Schrock v. Xinsheng (Randy) Gan

• Decision Date: 26 July 2016
• Docket Number: WD 78835
• Citation: 494 S.W.3d 631
• Parties: Penny Schrock, Appointing Authority Department of Social Services, Division of Finance and Administrative Services, Respondent, v. Xinsheng (Randy) Gan, Appellant.
• Court: Missouri Court of Appeals

494 S.W.3d 631

Penny Schrock, Appointing Authority Department of Social Services, Division of Finance and Administrative Services, Respondent,

v.Xinsheng (Randy) Gan, Appellant.

WD 78835

Missouri Court of Appeals, Western District.

OPINION FILED: July 26, 2016

D. Ryan Taylor, Kansas City, MO, for respondent.

George S. Smith and Andrew G. Heitmann, Columbia, MO, for appellant.

Before Special Division: Mark D. Pfeiffer, Chief Judge, Presiding, Gary D. Witt, Judge and Anthony Rex Gabbert, Judge

Gary D. Witt

, Judge

INTRODUCTION

Appellant Xinsheng (Randy) Gan (“Employee”) appeals from the judgment of the Circuit Court of Cole County, which reviewed a decision by the Administrative Hearing Commission (“Commission”) that had determined that the termination of Employee's employment with the Missouri Department of Social Services (“Department”) was wrongful. Respondent Penny Schrock (“Employer”), representing the Department, had sought review of the Commission's decision by the circuit court. The circuit court found that the Commission had used the wrong legal standard in determining whether Employee's dismissal was for “racial reasons” and remanded the case back to the Commission. Employee seeks to appeal the circuit court's judgment, prior to the remand back to the Commission, and seeks affirmance of the Commission's decision. Because this Court reviews the decision of the Commission and not the circuit court, Employer, as the party aggrieved by the decision of the Commission, argues the Commission erred because it misapplied the law when it determined that Employee was dismissed for racial reasons because the Commission found that Employee had violated several Department policies and was insubordinate for failing to follow his employer's instructions.

FACTS AND PROCEDURAL HISTORY

On February 1, 2013, Employer dismissed Employee from his job as a Research Analyst for the Department after six years of employment. Employee was reprimanded by the Department for various alleged offenses on multiple occasions throughout his employment. These alleged offenses included: repeatedly falling asleep at his desk during work, unauthorized internet use, scratching his leg during a meeting, and leaving a meeting early. Although the Commission recognized that “there [was] cause to discipline [Employee] ... [for] using the internet for personal reasons ... and appearing to be sleeping at his desk in January 2013 when he was in fact meditating,” it found that these incidents were minor in nature. Further, it found that “[Employee's] race contributed to the appointing authority's decision to dismiss him and that his conduct was not of such serious nature as to warrant his dismissal.” Accordingly, the Commission found that Employee's dismissal was not for the good of the service and ordered his reinstatement. In other words, the Commission decided that cultural differences unfairly contributed to a negative perception of Employee, thus resulting in unlawful discrimination and, ultimately, the termination of his employment with the Department.

Employer then sought review of the Commission's decision at the Circuit Court of Cole County. The circuit court did not consider the substantive factual findings and legal conclusions of the Commission's decision. Rather, the circuit court determined that the Commission “exceeded its jurisdiction when it made a determination that race was a contributing factor in the underlying cause” (emphasis added). Instead, the circuit court decided that the “[Commission] can only determine if the dismissal was for racial reasons, a sole cause type analysis ... [and not just] that race was a contributing factor” (emphasis added). For these reasons, the circuit court ordered that “the cause is remanded to the [Commission] for issuance of its order consistent with the above analysis.” Employee now appeals the circuit court's judgment.¹

ANALYSIS

At issue in the circuit court's judgment is the authority of the Commission to find Employee was dismissed for racial reasons where race was a contributing factor in the decision to terminate his employment. “The [Commission] is a creature of statute and has only such ... authority as may be granted by the legislature.” Atwell v. Fitzsimmons , 452 S.W.3d 670, 676 (Mo.App.W.D.2014)

. The circuit court's judgment considered the authority of the Commission to make a determination that “race was a contributing factor” in the context of resolving an employee complaint raised under Chapter 36, the State Personnel Law. Section 36.390.5² provides the following:

Any regular employee who is dismissed or involuntarily demoted for cause or suspended for more than five working days may appeal in writing to the administrative hearing commission within thirty days after the effective date thereof, setting forth in substance the employee's reasons for claiming that the dismissal, suspension or demotion was for political, religious, or racial reasons, or not for the good of the service.

See also Section 621.075. Pursuant to the plain language of the statute, Employee has the right to challenge his dismissal by filing an appeal with the Commission if he believes his dismissal was for “racial reasons.”

Despite this clear mandate, the circuit court proceeded in its judgment to consider 1 CSR 20–3.080(4)(B)

, which is a regulation pertaining to personnel selection, appointment, evaluation, and separation. The regulation's stated purpose is to “[prohibit] discrimination and influences other than merit in the various aspects of personnel administration.” 1 CSR 20–3.080. 1 CSR 20–3.080(4)(B) provides the following:

In any case of alleged discrimination for which a review is not provided by the Missouri Commission on Human Rights and Chapter 213, RSMo, or by other provisions of these rules , an applicant or employee who feels adversely affected in an opportunity for employment, in his/her status as an employee, or in his/her condition of employment because of this discrimination, under this rule, may appeal to the Administrative Hearing Commission for a review of the alleged discriminatory action or practice.

(emphasis added). The circuit court found that this regulation conflicts with the statutory authority granted to the Commission by the legislature because, pursuant to the regulation, the Commission can only review cases for which Chapter 213 review (the Missouri Human Rights Act) is not provided.

It does not appear to this Court that any such conflict exists. First, whereas sections 36.390.5 and 621.075 apply explicitly and specifically to situations in which an employee has been dismissed , demoted or suspended , 1 CSR 20–3.080(4)(B)

is a regulation that provides a grievance procedure for any employee who feels “adversely affected” in opportunity for employment, status as an employee, or in conditions of employment. 1 CSR 20–3.080(4)(B) applies more broadly than sections 36.390.5 and 621.075, as no demotion or dismissal is required for 1 CSR 20–3.080(4)(B) to apply. Second, 1 CSR 20–3.080(4)(B) also explicitly contemplates that other regulations may provide the authority to review allegations of discrimination. One such regulation that the trial court failed to consider is 1 CSR 20–3.070(5), that explicitly applies to situations in which an employee has been separated from employment. The regulation provides:

Any regular employee who is dismissed shall have the right to appeal in writing to the Administrative Hearing Commission within thirty (30) days after the effective date setting forth in substance reasons for claiming the dismissal was for political, religious, or racial reasons or not for the good of the service.³

1 CSR 20–3.070(5)(A)

. Indeed, the regulations do provide what the statutes explicitly provide: review by the Commission in cases where an employee alleges he or she has been separated from his or her employment for racial reasons. 1 CSR 20–3.080(4)(B) merely provides an additional mechanism for the review of allegations of racial discrimination where no other review, whether under the MHRA or by the Commission, has already been provided.

However, the circuit court, in an attempt to harmonize 1 CSR 20–3.080(4)(B)

with section 36.390.5, concluded that the Commission only has the authority to determine “if the dismissal was for racial reasons, a sole cause type analysis.” Unstated in the judgment is exactly why a “sole cause type analysis” is appropriate and how it would resolve the alleged conflict, as opposed to the contributing factor analysis generally used by Missouri courts when considering claims of racial discrimination affecting employment. See e.g.,

Daugherty v. City of Maryland Heights , 231 S.W.3d 814, 819 (Mo. banc 2007) (“Nothing in this statutory language of the MHRA requires a plaintiff to prove that discrimination was a substantial or determining factor in an employment decision; if consideration of age, disability, or other protected characteristics contributed to the unfair treatment, that is sufficient”); see also

Templemire v. W&M Welding, Inc. , 433 S.W.3d 371, 383–84 (Mo. banc 2014) (explaining that Missouri provides greater protection than federal non-discrimination laws in that showing an illegal factor played a role in a discharge decision violates both the Missouri Human Rights Act and also the workers' compensation laws). Not only is it unclear, as explained supra , as to what conflict actually exists between the statutes and regulation considered by the circuit court, but equally perplexing is the crafted remedy.

Regardless, before we may address the substantive issues presented by this appeal, we must first consider Employer's motion to dismiss, which raises the issue of whether this Court has jurisdiction to decide the appeal. See DeGennaro v. Alosi , 389 S.W.3d 269, 273 (Mo.App.W.D.2013)

. If it is determined that jurisdiction does not exist, our only authority is to transfer the case to the court that does have jurisdiction. Moses v. Carnahan , 186 S.W.3d...