Missouri Pac. R. Co. v. Missouri Commission on Human Rights

• Decision Date: 01 October 1980
• Docket Number: No. WD 31438.,WD 31438.
• Citation: 606 S.W.2d 496
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, a corporation, and United Transportation Union, an unincorporated association, Respondents, v. MISSOURI COMMISSION ON HUMAN RIGHTS, Appellant.
• Court: Missouri Court of Appeals

606 S.W.2d 496

MISSOURI PACIFIC RAILROAD COMPANY, a corporation, and United Transportation Union, an unincorporated association, Respondents, v. MISSOURI COMMISSION ON HUMAN RIGHTS, Appellant.

No. WD 31438.

Missouri Court of Appeals, Western District.

October 1, 1980.

John Ashcroft, Atty. Gen., Leslie Ann Schneider, Asst. Atty. Gen., Jefferson City, for appellant.

Charles R. Judge of Dubail, Judge, Kilker, O'Leary & Smith, St. Louis, for respondent United Transp. Union.

Paul E. Littleton, St. Louis, for respondent Missouri Pac. R. Co.

Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.

MANFORD, Judge.

This is a direct appeal from a circuit court judgment in the form of a writ of prohibition, declaring appellant to be without jurisdiction to conduct hearings on alleged employment discrimination practices. The judgment is affirmed.

Appellant, the Missouri Commission on Human Rights, is a state agency deriving its origin and authority from Chapter 296, RSMo 1978. Respondents are Missouri Pacific Railroad Company, the employer of complainants and the United Transportation Union, successor union to the Brotherhood of Railroad Trainmen.

Appellant presents two points of error. It contends (1) the trial court erred in making its preliminary writ permanent because appellant possessed jurisdiction as the result of continual discrimination and (2) the trial court erred in making its writ permanent because respondents had an adequate remedy at law by way of petition for review pursuant to Chapter 536, RSMo 1978.

Judgments in the form of writs are properly reviewable by direct appeal, see State ex rel. River Cement Co. v. Pepple, 585 S.W.2d 122 (Mo.App. 1979). The record in this case is limited to the pleadings, other documents in the form of affidavits and a stipulation of facts.

This case originated with the filing of four individual complaints of employment discrimination, with appellant, against respondent railway. All four complainants had been train porters for respondent railway. Their jobs were abolished between December, 1964 and May, 1965 as a direct result of the elimination of private railway passenger service. This elimination was the result of economic loss resulting from competitive modes of travel by buslines, airlines and private motor vehicles.

The four complaints were filed with the following lapses in time following the date of job abolishment: Complaint No. (1)-202 days, Complaint No. (2)-394 days, Complaint No. (3)-406 days and Complaint No. (4)-407 days. All four complaints were filed in 1966. Respondents filed their motion to dismiss on the premise that the complaints had not been filed within the time prescribed by statute (90 days), see § 296.040(7), RSMo 1969.¹ On October 12, 1978, appellant overruled respondents' motion to dismiss.

Respondents sought and secured a writ of prohibition, enjoining appellant from hearing the complaints upon failure to comply with § 296.040(7).

The stipulation of facts reveals the following:

"1. Plaintiff Missouri Railroad Company is an employer within the meaning of Section 296.010.3, RSMo 1969.

2. Plaintiff United Transportation Union is a labor organization within the meaning of Section 296.010.4, RSMo 1969.

3. Missouri Commission on Human Rights is a state administrative agency exercising quasi-judicial powers for the purpose of eliminating and preventing discrimination in employment because of race, creed, color, religion, national origin, sex or ancestry with the authority and the responsibility for administering and enforcing the provisions of Chapter 296, RSMo 1969.

4. The pertinent facts as to each individual complainant are as follows:

a. Archie Blackwell, a black male, was first employed as a train porter in June, 1936; his position as a train porter was abolished on May 15, 1965; his complaint with E.E.O.C. was referred to defendant on December 3, 1965; and his amended complaint with the Commission was filed on February 3, 1966.

b. J. E. Scott, a black male, was first employed by plaintiff Missouri Pacific as a train porter in March of 1944; his position as train porter was abolished on January 4, 1965; his complaint was filed with the defendant on February 2, 1966.

c. Charles McClennon, a black male, was first employed by plaintiff Missouri Pacific as a train porter in September, 1942; his position as a train porter was abolished on January 4, 1965; and his complaint was filed with defendant on February 14, 1966.

d. James A. Walker, a black male, was first employed as a train porter in August, 1946; his position as a train porter was abolished on January 4, 1965; his complaint was filed with defendant on February 15, 1966.

5. The following pertinent facts apply to each individual complainant after the abolition of their respective positions as train porters with plaintiff Missouri Pacific:

a. Archie Blackwell, after the abolition of his position as train porter, applied for the position of switchman; between 1966 and 1970, he worked on the extra board as a brakeman for plaintiff Missouri Pacific. In working as a brakeman, Archie Blackwell was not permitted to carry over his train porter's seniority b. J. E. Scott, after the abolition of his position as train porter, worked as a brakeman on the extra board; between November, 1965 and October 1966, he worked as a stowman; in August of 1966, he applied for a locomotive fireman's position and acquired a seniority date as a locomotive fireman of October 8, 1966. In December of 1971, J. E. Scott acquired seniority as a locomotive engineer and worked as a locomotive engineer until his retirement in September, 1973. In Scott's employment as a brakeman, fireman and engineer, he was not permitted to carry over his previously accumulated train porter's seniority.

c. Charles McClennon, after the abolition of his position as a train porter, applied for the position of switchman in April, 1965 and acquired a seniority date as a switchman in May of 1965, and served in that position until his retirement on September 3, 1969. In McClennon's employment as a switchman, he was not permitted to carry over his previously accumulated train porter's seniority.

d. James A. Walker, after the abolition of his position as a train porter, applied for the position of switchman in February, 1965, and was employed as a switchman on April 28, 1965, a position he has continued to occupy to date. In Walker's employment as a switchman, he was not permitted to carry over his previously accumulated train porter's seniority.

6. On September 15, 1977, the plaintiff Missouri Pacific was served a copy of an amended complaint, dated September 13, 1977, styled `In the Matter of Archie R. Blackwell, Charles McClennon, J. E. Scott, and James A. Walker, Complainants v. Missouri Pacific Railroad Company, Respondent', Clause No. 65 FEP 56, 2/66-322, 286, and 327, filed with the Missouri Commission on Human Rights by Robert R. Tyler, Executive Director of the Commission.

7. On September 30, 1977, the plaintiff United Transportation Union was served with an amended complaint, dated September 28, 1977, in an administrative enforcement action, styled `In The Matter of Archie R. Blackwell and Charles McClennon, Complainants, v. Brotherhood of Railroad Trainmen, United Transportation Union, Respondent', Cause No. E-2/66-294 and 323, filed with the Missouri Commission on Human Rights by Robert R. Tyler, Executive Director of the Commission.

8. On April 27 and 28, 1978 plaintiffs, as respondents in the administrative proceedings referred to in paragraphs 7 and 8 above, filed their motions to dismiss the amended complaints on the grounds that the Commission lacked jurisdiction over the subject matter of the proceeding because: (1) the acts complained of occurred prior to October 13, 1961, the effective date of the Missouri law prohibiting discrimination in employment, and, therefore, those acts could not serve as the basis for any liability, and (2) with respect to the alleged discriminatory events occurring after October 13, 1961, none of the complainants filed a complaint with the Commission within the required ninety (90) days as set forth in Section 296.040, RSMo 1969. Said Motions were overruled on October 12, 1978."

An old railway practice spanning many years and union contracts attending to a comparable period of time stated that when any railway employee changed job classification, he or she was not permitted to transfer employment seniority status to the successor job classification. All four complainants herein had several years job experience with respondent railway and were participating members in the train porters union. Following the abolishment of their jobs, they went on the "extra board" and as time progressed, were reemployed into other permanent positions with respondent railway. At present, one complainant is actively employed with respondent railway and the other three are retired.

The parties agree that none of the complaints were filed within 90 days of the job abolishment. Appellant, however, argues a continual discrimination, thus the filing of the complaints was timely to conform to the requirements of the statute.

Upon its first alleged error, appellant argues there were two acts of employment discrimination. The first such act was that of the job abolishment. The second was the fact that since the complainants were rehired on a permanent basis but were denied the transfer of seniority rights acquired while they were train porters, such denial resulted from the job classification and seniority system, which is discriminatory, and the denial of seniority rights continuing in effect, resulting in an "additional series of acts of discrimination" until the complaints were filed. Appellant then concludes that from such continual discrimination, the complaints were timely filed and appellant thus had jurisdiction to conduct hearings on the complaints.

The only issues before this court are whether appellan...