Industrial Linens Supply Co., Inc. v. Missouri Commission on Human Rights, KCD

• Decision Date: 06 July 1976
• Docket Number: No. KCD,KCD
• Citation: 539 S.W.2d 641
• Parties: 13 Empl. Prac. Dec. P 11,514 INDUSTRIAL LINENS SUPPLY COMPANY, INC., Respondent, v. MISSOURI COMMISSION ON HUMAN RIGHTS et al., Appellants. 27502.
• Court: Missouri Court of Appeals

Page 641

539 S.W.2d 641

13 Empl. Prac. Dec. P 11,514

INDUSTRIAL LINENS SUPPLY COMPANY, INC., Respondent, v. MISSOURI COMMISSION ON HUMAN RIGHTS et al., Appellants.

No. KCD 27502.

Missouri Court of Appeals, Kansas City District.

July 6, 1976.

Motion for Rehearing and/or Transfer Denied Aug. 2, 1976.

John C. Danforth, Atty. Gen., Daniel P. Card, II, Charles A. Blackmar, Asst. Attys. Gen., Jefferson City, for appellants.

Hyman G. Stein, Charles Alan Seigal, St. Louis, for respondent.

Before DIXON, P.J., PRITCHARD, C.J., and WASSERSTROM, J.

WASSERSTROM, Judge.

This case originated in a proceeding before the Missouri Commission on Human Rights under Chapter 296. (All statutory references herein are to RSMo 1969.) The Commission by a two to one vote found that Industrial Linens Supply Company had denied employment to Kevin Jones, a Negro, because of his race, and ordered Industrial Linens to take certain remedial affirmative action, including placing Jones at the top of its hiring list and giving him back pay. Industrial Linens petitioned the Circuit Court for review pursuant to § 296.050 and § 536.140 (the latter section being duplicated in Rule 100). The Circuit Court reversed. From that decision adverse to it, the Commission appeals to this court.

The ultimate finding of discrimination by the Commission was based upon the following subsidiary findings of fact, all of which are supported by substantial evidence. On September 5, 1972, Jones was seeking employment and for that purpose visited the Columbia, Missouri, Job Center and engaged in an interview with Mary Brencick, a Caucasian job counselor. While Jones was present, Brencick received a phone call from Truman Kay, route supervisor for Industrial Linens in Columbia. Kay stated that Industrial Linens had a position open as a truck route delivery salesman and requested an applicant for that position. Brencick answered that she had an applicant in her office and would refer him immediately.

After approximately ten minutes had elapsed, Brencick received a second phone call from Kay inquiring about the applicant who was supposed to be referred to him. Immediately after this second phone call, Brencick and Jones left her office and arrived at the Industrial Linens' place of business in approximately five minutes. When they presented themselves to Kay, and Kay saw Jones for the first time, Kay informed them that the position had just been filled. Jones and Brencick then left, but Brencick turned back and came in alone to inquire into the matter further. At this point, Kay stated that Industrial Linens could not hire colored people as drivers/delivery salesmen for the reason that its customers would not do business with it if it had colored drivers. Kay also stated that the company had another position of the same type open; however he did not request or offer to receive any application from Jones with respect to the open position.

Neither the dissenting commissioner, the Circuit Judge nor Industrial Linens itself denies that the facts found by the majority of the Commission would constitute forbidden discrimination. However, all of them have denied the validity of the findings made by the majority of the Commission and the relief ordered, on the various grounds now to be separately discussed.

I.

The point most strongly urged by Industrial Linens is that it should not be held liable for the acts of its route supervisor Kay. In this connection, it points out that it is a subsidiary of and is operated as a single unit with Clean Coverall Supply Company, which has headquarters in St. Louis. Industrial Linens itself has a processing plant in Joplin and two drop-relay stations, one of which is in Springfield and the other in Columbia. The General Manager of Industrial Linens, Jim Weeks, works out of the Joplin office and is the only one having authority to hire or fire any employee at any of the three locations. Kay was in charge of the operations in Columbia whenever Weeks was absent. When a job opening occurs, in the usual course of events, Kay sought applicants through newspaper ads and calls to employment agencies. However, he had no authority to hire or fire. He received applications and passed on the information to Weeks, but the evidence does not disclose that he had any express right to recommend who should be hired. Kay was not a stockholder, officer or director and attended no company policy meetings. Clean Coverall and Industrial Linens both hire a considerable number of black employees, some of whom hold supervisory positions. There was no evidence that the acts and statements of which the Commission found Kay guilty were in accordance with any company policy or pursuant to any authority to exclude blacks.

On the basis of those facts, Industrial Linens argues, the dissenting Commissioner believed, and the Circuit Court found that Kay's acts on September 5, 1972, did not bind Industrial Linens. In this respect the Circuit Court held: 'The burden of proving the agency of Truman Kay and the scope of his agency is upon the complainant . . . It is also well settled that any statement or admission by an agent to be binding upon his principal must be made within the scope of his authority. There is nothing in this record to show that Truman Kay was anything more than a route supervisor, and that he had no authority to employ this complainant or anyone else.'

This ruling is in contradistinction to the following finding of the Commission: 'From the evidence presented at the public hearing, the hearing panel majority holds that Truman Kay, an employee of Respondent, did in fact have actual or, alternatively, apparent authority to screen applicants for job vacancies with Respondent. The majority holds that Mr. Kay was an agent of the employer with respect to the filling of job vacancies and the employer by extending apparent authority to Mr. Kay is liable for his actions. The panel holds that Mr. Kay, and hence the Respondent, did in fact fail or refuse to employ the Complainant on account of his race.'

The quoted reasoning by the Commission changed somewhat in the course of oral argument before this court, at which time the Commission took the position that Industrial Linens was liable for anything done by Kay in the course of his employment, just as any employer is liable under the principle of respondeat superior in an action for negligent injury caused by its employee to a third party.

It is unnecessary for the purpose of this opinion to decide whether either the doctrine of apparent agency or the doctrine of respondeat superior should be applied in full rigor in proceedings to enforce this type of governmental regulation. For present purposes it suffices to say that an employer is prima facie liable for the acts of its employee done in the course of his duties, and the employer to escape that liability must at least undertake the burden of showing that the employee's acts of discrimination were contrary to express instructions not to discriminate.

This rule has been applied in a series of cases under the New York statute prohibiting discrimination in regard to public accommodations. Hubert v. Jose, 148 App.Div. 718, 132 N.Y.S. 811 (1912); Jackson v. Imburgia, 184 Misc. 1063, 55 N.Y.S.2d 549 (1945); Hobson v. York Studios, 208 Misc. 888, 145 N.Y.S.2d 162 (1955). It is to be noted that the New York statute being implemented in those cases was quasi-criminal in that violation of the statute was punishable by fine. Since the Missouri Discriminatory Employment Practices statute, Chapter 296, is purely remedial in character, there is more reason to hold the employer to a high degree of responsibility than was true in the New York cases.

Of particular interest is the fact that the New York cases just cited rely in part upon the authority of an early Missouri decision, Town of Kirkwood v. Autenreith, 21 Mo.App. 73 (1886), in which it was held that the sale of liquor by an employee is prima facie evidence of liability on the part of the unlicensed employer, but that the authority of the employee may be rebutted by proof that the sale was made without the employer's knowledge and is disobedience of his order. The court in Autenreith quoted from and reiterated its opinion in an earlier appeal:

'The evidence made out a prima facie case, if the jury believed the statement of the witness. Under the old dramshop law, where one was charged with having sold wines, liquors, and suffering the same to be drunk in his grocery store, it was held that the fact that the liquors were drunk in the defendant's grocery was presumptive evidence that this was done with his permission. He had control in his house, and if he forbade the drinking it was for him to show it in his own defense. Casey v. The State, 6 Mo. 646.'

See also United States v. United States Steel Corp., 371 F.Supp. 1045, l.c. 1054(4) (N.D.Ala.1973) modified on other grounds, 520 F.2d 1043 (5th Cir. 1975).

Applying the rule of those cases here, the record in this case contains no evidence to show that Industrial Linens ever instructed Kay (or for...