Phipps v. School Dist. of Kansas City

• Decision Date: 23 November 1982
• Docket Number: No. WD,WD
• Citation: Phipps v. School Dist. of Kansas City, 645 S.W.2d 91 (Mo. App. 1982)
• Parties: 9 Ed. Law Rep. 413 Thomas J. PHIPPS, Appellant, v. The SCHOOL DISTRICT OF KANSAS CITY, Missouri, Respondent. 33243.
• Court: Missouri Court of Appeals

Page 91

645 S.W.2d 91

9 Ed. Law Rep. 413

Thomas J. PHIPPS, Appellant, v. The SCHOOL DISTRICT OF KANSAS CITY, Missouri, Respondent.

No. WD 33243.

Missouri Court of Appeals Western District.

Nov. 23, 1982.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Jan. 4, 1983.

Application to Transfer Denied

Feb. 23, 1983.

Doyle R. Pryor, Jolley, Moran, Walsh, Hager & Gordon, Kansas City, for appellant.

Mildred L. Watson, North, Watson & Bryant, Kansas City, for respondent.

Before SHANGLER, P.J., and PRITCHARD and DIXON, JJ.

SHANGLER, Presiding Judge.

The plaintiff Phipps sought judicial review under § 536.150, RSMo 1978 and Rule 100.08 of the administrative decision by the School District of Kansas City to terminate employment. The circuit court sustained the agency decision, and the plaintiff Phipps appeals.

The plaintiff was one among some one-hundred-forty nonteacher [custodial, maintenance and cafeteria] personnel terminated for absence from work practiced in support of a teacher strike which began March 20, 1977. The plaintiff, a school employee for twenty-four years, held the position of custodian-fireman when the strike began. The Board of Directors of the School District voted the terminations to have effect on April 25, 1977.

Then, on May 6, 1977, a circuit judge ordered the School District to permit all employees terminated during the strike to return to work and on May 9, 1977, the strike ended and the plaintiff resumed employment. A letter of the School District thereafter informed plaintiff Phipps that "evaluation of your performance" prompted demotion from custodian-fireman to custodian I, a lesser classification with lesser pay, effective on June 20, 1977. [Phipps protested that action, but the grievance was never resolved.] On June 27, 1977, our rule in prohibition stayed the order of the circuit court as beyond the judicial power. School District of Kansas City v. Clymer, 554 S.W.2d 483 (Mo.App.1977).

In consequence of our adjudication to enjoin the order of the circuit court to reinstate the nonteacher strikers, the School Board by a consensus but without formal vote, decided again to terminate those employees. The letter of the Assistant Superintendent of Schools informed Phipps and the others that "your employment ... terminated last April 25, 1977 ... is again made effective at the close of business on July 8, 1977." In response to the School Board action, Walker [secretary-treasurer of the Service Employees' Union, Local 12, representative of the custodial, maintenance and cafeteria school workers] brought claim in the federal district court that the terminations violated the civil rights of the employees. The suit prompted the School District to enlist the mediation of a labor union official, and in due course a tentative agreement was fashioned between counsel. That agreement was formally approved by the School Board and ratified by member of the union local. The terms directed the dismissal of the federal court suit and provided also:

1. All employees terminated effective April 25, 1977 and/or July 8, 1977 will be permitted to apply for reappointment to the positions from which they were terminated.

2. [E]ach person who applies for reappointment by delivering to the District a completed form requesting reappointment shall be reappointed to a position with the same salary as that position held with the District on the date of termination ... Each person who desires reappointment must return the attached form to the District ....

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4. ... The District reserves the right to refuse reappointment to those persons whose acts exceeded peaceful support for or participation in the teachers strike.

5. The District reserves the right to discipline each person reappointed pursuant to this agreement by placing in each person's personnel file a written reprimand for that person's conduct during the period March 20, 1977 through July 8, 1977. The District will take no punitive action, other than said reprimands, against employees whose conduct did not exceed peaceful support for or participation in the teachers strike .... [emphasis added]

The plaintiff Phipps submitted application for reappointment under the terms of the Tentative Agreement [by now a consummated accord]. Instead of reappointment as custodian-fireman [the position and grade occupied on April 25, 1977 termination] the District offered appointment as a custodian I [as degraded after rehire under the court order later nullified by the appeals court and the position occupied on the July 8, 1977 retermination]. Phipps deemed the offer in violation of the Tentative Agreement and refused employment on those terms. A grievance for Phipps and others proceeded under the method defined in the Tentative Agreement and was denied by a final decision of the School Board. Phipps petitioned for judicial review of the administrative decision, but was dismissed by the circuit court for failure to state a claim. On appeal, we determined that the grievance was entitled to judicial review as an uncontested case under § 536.150, RSMo 1978 and Rule 100.08 and remanded for that exercise [Phipps v. School District of Kansas City, 588 S.W.2d 128 (Mo.App.1979) ].

The plaintiff Phipps contends on the judicial review remand that the School District offer to appointment as custodian I violates the Tentative Agreement provision to reappoint an applicant "to a position with the same salary as that position held with the District on the date of termination." That contention rests on the rationale that he was terminated only once--on April 25, 1977--and that since on that date he was a fireman-custodian, the contract contemplated reappointment to that position and salary. That contention rests also on the cognate premise that the purpose of agreement was to restore the status quo ante strike, and that the refusal to reappoint Phipps to custodian-fireman violates that intention. The School Board contends that Phipps was terminated twice--once on April 25, 1977 and again on July 8, 1977, and that the offer to appoint Phipps as custodian I [the position he held on that latter date] accords with the Tentative Agreement to restore the applicant employment "to the position from which [he was] terminated." The circuit court on remand adjudged that Phipps was terminated twice, once on April 25, 1977, and then again on July 8, 1977, so that the offer by the School Board to appoint the employee to custodian I--the position he then occupied--conformed to the contract duty to reinstate to the position held with the District on the date of termination.

The circuit court understood the function of judicial review under § 536.150 and Rule 100.08 was to adjudge "whether or not there [was] competent and substantial evidence to support the [School Board administrative] decision to reappoint or offer to reappoint plaintiff to the position of custodian I, the position he held July 8, 1977, and to deny his grievance therefrom." That is to say [in terms of the issue as posed by the litigants], that the termination date--as applied to Phipps--meant by the Tentative Agreement was July 8, 1977, rather than April 25, 1977. The memorandum of judgment notes [as does our opinion on the first appeal, Phipps v. School District of Kansas City, 588 S.W.2d 128, 133 (Mo.App.1979) ] that the administrative hearing was a noncontested case and conducted as such--without a record of the evidence, and hence without a transcript for review. The role of the circuit court on review of an administrative decision on a noncontested case is inherently more encompassed than that on a review of a contested case. State ex rel. Walmar Investment Co. v. Mueller, 512 S.W.2d 180, 182 (Mo.App.1974). In a contested case, the circuit court reviews a record already composed by the administrative decision and so due the deference of a credibility already assessed and an expertise already applied. Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, 894[1-4] (Mo. banc 1978); Hill v. Missouri Department of Public Health and Welfare, 520 S.W.2d 182, 184 (Mo.App.1975). The judicial [circuit court] review of such a case is from the decision of the administrative tribunal [Edmonds v. McNeal, 596 S.W.2d 403, 407 (Mo. banc 1980); Rule 100.07(b) ] and determines, among other inquiry, whether the agency action rests on competent and substantial evidence upon the whole record [§ 536.140.2; St. Louis County Police Officers Union Local 844 v. Gregory, 622 S.W.2d 713 (Mo.App.1981) ]. In a noncontested case, on the other hand, the administrative body acts on discretion or on evidence not formally adduced and preserved. Farmer's Bank of Antonia v. Kostman, 577 S.W.2d 915, 921[4-10] (Mo.App.1979). The circuit court on such a "review" has no record to review [Karzin v. Collett, 562 S.W.2d 397, 399 (Mo.App.1978) ], and thus owes no deference to conform doubtful evidence to the administrative decision [Board of Education, Mt. Vernon Schools v. Shank, 542 S.W.2d 779, 781[2-6] (Mo. banc 1976) ]. The circuit court on "judicial review" of a noncontested agency decision, rather, exercises a parity of function with the administrative tribunal in a contested case: to hear evidence on the merits of the case, to find the facts, and to make a record. State ex rel. Leggett v. Jensen, 318 S.W.2d 353, 357 (Mo. banc 1958); State ex rel. Wilson Chevrolet, Inc. v. Wilson, 332 S.W.2d 867, 870 (Mo.1960). The circuit court on a Rule 100.08 review, in short, conducts a hearing de novo on an original action to determine post hoc on the facts as found by the court whether the administrative decision conforms to the constitution, the laws, and is not otherwise "unreasonable, arbitrary or capricious or involves an abuse of discretion." § 536.150; State ex rel. Walmar Investment Co. v. Mueller, 512 S.W.2d 180, 182 (Mo.App.1974); State ex rel. State Tax Commission v. Walsh, 315 S.W.2d 830, 832 (Mo. banc 1958).

Thus,...