AT & T Information Systems, Inc. v. Wallemann

• Citation: 827 S.W.2d 217
• Decision Date: 31 March 1992
• Docket Number: No. WD,WD
• Court: Court of Appeal of Missouri (US)
• Parties: 2 A.D. Cases 1060, 3 NDLR P 192 AT & T INFORMATION SYSTEMS, INC., Respondent, v. Frank E. WALLEMANN, Defendant, Saundra Renee Durr, Appellant. 45147.

Page 217

827 S.W.2d 217

2 A.D. Cases 1060, 3 NDLR P 192

AT & T INFORMATION SYSTEMS, INC., Respondent, v. Frank E. WALLEMANN, Defendant, Saundra Renee Durr, Appellant.

No. WD 45147.

Missouri Court of Appeals,

Western District.

March 31, 1992.

Ransom A. Ellis, III, Todd A. Johnson, and Lester J. Boyle, 3d, Ellis, Ellis & Black, Springfield, for appellant.

Louis F. Bonacorsi, Ketrina G. Bakewell, Coburn, Croft & Putzell St. Louis, for respondent AT & T.

William L. Webster, Atty. Gen., Robert L. Franson, Jerry Buxton, Asst. Attys. Gen., Jefferson City, for respondent Frank E. Walleman.

Before LOWENSTEIN, C.J., and SHANGLER and SMART, JJ.

SHANGLER, Judge.

This appeal is from a permanent order of prohibition entered by the circuit court in favor of relator AT & T Information Systems Inc. that directed Chief Hearing Officer Wallemann for the Commission on Human Rights to refrain from "denying or refusing in any respect" certain motions of the relator to compel discovery. ¹ The motions were brought in a proceeding before the Commission on the complaint of Saundra Renee Durr, a quadriplegic. Durr asserts that her employer, AT & T, discriminated against her on the basis of her physical handicap by removing her from a position of sales associate at a phone store and by placing her on involuntary disability leave. §§ 213.010 and 213.055. ² The complainant Durr seeks damages as well as reinstatement to the sales associate position. AT & T denies discrimination and contends, rather, that complainant Durr is physically unable to perform the function of sales associate and cannot be reasonably accommodated to do so.

It is evident that one gist of the dispute before the Commission is the physical ability of employee Durr to perform the work of a sales associate.

In response to written interrogatories by AT & T, Durr designated Julie Markway Reinkemeyer, occupational therapist, as an expert witness she expected to call at the hearing before the Commission. Thereafter, counsel for Durr agreed to present her for deposition as well as for physical examinations by an occupational therapist and then by a physician. Counsel came to doubt that any physical examination was authorized by law in proceedings before the Commission on Human Rights, and withdrew consent to present Durr for the evaluation by an occupational therapist. AT & T then brought in the administrative proceeding a motion to compel discovery for a physical examination of the complainant by an occupational therapist. Chief Examiner Wallemann denied the motion, and AT & T brought a petition for writ of prohibition in the circuit court to correct that "usurpation of authority."

Counsel for Durr then came to conclude that in such proceedings the law did not provide for any discovery of the physical condition of the complainant, whether by an occupational therapist or a physician, and withdrew consent for the examination by a physician. AT & T brought a motion to compel an examination by a physician. That motion was also denied. AT & T brought a successive petition for writ of prohibition to direct Chief Hearing Examiner Wallemann to grant the motion of AT & T to compel complainant to submit to an examination by a physician on behalf of AT & T.

The circuit court granted preliminary orders of prohibition on each petition and in a consolidated permanent order directed Chief Hearing Examiner Wallemann to compel complainant Durr to submit herself to examinations by a physician and by an occupational therapist. Our review is of the order of permanent prohibition.

The issue on this appeal is whether the Commission on Human Rights may compel the physical examination of a person who complains of employer discrimination because of a handicap.

The orders of the Chief Hearing Examiner for the Commission on Human Rights denying the AT & T motions to compel the physical examination of Durr by either an occupational therapist or by a physician rested on these express conclusions of law:

Section (1) of 8 CSR 60-2.100 of the Procedural Regulations of the Commission ... states:

(1) General Provisions Governing Discovery. The presiding officer shall follow the procedural rules as set out in these rules as well as the Missouri Rules of Civil Procedure, and Chapters 213 and 536, RSMo. Chapter 213 RSMo does not specifically include Order for Examination as a form of pretrial discovery allowed under the Act. Although Chapter 536 RSMo allows enforcement of a physical or mental examination order, it is only with respect to Chapter 631 [sic] RSMo, which is not involved herein.

Rule 60 of the Rule [sic] of Civil Procedure provides for Order for Examinations in certain situations.

After reading all relevant statutes, Procedural Regulations and Rules of Civil Procedure, I find that I do not have authority to order the Complainant-Intervenor [Durr] to be examined by an occupational therapist [or by a physician].

It is the premise of the conclusions of law that in the absence of a specific provision of statute Human Rights Chapter 213 or Chapter 536 for a physical examination of an employee who complains of discrimination due to physical handicap, the Commission on Human Rights is without power to order, and then to compel, the event. It is also implicit in that rationale that, to the extent that the discovery procedures of the Rules of Civil Procedure are integrated by Chapter 536 into a contested case before an agency, they empower the Commission on Human Rights. Human Rights Chapter 213, indeed, does provide that in a contested case before the Commission, a party has access to written interrogatories, requests for production of documents, and for admissions, in the same manner as conducted in civil actions in the circuit court. § 213.075.6. Indeed, also, Chapter 536 empowers a party in a contested case before an agency with additional discovery by deposition. § 536.073.1 RSMo Cum.Supp.1991. ³ See also § 213.075.5. Neither statute, however, provides for the physical or mental examination of a party or for the enforcement of such an order. ⁴ It is by this train of reasons that the Chief Hearing Examiner concluded that, although the physical ability of complainant Durr to perform the work was "one of the issues which must be decided" and was "within the requirements for issuance of an Order of Examination under [Physical and Mental Examination of Persons] Rule 60," the Commission was without authority to order the physical examination.

The order of prohibition effectively adjudges that a party to a contested complaint of discrimination due to physical handicap may require and compel the physical examination of the complainant in a proceeding before the Human Rights Commission under Chapter 213. The order of prohibition, however, does not explain the ground of judgment. AT & T surmises that by the judgment the circuit court determined that "Chapter 213 and the regulations pertaining to that chapter fully incorporate the Missouri Rules of Civil Procedure, including Rule 60.01 which provides for physical examination." AT & T argues also that the provisions of Chapter 536, incorporated by reference into the procedures before the Human Rights Commission by 8 CSR 60-2.100, that grant a party reasonable opportunity to prepare, present and rebut evidence on an issue, endow the right to compel the physical examination of a complainant of handicap discrimination.

AT & T contends, lastly, that to allow complainant Durr to present evidence of her continued physical aptitude for the employment by the occupational therapist expert, but deny the employer resort to a like expert, is to deny the adversary opportunity to rebut and to prepare evidence on that critical issue. The order of prohibition, AT & T concludes, redresses that failure of due process of law.

The adjudication of prohibition cannot be sustained on any of those grounds.

An order for physical examination under Rule 60.01 is a mode of discovery unavailable to a party in a proceeding before the Human Rights Commission under Chapter 213. The argument that the Rules of Civil Procedure, including Rule 60.01, are integrated into Chapter 213 through Section 1 of 8 CSR 60.2-100 and that "nothing contained in either Chapters 213 or 536" limits the rules available to a party before the Commission is disingenuous.

Chapter 213 expressly defines the discovery available to a party in a contested case before the Commission, and confines the modes to written interrogatories, requests for production of documents, and requests for admissions "in the same manner" as provided for "in civil actions in the circuit court." § 213.075.6. An order for physical examination under Rule 60.01, although also "provided for in civil actions in the circuit court," is not among the modes of discovery the statute sanctions in an administrative case before the Commission. In addition, Chapter 536, to which subsection 6 of § 213.075 as well as Section 1 of 8 CSR 60-2.100 refer, sanctions the use of depositions in any contested case before an agency. § 536.073.1 RSMo Cum.Supp.1991. It is only in the Administrative Hearing Commission, however, that a party may obtain all the discovery--including the use of a physical examination under Rule 60.01--provided for by supreme court rule in civil actions in the circuit court. § 536.073.2(1) RSMo Cum.Supp.1991; Board of Registration for Healing Arts v. Spinden, 798 S.W.2d 472, 474 (Mo.App.1990).

A special statute that defines procedure in a specific type of proceeding controls over the general rules of civil procedure. In re T.P.S., 595 S.W.2d 320, 322[5-7] (Mo.App.1980). The Rules of Civil Procedure, Rules 41 through 101, by their terms do not apply to proceedings in administrative agencies. Macchi v. Whaley, 586 S.W.2d 70, 74 (Mo.App.1979). They may be made to apply by statute. See e.g., § 536.073.2(2) RSMo Cum.Supp.1991. An administrative agency has no more authority than is granted by statute. Brooks v. Pool-Leffler, ...