Schwartz v. City of St. Louis

• Decision Date: 25 November 2008
• Docket Number: No. ED 90774.,ED 90774.
• Citation: Schwartz v. City of St. Louis, 274 S.W.3d 509 (Mo. App. 2008)
• Parties: Timothy SCHWARTZ, Respondent, v. CITY OF ST. LOUIS, Missouri, et al., Appellants.
• Court: Missouri Court of Appeals

274 S.W.3d 509

Timothy SCHWARTZ, Respondent, v. CITY OF ST. LOUIS, Missouri, et al., Appellants.

No. ED 90774.

Missouri Court of Appeals, Eastern District, Division Two.

November 25, 2008.

Motion for Rehearing and/or Transfer to Supreme Court Denied January 21, 2009.

Christine Hodzic, St. Louis, MO, for appellants.

Charles W. Bobinette, St. Louis, MO, for respondent.

LAWRENCE E. MOONEY, Judge.

The City of St. Louis and its Civil Service Commission appeal the judgment of the Circuit Court of the City of St. Louis, which reversed the Commission's decision to uphold Timothy Schwartz's demotion for acting in an inappropriate and abusive manner toward a subordinate. We conclude that the City's notice was inadequate to permit Schwartz to present a meaningful defense, and so the Commission's decision was made upon unlawful procedure and without a fair hearing. We also hold that the Commission's imprecise and conclusory findings deprive this Court of any ability to conduct a meaningful review. We affirm the circuit court's judgment reversing the Commission's decision, as modified herein, and remand with directions to order the Commission to reinstate Schwartz as electrician foreman and to determine the amount of back pay that Schwartz lost as a result of his wrongful demotion, together with interest as provided by law.

Schwartz joined the City's water division as an electrician in 1988 and became an electrician foreman in 1996. James Gougisha worked as a lead electrician with the water division and reported directly to Schwartz. Schwartz and Gougisha had numerous, long-standing difficulties with one another, which culminated during the week of July 18, 2005. The City scheduled Schwartz for a pre-termination hearing and gave him the following notice of the allegations.

"[Y]ou have committed an act or acts to the prejudice of the service", "you have omitted to perform an act or acts it was your duty to perform", and "you are unable or unwilling to perform the duties of your position in a satisfactory manner" in that, during the week of July 18, 2005 you acted in an inappropriate and abusive manner toward your subordinate in violation of division work rules.

Following the pre-termination hearing, the City declined to terminate Schwartz's employment and instead demoted him from electrician foreman to electrician. Schwartz appealed to the Commission, which upheld the demotion. The Commission found that "[e]ffective August 21, 2005, [Schwartz] was demoted to the position of Electrician in that during the week of July 18, 2005, [Schwartz] acted in an inappropriate and abusive manner toward James Gougisha, his subordinate, on three occasions."

We discern from the record that the three occasions are as follows. First, Schwartz and Gougisha argued after Gougisha expressly and knowingly countermanded Schwartz's instructions to two subordinate crew members. The next day, Schwartz allegedly used a curse word when speaking to Gougisha and forbade Gougisha from working on the project that was the source of the previous day's conflict. Third, Gougisha testified that the day after that, Schwartz berated him at length for numerous perceived deficiencies. Schwartz's version of the second and third incidents differed markedly from Gougisha's, and other witnesses whom the Commission found credible contradicted parts of Gougisha's testimony. On appeal, the City acknowledges that the first incident alone might not suffice as a basis to demote Schwartz, but argues that the three incidents combined support the demotion.

Schwartz filed a petition for review with the circuit court, which reversed the Commission's decision, ordered Schwartz reinstated to his foreman position, and awarded back pay with interest. The City and the Commission now appeal.¹

In three points, Schwartz claims that he did not receive adequate notice of the charges against him, he challenges the Commission's findings as vague and conclusory and based upon contradictory testimony, and he claims the Commission's findings are not supported by competent and substantial evidence.

We review the administrative ruling rather than the decision of the circuit court. Lagud v. Kansas City Bd. of Police Comm'rs, 136 S.W.3d 786, 791 (Mo. banc 2004); Morgan v. City of St. Louis, 154 S.W.3d 6, 8 (Mo.App. E.D.2004). We review to determine whether the administrative action: 1) violates constitutional provisions; 2) exceeds the agency's statutory authority or jurisdiction; 3) is unsupported by competent and substantial evidence upon the whole record; 4) is unauthorized by law; 5) made upon unlawful procedure or without a fair trial; 6) is arbitrary, capricious, or unreasonable; or 7) involves an abuse of discretion. Section 536.140.2 RSMo. (2000 & Supp.2007);² Lagud, 136 S.W.3d at 791.

The U.S. Supreme Court has set forth three due-process requirements for a tenured public employee. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). These are notice of the charges, an explanation of the employer's evidence, and an opportunity for the employee to be heard. Id. The City's Department of Personnel Administrative Regulation No. 117 incorporates these requirements and provides that, prior to imposition of any disciplinary action, "the employee must be advised of the charges against him/her and given an explanation of the evidence and an opportunity to present any disputed facts or mitigating circumstances." The City acknowledges that Administrative Regulation No. 117 governs the Commission's proceedings.

In his first point, Schwartz claims that the Commission's decision was made upon unlawful procedures and without a fair trial. He asserts that the City failed to give him adequate notice of the basic facts constituting the cause for the City's contemplated disciplinary action. The City counters that "[a]ny allegations of failure to provide specific facts in the notices is irrelevant because [Schwartz] attended the pre-termination hearing and heard first hand all of the facts, details, and dates at issue."

The key issue is whether the pre-termination notice provided Schwartz with sufficient notice of the grounds for his contemplated termination, and ultimately his demotion. This is a question of law, which we review de novo and without deference to the Commission's rulings. Smith v. Rosa, 73 S.W.3d 862, 865 (Mo. App. W.D.2002). An employee must receive sufficiently detailed notice so that he or she can protect him- or herself from unfair disciplinary action. Id. Adequate notice permits an employee "to be heard at a meaningful time and in a meaningful manner by allowing [the employee] enough information to be able to defend the allegations and to present conflicting evidence in a timely manner." Div. of Family Services v. Cade, 939 S.W.2d 546, 554 (Mo. App. W.D.1997). This means that "[g]eneralizations are not sufficient. Instead, specific details regarding the employee's alleged misconduct must be stated. Those details must be sufficient to enable the employee to understand the basis for the [disciplinary action] and to be able to oppose the action." Rosa, 73 S.W.3d at 865.

In Smith v. Rosa, in the context of a suspension notice, the Western District acknowledged that charges...