March Newsletter (Issue 03-2020)

We continue to work to catch up to provide you news.   We appreciate your patience and will work hard to deliver you much need information in the future.

Missouri Supreme Court Held That Merely Filing A Request For An Accommodation Was Insufficient To State A Claim For Retaliation Under The Disability Provisions Of The MHRA
Factual and Procedural History: Dr. Lin was employed by the Washington University (University) school of medicine as a staff scientist from 1996 until 2012.  Dr. Lin held numerous positions working in various laboratories, each supervised by a different lead researcher.  Each time Dr. Lin’s position was eliminated due to funding restraints or supervisory departures, Dr. Lin timely secured a new position with a different University laboratory.  In 2004, Dr. Lin began research work on a breast cancer project supervised by Dr. Ellis.  Dr. Lin worked in Dr. Ellis’ laboratory until her termination in 2012.  Dr. Lin performed cell or tissue culture work, which required her to work under a hood to ensure the cultures remained in a sterile environment.  During this time, Dr. Lin began experiencing chronic back pain and was diagnosed with two herniated discs.  Dr. Lin informed Dr. Ellis of her diagnosis and requested an accommodation to avoid tasks that aggravated her condition.  Dr. Ellis provided the requested accommodation.

In 2010, Dr. Lin trained to perform microarray work pursuant to the R01 Grant.  In 2011, Dr. Lin’s back pain worsened, and she requested to be excused from performing certain laboratory tasks requiring her to work at a bench with her back bent for extended periods of time.  Dr. Ellis accommodated this request and assigned Dr. Lin to perform microarray work for the R01 Grant, which did not exacerbate her herniated discs.

In mid-2012, Dr. Lin had a disagreement with a colleague, which resulted in a complaint being filed against her.  Dr. Ellis forwarded this complaint to a University research administrator and asked human resources to initiate a process “with a view to terminating” Dr. Lin’s position.  At this same time, Dr. Ellis was informed funding for the microarray work under the R01 Grant was set to expire in December 2012, which could eliminate funding for Dr. Lin’s position.

In July 2012, Dr. Ellis informed Dr. Lin funding for her microarray work on the R01 Grant was expiring at the end of the year, and they discussed other work she could perform given her back restrictions.  During this meeting, Dr. Ellis told Dr. Lin:

I don’t feel there’s anyone else in my lab that if I asked them do something that they would say they couldn’t because of the physical limitation.  Everybody would say yes and go and do it except you.  And I’m sympathetic because I’m a physician advising you and you have physical disability that prevents you from doing something that’s pretty routine in a lab in the university that is focused on cancer biology.

Dr. Lin then met with Dr. Ellis, the University research administrator, and a human resources representative.  At the meeting, they discussed Dr. Lin’s back condition, work restrictions, and the R01 Grant funding issues.  The human resources representative requested Dr. Lin provide a physician’s statement regarding her back condition and the need for accommodations, which Dr. Lin submitted.  The physician’s statement indicated Dr. Lin was to avoid work “including, but not limited to, cell culture and excessive bench work” to prevent reinjuring and exacerbating her herniated discs.
On August 10, 2012, Dr. Ellis formally notified Dr. Lin her position would be eliminated, and the University research administrator drafted a letter confirming her termination in November 2012 once funding on the R01 Grant concluded.  The letter informed Dr. Lin she was eligible to transfer to another position at the University for which she was qualified.  Dr. Ellis offered to provide Dr. Lin a letter of reference and attempted to find work in another University laboratory that would accommodate her back restrictions.  Dr. Lin applied for multiple positions with different laboratories within the University, but she was not interviewed or offered any position.  Dr. Lin’s employment was terminated November 30, 2012.

On February 20, 2013, Dr. Lin filed a charge of discrimination with the Missouri Commission on Human Rights, alleging Dr. Ellis and the University discriminated against her based on her race, national origin, and disability.  Dr. Lin further alleged the University and Dr. Ellis retaliated against her by discharging her and preventing her from transferring to a new position at the University because she engaged in a protected activity under the Americans with Disabilities Act (“ADA”) by requesting a reasonable accommodation.  The commission issued Dr. Lin a right-to-sue letter.
On August 7, 2014, Dr. Lin filed a petition in circuit court asserting claims of disability discrimination and retaliatory discharge against the University and Dr. Ellis. Dr. Lin later voluntarily dismissed her disability discrimination claim and filed a second amended petition.  In the amended petition, Dr. Lin alleged she qualified as a person with a disability under the MHRA and requested Dr. Ellis and the University to provide her a reasonable accommodation for her disability.  Dr. Lin alleged her disability and efforts to seek reasonable accommodation contributed to the decision to terminate her and not provide her with employment with the University after the R01 Grant funding expired.

The jury returned a verdict in Dr. Lin’s favor against the University but relieved Dr. Ellis of all liability.  The University filed a motion for JNOV alleging the sole claim submitted to the jury failed to state a cognizable cause of action under the MHRA because a request for an accommodation is not a protected activity under Section 213.070 and, as a matter of law, cannot serve as a basis for a retaliation claim.  The circuit court overruled the University’s motion.  The University appealed to the Eastern District.

Analysis: The University argued that the trial court erred in overruling its JNOV motion because the plain language of the MHRA’s does not authorize a claim of retaliation for merely requesting a disability accommodation.  More specifically, Dr. Lin’s request for a reasonable accommodation for her herniated disc was not a protected activity on which a retaliation claim could be based because the request does not constitute opposition to an unlawful discriminatory practice nor participation in proceedings authorized by the MHRA.

The Court began its analysis by stating that whether requesting an accommodation is a protected activity under the MHRA is an issue of first impression in Missouri. The Court noted, that there was no textual basis in Section 12203(a) for the cause of action based on retaliation, even though all of the federal Courts of Appeals, that considered this issue, reached the conclusion that filing a request for an accommodation was sufficient in and of itself to state a cause of action for retaliation under the ADA.  The reasoning applied by the Third Circuit and all other Circuits in reaching this conclusion was that:

It would seem anomalous, however, to think Congress intended no retaliation protection for employees who request a reasonable accommodation unless they also file a formal charge. This would leave employees unprotected if an employer granted the accommodation and shortly thereafter terminated the employee in retaliation.

Even the Eighth Circuit, reluctantly reached the same conclusion as the other Circuits although the Eighth Circuit and other Circuit expressed grave doubts about “…whether an employee who merely requests a reasonable accommodation ‘is within the literal language of the statute…” Even though Missouri traditionally applies federal law in the absence of Missouri law to the contrary the Missouri Supreme Court went its own way concluding that it would not read into the Missouri law language, which was not expressly contained within the statute.

Dr. Lin argued her repeated requests for accommodation demonstrate she was “opposing” the University’s alleged violation of her MHRA rights.

The Court noted Dr. Lin never pleaded or asserted below that her repeated accommodation requests constituted “opposition,” nor did she cite any case standing for that proposition.  Even if this Court could discern a way to construe her requests as “opposition” to an unlawful practice, the record demonstrates each time Dr. Lin requested an accommodation for her herniated discs throughout her University employment, it was provided without the need for medical documentation.  When medical documentation was requested and provided in July 2012, the record reflects Dr. Lin’s request was honored until she was terminated.

The Court concluded that: It does “not have the authority to read into a statute a legislative intent that is contrary to its plain and ordinary meaning.  The legislature may wish to change the statute…. But this Court, under the guise of discerning legislative intent, cannot rewrite the statute” to provide Dr. Lin a cause of action where one does not exist.  Lin v. Washington University, (SC97641, 01/14/20).

Comment Howard: The Court’s per curium opinion is very straightforward.  The Court will not read into the text of the statute language, which is not there.  In addition, the Missouri Supreme Court charted its own way, notwithstanding overwhelming federal authority interpreting similar language.  If you are making an argument for textualism this surely is the case you will want to cite as one of the leading cases.

Section 1981 Right Of All Persons To Contract for Sale And Rental Of Property Required Proof Of But For Causation
Facts and Procedure: This case began after negotiations between two media companies failed.  African-American entrepreneur Byron Allen owns Entertainment Studios Network (ESN), the operator of seven television networks—Justice Central.TV, Comedy.TV, ES.TV, Pets.TV, Recipe.TV, MyDestination.TV, and Cars.TV.  For years, ESN sought to have Comcast, one of the nation’s largest cable television conglomerates, carry its channels.  However, Comcast refused, citing lack of demand for ESN’s programming, bandwidth constraints, and its preference for news and sports programming that ESN didn’t offer.

With bargaining at an impasse, ESN sued.  Seeking billions in damages, the company alleged that Comcast systematically disfavored “100% African American-owned media companies.”  ESN didn’t dispute that, during negotiations, Comcast had offered legitimate business reasons for refusing to carry its channels.  But, ESN contended, these reasons were merely pretextual.  In order to help obscure its true discriminatory intentions and win favor with the Federal Communications Commission, ESN asserted, Comcast paid civil rights groups to advocate publicly on its behalf.  ESN alleged that Comcast’s behavior violated 42 U. S. C. §1981(a), which guarantees that all persons have the same right to make and enforce contracts as is enjoyed by white citizens.
Comcast sought to dismiss ESN’s complain.  The district court agreed, holding that ESN’s pleading failed to state a claim as a matter of law.  The district concluded, ESN’s efforts fell short of plausibly showing that, but for racial animus and entered a final judgment for Comcast.

The Ninth Circuit reversed holding that a §1981 plaintiff doesn’t have to point to facts plausibly showing that racial animus was a “but for” cause of the defendant’s conduct. Instead, the Ninth Circuit held, a plaintiff must only plead facts plausibly showing that race played “some role” in the defendant’s decision making process.

Analysis: The Justice Gorsuch begins his analysis by observing the textbook tort law is well-settled ” that when a plaintiff seeks relief for defendant’s wrongful actions the plaintiff must show that the plaintiff would not have been harmed were it not for the defendants unlawful conduct, the so called “but for” test.  Justice Gorsuch, noted that Court’s assume that when Congress creates a new cause of action it does it against this “ancient and simple ‘but for’ common law causation test.”

In addition, the text and history of Section1981 showed that “but for” causation was intended, even though the statute does not specifically refer to causation, “it is suggestive.”  The statute provides that all persons are guaranteed the same rights as white citizens. This can be shown by the fact that a companion section of 1981, prohibits discrimination in the sale and rental of property, which uses nearly identical language.  The Supreme Court interpreted the companion section as providing a cause of action when property rights are denied because of color.

Applying these “hints” as a guide the Court concluded that there was not a shred of evidence to support the use of a “motivating factor” as argued by the plaintiffs nor was there anything that suggested that the “strips of the test” was different at different stages of the case as argued by Comcast.

All of the Justices joined in the opinion, although Justice Ginsburg wrote a concurring opinion to reject the argument advanced by Comcast that Section 1981 applied only to the final stage of the contract negotiations and not the earlier stages of contract negotiations, even though the Opinion did not resolve this question leaving it for another day.  Seemingly, Justice Ginsburg, wanted clarification on that point and to set a marker for the future.  Comcast Corp. v. American Association of African–Media, (S. Ct, 18–1171, 03/3/20).

Comment Howard: This was a relatively easy case to resolve as shown by the fact that all nine Justices joined in the Opinion.  This case shows (along with the Missouri Supreme Court’s opinion in the Washington University case, discussed earlier) that textualism has fully arrived.  The opinion in this case was a per curium opinion, which is interesting since the opinion in by the Missouri Supreme dealing with the constitutionality of Missouri labor laws was also a per curium opinion.  This is on my mind because these are important cases and considering the makeup of the Court there surely would have been a dissent.  Plus, both opinions are important seemingly making it likely that someone would have liked to have been the author of a major opinion.

Juvenile Budget Gets Fully Funded Because Franklin County Failed To Follow Statutory Procedures
Facts and Procedure: Franklin County (“County”) is a first-class county, without a charter form of government.  Respondents are the three members of the County’s Board of Commissioners and the County’s Auditor.  The County’s fiscal year (“FY”) begins January 1 of each year.  In August 2019, the Circuit Court provided the County Commission and Budget Officer with the Circuit Court’s FY 2020 Court Budget Estimate (“CBE”), the parties met and conferred regarding that estimate, and the Circuit Court’s FY 2020 CBE was submitted, amounting to $921,331.15.

On December 31, 2019, the County Commission adopted a FY 2020 budget in the total amount of $538,500.00 for the Circuit Court’s budget.  The County Commission did not appropriate the Circuit Court’s FY 2020 CBE and the amount appropriated instead significantly diverged from and underfunded items in the Circuit Court’s FY 2020 CBE.  The County Commission adopted the Circuit Court’s FY 2020 CBE for each of the Circuit Court’s departments except for the Juvenile Court departments.  The County Commission also sent correspondence/emails directly to two Juvenile Court employees, a family court liaison employed for the past five years and a deputy juvenile officer employed for at least seven years, to terminate their employment and benefits. The two employees continued working without pay or benefits.  Relator alleged that Respondents refused to pay regular expenses of the Juvenile Court since the beginning of FY 2020.

Relator filed a Petition for Writ of Mandamus, asserting the Respondents’ failure to adopt and appropriate the Circuit Court’s FY 2020 CBE, including the Juvenile Court Budget Estimate, violated the provision of Section 50.640, which provides for the avenue of relief with the Judicial Finance Commission (“JFC”).  The Eastern District then issued a Preliminary Order in Mandamus.  Respondents filed Suggestions in Opposition and an Answer to the Petition for Writ of Mandamus arguing that Section 211.393 governs the juvenile court portion of the circuit court’s budget and Respondents are no longer required to pay for juvenile court employees because they should be State employees.

Analysis: Someone is in trouble (You just hope it is not you) when the opinion starts this way:

“Those who cannot remember the past are condemned to repeat it,” according to George Santayana.

The Eastern District gets right to it by noting that this case is virtually identical to a 1995 case between the same parties in which the Missouri Supreme Court ordered the County to appropriate funds for the operation of the Juvenile Court.  In both cases, Franklin County did not follow the statutory procedures for the adoption of a budget by failing to request a review of the budget by the Judicial Finance Committee (JFC).
The Eastern District noted if the County disagrees with the circuit court’s budget submission it may request the JFC to mediate, and if necessary, adjudicate the circuit court budget submission.  While the circuit court has the burden to prove to the JFC that items included in its estimated budget are reasonable, the JFC determines the reasonableness by evaluating “the discrete and concrete elements proposed for it through which the item is given meaning.”  If the County still disagrees it may appeal to the Supreme Court, although that did not happen in this case.

Of course this process raises important questions about separation of powers.  The Eastern District discussed a 1970 case that considered the principles of separation of powers and the court’s ability to perform its judicial functions where the court held that:

… within the “inherent power of the Juvenile Court of St. Louis County, . . . is the authority to select and appoint employees reasonably necessary to carry out its function of care, discipline, detention and protection of children who come within its jurisdiction, and to fix their compensation.”

The Court Missouri Supreme Court concluded in the 1970 case, that “[i]n order that the Court may administer justice under the Juvenile Code, it is essential that it control the employees who assist it.”

As with the 1995 dispute, Franklin County failed to ask the JFC to mediate the dispute. Since state law required the County to appropriate the funds as originally submitted in its budget the writ of mandamus was made permanent.  Twentieth Judicial Circuit of (State of Missouri), vs. County of Franklin, (ED108658, 02/11/20)

Comment Howard: The discussion of the resolution of the separation powers question is very useful in understanding the separation of powers issue, otherwise it looks like a power grab by the courts.  Finally, I get it.

Raytown’s Sunshine Law Lawsuit Resolved With a Hammer
Local government lawyers have been following for some time the City of Raytown’s Sunshine lawsuit, which was appealed to the Western District and remanded to the circuit court to determine attorney fees.  The March 23, 2020, Edition of Missouri Lawyer’s Weekly discussed the final resolution of this case.  It was not pretty.  Raytown and their attorneys got hammered.  In its final order the trial court awarded $40,060 in attorney fees to the Gorny Law firm against the City for its appeal.  This is in addition to the earlier award of attorney fees in the amount of $38,550 plus expenses and $4,000 for civil penalties.  Obviously, over $80,000 was a very steep price to pay, reflecting the trial court’s dissatisfaction with the position taken by the City and its legal counsel.  By now, we know that the proper procedure to protect the city is to ask for an opinion from the attorney general or the Counsel for the City.

“Knew or Should Have Known” Standard Is Out And Vicarious Liability Standard Is In For Public Accommodation Lawsuit
Fact and Procedure: Debi Davis (“Davis”) was a substitute teacher and employee of Kelly Services, Inc. (“Kelly Services”).  During that time period, M.N. was in the fifth grade and attended West Englewood Elementary School in the North Kansas City School District (“District”).  On October 9, 2015, Davis was assigned by Kelly Services to be a substitute teacher for M.N.’s classroom.  M.N. had never met or seen Davis prior to that date.  That afternoon, while passing out crossword puzzles to the students, Davis called M.N. and another African-American student seated at the table with him a “nigger.”  Later in the day, when M.N. was getting a pencil or ruler, Davis told him to “put it down because nigers [sic] are dumb.”  At the end of the school day, Davis told M.N. that she did not “give a shit” about him.

That afternoon M.N.’s mother (“Mother”) learned of Davis’s comments from a mother of one of M.N.’s classmates.  Mother contacted the school principal and was advised that the principal had received calls about Davis’s conduct and the school’s liaison officer would be investigating.  On October 12, 2015, the school principal notified Kelly Services that she had received reports from parents that Davis had used inappropriate language.  On October 16, 2015, the school principal informed Mother that the investigation was still being conducted and that Davis would not be allowed to return to M.N.’s school.

Kelly Services also investigated the incident learning that Davis denied using any racial slurs or curse words.  Kelly Services counseled Davis on appropriate and professional language and classroom management.  Kelly Services did not terminate Davis at that time, but its incident report noted that Davis would be excluded from any further assignments in the District.  Davis remained employed by Kelly Services until March 7, 2016.  Davis was terminated from her employment with Kelly Services because she had not accepted a substitute teaching assignment from Kelly Services in 150 days and had hung up on a Kelly Services employee who called to offer her a substitute teaching assignment.

M.N. then filed charges of discrimination with the Missouri Commission on Human Rights (“Commission”), alleging the District and Kelly Services (collectively, “Defendants”) discriminated against him in his use of a public accommodation based on his race.  After the issuance of a right to sue letter M.N. then filed a petition in the circuit court asserting “Discrimination in a Place of Public Accommodation (R.S.Mo. § 213.065)” against both Defendants.

M. N. alleged that Davis “was assigned by Kelly Services, and Defendant District to be a substitute teacher in the classroom in which [M.N.] was a student”; Davis “used disrespectful language, profanity, and racial slurs toward 5th grade students of Defendant District,” including referring to M.N. “as a ‘negro’ or ‘nigger’ multiple times”; “Defendants treated [M.N.] unfairly in his use of West Englewood Elementary School”; and M.N.’s “race was a contributing factor in the unfair treatment he suffered from Defendants during his use of West Englewood Elementary School.”  M.N. also alleged that “[a]t all times relevant to the allegations in this Petition, Debi Davis was an employee, servant or agent of Kelly Services, and/or North Kansas City School District and was acting in the course and scope of her employment or agency, making Kelly Services, and the District liable for her conduct.”

Defendants filed a joint motion for summary judgment in which they asserted that “two racial slurs cannot constitute the denial of a public accommodation” and that Defendants could not be held liable for the conduct of Davis asserting that they did not know, nor should they have known, that Davis would make the derogatory comments, and therefore they could not be held liable for her conduct.  They also asserted that they could not be held liable on a theory of respondeat superior, as Davis was not an employee of the District and she was not acting within the scope of her employment or agency when she made the comments.

The trial court sustained Defendants’ motion for summary judgment, finding that “[w]hile there [were] some disputes as to potential remedial steps that were or were not taken after the events given [sic] rise to the cause of action, the facts surrounding the cause of action are not disputed.  The trial court found that the “true dispute surrounds burden of proof” Plaintiff must show that the School District, and Kelly Services, knew or should have known, the substitute teacher would call the student the offensive name that she did.  The trial court found there was “no evidence either Defendant either knew or should have known that the substitute teacher would call the student the derogatory name.” the trial court then entered judgment in favor of Defendants and dismissed M.N.’s claims with prejudice. M.N appealed to the Western District.

Analysis: Standard Applicable To M.N.’s Claim:The trial court held that the Defendants’ “knew or should have known” of Ms. Davis’ discriminatory comments.  The trial court refused to apply the doctrine of respondeat superior to her conduct.  The Western District started its analysis by noting that a public school is a place of public accommodation and that a school is a person under the statute.  Furthermore, under Missouri law a student (such as M.N.) may prevail on a claim against a school district (such as Defendant District) and a corporation (such as Defendant Kelly Services) if the student proves that these entities, directly or indirectly, discriminated against him in his use of the public school system on the grounds of race.

As noted, in a recent MMAA newsletter it is only necessary to plead three elements in order to state a cause of action.  In this in this case, the Plaintiffs alleged that M.N. was a member of a class protected by the statute; that M. N. was discriminated against in the use of a public accommodation (public school); and that M. N. status as a member of a protected class was a contributing factor in the discrimination the (use of a contributing factor standard was two prior to the amendment to the statute).  In this case, the trial court erred by requiring M.N. to prove that the Defendants knew or should have known that Davis would call M.N. offensive names.

The Defendants argued that in Subia ex rel. Doe v. Kansas City, Missouri School District, (WD73800, 4/17/12) that the school district was liable for its own conduct by its decision to sit idly by in the face of known student-on-student harassment in its schools and that the court should have applied the contributing factor standard.  In Subia, the school district was not liable for the action of the students but was liable if it knew or should have known of the harassment and failed to take prompt and effective remedial action.

Not so in this case.  Unlike the claim in Subia, M.N. was not asserting that he was the victim of student-on-student harassment, nor was he attempting to hold Defendants directly liable for their decision to remain idle in the face of known harassment.  Rather, M.N. sought to hold Defendants vicariously liable for the offensive remarks of Davis solely by virtue of their relationship as employee/employer or agent/principal. (doctrine of respondeat superior).

The Western District noted that both federal case law, which is generally followed in Missouri, and the decision in Subia, supported the application of respondeat superior in this case.  In Subia the court noted that Section 213.065 prohibited a person from “indirectly” discriminating against another in a place of public accommodation, therefore, the statute contemplated liability for a party “…who did not personally engage in the discriminatory acts but who is responsible” for such acts.  Therefore, the Western District held that the trial court applied the wrong standard of contributing factor, when it should have applied the doctrine of respondeat superior.

Application of Respondeat Superior: Defendants argued that Davis was not an employee of the district and that she was not within the scope of her employment when she made the offensive comments.  Whether or not a person is an employee in the course and scope of their employment is a question of fact.  Based on the summary judgment record the Court was unable to tell if Davis was an employee; therefore, it remanded the issue to the trial court for determination.  M. N. v. Kansas City School District, (WD82295 , 03/10 /20)

Comment Howard: In my mind, the school district should have included in its agreement with Kelly Services an indemnity provision since Kelly Services were providing the substitute teachers.  Surely all of the vetting and the background checks were conducted by Kelly Services.  Of course that may have happened but an indemnity provision protecting the District would seem to simplify future cases since respondeat superior now clearly applies.

Prohibition Against Picketing of Any Kind by Public Employees Unconstitutional – Picketing Over Any Personnel Matter Upheld
Facts: Rebecca Karney and Johnny Miller (collectively, “Karney”) are dispatchers in the Jackson County Sheriff’s Office and members of the Communication Workers of America Local 6360.  The dispatchers are currently engaged in negotiations with the Jackson County Sheriff’s Office for a new labor agreement.  Their previous labor agreement expired December 31, 2018, and did not prohibit picketing.  Karney filed a petition in the circuit court, seeking a judgment declaring § 105.585(2) unconstitutional and enjoining [Appellants] from “enforcing or otherwise implementing … § 105.585(2).”

Section 105.585 was enacted in 2018 via House Bill No. 1413 and governs labor agreements negotiated between public entities and labor organizations.  The challenged provision provides:

Every labor agreement shall expressly prohibit all strikes and picketing of any kind.  A strike shall include any refusal to perform services, walkout, sick-out, sit-in, or any other form of interference with the operations of any public body.  Every labor agreement shall include a provision acknowledging that any public employee who engages in any strike or concerted refusal to work, or who pickets over any personnel matter, shall be subject to immediate termination of employment[.] (My Emphasis Added)

After a bench trial, the circuit court declared § 105.585(2) unconstitutional under both the Missouri Constitution and the United States Constitution as it relates to picketing, and enjoined defendants from using or applying § 105.585(2)’s prohibition against picketing “in negotiating any collective bargaining agreement with Plaintiffs.”  The Defendant appealed to the Missouri Supreme Court.

Analysis: Plain Text and Ordinary Meaning of Section 105.585(2):
The State contended that the plain meaning of § 105.585(2) prohibited picketing only in conjunction with a labor strike.  The State argues that by narrowly construing this language the language would be constitutional and, therefore, to be favored over any other unconstitutional interpretation.

First, the Court reviewed the language in the statute determining that the language was not ambiguous, leaving the Court no other option but to give effect to the intent reflected in the statute’s plain language.  The Court concluded that the plain intent of the statute required all public labor agreements to prohibit “picketing of any kind.” therefore, the Court could not accept Appellant’s argument that it should apply a narrow definition of the phrase by limiting the phrase to “picketing in conjunction action with a strike.”

The Court noted “picketing” is commonly understood to encompass much more than a demonstration in conjunction with a labor strike.  If the legislature had intended to use a narrow definition it would have made its intent clear in the statute. Furthermore, picketing in conjunction with a strike is already prohibited in the statute making the interpretation proposed by the State superfluous. Therefore, the Court concluded that the plain meaning of the phrase “picketing of any kind” must be construed to include demonstrations and protests unrelated to an employee strike. The court concluded that while the State may impose some limits on the speech of its employees, even about matters of public concern, the prohibition against “picketing of any kind” is unconstitutionally broad.

Personnel Matters: The statute also provided that: “Every labor agreement shall include a provision acknowledging that any public employee … who pickets over any personnel matter, shall be subject to immediate termination of employment[.]”
While public employees have a constitutional right under the free speech clauses of the state and U. S. constitutions the Court notes that this right is not unlimited citing ConnickConnick v. Myers, 461 U.S. 138 (1983).

We hold that only when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a … court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency[.] Connick, 461 U.S. at 147.

In Connick one of the employees took a survey of the office to gauge “the confidence and trust that Myers’ coworkers possess in various supervisors, the level of office morale, and the need for a grievance committee.”  In holding these questions were not of public concern, the Supreme Court reasoned:

To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark—and certainly every criticism directed at a public official—would plant the seed of a constitutional case.  While as a matter of good judgment, public officials should be receptive to constructive criticism offered by their employees, the First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs.

Based upon this and the legacy of Connick the Missouri Supreme Court held that the statute limiting picketing over personnel matters was constitutional, provided it was interpreted narrowly to apply to matters approved in Treasury Employees rather than to matters of public concern.  United States v. National Treasury Employees Union, 513 U.S. 454 (1995).  Under this frame work public employees’ comments about personnel matters are not a matter of public concern and the prohibition does not violate the Missouri Constitution nor the United States Constitution.

Severance of Unconstitutional Provisions: The Missouri Constitution specifically provides that the provisions of every statute are severable unless the court finds that the valid provisions of the statute are so essentially and inseparable connected with, and so dependent upon, the void provision that it cannot be presumed the legislature would have enacted the valid provisions without the void provisions.  In this case, the court found that the valid provisions could be separated from the void provisions.  Miller v. Department of Labor and Industrial Relations, (SC97833, 03/31/20).

Comment Howard: Connick, cited by the Court in support of its opinion makes it clear that that whether or not public employee speech is a matter of public concern “must be determined by the content, form, and context of a given statement, as revealed by the whole record.”  Connick, 461 U.S. 138, 148.  This suggests that cases involving the statutory prohibition against picketing about personnel matters should be determined on an “as applied” standard.  It is all about the facts and the context.  Be careful of overly broad interpretations of what can be prohibited with respect personnel matters.

Also, a broad statement like the statutory prohibition against picketing about personnel matters refers to, as stated by the Court, individualized personal matters not broad policies, which seem to clearly fall within the definition of personnel matters. Surely unions and their members collectively can picket for policy changes that pertain to “…the selection, placement, and training of employees and with the formulation of policies, procedures, and relations with employees or their representatives,” as long as they do not digress to the wisdom of an individualized personal matter.  See footnote 7 and 8 in the Opinion.

Comment Ragan: I have concerns about the court’s opinion.  There are two issues at play.  1) Does the statute prohibit protected speech of employees.  2) Does the statute coerce speech from governmental entities negotiating with labor organizations?  While the opinion addresses the first issue, it fails to address that the state legislature is coercing speech by governmental entities that are negotiating with labor organizations.  By requiring a governmental entity to prohibit certain activities within a contract the legislature is denying local elected officials and the people that elect them the right to express protection for labor organizations.  The law might prevent some headaches for elected officials on the local level but it raises a question.  The court determined that the state law does not prohibit any rights previously protected and the state law does not provide governmental bodies with any new powers.  Is it possible the court ruling only eroded the powers of local rule.

Families First Coronavirus Response Act
Husch Blackwell recently posted information concerning Department of Labor regulations issued on April 1, 2020, interpreting the Families First Coronavirus Response Act (FFCRA) and clarifying several questions that the text of the law raised concerning employers’ duties to provide paid sick and family leave for reasons related to the COVID-19 pandemic.  As expected, the regulations left some questions unanswered and raised new issues.  In this Husch Blackwell alert, they highlight the 20 points that employers should be aware of.  Follow this link for more information.  Newsandinsights Link.