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Schrock v. Gan

Court of Appeals of Missouri, Western District, Special Division

July 26, 2016

PENNY SCHROCK, APPOINTING AUTHORITY DEPARTMENT OF SOCIAL SERVICES, DIVISION OF FINANCE AND ADMINISTRATIVE SERVICES, Respondent,
v.
XINSHENG (RANDY) GAN, Appellant.

         Appeal from the Circuit Court of Cole County, Missouri The Honorable Jon E. Beetem, Judge

          Before: Mark D. Pfeiffer, Chief Judge, Presiding, Gary D. Witt, Judge and Anthony Rex Gabbert, Judge.

          Gary D. Witt, Judge

         INTRODUCTION

         Appellant Xinsheng (Randy) Gan ("Employee") appeals from the judgment of the Circuit Court of Cole County, which reviewed a decision by the Administrative Hearing Commission ("Commission") that had determined that the termination of Employee's employment with the Missouri Department of Social Services ("Department") was wrongful. Respondent Penny Schrock ("Employer"), representing the Department, had sought review of the Commission's decision by the circuit court. The circuit court found that the Commission had used the wrong legal standard in determining whether Employee's dismissal was for "racial reasons" and remanded the case back to the Commission. Employee seeks to appeal the circuit court's judgment, prior to the remand back to the Commission, and seeks affirmance of the Commission's decision. Because this Court reviews the decision of the Commission and not the circuit court, Employer, as the party aggrieved by the decision of the Commission, argues the Commission erred because it misapplied the law when it determined that Employee was dismissed for racial reasons because the Commission found that Employee had violated several Department policies and was insubordinate for failing to follow his employer's instructions.

         FACTS AND PROCEDURAL HISTORY

         On February 1, 2013, Employer dismissed Employee from his job as a Research Analyst for the Department after six years of employment. Employee was reprimanded by the Department for various alleged offenses on multiple occasions throughout his employment. These alleged offenses included: repeatedly falling asleep at his desk during work, unauthorized internet use, scratching his leg during a meeting, and leaving a meeting early. Although the Commission recognized that "there [was] cause to discipline [Employee] … [for] using the internet for personal reasons . . . and appearing to be sleeping at his desk in January 2013 when he was in fact meditating, " it found that these incidents were minor in nature. Further, it found that "[Employee's] race contributed to the appointing authority's decision to dismiss him and that his conduct was not of such serious nature as to warrant his dismissal." Accordingly, the Commission found that Employee's dismissal was not for the good of the service and ordered his reinstatement. In other words, the Commission decided that cultural differences unfairly contributed to a negative perception of Employee, thus resulting in unlawful discrimination and, ultimately, the termination of his employment with the Department.

         Employer then sought review of the Commission's decision at the Circuit Court of Cole County. The circuit court did not consider the substantive factual findings and legal conclusions of the Commission's decision. Rather, the circuit court determined that the Commission "exceeded its jurisdiction when it made a determination that race was a contributing factor in the underlying cause" (emphasis added). Instead, the circuit court decided that the "[Commission] can only determine if the dismissal was for racial reasons, a sole cause type analysis . . . [and not just] that race was a contributing factor" (emphasis added). For these reasons, the circuit court ordered that "the cause is remanded to the [Commission] for issuance of its order consistent with the above analysis." Employee now appeals the circuit court's judgment.[1]

         ANALYSIS

         At issue in the circuit court's judgment is the authority of the Commission to find Employee was dismissed for racial reasons where race was a contributing factor in the decision to terminate his employment. "The [Commission] is a creature of statute and has only such … authority as may be granted by the legislature." Atwell v. Fitzsimmons, 452 S.W.3d 670, 676 (Mo. App. W.D. 2014). The circuit court's judgment considered the authority of the Commission to make a determination that "race was a contributing factor" in the context of resolving an employee complaint raised under Chapter 36, the State Personnel Law. Section 36.390.5[2] provides the following:

Any regular employee who is dismissed or involuntarily demoted for cause or suspended for more than five working days may appeal in writing to the administrative hearing commission within thirty days after the effective date thereof, setting forth in substance the employee's reasons for claiming that the dismissal, suspension or demotion was for political, religious, or racial reasons, or not for the good of the service.

See also Section 621.075. Pursuant to the plain language of the statute, Employee has the right to challenge his dismissal by filing an appeal with the Commission if he believes his dismissal was for "racial reasons."

         Despite this clear mandate, the circuit court proceeded in its judgment to consider 1 CSR 20-3.080(4)(B), which is a regulation pertaining to personnel selection, appointment, evaluation, and separation. The regulation's stated purpose is to "[prohibit] discrimination and influences other than merit in the various aspects of personnel administration." 1 CSR 20-3.080. 1 CSR 20-3.080(4)(B) provides the following:

In any case of alleged discrimination for which a review is not provided by the Missouri Commission on Human Rights and Chapter 213, RSMo, or by other provisions of these rules, an applicant or employee who feels adversely affected in an opportunity for employment, in his/her status as an employee, or in his/her condition of employment because of this discrimination, under this rule, may appeal to the Administrative Hearing Commission for a review of the alleged discriminatory action or practice.

(emphasis added). The circuit court found that this regulation conflicts with the statutory authority granted to the Commission by the legislature because, pursuant to the regulation, the Commission can only review cases for which Chapter ...


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