April 2014 Newsletter, Issue 04-2014

“Contributing Factor” Is Now Test To Determine If There Has Been A Retaliatory Discharge For Filing A Workers Compensation Claim.



In this case, the employee was injured on the job, and filed a worker’s compensation claim.  After returning to the job the Employee was put on light duty and was later fired by the Employer.  The Employee filed a claim of retaliatory discharge under the Worker’s Compensation Act.  The facts in the case show classic elements involving employer and employee relationships with the usual good, bad, and terrible facts.

There are certainly inferences that the Employee took advantage of the situation.  There were also facts that showed that the Employer took substantial steps to accommodate the injury of the Employee by providing light duty work and had in place good policies that provided for progressive discipline.  Of course, from the Employers standpoint not everything went the way it was supposed to because the Employer did not follow its progressive disciplinary policy since the Employee had a stellar record with no discipline until after he was injured.

As usual at the supervisory level there were a lot of statements adverse to the Employers interest because when the supervisor got fed up he blew up believing the Employee was milking the injury thereby totally scuttling the good intentions of the Employer.  In addition, the Employee was able to show that other employees were treated differently in similar situations and that the Employer seemed to have a policy of treating injured workers harshly.  In other words, this case was a mixed bag giving the trier of the facts the leeway to decide the case for or against the Employer making the instructions to the jury the deciding factor.

Until this case Missouri followed well-established law by requiring the instructions to find that the workers compensation injury was the “exclusive cause” of the action to dismiss the employee.  In this case the Missouri Supreme Court overruled a long line of cases that held the employee had to show the reason for discharge was the “exclusive cause ” of the action. The new rule is the employee only has to show that the action for dismissal was a “contributing factor” to the claim of retaliatory discharge.  Templemire v. W & M Welding, Inc., 2014 WL 1464574 (Mo., 2014)(SC93132, 4/15/14)

Comment Howard: You can pretty much expect that every time you fire an injured employee if he or she has filed a Worker’s compensation claim you will be sued for retaliatory discharge.  Since the facts will almost always be in dispute you can expect the case to go to the jury.  The only way I think you can overcome the difficulties in such cases is to have videotape showing the employee loafing or goofing off on-the-job, lots of independent documentation, plus a well documented report of progressive discipline.  There is no reason, at least in my mind, to spend a lot of time reading the courts opinion as to why the court did not apply stare decisis unless you have a case where the argument is that the existing case law should be changed.  In that case this opinion provides you with a ready-made outline for arguments on either side of the question.


Amendment To State Constitution To Prohibit The Use Of Racial Preferences Was Valid.

After the United States Supreme Court validated narrowly drawn admission standards for law school based upon a limited use of race–based preferences the voters of the State of Michigan adopted an amendment to its state constitution, which prohibited the use of race-based preferences as part of the admissions process for state universities (Amendment).  The Amendment was challenged in District Court on the grounds that the Amendment violated the Equal Protection Clause of the United States Constitution.  The District Court granted summary judgment for the State of Michigan upholding the Amendment, that was reversed by the 6th Circuit, which concluded that the proposal violated the principles set forth in Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896.  The United States Supreme Court granted certiorari upholding the Amendment to the Constitution of the State of Michigan distinguishing earlier court cases and in particular the Seattle case.

In Seattle, after the school board adopted a mandatory busing program to alleviate racial isolation of minority students in local schools, the voters passed a state initiative that barred busing to desegregate.  The United States Supreme Court found in the Seattle case that the state initiative, which barred busing to desegregate schools was invalid because it had the “practical effect” of removing “the authority to address a racial problem … from the existing decision making body, in such a way as to burden minority interests” of busing advocates who must now “seek relief from the state legislature, or from the statewide electorate.”

The Supreme Court states that the Seattle case as best understood in context where the state action in question had the serious risk, if not purpose, of causing specific injuries on account of race as in earlier decisions.  The Court held that the Seattle case was not to be read to require that the court declare which political policy serves the “Interest” of a group defined in racial terms thereby making it more difficult for certain racial minorities and for other groups to achieve legislation that is in their interest.  The Amendment to the Michigan Constitution was valid because the Amendment did not reflect a racially discriminatory purpose.  Schuette v. Coalition to Defend Affirmative Action, 2014 WL 1577512 (U.S.) (U.S., 2014)

Comment Howard: For local government this case could have implications with respect to any law that requires preferences for minorities.  The decision resulted in a 6 to 2 majority supporting the amendment to the Constitution of the State of Michigan to prohibit the use of racial preferences.  If you are faced with a matter that requires analysis of preferences this case provides a great backdrop for review of the law in this area.

Anonymous Tip Sufficient To Make Investigative Stop



A 911 operator received a call from an anonymous tipster that she had been run off the road by a silver Ford F-150 pickup, license plate 8D94925, and that the vehicle was heading south on Highway 1 at mile marker 88 approximately five minutes ago.  The dispatcher broadcast a bulletin with that information to police officers at 3:47 p. m. At 4:00 p.m., the arresting officer passed the truck near mile marker 69.  At about 4:05 p.m., after making a U-turn, the officer pulled the truck over.  A search of the truck bed revealed 30 pounds of marijuana.  The officers arrested the driver, petitioner Lorenzo Prado Navarette, and the passenger, petitioner José Prado Navarette (Petitioners).  Petitioners moved to suppress the evidence, arguing that the traffic stop violated their Fourth Amendment rights because the officer lacked reasonable suspicion of criminal activity.

The Petitioners filed motions to suppress the evidence based upon their Fourth Amendment right to be free from unreasonable searches.  The Court held in a 5 to 4 decision that the explicit and detailed description of the alleged wrongdoing, along with a statement that the event was observed firsthand, entitled the anonymous tip to greater weight then might otherwise be the case.  The 911 caller in this case reported more than a minor traffic infraction and more than a conclusory allegation of drunk or reckless driving.  The court states that this was a close case but considering “…the totality of the circumstances, we find the indicia of reliability in this case sufficient to provide the officer with reasonable suspicion that the driver of the reported vehicle had run another vehicle off the road.”  Navarette v. California, 2014 WL 1577513 (U.S.Cal.) (U.S. Cal., 2014)

Comment Howard: This is an important case because it is right on the edge providing law enforcement an important tool for coordinating information from 911 telephone operators with law enforcement officials in the field.  The more particularized facts the 911 operators can get from the caller to relate to officers in the field the better.  Please consider forwarding this newsletter to your law enforcement officials so they will be aware of this case and make use of this important decision.


St. Louis County Superintendent Of Police Has Standing To Challenge $10 Process Fee MoSMART


Section 57.278 establishes the deputy sheriff salary supplementation fund and requires county sheriffs to collect a $10 service or process fee.  The sheriffs remit the fee to the fund.  County sheriffs can file a grant application with the Missouri Sheriff Methamphetamine Relief Task Force (MoSMART) to obtain a grant from the fund to supplement “salaries and benefits of county deputy sheriffs.”  Section 650.350.8.  The county superintendent of police submitted an application seeking a grant from the fund.  MoSMART denied the superintendent’s application on grounds “the application was not submitted by the Sheriff of St. Louis County as required by the qualifications of the Deputy Sheriff Salary Supplementation Fund.”

Plaintiffs filed a petition for declaratory judgment.  Count I alleged that Section 57.278.1 constitutes an improper delegation of legislative authority in violation of Article III, Section 1 of the Missouri Constitution.  Count II alleged that the statute violates Article IV, Section 51, because the members of the MoSMART board were not appointed with the advice and consent of the Senate.  Count III alleged that the criteria for assessing grant applications have not been properly promulgated as a rule. Count IV alleged that MoSMART’s rejection of the grant application was unlawful, unreasonable, arbitrary and an abuse of discretion.  The Plaintiffs allege that to obtain service on the state in this case, they had to collect and remit the $10 fee imposed by Section 57.278.  Plaintiffs also allege that deputies and the transportation officer have an interest in obtaining salary supplementation from the fund.

The circuit court dismissed the case on grounds that none of the Plaintiffs had standing and that all claims were barred by sovereign immunity.  Plaintiffs appeal to the Missouri Supreme Court, which affirmed the decision of the Circuit Court in all respect except for Count IV holding that the superintendent has a legal interest in obtaining judicial review of whether he is a County Sheriff and was eligible to file a credit application.  Count IV is remanded for further proceedings.  St. Louis County v. State, 2014 WL 1226269 (Mo., 2014)(SC93439, 3/25/14)

Comment Howard: It seems like court fees are the proverbial punching bag for raising revenues for pet projects by state legislators.  While the court did not address any of the substantive questions one would hope that between this case and the case involving municipal court fees that the court would establish some sort of limit or link on the types of court fees. The fees in this case and the municipal court case are not related to court costs and are just a way to raise general revenue.  A special thanks to Pat Reddington, County Counselor of St. Louis County and her staff for pursuing this matter.

 Atheist Cannot Be Required To Attend Treatment Program That Has Prayer And Religious Meditation.

As part of a stipulation with the MDOC Board of Probation and Parole, Randall Jackson, an atheist, was required to attend the Offenders Under Treatment Program for substance abuse.  Jackson understood he was required to complete this program to be eligible for early release on parole.  In his complaint, Jackson said the program “had required meetings [and] invoked religious tenets by using the serenity prayer and religious meditations.” When Jackson objected to the prayer, Salsbury and other staff advised him to “act as if,” a term used in the program, meaning to “assume a role or attitude even if you don’t feel like it” and further defined as “[a] tool used to assist one in ‘trying on’ new patterns of thought and behavior.  Salsbury and staff suggested that Jackson “use God as an acronym for ‘good orderly direction.”  The complaint further stated: “…I was being coerced by and through an atmosphere designed and intended to change or alter my thinking and behavior.  That it would induce conformity by adding pressure and leverage through the hope and desire of achieving a ‘Placement on Parole. “

After pursuing a grievance, seeking to be transferred to a secular treatment program that was denied, Jackson appealed to the MDOC Division of Adult Institutions, which appeal was also denied.  Jackson then filed suit in Federal District Court, which was dismissed for failure to state a claim.  Jackson appealed to the 8th Circuit, which reversed and remanded applying the Lee test, which provides that “…at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.” Furthermore, “…unconstitutional coercion may be exercised both directly, such as by mandatory attendance at a religious exercise, and indirectly.”  Jackson v. Nixon, 2014 WL 1258016 (C.A.8 (Mo.), 2014)

Ragan Comment: The language being used makes it pretty simple to figure out that the State was going to lose and lose terribly on this issue.  When looking at an issue it is important to look at the language of the potential litigation.  Hot button words are key to identifying outcomes.  Simply providing similar accommodation would have avoided this issue.

MOPERM Policy Provisions Analyzed.

A decision holding that and MOPERM funds were not available as liability coverage to satisfy a judgment against the volunteer “Trustee” at the Cole County Jail who raped another inmate while delivering a meal to another inmate in his volunteer “Trustee” capacity is not particularly astonishing.  What is interesting about this case is the history of M0PERM and the analysis of the policy provisions.  If you have a matter involving an interpretation of a MOPERM policy this decision might be a good resource.  Gilley v. Missouri Public Entity Risk Management Fund, 2014 WL 1592728 (Mo. App. W.D., 2014)(WD76933, 4/22/14)

Brainteaser Of The Month.


Landowners asked the Commission to vacate that part of CR 227 located on Landowners’ properties (the “Ard and Comely section”).  In August 2009, Landowners filed their original application with the Commission to vacate the Ard and Comely section of road “in accordance with § 228.110.”  In December 2009, Landowners filed an amended application, along with a written request that the Commission notify them of the date and time of the Commission’s next term.  No notice of the next proceeding was provided to Landowners.  On April 5, 2010, the Commission read the amended application and rejected it that same day without presentation of any evidence.  There is no record of the Commission’s proceeding that denied Landowners’ application.

Landowners filed a “Petition for Judicial Review” in the circuit court for review of the Commission’s denial of Landowners’ application.  In this petition, Landowners alleged that: (1) they were authorized to seek judicial review pursuant to § 228.120.2 RSMo (2000); (2) they had no other adequate remedy at law; (3) the Commission failed to follow the statutory mandates of § 228.110; and (4) the Commission’s actions were, inter alia, unlawful, arbitrary, capricious and/or unreasonable, and involved an abuse of discretion.  The Landowners prayed that the court vacate the Commission’s denial of Landowners’ application and order vacation of the road.  The Commission made no written response to the petition.

The trial court heard the matter as a non-contested administrative hearing under Section 536.150 RSMo. ruling that the Commission actions were unlawful, arbitrary, capricious and unreasonable based upon the evidence that was presented ordering that the Ard and Comely section be vacated.  The Commission appealed to the Southern District.  The Commission argued that they had absolute discretion in deciding whether or not to close a public road relying upon 536.150.1 that states “…the court shall not substitute its discretion for discretion legally vested in such administrative officer or body, and in cases where the granting or withholding of a privilege is committed by law to the sole discretion of such administrative officer or body, such discretion lawfully exercised shall not be disturbed.” (Emphasis added)

It seems to me that the Commission has the sole discretion to determine if a road should be vacated.  Can you imagine what kind of fights we would have if vacation of roads and streets were not in the sole discretion of the City Council or the Commission?  What do you think?  Ard v. Shannon County Com’n, 2014 WL 1010184 (Mo. App. S.D., 2014) (SD32173,  3/17/14


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