January Newsletter (Issue 01-21)

Aiding And Abetting Discriminatory Action Under the MHRA Applies To All Employers Including Employers Who Do Not Have A Direct Employment Relationship – Mandamus Applies To Right To Sue Letter If Letter Has Been Requested And More Than 180 Days Has Expired

Facts and Procedure: State of Missouri ex rel. Swoboda, is a high stakes employment law case against Armstrong Teasdale (Armstrong), a prominent law firm in the State of Missouri, who was fighting for its reputation.  The retaliation complaint filed by Swoboda, a Kansas City police officer, against Armstrong alleged that members of the Armstrong firm went beyond mere legal representation and affirmatively took steps to threaten a witness who was to testify in the action.  In setting the stakes the Court in its opinion stated that “…a law firm representing a party in a claim under the MHRA should be well aware of the aiding and abetting provisions of the act and know it would be a violation to threaten employees for engaging in activity protected by the MHRA.” Of course, whether or not the allegations are true remains to be seen; nevertheless, this is a very high stakes case. 

This all started with a statement made by an Armstrong Teasdale (Armstrong) attorney, who was representing the Board of Police Commissioners of Kansas City (“BOPC”), against Jim Swoboda, a police officer who had filed a retaliation claim with the Missouri Commission of Human Rights (Commission).  Swoboda’s alleged that at his deposition, an attorney from Armstrong, who represented the BOPC, advised him that he needed to think of his career when he testified.  The officer’s claim was tried to a jury, and again Swoboda testified on behalf of the officer.  Swoboda also alleged that, before his testimony, he was again advised by an Armstrong attorney that he needed to think about how his testimony might hurt the BOPC. 

Due to some health issues and “the stress of [his] involvement in the legal claim,” Swoboda took a medical leave of absence from October 4, 2018, to December 13, 2018.  He used 46 sick days, vacation days, and comp days during this time.  Swoboda’s medical provider cleared him to return to full duty in December of 2018, but the BOPC placed him on limited duty from that time until January 14, 2019.  Swoboda was assigned menial tasks such as filing jackets in alphabetical order in a storage closet.  His department vehicle, department email, and key card access to department files were all withheld from him from October 4, 2018 to January 18, 2019.  He was not allowed to carry a gun or wear his uniform, and was restricted from accessing department computers.  He was also restricted from accessing confidential information and department records, even though he served as the Custodian of Records.  He was excluded from Commander meetings and training, FOP meetings, and unit holiday parties as well as work groups, committees, and projects.  He was removed from his position as the Information Management Unit Commander and the Department Custodian of Records and was replaced by another Commander.  Swoboda’s office was taken away, and he was assigned a storage closet to use as an office.  Swoboda alleged that these actions by the BOPC were in retaliation for his participation in the fellow officer’s trial, because after that officer’s case settled, his access to department email and key card access to department facilities was restored. 

Swoboda then filed his own charge of discrimination and retaliation with the MHRA against both the BOPC and Armstrong.  His claim against Armstrong was for “Aiding and Abetting” the BOPC’s discriminatory and retaliatory actions.  The Commission issued Swoboda a Right to Sue letter as to his claim against the BOPC, and Swoboda sued the BOPC in Circuit Court. 

After Swoboda filed this lawsuit the Commission then issued a letter relating to Swoboda’s claim against Armstrong stating, 

“The investigation of the [] complaint has determined that the [Commission] lacks jurisdiction over the matter because there is no employer-employee relationship between the Complainant and the Respondent. Therefore, [the Commission] is administratively closing its case and terminating all [Commission] proceedings relating to your complaint.” 

Next, Swoboda filed a Petition for a Writ of Mandamus with the Circuit Court, asking the Court to order the Commission to vacate its dismissal of Swoboda’s Complaint against Armstrong, to accept his claim, and to investigate it. The Circuit Court issued a preliminary order in mandamus, directing the Commission to respond to Swoboda’s petition and, Armstrong filed a motion to intervene, which was granted.  Both the Commission and Armstrong filed motions to dismiss the writ petition for failure to state a claim. 

After a hearing (as a non-contested case under the APA) the Circuit Court issued its Order, Judgment, and Permanent Writ of Mandamus granting a writ of mandamus in favor of Swoboda; directing the Commission to rescind its decision to dismiss Swoboda’s charge against Armstrong under the MHRA; and to accept Swoboda’s charge, and to investigate the complaint. 

An appeal by the MCHR and Armstrong to the Western District followed. 

Analysis: Was the Right Clearly Established Allowing The Court To Issue A Writ Of Mandamus? The Commission and Armstrong argued that mandamus was inappropriate because Swoboda’s claim against Armstrong for aiding and abetting the BOPC’s retaliatory actions did not involve an established right.   Black letter law requires that in order to be entitled to mandamus the right must be clearly established.   “The issuance of a writ is justified only when some legal authority requires an official to perform a particular act.” 

Starting with the statute the Court noted that even before the  2017 amendments, the statute made it an unlawful, discriminatory practice, “to aid, abet, incite, compel, or coerce the commission of acts prohibited under this chapter or to attempt to do so[.]” Furthermore, the Act made it unlawful: “[t]o retaliate or discriminate in any manner against any other person because such person . . . has filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding or hearing conducted pursuant to this chapter[.]” The Court further noted  that the aiding and abetting provision has been seldom cited by the appellate courts.  In fact, there were no decisions using the “aiding and abetting” provision “…to impose liability on a third party outside of an employer/employee relationship, the potential for such claims exists based upon the plain language of the MHRA.” 

The Western District, concluded that the 2017 Amendments to the Act made it clear that the aiding and abetting provision, now found in Section 213.070.1(1) remained unchanged and that Armstrong was an employer, although Armstrong sharply disputes this claim arguing that the “aiding and abetting” provision applied only if the person alleging the violation was actually a direct employee of Armstrong. (There is more discussion of the employment relation under the next issue below).  The Court concluded that the Act has always imposed a duty on the Commission to “promptly investigate the complaint,” and to issue a Right to Sue letter if requested and the Commission has not completed its administrative process (investigation) within 180 days of the filing of the complaint.  The right to sue letter had been requested and the 180 days had expired; therefore, there was a duty by the MHRC to issue the right to sue letter because the duty was “already defined by law.” 

The Court noted that in considering the above issue the nature of the employment relationship was covered but that it would be explained in more detail under the next point. 

Employment Relationship between Swoboda and Armstrong: The Commission and Armstrong  argued that Armstrong cannot be found liable to Swoboda under the MHRA because Armstrong was never his employer.  In 2017, Section 213.070 was amended so that it is now “an unlawful discriminatory practice for an employer” to retaliate or discriminate against any person who has engaged in a protected practice as delineated in the statute.  The Commission and Armstrong who were also Appellants argued that, despite the “any other person” language in Section 213.070.1(2), an employee-employer relationship is required for employer liability to attach. In other words, they argue that the language meant the employee’s employer, not some other third person who may have retaliated. 

The Court noted that this argument flies in the face of a Missouri Supreme Court opinion that held the plain language of Section 213.070.1(2) prohibited retaliation “in any manner against any other person” and that “Section 213.070 does not limit itself to the employer-employee relationship.  Using this opinion, as its North Star, the Court meticulously examined the history of the statute and case law, concluding that “…a direct employer-employee relationship between Swoboda and Armstrong is not required to support a claim of aiding and abetting the alleged retaliation.” 

Retaliatory Conduct: The Commission’s argued that the Circuit Court’s judgment was in error because Swoboda did not establish that Armstrong’s alleged threats to Swoboda, regarding his testimony, were linked to the retaliatory actions taken by the BPOC against Swoboda. 

Armstrong argued that the threats to Swoboda regarding his testimony against the BPOC were linked to the BPOC’s retaliatory actions toward him.  The Court rejected this argument outright, noting that that the Commission did not even investigate the merits of Swoboda’s charge against Armstrong in dismissing the claim; therefore, the Commission’s post hoc justification for its dismissal of the charge cannot provide a basis for reversal. 

The Court concluded by stating that once the 180-day time limitation has expired, the Commission must cease all activity on a complaint and issue a right-to-sue letter. Therefore, the portion of the judgment ordering the Commission to undertake an investigation can no longer be enforced.  The Court affirmed the trial court’s decision, except it orders the trial court to not undertake the investigation because once it issues the right to sue letter it loses all jurisdiction.  State of Missouri ex rel. Swoboda, (WD83556, Consolidated with WD83571, 01/12/21) 

Comment Howard: This case does a great job on analyzing when mandamus is appropriate making it a great reference tool.  The case also clarifies that the retaliation prohibition applies to “other persons,” are third parties and not the direct employer of the person alleging a violation.  

Comment Ragan: In my view there exists a growing schism in our legal system.  On the one hand you have the obligation to provide your client zealous representation but that representation is limited by our obligation to the court and the legal system.  I don’t know what happened in this matter but I think we have all dealt with attorneys that work on the edge and I do know after seeing significant events play out in our legal system on the national stage there are going to be significant develops on how attorneys handle matters.  As attorneys there are things that we need to do to protect ourselves from this type of situation.  When handling any employment case you need to advise and document that you have advised your client to take affirmative steps to prohibit retribution and harassment of a witness or the person making the claim.  

Did the 32nd Judicial Circuit Have Exclusive Control Of And Notice Of A Dangerous Condition Leading To The Dungeon?

Disclaimer – For 3 1/2 years I worked as the City Attorney for the City of Cape Girardeau, in the Court of Common Pleas building, the subject of a lawsuit involving a dangerous condition of the stairway, leading to the dungeon, where old records were stored.  Crowded City offices were located on the first floor of the building.  I remember this building as a beautiful historic structure with a cupola sitting high on the bluffs overlooking the Mississippi River and old downtown Cape that sits adjacent to the Mississippi River.

This area was a beautiful and magical place with paddle steam boats arriving several times a year in the downtown river area playing a steam driven calliope, that made a nearly tone-deaf whistling sound, driven by steam, that could be heard for miles. It was an iconic sound that I will remember forever.

Facts and Procedure: The City owned the Courthouse upon its construction in 1854. In 1959, the City deeded one-half of its ownership interest to the County when the City and County entered into a lease agreement when the City removed its offices and authorized the County to occupy the entire space.  The lease provided the City with the right to inspect the Courthouse and approve any alternations, but obligated the County to maintain the Courthouse and make necessary repairs, which the County had made in the past.

The County is required by law to provide “suitable quarters” for the State’s circuit court.  In 1991, the County provided the Courthouse for use by the State for all court operations, including storage of court files.  In 1991, the State became the sole occupant of the Courthouse.  Due to space shortages, the State began storing inactive files in the basement of the Courthouse at the direction of the circuit clerk.  The basement area had not been modernized since the Courthouse was originally constructed and it was dark and damp.  To access the basement, a person had to descend a set of concrete stairs, which were believed to be original to the Courthouse.

The stairs were not uniform in size, varying in slope, riser height and tread depth.  The treads were not level, sloped downward as much as nine percent, and were narrower than modern stairs.  The tread depth varied from 8 inches to 9 1⁄4 inches, meaning to descend the stairway required walking at an angle because adult feet would not fit on the treads.  The concrete nosing was chipped in some areas.  The riser heights varied from 7 3⁄4 inches to 8 1⁄2 inches.  The stairway had one handrail, was illuminated by a single bulb, and had lower than normal headroom with pipes and wires running overhead.  The door to the basement area had a lock installed by County employees at the direction of the circuit clerk. The stairway was locked most of the time.  The State’s clerks and County maintenance personnel were the only persons with keys to the entrance of the basement stairway.  To access records stored in the basement, a person had to obtain a key from one of the State’s court clerks.

The court staff did not have time to retrieve files for title companies, so a clerk would have to provide a key to a title company employee.  Pamela had worked in the land title business for many years.  Her employer, United Land Title, required access to court files and judgments stored in the basement of the Courthouse.

On August 26, 2013, Pamela received a request to retrieve “a couple of judgments.”  The records she needed were in the basement of the Courthouse.  She went to the Courthouse and requested a key to the basement from a State’s deputy clerk.  Pamela was told by the clerk to “grab the key.”  Pamela went to the entrance of the stairway to unlock the basement door.  There were no warning signs posted on or near the basement doorway.  After unlocking the door, Pamela began slowly descending the stairs at an angle because her feet did not fit on the stair treads.  During her descent, she gripped the handrail.  She looked up to make sure there was no movement above her on the pipes and wires, and looked down as she stepped.  At the second or third step from the landing, Pamela stepped with her left foot and felt it slip off the stair.  She fell forward and hit the landing of the stairs.  Pamela sustained several injuries, but the worst pain was in her left leg.  She could not stand up, so she crawled to the top of the stairway. Upon reaching the entrance, she called out for the on-duty officer, who responded.

Pamela was treated at the hospital emergency room and diagnosed with a broken left leg.  Her leg was placed in a cast, and she was instructed to keep her left leg elevated as much as possible during her recovery.  On September 7, 2013, Pamela began having significant pain in her chest and back, and experienced breathing difficulties.  She called 911 and was taken from her home to the hospital.  There, she was diagnosed with a deep vein thrombosis in her left leg and an acute saddle embolus.  She had suffered a pulmonary infarction, which caused part of her lung tissue to die.  She was placed on blood thinners, and a filter was implanted to prevent further clots from traveling up her left leg.  She was hospitalized for 12 days.

Shortly after Pamela’s injury, County Commissioner Paul Koeper contacted the State and expressed his concern that the State was allowing “any citizens going down into the basement with the narrow steps and low ceiling unsupervised.” Circuit Clerk Patti Wibbenmeyer acknowledged the concern by the County Commissioner recognizing that it was not a good idea to let the title companies to access the basement, noting however that this did not increase the risk of someone having to go down the stairs. Circuit Clerk Wibbenmeyer agreed that the court records should be removed from the Courthouse, and they were placed in the Archive Center in Jackson, Missouri.

Thereafter, the Allen’s sued the State, County, and City to recover damages for Pamela’s personal injuries and Kelly’s loss of consortium alleging that Pamela was injured by a dangerous condition of the State’s property.  A jury returned a verdict against the State in the amount of   $475,000, and entered judgment in favor of the City and the County.  The State appealed to the Southern District.

Analysis, Knowledge of the Dangerous Condition:The State argued that there was insufficient evidence to prove the State knew the stairs were a dangerous condition; therefore, the State argued that the trial court erred in denying the its motion for JNOV.  In particular, the State argued that it did not have actual or constructive notice of the dangerous condition because Pamela had used the stairs numerous times without incident and no one else had problems with the stairs.

Countering this argument was the fact that Circuit Clerk Wibbenmeyer acknowledged in an email that the state had actual knowledge of the hazardous condition:

“The stairs are just one of the hazards.  Climbing ladders down there is another. We have had some small mishaps but nothing to go to the Dr about.  We’ve been lucky until now.  My biggest fear is having someone lay downstairs a long time before someone notices they are missing.”

The Southern District also reasoned that defendant’s argument ignored the standard for review, which is to view all of the evidence in light most favorable to the verdict    and disregard all conflicting evidence and inferences.  The Court noted that the evidence favorable to the plaintiff showed that:

“The basement stairs were not uniform in size. They varied in slope, riser height and tread depth.  The treads were not level, sloped downward as much as nine percent, and were narrower than modern stairs.  Because the tread depth varied from 8 inches to 9 1⁄4 inches, a person descending the stairway was required to walk at an angle because adult feet would not fit on the treads.  The concrete nosing was chipped in some areas. The riser heights varied from 7 3⁄4 inches to 8 1⁄2 inches.  The stairway had one handrail, was illuminated by a single bulb, and had lower than normal headroom with pipes and wires running overhead.”

The Court concluded that based upon the standard of review and its application to the evidence the trial court did not err in overruling the States motion for JNOV.

Alleged Misstatement of Law Concerning Exclusive Control  Instruction in the Verdict Director: At trial, the State’s attorney objected to this instruction No. 8 because the Instruction did not say that the State “exclusively” controlled the stairway. The State argued that the instruction did not comply with the required MAI Instructions.  Allen’s attorney rebutted this argument by noting that the language was taken verbatim from MAI 31.16, except it was  modified as required by the Note on its use.

The Southern District reasoned that if a MAI Instruction is applicable, the trial court is required to use the Instruction but the mandatory use of the Instruction also included the Notes on Use for the instruction.  In this case, there was a factual dispute over control of the stairs; therefore, the Note to the instruction permitted the modification. Furthermore, the evidence showed that the State exerted possession and control of the Courthouse – rising to the level of an ownership interest.  Control was shown by the State sole occupancy and possession of the Courthouse for all court operations, including storage of court files, since 1991.  The Court noted that the evidence showed the inactive court files were stored in the basement at the direction of the circuit clerk; that the circuit clerk had a lock installed on the door to the basement; and before accessing the records a person had to obtain a key from one of the State’s court clerks. Rather than requiring court staff to retrieve records from the basement, the title company was allowed access to the basement as a time-saving measure.

Therefore, the Southern District concluded that the State’s argument failed because control of the stairway was disputed, allowing the “owned or controlled” language in the MAI Instruction to be modifies in accordance with the Note on its use.  Allen v. State of Missouri, (SD36319 &36328, 12/29/20)

Comment Howard: This case provides a good summary of the law concerning “exclusive control” of the property and the rules concerning modification of MAI instruction and the use of notes appended to the instruction.

MCHR Duty To Investigate Complaint And What Constitutes An Investigation

Introduction: State of Missouri ex rel. Dalton v.  Missouri Commission on Human Rights, explores and explains the law concerning the right to sue letter, the duty of the Commission to investigate; what constitutes an investigation; was due process afforded in the investigation and the relationship between the Commission and the EEOC during the investigation. This case is unique because it provides an in-depth analysis of the duty to investigate making it well worth the read.

 Facts and Procedure: On November 8, 2016, Dalton began working for Legacy Pharmaceuticals Packaging, LLC, as Director of Human Resources, an executive-level position.  Before Legacy hired Dalton, she was required to complete personality and behavioral assessments.  As Director of Human Resources, Dalton was involved in searches to fill three other executive-level positions at Legacy.  The applicants for those positions, who were all male and were not required to complete any pre-employment assessments.  Dalton complained to Steve Meeker, the president of Legacy.  Meeker responded that he could test whomever he wanted.

 Meeker fired Dalton, less than two weeks after she complained about the pre-employment assessments.  According to Dalton, Meeker said she had made a bad decision, which she believed referred to her complaint about being the only executive-level applicant required to complete the assessments.  Meeker also said that Dalton had breached confidentiality.

 On September 19, 2017, Dalton filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on the basis of retaliation.  Pursuant to a work-sharing agreement with the EEOC, Dalton’s complaint was deemed simultaneously filed with the MCHR.  An EEOC investigator interviewed Dalton and, on September 28, 2017, the EEOC issued its dismissal and notice of rights, which stated:

“Based upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes.  This does not certify that the respondent is in compliance with the statutes.  No finding is made as to any other issues that might be construed as having been raised by this charge.”

The dismissal and notice of rights also said, “You may file a lawsuit against the respondent(s) under federal law based on this charge in federal . . . court.”

The EEOC transmitted Dalton’s retaliation complaint to the MCHR with a copy of the EEOC’s confidential internal memorandum summarizing Dalton’s interview and analyzing her charge.  In the memorandum, the EEOC’s investigator recommended closing the charge based on “Not Reasonable Cause.”  In support of this finding, the investigator stated that, after Dalton asserted that she was discharged for complaining about being required to take an assessment test, she revealed that the reason for her discharge was because another female Supervisor who is older than Dalton (along with other witnesses who according to [Dalton] sided with this Supervisor) informed the President [of Legacy] that [Dalton] had revealed need[-]to[-]know confidential information to employees that was not privileged.

“ [Dalton] stated that [Legacy] told her that she was discharged for poor decision making.  According to [Dalton, Legacy] had witnesses for her non-discriminatory discharge.”

[Legacy] replaced [Dalton] with another female employee.  [Dalton] had no witnesses or documentation to support her allegation.

Based on these findings, the EEOC investigator concluded that “it is unlikely that further investigation would result in a cause finding[.]”

Based on its review of the EEOC’s materials, including the internal memorandum, the MCHR adopted the EEOC’s findings and terminated the MCHR’s proceedings in the case, thereby extinguishing Dalton’s ability to pursue her retaliation claim under the Missouri Human Rights Act (the Act). Dalton and the MCHR agreed that the MCHR’s decision was, in effect, a finding of no probable cause

 Dalton then filed a petition for a writ of mandamus or judicial review of the MCHR’s decision. In her petition, Dalton alleged that the Act requires the MCHR to investigate her retaliation claim and she was prejudiced by the MCHR’s failure to do so. Dalton asked the circuit court to issue a preliminary and permanent writ of mandamus to compel the MCHR to rescind the closure of her file and to investigate her claim.  After issuing a preliminary writ, the court held a hearing on Dalton’s petition.  Dalton introduced evidence of a second charge of discrimination, which she filed with the EEOC and the MCHR on November 30, 2017, that was based on sex discrimination rather than retaliation.  After Dalton’s second charge of discrimination had been pending with the MCHR for more than 180 days, she requested a right-to-sue letter, which was  issued.

Following the hearing, the circuit court found:

The EEOC interviewed [Dalton], asking h[er] what evidence she had to support her claims.  Based upon the record before the EEOC, [Dalton] apparently had no evidence to dispute the veracity of the reasons provided by the employer [that Dalton’s employment was terminated because she disclosed confidential information in violation of employer’s policies].  If [Dalton] could provide no evidence to support her claims, it is fair to say that she lacks probable cause.  This justifies terminating the proceedings.[]

The court determined that the efforts of the EEOC constituted an investigation of Dalton’s retaliation claim, that EEOC’s investigation was performed pursuant to a work-sharing agreement with the MCHR, and that, although the MCHR did not conduct a separate investigation, it could rely on the EEOC’s investigation.  The court concluded that, via the work-sharing agreement, the MCHR had fulfilled its statutory obligation to investigate Dalton’s retaliation claim; thus, she was not entitled to a writ of mandamus.  Dalton appealed to the Western District.

Analysis – Did the MCHR act unlawfully in failing to perform its statutory duty to investigate Dalton’s retaliation claim: Dalton alleged that the circuit court acted unlawfully by not finding the MCHR failed to perform its statutory duty to investigate her retaliation claim by relying entirely on the EEOC investigation.  The Western District started its analysis by noting that the Act provides that the MCHR is authorized “[t]o receive, investigate, initiate, and pass upon complaints alleging discrimination in employment” and “[t]o cooperate, act jointly, [and] enter into cooperative or work-sharing agreements with the [EEOC] . . . to achieve the purposes of th[e Act].”  Its Regulations further provide that it shall “promptly investigate the complaint” to determine whether “probable cause exists for crediting the allegations of the complaint.” “The investigation . . . shall be conducted according to such rules, regulations and guidelines as the commission shall prescribe.”  Rules of statutory construction require that when the statute is unambiguous the court shall “… give effect to the intent reflected in the [Act’s] plain language and cannot resort to other means of interpretation.” In this case there is no ambiguity. Furthermore, the regulations state, “[i]nvestigations shall be accomplished by methods including, but not limited to, . . . personal interviews . . . and reviews of investigations of other civil rights agencies.

Neither the Act nor its implementing regulations define the term “investigate” or “investigation,” and nothing in the Act or regulations mandates that a particular investigative method be employed.  Instead, the decision of how to investigate a complaint is left largely to the MCHR’s discretion.  In addition, the EEOC investigator found that the case should be closed because “it is unlikely that further investigation would result in a [probable] cause finding[.]”  After reviewing the investigation conducted by the EEOC, the MCHR adopted the findings of the EEOC investigation and terminated its proceedings on Dalton’s retaliation claim.  The term investigation is undefined but “shall be accomplished by methods including, but not limited to, . . . personal interviews . . . and reviews of investigations of other civil rights agencies:” therefore, the trial court did not err in finding that the MCHR did not violate its duty in relying on the EEOC’s determination and failing to investigate further.  

In addition, the Court addressed two other claims of trial court error.

Giving Dalton a right to sue letter for the sex discrimination did not equate to a finding for Dalton’s retaliation claim: First, Dalton asserted that the circuit court erred in dismissing her writ petition because the MCHR acted arbitrarily and capriciously in dismissing Dalton’s retaliation claim as evidenced by issuing a right-to-sue letter on her subsequent sex discrimination claim where both claims were based on the same underlying facts.  The Court made swift work of this claim by noting that the MCHR had no choice other than to issue the right to sue letter for the sex discrimination claim because it had not completed its investigation of the sex discrimination claim within required 180 days from the date it was filed.  The Act authorizes the MCHR to issue a right-to-sue letter after one hundred eighty days from the filing of a complaint and the commission has not completed its administrative processing provided a right to sue letter has been requested.  No meaning with respect to the validity of this claim or any other claim can be attached to the issuance of the right to sue letter.

Due Process Rights: Dalton also alleged her due process rights were violated by not investigating her retaliation claim.  Again, short work was made of this claim by the Court noting that Dalton’s appeal of the MCHR decision was an appeal of a non-contested administrative decision, which law afforded her review of the MCHR decision in a separate hearing in circuit court, where she was afforded due process.  State of Missouri ex rel. Dalton v.  Missouri Commission on Human Rights, (WD83336, 12/29/20)

Comment Howard:  Seems like this case got off to a bad start by Dalton filing only a retaliation claim.  Later, after the retaliation claim was dismissed, she filed a sex discrimination claim based on her employer, requiring only women to complete a personality and behavioral assessment, while not testing male applicants for these traits.  When Dalton asked her employer why the Company only tested women the employer was defiant as shown by Meeker’s, the CEO response:  “We will test whoever we want.”  When Legacy investigated her sex, discrimination claim they learned that Dalton had released confidential and privileged information using that as the basis to fire her two weeks after she complained about the different treatment between males and females.  While Dalton should not have released the confidential information, it seems like the Employer stumbled onto this when they were investigating the complaint.  Sounds pretextual to me with respect to the sex discrimination claim but was it actionable?

Did The Ordinance Unlawfully Combine Executive And Judicial Function And Was A Preexisting Condition Grandfathered

Introduction: Stanton v. City of Skidmore, a public nuisance case is the backdrop for the discussion of three important municipal law principles.  The first issue tackled by the Western District is whether or not the nuisance ordinance of the City of Skidmore violated due process by combining the duty to investigate and decide if there was a violation of the Ordinance.  Second, there was the question of whether or not the preexisting condition of the property was grandfathered under the zoning laws.  There was also the question of whether or not the failure to introduce a certified copy of the public nuisance was a flaw requiring remand.

Facts and Procedure: Stanton owns property in Skidmore, on which he operates a salvage and wholesale business dealing in scrap metal and reclaimed lumber.  Part of Stanton’s property adjoins a public alleyway.

In 2015 the Skidmore City Council enacted a nuisance ordinance.  On December 28, 2018, the City’s attorney notified Stanton that he was violating the nuisance ordinance by parking prohibited vehicles on his property; by storing pallets and other refuse on his property; and by allowing weeds and other “rank growth of vegetation” on the property.  The letter advised Stanton that he was required to abate the nuisance on his property within seven days, or the City would take further action against him.

At Stanton’s request, the City Council held a hearing on the citation on January 28, 2019.  Although, the City presented evidence at the hearing, Stanton did not testify or present any evidence of his own.  Following the hearing, the City Council issued its Findings of Fact and Order finding that Stanton was in violation of the nuisance ordinance.  The City Council’s Order found that “there is an accumulation of debris, refuse, rubbish, trash or nuisances, on the city’s right of way” adjoining Stanton’s property.  The Order also found that Stanton was violating the nuisance ordinance by storing unstacked lumber, from which nails had not been removed, outside of the property’s “rear yard.”  The Order found that Stanton was also violating the nuisance ordinance by storing abandoned, unlicensed and “junk” vehicles on his property which were visible from adjacent properties, and that Stanton was not exempt from the prohibition on vehicle storage because he was not operating a licensed salvage, auto repair, or auto towing or storage facility.  The Order specified that, if Stanton did not abate the nuisance by February 25, 2019, he would be fined $100.00 per day for any continuance of the nuisance; the Order also advised Stanton that the City might seek equitable relief in the circuit court if the nuisance were not timely abated.

On March 11, 2019, Stanton filed a petition for declaratory judgment and judicial review in the Circuit Court of Nodaway County.  Stanton alleged the ordinance denied Stanton due process because the City Council investigated and issued the citation and then heard and decided his appeal.  He also alleged that the nuisance ordinance had the effect of prohibiting Stanton’s pre-existing “business of salvage and pallet rehabilitation,” and therefore constituted a taking of his property without just compensation.

Due Process – City Council Combination of Executive and Quasi-Judicial Function: The Western District started its due process analysis by noting that Missouri Administrative law has long upheld the combination of executive and quasi-judicial function in the same body.  In the context of administrative proceedings, “[d]ue process is satisfied if there be either an administrative hearing subject to judicial review or the right to have a hearing in a court which may adequately review the administrative decision.”  For example, the courts have long upheld laws that enable like the Board of Registration for Healing Arts to serve “… as investigator, prosecutor, judge, and jury” so long as there is a right to have the actions reviewed judicially.  Furthermore, the Missouri Supreme Court has held that the governing bodies of municipalities and counties may also properly perform multiple roles, explaining that the separation of powers principles applicable to State government did not apply in full force to municipal governments.

 “that city councils and county commissions may act in a legislative capacity in enacting land-use ordinances or regulations, and later act in an administrative and/or quasi-judicial capacity in addressing the rights of particular persons under those ordinances or regulations.”

Since Skidmore’s nuisance ordinance expressly provided for judicial review of municipal decisions under the Missouri Administrative Procedure Act due process rights were not violated.  

Nuisance Versus Zoning And Nonconforming Use: Stanton argued that the City Ordinance was a zoning ordinance and that if he stored material before the City adopted the Ordinance the Ordinance could not be applied to a non-conforming use.  Relying on precedent from the Eastern District involving a similar claim with respect to a sign ordinance or a concentrated animal feeding operation the Court noted that the underlying motivation for the Ordinance was public health.  The Skidmore Ordinance had a very well written statement of purpose:

“Unkempt, unsafe, unsanitary and otherwise improperly maintained properties, structures, sidewalks and easements within the City materially and adversely affect the use and habitability of nearby property and of property within the City as a whole.  Additionally, such conditions pose hazards to the public health, safety and welfare.  Properties that are unkempt, unsafe, unsanitary and/or dangerous may materially and adversely affect the economic well-being of the City.  This Chapter . . . establishes necessary and proper procedures to prosecute owners and occupants for nuisances, to provide for the abatement of such nuisances and other improperly maintained structures and properties . . . . This Chapter is an exercise of the City’s police power and shall be liberally construed.”

Clearly the Ordinance was a public health measure and not subject to the non-conforming use provisions of the Zoning Ordinance.

Failure To Introduce Authenticated Copy Of The Ordinance Was Error: Stanton argued that the City failed to attach to its Motion for Summary Judgment or otherwise introduce into evidence an authenticated copy of the City Ordinance; therefore, the City was not entitled to judgment on its second counterclaim (blocking of the alley) because it was not supported by competent and substantial evidence.  The Court noted that Missouri caselaw clearly holds that, unlike state statutes, “[c]ourts may not take judicial notice of municipal ordinances; instead such ordinances must be admitted in evidence or stipulated by the parties.”

Based on this the Court remanded the judgment on the City’s 2nd counterclaim (blocking the road) for further proceedings.  Stanton v. City of Skidmore,  (WD83441, 01/12/21))

Comment Howard: This is a very well written opinion and constitutes a good resource for a number of fundamental municipal law issue.  The Court’s analysis pretty much provides the basis for writing a brief on these points.  In addition, the statement of intent that the Ordinance was a public health matter is really a model.

Eating A Breakfast Sandwich While Driving A Car To The First Job Of The Day Did Not Arise “Out Of And In The Course Of Employment”

Eating a breakfast sandwich while driving a car to the first job of the day did not arise “out of and in the course of his employment” and was not a worker’s compensation injury.   The “risk source” of employee’s injuries, to eat breakfast while driving, was his decision and a “risk unrelated to the employment” to which Boothe would have been equally exposed outside of his employment and was unrelated to the employment in normal non-employment life.  The Employer had rules prohibiting driving while eating. There was a dissent in this case and a concurring opinion, suggesting caution when citing this case.  Boothe v.  Dish Network. Inc, (SD36408, 12/29/20)

Local Government Not Subject To The Automatic Stay Provisions Of The Bankruptcy Code

Local government is not subject to the automatic stay provisions in the Bankruptcy Code, allowing the retention of motor vehicles that have been impounded under state or local law.  In this case, the City of Chicago (City) impounded each respondent’s vehicle for failure to pay fines for motor vehicle infractions.  Each respondent filed a Chapter 13 bankruptcy petition and requested that the City return his or her vehicle. The City refused, and in each case a bankruptcy court held that the City’s refusal violated the automatic stay, which was affirmed by the 7th Circuit.  The United States Supreme Court in Chicago v. Fulton, held that mere retention of estate property after the filing of a bankruptcy petition does not violate §362(a)(3) of the Bankruptcy Code. The opinion applies only to passive retention of estate assets.  Congratulations to IMLA for filing an amicus brief in support of the City of Chicago and its victory in this case.  For an analysis of further implications of this important opinion see  the blog of Jeffrey C. Toole Partner, Bernstein-Burkley, P.Co. Chicago v. Fulton: Everything You Need to Know about the January 2021 SCOTUS Decision

January/February Edition of the Municipal Attorney

The January/February 2021 edition of the Municipal Attorney has been mailed electronically to members of IMLA.  While all of the articles are well worth reading,  I thought two articles stood out as particularly useful.  First, there was an excellent article on the “Special Census” by SHAUNA BILLINGSLEY, City Attorney, Franklin, Tennessee and BRAD CUNNINGHAM, Municipal Attorney, Lexington, South Carolina.  The Special Census can be conducted upon the request of a local government in the interim between two official U.S. Censuses.  The census tallies a local government’s population, number of housing units, and “Group Quarters” (a single location populated by multiple unrelated people, such as a nursing home or college).  The local government unit requesting the special census is responsible for the cost.  Typically, this is used between the census but could also come into play if the federal officials badly miss the population count or some other important factor like public housing, or homelessness, which will help determine important reimbursements for the next ten years.  Considering the fact that there are questions being raised about whether the census taker might be driven by political factors some communities might keep this in mind.

I also thought the article on Music, Money, and Municipalities by Erich Eiselet, IMLA Assistant General Counsel was very useful in that it provided a very good overview of the law in this area, which I have not seeing before.

More Brain Food

We are a community of minds that work together and one person who keeps us feed on information is Lisa Soronen.  Here are two links from her with important information about decisions and upcoming issues.