Giessow v. Litz

• Court: Missouri Court of Appeals
• Writing for the Court: REINHARD; McMILLIAN, P. J., and STEWART
• Citation: Giessow v. Litz, 558 S.W.2d 742 (Mo. App. 1977)
• Decision Date: 23 August 1977
• Docket Number: No. 38050,38050
• Parties: Charles E. GIESSOW, Plaintiff-Appellant, v. Arthur LITZ et al., as members of the Civil Service Comm. of St. Louis County, Missouri, Defendants-Respondents. . Louis District, Division Two

Page 742

558 S.W.2d 742

Charles E. GIESSOW, Plaintiff-Appellant, v. Arthur LITZ et al., as members of the Civil Service Comm. of St. Louis County, Missouri, Defendants-Respondents.

No. 38050.

Missouri Court of Appeals, St. Louis District, Division Two.

Aug. 23, 1977.

Motion for Rehearing and/or Transfer Denied Oct. 11, 1977.

Application to Transfer Denied Nov. 14, 1977.

Hearnes, Padberg, McSweeney & Slater, St. Louis, for plaintiff-appellant.

Andrew J. Minardi, Assoc. County Counsel, Clayton, for defendants-respondents.

REINHARD, Judge.

Appellant, Charles E. Giessow, appeals from a judgment of the trial court which affirmed the findings of fact and conclusions of law determined by the Civil Service Commission of St. Louis County, Missouri. This decision held that the appellant had been properly discharged as Deputy Circuit Clerk of St. Louis County, Missouri.

On April 2, 1971, Giessow, a non-probationary employee, was given a personal action notice informing him of his dismissal. He was also given a letter dated that date signed by Frank P. Aschemeyer, Director of Judicial Administration, informing him that he was being dismissed on the grounds that: 1) he was incompetent in his performance of duties; 2) he was offensive in his conduct and language toward fellow employees, including supervisors; and 3) he failed to consistently maintain harmonious relationships with fellow employees, including supervisors. ¹ Attached to the letter given Giessow on April 2, 1971, was a copy of a memorandum dated March 30, 1971, from Raymond V. Clifford, Circuit Clerk, to Aschemeyer detailing specific complaints against Giessow. Also attached to the letter was a statement relating another incident involving Giessow. In addition to the memoranda attached to the April 2nd letter, on April 14, 1971, Giessow's attorney received at his request a supplement which contained further specifics. The letter, and its attachments of April 2, 1971, and the additional information supplied on April 14, 1971, constituted the formal notice in this case. Among the specifics alleged were: 1) that Giessow, in conversation with James McCullough, deputy sheriff, attempted to generate a complaint about the handling of garnishment matters to the clerk's office when there was no complaint; 2) that Giessow constantly badgered and insulted Agnes Bishop, and also disrupted her work and threatened her job; 3) that he showed Agnes Bishop filthy pictures and told her dirty stories; 4) that he made statements to McCullough that he would fire three clerks if he had his way; 5) that he pitted employee against employee, specifically Mrs. Bishop against Miss Lott; 6) that he was constantly harassing Mrs. Price and misrepresented to her what Mr. Clifford said about excuses for Saturday work; 7) that he asked Miss Lott to spy on Mr. Pauli so that he could create trouble for him, and that he had a "bad apple" list of those who had caused him trouble; 8) that he asked Mrs. Bishop to lose the files of three circuit judges; and 9) that he used profane language towards employees.

The Civil Service Commission of St. Louis County began a hearing on August 23, 1971, at which time the County presented its evidence. The hearing was recessed until September 21, 1971, at which time appellant presented his evidence.

In January, 1971, three County employees, Milton Young, Supervisor of Accounting, Agnes Bishop, a writs clerk, and Roscoe Summers, made complaints against Giessow. Young threatened to resign because of Giessow's continuous interference with Young's employees. Bishop complained of mental anguish brought on by Giessow's remarks, insinuations and disrupting orders. Summers complained of Giessow's treatment of Bishop and of Giessow's interference with Summers' subordinates.

Giessow was warned of these complaints in January, 1971. He was told by his supervisor, Clifford, that no merit increase would be forthcoming until he made significant improvement in the areas of employee punishment, personal business on County time, getting along with other supervisors, and his attitude toward employees. In February, 1971, after repeated complaints from Summers and James Martin, another supervisor, about Giessow's disrupting their operations, Clifford reduced Giessow's responsibilities. Giessow was told that until he improved his actions in the areas previously discussed he was to be on the same managerial level with Martin and Summers, rather than on a higher supervisory level as he had been previously.

In March, 1971, Clifford received complaints from several other employees. Their complaints included instances of unfair treatment by Giessow, allegedly prompted by Giessow's own personal likes and dislikes among the employees. One employee, Catherine Lott, complained that Giessow kept a "bad apple list" of those he did not like. Lott said that after she refused to spy on Pauli, Giessow told her he had a "bad apple list". Agnes Bishop again complained of harassment by Giessow, including verbal abuse, interrupting business phone conversations, and placing "dirty pictures" on her desk. Martin and Summers also reported that Giessow had ignored the restructuring and was continuing to give orders to employees not under his control. Martin reported late night phone calls from Giessow who would tell him "what a lousy so & so I was and if it had not been for him I would have been fired . . . "

On March 26, 1971, James McCullough, a deputy sheriff, spoke to Giessow about locating a garnishment file and asked Giessow: "Isn't there some way in which we could get garnishments a little quicker?" Giessow responded by blaming the delay on Summers because he would not fire several clerks in the office. Giessow then went to Clifford with McCullough's complaint, despite the fact that McCullough did not want to make a complaint to Clifford and had asked Giessow not to pursue it.

At the Commission's hearing, most of those who made complaints reported in Giessow's notice gave further details about the bases of their complaints regarding Giessow's course of conduct. Mrs. Bishop testified that Giessow ordered her to lose several files in order to discredit certain judges; that sometime after her refusal Giessow forced her to sit with her desk facing the wall because "he said it made him feel good to know that I was uncomfortable and unhappy"; that Giessow threatened continually to have her fired; that Giessow told her "filthy" jokes, and when she asked him not to, she was told: "If I appreciated my job, I would look and listen"; and that Giessow caused trouble among employees by telling each stories about the other.

Agnes Bishop also testified that Giessow told her: "Get your a over to that phone." She also related an incident when Giessow exhibited to her a match book which, when opened, revealed an obscene picture. When Mrs. Bishop told him she did not appreciate things of that nature, Giessow replied, " * * * you appreciate your job don't you then look at what I show you." Mrs. Bishop also testified that on several occasions Giessow would break into her business phone calls and tell the party at the other end that Mrs. Bishop did not know what she was talking about.

At the hearing, Mrs. Price testified that Giessow overworked her on weekends and misrepresented Clifford's instructions in justifying the overload. She further related an incident when Giessow told her over the phone to "get your a (to work)." She also repeated her complaints that Giessow spoke disparagingly about her fellow employees in an attempt to alienate one employee from the other.

Mr. Martin testified that he heard Giessow use profane language toward several employees although he did not remember specific instances. At the hearing, Miss Lott repeated her allegation concerning Giessow's request that she spy on Pauli and stated that he threatened to put her on his "bad apple list". McCullough told the Commission about Giessow's attempt to generate a complaint about the handling of garnishment files. Giessow denied all of the allegations against him.

It was the testimony of Lott, Price, Bishop, McCullough and Martin upon which the Commission based its findings of fact and conclusions of law. The Commission found sufficient evidence to uphold Giessow's dismissal on the grounds that he had been offensive in his language and conduct toward his fellow employees and his supervisors (Civil Service Comm. Rule XVIII, Sec. 4(e)), and that he had not consistently maintained harmonious relationships with fellow employees including supervisors (Civil Service Comm. Rule XVIII, Sec. 4(f)).

Appellant's first point on appeal is that the grounds cited for Giessow's dismissal are not equivalent to "legal cause" and therefore violate the St. Louis County Charter. Appellant argues that the Charter authorizes a merit system to be established "for the retention of said employees and officers on the basis of merit and ability", Art. VII, § 2010 "New St. Louis County Charter, 1968", and that the grounds for Giessow's dismissal do not conform to this mandate. Appellant argues that since the Commission did not find him to be incompetent, as originally charged, it is inconsistent to find that he lacked the merit or ability as required by the Charter.

Appellant further argues that merit system employees can only be dismissed for "legal cause", citing McCallister v. Priest, 422 S.W.2d 650 (Mo. banc 1968), and that subsections (e) and (f) of Civil Service Comm. Rule XVIII do not comply with the definition of "legal cause" set out in the case. In McCallister the court said:

" 'The cause must be one which specially relates to and affects the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights * * * of the public.' " 422 S.W.2d at 657.

Appellant's contentions take a very narrow view of merit, ability, and activity by government employees which affect the public. Justice Pow...