May Newsletter (Issue 5-2014)

Prayer At The Beginning Of Council Meeting Constitutional.


Since 1999, the monthly town board meetings in Greece, New York, has opened with a roll call, a recitation of the Pledge of Allegiance, and a prayer given by clergy selected from a congregations listed in a local directory.  While the prayer program is open to all creeds, nearly all of the local congregations are Christian and as a result nearly all of the participating prayer givers have been Christian.  Respondents, citizens who attend meetings to speak on local issues, filed suit, alleging that the town violated the First Amendment’s Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers.  They sought to limit the town to “inclusive and ecumenical” prayers that referred only to a “generic God.”  The District Court upheld the prayer practice on summary judgment by finding no impermissible preference for Christianity.  The court concluded that the Christian identity of most of the prayer givers reflected the predominantly Christian character of the town’s congregations, not an official policy or practice of discriminating against minority faiths.  The court found that the First Amendment did not require Greece to invite clergy from congregations beyond its borders to achieve religious diversity and rejecting the theory that legislative prayer must be nonsectarian.  The Second Circuit reversed, holding that some aspects of the prayer program, viewed in their totality by a reasonable observer, conveyed the message that Greece was endorsing Christianity.  The decision was appealed to the United States Supreme Court.  The United States Supreme Court held that prayers offered at the beginning of a meeting of the town of Greek do not have to be nonsectarian.  The court further stated absent “… prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a particular prayer will not likely establish a constitutional violation.”  Furthermore, so long as the town maintains a policy of nondiscrimination, the Constitution does not require the town to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balance.  Town of Greece, N.Y. v. Galloway, 2014 WL 1757828 (U.S.), 1 (U.S., 2014)

Comment Howard: This was a 5 to 4 decision with the court sharply divided over the issue between conservatives and liberals and along religious lines.  The three Jewish members of the Court and one Catholic would have found the nonsectarian prayers given at the Town meeting to be unconstitutional.  It appears that this decision clearly decides the issue for the foreseeable future making the job of the city attorney a lot easier, so long as councilmembers maintain a policy of nondiscrimination and do not allow prayers “that over time denigrate, proselytize, or betray an impermissible government purpose.”



Comment Ragan:  I would not get comfortable about this issue.  We live in a time where people have become skilled with these issues.  You should understand that someone is going to show up at your council meeting demanding to open with a prayer to Satan or some other perceptive that might make the majority in your community uncomfortable..  Are you prepared and will your council be ready?




Liability Of County For Disability Claim While Working An Off-Duty Job.


Claimant worked for the Christian County Sheriff’s Department (“CCSD”) as a deputy sheriff.  Claimant normally worked ten-hour shifts on Monday through Thursday.  Claimant also worked as a security officer for OBC, which operated a baseball team known as the Ozark Ducks.  OBC wanted to hire security personnel who had the ability to arrest people if necessary.  Claimant learned about the OBC job through a sign-up sheet posted at the CCSD.  Although CCSD authorized its employees to work security for OBC, no employee was required to do work.

On Friday, August 9, 2003, Claimant after working a 40-hour week for the CCSD the claimant worked an evening ball game for the Ozark Ducks as an employee of OBC.  At approximately 10:30 that evening, while working security for OBC after a baseball game, Claimant encountered an inebriated couple that was intent on driving their vehicle to leave the ballpark.  Claimant stopped the couple and secured a cab, but when the cab arrived, the couple got into their own vehicle and attempted to leave the parking lot.

Claimant anticipated the commission of a crime and contacted CCSD to request back-up assistance, as well as to indicate that he was going “on duty” as a deputy sheriff at that time.  The drunk driver started his vehicle and, as Claimant attempted to stop the vehicle from leaving through the facility’s only exit, the vehicle struck Claimant.  The impact flipped Claimant over the hood of the car, into the windshield, and onto the ground.  Claimant sustained severe injuries to his knee and back in addition to a torn medial meniscus.  The Claimant also ruptured disks at three levels on his spine and suffered recurrent herniations, which prompted two discectomies, an artificial disc replacement, and eventually a back fusion.  As a result of the injuries sustained that night, Claimant never returned to work as a deputy sheriff and was forced to leave his employment in law enforcement.  He continued to operate a floor covering business, which he had operated for several years, but not in the same capacity as before the accident.

Claimant filed a claim for workers’ compensation benefits against Christian County and its insurer.  Christian County and its insurer filed a motion entitled “Application of Christian County Pursuant to Section 287.040.4 to Make OBC a Party to the Proceedings” and recited in its application the provisions of sections 287.040.1 and 287.040.4, which pertain to contractors and subcontractors and their joinder as a party in a workers’ compensation proceeding.  The application to join OBC was sustained by the ALJ, but the determination of other issues was deferred.

Claimant thereafter settled his claim for compensation against Christian County and its insurer.  At the final evidentiary hearing on the remaining issues, the ALJ specifically found that the Claimant was not an independent contractor and that the OBC was not a contractor or subcontractor of Christian County, therefore OBC and Christian County were joint employers of Claimant.  Consequently, joinder of OBC in the original proceeding was proper because Christian County had the right for contribution.

OBC sought review by the Commission of the ALJ’s award concerning whether or not the ALJ lacked the authority to join OBC as a joint employer and the accuracy of the ALJ’s determination of OBC’s imputed rate of contribution.  Christian County also sought review by the Commission, contending that the ALJ should have found OBC to be Claimant’s sole employer at the time of the accident, and that, if they were joint employers, the ALJ erred in limiting OBC’s rate of contribution to 14.8 percent.

The Commission concluded that Section 287.130 does not confer upon Christian County, the ALJ, or the Commission the power to add OBC as a party to employee’s workers’ compensation claim. The Commission further concluded that Section 287.130 confers upon the employee the discretionary right to pursue claims against any or all of his or her employers, while permitting an employer to initiate an action for contribution against another alleged joint employer in a separate action.

Christian County appealed to the Southern District, which affirmed the decision of the Commission holding that a claimant in a workers compensation case has the absolute right to determine between two joint employers, which employer to sue. The employer who has been sued by the claimant has a right of contribution from other joint employers in a separate action.  McGuire vs. Christian County and Association of Counties, (SD32731, 5/05/14)

Comment Howard: While it seems to makes sense to bundle all of the actions together in one lawsuit the rules do not allow this because the claimant has an absolute right to determine which of the two employers to sue.  I assume the laws were written to let the employee’s case proceed without getting bogged down with contentious issues between joint employers.  There is nothing particularly remarkable about this case although it is interesting as to how intertwined the relationship can be between a law enforcement agency and another employer who wants to benefit from the presence of an off-duty police officer.  Suddenly when a crime is about to be committed the off duty police officer springs into action by unilaterally declaring that he is back on duty and requesting back up.  Intent on doing his duty to stop somebody from committing a crime the deputy gets mowed down permanently disabling the employee, leaving the joint employers to fight it out over liability.  We have all wrung our hands over the liability of police officers when they are employed in an off-duty situation.  In this case the ALJ would have apportioned 85% of the liability to Christian County.  In light of this case, it may make sense to go back and review your policies concerning employment of off duty officers by another employer.  Seems to me that most of the benefits were to the Ozark Ducks not the County so they ought to bear the load.

The Statement “Didn’t Want To Do It” Is Not An Unequivocal Refusal To Take A Blood Test.



On August 5, 2012, Missouri State Highway Patrol Trooper Derek Mason (Trooper) stopped a vehicle driven by Ridge because Trooper noticed Ridge’s vehicle commit a lane violation.  When Trooper interacted with Ridge he noticed that Ridge had several signs of intoxication, including an odor of marijuana, bloodshot and glassy eyes, and mumbling of speech.  Ridge also admitted to Trooper that he had been smoking marijuana shortly before being pulled over.

After noticing these signs of intoxication, Trooper administered several field sobriety tests, which Ridge failed.  As a result, Trooper arrested Ridge for driving while intoxicated.  Trooper advised Ridge of his Miranda rights and Missouri’s Implied Consent Law and requested a sample of Ridge’s blood. Ridge agreed to provide a blood sample.  A short time later while Ridge and Trooper were sitting in the patrol car, Trooper recorded in his report that Ridge refused after initially agreeing to provide a blood sample.   As a result of the refusal the Trooper did not get a blood sample from Ridge and the Director sought to have Ridge’s license revoked for a year.  Ridge filed a petition for review in circuit court.

At the hearing, the circuit court heard testimonies from Trooper and Ridge.  Trooper testified that, while he did not remember the exact words Ridge used, Ridge refused after initially agreeing to submit a blood test.  Ridge testified that, before Trooper drove him to get his blood test, Trooper inquired if Ridge “really wanted to do this?  “Because I don’t want to get all the way down there and then you not do it.”  Ridge testified that he then told Trooper that he “didn’t want to do it.”  The trial court found that Ridge did not “unequivocally refuse” to submit to a chemical test of his blood and reinstated Ridge’s driver’s license.  The Director appealed to the Western District, which affirmed.

In reviewing the record in this case the Western District noted that the testimony from the Trooper was ambiguous because he could not remember the exact words that Ridge used but he recalled that Ridge stated he “didn’t want to do it.”  Telling an officer that he “didn’t want to do it” is not an unequivocal refusal to take a blood test when the driver of the vehicle initially agreed to submit to a blood test.  A refusal to submit to a blood sample test must be unequivocal.  Ridge v. Director of Revenue, (WD75986, 4/29/14)

 Kansas City School District Loses Age Discrimination Case.

In 2005, Janet Hurst (Respondent) began working for the Kansas City School District (District) as a school psychological examiner (“SPE”) in the Exceptional Education Department.  SPEs administered tests to students to evaluate whether the students qualified for special educational assistance. After administering the tests, SPEs would write reports explaining their findings.  SPEs would then re-evaluate the students that qualified for assistance every three years.

During the 2009-2010 school year, the District decided changes needed to be made to the SPE position. In April of 2010, the District notified all SPEs, including Respondent, that it was reconstituting the SPE position for the 2010-2011 school year.  The new, reconstituted position would be called an educational diagnostician (“ED”) and would purportedly involve a counseling component not previously required of the SPEs.  All former SPEs had the opportunity to interview for the new ED position but were not guaranteed a position.  At a meeting regarding the new position, the District told the SPEs that the hiring decisions would be based on the interview as well as their previous work performance.  The SPEs were also informed there would be twelve ED positions available.

A four-person committee interviewed the applicants for the ED position.  Prior to the interviews, the interviewing committee members drafted twelve questions with model answers.  During the interviews, the committee members asked each applicant the predetermined questions and then individually scored the applicant’s answer on a scale of 0 to 3.  At the conclusion of the interviews, the applicants’ scores were totaled and converted into percentages.  Dr. Hernandez originally stated that applicants had to score 80% or higher on the interview in order to qualify for an ED position.  Dr. Hernandez later lowered the required minimum score to 60%.  The District did not inform the applicants that they would be required to score a certain percentage on the interview to obtain an ED position.

At the time of the interviews, Respondent was sixty-one (61) years old.  She interviewed for the ED position but received a score of only 42%.  Dr. Hernandez notified her in June 2010 that she would not be hired as an ED.  In July, Respondent received a letter informing her that although she met the minimum qualifications for the position that the District had selected other candidates it believed more closely matched the requirements of the position and needs of the students.  The letter further informed Respondent that if the District found that she was qualified for a position in the future, she would be contacted.

In August, the District notified Respondent that it was assigning her to teach a fifth grade class at a “turn-around school. “Respondent received the notification two weeks before the school year was scheduled to begin.  Respondent was concerned about her ability to teach the class because she had not taught in the classroom for thirty-seven years.  Ultimately, she decided that she could not do an adequate job teaching the class and she retired from the District.

In August 2011, Respondent filed a petition alleging age discrimination in violation of the Missouri Human Rights Act (“MHRA”).  In particular, Respondent alleged that age was a contributing factor in the District’s decision to eliminate her SPE position and in its failure to hire her for the ED position.

In 2013, the case proceeded to trial.  The jury returned a verdict for Respondent, Janet Hurst in the amount of $247,083.78 in actual damages and $200,000.00 in punitive damages based on claim that she was discriminated against because of her age when it eliminated her position as a school psychological examiner and failed to hire her for the new reconstituted position of educational diagnostician.  The District appealed to the Western District, which affirmed the judgment.

The District raised several important points on appeal.  First, the Respondent offered MAI 38.01 as modified by MAI 19.01 instead of just MAI 38.01.  The parties agreed on appeal that MAI 38.01 was the proper instruction.  The modification offered by the Respondent to 38.01 was as follows: “Third, such conduct directly caused or directly contributed to cause damage to Plaintiff.” (Bolded language shows modification to MAI 38.01). The modified language in bold is for cases where there are multiple causes of damage even if the case “does not involve another party or tortfeasor.”  The Court overruled respondent’s argument on the grounds that the modification has been used outside the comparative negligence context and because it was harmless error.  The evidence was overwhelming based on the Court’s analysis of the evidence that the District discriminated against the Respondent.

In addition, the District argued that the trial court erred in not granting a directed verdict and its motion for JNOV because the District was entitled to judgment as a matter of law since the Respondent failed to prove that she was damaged as a direct result of the District’s decision to eliminate her position because the District offered to hire her for another position which had the same pay and benefits.  The Court construed this argument as an argument that the Respondent failed to mitigate damages, which is not a complete bar to recover but rather goes to the measure of damages that is recoverable.

The evidence showed that besides lost wages some of which was offset by other employment that the Respondent incurred damages for emotion, stress, and anxiety because she was embarrassed and upset when the District failed to hire her for her former position.  The offer of a job teaching fifth grade in a turnaround school in the Kansas City School District was not a failure to mitigate damages because she felt unprepared to teach in the classroom having not taught in a classroom setting for over 37 years and was offered the position in a turnaround school just two weeks before school year was scheduled to start.  Hurst v. Kansas City School District, (WD76534, 4/28/14)

Comment Howard: The errors made by the District in this case are classic and typical of the kinds of errors made by governmental agencies when dealing with employment decisions. These decisions are not easy and are made in difficult times were resources are scarce.  The employee had an exemplary record, was well respected by her peers, and as typical in these cases the employer made numerous statements indicating an bias against older employees and took actions that where against its interest by not following the rules it established for filling the positions and engaging in conduct that looked like it was getting rid of older employees.  Almost for a certainty any case with a record like this case will be submitted to a jury and the jury will likely return a verdict adverse to the employer. Employers must in order to have any hope at all in wining MHRA employment cases have a solid record.

Wally Duncan Goes Out With A Victory Lap In Cable-Television Case.

In Poplar Bluff Internet, Inc. v. City of Poplar Bluff, the Southern District affirmed the trial courts decision granting the City of Poplar Bluff (City) its motion for summary judgment against Poplar Bluff Internet, Inc. (Internet Provider) who was using the City fiber system under the City “Open Access Policy.” The City also prevailed on its motion for summary judgment to collect fees not paid by the Internet Provider in the amount of $175,000 plus 9% interest.

The Southern District found for the City based on the undisputed fact that the Internet Provider did not appeal the administrative decision of the City Council within 30 days as required by the Administrative Procedures Act and the undisputed fact that the Internet Provider owed the money under the new rates established by the City Council and failed to pay the fees.  Poplar Bluff Internet, Inc. v. City of Poplar Bluff, 2014 WL 1576900 (Mo. App. S.D., 2014)(SD32823, 4/21/14).

Comment Howard: While the opinion did not address the authority of the City to provide Internet service the brief filed by the City clearly nailed this issue based on federal and state authority in its brief. The ability of local communities to provide high speed Internet service has now come to the forefront as a tool for economic   development. Currently my son who lives in downtown Kansas City has high speed Internet service at 1 GB per second and reasonably priced Cable TV from Google based on the decision made by Google to provide the last mile of fiber to the homes and businesses in Kansas City. High-speed Internet service to local communities in terms of economic involvement is a game changer similar to the railroads in the 19th Century.



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