Schrock v. Xinsheng (Randy) Gan

• Decision Date: 04 September 2018
• Docket Number: WD 81268
• Citation: 563 S.W.3d 127
• 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

563 S.W.3d 127

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

v.XINSHENG (RANDY) GAN, Appellant.

WD 81268

Missouri Court of Appeals, Western District.

OPINION FILED: September 4, 2018

CORRECTION October 17, 2018

Motion or Rehearing and/or Transfer to Supreme Court Denied October 23, 2018

Application for Transfer Denied December 18, 2018

George Smith, Columbia, MO, Counsel for Appellant.

Daryl Taylor, Kansas City, MO, Counsel for Respondent.

Before Division One: Thomas J. Newton, P.J., Cynthia L. Martin, and Gary D. Witt, JJ.

Thomas H. Newton, Presiding Judge

Mr. Xinsheng Gan appeals a Cole County Circuit Court judgment reversing an Administrative Hearing Commission (Commission) decision reinstating Mr. Gan for the second time to his position as a research analyst with the Missouri Department of Social Services, Division of Finance and Administrative Services (Department).¹ As the party aggrieved by the Commission decision, the Department has filed the appellant’s brief and reply brief. Rule 84.05(e). The Department challenges the Commission’s application of the law in concluding again that Mr. Gan’s dismissal was not for the good of the service. We reverse the circuit court’s judgment and affirm the Commission’s decision.

As previously summarized by this Court, the record shows that in February 2013 the Department dismissed Mr. Gan after six years of employment. Schrock v. Gan , 494 S.W.3d 631, 633 (Mo. App. W.D. 2016).

[Mr. Gan] 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 [Mr. Gan] ... [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 "[Mr. Gan’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 [Mr. Gan’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 [Mr. Gan], thus resulting in unlawful discrimination and, ultimately, the termination of his employment with the Department.

[The Department] 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."

Id. Mr. Gan appealed that judgment to this Court, and, finding the appeal taken from a non-final judgment, we were precluded by law from reviewing the matter, but remanded it to the entity with jurisdiction for further proceedings. Id. at 637. We suggested that, on remand, the Commission "analyze the case on both a ‘sole cause’ and a ‘contributing factor’ analysis" in the interest of judicial efficiency, given our concerns about the circuit court’s legal conclusions. Id. at 637 n.4.

The Commission subsequently determined that a full evidentiary hearing was not needed and, in March 2017, adopted its previous findings of fact, found additional facts, and concluded that Ms. Penny Schrock’s decision to dismiss Mr. Gan was not based solely on his race.² Still, the Commission upheld its previous decision that his dismissal was not for the good of the service, in part because race contributed to Ms. Schrock’s decision, and reinstated him to his position as research analyst III. The Department filed a petition for judicial review to the Cole County Circuit Court which reversed, finding that the reinstatement was in excess of the Commission’s authority as it had misapplied the law and its determination was not supported by competent and substantial evidence upon the whole record. Mr. Gan timely filed this appeal.³

Legal Analysis

In the sole point on appeal, the Department argues that the Commission erred when it concluded that Mr. Gan’s dismissal was not "for the good of the service." The Department contends that the Commission misapplied the State Personnel Law, Chapter 36,⁴ in that the Commission reached this conclusion despite finding that Mr. Gan "engaged in inappropriate behavior at work and had been counseled numerous times by both his previous and more recent supervisors" before his dismissal.

Our standard of review in such cases has been articulated as follows:

On an appeal from the trial court’s review of an AHC [Commission] decision, we review the decision of the AHC, not the judgment of the trial court. The AHC’s decision will be upheld unless it is not supported by competent and substantial evidence upon the whole record; it is arbitrary, capricious, or unreasonable; it is an abuse of discretion; or it is otherwise unauthorized by law or in violation of constitutional provisions.

In determining whether a decision is supported by competent and substantial evidence, we review the record as a whole and determine whether the AHC’s decision is against the overwhelming weight of the evidence. Though we do not view the AHC’s factual findings in the light most favorable to the decision, we still must defer to its credibility findings, as the AHC is the sole judge of the credibility of witnesses and the weight and value to give to the evidence. We review the AHC’s conclusions on the interpretation and application of the law, however, de novo.

Cash v. Mo. Dep't of Revenue , 461 S.W.3d 57, 60 (Mo. App. W.D. 2015) (quoting Faenger v. Bach , 442 S.W.3d 180, 185-86 (Mo. App. W.D. 2014) (citations and internal quotation marks omitted) ).

Agreeing with the Commission’s conclusion that the Department had cause to dismiss Mr. Gan, the Department contends nevertheless that the Commission erred in applying the law when it decided that Mr. Gan’s dismissal was not for the good of the service. McSwain v. Morton , 452 S.W.3d 199, 205 (Mo. App. W.D. 2014), sets forth the two-tier inquiry an appointing authority must undertake to dismiss an employee for cause under section 36.380 by stating that "an appointing authority must first have cause to do so" and then "must consider whether dismissal is in the interests of efficient administration and whether the good of the service will be served thereby." (citations omitted). According to the Department, once the Commission found that Mr. Gan had violated several Department policies and was insubordinate for failing to follow his employer’s instructions, it "did not have the authority to go further." The Department argues that, under McSwain , the Commission improperly substituted its judgment for the Department’s as to whether the dismissal was "for the good of the service." We disagree. While McSwain indeed corrals the Commission’s review where an appointing authority determines that dismissal is for the good of the service, and while we may not "substitute our judgment for that of the agency as to what is for the good of the service, ... [its] determination is [not] thereafter unassailable." Id. at 209.⁵ The appointing authority’s decision may be reviewed "to determine whether the agency’s decision exceeded agency authority; was not based upon substantial and competent evidence on the record as a whole; was unreasonable, arbitrary or capricious; involved an abuse of discretion; or was otherwise unlawful." Id. at 209-10. (citations omitted).

The statute does not define "for the good of the service." Still, we have indicated that, to determine whether dismissal is for the good of the service, "the appointing authority must first consider whether the employee’s conduct affected either [his] ability to perform [his] job or the agency’s ability to carry out its obligations." Faenger v. Wofford , 442 S.W.3d 190, 197 (Mo. App. W.D. 2014). "The appointing authority must then consider whether the conduct’s effect on either the employee’s ability to perform [his] job or the facility’s ability to carry out its obligations was sufficiently serious as to warrant dismissal, rather than a lesser form of discipline." Id. at 198. The employing agency has the burden of establishing grounds for dismissal, thus "the appointing authority must present evidence before the [Commission] to support its consideration of each of these elements." Id.

The Commission concluded during its first review of Mr. Gan’s dismissal that "[t]he only evidence in the record regarding Gan’s job performance is that it was very good, and one supervisor called it ‘terrific.’ At the hearing, all of Gan’s supervisors agreed he was not discharged for performance reasons." Clearly, whatever conduct concerns purportedly justified the dismissal, the Department did not show that they affected Mr. Gan’s ability to perform his job. Nor does the Department argue in the appeal brief that they did so.

We focus then on whether the conduct’s effect on the facility’s ability to carry out its obligations was sufficiently serious as to warrant dismissal. In its dismissal letter, the Department outlined the various policies and rules that Mr. Gan had purportedly violated, but pointed to...