September

If you have claims against the formation of a TDD you must file these in the Formation Lawsuit

The Kansas City Downtown Streetcar Transportation Development District (District) was formed in 2012 pursuant to the Missouri Transportation Development District Act, (Act).  The District was formed for the purpose of constructing and operating a streetcar line to run along Main Street in downtown Kansas City (City).  The construction and the operation of the streetcar line would be funded, in substantial part, by special assessments on real property located within the District and by a sales tax, not to exceed 1 percent, on retail sales within the District.  The Kansas City City Council and the Board of Commissioners of the Port Authority filed a petition in circuit court requesting that the court call an election to authorize the formation of the Streetcar District (the “Formation Lawsuit”).  Pursuant to the Act, the circuit court ordered notice of the pending suit to be published in The Kansas City Star once a week for four consecutive weeks, advising the public that pleadings in support of or opposition to the petition had to be filed no later than April 2, 2012, and also notifying the public of the dates scheduled for a public hearing and a judicial hearing on the petition.  The trial court conducted a public hearing on the issues raised in the Formation Lawsuit and the judicial hearing.  Following the hearings, the trial court entered judgment for the City and the District.  The circuit court entered a further order in the Formation Lawsuit on Aug. 2, 2012, declaring the formation and existence of the Streetcar District and ordered separate elections to be conducted on the special assessment and the sales tax.  After the voters approved both propositions, the results were duly certified on Dec. 12, 2012.  No appeal was taken from the circuit court’s judgment in the Formation Lawsuit.  On January 31, 2013, a Petition for Declaratory Judgment and Injunctive Relief was filed against the District in circuit court by KCAF Investors, L.L.C., Logic II, L.L.C., Logic III, L.L.C., Sue Anne Burke, and Jeffrey “Stretch” Rumaner (collectively “Plaintiff’s”) alleging that the real property special assessments were unlawful, because as owners of real property in the District they were not notified of, or permitted to vote in, the election that authorized the special assessments; that the sales tax was unlawful because part of the Streetcar District fell within the pre-existing 1200 Main/South Loop Transportation Development District, and was already subject to a 1 percent retail sales tax to fund that District thereby “stacking” the transportation-related sales taxes in excess of the 1 percent statutory limit.  Appellant’s petition prayed for a judgment declaring the real-property special assessments and that the sales tax (as applied in the area overlapping the 1200 Main District) was unlawful.  The trial court dismissed the suit because the claims were untimely, and should have been asserted in the earlier litigation, the Formation Lawsuit.  The Plaintiffs appealed to the Western District that upheld the decision of the trial court on the grounds that the Plaintiffs were estopped from asserting their claims because those claims could, and should, have been raised and decided in the earlier Formation Lawsuit. KCAF Investors, L.L.C. v. Kansas City Downtown Streetcar Transp. Development Dist., 2013 WL 4008192 (W.D. 76354, 8/7/2013).

Comment Howard: The holding in this case is literally a one liner (claims could and should have been asserted in the Formation Lawsuit), but there is more because the court decided to use this case as a “teachable moment” on whether or not notice in the newspaper is sufficient under Jones v. Flowers.  The Act provides for notice and the right to intervene in the Formation Lawsuit where Plaintiffs could have and should have raised all of the issues related to this matter including those issues in the declaratory judgment.  Since the Plaintiffs did not intervene in the Formation Lawsuit they were precluded from raising these issues in another lawsuit.  Even though the Plaintiffs were not parties to the Formation Lawsuit they are bound by the Formation Lawsuit because, “It would be unthinkable in our system of jurisprudence to hold that each taxpayer of a municipality could bring a suit to attack an annexation, and that res judicata would not apply because there was not an identity of parties.”  I like that quote. The Supreme Court of the United States also has recognized that the requirement of an individually directed notice does not apply to every person “who conceivably may have a claim” subject to extinguishment by governmental action.  The United States has held that cases like this one are properly characterized, for purposes of due-process analysis, as challenges to public action that has only an indirect impact on a taxpayer’s interests and notice required by Jones v. Flowers is not required; therefore, publication of notice in a newspaper was sufficient as to parties who had an indirect interest.

 

Appeal From Issuance Of Conditional Use Permit Is Under Section 89.110 Not Chapter 536

Wal-Mart and Sansone Group applied for and was granted a conditional use permit (CUP) from the City of Ellisville (City).  The CUP was granted via passage of Ordinance No. 3083 (Ordinance).  Thomas DeBold (DeBold) appealed the decision of the City to the circuit court arguing that the appeal was under Chapter 536.  The trial court ruled against Debold and he appealed to the Eastern District from the order and judgment of the trial court upholding the final decision of the City to grant a conditional use permit (CUP) to Wal–Mart, Inc., and the Sansone Group to construct and operate a general merchandise department store in the City.   The Eastern District affirmed holding that review of the granting of a conditional use permit was under section 89.110 RSMo. not Chapter 536.  Chapter 536 only applies when another more specific statute does not, and that Section 89.100 is a more specific statute that applies to conditional use permits.  DeBold v. City of Ellisville, 2013 WL 4604198 (E.D.99944, 9/29/2013).

 Comment Howard: Why does this make a difference?  Review under 536 is broader than 89.110.  Under 89.110 the scope of review is limited to a determination of “whether the . . . action is supported by competent and substantial evidence upon the whole record …” So long as the decision is supported by competent and substantial evidence in the record, the trial court “is bound by the . . . determination and it is irrelevant that there is supportive evidence for a contrary finding.”  This deferential standard of review is the result of the judicial recognition that “zoning often involves questions of sensitivities and perceptions which are appropriate for political rather than judicial resolution.”

 

Series Of Acts In Close Proximity To Each Other In Not Providing Prisoner Medications Was Insufficient To Establish Custom Or Practice

Johnson was arrested in the morning hours of Jan. 27, 2009, and held in the county jail pending an appearance in federal district court on January 28.  The arresting officers received a vial of medicine for Johnson, labeled with the name “Dilantin” and dosage instructions from Johnson’s mother and delivered it to the jail.  As part of the jail intake procedure, agents of the County verified that Johnson required the medication twice per day as stated on the instructions for a seizure disorder. Johnson had been taking the medicine on schedule prior to his arrest. His last dose prior to his arrest was on the morning of Jan. 27. Over the course of several hours on the morning of Jan. 28, Johnson repeatedly requested the anti-seizure medicine from at least three different groups of county guards, all of who refused to provide the medicine.  First, Johnson was awakened before sunrise and placed in a unit with two other inmates who were to be transported to the federal courthouse that day.  Johnson made three requests for the medication to a night-shift guard in that unit.  The guard refused to take action and threatened to place Johnson in lockdown upon his return from the courthouse if he continued to ask for the medicine. Second, another county guard escorted Johnson to a holding cell in the administrative area to await transport to the courthouse.  Johnson requested his medicine from the escorting guard who responded that, “pill call” was at 9 a.m. and that Johnson would receive his medicine when he returned from the courthouse. Third, Johnson requested his medicine several times from county guards in the administrative holding cell area.  Although several guards were present because the shift was changing from night to day, none responded to Johnson’s requests for his medicine.  At approximately 8:30 a.m., United States Marshals collected Johnson and delivered him to the federal courthouse.  In a holding cell at the courthouse, Johnson suffered a grand mal seizure.  He was transported to Creighton University Medical Center in Omaha, Nebr., where the staff determined that the seizure occurred because the level of Dilantin in Johnson’s blood was too low.  Johnson filed suit against three individual corrections officers, the County, and the medical services provider for the county jail and its director, alleging violations of his civil rights based on the denial of medication.  He later dismissed the medical services provider and its director.  In May 2012, the district court granted summary judgment to the three individual corrections officers, ruling that uncontroverted evidence demonstrated that none of the three had any contact with or had any responsibility for Johnson on the morning of Jan. 28, 2009.  Finally in Dec. 2012, the district court granted summary judgment to the sole remaining defendant, the County, on the basis that Johnson failed to present evidence of “a continuing, widespread, persistent pattern” of unconstitutional conduct at the county jail. Johnson appealed to the 8th Circuit the grant of summary judgment to the County.  He argued that the separate denials of his requests for medication by at least three different guards on the morning of Jan. 28 established such a pattern and that there was at least a genuine issue of fact as to whether the County had a custom of ignoring that written policy in allowing its jail personnel to deny medication to inmates.  To establish a claim for “custom” liability, Johnson must demonstrate: The existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity’s employees; deliberate indifference to or tacit authorization of such conduct by the governmental entity’s policymaking officials after notice to the officials of that misconduct; and that plaintiff was injured by acts pursuant to the governmental entity’s custom, i.e., that the custom was a moving force behind the constitutional violation. With respect to the first element, “a single deviation from a written, official policy does not prove a conflicting custom.” Johnson presented no evidence that other inmates had been denied medication at the county jail, but he contended that the multiple denials of his medication by different guards constituted multiple deviations.  While multiple incidents involving a single plaintiff could establish a “custom” if some evidence indicated that the incidents occurred over a course of time sufficiently long enough to permit notice of, and then deliberate indifference to or tacit authorization of, the conduct by policymaking officials.  However, Johnson presented no evidence to suggest that the County’s policymaking officials would have received notice of the denial of his medication in the early morning hours of Jan. 28 and made a deliberate choice to ignore or tacitly authorize the denial, all in the course of those few hours.  Since Johnson failed to present evidence of “a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity’s employees,” he did not meet the elements needed to present.  Johnson v. Douglas County Medical Dept., 2013 WL 3958358 (C.A.v8 (Neb.), 1 (C. A.8 (Neb.), 2013).

 Comment Howard: What is a custom or practice?  This case is helpful in showing that several missteps in a short-time period are not a custom or practice. Also it is very distressing to think that multiple requests for a prisoner’s meds could be ignored.

 

Court Applies Rule Of Strict Construction To Labor Agreement By Not Reading Into The Agreement Terms 

The Missouri Corrections Officers Association, Inc., (Association) is a labor organization whose members include the corrections officers who staff prisons run by the Missouri Department of Corrections (DOC).  The Association is the exclusive bargaining representative for these officers.  The Association and DOC entered into a Labor Agreement in 2007.  In response to reductions in its budget, DOC changed its personnel policies in 2009 to limit officer’s accrual of state compensatory time.  The Association contended that these policy changes violated the Labor Agreement.  The Association filed a lawsuit in the Cole County Circuit Court seeking declaratory relief for DOC’s alleged violation of the Labor Agreement.  The circuit court granted DOC’s motion for summary judgment, and the Association appealed to the Western District based on an incorrect interpretation of the Agreement.  Under the Labor Agreement, the DOC may compensate corrections officers for federal overtime or state compensatory time by providing them with compensatory paid time off.  The Agreement specifically addresses use of compensatory time in the form of paid leave although the Labor Agreement does not contain a definition of “compensatory time,” the DOC does not dispute that the definitions and terminology in its DOC Manual are incorporated into the Labor Agreement.  The department manual defines how state compensatory time and correctional officers earn federal overtime.  Due to significant overtime budget cuts, the DOC unilaterally modified the “Compensatory Time Control” in the DOC Manual in March 2009.  The manual differentiates between “code 1” and “code 2” employees.  All officers that would be affected by the outcome of this case are classified as code 2 employees.  The manual imposes only two conditions on a code 2 employee’s right to state compensatory time: (1) work in excess of an assigned daily shift, and (2) physically working 40 hours or less during that week.  There is no textual basis for adding a third criterion: that the officer “has already earned more than 40 hours that week, but due to vacation time or sick leave he or she was not physically present.”  The Labor Agreement gives DOC the authority to direct the corrections officers and conduct business as it sees fit, “except as modified by the terms of the Labor Agreement.” The DOC’s documents demonstrate that it was attempting to use its scheduling authority to require employees to “use” their state compensatory time in the same week in which the compensatory time was earned.  In the Labor Agreement, however, DOC gave up the right to require corrections officers to “use” compensatory time as paid leave on less than 14-days” notice.  The Western District held only that under the current definition of “state compensatory time” that was found to have been incorporated into the Labor Agreement (a proposition the DOC did not dispute), the DOC may not extinguish an employee’s right to state compensatory time by making schedule changes after beyond-shift hours that are worked.  An interpretation that inserts language into a contract is forbidden.  In interpreting the contract, the court was guided by the well-established rules that it could not make contracts for the parties or insert provisions by judicial interpretation. (“the courts are to determine what the parties intended by what they said and not by what they might have said or what perhaps they should have said”).  The court’s holding is limited and does not address the scope of the Department’s authority to modify corrections officer’s schedules (except to the extent such schedule changes purport to affect the accrual of state compensatory time for hours previously worked).  Nor does the court address whether DOC has the power to modify the provisions of its department manual on which this opinion relies.  Missouri Corrections Officers Ass’n v. Missouri Dept. of Corrections, 2013 WL 4520029, (Mo. App. W. D., 2013).

 Comment Howard: This appears to be one of the first cases interpreting language in a public labor agreement.  There are many details but several things standout.  First, the court went right to the DOC Manuel, which was not part of the Labor Agreement for help with definitions and terminology.  While the Labor Agreement appeared to protect management rights it did not contain exceptions for lack of funding (at least based on the record).  The court applied a rule of strict interpretation that the courts would not make contracts for the parties or insert provisions by judicial interpretation.  We will see more of this case in the future.

Employer’s Reasons For Dismissing Employee Were Pre-textual

There is probably no case that is simpler to prove than the basic elements of an age discrimination case.  First you show you are over 40, you were dismissed (or some other adverse employment decision was made against you) and someone else who is not covered by the Act (under 40) was hired or was treated differently than you were treated.  That is where the simplicity stops because the employer gets to show that there were valid reasons for the adverse employment decision, and the employee gets to show that the reasons give were pretextual.  The following case is a showcase for how the pretextual part of a case plays out. Ridout began working for JBS, a pork processor, in 1968.  In more than 40 years of employment at JBS’s Marshalltown, Iowa, plant, Ridout rose through the ranks and eventually became superintendent of the rendering department.  Plant Engineer Cyrus Thill, Plant Manager Todd Carl and General Manager Troy Mulgrew all supervised Ridout.  Part of Ridout’s job was overseeing equipment in the rendering department, including an instrument known as the “prehogor.”  The prehogor was used to grind scraps and bones of pork byproduct in order to create a material known as “crackling.”  From time to time the components of the prehogor wore out and needed to be replaced.  These repairs were usually scheduled during overnight shift breaks because the prehogor was operated almost continuously throughout the day and night. Equipment downtime could back up the overall process significantly.  The maintenance department and Ridout were jointly responsible for ensuring that equipment such as the prehogor was kept in working order and was repaired quickly when it broke down.  On May 13, 2010, the prehogor operator during the first shift reported to Ridout that there were problems with the machine.  Although the prehogor was still functional, Ridout determined that the rotating assembly needed to be replaced.  He directed the maintenance department to bring a backup assembly to the rendering department and install it during the overnight shift break.  During the second shift the machine broke down entirely.  The second shift supervisor was then forced to shut down production for several hours so that repairs could be made immediately.  Although the prehogor was restored to operation by the end of the third shift, a significant backlog of product had piled up during the downtime. The next day managers Thill, Carl and Mulgrew visited the rendering department.  The backlog of product had not yet been cleared.  Carl located Ridout in his office, and then all four men went over to the prehogor to discuss its failure the previous day.  Mulgrew claimed that Ridout became visibly upset and raised his voice during their discussion, and that he complained that management wanted to “point fingers” rather than allow him to spend his time fixing the problem.  Mulgrew alleged that he told Ridout to “tone it down” or else he would be sent home.  Ridout testified in his deposition that Mulgrew told him to “go home” when he raised his voice, so he left work.  While Ridout admits that at the time he was frustrated that his supervisors were interfering with his repair efforts, he maintained that he never behaved in an aggressive manner.  He admitted that he raised his voice because the conversation took place directly next to a large piece of equipment, and employees in that area had to speak loudly to be heard over the noise.  Ridout also pointed out that he had experienced considerable hearing loss due to working in the JBS factory for more than 40 years, and that his hearing loss caused him to speak loudly.  At the time of the meeting with his supervisors Ridout was 62 years old.  A few days later Ridout was suspended without pay, and the human resources department asked his supervisor for a recommendation as to whether he should be terminated.  Plant Manager Carl suggested that they meet with Ridout to get his side of the story.  At the meeting with Carl and the human resources department, Ridout expressed contrition for his statements to Mulgrew on May 14.  He agreed that he should have handled the discussion differently and asked to return to work.  He also proposed that if he could not remain rendering superintendent, he would agree to take a demotion to whatever position the company would see fit.  Ridout also mentioned the recent terminations of two other older supervisory level employees – Linn Knox and Dean Welton.  Although both had been ostensibly terminated for safety violations, they claimed that that was a pretext and that each had been more carefully scrutinized because of their age.  The human resources director later testified that he believed Ridout was trying to “frame it up to say this was about his age,” and denied that that was the basis for his termination.  Ridout’s meeting with the human resources department focused mostly on the events of May 14 and not his overall historical performance. Mulgrew and Carl claimed in discovery that they had expressed concerns about Ridout “resisting” changes in the rendering department, but they provided no specifics or contemporaneous evidence of any such behavior. While Ridout’s supervisors later claimed that Ridout’s performance had been declining prior to May 14, they presented no specific examples or contemporaneous evidence of such a decline. In fact Ridout’s last performance review had rated him as “meeting expectations.” There was no mention of any issues with Ridout’s performance until after the May 14 incident with the prehogor. After the meeting the supervisors decided to terminate Ridout. General Manager Mulgrew replaced Ridout with Chad Richett, who was between 35 and 38 years old. Richett was subsequently demoted by Mulgrew a year and a half later due to inadequate performance.  Mulgrew then hired John Holden, age 33, as the new rendering superintendent even though Holden had been terminated by JBS five years earlier for making a mock Ku Klux Klan hood out of industrial materials and displaying it to a black employee.  Ridout sued, alleging that his discharge was because of his age in violation of the Age Discrimination in Employment Act and the Iowa Civil Rights Act.  JBS moved for summary judgment, and the district court concluded that Ridout had made out a prima facie case of age discrimination.  It then proceeded to analyze the two nondiscriminatory reasons JBS gave for Ridout’s termination: that he had raised his voice to his supervisors and that his performance had declined.  The 8th Circuit found that the reasons given by the JBS were pretextual.   Ridout was terminated for declining performance although he presented evidence that the company considered his performance satisfactory until he was suspended without pay.  He had never been counseled or warned about any declining performance prior to his termination.  There was evidence that Ridout was a productive and satisfactory employee for more than 40 years.  While his supervisors complained after his termination that he had been “resistant” to proposed changes in the rendering department, JBS offered no specific examples and no contemporaneous evidence to provide substance to their assertions.  On this record, a rational trier of fact could find that declining performance was not the true reason for Ridout’s termination.  JBS’s other proffered reason for firing Ridout was insubordination. An employee can demonstrate pretext “by showing that it was unlikely an employer would have acted on the basis of the proffered reason.” This does not mean that the employee must show that “the proffered explanation had no basis in fact” and was only conjured out of thin air.  The employee may demonstrate pretext by showing that “it was not the employer’s policy or practice to respond to such problems in the way it responded in the plaintiff’s case.”  It is undisputed that the alleged insubordination involved Ridout’s swearing and raising his voice in the middle of the factory floor next to a very loud piece of equipment.  While Ridout admitted that under the circumstances, he may well have appeared to be annoyed, he did present evidence to suggest that JBS’s decision to terminate him for this conduct was not typical of the company’s policy or practice.  JBS supervisors admitted in depositions that it was common to raise one’s voice on the factory floor where the noise may drown out quieter voices.  The supervisors also admitted that heated arguments involving swearing were relatively common among the workers in the factory.  None of the supervisors could recall a single other instance where any employee had been terminated for yelling or swearing.  In addition, Ridout offered evidence that younger employees were treated more leniently when they committed infractions of comparable seriousness.  After his termination, the post of rendering superintendent was filled successively by two employees who were in their 30s, and thus, substantially younger than Ridout.  The first, Richett, was subsequently demoted for poor performance.  Ridout argued that this demotion tended to show that it was not JBS’s policy to terminate employees for declining performance.  The second, Holden, was rehired as rendering superintendent after having been fired five years earlier for racist behavior.  Ridout argued that this tended to show that JBS did not view a behavioral offense as a bar to holding the position of rendering superintendent.  The “similarly situated co-worker inquiry is a search for a substantially similar employee, not for a clone.”  In order to rely on comparator evidence such as Ridout offers, he must prove only that the other employees were “similarly situated in all relevant respects.” To demonstrate that they are “similarly situated,” Rideout  “need only establish that he or she was treated differently than other employees whose violations were of comparable seriousness.”  Ridout’s evidence was not inconsistent with a reasonable inference of age discrimination; in fact it is entirely consistent with such an inference.  On such a record, the ultimate question as to whether Ridout’s termination was a result of unlawful discrimination is not one for summary judgment.  The 8th Circuit reversed and remanded to the district court for further proceedings. Ridout v. JBS USA, LLC, 716 F.3d 1079, 1081 (C. A. 8 (Iowa), 2013).

Comment Howard: This case is a very good roadmap both from the employe and the employer’s side.  From the employer’s side it is mostly lessons learned about how to handle these issues.  An employer who dismisses an employee, who if protected under the Act, and replaces the employee with someone who is under 40 needs to carefully build a case to show that the termination was not pre-textual.  Iowa applies same rule as Missouri, in that, action taken must be a “contributing factor.”

Telecom

Independence, Liberty and several other cities were granted an injunction on Aug. 27, 2013, by the Cole County Circuit Court staying HR 331 the “Uniform Wireless Communications Infrastructure Deployment Act” and HB 345 pertaining to rates, terms and conditions of pole attachments, including those related to access, discriminatory practices and provisions requiring that rates and terms be just and reasonable.  HB 345 requires that the annual pole attachment rent be charged on a “per pole” basis and capped.  Both of these bills enacted by the 97th General Assembly, were to go into effect Aug. 28, 2013, and were favorites of the wireless and broadband industries.  The cities allege in their petition that the laws violated the single subject, clear title, special legislation, ex post facto laws; the Mandates provision of the Hancock Amendment; and the separations of powers provisions of the Missouri Constitution.

 

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