Fransk v. Curators of Univ. Of Mo.
| Decision Date | 12 November 2008 |
| Docket Number | No. WD 69173.,WD 69173. |
| Citation | 268 S.W.3d 476 |
| Parties | Scot FRANSK, Appellant, v. CURATORS OF the UNIVERSITY OF MISSOURI, Blake Danuser, Ken Hutchinson, and Cindy Strine, Respondents. |
| Court | Missouri Court of Appeals |
George S. Smith, Columbia, for Appellant.
Before THOMAS H. NEWTON, C.J., JOSEPH M. ELLIS, and JAMES EDWARD WELSH, JJ.
Scot Fransk appeals the circuit court's judgment dismissing his petition for declaratory relief and for damages under 42 U.S.C. § 1983 for alleged violations of due process. Fransk asserts that the Curators of the University of Missouri (University)1 summarily discharged him from his employment with the University on the first day after his probationary period ended. He contends that he was entitled to due process because he had a property interest in his employment and was entitled to all the rights and privileges granted other non-probationary employees, including the right to challenge the circumstances of his summary discharge through the grievance procedures employed by the University. He also contends that the circuit court erred in concluding that the University clearly intended that his employment not be continued beyond the probationary period because intent is not a "legally defensible ground for missing an employer-imposed deadline." Finally, Fransk asserts that, because the University initially entertained his grievance, the University is equitably estopped from denying his right to continue in the grievance process. We affirm the circuit court's judgment dismissing Fransk's petition.
We review the circuit court's granting of a motion to dismiss de novo. Weems v. Montgomery, 126 S.W.3d 479, 484 (Mo.App.2004). "When reviewing dismissal of a petition, a court allows a pleading its broadest intendment, treats all facts alleged as true, construes allegations favorably to plaintiff and determines whether averments invoke principles of substantive law entitling plaintiff to relief." Bachtel v. Miller County Nursing Home Dist., 110 S.W.3d 799, 801 (Mo. banc 2003).
Fransk was hired by the University as the Assistant Director of Sports and Competition on February 16, 2006. At the time he was hired, Fransk's employment was subject to a six-month probationary period, which would expire on August 15, 2006. On August 14, 2006, Fransk was informed that his probationary period was being extended by three months, as allowed by the University's Human Resources Policy Manual. The University's policy manual, however, provides that an employee may not remain on probation for longer than nine months; therefore, pursuant to that provision of the policy manual Fransk's extended probationary period would end on November 15, 2006.
On November 7, 2006, Cindy Strine, the Associate Director for Programs in the University's Department of Recreational Services, informed Fransk that his employment would be terminated and instructed him to go home and not to return to work. By letter dated November 7, 2006, Strine informed Fransk that his employment would not "be continued beyond the last day of [his] probationary period, November 16, 2006, due to the unsuccessful completion of [his] probationary period." Fransk also was told that his salary would be paid "up to and including the day of November 16, 2006." After November 7, 2006, Fransk did not report to work.
On November 17, 2006, Fransk filed a grievance against Strine alleging violations of the University's Human Resources Policy Manual. Fransk alleged that his probationary period ended on November 15, 2006, and that, because he remained on the University's payroll a day past when his probationary period ended, he became a non-probationary employee and was entitled to due process and to all rights and privileges granted other non-probationary employees.
On January 22, 2007, Karen Touzeau, Assistant Vice Chancellor for Human Resource Services and the Campus Grievance Representative, wrote a letter to Fransk responding to Fransk's purported grievance. Touzeau informed Fransk that the University clearly intended to release him during his probationary period but missed the date by one day. Touzeau found that Fransk was entitled to back pay from November 16, 2006, to the date of her decision. Touzeau concluded, however, that the University had "legitimate business reasons" for discharging Fransk and that Fransk was not entitled to reinstatement.
On January 31, 2007, Fransk attempted to appeal Touzeau's decision to K. Blake Danuser, the University's Associate Vice-President for Employee Relations. By letter dated February 22, 2007, Danuser denied Fransk's appeal on the ground that Fransk was a probationary employee and did not have access to the University's grievance procedure. Fransk then attempted to appeal Danuser's rejection of his grievance to R. Kenneth Hutchinson, the University's Vice-President of Human Resources. By letter dated April 30, 2007, Hutchinson denied Fransk's appeal on the ground that Fransk was not entitled to any such appeal because Fransk did not complete his probationary period and was not entitled to pursue a grievance.
Fransk then filed his petition and subsequently a first amended petition for declaratory judgment and damages against the University in the Circuit Court of Cole County. The amended petition contained two counts: Count I sought a declaratory judgment seeking the circuit court's determination that Fransk was entitled to challenge the circumstances of his discharge through the grievance procedures employed by the University, and Count II sought relief under 42 U.S.C. § 1983 for alleged violations of due process. The University filed a motion for change of venue to Boone County, and the circuit court transferred the case to the Circuit Court of Boone County on September 17, 2007. Thereafter, the University filed a motion to dismiss Fransk's amended petition. The University contended that (1) Fransk's Count I was actually a request for judicial review pursuant to the contested case provision of Chapter 536, RSMo, and that the circuit court lacked subject matter jurisdiction because Fransk's action was untimely; and (2) Fransk failed to state a claim upon which relief could be granted. On January 17, 2008, the circuit court sustained the University's motion to dismiss Fransk's suit with prejudice. In dismissing Fransk's claim, the circuit court said:
[T]he Court finds that on or about November 7, 2006[, Fransk] was notified that his employment would not be continued beyond the last day of his probational period ... "due to unsuccessful completion of his probationary period." That said, notification was [sic] mistakenly stated that the last day of his probationary period was November 16, 2006 (rather than November 15, 2006); but that the intent was clear that his employment would not be continued beyond the probationary period; and that [Fransk] had no property rights in his employment.
Fransk appeals from that determination to this court.
Fransk asserts that the circuit court erred in granting the University's motion to dismiss for failure to state a claim and for lack of subject matter jurisdiction.2 In particular, Fransk contends that the circuit court wrongfully ruled that he had no property interest in his employment with the University. He claims that, because he remained on the University's payroll for one day past when his probationary period ended, he was entitled to access the University's grievance procedures for regular, non-probationary employees and entitled to due process because he had a property interest in his employment. We disagree.
"The Fourteenth Amendment to the United States Constitution and Article 1 § 10 of the Missouri Constitution protect against the deprivation of life, liberty, and property without due process of law." State ex rel. Wilhoit v. Seay, 248 S.W.3d 135, 139 (Mo.App.2008). "`The fundamental requirement of due process is the opportunity to be heard "at a meaningful time and in a meaningful manner."'" Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). To be entitled to due process, a person must have been deprived of a constitutionally protected property interest. Id., 248 S.W.3d at 140; Moore v. Bd. of Educ. of Fulton Pub. Sch., 836 S.W.2d 943, 947 (Mo. banc 1992), cert. denied, 507 U.S. 916, 113 S.Ct. 1270, 122 L.Ed.2d 666 (1993). Indeed, to prevail on a claim under 42 U.S.C. § 1983, a claimant must establish a protected property interest to which due process applies. Furlong Cos. v. City of Kansas City, 189 S.W.3d 157, 170 (Mo. banc 2006).
Whether or not a government employee Wilhoit, 248 S.W.3d at 140 (citation omitted). However, no general right to continued public employment exists in Missouri, and "such a right must be shown to exist by statute, ordinance, regulation, or employment contract." Schlientz v. Rock Twp. Ambulance Dist., 146 S.W.3d 404, 405 (Mo.App.2004). A property interest in public employment is based upon a "reasonable and legitimate expectation of continued employment."3 Howard v. Columbia Pub. Sch. Dist., 363 F.3d 797, 803 (8th Cir.), cert. denied, 543 U.S. 956, 125 S.Ct. 436, 160 L.Ed.2d 318 (2004).
Fransk's claim that he was entitled to due process and the right to pursue a grievance under the University's policy manual hinges on his claim that he completed his probationary period and became a regular employee. The University's policy manual specifically states that termination of employment during the probationary period is not subject to the grievance procedure and that only a regular employee may process a grievance upon completion of his or her probationary period. University of Missouri Human Resources Policy Manual...
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