whistleblower’s Protection Act (“WPA”) because the WPA preempts the common law
public policy exclusion to the at-will employment doctrine and neither the District or the
Individual Employees are “employer[s]” under the statutory scheme (Id. at 7-8). Defendants
further assert that if the Court were to determine the WPA does not apply to Mucci’s claims then

they fail under the common law because Mucci’s claim against the District would be barred by
sovereign immunity and Mucci’s claims against the Individual Defendants are insufficient
because Missouri courts require an employee-employer relationship to establish a claim under
the public policy exception and the Individual Defendants are not Mucci’s employer (Id. at 9-
10).
III. Analysis
A. Count III: Violations of Missouri Constitutional Law
First, Defendants assert that Count III fails to state a claim upon which relief can be
granted as a matter of law (Doc. 13 at 2-5). In Count III, Mucci alleges the violation of his rights

to free speech and freedom of association under Sections 8 and 9 of Article I of the Missouri
Constitution and to bargain collectively under Section 29 of Article I of the Missouri
Constitution (Doc. 1 at 17-19). Defendants argue that Mucci failed to allege “that any Defendant
passed any law” to infringe Mucci’s right to free speech, that Mucci failed to allege that any
Defendant interfered with Mucci’s right to peaceably assemble in any way, and that Mucci failed
to allege that any Defendant interfered with Mucci’s right organize and bargain collectively

1 Defendants appear to raise this assertion regarding the official capacity claims against
the Individual Defendants as to Count V alone and accordingly the Court will only address the
official capacity argument when addressing Count V.

4
(Doc. 13 at 3). Mucci responds, disclaiming any “tort damages” as to this Count and asserting
that he has properly and sufficiently alleged violations of the Missouri Constitution (Doc. 20 at
5-7).
The Missouri Bill of Rights, encompassed in Article I of the Missouri Constitution,
includes the rights to freedom of speech, peaceable assembly and petition, and organized labor

and collective bargaining. Specifically, under Article I, Section 8 of the Missouri Constitution,
“[N]o law shall be passed impairing the freedom of speech.” Article I, Section 9 provides a right
to assembly, stating, “[T]he people have the right peaceably to assemble for their common good,
and to apply to those invested with the powers of government for redress of grievances by
petition or remonstrance.” The rights to free speech and assembly under Article I, Sections 8 and
9 track the corresponding rights under the First Amendment of the United States Constitution.
See Am. Fed'n of Teachers v. Ledbetter, 387 S.W.3d 360, 364 (Mo. 2012). As such, “[p]ublic
employee speech is protected from retaliation, in certain circumstances, if the speech addresses a
matter of public concern.” Bailey v. Dep’t of Elementary & Secondary Educ., 451 F.3d 514, 518

(8th Cir. 2006). See also Mogard v. City of Milbank, 932 F.3d 1184, 1189 (8th Cir. 2019) (“A
public employee’s speech is protected under the First Amendment if he spoke as a citizen on a
matter of public concern . . . .”) (internal quotation marks omitted). Similarly, a public employee
is authorized to engage in union activities and is protected from retaliation for his associations.
Serv. Employees Int’l Union Local 2000 v. State, 214 S.W.3d 368, 372 (Mo. Ct. App. 2007). A
right to collective bargaining is established in Article I, Section 29 of the Missouri Constitution.
It states, “[t]hat employees shall have the right to organize and to bargain collectively through
representatives of their own choosing.” Section 29 protects an employee from any coercive

5
conduct by the employer, including threats of discharge or changes in compensation, hours of
work and other working conditions, which denies the employee the right to organize and choose
collective bargaining representatives. Quinn v. Buchanan, 298 S.W.2d 413, 417, 418 (Mo. banc
1957).
As a preliminary matter, the Missouri General Assembly has not enacted any law similar

to 42 U.S.C. § 1983 that gives citizens a private cause of action to sue state actors for damages
for violations of the Missouri Constitution. Smith v. Sachse, No. 4:17-CV-2593 SPM, 2018 WL
3159081, at *7 (E.D. Mo. June 28, 2018). See also Moody v. Hicks, 956 S.W.2d 398, 402 (Mo.
Ct. App. 1997) (“[N]o Missouri precedent exists permitting suits for monetary damages by
private individuals resulting from violations of the Missouri Constitution.”); Collins-Camden
P'ship, L.P. v. Cty. of Jefferson, 425 S.W.3d 210, 214 (Mo. Ct. App. 2014) (“No Missouri
precedent exists permitting suits for monetary damages by private individuals resulting from
violations of the Missouri Constitution.”). An exception to this general rule appears to be in the
context of Article I, Section 29 of the Missouri Constitution where the Missouri Supreme Court

has found that a wrongful discharge under this provision entitles an employee to damages.
Ledbetter, 387 S.W.3d at 372 (citing Smith v. Arthur C. Baue Funeral Home, 370 S.W.2d 249,
254 (Mo. 1963)). Regardless, as addressed above, Mucci has specifically disclaimed any
damages as it relates to this count.
Mucci has sufficiently alleged a claim for the violation of his right to free speech, right to
freedom of association/assembly, and right to collective bargaining under the Missouri
Constitution. Mucci alleges that after engaging in protected activity in the form of speech and
assembly on matters of public concern in furtherance of his role in collective bargaining as

6
President of the Union, he was harassed, required to undergo a fitness for duty examination,
placed on administrative leave, and terminated from his employment in retaliation for these
protected activities. It is well-established, as alleged by Mucci, that an employer may not
discharge an employee for engaging in union activities, for speaking on matters of public
concern, or based on the employee’s associations. Strinni v. Mehlville Fire Prot. Dist., 681 F.

Supp. 2d 1052, 1077-78 (E.D. Mo. 2010). Therefore, the Court will dismiss the damages claims
but otherwise deny Defendants’ Motion as to Count III.
B. Count IV: Unlawful Retaliation
Defendants argue that Count IV fails as a matter of law and should be dismissed because
Mucci cannot bring a civil action for damages pursuant to Missouri Revised Statute § 105.510
(Doc. 13 at 5). In response Mucci disclaims any “tort damages” as to this Count but does not
otherwise address Defendants’ assertion that the Count should be dismissed (See Doc. 20).
Neither party addresses whether Mucci can maintain a claim for injunctive relief under this
statutory scheme.

The Court finds that Mucci has failed to sufficiently allege a claim for unlawful
retaliation in Count IV. In this count, Mucci alleges that his termination was unlawful retaliation
in violation of the right of freedom of association under Missouri Revised Statute § 105.500, et
seq. (Doc. 1 at 19-20). Mucci specifically cites to Missouri Revised Statue § 105.510 for the
proposition that a public employee such as Mucci may not be discharged because of his exercise
of his right to join a labor union. Indeed, Missouri Revised Statute § 105.510 states, in relevant
part, “Employees . . . shall have the right to form and join labor organizations. . . . No such
employee shall be discharged . . . because of his exercise of such right. . . .” The statute, created

7
by the “Public Sector Labor Law” in 1965, purports to extend the right of Article I, Section 29 to
certain public employees and establishes the procedure for creating a labor organization and for
collective bargaining. See Indep.-Nat. Educ. Ass’n v. Indep. Sch. Dist., 223 S.W.3d 131, 135-
136 (Mo. 2007) (detailing the statute’s history). The law was passed largely to address the
Missouri Supreme Court’s contrary interpretation of Article I, Section 29 that public employees

were not covered by the constitutional provision. Id. (citing to and overruling City of Springfield
v. Clouse, 206 S.W.2d 539, 542 (Mo. 1947)).2 However, under the statutory framework, as
clarified by modification in August 2018, a right of action separate and apart from a cause raised
under section 29 was not created by the statutory scheme to address the allegedly unlawful
termination of a public employee for exercising his or her right to join a labor organization.
Pursuant to Missouri Revised Statute § 105.595 titled “Civil actions for violations,” “Whenever
it shall appear that . . . any public body or representative of a public body has violated or is about
to violate any of the provisions of sections 105.570 to 105.590, . . . any citizen of the state of
Missouri may bring a civil action for such relief, including injunctive relief, as may be

appropriate.” Sections 105.570 to 105.590 establish the procedure for creating a labor
organization and for collective bargaining. Nichols v. City of Kirksville, 68 F.3d 245, 248 (8th
Cir. 1995) (“The Missouri courts have held, however, that these statutes ‘merely provide a
procedural vehicle for assertion by [public employees] of their constitutional rights to peaceably
assemble and to petition for redress of grievances.’”) (quoting Curators of the University of
Missouri v. Public Service Employees Local No. 45, 520 S.W.2d 54, 58 (Mo. banc 1975)). As

2 In 2007, the Missouri Supreme Court overruled its prior decision, finding that under the
plain language of Article I, Section 29, public employees also have the right to organize and to
bargain collectively. Indep. Sch. Dist., 223 S.W.3d at 137.

8
Mucci does not raise any claims regarding the procedures established by statute for creating a
labor organization or for collective bargaining, Count IV cannot stand alone and must necessarily
fail. Therefore, the Court will grant Defendants’ Motion as to this claim and dismiss Count IV.
C. Count V: Unlawful Disciplinary Action
Defendants assert that Count V against the Individual Defendants fails because the

Individual Defendants are not “public employers” under Missouri Revised Statute § 105.055
(Doc. 13 at 5-7). Defendants alternatively assert that any claims against the Individual
Defendants in their official capacities are redundant of the claims against the District and should
be dismissed (Id. at 7). Conversely, Mucci urges the Court to construe the statutory language to
include the Individual Defendants as agents of the District exerting the Government’s power to
take personnel action against Mucci (Doc. 20 at 8).
The Court finds that Mucci has failed to sufficiently allege a claim for unlawful
disciplinary action in Count V. In this count, Mucci alleges that his termination was unlawful
disciplinary action in violation of Missouri Revised Statue § 105.055 (Doc. 1 at 21-23).

Missouri Revised Statue § 105.055.2 states:
No supervisor or appointing authority of any public employer shall prohibit any
employee of the public employer from discussing the operations of the public employer,
either specifically or generally, with any member of the legislature, state auditor, attorney
general, a prosecuting or circuit attorney, a law enforcement agency, news media, the
public, or any state official or body charged with investigating any alleged misconduct
described in this section.

Mo. Rev. Stat. § 105.055. “[A] person who alleges a violation of this section may bring a civil
action against the public employer for damages within one year after the occurrence of the
alleged violation.” Mo. Rev. Stat. § 105.055.7(1). A “public employer” is defined by the statute

9
as “any state agency or office, the general assembly, any legislative or governing body of the
state, any unit or political subdivision of the state, or any other instrumentality of the state.” Mo.
Rev. Stat. § 105.055.1(3). Mucci cites to Barrett v. Greitens, 542 S.W.3d 370 (Mo. Ct. App.
2017) in support of his assertion that public employers include the Individual Defendants
because they are agents of the District exerting the Government’s power to take personnel action

against Mucci (Doc. 20 at 8). Barrett does not support this proposition and is also inapplicable
to the current situation. In Barrett, the Missouri Court of Appeals determined that a
constitutional provision including the term “the sate and any of its agencies” applies to the Public
Defender. 542 S.W.3d at 381 (Mo. Ct. App. 2017). Mucci correctly notes that the court’s
determination rested in part on the various definitions of “agency” including a definition of
agency as “a person or thing through which power is exerted or an end is achieved:
Instrumentality, Means.” Id. (emphasis omitted). Mucci, however, fails to indicate that the court
also included multiple other definitions of “agency” and was largely, if not exclusively,
concerned with whether a governmental entity, the Public Defender, was an agency under the

constitutional provision at issue. Id. The court concluded that the meaning of the term agency
“includes every entity through which the state acts” and clarified that an agency “is not limited to
executive department administrative agencies.” Id. (emphasis added). Thus, under the plain
language of the statute at issue here, the Court finds that the Individual Defendants are not
“public employers” because they are individuals not entities. Therefore, the Court will grant
Defendant’s Motion as to the Individual Defendants and dismiss them from Count V.
D. Count VI: Wrongful Discharge in Violation of Missouri Public Policy
Defendants assert that Count VI fails as a matter of law because under the WPA, which

10
preempts the common law public policy exclusion to the at-will employment doctrine, neither
the District nor the Individual Defendants are “employer[s]” (Doc. 13 at 7-8). Defendants
further assert that if the Court were to determine the WPA does not apply to Mucci’s claims then
they fail under common law because Mucci’s claim against the District would be barred by
sovereign immunity and Mucci’s claims against the Individual Defendants are barred because

Missouri courts require an employee-employer relationship and the Individual Defendants are
not Mucci’s employer (Id. at 9-10). Mucci asserts that the common law framework for the
public policy exception has not been precluded by the WPA and under that framework, the
public policy exception applies here (Doc. 20 at 9).
The Court finds that Mucci has failed to sufficiently allege a claim for wrongful
discharge in violation of Missouri public policy in Count VI. In Count VI, Mucci alleges that he
was wrongfully discharged in violation of Missouri’s public policy exception to the at-will
employment doctrine (Doc. 1 at 23-24). The general rule in Missouri “is that an at-will
employee may be terminated for any reason or no reason[.]” Fleshner v. Pepose Vision Inst.,

P.C., 304 S.W.3d 81, 92 (Mo. banc 2010). The at-will doctrine is limited in several respects
including by a “very narrowly drawn” public-policy exception, often called the wrongful-
discharge doctrine. Margiotta v. Christian Hosp. Ne. Nw., 315 S.W.3d 342, 346 (Mo. banc
2010). Under the public-policy exception, an at-will employee may not be terminated for
refusing wrongdoing or violations of public policy as expressed in the constitution, statutes,
regulations promulgated pursuant to statute, or rules created by a governmental body. Id. To
prevail on such a Missouri common law whistleblowing action, a plaintiff must demonstrate that:
(1) he reported serious misconduct that constituted a violation of law and of well-established and

11
clearly-mandated public policy; (2) his employer discharged him; and (3) the report “causally
contributed to the discharge.” Yerra v. Mercy Clinic Springfield Cntys., 536 S.W.3d 348, 351
(Mo. Ct. App. 2017) (citing Van Kirk v. Burns McDonnell Eng’g Co., Inc., 484 S.W.3d 840,
844-45 (Mo. Ct. App. 2016)).
Effective August 28, 2017, the WPA provides that it “is intended to codify the existing

common law exceptions to the at-will employment doctrine,” “limit their future expansion by the
courts,” and “provide the exclusive remedy for any and all claims of unlawful employment
practices.” Mo. Rev. Stat. § 285.575.3. The WPA prohibits an employer from discharging an
employee because that employee: (1) “reported to the proper authorities an unlawful act of his or
her employer;” (2) “report[ed] to his or her employer serious misconduct of the employer that
violates a clear mandate of public policy as articulated in a constitutional provision, statute, or
regulation promulgated under statute;” or (3) “refused to carry out a directive issued by his or her
employer that if completed would be a violation of the law.” Mo. Rev. Stat. § 285.575.4. The
WPA defines an “employer” as “an entity that has six or more employees” and excludes “the

state of Missouri or its agencies, instrumentalities, or political subdivisions” including, relevant
in the current action, “an individual employed by an employer.” Mo. Rev. Stat. § 285.575.2(2).
Contrary to Mucci’s assertion, the WPA explicitly replaces the common law cause of
action. Yerra, 536 S.W.3d at 351 n.3; Meehan v. PNC Fin. Servs. Grp., Inc., No. 4:17-CV-2876
PLC, 2018 WL 2117655, at *3 (E.D. Mo. May 8, 2018). As the alleged wrongful discharge and
all of the conduct associated with it occurred after the WPA’s enactment, the WPA preempts the
common law claim. Thus, a claim for wrongful discharge cannot be brought against the District
or the Individual Defendants as they are explicitly excluded from the definition of “employer”

12
under the WPA. State employees are protected from disciplinary action for “whistleblowing”
under a different Missouri statute, Missouri Revised Statute § 105.055.2. Indeed, Mucci raises a
claim pursuant to Missouri Revised Statute § 105.055.2 in Count V, addressed in detail above.
Accordingly, the Court will grant Defendants’ Motion as to this claim and dismiss Count VI.
IV. Conclusion

Accordingly,
IT IS HEREBY ORDERED that Defendants St. Francois County Ambulance District,
David Tetrault, David Kater, Sonja Hampton, Susie Webb, Ron Kennon, Laura Moran, and Stan
Souden’s Motion to Dismiss (Doc. 13) is GRANTED, in part and DENIED, in part.
IT IS FURTHER ORDERED that any claims for damages as to Count III are
DISMISSED.
IT IS FURTHER ORDERED that Count IV and Count VI are DISMISSED.
IT IS FURTHER ORDERED that Count V as to David Tetrault, David Kater, Sonja
Hampton, Susie Webb, Ron Kennon, Laura Moran, and Stan Souden is DISMISSED.

Dated this 20th day of November, 2019.

/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE

13

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10232134. Public record. Not legal advice.