Whistleblower’s win could challenge law’s religious exemption

A modest verdict for a fired Springfield nurse could set up a constitutional challenge to the Missouri legislature’s recent overhaul of whistleblower laws — if the defendant hospital ultimately appeals it.

A Green County jury on Oct. 21 sided with plaintiff Christi Hashagen, who was terminated as a psychiatric evaluation nurse at Mercy Hospital on Jan. 3, 2019. However, jurors awarded Hashagen just $30,000 and declined to award punitive damages.

Hashagen alleged she was terminated for having reported safety violations and dangerous conditions for staff and patients, and that she’d been punished for familiarizing herself with a patient’s chart before treating him. The hospital argued that Hashagen had accessed more of the minor patient’s file than necessary, and that she’d spoken unprofessionally with a director of another facility.

The claim went to trial after a mountain of briefings from the plaintiff and the defense on whether Hashagen’s case could proceed at all. 

Until 2017, Missouri courts recognized a common law cause of action for employees who alleged they were fired for reporting their employer for violations of law or public policy. That cause of action — set out in a trio of cases the Missouri Supreme Court issued 2010 — existed as an exception to the general principle that at-will workers can be fired for any reason or no reason.

State lawmakers sought to displace those rulings with the Whistleblowers’ Protection Act, which codifies the right to bring such suits but also limits the damages that can be recovered and requires the employee to show that the discrimination was the “motivating factor” behind the adverse-employment action.

The new law also exempts a number of entities, including those owned or operated by a religious or sectarian organization. The Mercy Hospital system is run by the St. Louis-based Sisters of Mercy, and attorneys for the hospital argued that the 2017 law pre-empted the plaintiff’s claim entirely.

Kate Millington of Millington, Glass & Love, an attorney for Hashagen, argued that the new law is unconstitutional, both because it singles out religious organizations for special treatment and because it violates the right to a trial by jury. Even if the law passed muster, she argued, Mercy could still be sued under the common law. 

“Any other construction of the law would result in corporations like Mercy Hospital being totally immune to any liability whatsoever for unlawful employment practices, under all circumstances,” she wrote in a motion. “That construction and application of this statute is untenable, as a marked departure from hundreds of years of well-established law, both statutory and court created.”

But Tina Fowler of Ellis, Ellis, Hammons & Johnson, an attorney for the hospital, argued that it made no sense to subject a religious hospital to punitive damages while limiting such penalties against large businesses.

“It would be absurd to conclude the legislature wanted to single out religious organizations [and other exempted entities] for tougher treatment and more drastic penalties, as Hashagen suggests,” she wrote. “Such a result does not make sense and contravenes the legislature’s clear intent to displace a common law remedy with a more limited statutory remedy.”

In a 2020 order, Judge Michael Cordonnier declined to strike down the statute or to grant the hospital complete immunity, but he allowed the case to proceed under the common law.

Millington said any appeal would go directly to the Missouri Supreme Court, as it would challenge the validity of a state statute. She said she would argue that the whistleblower statute violates the U.S Constitution’s establishment and equal protection clauses, in that it gives preferential consideration to a religious organization.

Yet despite having lost on its claim of immunity, it’s not yet clear if the hospital will appeal. The hospital has filed post-trial motions to throw out the verdict, but in an interview Fowler said no decision had been made on what to do if those are unsuccessful. Not only is the verdict small, she said, the plaintiff won’t be able to seek an award of attorneys’ fees, as could have occurred had it been brought under a statutory cause of action.

“It’s a huge win for us, regardless of whether we appeal it,” she said.

Millington, despite having technically prevailed at trial, said she hopes the defense appeals.

“This is an issue that affects every employee in the state one way or the other, and it will have a huge impact on future employment cases,” she said. “It’s important that we get some clarification from the Missouri Supreme Court. I hope it happens in this case.” 

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