State ex rel. Swoboda v. Mo. Comm'n On Human Rights, WD83556

CourtCourt of Appeal of Missouri (US)
Writing for the CourtGary D. Witt, Judge
PartiesSTATE OF MISSOURI EX REL. JIM SWOBODA, Respondent, v. MISSOURI COMMISSION ON HUMAN RIGHTS, Appellant, ALISA WARREN, Appellant, and ARMSTRONG TEASDALE, LLP, Appellant.
Decision Date12 January 2021
Docket NumberC/w WD83571,WD83556

STATE OF MISSOURI EX REL. JIM SWOBODA, Respondent,
v.
MISSOURI COMMISSION ON HUMAN RIGHTS, Appellant,
ALISA WARREN, Appellant,
and
ARMSTRONG TEASDALE, LLP, Appellant.

WD83556
C/w WD83571

Missouri Court of Appeals Western District

January 12, 2021


Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Bryan Round, Judge

Before Division Three: Edward R. Ardini, Jr., Presiding Judge, Alok Ahuja, Judge and Gary D. Witt, Judge

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The Missouri Commission on Human Rights; Alisa Warren, Executive Director of the Commission, in her official capacity ("Warren" when referred to individually, we will refer to Warren and the Commission collectively as "the Commission"); and the Armstrong Teasdale L.L.P. law firm ("Armstrong") appeal the judgment of the Circuit Court of Jackson County, Missouri ("Circuit Court") granting a writ of mandamus in favor of Jim Swoboda ("Swoboda") directing the Commission to rescind its decision to dismiss Swoboda's charge against Armstrong under the Missouri Human Rights Act1 ("MHRA"), to accept Swoboda's charge, and to conduct an investigation thereof. On appeal, the Commission claims that the Circuit Court erred in: 1) denying its motion to dismiss Swoboda's writ petition because Swoboda did not allege facts establishing that Armstrong aided and abetted acts of retaliation against Swoboda; 2) denying its motion to dismiss the writ petition because Swoboda did not allege a clear, unconditional right to relief but sought to overturn a discretionary decision; 3) entering judgment in favor of Swoboda because the matter was not ready for judgment in that it had not filed its answer to the writ petition, and the circuit court did not hear evidence; and 4) granting Swoboda's requested relief because Swoboda did not have an employer-employee relationship with Armstrong. Armstrong filed a separate brief, claiming that the Circuit Court erred in entering a writ of mandamus because: 1) the Commission's acts were discretionary, not ministerial, and therefore were not appropriate for a writ; 2) Swoboda was seeking to establish a new right under the

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MHRA, not to enforce an existing right; and 3) Swoboda and Armstrong never had an employer-employee relationship. We affirm the judgment of the Circuit Court directing the Commission to vacate its dismissal of Swoboda's administrative claim against Armstrong; however, because more than one hundred eighty days have passed since Swoboda's complaint was filed before the Commission, we reverse the portion of the trial court's judgment requiring the Commission to investigate Swoboda's claim and we direct the Commission to issue Swoboda a letter granting him the right to sue Armstrong pursuant to the MHRA.

Factual and Procedural Background

The facts, as relevant to the issues presented in this appeal, are taken from the claim filed before the Commission and the petition filed in the circuit court. In his claim of retaliation under the MHRA filed with the Commission, which was attached to and incorporated into his petition filed in the Circuit Court, Swoboda alleged that he is an employee of the Board of Police Commissioners of Kansas City ("BOPC") with the rank of Captain. When Swoboda held his prior rank of Sergeant, he supported a fellow police officer in a claim of discrimination against the BOPC and opposed the alleged discrimination against the officer. After the officer filed a formal claim of discrimination, in November or December of 2016, Swoboda participated in a deposition regarding that claim. In Swoboda's MHRA complaint, he alleged that, at this deposition, an attorney from Armstrong, who represented the BOPC, advised him that he needed to think of his career when he testified. In August of 2018, the officer's claim was tried to a jury, and again

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Swoboda testified on behalf of the officer. Swoboda alleges that, before his testimony, he was advised by an Armstrong attorney that he needed to think about how his testimony might hurt the BOPC. The trial of that action resulted in a mistrial, and the cause remained pending until it was settled at a later date.

Due to some health issues and "the stress of [his] involvement in the legal claim," Swoboda took a medical leave of absence from October 4, 2018, to December 13, 2018. He used 46 sick days, vacation days, and comp days during this time. Swoboda's medical provider cleared him to return to full duty in December of 2018, but the BOPC placed him on limited duty from that time until January 14, 2019. Swoboda was assigned menial tasks such as filing jackets in alphabetical order in a storage closet. His department vehicle, department email, and key card access to department files were all withheld from him from October 4, 2018 to January 18, 2019. He was not allowed to carry a gun or wear his uniform, and was restricted from accessing department computers. He was also restricted from accessing confidential information and department records, even though he served as the Custodian of Records. He was excluded from Commander meetings and training, FOP meetings, and unit holiday parties as well as work groups, committees, and projects. He was removed from his position as the Information Management Unit Commander and the Department Custodian of Records and was replaced by another Commander. Swoboda's office was taken away, and he was assigned a storage closet to use as an office. Swoboda alleged that these actions by the BOPC were in retaliation for his participation in the fellow officer's trial, because after that officer's case settled, his access to department email and

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key card access to department facilities was restored, although at the time his complaint was filed he still did not have access to a department vehicle.

Swoboda filed his own charge of discrimination and retaliation with the MHRA against both the BOPC and Armstrong on January 23, 2019. His claim against Armstrong is for "Aiding and Abetting" the BOPC's discriminatory and retaliatory actions. The Commission issued Swoboda a Right to Sue letter as to his claim against the BOPC, and Swoboda has sued the BOPC in the Circuit Court.

On March 7, 2019, the Commission, through Warren, issued a letter relating to Swoboda's claim against Armstrong stating,

The investigation of the [] complaint has determined that the [Commission] lacks jurisdiction over the matter because there is no employer-employee relationship between the Complainant and the Respondent. Therefore, [the Commission] is administratively closing its case and terminating all [Commission] proceedings relating to your complaint.

On April 8, 2019, Swoboda filed a Petition for a Writ of Mandamus with the Circuit Court, asking the Court to order the Commission to vacate its dismissal of Swoboda's Complaint against Armstrong, to accept his claim, and to investigate it. On April 29, 2019, the Circuit Court issued a preliminary order in mandamus, directing the Commission to respond to Swoboda's petition. On June 27, 2019, Armstrong filed a motion to intervene, which was granted without objection. Both the Commission and Armstrong filed motions to dismiss the writ petition for failure to state a claim.

On October 7, 2019, the Circuit Court issued an order finding that the Commission erred in dismissing Swoboda's charge against Armstrong without providing to him a Right

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to Sue letter, issued a "Permanent Writ of Mandamus," and ordered the Commission "to rescind [their] decision to dismiss [Swoboda's] Charge, to accept [Swoboda's] Charge, and to conduct an investigation thereof."

The Commission and Armstrong attempted to appeal the Circuit Court's order, but this court dismissed the appeal for lack of a final, appealable judgment. The Commission moved the Circuit Court to amend its order to denominate it a final judgment for purposes of appeal. On January 29, 2020, the Circuit Court issued its Order, Judgment, and Permanent Writ of Mandamus. This appeal follows.

Standard of Review

The parties disagree as to the proper standard of review in this case, and dispute our deference to the Commission on appeal. While a Circuit Court's grant or denial of a writ of mandamus is often reviewed for an abuse of discretion, State ex rel. Killingsworth v. George, 168 S.W.3d 621, 623 (Mo. App. E.D. 2005), "[a]n abuse of discretion 'occurs when the circuit court misapplies the applicable statutes.'" State ex rel. Naugles v. Mo. Comm'n on Hum. Rts., 561 S.W.3d 48, 51 (Mo. App. W.D. 2018) (quoting Curtis v. Mo. Democratic Party, 548 S.W.3d 909, 914 (Mo. banc 2018)). "[W]here the foundation of the writ is based upon an interpretation of the statute, our review of the statute's meaning is de novo." Id. (internal quotation omitted).

Discussion

We will address some of the parties' points on appeal together and out of order for ease of analysis.

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Sufficiency of Pleadings

The Commission's third point on appeal will be addressed first. The Commission claims that the matter was not ripe for judgment when the Circuit Court issued its order, because none of the Respondents below had filed answers, and the Circuit Court did not take any evidence or hold a hearing before issuing its order. We disagree that the pleadings and process below were insufficient.

Rule 94.072 provides, "The answer shall be directed to the petition in mandamus. The answer may include or be accompanied by one or more motions." The Circuit Court directed the Commission to file responsive pleadings (or answers under the Rule). Both the Commission and Armstrong, after it intervened, filed motions to dismiss Swoboda's writ petition. The motions included well-drafted suggestions in support thereof including their arguments as to the ultimate legal issue before the Circuit Court—whether the Commission's legal conclusion that Swoboda had no claim against Armstrong because Swoboda and Armstrong did not have an employee-employer relationship was proper. After Swoboda filed his suggestions in opposition to the...

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