Lampley v. Mo. Comm'n On Human Rights

• Decision Date: 26 February 2019
• Docket Number: No. SC 96828,SC 96828
• Parties: Harold LAMPLEY and Rene Frost, Appellants, v. The MISSOURI COMMISSION ON HUMAN RIGHTS and Alisa Warren, Respondents.
• Court: Missouri Supreme Court

570 S.W.3d 16

Harold LAMPLEY and Rene Frost, Appellants,

v.The MISSOURI COMMISSION ON HUMAN RIGHTS and Alisa Warren, Respondents.

No. SC 96828

Supreme Court of Missouri, en banc.

Opinion issued February 26, 2019

Lampley and Frost were represented by Jill A. Silverstein, D. Eric Sowers, Ferne P. Wolfe and Joshua M. Pierson of Sowers & Wolf LLC in St. Louis, (314) 744-4010.

The commission and its executive director were represented by State Solicitor D. John Sauer and Deputy Solicitor Julie M. Blake of the attorney general’s office in Jefferson City, (573) 751-3321; and Bruce Farmer and Bart A. Matanic of the state’s department of labor and industrial relations in Jefferson City, (573) 751-3844.

The American Civil Liberties Union of Missouri and a number of other organizations, which filed a brief as friends of the Court, were represented by Anthony E. Rothert of the ACLU of Missouri in St. Louis, (314) 652-3114.

George W. Draper III, Judge

Harold Lampley (hereinafter, "Lampley") and Rene Frost (hereinafter, "Frost") appeal from the circuit court’s grant of summary judgment in favor of the Missouri Commission on Human Rights (hereinafter, "the Commission") on their consolidated allegations of violations of the Missouri Human Rights Act, section 213.010 et seq. , RSMo 2000 (hereinafter, "the Act").¹ The circuit court’s judgment is reversed, and the case is remanded.²

Factual and Procedural History

The facts viewed in the light most favorable to Lampley and Frost are as follows: In July 2014, Lampley filed charges of sex discrimination and retaliation against his employer, the State of Missouri, Department of Social Services Child Support Enforcement Division (hereinafter, "Employer"), pursuant to sections 213.055.1(1) and 213.070.1(2) of the Act. Lampley’s "Charge of Discrimination" form submitted to the Commission provided a list of discriminatory actions and instructed the complainant to check the appropriate boxes. Lampley checked boxes indicating he was discriminated against based on "sex" and "retaliation." Lampley also provided a more detailed factual summary of his claims.

In his factual recitation, Lampley stated he is a gay man. Lampley elaborated he does not exhibit the stereotypical attributes of how a male should appear and behave. Lampley alleged other similarly situated co-workers, those who were not gay and exhibited stereotypical male or female attributes, were treated differently. Because he exhibited non-stereotypical behaviors, Lampley asserted he was subjected to harassment at work. Further, Lampley alleged he was grossly underscored in a performance evaluation in retaliation for his complaints.

In December 2014, Frost submitted her "Charge of Discrimination" form to the Commission. The charge of discrimination contained the same list of discriminatory actions and instructions as Lampley’s. Frost checked boxes indicating she was discriminated due to "retaliation" and "other." Following the indication of "other" discrimination, Frost wrote, "Association with person protected by section 213.010 et seq. " Frost also provided a more detailed factual summary of her claims.

In her factual recitation, Frost detailed her close friendship with Lampley, noting his non-stereotypical attributes of how a male should appear and behave. Frost alleged she filed a complaint against Employer for violating its policy and breaching confidentiality after publicly announcing her performance review. Frost believes Employer’s conduct stemmed from her friendship with Lampley. After filing her complaint, Employer moved Frost’s desk away from Lampley and other co-workers with whom she collaborated. Frost was informed she and Lampley were no longer allowed to eat lunch together. Unlike other employees, Frost and Lampley had vacation time docked for meeting with their union representative. Frost alleged she continued to suffer from Employer’s verbal abuse, threats about her performance review, and other harassing behaviors.

The Commission opened investigations into Lampley and Frost’s claims. The Commission’s investigator assumed Lampley’s claim of discrimination based on sex meant "sexual orientation." The investigator concluded sexual orientation is not protected by the Act. Similarly, the investigation summary of Frost’s claim asserted her claim of "association with someone who is gay" is not protected by the Act. Subsequently, the Commission terminated its proceedings in both matters in 2015, stating Lampley’s and Frost’s complaints do not involve a category covered by the Act.³ The matters were closed administratively.

Lampley and Frost filed petitions for administrative review or, alternatively, a writ of mandamus, asking the circuit court to direct the Commission to issue notices of right-to-sue letters. Both petitions made the same averments as in their respective charges of discrimination. The circuit court consolidated their petitions. The parties filed cross-motions for summary judgment. The circuit court sustained the Commission’s summary judgment motion, finding Lampley’s and Frost’s claims fail under Pittman v. Cook Paper Recycling Corp. , 478 S.W.3d 479 (Mo. App. W.D. 2015). Lampley and Frost appeal.

Noncontested Case

In any administrative matter, the determination of whether the proceeding was contested or noncontested is determined as a matter of law. City of Valley Park v. Armstrong , 273 S.W.3d 504, 506 (Mo. banc 2009).

Contested cases provide the parties with an opportunity for a formal hearing with the presentation of evidence, including sworn testimony of witnesses and cross-examination of witnesses, and require written findings of fact and conclusions of law. The review of a contested case is a review by the trial court of the record created before the administrative body.... Non-contested cases do not require formal proceedings or hearings before the administrative body. As such, there is no record required for review. In the review of a non-contested decision, the circuit court does not review the administrative record, but hears evidence, determines facts, and adjudges the validity of the agency decision.

Furlong Co., Inc. v. City of Kansas City , 189 S.W.3d 157, 165 (Mo. banc 2006) (internal citations omitted). Because there was no hearing at the Commission, this case is a noncontested case. Kinzenbaw v. Dir. of Rev. , 62 S.W.3d 49, 52 (Mo. banc 2001).

Section 536.150 governs the standard of judicial review for noncontested cases. Armstrong , 273 S.W.3d at 508. While Lampley’s and Frost’s petitions stated they were seeking mandamus review pursuant to section 536.150, review of a noncontested case may be "by suit for injunction, certiorari, mandamus, prohibition or other appropriate action...." Section 536.150.1.⁴ There is no limitation, as suggested by the dissenting opinion, a noncontested case must proceed by writ of mandamus because the statute governing noncontested review clearly delineates multiple avenues to pursue relief. "The circuit court does not review the record for competent and substantial evidence, but instead conducts a de novo review in which it hears evidence on the merits, makes a record, determines the facts and decides whether the agency’s decision is unconstitutional, unlawful, unreasonable, arbitrary, capricious or otherwise involves an abuse of discretion." Id.

The dissenting opinion finds this case is procedurally deficient based upon the guidelines set forth in the concurring opinion in U.S. Dept. of Veterans Affairs v. Boresi , 396 S.W.3d 356, 364 (Mo. banc 2013). The concurring opinion in Boresi sets forth the procedure for mandamus in the circuit court and suggests a court should not issue a writ that fails to follow that procedure strictly. Id. The Boresi concurring opinion is not binding on this Court. Canary Taxicab Co. v. Terminal Ry. Ass'n of St. Louis , 316 Mo. 709, 294 S.W. 88, 92 (Mo. banc 1927). The principal opinion acknowledged the proper writ procedure, but noted the parties and the circuit court’s failure to follow the writ procedure strictly, stating,

[T]his Court is exercising its discretion to consider the matter on the merits and issue the writ because the parties, who already have litigated the matter fully, were not at fault and should not be required to initiate a new writ proceeding due to the circuit court’s failure to follow the procedure proscribed by the rules.

Boresi , 396 S.W.3d at 359 n.1. Further, the principal opinion recognized this Court is not required to exercise discretion in future matters. Id. However, the Court did not foreclose the possibility of exercising its discretion either.

Following Boresi , this Court was presented with two situations wherein the parties failed to follow the proper writ procedure. See Tivol , 527 S.W.3d at 842 and Bartlett , 528 S.W.3d at 913, issued the same day in 2017. In Tivol , this Court opted to exercise its discretion as in Boresi because the case was litigated "as if the circuit court had issued a preliminary order in mandamus and then denied the permanent writ." Tivol , 527 S.W.3d at 842. Further, the Court noted the lack of fault on the part of the parties and the importance of the issues in the case. Id. Again the Court cautioned, "Parties should not expect unending tolerance from the appellate courts for such failures to follow Rule 94.04, however, particularly when the question is not of such general interest or when the parties were made aware of the failure to follow Rule 94...." Id.⁵

In contrast, in Bartlett , "this Court declined to exercise its discretion to treat the summons as a preliminary order, for in that case the plaintiff told the clerk to issue a summons rather than treat the matter as a writ and repeatedly declined to follow the procedure applicable to writs despite numerous motions by the State requesting the court order the plaintiff to do so." Tivol , 527 S.W.3d at 842. The Court reiterated its warning from Boresi : "This Court is not required to exercise its discretion in like manner...