Medvik v. Ollendorff, 54792

• Court: Missouri Court of Appeals
• Writing for the Court: SATZ; SMITH, P.J., and STEPHAN
• Citation: Medvik v. Ollendorff, 772 S.W.2d 696 (Mo. App. 1989)
• Decision Date: 18 April 1989
• Docket Number: No. 54792,54792
• Parties: Stephen MEDVIK, Plaintiff/Appellant, v. Frank OLLENDORFF, Defendant/Respondent.

Page 696

772 S.W.2d 696

Stephen MEDVIK, Plaintiff/Appellant, v. Frank OLLENDORFF, Defendant/Respondent.

No. 54792.

Missouri Court of Appeals,

Eastern District,

Division Four.

April 18, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied May 17, 1989.

Application to Transfer Denied Aug. 1, 1989.

Alan G. Kimbrell, Rosecan & Kimbrell, St. Louis, for plaintiff/appellant.

Shulamith, Simon, Husch, Eppenberger, Donohue, Cornfeld & Jenkins, St. Louis, for defendant/respondent.

SATZ, Judge.

This appeal is before us for the second time. See Medvik v. Ollendorff, 727 S.W.2d 473 (Mo.App.1987). Plaintiff, Stephen Medvik (Medvik), was discharged from employment as a mechanic for University City, Missouri (City). He was notified of his termination in a letter from Willie Norfleet (Norfleet), the City's Director of Finance. Procedures established by the City allow an employee to appeal a disciplinary action to the City's Civil Service Board (Board). The Board holds a hearing and makes a recommendation to the City Manager. The City Manager provides the last review at the administrative level.

Medvik appealed his discharge to the Board, the Board recommended a suspension rather than a discharge, the City Manager, Frank Ollendorff (Ollendorff), sustained the discharge, and, on review, the circuit court reversed the discharge and ordered Medvik reinstated. On appeal, we reversed and remanded this cause to the circuit court, directing the court to remand the cause to Ollendorff for him to make Findings of Fact and Conclusions of Law, after reviewing the record and hearing oral argument or receiving written briefs. Medvik v. Ollendorff, supra, 727 S.W.2d at 472; §§ 536.080(1), (2), 536.090 RSMo (Supp.1987).

Apparently, the trial court remanded the cause to the Board, which made an identical finding and recommendation. Ollendorff, after following the process dictated by our prior opinion, again concluded Medvik's discharge should be sustained. The circuit court affirmed. We affirm the judgment of the trial court.

Medvik first contends his right to procedural due process was violated in the termination process. More specifically, he contends he was not given proper notice, he was denied his right to confront and cross-examine the witnesses used against him and he was denied the right to present witnesses in his own behalf. We disagree.

The City publishes an "Employees Handbook" which, among other things, sets out work rules, the recommended "Uniform Disciplinary Penalties ... for the Enforcement of General Work Rules" and the appeal "Procedure for Handling Complaints Relating to Discharge." The parties tacitly agree that this Handbook, by requiring cause for discipline and by establishing an appeal procedure, creates a property interest in continuing employment. See Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Medvik may not be deprived of this interest without appropriate procedural safeguards. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494, 503 (1985); Belton v. Board of Police Comm'rs of Kansas City, 708 S.W.2d 131, 137 (Mo. banc 1986). The Due Process Clause applies, but what process was due?

The City's "Employees Handbook" separates employee actions which constitute offenses into separate Groups and recommends punishment for the first and subsequent offenses in each Group. Apparently, there are four Groups of offenses. The higher the Group number, the more egregious the included offenses. Part of the dispute in this case involved a determination of whether Medvik's actions constituted a Group I or Group II offense. Discharge is recommended for a fourth Group I offense, but it is recommended after only two Group II offenses. ¹ The suggested discipline or discharge is determined not only by the nature of the current offense and, thus, its classification, but also by the nature of any prior offenses and, thus, their respective classifications and the frequency of those offenses. In sustaining Medvik's discharge, Ollendorff found that Medvik had committed four Group I violations--a current Group I violation and three prior ones. Medvik contends he did not receive proper notice of these charges. We read the record differently.

Medvik's counsel on appeal was not his counsel at the hearing before the Board. Medvik's appellate counsel must take the record as he finds it, and so must we.

In his letter of discharge to Medvik, Norfleet informed Medvik that the letter was "official notification" that Medvik's "employment [would be] terminated ... at the end" of the next working day. The letter also said Medvik's discharge resulted from an incident on March 15, 1985, involving "abusive language" directed to a fellow employee, Thirplis Williams, who is black. Several times during this incident, Medvik used the word "nigger," a derogatory, bigoted epithet. This language could be a Group I, Rule 13 offense--"an incident involving an unwanted or imprudent statement to a co-worker of a ... racial ... nature," or it could be Group II, Rule 20 offense--"... racial ... harassment of a co-worker."

Norfleet's letter also reminded Medvik of a 1983 incident in which he was "disciplined for making offensive remarks to Mr. Richard Kemp" and in which, Norfleet reminded Medvik, he was told: "Should any further incidents occur, your employment status will be reviewed and discharge may result." ²

At the hearing before the Board, Medvik was represented by counsel. His personnel file was read into the record, without objection. It disclosed the four incidents requiring discipline referred to in Ollendorff's findings--the then current 1985 incident and incidents in 1983, 1981 and 1980. Investigative reports of the City's Affirmative Action Committee concerning possible racial overtones in at least two of these incidents were also read into the record, without objection. Moreover, Medvik's counsel questioned the City's Affirmative Action Officer as well as Norfleet. Based upon this record, the Board, in its Findings of Fact, said it "did not believe the [1985] incident resulting in the discharge amounted to a Group II, Rule XIII, Racial Harrassment (sic). ..."; rather, the Board characterized Medvik's conduct as "Abusive Language of a Racial Nature," a Group I violation. Ollendorff also found the 1985 incident to be a Group I violation, and he found three prior incidents in 1983, 1981 and 1980, for which Medvik had been disciplined, were Group I violations.

Medvik contends Norfleet's letter did not notify him he was being charged with the four Group I violations upon which Ollendorff sustained Medvik's discharge. The letter, Medvik argues, notified him of only two violations--the then current 1985 incident and a 1983 incident, neither of which was classified by Group. Moreover, Medvik argues, the hearing before the Board did not cure the error of improper notice; rather, he argues the hearing before the Board compounded the error because during the hearing Norfleet characterized the 1985 incident as a Group II violation, not a Group I.

Medvik's view of Norfleet's letter is too narrow. The notice given by that letter in this administrative proceeding need not meet the precision required by a criminal or, even, a civil judicial proceeding. See, e.g. State ex rel. Powell v. Wallace, 718 S.W.2d 545, 548 (Mo.App.1986); Sorbello v. City of Maplewood, 610 S.W.2d 375, 376 (Mo.App.1980). Medvik simply needed to be fairly apprised of the grounds upon which his discharge was sought. Id. Norfleet's letter not only specifically pointed out the 1985 and 1983 incidents but also specifically reminded Medvik of the warning given him at the time of the 1983 violation--"Should any further incidents occur, your employment status will be reviewed and discharge may result" (emphasis added). Sensibly read, this is warning enough that Medvik's entire employment would be reviewed. Medvik was no neophyte naively lost in a procedural maze; nor does the record indicate the counsel Medvik retained was a new boy on the block. More important, perhaps, at the hearing before the Board, Medvik's counsel made no objection to or inquiry about Medvik's prior violations and the accompanying disciplinary actions which were read into the record by Norfleet.

Admittedly, when asked whether he was basing Medvik's discharge on a Group II offense, Norfleet answered: "That's correct." ³ But, Norfleet also said he was not basing his "judgment on one incident." He was "basing it on the continuation of several incidents and several problems consistently with ... Medvik." He went on:

"It's just that this last incident demanded action and I took action. And it's not a hasty move on my behalf. It's after careful consideration of the employee, looking at the history, I feel that it's in the best interest of the City to terminate that employee."

Learning this, Medvik's counsel could not help from knowing it was Medvik's prior violations, precisely laid out before the Board, which were the grounds for his discharge. This was adequate notice to Medvik.

If not adequate notice, then, the unquestioning acceptance by Medvik's counsel of the City's proof of Medvik's prior violations constitutes a waiver of that notice. Admittedly, a waiver is the intentional relinquishment of a known right. E.g. Shapiro v. Shapiro, 701 S.W.2d 205, 206 (Mo.App.1985). And, that intent is never lightly inferred, see, Dunn v. Pickard, 284 S.W.2d 6, 9 (Mo.App.1955), particularly, when, as here, the right in issue is a constitutional right. See, e.g. Klein v. Harris, 667 F.2d 274, 288 (2d Cir.1981). But, this reluctance to find a waiver stems from the basic reason for the existence of the right to notice: simple fairness. We have carefully read the record here. On the present facts, Medvik was fairly notified of the charges against him.

Medvik also contends he was denied the right to confront and cross-examine the witnesses...