Smith v. Rosa

• Court: Missouri Court of Appeals
• Writing for the Court: Ronald R. Holliger
• Citation: Smith v. Rosa, 73 S.W.3d 862 (Mo. App. 2002)
• Decision Date: 30 April 2002
• Docket Number: No. WD 60229.,WD 60229.
• Parties: Mona SMITH, Human Resources Director, Missouri Department of Social Services, Division of Family Services, Respondents, v. Kimberly ROSA, Appellant.

73 S.W.3d 862

Mona SMITH, Human Resources Director, Missouri Department of Social Services, Division of Family Services, Respondents, v. Kimberly ROSA, Appellant.

No. WD 60229.

Missouri Court of Appeals, Western District.

April 30, 2002.

Howard Bodney, Overland Park, KS, for appellant.

Gerald Lyle Meyr, Jefferson city, for respondent.

RONALD R. HOLLIGER, Judge.

The Missouri Personnel Advisory Board ("PAB") reversed the suspension of a Division of Family Services supervisor arising out of a mishandled "hotline call" where two children in Kansas City were found dead from abuse. Because we find that one of the reasons stated in the suspension notice was sufficiently specific, we reverse and remand for an evidentiary hearing by the PAB on the merits of the Division's discipline of the supervisor.

Kimberly Rosa ("Rosa") was employed as a supervisor in the Jackson County office of the Division of Family Services ("DFS"). In August 1999, a hotline referral was made regarding the children of Mary Bass. Melissa Johnson ("Johnson") was the DFS worker assigned to investigate that referral and to conduct a family assessment of Mary Bass and the Bass children. Rosa was Johnson's supervisor, but was on vacation at the time the referral and investigation took place.

Johnson's report was provided to Rosa for approval roughly one month later, once Rosa had returned from vacation. The report found that there was no indication of risk or danger to the Bass children. There are allegations in the briefs that sections of the report were incomplete at the time, but may have been completed by Rosa. Johnson had also not interviewed two of the Bass children (Larry and Gary) though there are allegations in the briefs (which DFS claims are not drawn from the record) that Johnson had made efforts to locate and speak with the children but was unable to do so. Despite the incompleteness of the report, Rosa approved the report and signed off on that report. Roughly two months later, Larry and Gary Bass died due to abuse and neglect.

On November 9, 1999, Smith sent Rosa a letter advising her that she was being suspended without pay for a period of twenty working days, effective November 17, 1999. The specific discussion of the grounds for her suspension was stated as:

As a supervisor, it is your responsibility to review and approve the work of your employees to ensure that each case is properly handled. On August 16, 1999, in response to a call from the Child Abuse/Neglect Hotline alleging physical abuse and withholding of food from the B. family, your worker, M. Johnson visited the family of M.B. on two occasions. She did not see two of the alleged victims and yet concluded that the children were safe. You reviewed the activity of M. Johnson on this case, and approved her work in spite of the fact that the worker had not completed a thorough review, nor completed a safety assessment. Your decision placed the B. children in danger of physical abuse and neglect.

You have been negligent in your supervisory duties. Specifically, you were negligent in the case of L.B. and G.B. because you did not assist your worker in following through on a very serious complaint, which endangered the lives of two young children.

Rosa timely appealed her suspension to the Personnel Advisory Board contending that she was denied her procedural due process rights because the suspension letter failed to describe the specific conduct or negligence for which she was being suspended. The PAB found that the suspension letter failed to "`specifically' set forth the reasons for the suspension" and to "set forth `in substance'" those reasons before the suspension becomes effective. For that reason, the PAB disapproved of the suspension and reinstated Rosa.

DFS then appealed the decision of the PAB to the Cole County Circuit Court, which sustained in part and reversed in part the PAB's decision. The circuit court held that the PAB correctly determined that, to suspend Rosa under 1 CSR 20-3.070(2)(L) (violation of regulations or policies), the suspension letter must specifically identify the regulation or policy which was violated by the employee. The circuit court, however, held that the PAB erred with regard to DFS' allegations under 1 CSR 20-3.07(2)(B) (incompetence, careless, or inefficient performance), as the suspension letter need not allege the violation of a specific regulation or policy if the suspension is premised upon this latter regulation. The circuit court's judgment remanded the cause to the PAB for further proceedings.

In this matter, we review the decision of the PAB, not the intermediate decision reached by the circuit court in reviewing the agency's ruling. Weisenburger v. City of St. Joseph, 51 S.W.3d 119, 123 (Mo.App.2001). The central issue in this appeal is whether the suspension letter provided by Rosa provides sufficient notice of the grounds for her suspension. This is a question of law. Hattervig v. de la Torre, 870 S.W.2d 895, 897 n. 2 (Mo.App.1993). Accordingly, we review this issue de novo, and need not defer to either the circuit court or the rulings of the PAB. Kunz v. Personnel Advisory Bd., 740 S.W.2d 395, 397 (Mo.App.1987).

There is no dispute that Rosa has a property interest in continuing employment with DFS. Likewise, the parties agree that prior to suspension, Rosa was entitled to adequate notice regarding the suspension and the reasons for which she was being suspended. The battleground, here, is whether that pre-suspension notice, provided in the form of a letter to Rosa, was sufficient.

To help frame the specific issues posed in the present appeal, we begin with a discussion of the general standards applied to suspension letters such as the letter provided to Rosa. This court set out standards for evaluating pre-suspension notices in Division of Family Services v. Cade, 939 S.W.2d 546 (Mo.App.1997). In Cade, an employee was provided with a suspension letter that stated that he was "being suspended pending further investigation of charges of alleged sexual harassment of fellow employees by [his] actions which are perceived by them as creating a hostile work environment that is not conducive to their being able to successfully perform the work requirements." 939 S.W.2d at 548. As in the present matter, the PAB found that the employee in Cade had not received sufficient notice of the basis for the suspension and reinstated the employee. DFS then sought review from the circuit court, which affirmed, leading to a subsequent appeal to this court.

On appeal, we held that a suspended employee "was required to have sufficiently detailed notice so that he could protect himself from unfair suspension." Id. at 552. Generalizations 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 suspension and to be able to oppose that action. See id. at 554. With regard to the notice provided to Cade, we found that the bare allegations of sexual harassment failed to meet that threshold. We observed that "[t]o require only notice of such broad generalities would be to render Mr. Cade's due process protections worthless. Almost any type of vague allegation could be used to temporarily suspend an employee, no matter how groundless or unsupported by facts, and the employee would have insufficient information to prepare a meaningful response." Id.

Here, DFS sought to suspend Rosa, relying on two regulatory provisions as authority for that suspension. The first was 1 CSR 20-3.070(2)(B), which permits suspension for incompetence, carelessness, or inefficiency. The second provision is 1 CSR 20-3.070(2)(L), which authorizes suspension for willful violations of agency regulations or policy. In resolving the present appeal, we must apply the Cade analysis under each provision to determine whether the suspension letter provides adequate notice regarding Rosa's suspension under either ground.

DFS' first point on appeal claims that the suspension letter provided adequate notice of a suspension based upon 1 CSR 20-3.070(2)(L). The PAB ruled that the suspension letter sent to Rosa was fatally inadequate...