State ex rel. Donelon v. Division of Employment Sec.e, WD

• Decision Date: 30 June 1998
• Docket Number: No. WD,WD
• Citation: 971 S.W.2d 869
• Parties: STATE ex. rel. John J. DONELON, Appellant, v. THE DIVISION OF EMPLOYMENT SECURITY, Respondent, and State of Missouri, Respondent-Intervenor. 54887.
• Court: Missouri Court of Appeals

Page 869

971 S.W.2d 869

STATE ex. rel. John J. DONELON, Appellant, v. THE DIVISION OF EMPLOYMENT SECURITY, Respondent, and State of Missouri, Respondent-Intervenor.

No. WD 54887.

Missouri Court of Appeals,

Western District.

June 30, 1998.

Brendan J. Donelon, Kansas City, for appellant.

Marilyn G. Green, Jeferson City, for respondent Div. of Employment Security.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jacqueline K. Hamra, Asst. Atty. Gen., Jefferson City, for respondent-intervenor State of Missouri.

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

RIEDERER, Judge.

John J. Donelon appeals from the trial court's judgment denying his request for a writ of mandamus, wherein Appellant alleged the Department of Employment Security (DES) failed to provide the constitutionally required procedural due process with regard to a three-day suspension he received in November 1995, and wherein Appellant challenged the constitutionality of § 36.390 ¹ and 1 CSR 20-3.070(3)(A). We affirm.

Facts

Appellant has been an employee for the Division of Employment Security ("DES") since November 23, 1987. He began working for DES in its Columbia office in April 1992 as an Employment Service Technician. DES employees are Missouri merit system employees under Chapter 36.

On August 17, 1995, Appellant was asked by another DES employee, Sharon Freeman, to help a customer. Appellant used profanity in a loud voice to show his displeasure. This happened in the presence of other employees and members of the public. Appellant's supervisor, Bill Dent, was not in the office at the time of the incident. On the following day, Appellant approached Dent to inform him about the incident. Dent told Appellant that DES had had that type of trouble before and that those kind of incidents could not occur in the office. Dent also spoke with other staff members who witnessed the incident to give their account of what happened. Dent then made an entry on Appellant's performance log. An employee log is kept by supervisors to document both assignments to the employee and disciplinary actions against the employee. There is some dispute as to whether the employee is required to review and initial all entries made in the log.

On September 18, 1995, another incident occurred between Appellant and Sharon Freeman. Appellant complained in a loud voice to Freeman about a telephone call she transferred to him. Appellant again used profanity. This incident also happened in the presence of other employees and members of the public. No supervisor or employee of DES spoke with Appellant regarding this incident.

Dean Smith, manager of the Columbia office, requested that Freeman submit to him written statements regarding the two incidents. Freeman's statement regarding the September 18 incident included her opinion that Appellant might bring a gun to the office. On September 20, 1995, Smith sent a memorandum to the District Manager, Oren Henry, and to the Deputy Director, Rick Hemming, recommending a disciplinary suspension of Appellant based on the August 17 and September 18 incidents, as well as other similar incidents involving Appellant. Rick Hemming sent an interoffice communication to the Chief of Human Resources, Ernestine Gage, and recommended a five-day suspension without pay. Gage then contacted the legal department to review the recommendation. After a meeting between the district managers and the DES Director, Paul Rodgers, Rodgers sent an interoffice memorandum to Gage, stating that he recommended a three-day suspension without pay. Gage prepared a suspension letter which was signed by Rodgers. The letter stated that Appellant was placed on disciplinary suspension without pay for three days, effective November 7, 1995, through November 9, 1995. The letter was dated October 23, 1995 and was forwarded to Smith at the Columbia office for delivery.

On November 6, 1995, Smith met with Appellant and presented the suspension letter to him. Smith testified that he provided Appellant with the reasons for his suspension at this meeting. Smith showed Appellant the letters written by Freeman and told him that he could obtain copies of Freeman's statements from the central office in Jefferson City. Smith testified that Appellant had the opportunity to respond and that Appellant's only response was that, "It didn't amount to anything. It's not important." Smith then made entries in Appellant's performance log regarding the presentation of the suspension letter, some subsequent conduct by Appellant, and Appellant's performance appraisal. Smith showed the entries to Appellant and recorded on the log that Appellant refused to initial the entries made by Smith.

On November 7, 1995, Appellant traveled to the Jefferson City DES office to review his personnel file. While reviewing his personnel file, Appellant found all of the documentation relating to his three-day suspension, including the two statements written by Freeman. During that same visit, Appellant filed a formal grievance regarding his suspension pursuant to the DES grievance policy. On November 29, 1995, Appellant met with Smith for his annual evaluation. He received an "improvement expected" rating due to the three-day suspension. While at this meeting, Appellant asked Smith if he could see his 1995 employee log. Appellant made a copy of the log. Appellant testified that this was the first time he saw the log entries regarding allegations of his poor behavior. At this meeting on November 29, 1995, Appellant also received a letter from the District Manager, Oren Henry, responding to his written grievance. The letter was labeled a step three response. A step three response is due within ten days of receipt of the grievance appeal. Although the response was dated November 13, 1995, it was not delivered until November 29, 1995. Henry stated in the response that he had talked with both Dent and Smith and that he believes that Appellant was made aware of the conduct in question. Henry also states that there are log notations and witness statements concerning the actions in question.

Procedural History

On November 24, 1995, Appellant filed an appeal with the Personnel Advisory Board ("PAB") regarding this three-day suspension under § 36.390. Appellant did so knowing that § 36.390 limited appeals to persons suspended more than five days, because he was challenging the constitutionality of the statute. On December 12, 1995, the PAB dismissed the Appeal on the grounds that it lacked jurisdiction under § 36.390, because Appellant was only suspended for three days.

On June 6, 1996, Appellant filed a Petition for Writ of Mandamus with Supporting Suggestions against the PAB and DES. On July 5, 1996, the PAB filed a motion to dismiss on the basis that Appellant was not entitled to a hearing. On September 20, 1996, the trial court sustained PAB's motion to dismiss and dismissed the PAB as a party to the action. On July 9, 1996, DES filed a motion to dismiss for failure to state a claim upon which relief can be granted, which was denied. On February 20, 1997, the trial court held an evidentiary hearing. At the end of the hearing, the judge ordered that the two statements written by Freeman be taken out of Appellant's personnel file. On May 20, 1997, the trial court issued its findings of fact, conclusions of law and judgment of the court. The trial court determined that Appellant received the due process he was entitled to at the November 6 th meeting between Appellant and Smith. Appellant was given the suspension letter, was given an explanation of the charges, and was given an opportunity to tell his side of the story. On June 3, 1997 Appellant filed a motion for reconsideration. The court did not rule on the motion. A notice of appeal was filed on September 9, 1997. Since Appellant was challenging the constitutionality of § 36.390 and 1 CSR 20-3.070(3), he filed an application for transfer to the Missouri Supreme Court on November 24, 1997. On December 23, 1997, Appellant's application was denied. On January 30, 1998, this court sustained the motion of the State of Missouri to intervene in this action.

Standard of Review

Appellant's petition for writ of mandamus was brought pursuant to § 536.150, which provides that judicial review of an administrative decision in a noncontested case may be initiated by a writ of mandamus. In noncontested cases, this court reviews the decision of the circuit court on appeal, rather than the decision of the agency. State ex rel. Valentine v. Board of Police Commissioners, 813 S.W.2d 955, 958 (Mo.App.1991). In cases governed by § 536.150 the circuit court conducts a de novo review in which it hears evidence on the merits of the case, makes a record, determines the facts and decides whether, in view of those facts, the agency's decision is unconstitutional, unlawful, unreasonable, arbitrary, capricious, or otherwise involves an abuse of discretion. Barry Service Agency Co. v. Manning, 891 S.W.2d 882, 887 (Mo.App.1995). This court will sustain the judgment of the circuit court unless there is no substantial evidence to support it, unless the decision is against the weight of the evidence, or unless the circuit court erroneously declares or applies the law. State ex rel. Valentine, 813 S.W.2d at 958.

I.

Appellant contends in his first point that the trial court erred by failing to issue a writ of mandamus because he was denied his right to procedural due process under the fourteenth amendment of the United States Constitution and Article I Section 10 of the Missouri Constitution. Specifically, Appellant argues that he has a property and liberty interest in his job and that he was therefore owed certain procedural due process rights, to wit, the right to a certain pre-deprivation process and the right to a post-deprivation appeal.

1. Property and Liberty Interest

A. Property Interest

Appellant argues that he has a property interest in his employment. "To invoke the protections of...