## Facts

- Michelle Fleshner worked as an at-will employee for Pepose Vision Institute, P.C. (PVI), a refractive surgery practice.
- In 2003, the U.S. Department of Labor (DOL) investigated PVI for possible overtime violations.
- A DOL investigator contacted Fleshner at home, and she provided information about employee work hours.
- Fleshner reported the call to her supervisor the next day; he questioned her about what she told DOL and reacted negatively.
- Later that day, management discussed terminating Fleshner, and she was fired the following day and escorted out.
- Fleshner sued alleging wrongful discharge in violation of public policy for retaliating against her cooperation with the DOL.
- A jury returned a verdict for Fleshner, awarding $30,000 in actual damages and $95,000 in punitive damages.
- After trial, PVI sought a new trial based on juror misconduct; juror affidavits alleged another juror made anti-Semitic remarks about a key defense witness during deliberations.
- The trial court denied the new-trial motion without an evidentiary hearing.
- PVI also challenged the causation instruction, arguing the jury should have been required to find Fleshner’s protected conduct was the exclusive cause of her discharge.

## Issues

1. Whether the trial court erred by denying a new-trial motion without an evidentiary hearing when juror affidavits alleged deliberation-room statements showing religious or ethnic bias against a material witness.
2. Whether a public-policy wrongful-discharge claim requires proof that protected conduct was the exclusive cause of discharge, or only a contributing factor, and whether the causation instruction was prejudicially erroneous.

## Decision

- The Supreme Court of Missouri reversed and remanded for a new trial.
- The court held the trial court erred by refusing to conduct an evidentiary hearing on credible allegations that a juror made anti-Semitic statements during deliberations.
- The court held the proper causation standard for Missouri public-policy wrongful discharge is “contributing factor,” not “exclusive cause.”
- The court found PVI did not show prejudice from the causation instruction used in this trial, so the instructional issue did not independently require reversal.

## Legal Principles

- Allegations, supported by juror affidavits, that a juror made deliberation-room statements evincing ethnic or religious bias against a party or material witness require an evidentiary hearing; summary denial violates the right to an impartial jury and equal protection.
- In Missouri public-policy wrongful-discharge claims, the employee must prove the protected conduct was a contributing factor in the discharge decision; it need not be the sole or exclusive cause.
- Trial courts should instruct juries using a modified version of MAI 31.24 reflecting the contributing-factor standard in public-policy wrongful-discharge cases until a specific approved instruction is adopted.

## Conclusion

The court ordered a new trial because the trial court failed to investigate sworn allegations of religious bias during deliberations, and it clarified that retaliation-based wrongful discharge under Missouri public policy requires proof only that protected activity contributed to the termination decision.


Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81 (Mo. 2010) (en banc)