Cade v. State
| Decision Date | 09 February 1999 |
| Docket Number | No. WD,WD |
| Citation | 990 S.W.2d 32 |
| Parties | 14 IER Cases 1430 James CADE, Respondent, v. STATE of Missouri, Department of Social Services, and Gary Stangler, Director Missouri Department of Social Services, Appellants. 55427. |
| Court | Missouri Court of Appeals |
Before ULRICH, P.J., and SMART and EDWIN H. SMITH, JJ.
The Missouri Department of Social Services, Division of Family Services ("DFS") suspended James Cade without pay for a total of four days for failing to wear a necktie at work. The circuit court reversed the suspension and ordered DFS to pay Cade for his four day suspension, to remove adverse information regarding the suspension from Cade's personnel file and to reimburse Cade for the costs he incurred in pursuing this action. DFS appeals the judgment, claiming that the circuit court erred by treating the matter as a contested case.
The judgment of the circuit court is reversed.
DFS is a division of the Missouri Department of Social Services ("DSS"), created under § 660.010.3, RSMo 1994. 1 In May 1987, Administrative Policy 2-117 was adopted by DSS, providing that "[a]ll Department of Social Services (DSS) employees are expected to dress in a manner appropriate to the performance of their duties." This provision specified that department supervisors were to apply the policy fairly and equitably for all employees working in similar environments. James Cade, an employee of DFS, is a child placement coordinator for the Interstate Compact on the Placement of Children ("ICPC"). He has been employed by DFS for twenty-six years. On January 21, 1993, Cade appeared at work without a necktie. The following day, January 22, 1993, Cade's supervisor, Karen Unger, sent a memorandum to Cade telling him that the agency required that men in his area of responsibility wear neckties. She advised him that his failure to wear a necktie could result in disciplinary action.
On January 25, 1993, Richard Matt, Deputy Director of Children's Services, sent a memorandum to the entire staff in the Children's Services Unit of DFS regarding appropriate office attire. This memorandum did not say that neckties were required for men, although a prior memorandum had stated that neckties were required. It is not clear whether Cade received a copy of the prior memorandum. A subsequent memorandum, issued on January 27, 1993 by Matt, did not mention neckties.
On September 25, 1995, Cade came to work without a necktie. On September 28, 1995, Unger sent Cade an e-mail message stating that Cade had been seen without a necktie and admonished him to "abide by the dress code which includes wearing a tie." On October 2, 1995, Cade told Unger that he refused to wear a tie, and he did not believe that the agency could require that he wear one. On October 10, 1995, Unger notified Cade that he would be suspended without pay for one day because he "failed to respond in a reasonable manner to the lawful orders of instructions of persons with duly delegated authority over the employee" by his failing to wear a necktie.
On October 10, 1995, Cade filed a Step I Grievance concerning his suspension, alleging that the necktie policy constituted sexual discrimination and harassment. Cade asked for recovery of one day's pay and costs. He also asked that references to the suspension be removed from his personnel file and that a directive be issued that all harassing activities cease. On October 17, 1995, a Step I Grievance Review was held by Anna Stone, an Assistant Deputy Director of DFS. Stone denied Cade's grievance; and Cade was suspended on October 18, 1995.
On October 29, 1995, Cade filed a Step II Grievance Review. On November 9, 1995, a hearing was conducted by William Rapps. That same day, Cade appeared at work without a necktie. A few days later, on November 15, 1995, Cade again came to work without a tie. On November 20, 1995, Cade was notified that he would be suspended without pay for three days because of his refusal to respond to the repeated directives of his supervisors in that he did not wear a necktie to work on November 9, 1995 and November 15, 1995.
On November 22, 1995, Cade filed a Step I Grievance regarding the three-day suspension. He was notified that review of his grievances would be consolidated into one proceeding because the issues were substantially the same. Cade was suspended for three days without pay on December 5, 6, and 7, 1995. On December 26, Cade filed a request for a Step III Grievance.
On January 10, 1996, Director Schultz sent Cade a letter responding to his Step II Grievance, denying his appeal. On February 1, 1996, a Step III Grievance Panel, designated by the Director of the Department of Social Services, Gary Stangler, was convened. On February 13, 1996, the chair of that panel, Annie Tremain, issued a letter to Cade denying his appeal. No taped or stenographic record of the grievance proceedings was made. DFS presented no evidence and called no witnesses.
Cade filed a petition for judicial review with the circuit court on March 13, 1996, claiming that the circuit court had "subject matter jurisdiction pursuant to Section 536.100 through and including 536.150 RSMo (1994)." The circuit court found it had jurisdiction to review the matter as a contested case pursuant to § 536.101(2), RSMo 1994. A hearing on the matter was held October 27, 1997. The parties stipulated to the record of the grievance procedures. Cade was allowed to present evidence at the hearing and DFS was allowed a limited response, based upon what Cade presented at the hearing. The trial court reversed the agency's decision, finding that the decision to suspend Cade for four days was unsupported by competent and substantial evidence upon the whole record and was arbitrary, capricious and unreasonable. The trial court ordered that Cade's suspension be reversed, that adverse information relating to the suspension be removed from Cade's file, and that Cade be reimbursed for costs.
DFS appeals.
DFS raises three points on appeal, 2 contending that the trial court erred: (1) by treating the matter as a contested case; (2) by deciding that the Deputy Director of DFS does not have the authority to enforce reasonable dress code requirements; and (3) by awarding Cade his costs in this action. Because we agree that the trial court erred by treating this matter as a contested case, we reverse and remand the case. Because confusion abounds about the classification of cases into the categories of "contested" and "noncontested" we begin our analysis by examining these classifications. 3
A "contested case" before an administrative agency is defined by statute as "a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing[.]" § 536.010(2), RSMo 1994. The fact that there is some contest between the parties does not, in and of itself, make for a contested case. See, e.g., City of Richmond Heights v. Board of Equalization of St. Louis County, 586 S.W.2d 338, 342 (Mo. banc 1979). The classification of case as "contested" or "noncontested" is not left to discretion of the agency but rather is to be determined as matter of law. State ex rel. Valentine v. Board of Police Com'rs of Kansas City, 813 S.W.2d 955, 957 (Mo.App.1991). The "law" requiring a hearing may be any statute or ordinance or any state or federal constitutional provision. State ex rel. Yarber v. McHenry, 915 S.W.2d 325, 328 (Mo. banc 1995). This right is determined by substantive law outside the Missouri Administrative Procedure Act. Id.
The key to the classification of a case as "contested" or "noncontested" is the requirement of a hearing. Shawnee Bend Special Rd. Dist. "D" v. Camden County Comm'n, 800 S.W.2d 452, 456 (Mo.App.1990); Rackley v. Firemen's Retirement Sys., 848 S.W.2d 26, 28 (Mo.App.1993) . The term "hearing" in § 536.010, means a proceeding in which evidence may be presented, and witnesses may be examined and cross-examined. See Hagely v. Board of Educ. of Webster Groves Sch. Dist., 841 S.W.2d 663, 668 (Mo. banc 1992). 4 An administrative decision is considered to be "noncontested" if "made without any requirement of an adversarial hearing at which a measure of procedural formality is followed." Strozewski v. City of Springfield, 875 S.W.2d 905, 906 (Mo. banc 1994). Procedural formalities in contested cases generally include notice of the issues, § 536.067; oral evidence taken upon oath or affirmation, § 536.070; the calling, examining and cross-examining witnesses, § 536.070; the making of a record, § 536.070; adherence to evidentiary rules, § 536.070; and written decisions including findings of fact and conclusions of law, § 536.090. See Hagely, 841 S.W.2d at 668.
Judicial review in a contested case is conducted upon the record made before the agency. Shawnee Bend, 800 S.W.2d at 456. The proper standard of review in contested cases is found in § 536.140, which provides:
1. The court shall hear the case without a jury and, except as otherwise provided in subsection 4, shall hear it upon the petition and record filed as aforesaid.
2. The inquiry may extend to a determination of whether the action of the agency
(1) Is in violation of constitutional provisions;
(2) Is in excess of the statutory authority or jurisdiction of the agency;
(3) Is unsupported by competent and substantial evidence upon the whole record;
(4) Is, for any other reason, unauthorized by law;
(5) Is made upon unlawful procedure or without a fair trial;
(6) Is arbitrary, capricious or unreasonable;
(7) Involves an abuse of discretion.
The standard of judicial review of noncontested cases differs from that of contested cases. Judicial review of noncontested cases is governed by §...
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