Snyder v. Department of Elementary and Secondary Educ.

• Court: Missouri Court of Appeals
• Writing for the Court: ELLIS
• Citation: Snyder v. Department of Elementary and Secondary Educ., 952 S.W.2d 764 (Mo. App. 1997)
• Decision Date: 23 September 1997
• Docket Number: No. WD,WD
• Parties: 121 Ed. Law Rep. 862 Donald D. SNYDER, Respondent, v. DEPARTMENT OF ELEMENTARY AND SECONDARY EDUCATION, Appellant. 53288.

Page 764

952 S.W.2d 764

121 Ed. Law Rep. 862

Donald D. SNYDER, Respondent, v. DEPARTMENT OF ELEMENTARY AND SECONDARY EDUCATION, Appellant.

No. WD 53288.

Missouri Court of Appeals Western District.

Sept. 23, 1997.

Jeremiah W. (Jay) Nixon, Atty. Gen., Edwin H. Steinmann, Jr., Asst. Atty. Gen., Jefferson City, for appellant.

Lori J. Levine, Carson & Coil, Jefferson City, for respondent.

Before ELLIS, P.J., and LOWENSTEIN and HOWARD, JJ.

ELLIS, Presiding Judge.

Donald D. Snyder was employed as a Chapter 1 Supervisor by the Missouri Department of Elementary and Secondary Education ("the Department") on July 1, 1972. On June 1, 1983, he was made the Director of the Chapter 1 Section. Snyder remained in that position until he was dismissed by the Department on August 12, 1994. Following a hearing, Snyder's termination was affirmed by the Commissioner of Education. This decision was reversed by the Circuit Court of Cole County. The Department appeals from that decision.

Jill Distler began working for Snyder in 1972 and became his personal secretary in 1983. For several years thereafter, a good working relationship existed between Snyder and Distler. ¹ Distler considered Snyder to be a "good friend" and a "father figure" with whom she discussed her personal relationships and problems.

In July, 1989, the Department scheduled an annual "clean-up day," during which staff members were to review items stored in the basement of the Department office building and dispose of items no longer needed. In preparation for the clean-up day, Snyder instructed Betty Morff, a Program Specialist in the Chapter 1 Section, not to enter the basement until he and Distler were finished cleaning. While alone with Distler in the basement, Snyder asked Distler for a hug, and she refused.

After Distler refused to hug Snyder in the basement, he became cold and less communicative with her. In October, 1989, Distler attempted to discuss this change with Snyder. They talked for a long time, and while never indicating why his mood had changed, at some point Snyder said, "Well, let's have a hug." Snyder and Distler then hugged. During this hug, Snyder stuck his hands under the back of Distler's sweater and kept them there, resting on her shirt, for a couple of seconds.

Over the years, Snyder had given Distler presents which were unlike presents he gave to other staff members (ie. perfume, cologne, jewelry, purses, sweaters, a duffel bag, a musical butterfly, and cut glass bowls). On December 22, 1989, Snyder presented Distler with a Christmas basket filled with various items of Giorgio perfume or cologne. Snyder indicated that, before Distler could receive the gift, he needed "that Christmas hug." Snyder came around his desk, and the two hugged. During this "hug," Snyder pressed his lips against Distler's, and he stuck his hands under her sweater to her bare skin and up to the side of her breast. Distler pushed Snyder away and asked, "Why did you do that?" She then left Snyder's office visibly upset and crying.

On December 29, 1989, Distler contacted Otis Baker, Assistant Commissioner for the Division of Instruction, and told him that Snyder had asked for a hug and something more had transpired. Distler also told Baker about the basement incident. When Baker asked whether she wanted to file a formal complaint, Distler stated that she preferred to see if the situation could be worked out and a better relationship established.

After the Christmas incident, Snyder's behavior toward Distler changed negatively. Several weeks after the incident, Distler informed Baker of several behaviors of Snyder which she considered intimidating and which were distressing her, including: staring or glaring at her frequently, demanding to know where she had been after brief absences from her desk, following her around the office, and writing inaccurate notes about her performance and leaving them in clear view.

In July, 1990, Distler also complained about Snyder's coldness toward her to Stephen Barr, Coordinator for State Programs, and Tom Odneal, Coordinator for Federal Programs. Distler told Barr that Snyder was ignoring her, would pass her in the morning without saying hello, and would only talk to her in a short, abbreviated style for business purposes.

On July 11, 1990, Snyder called Distler into his office. Snyder indicated that he had seen Dawn Hake, a co-worker, follow Distler into the restroom and told Distler that it was none of Hake's business what was going on in his office. Snyder then made reference to wiping the slate clean and throwing away the notes on Distler's performance if she would give him a hug. Distler refused and left the office upset and crying.

Ms. Morff observed this incident and reported it to Baker, who then reviewed the various allegations with Snyder. After Snyder denied the allegations, Baker instructed Snyder to: (1) begin immediately to conduct himself in a manner which is above reproach and to avoid any situation which might give credence to further allegations; (2) refrain from having any secretary in his office with the door closed; (3) refrain from being alone on the premises with any secretary; (4) refrain from making any suggestions to any secretary which might reasonably be construed as advances; (5) refrain from giving gifts to any female employees; and (6) interact with all secretaries in a business-like, but amicable way, avoiding any hint of intimidation. Baker told Snyder that if he was unable to comply with these guidelines termination proceedings would be instituted.

On July 8, 1994, Distler went to Snyder's office to discuss what she viewed as an excessive workload. She also discussed the fact that Snyder did not say "please" or "thank you" often enough. Snyder apologized and said he would try to do better. As Distler left the office, Snyder asked, "At least, can I pat your back?" Snyder then proceeded to pat her on the back.

On July 11, 1994, Distler again met with Snyder in his office to discuss his continued failure to use the terms "please" and "thank you." Snyder again apologized. He stated that they would both have to work on having a good working relationship and that "it works both ways." Snyder then asked, "So can we hug and make up now?" Distler refused to hug Snyder and left his office crying.

Following this incident, Distler spoke with Diane Vaughan, the Administrative Assistant to the Commissioner of Education. Distler told Vaughan about the recent incident and about Snyder's behavior over the previous four years. Vaughan told Distler she would call the Commissioner and that there would be an investigation.

On July 14, 1994, Baker sent Snyder a letter informing him of the complaints against him and suspending him with pay during the course of an investigation of those charges. Following that investigation, on August 2, 1994, Baker sent a letter to Snyder setting out the actions for which he was being disciplined and terminating Snyder's employment with the Department. The letter advised Snyder that he was being fired for violation of Personnel Policy 8-2G1.C which states in pertinent part:

1. Disciplinary action shall be appropriate for, but not limited to, the following causes, namely that an employee:

C. Has been guilty of abusive or improper treatment toward a ... Department employee including, but not limited to discrimination or harassment based upon race, age, sex ...

Pursuant to the Department's personnel policy, Snyder filed a grievance challenging his dismissal. On February 9, 1995, the cause was heard by Dr. Russell McCampbell, the Commissioner of Education's designated hearing officer. On June 30, 1995, the Commissioner of Education entered his Findings of Fact and Conclusions of Law, affirming Snyder's dismissal. Snyder eventually appealed to the Circuit Court of Cole County. On August 2, 1996, the court issued its Findings of Fact and Conclusions of Law, reversing the Commissioner's decision and ordering that Snyder be reinstated with back pay. The Department brings two points on appeal.

In its first point on appeal, the Department asserts that the circuit court lacked jurisdiction to review the Commissioner's decision. The Department claims that Snyder, as a nonmerit employee, is not afforded the right to appeal to the circuit court under § 36.390. ²

The facts pertaining to this issue are not in dispute, leaving merely a question of statutory construction. Statutory construction is a question of law, and therefore, our review is de novo. Delta Air Lines, Inc. v. Director of Revenue, 908 S.W.2d 353, 355 (Mo. banc 1995). When considering statutory construction, our primary responsibility is to ascertain the intent of the general assembly from the language used and to give effect to that intent. Laws v. Secretary of State, 895 S.W.2d 43, 46 (Mo.App. W.D.1995).

There are two categories of Missouri state agency employees, merit and non-merit. Those agencies listed in § 36.030.1 are designated "merit" agencies, which means, inter alia, that regular employees of those agencies have a right of appeal to the Personnel Advisory Board if they are dismissed, suspended for more than five days, or involuntarily demoted. § 36.390.5; State ex rel. Lohman v. Personnel Advisory Bd., 948 S.W.2d 701, 703 (Mo.App. W.D.1997). Agencies not listed in § 36.030.1 are considered "non-merit" agencies. The parties concede that the Department is a non-merit agency and, consequently, that Snyder is a non-merit employee. With regard to merit employees, § 36.390.5 provides:

Any regular employee who is dismissed ... may appeal in writing to the board within thirty days after the effective date thereof, setting forth in substance his reasons for claiming that the dismissal ... was for political, religious, or racial reasons, or not for the good of the service. Upon such appeal, both the appealing employee and the appointing authority whose action is reviewed shall have the right to be heard and...