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IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT
JOHN TEMPLEMIRE, Appellant, v. ) ) ) ) ) ) ) ) ) )

WD74681 OPINION FILED: December 26, 2012

W&M WELDING, INC., Respondent.

Appeal from the Circuit Court of Pettis County, Missouri The Honorable Robert L. Koffman, Judge Before Division Two: Lisa White Hardwick, Presiding Judge, and James M. Smart, Jr., and Karen King Mitchell, Judges John Templemire appeals a jury verdict in favor of his former employer, W&M Welding, Inc., on Templemires claim of retaliatory discharge in violation of section 287.7801 of the Workers Compensation Act. Templemire raises two claims of instructional error. First, he argues that the verdict-directors requirement that Templemires workers compensation claim was the "exclusive factor" in his employers decision to terminate him is contrary to the law, and he should have been entitled to relief if the jury found that his workers compensation claim was merely a "contributing factor." Second, he argues that, in light of the verdict-directors use of

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Statutory citations are to RSMo 2000, unless otherwise noted.

"exclusive factor" language, the jurors should have received a pretext instruction advising them that they could find exclusive causation if the employers claimed justification for termination was merely a pretext and its true reason was retaliation for Templemire exercising his workers compensation rights. Finding no error, we affirm. Factual Background2 Templemire began working for W&M Welding ("employer") on October 10, 2005. Templemires job duties consisted of painting, driving trucks, washing parts in the wash bay, and general labor. On January 9, 2006, Templemire suffered a severe injury when a large beam that he was helping another worker move fell on and crushed his foot. Templemire was immediately taken to the emergency room, and he thereafter received surgery and ongoing treatment for his foot. He subsequently filed a workers compensation claim based upon the injury, and he received benefits. Following his injury, Templemire was off work for three to three and one-half weeks. When he returned to work, his doctors placed him on various restrictions, which

included taking breaks for fifteen minutes out of every hour to elevate and rest his foot. His employer placed him on light duty by assigning him to be a tool room assistant. During the entire tenure of his employment, Templemire had only one disciplinary writeup, and that was for failing to wear a paint mask in the paint booth. This write-up occurred after Templemires injury. Templemire was generally regarded as a good worker and a nice guy by his co-workers and supervisors. On November 29, 2006, Templemire arrived at work around 6:45 a.m. Gary McMullin, the owner of the company, had received a request from a customer to have a railing painted and ready to pick up by 4:30 that afternoon. Before the railing could be painted, it had to be washed.

When reviewing claims involving instructional error, "we view the evidence and inferences that may be drawn therefrom in the light most favorable to the submission of the instruction." Mehrer v. Diagnostic Imaging Ctr., P.C., 157 S.W.3d 315, 323 (Mo. App. W.D. 2005).

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Nick Twenter, Templemires supervisor, advised him that later on that day, there would be a railing in the wash bay that Templemire needed to wash, but it was not quite ready yet that morning. Twenter assigned Templemire to take several trucks to Bryant Motors for inspections until the railing was ready to be washed. Templemire took three different trucks to Bryant Motors, with the last one being dropped off just before the lunch hour. After Templemire returned from dropping off the third truck, Twenter sent him out to a job site to deliver some materials. After that, another supervisor sent Templemire to pick up some tools, and

Templemire returned around 12:30 p.m. After he returned, Templemire cut some material for a customer, and around 1:50 p.m., he headed out of the tool room toward the wash bay to wash the railing. Before reaching the wash bay, Templemire stopped to rest his foot. At the same time, McMullin approached Templemire and said, "Why isnt that ,,Fing rail done?" Templemire advised McMullin that the rail had just arrived in the bay. McMullin responded by saying, "I dont give an ,,F. I wanted the ,,Fing thing done, and you didnt do it, so get out the ,,Fing door." Templemire reminded McMullin of his need to elevate his foot, but McMullin told him again to "get out the ,,Fing door." Templemire asked why McMullin was firing him, and McMullin replied, "because I wanted the ,,Fing railing done, and you havent washed the ,,Fing railing." Templemire asked McMullin, "[a]re you sure you want to do that, because Im going to go home and call workmans comp?" McMullin said, "I dont give an ,,F what you do, this is my ,,Fing place." Templemire then left and contacted Liz Gragg, the insurance adjuster on his workers compensation claim. Following her conversation with Templemire, Gragg contacted McMullin to discuss Templemires termination. McMullin advised Gragg that he told Templemire to wash some parts, Templemire refused, and McMullin fired him. Gragg relayed Templemires information that he was going to take a break and then wash the rail, but McMullin interrupted her to say that 3

Templemire "takes breaks at 3PM." Gragg reminded McMullin of Templemires need for more frequent breaks, and McMullin went on a tirade about Templemire "milking his injury," and indicated that Templemire could "sue him for whatever reason, thats what he pays premiums for and the attorneys." Templemire subsequently filed a lawsuit against his employer under section 287.780, alleging workers compensation retaliation. At trial, McMullin testified to a different series of events on November 29, 2006. McMullin indicated that he had placed the rail into the wash bay by 7:00 a.m., directed Templemire to wash it immediately and not allow any of his supervisors to assign him another task before washing the rail, and then went to a meeting at 7:30. McMullin testified that when he returned around 9:30 a.m., the railing still had not been washed, and he found Templemire taking a break. McMullin indicated that Templemire told him he needed a break for his foot, and if McMullin didnt like it, he should call Templemires doctor and take it up with him. McMullin advised Templemire that he didnt work for Templemires doctor and that Templemire was terminated. insubordination. Templemire presented evidence that McMullin had previously referred to injured employees as "whiners," and a witness testified that he had been a past W&M Welding employee who also filed a workers compensation claim and was later terminated. Templemire further presented evidence about another employee who had multiple disciplinary write-ups and a drug problem but had not been terminated; and this employee had never filed a workers compensation claim. Another witness testified that he overheard Templemires conversation with McMullin on the day of Templemires termination; he testified that McMullin yelled at Templemire, saying, "[a]ll you do is sit on your ass and draw my money." Templemire further McMullin testified that he discharged Templemire for

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presented evidence that the only disciplinary write-up in his file was received after his injury and was based upon a type of violation for which other employees did not receive write-ups. Before and during the instruction conference, Templemire argued that the applicable MAI verdict-director misstated the law insofar as it required a finding that his filing a workers compensation claim was the exclusive factor in his employers decision to terminate him. Templemire offered an alternative verdict-director indicating that the jury could find in his favor if the workers compensation claim was merely a contributing factor to his employers decision. In the alternative, Templemire offered a pretext instruction, which advised the jury that it could find exclusive causation if it found that his employers stated reason for Templemires termination was not the true reason, but was merely a pretext. The court refused both the alternative verdict-director and the pretext instruction. During closing argument, both Templemire and his employer focused on the true reason for Templemires discharge, directing the jury that that was really the only question they needed to decide. The jury found in favor of W&M Welding. Templemire appeals. Standard of Review Both of Templemires points on appeal argue error in the manner in which the jury was instructed. Rule 70.02(a)3 directs that jury instructions "shall be given or refused by the court according to the law and the evidence in the case." The word, "shall," as used in Rule 70.02(a) does not permit discretion on the part of the trial judge if the proffered instruction is required by law and supported by the evidence. McCullough v. Commerce Bank, 349 S.W.3d 389, 397 (Mo. App. W.D. 2011). An instruction is required by law under three circumstances: (1) if it is in the Missouri Approved Instructions, Rule 70.02(b); (2) if it is not in MAI but is otherwise required

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Rule citations are to Missouri Court Rules (2012), unless otherwise noted.

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by statute, In re Care and Treatment of Lewis v. State, 152 S.W.3d 325, 329-30 (Mo. App. W.D. 2004) (applying

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