21ST JUDICIAL CIRCUIT Date: ST LOUIS COUNTY Time: CIRCUIT...

21ST JUDICIAL CIRCUIT

ST LOUIS COUNTYCIRCUIT COURT DOCKET SHEET

11-0ct-2011

11:18:39AM

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CC Employmnt Discrmntn 213.111Pet Filed in Circuit Ct

Release/Status ReasonChange Date

JudgePlaintiff

Attorney for PlaintiffDefendant

Attorney for DefendantCo-Counsel for the Defendant

TOM W DE PRIEST JR (23971)DAVID GARAFOLA (@347836)

VICTOR H. ESSEN 11(57629)WEBSTER UNIVERSITY (WBSTRUNIV)

MICHAEL P BURKE(22182)DENNIS C DONNELLY (19613)

JUdge AssignedDIV8

Filing:FILING INFORMATION SHEET

Request FiledSUMMONS REQUEST FOR DEFENDANT - TO SERVE DR. ELIZABETH STROBLE

Pet Filed in Circuit Ct

Summons Issued-CircuitDocument 10: 11-SMCC-1246, for WEBSTER UNIVERSITY. - HAND DELIVERED TO ST LOUISCOUNTY SHERIFFService/Attempt Date: 31-Jan-2011

Summons Personally ServedDocument 10 - 11-SMCC-1246; Served To - WEBSTER UNIVERSITY; Server - STROTHMAN,GLEN; Served Date - 04-FEB-11; Served Time - 00:00:00; Service Type - Territory 24; ReasonDescription - Served; Service Text - LEFT COPY

Order Granting Ext of TimeDeft granted to and including 3/15/11 in which to file responsive pleadings.So Ordered: Tom DePriest, Jr. (3/15/11)

Entry of Appearance FiledFiled By: MICHAEL P BURKE

Entry of Appearance FiledFiled By: DENNIS C DONNELLY

Filing:Scheduling Order and Discovery Schedule filed.copies sent

Settlement Conf ScheduledScheduled For: 13-0ct-2011; 1:00 PM; TOM W DE PRIEST JR; Setting: 0; St Louis County

Answer FiledFiled By: WEBSTER UNIVERSITY


ST LOUIS COUNTY

CIRCUIT COURT DOCKET SHEET

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22-Aug-2011

09-Sep-2011

Motion to DismissOR IN ALTERNATIVE FOR MORE DEFINITE STATEMENTFiled By: WEBSTER UNIVERSITY

13-Jul-2011 Motion Denied

Motion for Extension of TimeFiled By: MICHAEL P BURKE

05-Apr-2011 Order Granting Ext of Time

Order Granting Ext of TimeParties are granted to and including 4/15/11 in which to submit a Joint Proposed Scheduling Order.So Ordered: Tom DePriest, Jr.

Response FiledPIUs Response to Defts Motion to Dismiss or in the Alternative For a More Definite and CertainStatementFiled By: VICTOR H ESSEN

OrderDeft's Motion to Dismiss called, heard and submitted. Parties to file proposed scheduling order. Deftsresponse to pltfs reply memo due 5/10/11 .So Ordered: Tom DePriest, Jr.copies given

Response FiledReply Memorandum in Support of Defts Motion to Dismiss, or, In the Alternative, For a More Definiteand Certain StatementFiled By: MICHAEL P BURKE

Filing:Joint Proposed Scheduling Plan approved and filed.So Ordered: Tom DePriest, Jr.copy sent to attys

Motion for LeavePtlfs Motion for Leave to File First Amended Petition and Proposed First Amended PetitionFiled By: VICTOR H ESSEN

Notice of Hearing FiledNOTICE OF HEARING FOR FRIDAY AUGUST 5,2011 @ 09:00 AM

Motion DeniedDefts Motion to Dismiss, or, in the Alternative, for More Definite and Certain Statement denied per theOrder filed.So Ordered: Tom DePriest, Jr.copies sent

Memorandum FiledDeft's Waiver of Objection to the Filing of Pltfs First Amended Petition. Deft granted to and including8/26/11 in which to respond to the Amended Petition.So Ordered: Tom DePriest, Jr.Filed By: MICHAEL P BURKE

Certificate of Mailing

Certificate of Service


ST LOUIS COUNTY

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Answer FiledTO FIRST AMENDED PETITIONFiled By: WEBSTER UNIVERSITY

IN THE CIRCUIT COURT OF ST. LOUIS COUNTYSTATE OF MISSOURI

The undersigned hereby certifies that true and correct copies of the following

documents were served via first-class mail, postage prepaid, on September 9t\ 2011, to Debbie S.

By: c;lJfMJ4LIf/) rnuuf~Dennis C. Donnelly, # 19613Veronica A. Gioia, #42223One Metropolitan Square211 North Broadway, Suite 3600St. Louis, Missouri 63102Telephone: 314-259-2000Facsimile: 314-259-2020dcdonne llv(a)'bryancave.comvag~oia(q)bryancave.com

Attorneys for DefendantWEBSTER UNIVERSITY

The undersigned hereby certifies that a copy of the foregoing was served via U.S. Mail,postage prepaid, on this 9th day of September, 2011 to:

Debbie S. ChampionVictor H. Essen, IIRYNEARSON, SUESS, SCHNURBUSCH

& CHAMPION, L.L.C.1 S. Memorial Drive, Suite 1800St. Louis, MO 63102


5. The allegations in paragraph 5 of Count I of Plaintiffs First Amended Petition are

too vague and ambiguous to permit a meaningful response and lack sufficient specificity to

ascertain the individuals referenced by the allegations in paragraph 5, and, therefore, Defendant

denies same.

6. The allegations in paragraph 6 of Count I of Plaintiffs First Amended Petition are

too vague and ambiguous, particularly the use of the term "firm", to permit Defendant to

ascertain the substance of the allegation and, therefore, denies the same. Defendant admits that

members of its Board of Trustees are employed and have been employed by entities which are

telecommunications providers to some of the University's operations.

7. The allegations contained in paragraph 7 of Count I of Plaintiff s First Amended

Petition are so vague and ambiguous that Defendant lacks sufficient specificity from which to

make a knowing response, and, therefore, Defendant denies same.


Petition are too vague and ambiguous and lack sufficient specificity from which to make a

knowing response; therefore, Defendant denies same.

9. Defendant states the allegations in paragraph 9 of Count I of Plaintiffs First

Amended Petition are too vague and ambiguous and particularly lack specificity as to time and

place to permit a response and, therefore, Defendant denies same.

10. Defendant states the allegations in paragraph 10 of Count I of Plaintiffs First

Amended Petition are too vague and ambiguous and lack specificity as to time and place to

permit a response and, therefore, Defendant denies same.

11. Defendant admits the former President of the University was compensated

consistent with his Employment Agreement and Separation Agreement with the University. In

all other respects, the allegations are too vague and ambiguous to permit a response and,

therefore, Defendant denies same.

12. Defendant denies the allegations contained paragraph 12 of Count I of Plaintiffs

First Amended Petition.

13. Defendant restates it response to paragraph 12 above.

14. Defendant admits that in the fall of2009, the Chair of the Board of Trustees,

another member of the Board of Trustees, and the then President of the University convened a

meeting with members of the faculty and staff on the University premises to discuss several

topics. Unless expressly admitted, Defendant denies the allegations in paragraph 14 of Count I

of Plaintiffs First Amended Petition.

15. Defendant denies the allegations contained in paragraph 15 of Count I of Plaintiff s






18. Defendant admits that construction plans for facilities to be utilized for Business

School and Science laboratory functions were under consideration in the Fall of2009. At the

same time, additional space had become available in the vicinity of the Webster Groves campus

which caused the appropriate University committees to reevaluate space allocation and the

pending and proposed construction projects and related planning. Unless expressly admitted,

Defendant denies the allegations contained in paragraph 18 of Count I of Plaintiff s First

Amended Petition.


Petition are too vague and ambiguous and lack specificity as to which contracts in which

timeframe to permit Defendant to permit a response and, therefore, Defendant denies same.

20. Defendant states that, in 2009 and 2010, contractorx with which the University

had previously done business, and whose officers were member s of the Board of Trustees,

submitted bids for construction work. At least one contractor also confirmed it would make a

gift to the University. This information came to the attention of the members of the Audit

Committee of the Board of Trustees only after Plaintiff was pressed for relevant information and

an explanation of certain accounting questions for which he had ultimate responsibility. In all

other respects the allegations contained in Paragraph 20 of Count I of Plaintiffs First Amended

Petition are too vague and ambiguous and lack sufficient specificity to permit Defendant to more

fully respond and, therefore, Defendant denies same.


Petition are too vague and ambiguous to permit a response and, therefore, Defendant denies

22. Defendant is without sufficient knowledge as to the specific facts asserted by the

vague and ambiguous allegations contained in paragraph 22 of Count I of Plaintiff s First

Amended Petition and, therefore, Defendant denies same.

23. The allegations contained paragraph 23 of Count I of Plaintiffs First Amended

Petition are too vague and ambiguous to permit a knowing response, except to state that

Plaintiff s only known complaint to the President of the University regarding members of the

Board of Trustees was Plaintiffs stated perception that certain Trustees were too involved in the

oversight of his and other administrator's decisions and actions. Unless expressly admitted,

Defendant denies the allegations contained in paragraph 23 of Plaintiffs First Amended Petition.

24. The allegations contained in paragraph 24 of Count I of Plaintiffs First Amended

Petition are too vague and ambiguous to permit a response and, therefore, Defendant denies

25. Defendant admits the allegations contained in paragraph 25 of Count I of Plaintiff s

First Amended Petition and further states the referenced "concern" about student accounts was

investigated by Garafola over a period of weeks and months during the fall of2009.

26. Defendant admits that, on or about September 14,2009, Garafola assumed

responsibility for the investigation into the matter which had been reported to him by one of his

subordinates in the Finance Department. At some time after, Garafola initiated inquiries and

hired an outside investigator for some parts of the investigation, he informed others at the

University about the alleged fraud on the University. Unless expressly admitted, Defendant

denies the allegations contained in paragraph 26 of Count I of Plaintiffs First Amended Petition.

27. In answer to paragraph 27, Defendant realleges and incorporates its answer to

paragraph 26 set forth hereinabove.

28. Defendant admits the allegations contained in paragraph 28 of Count I of Plaintiff s


29. Defendant admits that some of the processes in place prior to 2010 permitted some

graduate student applicants to be provisionally admitted for University course work subject to

later confirmation of transcript records and other pertinent data. As part of the former

admissions process some graduate applicants' requests for tuition funds and certain living

expenses were also processed subsequent to their applications for admittance to a graduate

program. In one case this process resulted in the fraudulent receipt of funds by an individual in

whose Indictment and subsequent prosecution Webster University fully cooperated \vith federal

authorities. Unless expressly admitted, Defendant denies the allegations contained in Paragraph

29 of Count I of Plaintiff s First Amended Petition.

30. Defendant denies the allegations contained in paragraph 30 of Count I of Plaintiffs


31. Defendant asserts the allegations contained in paragraph 31 of Count I of Plaintiff s

First Amended Petition are too vague and ambiguous as to the alleged time, place, the manner

and details of his alleged communication, to permit a response and, therefore, Defendant denies

same.

32. In answer to paragraph 32, Defendant realleges and incorporates its answer to

paragraph 31 set forth hereinabove.

33. The allegations contained in paragraph 33 of Count I of Plaintiffs First Amended

Petition are too vague and ambiguous to permit a response, and, therefore, Defendant denies

same.


First Amended Petition. Defendant further states the University fully cooperated with all the

Federal agencies investigating this matter, including without limitation, the Departments of

Education, Post Office, and Justice in the course of the government's investigation which had

been initiated by employees who reported directly and indirectly to Plaintiff.




First Amended Petition. Defendant further states a representative of the Department of

Education was informed of the University's investigation and was involved in the same since

October of 2009.

37. Defendant is without sufficient knowledge as to the accuracy of the allegations

contained in paragraph 37 of Count I of Plaintiff's First Amended Petition, and, therefore,

Defendant denies same.

38. Defendant denies the allegations contained in paragraph 38 of Count I of Plaintiff's




40. Defendant admits that from and after the time the investigation of the alleged fraud

commenced, various University Departments, including those for whom the Plaintiff had

oversight, cooperated in developing more comprehensive checks and balances on the graduate

student admissions processes. The latter were reflected in part in an internal auditors report in

2010. Unless expressly admitted, Defendant denies the allegations contained in paragraph 40 of

Count I of Plaintiff's First Amended Petition.

41. Plaintiff was informed on or about Friday, April 28, 2010 that his one year

Appointment Letter with the University for academic year 2009-2010 would expire at the end of

May 2010 and would not be renewed after June the 1st, 2010. Unless expressly admitted,

Defendant denies the allegations contained in paragraph 41 of Count I of Plaintiff's First

Amended Petition.















Defendant denies that Plaintiff is entitled to any of the relief sought in the

WHEREFORE clause following paragraph 48 of Count I of Plaintiff's First Amended Petition.

COUNT II

1. Defendant restates and reincorporates by reference herein its answers to

paragraphs 1 through 48 and to the final paragraph of Count I of Plaintiff's First Amended

Petition, as set forth hereinabove.

2. Defendant states that on April 28, 2010, Plaintiff was informed that his annual

Letter of Appointment would not be renewed upon its expiration on May 31, 2010 and that

Plaintiff would be paid and compensated in salary and benefits through May 31, 2010. Plaintiff

was subsequently paid two additional months of his salary and benefits as well as all the

Vacation and PIO which plaintiff calculated and claimed he was due. Defendant denies any

other allegations contained in paragraph 2 of Count II of Plaintiffs First Amended Petition.

3. Defendant denies the allegations contained in paragraph 3 of Count II of

Plaintiffs First Amended Petition.







7. Defendant denies the aliegations contained in paragraph 7 of Count II of



Plaintiff s First Amended Petition.

9. Defendant admits that, following the departure of its then current President during

the 2007- 2008 Academic year, its Board of Irustees, by and through its pertinent committee,

began a search for a new President some time during the 2008 calendar year.

10. Defendant denies the interim President immediately expressed an interest in being

considered a candidate for the role of President. Only at a later date, after he had participated as

a member of the search committee, did he indicate any interest in being considered as a

candidate. In all other respects, Defendant denies the allegations contained in paragraph 10 of

Count II of Plaintiff s First Amended Petition.



12. Defendant is without sufficient knowledge as to the allegations contained in

paragraph 12 of Count II of Plaintiff s First Amended Petition and, therefore, Defendant denies

13. Defendant states the allegations contained in paragraph 13 of Count II of

Plaintiff s First Amended Petition are too vague and ambiguous to penn it a response and,

therefore, Defendant denies same. Answering further, Defendant states that Dr. Elizabeth

Stroble, Ph.D., officially assumed the Presidency of the University on or about July 1,2009.

14. As to the allegations contained in paragraph 14 of Count II of Plaintiffs First

Amended Petition, Defendant states that sometime in calendar 2009, the position of Chancellor

was created and Dr. Neil George, Ph.D., who had been serving as the interim President of the

Defendant, was appointed to that role. As to all other allegations contained in paragraph 14 of

Count II of Plaintiffs First Amended Petition, Defendant denies same.





17. Defendant is without sufficient knowledge as to the specific allegations contained

in paragraph 17 and further that the substance of the filing of an EEOC "complaint" is a

confidential matter under the applicable law; therefore, Defendant denies the allegations

contained in paragraph 17 of Count II of Plaintiff s First Amended Petition.



19. Defendant is without sufficient knowledge of the allegations contained in

paragraph 19 of Count II of Plaintiff s First Amended Petition and, therefore, denies same.

20. Defendant is without sufficient knowledge of the allegations contained in

paragraph 20 of Count II of Plaintiff s First Amended Petition and, therefore, denies same.

21. Defendant admits that Plaintiff received bonuses along with other administrative

staff and those bonuses were based in large part on the representations made by Plaintiff himself

to his reviewing supervisors in the administration about the quality of his performance. As to

any other allegations in paragraph 21 of Count II of Plaintiff s First Amended Petition,

Defendant denies same.



23. Defendant admits that Plaintiff was approximately that age in April 2010 when he

was informed that his annual Letter of Appointment which expired on May 31st 2010 would not

be renewed.















Defendant further denies that Plaintiff is entitled to any of the relief prayed for in the

WHEREFORE clause stated as a final paragraph to Count II of Plaintiffs First Amended

Petition.

AFFIRMATIVE DEFENSES

Comes now Defendant and for its affirmative defenses states the following:

1. As an affirmative defense, Defendant asserts that Plaintiff s First Amended

Petition fails to state a claim upon which relief can be granted.

2. As an affirmative defense, Defendant asserts the damages allegedly suffered by

Plaintiff has no causal relationship or connection with any act or omission by Defendant.

3. As an affirmative defense, Defendant asserts it reserves the right to assert any

additional defenses which discovery or other investigation may reveal to be appropriate.

4. As an affirmative defense, Defendant asserts all action or non-actions of

Defendant were based upon legitimate nondiscriminatory reasons.

5. As an affirmative defense, Defendant avers that its actions with respect to the

compensation, terms, conditions and privileges of Plaintiff s employment were at all times taken

6. As an affirmative defense, Defendant asserts that Plaintiff's claims are barred

and/or limited, in whole or in part, because the alleged losses and/or damages, if any, sustained

by Plaintiff are too speculative and uncertain.

7 As an affirmative defense, Defendant asserts that Plaintiff's claims are barred, in

whole or in part, by the doctrines of waiver, estoppel, laches, ratification, consent and unclean

hands.

8. As an affirmative defense, Defendant asserts that, based on evidence it has

acquired since the Defendant's legitimate decision not to renew the Plaintiff's Annual Letter of

Appointment when it expired in May 20 10, Defendant would have had additional legitimate,

non-discriminatory predicates for its actions in non renewal.

WHEREFORE, Defendant Webster University denies that Plaintiff is entitled to any

relief as a result of the allegations set forth in Plaintiff's First Amended Petition. Defendant

Webster University requests that judgment be awarded in its favor and that it be awarded its

costs and disbursements incurred in this action, including attorneys' fees, and such other and

further relief as this Court may deem just and proper.

~. -IOf) ac! etk11&1 '.-//~4de~Dennis C. Donnelly, Missouri 'Bar # 19613Michael P. Burke, Missouri Bar # 22182Veronica A. Gioia, Missouri Bar# 42223One Metropolitan Square211 North Broadway, Suite 3600St. Louis, Missouri 63102Telephone: 314-259-2000Facsimile: 314-259-2020


The undersigned hereby certifies that a copy of the foregoing was served via U.S. Mail,postage prepaid, on this 9th day of September, 2011 to:


& CHAMPION, L.L.c.1 S. Memorial Drive, Suite 1800S10Louis, MO 63102

IN THE CIRCUIT COURT OF THE COUNTY OF ST. LOUISSTATE OF MISSOURI \ \ ~UG22. Pl'i '2~41

)))) Cause No: 11SL-CC00313)) Division: 8)))

First Set of Interrogatories Directed to Defendant Webster University was sent via E-Mail in

Word Format and U.S. Mail with postage prepaid this i4~~y of August to:

Mr. Dennis C. DonnellyMr. Michael P. BurkeMs. Veronica A. GioiaOne Metropolitan Square211 North Broadway, Suite 3600St. Louis, MO 63102314-259-2000/314-259-2020 (FAX)[email protected]

RYNEARSON, SUESS,;,:C~USCH & CHAMPION, L.L.C.

BY:~Debbie S. Champion, #38637Victor H. Essen, II, #57629Attorneys for Plaintiff1 S. Memorial Drive, Suite 1800St. Louis, MO 63102(314) 421-4430 / FAX: (314) [email protected]@rssc1aw.com

mailto:[email protected]




DEFENDANT'S WAIVER OF OBJECTION TOTHE FILING OF PLAINTIFF'S FIRST AMENDED PETITIONAND REQUEST FOR ADDITIONAL TIME WITHIN WHICH

TO MOVE, PLEAD OR OTHERWISE ANSWER SAME

f+~', ~(IOC/I\A -1iA /~.

Dennis C. Donnelly, # 19613 .IMichael P. Burke, #22182Veronica A. Gioia, #42223One Metropolitan Square211 NOlih Broadway, Suite 3600S10Louis, Missouri 63102Telephone: 314-259-2000Facsimile: 314-259-2020

ATTORNEYS FOR DEFENDANT,WEBSTER UNIVERSITY

The undersigned hereby certifies that a copy of the foregoing was served via U.S. Mail,postage prepaid, on this 4th day of August, 2011 to:




Entered this 13th day of July, 2011

cc: Debbie ChampionDennis Donnelly

IN THE CIRCUIT COURT OF THE COUNTY OF STlY,gUISSTATE OF MISSOURI VL /2

4}f 1/: 29

Debbie S. Champion,Victor H. Essen, II,Attorneys for Plaintiff1 S. Memorial Drive, Suite 1800St. Louis, MO 63102314-421-4430/ FAX: [email protected]@rssc1aw.com

#38637#57629



The undersigned hereby certifies that a tru~ ~ accurate copy of the foregoing documentwas sent via U.S. Mail with postage prepaid this ~ (lay of July 2011 to:

Mr. Dennis C. DonnellyMr. Michael P. BurkeMs. Veronica A. GioiaOne Metropolitan Square211 North Broadway, Suite 3600S1,Louis, MO 63102314-259-2000 / 314-259-2020 (FAX)

JBYLEAVEIN THE CIRCUIT COURT OF THE COUNTY OF ST. LOUIS

STATE OF MISSOURI 11JULII ~ritl: 30

5. A member of the Board of Trustees of Webster discussed the l~iddingresults with

7. The trustee who discussed the bidding results with the losing firm then informed

university administration that he was allowing the firm to resubmit another bid price.

8. The new bid for the telephone system was significantly below the original best

and final bid without significant technical or equipment changes.

9. Despite the fact that the new bid was still not the low bid, the trustee who had

reopened the bidding process allowed the contract to be awarded to the other Webster board

member's firm.

10. Garafola later voiced his objection of inappropriate board involvement with the

bidding process to the President of Webster because of the conflict of interest in this process.

11. In fall 2009, the Webster community became aware that a former president of

Webster received approximately $1.2 million following his separation from Webster in 2008.

12. That president and Webster had agreed to the separation following the disclosure

of concerns of unethical behavior on the part of the president to the Board of Trustees by

employees through the university's whistle blower system.

13. The board agreed to compensate the president with severance, deferred

compensation, and a "cooperation payment," and the parties agreed not to disclose any

information regarding the separation under significant financial penalties.

14. When news of the compensation to the president was revealed and despite the

non-disclosure requirement, the Chair of the Board of Trustees, another member of the Board of

Trustees, and the then President of Webster held a public forum within the university in which

they misrepresented the nature of the payments to the university as part the resigning President's

retirement plan.

15. Garafola objected to the untrue characterization of the payments and further

argued that the Webster Board of Trustees should not provide any information that included

misrepresentations about the agreed non-disclosure penalties.

16. Garafola further made his objections known to the Trustees and to the President

prior to and after the public forum.

17. The Trustees and the new President were concerned about public relations and

ultimately ignored Garafola's complaints.

18. In fall 2009, the Chair of the Finance Committee of Webster's Board of Trustees

informed Garafola that a previous contract that was competitively bid and awarded with the

approval of the Board for the construction management of two new buildings on Webster's

campus was to be rebid to allow opportunities of other companies to perform the work.

19. The contractor previously awarded the contract was also on the board of Webster.

20. During the new bidding process, Garafola informed the Board that a Trustee had

submitted a construction proposal with a letter announcing a $100,000 gift to Webster.

21. The Board discussed the issue but did not take any action to disqualify the bid.

22. During the Board's Infrastructure Committee meeting to discuss Webster's

evaluation of the construction bids, the Chair of the Infrastructure Committee included a Trustee

who was a stock owner of one of the construction companies that was submitting proposals for

the project to actively participate in the discussions which ultimately influenced and changed the

original recommendation for a contract award to include his company.

23. Throughout this process and following this clearly deficient and inappropriately

influenced bidding process, Garafola repeatedly objected to the President of Webster that this

continued process of board involvement in management decisions which include themselves was

unethical and not in the best interest of Webster University.

24. The complaint was not addressed.

25. In August 2009, Garafola was informed a concern that one member of the

Webster finance team had after a routine audit of student accounts had identified duplicative

student mailing addresses attributed to recently admitted students into Webster's on-line

graduate degree program.

26. When the said information was reported to Garafola he immediately the President

of Webster, verbally informed the Board of Trustees Audit Committee of a potential problem,

and outlined the need for an internal investigation.

27. Upon the recommendation of the President and the Board of Trustees, Garafola

began an investigation of the matter and hired an outside investigator to determine whether a

fraud had been committed.

28. The results of the internal investigation found no employee fraud, but the outside

investigation found that at least seventeen (17) of the students admitted to Webster were inmates

of a South Carolina maximum security prison.

29. The internal investigation also revealed that Webster's admissions process was

allowing the provisional admittance of students without actually verifying personal identity or

obtaining official transcripts and that these students were processed through Webster's financial

aid office to receive tuition and additional living expenses sent to the fraudulent addresses as

refunded federal funds.

30. The internal investigation also determined that the Human Resources Department

had not properly followed through on recent requirement Garafola had implemented to obtain

background checks on existing employees.

31. The investigation also revealed that Webster's financial aid office was failing to

verify that students met the U.S. Department of Educations guidelines which allowed convicted

felons to obtain federally supported student loans.

32. Upon completion of the internal investigation, Garafola reported the various

findings to the Chair of the Audit Committee of the Board of Trustees and received approval to

request the assistance of the Office of the U.S. Postal Inspector to further investigate the matter.

33. During the course of the investigation, Garafola urged that Webster's Enrollment

Management Division to take corrective action to ensure that such fraud could not occur in the

future.

34. Despite that, the President and the Vice President of Enrollment Management

were resistant to the needed changes as they were primarily concerned with the public relations

and reputational impact due to the university improperly accepting criminals.

35. Furthermore, Garafola repeatedly urged the President to report the fraud to the

U.S. Department of Education's Office of Inspector General as required under the rules and

regulations of the Department of Education.

36. In the late spring of that year, the U.S. Postal Inspector informed an inspector

from the U.S. Department of Education of his investigation.

37. Thereafter, the U.S. Department of Education informed Garafola that Webster had

a duty to officially inform the U.S. Department of Education's Office ofInspector General of the

student loan fraud, that the failure of Webster to provide an official notice could like trigger a

u.s. Department of Education audit, and that any continued failure of Webster's procedures to

comply with the U.S. Department of Education guidelines would jeopardize Webster's use of

federal Title IV federal student loan funds.

38. Garafola communicated this to Webster's President, and Webster's President told

Garafola not to make the notification and that the President's Office would be responsible for

reporting to the U.S. Department of Education.

39. Garafola immediately requested Webster's internal auditor to remedy the

outstanding issues of a lack of internal control in the admission process.

40. A procedure was finally developed and discussed in the internal auditor's report

to the Trustee Audit Committee.

41. Shortly thereafter, on or about April 28, 2010, Webster informed Garafola that

Garafola was ternlinated and escorted off the university campus without access to his personal

belongings.

42. Garafola had faithfully performed all of his obligations under his employment.

contract with Webster and subsequently discovered that the university had not complied with the

U.S. Department of Education reporting requirements and had submitted fraudulent audit

statements in its annual compliance report submitted to the federal authorities.

43. Garafola was wrongfully terminated, and his contract was not renewed because

of his efforts to inform Webster's administration and governmental authorities of the fraud

occurring as a result of Webster's improper admissions and financial aid procedures, because of

his efforts to stop and prevent the repeated conflicts of interest practices as outlined herein, and

because he voiced his displeasure of the Board of Trustee's misrepresentations to the community

and their lack of fair dealing in their business practices.

44. Such termination was a violation of public policy.

45. As a direct and proximate result of Webster's wrongful termination of Garafola,

Garafola has suffered a loss of employment and annual compensation of approximately $320,000

plus potential bonuses.


Garafola has suffered damage to his reputation resulting in an inability of Garafola to find new

employment and causing Garafola to lose future earnings.

47. Furthermore, Webster has continued to retaliate against Garafola by making false

statements about Garafola and Garafola's performance while employed with Webster.

48. As direct and proximate result of Webster's efforts to retaliate against Garafola,

Garafola has suffered damage to his reputation resulting in an inability of Garafola to find new

employment and causing Garafola to iose future earnings.

WHEREFORE, Plaintiff David Garafola prays that this Court enter its Judgment in favor

of him and against Defendant Webster University in a fair and reasonable amount to compensate

him for his injuries which exceed Twenty-Five Thousand Dollars ($25,000), and for such other

and further relief this Court deems necessary and proper under the circumstances.

COUNT II - MISSOURI HUMAN RIGHTS ACT

COMES NOW Plaintiff David Garafola, by and through undersigned counsel, and for

Count II of his First Amended Petition against Defendant Webster University, states as follows:

1. Garafola hereby reincorporates and restates by reference the allegations of

paragraphs 1 through 48 of Count I of his First Amended Petition as if fully set forth herein.

2. On April 28, 2010, Webster terminated Garafola.

3. The termination of Garafola violated V.AM.S. § 213.055 (2010) in that Garafola

was terminated as a result of his age.

4. Prior to Garafola's termination, the board of Webster forced a number of upper

level administrators into retirement under circumstances that clearly indicated discriminatory

practices against employees over the age of 50.

5. During the winter of2008, the then president of Webster was forced to resign.

6. The then president was 68 at the time of his forced departure.

7. The then president's forced departure was inconsistent with termination for cause

or wrongdoing in that the then president was allowed to receive his full benefits under his

employment agreement with Webster when the his employment agreement provided for the

forfeiture of his benefits ifhe is terminated for cause and/or wrongdoing.

8. Shortly thereafter, the Chair of the Board of Webster disclosed his intention to

"clean up the old guard" in the administration of Webster.

9. Following the departure, a search for a new president began at Webster.

10. The interim president expressed interest in being considered a candidate for the

role of president.

11. Despite widespread support for the interim president within the university,

comments were made by board members indicating that the interim president was considered an

unacceptable candidate because of his age.

12. The then interim president was 63 at the time.

13. The position of president was ultimately given to a younger candidate.

14. A new role of Chancellor was created for the interim president at Webster which

removed him from almost all responsibility for the administration of Webster.

15. In the first half of 2009, in conversations with incoming President, the Interim

President approached the Vice President of Enrollment Management and forced a retirement at

the age of 62 without formal cause or complaints of poor performance.

16. Webster's new president arrived and annOlmced the retirement of the Vice

President for Academic Affairs despite the fact that the Vice President never announced his

intention to retire.

17. That Vice President subsequently filed an EEOC complaint alleging age

discrimination.

18. Recently, the former Vice President of Information Technology was forced to

resign his position and accept a less prestigious role writing policy for Webster.

19. The former Vice President of Information Technology was 59 at the time.

20. Prior to April 28, 2010, Garafola received no complaints concerning his

performance.

21. In fact, Garafola continued to receive bonuses for his excellent performance.

22. The only explanation for his termination is that Webster discriminated against

him based on his age.

23. Garafola was 54 at the time of his termination.

24. Garafola was in the age range against which Webster had previously

discriminated.

25. Garafola's age was a contributing factor m Webster's decision to terminate

Garafola.

26. As a direct and proximate result of Garafola's termination in violation of

V.A.M.S. § 213.055, Garafola has suffered a loss of employment and annual compensation of

approximately $320,000 plus potential bonuses.

27. As a direct and proximate result of the said violation, Garafola continues to suffer

damage in that he has been unable to find equivalent employment or employment since his

termination.

28. Garafola has complied with the prerequisites to filing suit under the Missouri

Human Rights Act.

29. Garafola filed a complaint with the Missouri Human Rights Commission within

180 days of his termination.

30. Garafola has obtained his right to sue letter from the Missouri Human Rights

Commission. See Exhibit A attached hereto.

WHEREFORE, Plaintiff David Garafola prays that this Court enter its Judgment in favor

of him and against Defendant Webster University in a fair and reasonable amount to compensate.

him for his injuries which exceed Twenty-Five Thousand Dollars ($25,000), and for such other

and further relief this Court deems necessary and proper under the circumstances.

The undersigned hereby certifies that a true and accurate copy of the foregoing documentwas sent via U.S. Mail with postage prepaid this "~~day of July 2011 to:

Mr. Dennis C. DonnellyMr. Michael P. BurkeMs. Veronica A. GioiaOne Metropolitan Square211 North Broadway, Suite 3600St. Louis, MO 63102314-259-2000/314-259-2020 (FAX)

MISSOURI DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS

MISSOURI COMMISSION ON HUMAN RIGHTS

JEREMIAH W. (JAY) NIXONGOVERNOR

LAWRENCE G. REBMANDEPARTMENT DIRECTOR

ALVIN CARTERCOMMISSION CHAIRPERSON

AUSA WARREN PH.D.EXECUTIVE DIRECTOR

David Garafola1005 Devonworth Manor WayTown And Country, MO 63017

RE: David Garafola vs. WEBSTER UNIVERSITYE-10/10-38519 28E-2011-00137C

The Missouri Commission on Human Rights (MCHR) is terminating its proceedings and issuing this notice of your right tosue under the Missouri Human Rights Act because you have requested a notice of your right to sue.

You are hereby notified that you have the right to bring a civil action within 90 days of the date of this letter against therespondent(s) named in the complaint. Such an action may be brought in any state circuit court in any county in which theunlawful discriminatory practice is alleged to have occurred, either before a circuit or associate circuit judge. Not only mustany action brought in court pursuant to this right to sue authorization be filed within 90 days from the date of this letter, anysuch case must also be filed no later than two years after the alleged cause occurred or your reasonable discovery of thealleged cause.

IF YOU DO NOT FILE A CIVIL ACTION IN STATE CIRCUIT COURT RELATING TO THE MATTERS ASSERTED INYOUR COMPLAINT WITHIN 90 DAYS OF THE DATE OF THIS NOTICE (AND WITHIN TWO YEARS OF THE ALLEGEDCAUSE, OR THE DISCOVERY OF THE ALLEGED CAUSE, OF YOUR COMPLAINT), YOUR RIGHT TO SUE IS LOST.

You are also notified that the Executive Director is administratively closing this case and terminating all MCHR proceedingsrelating to your complaint. You may not reinstate this complaint with the MCHR or file a new complaint with the MCHRrelating to the same act or practice, but rather, if you choose to continue to pursue your complaint, you must do so in court asdescribed in this letter. This notice of right to sue has no effect on the suit-filing period of any federal claims.

In addition to the process described above, if any party is aggrieved by this decision of the MCHR, that party may appeal thedecision by filing a petition under § 536.150 of the Revised Statutes of Missouri in state circuit court. Any such petition mustbe filed in the circuit court of Cole County.

EXHIBITP,/

Alisa Warren Ph.D.Executive Director

May 27,2011Date

WEBSTER UNIVERSITY470 East Lockwood Avenue,Saint Louis, MO 63119

Dennis C. Donnelly211 North Broadway, Suite 3600St. Louis, MO 63102-2750

Victor H. Essen, II1 South Memorial Drive, Suite 1800St. Louis, MO 63102

3315 W. TRUMAN BLVD.

PO. Box 1129JEFFERSON CITY, MO 65102-1129

PHONE: 573-751-3325FAX: 573-751-2905

Relay Missouri: 1-800-735-2966 (TOO) 1-800-735-2466 (Voice)www.labor.mo.gov/[email protected]

111 N. 7TH STREET. SUITE 903ST. LOUIS, MO 63101-2100

PHONE: 314-340-7590FAX: 314-340-7238

P.O. Box 1300OZARK,MO 65721-1300

FAX: 417-485-6024

1410 GENES SEE, SUITE 260KANSAS CITY,MO 64102

FAX: 816-889-3582

106 ARTHUR STREETSUITE 0

SIKESTON, MO 63801-5454FAX: 573-472-5321

mailto:www.labor.mo.gov/[email protected]

·-i,/i!h '.~/ 1.-. D .~; yIN THE CIRCUIT COURT OF THE COUNTY OF ST. LOUIS 30

STATE OF MISSOURI \ \ JUL \ i ~Mn:DAVID GARAFOLA, )

.ERK)Plaintiff, )

) Cause No: 11SL-CCOO313vs. )

) Division: 8WEBSTER UNIVERSITY, )

)Defendant. )

PLAINTIFF DAVID GARAFOLA'S MOTION FOR LEAVE TO FILEFIRST AMENDED PETITION

IN THE CIRCUIT COURT OF THE COUNTY OF ST. hWSSTATE OF MISS01f~\)\.. \ \ ~~ , ."

\ .)))))))))

PLAINTIFF DAVID GARAFOLA'S MOTION FOR LEAVE TO FILEFIRST AMENDED PETITION

RYNEARSON. SUE~SC ltJSglKCHAMPION, L.L_.C_. _

.£~7/~De~~#38637Victor H. Essen, II, #57629Attorneys for Plaintiff1 S. Memorial Drive, Suite 1800St. Louis, MO 63102314-421-4430/ FAX: [email protected]@rssclaw.com

The undersigned hereby certifies that a tru~accurate copy of the foregoing documentwas sent via U.S. Mail with postage prepaid this . ay of July 2011 to:

Mr. Dennis C. DonnellyMr. Michael P. BurkeMs. Veronica A. GioiaOne Metropolitan Square211 North Broadway, Suite 3600St. Louis, MO 63102314-259-2000/314-259-2020 (FAX)




designated by January 16,2012, and deposed by February 15,2012.

(ii) All discovery will be completed by March 16, 201i.

The parties believe the estimated length of time to try the case to verdict is five to

'd-»--V-~~"\~{lII . . .

~ { Respectfully submitted,

Rynearson, Suess, Schnurbusch & Bryan Cave LLPChampion, L.L.C.

BY:~'Debbie:Champion

Victor H. Essen, II1 S. Memorial Drive, Suite 1800St. Louis, MO 63102(314) 421-4430 (telephone)(314) 421-4431 (facsimile)[email protected]

Dennis C. Donnelly #19613Michael P. Burke # 22182Veronica A. Gioia # 42223L. Jared Boyd #60838One Metropolitan Square211 North Broadway, Suite 3600St. Louis, Missouri 63102(314) 259-2000 (telephone)(314) 259-2020 (facsimile)[email protected]@bryancave.com

Attorneys for DefendantWebster University





REPLY MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS,OR, IN THE ALTERNATIVE, FOR A MORE DEFINITE AND CERTAIN STATEMENT

was entirely a matter of the University's preference. Plaintiff was never an employee at will, 1/

assert a claim for wrongful discharge. 2/ Fleshner v. Pepose Vision Institute, P.c., 304 S.W.3d

81,92 (Mo. 2010). See also Boyle v. Vista Eyewear, Inc., 700 S.W. 2d 859, 871 (Mo. Ct. App.

Under Missouri law, an employer may discharge an at-will employee for any reason or for no reason at allwithout liability for wrongful discharge. Sivigliano v. Harrah's N. Kan. City Corp., 188 S.W.3d 46, 48 (Mo. Ct.App.2006). The same principle does not apply where the employment relationship is governed by a contractbetween the employer and the employee.

While the Missouri Supreme Court has held a wrongful discharge cause of action may apply equally toboth "at-will" and "contract" employees in certain circumstances, Plaintiffs reliance on Keveney v. MissouriMilitary Academy is misplaced. 304 S.W.3d 98 (Mo. banc 2010). Plaintiff does not fit the parameters that wouldallow an employee, whether at-will or contractual, to pursue a wrongful termination claim. "[T]he wrongfuldischarge action is premised on a contlict between the conditions of employment and constitutional, statutory, orregulatory provisions that are applicable irrespective of the terms of contractual employment." ld at 102. TheMissouri Supreme Court relied on Bovle v. Vista Eyewear, Inc., 700 S.W. 2d 859, 871 (Mo. Ct. App. 1985) indetermining that a wrongful discharge action can be available to a contractual employee where the discharge is "inviolation ofa clear mandate of public policy." Keveney, 304 S.W.3d at 101 (emphasis added).

(4) he or she was discharged, pursuant to (5) the protected activity

(reporting of violations of a provision of law) as a "contributing factor." Fleshner, 304 S.W.3d at

81. Plaintiffs Petition here lacks the requisite specificity required by Missouri case law,

including Fleshner, and for that reason alone should be dismissed. Id.

In his Response to Defendant's Motion, Plaintiff inaccurately claims he has sufficiently

alleged specific violations of public policy on the part of Webster, its officers, and its trustees.

See PI. Resp. at ~~ 6 -9. In fact, Plaintiffs allegations are vague, conclusory, nonspecific, and do

not implicate the necessary constitutional, statutory, or regulatory interests that underlie the

public policy exception that allows an employee to pursue a wrongful discharge claim under

Missouri law. See Petition at ~~ 4-7, 14-21, and 22-37. A wrongful discharge action brought

under the public policy exception must be based on a constitutional provision, a statute, or a

regulation based on a statute or a rule promulgated by a governmental body. Margiotta v.

Christian Hosp. Northeast, 315 S.W.3d 342 (Mo. 2010) (citing Johnson v. McDonnell Douglas

Corp., 745 S.W.2d 661, 663 (Mo. banc 1988)). Absent such explicit authority, a wrongful

discharge action fails as a matter of law. Id. The University is a private corporation and its

corporate bylaws, prescribing fiduciary duties, are not rules promulgated by a governmental body

and cannot serve as the basis for a public policy violation.

In his Response Plaintiff claims there are three alleged violations that Plaintiff reported to

University officials and that resulted in the decision not to renew his employment contract with

the University. See PI. Resp. at ~~ 7-9. The first violation Plaintiff claims to have reported to his

superiors involves the "bidding process" for a new phone system and the alleged manipulation of

this process to favor a company whose president served on the University's Board of Trustees.

See Petition at ~~ 4-7. Significantly, Plaintiff did not allege in his Petition, but now tries to assert,

paragraphs 14 to 21 of the Petition demonstrate "self dealing" and a "breach of the board's)

3) even if Plaintiff had made the allegations he now suggest that he did in his

Petition, he would have been required to state with specificity just what public policy or la1-v was

violated by what specific act of the University.

Lastly, Plaintiff claims he was terminated because he encouraged University officials to

report an enrollment fraud on the University perpetrated by a felon to the U. S. Department of

Education. But, the averments in his Petition are internally inconsistent and devoid of the

required specificity to assert his claim. Plaintiff does not allege that the University failed to

contact the Department of Education in accordance with any regulatory requirement and no

averment as to what specific regulation with which the University allegedly failed to comply.

See Petition at ~~ 22-37. In order to salvage a shred of argument, Plaintiff belatedly conjures up

an alleged violation of 34 C.F.R. §§ 668.31-40 and 668.51-61, which merely requires colleges to

implement procedures to verify a student's eligibility for federal aid. Plaintiff also references 18

U.S.C. §§ 1341-1343 (2011), apparently a statute that pertains to mail fraud. For some unknown

reason, these regulations were not alleged in Plaintiff s Petition. Even if they had been, Plaintiff

still would fail to state a claim pursuant to this alleged violation of the University. Plaintiff is

unable to tie any alleged violation of these regulations to the end of his employment.

In short, Plaintiff s Petition patently lacks the requisite specificity to pass muster under

the Missouri case law, and should be dismissed. In the alternative, Plaintiff should be required to

amend his Petition to state his claim with more specificity including, but not limited to, the

inclusion of allegations specifying the laws, regulations or public policy provision(s) Plaintiff

believes were violated by the University. Also, it must affirmatively appear 'from the face of any

amended Petition that the legal provision(s) in question involves a "clear mandate of public

policy." Bovle v. Vista Eyewear, Inc., 700 S.W. 2d 859, 871 (Mo. Ct. App. 1985). See also

Adolphsen v. Hallmarks Cards, Inc., 907 S.W. 2d 333, 338-39 (Mo. App. W.D. 1995) ("A

petition must specify the legal provision violated by the employer, and it must affirmatively

appear from the face of the petition that the legal provision in question involves a clear mandate

of public policy."); Keveney v. Missouri Military Academy, 304 S.W.3d 98, 103 (Mo. banc

2010) (cited by Plaintiff) ("[ t]o survive a motion to dismiss" on a wrongful discharge claim, a

plaintiff "[has] to plead that he refused to perform an illegal act or act in a manner contrary to

public policy.").

Based on the foregoing and Defendant's Motion to Dismiss brought pursuant to Rule

55.27(a)(6) of the Missouri Rules of Civil Procedure ("Missouri Rules"), Defendant, Webster

University, respectfully moves the Court to dismiss the Plaintiffs Petition in its entirety for his

failure to state a claim for wrongful discharge and/or retaliation. In the alternative, pursuant to

Rule 55.27(d), the University moves for an order requiring Plaintiff to amend his Petition to

more definitely state his claim(s) in accord with Missouri law.

2J~tJ~Dennis C. Donnelly, Missouri Ba # 19613Michael P. Burke, Missouri Bar # 22182Veronica A. Gioia, Missouri Bar# 42223One Metropolitan Square211 North Broadway, Suite 3600St. Louis, Missouri 63102Telephone: 314-259-2000Facsimile: 314-259-2020

Attorneys for Defendant,WEBSTER UNIVERSITY

The undersigned hereby certifies that a copy of the foregoing was served via U.S. Mail,postage prepaid, on this 10th day of May, 2011 to:



CIRCUIT COURTof St. Louis County, Missouri

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f:/LEDIN THE CIRCUIT COURT OF S1. LOUIS COUNTY APR 2 7 201!

STATE OF MISSOURI Q JOANlFJC/'/lrCLi/l1/(,M, GILMER

DAVID GARAFOLA, ) I ~i. 401./") eCIINT)'

Plaintiff, )) CauseNo: 11SL-CC00313

vs. }) Division: 8

WEBSTER UNIVERSITY, ))

Defendant. )

PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS, OR, IN THEALTERNATIVE. FOR A MORE DEFINITE AND CERTAIN STATEMENT

"[t]he wrongful discharge cause of action applies equally to at-will and contract employees.H

Keveney v. Missouri Military Academy, 304 S.W.3d 98, 105 (Mo. bane 2010) (discussing the

application of the public policy exception to contract and at-wilt employees).

5. Therefore, Garafola, even as a contract employee, is entitled to bring a cause of

action for wrongful termination in violation of public policy if he pleads that he was terminated

"for reporting wrongdoing or violations of law to superiors or pUblic authorities." Fleshner v.

Pepose Vision Institute, P.C., 304 S.W.3d 81, 92 (Mo. bane 2010).

6. Second, Garafola has pled specific violations of public policy on the part of

Webster, its officers, and trustees which he reported and attempted to report which led to his

firing.

7. The first violation of public policy which Garafola reported to his superiors is

referred to in paragraphs 4 through 7 of the Petition. In those paragraphs Garafola alleges that

the bidding process for a new phone system was manipulated so that a company, whose president

was on the board of Webster. received the award of the contract for the new phone system. The

allegations of paragraphs 4 through 7 c1eariy layout facts supporting the conclusion that the

Webster board engaged in self dealing that would represent a breach of the board's fiduciary

duty of loyalty to Webster, see Nixon v. Lichtenstein, 959 S.W.2d 854 (Mo. Ct. App. 1997), and

constitute a violation ofV.A.M.S. § 570.030 (2011).

8. A second violation of public policy which Garafola reported to his superiors is

referred to in paragraphs 14 to 21 of the Petition. In those paragraphs Garafola alleges that the

bidding process for the construction of two buildings on the Webster campus was manipulated

by the board to allow a company whose former CFO was a board member of Webster an

opportunity to bid on the project. Again, this self dealing represents a clear breach of the board's

fiduciary duty of loyalty to Webster, Nixon v. Lichtenstein, 959 S.W.2d 854 (Mo. Ct. App.

1997), and constitute a violation ofV.A.M.S. § 570.030 (2011).

9. Third, in. paragraphs 22 through 37 of the Petition, the allegations detail

Garafola's efforts to report Webster's failure to comply with various federal student loan

requirements. Under federal regulation, applicants for federally supported student loans are

required to meet a number of requirements to be eligible to receive loans. See 34 C.F.R §§

668.31-40 (2010). Institutions such as Webster are required under 34 C.F.R. §§ 668.51-61 to

implement procedures that allow them to verify a student's eligibility for those loans_ Here the

allegations of the Petition are clear that Webster was failing to verify student eligibility for loans

and that Webster's procedures were faulty and not in compliance with federal regulations. The

allegations of the Petition clearly state that because of the failure of Webster to comply with its

requirements to verify student eligibility and/or establish an effective procedure for verifying

sttldent eligibility at least seventeen (17) instances of student loan fraud occurred. Furthermore,

fifteen admitted graduate students were felons were incarcerated felons in South Carolina. Not

only had there been clear violations of federal law, but Garafola was specifically directed by the

United States Postal Inspector to report and/or have Webster report the fraud to the United States

Department of Education. hl addition, the activity of the student loan fraud perpetrators

constituted mail fraud under the statutes of the United States. See 18 US.C. §§ 1341-1343

(2011). Clearly, as it relates to the student loan fraud alleged in the Petition. Garafola was

attempting to report clear violations of law to his superiors and the proper authorities.

10. Webster's argument that the Petition should be dismissed seems to ignore the

Garafola has pled facts which support a finding that he was attempting to report clear violations

of state and federal law and that his tenninatioll and/or the failure to renew his contract was a

result of his efforts to report these violations to his superiors and the appropriate authorities.

RYNEARSON. SUESS,SCHNURBUSCH & CHAMPION, L.L.C.

JJmtJDe'6bie S. Champion, #38637VictorH. Essen, II, #57629Attorneys for Plaintiff1 S. Memorial Drive, Suite 1800St. Louis, MO 63102(314) 421-4430/ FAX: (314) [email protected]@[email protected]




Th~ undersi~ed ~ereby certifies t~at a.truS-till!accurate ~opy of the foregoing documentwas sent VIaU.S. Mall wIth postage prepaId thIg-'-~day of Apnl, 2011 to:

Mr. Dennis C. DonnellyMr. Michael P. BurkeMs. Veronica A. GioiaOne Metropolitan Square211 North Broadway, Suite 3600St. Louis, Missouri 63102314-259-2000/314-259-2020 (FAX) '"/ '1 /~l

// .-.~JA';j~~:'·?C::,~cL~L-'-f~:<~//

BY LEAVEIN THE CIRCUIT COURT OF ST. LOUIS CbU~TY . .: lTf

STATE OF MISSOURI II MAR30 PM 3: 02

DEFENDANT'S MOTION FOR ADDITIONAL TIME WITHINWHICH TO SUBMIT A JOINT PROPOSED SCHEDULING ORDER

to the Court's previous notice of March 15t\ advises the Court that the parties are in the process

Accordingly, the parties request to and including April 15th within which to submit a

Dennis C. Donnelly, Missouri BarOne Metropolitan Square211 North Broadway, Suite 3600St. Louis, Missouri 63102Telephone: 314-259-2000Facsimile: 314-259-2020


The undersigned hereby certifies that a copy of the foregoing was served via U.S. Mail,postage prepaid, on this 30th day of March, 2011 to:




8. Defendant denies any and all allegations contained in paragraph 8 of Plaintiffs

Petition.


Petition.


Petition.


Petition.


Petition.


Petition.

14. Defendant denies any and all allegations contained in paragraph 14 of Plaintiff's

Petition.


Petition.


Petition.

17. Defendant denies any and all allegations contained in paragraph 17 of Plaintiff s

Petition.


Petition.


Petition.


Petition.


Petition.


Petition.

23. Defendant admits the allegations contained in paragraph 23 of Plaintiffs Petition.


Petition.

25. Defendant admits the allegations contained in paragraph 25 of Plaintiffs Petition.


Petition.


Petition.


Petition.


Petition.

30. Defendant admits that sometime after September 10,2009 Federal Agencies were

notified the University was "investigating certain enrollment anomalies". Otherwise, defendant

denies any and all allegations contained in paragraph 30 of Plaintiff's Petition.


Petition.


Petition.


Petition.


Petition.


Petition.


Petition.


Petition.


Petition.


Petition.


Petition.


Petition.


Petition.


Petition.


Petition.


Petition.

Defendant denies Plaintiff is entitled to any relief as a result of the allegations raised in

his Petition and the Petition generally, and in particular, denies Plaintiff is entitled to the relief

sought in the WHEREFORE paragraph found at the conclusion of Plaintiffs Petition.

AFFIRlVIATIVE DEFENSES

Comes now defendant and for its affirmative defenses states the following:

1. As an affirmative defense, defendant asserts that plaintiffs Petition fails to state a

claim upon which relief can be granted.

2. As an affirmative defense, defendant asserts the damages allegedly suffered by

plaintiff has no causal relationship or connection with any act or omission by defendant.

3. As an affirmative defense, defendant asserts it reserves the right to assert any

additional defenses which discovery or other investigation may reveal to be appropriate.

4. As an affirmative defense, defendant asserts all action or non-actions of defendant

were based upon legitimate nondiscriminatory reasons.

5. As an affirmative defense, defendant avers that its actions with respect to the

compensation, terms, conditions and privileges of plaintiff s employment were at all times taken

Dennis C. Donnelly, Missouri # 19613Michael P. Burke, Missouri Bar # 22182Veronica A. Gioia, Missouri Bar# 42223One Metropolitan Square211 North Broadway, Suite 3600S1,Louis, Missouri 63102Telephone: 314-259-2000Facsimile: 314-259-2020






DEFENDANT'S MOTION TO DISMISS, OR, IN THE ALTERNATIVE, FOR A MOREDEFINITE AND CERTAIN STATEMENT

be dismissed in its entirety. See Petition at ~~38 - 40. Under Missouri law, an employer may

discharge an at-will employee for any reason or for no reason at all without liability for wrongful

discharge. Sivigliano v. Harrah's N. Kan. City Corp., 188 S.W.3d 46, 48 (Mo. Ct. App. 2006).

The same principle does not apply where the employment relationship is governed by a contract

between the employer and the employee.

4. Plaintiff admits he had a contract with the University which was not renewed.

See Petition at ~~38 - 40. Said contract expired at the end of a specified annual term, and its

renewal was entirely a matter of the University's preference.

5. Even if Plaintiff had not admitted the existence of his employment contract with

the University and was an at-will employee, his Petition is woefully insufficient and should be

dismissed.

6 The Supreme Court of Missouri has only recognized a limited exception to the at-

will employment doctrine known as the "public-policy exception" that allows an at-will

employee to assert a claim for wrongful discharge. Fleshner v. Pepose Vision Institute, P.C., 304

S.W.3d 81, 92 (Mo. 2010). See also Boyle v. Vista Eyewear, Inc., 700 S.W. 2d 859, 871 (Mo.

Ct. App. 1985). A discharge based on reported violations of law or public policy is commonly

referred to as the "whistleblower exception." Porter v. Reardon Machine Co., 962 S.W. 2d 932,

937 (Mo. App. 1998).

7. To state a claim under the whistleblower exception, the employee must plead the

following elements with specificity: (1) he or she reported serious misconduct; (2) which

constitutes a violation of the law; (3) of a well-established and clearly mandated public policy;

and (4) he or she was discharged, pursuant to (5) the protected activity (reporting of violations of

a provision oflaw) as a "contributing factor." Fleslmer, 304 S.W.3d at 81.

8. Most critically, to state a claim under the exception to employment at will

doctrine, Plaintiff must specify the statutory rule or regulatory provision violated by the

employer and it must affirmatively appear from the face of the Petition that the legal provision in

question involves a clear mandate of public policy. Adolphsen v. Hallmark Cards, Inc., 907

S.W. 2d 333, 338-39 (Mo. App. W.D. 1995) (requiring the elements ofa whistleblowing claim to

be pled with particularity). See also Sivigliano, 188 S.W.3d at 49. Plaintiff has failed to alleged

the necessary elements of such a claim.

9. Plaintiffs Petition here lacks the requisite specificity, and should be dismissed.

10. In the alternative, Plaintiff should be required to amend his Petition to state his

claim with more specificity including, but not limited to, the inclusion of allegations specifying

the legal provision(s) Plaintiff believes were violated by the University. Also, it must

affirmatively appear from the face of an amended Petition that the legal provision(s) in question

involves a clear mandate of public policy.

WHEREFORE, Defendant, Webster University, respectfully requests the Court enter its

order dismissing Plaintiff s Petition in its entirety. In the alternative, Defendant requests the

Court enter an order requiring a more definite and certain statement and amendment of Plaintiff s

Petition.

Dennis C. Donnelly, Missouri Bar # 1961Michael P. Burke, Missouri Bar # 22182Veronica A. Gioia, Missouri Bar# 42223One Metropolitan Square211 North Broadway, Suite 3600St. Louis, Missouri 63102Telephone: 314-259-2000Facsimile: 314-259-2020

Attorneys for Defendant,WEBSTER UNIVERSITY




IN THE CIRCUIT COURT OF THE COUNTY OF ST. LOUISSTATE OF MISSOURI

MAR 1" r:, t~

March 15,2011 C ,lOki'IRClJF" _1'.1 M. ("'II .,~

I CltR" ~"< IV,!.:!,'

Cause No. 11SL-CC00313 .t'\, ST. I.OI.i;S 2oUiV

T);

This is to advise you that the above cause has been assigned to Track 1 for disposition inaccordance with the attached Discovery Schedule. The settlement conference is set for October13,2011 at 1:00 p.m. Trial lawyers and clients must be present for the settlement conference.

If you do not concur with the Track 1 designation, contact Division 8 and schedule aconference to discuss scheduling. This Order will be final if not amended within 15 days.

Tom W. DePriest, Jr., JudgeDivision 8

cc: Victor Essen IIDennis Donnelly

IN THE CIRCUIT COURT OF THE COUNTY OF ST. LOUI~.1 g~,.,~STATE OF MISSOURI jj Ii..,." j~ ~~

-";:"~l,~}M.4H ]' t; ')~!

." CUIJQ"1~CIRC c N/ J i'·', uti CLEA "'1. 8IL/ViEA

I( Sr, LOUJ'"QCOUf{l"\

Cause No. 11SL-CC00313 1'1

All times are measured from the date of this Order and all parties are ordered to comply with theprovisions of this Order.

Parties may alter, by written consent, any of the scheduled dates for events A through C. Leaveof Court is not required and it is not necessary to file the written consent with the Court, unlessthe matter of consent is placed in issued.

The scheduled dates of events D and E can only be changed by the Court. All motions not heardprior to the Settlement Conference are deemed abandoned.

IN THE CIRCUIT COURT OF ST. LOUIS COUNTYSTATE OF MISSOURI ~: f 1

By:1/

'<:.

LLl ~Michael P. Burke, lssouri Bar # 22182One Metropolitan Square211 North Broadway, Suite 3600S10Louis, Missouri 63102Telephone: 314-259-2000Facsimile: 314-259-2020


The undersigned hereby certifies that a copy of the foregoing was served via u.s. Mail,postage prepaid, on this 1st day of March, 2011 to:




0+-'/ -dj)By: ,ili!1t#t4/~

Dennis C. Donnelly, Missouri B 19613One Metropolitan Square211 North Broadway, Suite 3600St. Louis, Missouri 63102Telephone: 314-259-2000Facsimile: 314-259-2020


The undersigned hereby certifies that a copy of the foregoing was served via U.S. Mail,postage prepaid, on this 1st day of March, 2011 to:


& CHAMPION, L.L.c.1 S. Memorial Drive, Suite 1800St. Louis, MO 63102


f"Y

Dennis C. Donnelly, Missouri B # 19613Michael P. Burke, Missouri Bar # 22182One Metropolitan Square211 North Broadway, Suite 3600St. Louis, Missouri 63102Telephone: 314-259-2000Facsimile: 314-259-2020


The undersigned hereby certifies that a copy of the foregoing was served via U.S. Mail,postage prepaid, on this 1st day of March, 2011 to:



Co/)):trIN THE 21ST JUDICIAL CIRCUIT COURT, ST. LOUIS COUNTY, MISSOURI z;-JJ-

Judge or Division: Case Number: llSL-CCOO313TOM W DE PRIEST JR

P lainti ff/Petiti oner: Plaintiffs/Petitioner's Attorney/Address~~DA VlD GARAFOLA VICTOR H. ESSEN II 6J

1 SOUTH MEMORIAL DRIVE '2-wSUITE 1800

vs. ST. LOUIS, MO 63102Defendant/Respondent: '"'/1' It,L.b c..j("WoO cL Court Address:WEBSTER UNIVERSITY I~

ST LOUIS COUNTY COURT BUILDING

Nature of Suit: I ( 7900 CARONDELET AVE

CC Emp loymnt Discrmntn 213.111 CLAYTON, MO 63105 (Date File Stamp)

Summons in Civil CaseThe State of Missouri to: WEBSTER UNIVERSITY

Alias:470 EAST LOCKWOOD AVENUE SERVE: DR. ELIZABETH STROBLESAIN'f LOUIS, MO 63119 .. d..·. . . e-I1 ~ (,..;21( - 51"(iO&- '0 8-' CJ\Ul

COURT SEAL OF You are summoned to appear before this court and to file your pleading to the petition, a copy ofwhich is attached, and to serve a copy of your pleading upon the attorney for Plaintiff/Petitioner at theabove address al1 within 30 days after receiving this summons, exclusive of the da of service. If you fail tofile your pleading, judgment by default may be taken against y, for th ief anded in the petition.

27-JAN-201lDate

Further Information:JOG

Sheriffs or Server's ReturnNote to serving officer: Summons should be returned to the court within thirty days after the date of issue.

I certify that I have served the above summons by: (check one) Ip.,\-\ 2 8 ?.G"o delivering a copy of the summons and a copy of the petition to the Defendant/Respondent. Uo leaving a copy of the summons and a copy of the petition at the dwelling place or usual abode of the DefendantlRespondent with

__________________ a person of the Defendant's/Respondent's family over the age of 15 years.~ (for service on a corporation) delivering a copy of the summons and a copy of the petition to

CBC£f,'A Cttsey (name) rEMcA/ ;J:# c~e (title).

o other _

Served at- S'-'-'10 /.

Notary Public r-..,).;j;;.-

Sheriffs Fees, if applicableSummons $ _Non Est $ _Sheriffs Deputy SalarySupplemental Surcharge $Mileage $ <-.-miles@$ . per mile)Total $ _A copy of the summons and a copy of the petition must be served on each Defendant/Respondent. For methods of service on all classes ofsuits, see Su reme Court Rule 54.

OSCA (7·99) SM30 (SMCC) For Court Use Only: Document Id # ll-SMCC-1246

~Civil ProcedureForm No.1, Rules 54.01- 54.05,

54.13, and 54.20; 506.120- 506.140, and 506.150RSMo

Judge or Division: Case Number: llSL-CCOO313TOM W DE PRIEST JR

P lainti ff/Petitio ner: Plaintiff s/Petitioner' s Attorney! AddressDAVID GARA.FOLA VICTOR H. ESSEN II

1 SOUTH MEMORIAL DRIVESUlTE 1800

vs. ST. LOUIS, MO 63102

Defendant/Respondent: Court Address:

WEBSTER UNIVERSlTY ST LOUIS COUNTY COURT BUILDING

Nature of Suit: 7900 CARONDELET AVE

CC Employmnt Discrmntn 213.111 CLAYTON, MO 63105 (Date FileStamp)

Summons in Civil CaseThe State of Missouri to: WEBSTER UNIVERSITY

Alias:470 EAST LOCKWOOD AVENUE SERVE: DR. ELIZABETH STROBLESAINT LOUIS, MO 63119

You are summoned to appear before this court and to file your pleading to the petition, a copy ofwhich is attached, and to serve a copy of your pleading upon the attorney for Plaintiff/Petitioner at theabove address all within 30 days after receiving this summons, exclusive of the da of service. If you fail tofile your pleading, judgment by default may be taken against y, for th ief anded in the petition.

27-JAN-2011Date

Further Information:JOG

Sheriffs or Server's ReturnNote to serving officer: Summons should be returned to the court within thirty days after the date of issue.

1 certify that 1have served the above summons by: (check one)

o delivering a copy of the summons and a copy of the petition to the DefendantlRespondent.o leaving a copy of the summons and a copy of the petition at the dwelling place or usual abode of the DefendantlRespondent with___________________ a person of the Defendant's/Respondent's family over the age of 15 years.

o (for service on a corporation) delivering a copy of the summons and a copy of the petition to

_____________________ (name) (title).

o other _

Served at (address)

in (County/City of St. Louis), MO, on (date) at (time).

Printed Name of Sheriff or Server Signatureof Sheriff or Server

Must be sworn before a notary public if not served by an authorized officer:Subscribed and sworn to before me on (date).

Sheriffs Fees, if applicableSummons $ _Non Est $ _Sheriffs Deputy SalarySupplemental Surcharge $ 10.00Mileage $ L-miles @ $ . per mile)Total $ _A copy of the summons and a copy of the petition must be served on each DefendantlRespondent. For methods of service on all classes ofsuits, see Su reme Court Rule 54.

Civil Procedure Form No.1, Rules54.01 - 54.05,54.13, and 54.20; 506. \20 - 506. \40, and 506. \ SORSMo

IN THE CIRCUIT COURT OF THE COUNTY OF ST. LOUISSTATE OF MISSOURI

~~nC") __,- ...m' 3:;o~ N~f'Tl ••:::0

CJ'1Summons ordered to issue upon Defendant Dr. Elizabeth Stroble at 470 East Lockwood

SERVE:Dr. Elizabeth Stroble470 East Lockwood AvenueSt. Louis, MO 63119,

Debbie S. Champion, #38637Victor H. Essen, II, #57629Attorneys for Plaintiff1 S. Memorial Drive, Suite 1800St. Louis, MO 63102(314) 421-4430 I FAX: (314) [email protected]@rssclaw.com




l~\ '~., -~ . ..-~ 0 e- n

» ~ 55:;0Z n(/) nM. No:-l So

PETITION ::t;!: ~ ~g~;:S("')8 .." ~u; ga. r-,;x ~

COMES NOW Plaintiff David Garafola, by and through undersigned couns~WF t~his::X:;:o

(I)

r-•(')(')

ooe".)

SERVE:Dr. Elizabeth Stroble470 East Lockwood AvenueSt. Louis, MO 63119

5. Although not the winner of the bidding process, one of the contractors who had

submitted a bid for the telephone system whose president was a Webster board member was

given an opportunity to participate in a rebidding process.

6. Despite the fact that the new bid was still not the low bid, the contract was

awarded to the contractor whose president was a Webster board member.

7. Garafola voice his opinion that there existed a conflict of interest in this process to

the then Chancellor of Webster.

8. In fall 2009, the Webster community became aware that a former president of

Webster received approximately $1.2 million following his separation from Webster in 2008.

9. That president and Webster had agreed to the separation following the disclosure

of unethical behavior on the part of the president which included the misuse of a gift acceptance

letter and an expense account.

10. As a result of that conduct, the said president was removed from his position by

the board of Webster.

11. Despite the fact that the board had forced the president's removal, when news of

the compensation to the president was revealed, Webster chose to misrepresent the nature of the

payments as retirement compensation to explain the payments.

12. Garafola objected to the untrue characterization and further argued that Webster

board should not lie to the public.

13. The board ultimately ignored Garafola's complaints.

14. In fall 2009, an issue arose with the bidding process for the construction of two

new buildings on Webster's campus.

15. Both projects had been bid and awarded to a single contractor.

16. The president of that contractor was also on the board of Webster.

17. A board member instructed Garafola to rebid the projects and specifically to make

sure that another contractor whose former CFO was a member of the board received an invitation

to bid.

18. That board member participated in a board committee meeting to interview the

certain bidders on the projects.

19. The other contractor whose president was a board member submitted its new bid

with a letter announcing a $100,000 gift to Webster.

20. Following this clearly deficient and inappropriately influenced bidding process,

one of the projects was awarded to the contractor whose former CFO was on the board of

Webster and the other was awarded to the contractor whose president was on the board of

Webster.

21. Throughout this process Garafola repeatedly objected that this process was not

ethical and not in the best interest of Webster to the board.

22. In August 2009, Garafola was informed a concern that one member of the

Webster finance team had with respect to duplicative student mailing addresses.

23. The existence of duplicative student mailing addresses was an indication of

potential student loan fraud.

24. When the said information was reported to Garafola, Garafola notified Dr.

Elizabeth Stroble, the president of Webster, and several other Webster administration officials of

this issue.

25. Following that, Garafola began an investigation of the matter and hired an outside

investigator to determine if fraud had in fact been committed.

26. The results of the investigation that at least seventeen (17) students admitted to

Webster had committed federal financial aid fraud using Webster's admissions process.

27. The investigation also revealed that Webster's admissions process was allowing

the admittance of students without actually verifying that they met Webster's criteria for

admittance.

28. The investigation also revealed that Webster's financial aid office was failing to

verify that students met the U.S. Department of Educations guidelines to allow the students to

obtain federally supported student loans.

29. It was further revealed that fifteen (15) admitted graduate students were felons

incarcerated in a federal prison in South Carolina.

30. In September of 2009, Garafola reported the vanous findings to the audit

conm1itted of Webster's Board of Trustees and the Office of the U.S. Postal Inspector.

31. During the course of the next year, Garafola urged that Webster take corrective

action to ensure that such fraud could not occur in the future.

32. Despite that, the President of Webster and the Vice President of Enrollment

Management were resistant to the needed changes and primarily concerned with the impact that

the fraud might have on Webster's reputation.

33. Furthermore, Garafola repeatedly urged the Board and the President to report the

fraud to the U.S. Department of Education as required under the rules and regulations of the Dept

of Education.

34. In the late spring of that year, an inspector from the U.S. Department of Education

was dispatched to Webster to investigate matters.

35. Thereafter, the U.S. Department of Education informed Garafola that Webster had

a duty to officially inform the U.S. Department of Education of the student loan fraud, that such

an official notice would like trigger a U.S. Department of Education audit, and that any

continued failure of Webster's procedures to comply with the U.S. Department of Education

guidelines would place Webster on probationary status.

36. Garafola communicated this to Webster's President.

37. Webster's President told Garafola that the President's Office would be

responsible for reporting to the U.S. Department of Education and supervising changes to

Webster's procedures, but the President's Office did not perform that activity as required.

38. On or about April 28, 2010, Webster informed Garafola that Garafola was

terminated.

39. Garafola had faithfully performed all of his obligations under his employment

contract with Webster.

40. Garafola was wrongfully terminated, and his contract was not renewed because

of his efforts to inform Webster's administration and governmental authorities of the fraud

occurring as a result of Webster's improper admissions and financial aid procedures, because of

his efforts to stop and prevent the repeated conflicts of interest practices as outlined herein, and

because he voiced his displeasure of the Board's misrepresentations to the community and their

lack of fair dealing in their business practices.

41. Such termination was a violation of public policy.


Garafola has suffered a loss of employment and annual compensation of approximately $320,000

plus potential bonuses.

Debbie S. Champion,Victor H. Essen, II,Attorneys for Plaintiff1 S. Memorial Drive, Suite 1800St. Louis, MO 63102(314) 421-4430 / FAX: (314) [email protected]@rssclaw.com

#38637#57629



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