Opinion
WD83556 C/w WD83571
01-12-2021
STATE OF MISSOURI EX REL. JIM SWOBODA, Respondent, v. MISSOURI COMMISSION ON HUMAN RIGHTS, Appellant, ALISA WARREN, Appellant, and ARMSTRONG TEASDALE, LLP, Appellant.
Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Bryan Round, Judge Before Division Three: Edward R. Ardini, Jr., Presiding Judge, Alok Ahuja, Judge and
The Missouri Commission on Human Rights; Alisa Warren, Executive Director of the Commission, in her official capacity ("Warren" when referred to individually, we will refer to Warren and the Commission collectively as "the Commission"); and the Armstrong Teasdale L.L.P. law firm ("Armstrong") appeal the judgment of the Circuit Court of Jackson County, Missouri ("Circuit Court") granting a writ of mandamus in favor of Jim Swoboda ("Swoboda") directing the Commission to rescind its decision to dismiss Swoboda's charge against Armstrong under the Missouri Human Rights Act ("MHRA"), to accept Swoboda's charge, and to conduct an investigation thereof. On appeal, the Commission claims that the Circuit Court erred in: 1) denying its motion to dismiss Swoboda's writ petition because Swoboda did not allege facts establishing that Armstrong aided and abetted acts of retaliation against Swoboda; 2) denying its motion to dismiss the writ petition because Swoboda did not allege a clear, unconditional right to relief but sought to overturn a discretionary decision; 3) entering judgment in favor of Swoboda because the matter was not ready for judgment in that it had not filed its answer to the writ petition, and the circuit court did not hear evidence; and 4) granting Swoboda's requested relief because Swoboda did not have an employer-employee relationship with Armstrong. Armstrong filed a separate brief, claiming that the Circuit Court erred in entering a writ of mandamus because: 1) the Commission's acts were discretionary, not ministerial, and therefore were not appropriate for a writ; 2) Swoboda was seeking to establish a new right under the MHRA, not to enforce an existing right; and 3) Swoboda and Armstrong never had an employer-employee relationship. We affirm the judgment of the Circuit Court directing the Commission to vacate its dismissal of Swoboda's administrative claim against Armstrong; however, because more than one hundred eighty days have passed since Swoboda's complaint was filed before the Commission, we reverse the portion of the trial court's judgment requiring the Commission to investigate Swoboda's claim and we direct the Commission to issue Swoboda a letter granting him the right to sue Armstrong pursuant to the MHRA.
Swoboda brought charges of discrimination and retaliation, RSMo. Sections 213.055, and 213.070. All statutory references, unless otherwise stated, are to RSMo 2016, as updated by supplement.
Factual and Procedural Background
The facts, as relevant to the issues presented in this appeal, are taken from the claim filed before the Commission and the petition filed in the circuit court. In his claim of retaliation under the MHRA filed with the Commission, which was attached to and incorporated into his petition filed in the Circuit Court, Swoboda alleged that he is an employee of the Board of Police Commissioners of Kansas City ("BOPC") with the rank of Captain. When Swoboda held his prior rank of Sergeant, he supported a fellow police officer in a claim of discrimination against the BOPC and opposed the alleged discrimination against the officer. After the officer filed a formal claim of discrimination, in November or December of 2016, Swoboda participated in a deposition regarding that claim. In Swoboda's MHRA complaint, he alleged that, at this deposition, an attorney from Armstrong, who represented the BOPC, advised him that he needed to think of his career when he testified. In August of 2018, the officer's claim was tried to a jury, and again Swoboda testified on behalf of the officer. Swoboda alleges that, before his testimony, he was advised by an Armstrong attorney that he needed to think about how his testimony might hurt the BOPC. The trial of that action resulted in a mistrial, and the cause remained pending until it was settled at a later date.
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, although at the time his complaint was filed he still did not have access to a department vehicle.
Swoboda filed his own charge of discrimination and retaliation with the MHRA against both the BOPC and Armstrong on January 23, 2019. His claim against Armstrong is 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 has sued the BOPC in the Circuit Court.
On March 7, 2019, the Commission, through Warren, 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.On April 8, 2019, 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. On April 29, 2019, the Circuit Court issued a preliminary order in mandamus, directing the Commission to respond to Swoboda's petition. On June 27, 2019, Armstrong filed a motion to intervene, which was granted without objection. Both the Commission and Armstrong filed motions to dismiss the writ petition for failure to state a claim.
On October 7, 2019, the Circuit Court issued an order finding that the Commission erred in dismissing Swoboda's charge against Armstrong without providing to him a Right to Sue letter, issued a "Permanent Writ of Mandamus," and ordered the Commission "to rescind [their] decision to dismiss [Swoboda's] Charge, to accept [Swoboda's] Charge, and to conduct an investigation thereof."
The Commission and Armstrong attempted to appeal the Circuit Court's order, but this court dismissed the appeal for lack of a final, appealable judgment. The Commission moved the Circuit Court to amend its order to denominate it a final judgment for purposes of appeal. On January 29, 2020, the Circuit Court issued its Order, Judgment, and Permanent Writ of Mandamus. This appeal follows.
Standard of Review
The parties disagree as to the proper standard of review in this case, and dispute our deference to the Commission on appeal. While a Circuit Court's grant or denial of a writ of mandamus is often reviewed for an abuse of discretion, State ex rel. Killingsworth v. George, 168 S.W.3d 621, 623 (Mo. App. E.D. 2005), "[a]n abuse of discretion 'occurs when the circuit court misapplies the applicable statutes.'" State ex rel. Naugles v. Mo. Comm'n on Hum. Rts., 561 S.W.3d 48, 51 (Mo. App. W.D. 2018) (quoting Curtis v. Mo. Democratic Party, 548 S.W.3d 909, 914 (Mo. banc 2018)). "[W]here the foundation of the writ is based upon an interpretation of the statute, our review of the statute's meaning is de novo." Id. (internal quotation omitted).
Discussion
We will address some of the parties' points on appeal together and out of order for ease of analysis.
Sufficiency of Pleadings
The Commission's third point on appeal will be addressed first. The Commission claims that the matter was not ripe for judgment when the Circuit Court issued its order, because none of the Respondents below had filed answers, and the Circuit Court did not take any evidence or hold a hearing before issuing its order. We disagree that the pleadings and process below were insufficient.
Rule 94.07 provides, "The answer shall be directed to the petition in mandamus. The answer may include or be accompanied by one or more motions." The Circuit Court directed the Commission to file responsive pleadings (or answers under the Rule). Both the Commission and Armstrong, after it intervened, filed motions to dismiss Swoboda's writ petition. The motions included well-drafted suggestions in support thereof including their arguments as to the ultimate legal issue before the Circuit Court—whether the Commission's legal conclusion that Swoboda had no claim against Armstrong because Swoboda and Armstrong did not have an employee-employer relationship was proper. After Swoboda filed his suggestions in opposition to the motions to dismiss, the Commission and Armstrong filed reply briefs. These pleadings constituted answers to the petition for writ of mandamus that included the motions to dismiss.
All rule references are to Missouri Supreme Court Rules (2020), as updated by the August 2020 supplement.
On appeal, the Commission argues that the motions to dismiss should have extended the appellants' time to file their answers pursuant to Rule 55.25(c). We disagree and conclude that Rule 94.07 controls. That rule expressly applies to proceedings in mandamus and makes no provision for delayed responsive pleadings following a motion to dismiss, but rather allows motions to be included within or to accompany the answer. The pleadings filed in this matter sufficiently set forth both sides' legal arguments as to the issues presented and were adequate to assist the Circuit Court in arriving at its decision as to the propriety of the writ sought. Further, the Commission fails to set forth what it would have included in an answer that was not completely addressed by the filings it made before the Circuit Court. The Commission's third point on appeal is denied.
Discretion of the Commission and its Director
The Commission's second point on appeal and Armstrong's first point on appeal both claim that the Circuit Court erred in granting judgment in favor of Swoboda due to the Commission's inherent discretion to determine its own jurisdiction, and argue such determination is not the type of ministerial duty appropriate for a writ of mandamus. The appellants contend that the Commission's interpretation of the MHRA is to be given "great weight." But the Commission's decision to dismiss Swoboda's claim against Armstrong in the proceedings before it did not require a determination of factual issues as to whether any prohibited acts occurred or whether Swoboda was Armstrong's employee. In fact, Swoboda's claim before the Commission did not allege that he was at the time, or at any time in the past, an employee of Armstrong. The Commission did not hold evidentiary hearings or consider any evidence on this issue. Rather, the Commission's decision depended completely upon the Commission's determination of a purely legal question: whether the MHRA requires an employee-employer relationship before liability can be found under the retaliation provision of section 213.070, specifically, it's "aiding and abetting" provision. Court review of interpretation of statutes is de novo, and misapplication of the statutes is itself an abuse of discretion. Naugles, 561 S.W.3d at 51.
Section 213.085.2 of the MHRA provides that "[a]ny person who is aggrieved by a final decision, finding, rule or order of the [C]ommission may obtain judicial review by filing a petition in the circuit court of the county of proper venue . . . ." The Commission's regulation 8 C.S.R. 60-2.025(7)(E) states, "Any person aggrieved by dismissal of a complaint may obtain judicial review by filing a petition in the circuit court of the county of proper venue . . . ." The county of proper venue is either Cole County, where the Commission resides, or the county of residence of the appealing party. Section 213.085(3).
Because the Commission did not hold an evidentiary hearing or take evidence, this was a non-contested case. Lampley v. Mo. Comm'n on Hum. Rts., 570 S.W.3d 16, 20 (Mo. banc 2019) (citing City of Valley Park v. Armstrong, 273 S.W.3d 504, 506-07 (Mo. banc 2009)). Section 536.150 sets forth court review of non-contested cases.
When any administrative officer or body existing under the constitution or by statute . . . shall have rendered a decision which is not subject to administrative review, determining the legal rights, duties[,] or privileges of any person . . . and there is no other provision for judicial inquiry into or review of such decision, such decision may be reviewed by suit for injunction, certiorari, mandamus, prohibition[,] or other appropriate action . . . and the court may determine whether such decision, in view of the facts as they appear to the court, is unconstitutional, unlawful, unreasonable, arbitrary, or capricious or involves an abuse of discretion . . . .(emphasis added). All of the causes of action listed in the statute, without limitation, are available avenues for review of a non-contested case, where an evidentiary hearing was not held because none was needed as purely legal questions were at issue, such as in this case. Lampley, 570 S.W.3d at 20. Mandamus was appropriate, and so the Commission's and Armstrong's points on appeal arguing reversal on this basis are denied.
New v. Established Right under the MHRA
The Commission's second point on appeal also claims, as does Armstrong's second point on appeal, 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 under the MHRA, and Swoboda did not allege a clear unconditional right to relief. "The purpose of a writ of mandamus is to order performance of a duty already defined by law." Banks v. Slay, 410 S.W.3d 767, 769 (Mo. App. E.D. 2013). "The issuance of a writ is justified only when some legal authority requires an official to perform a particular act." Id.
Section 213.070, even before it's 2017 amendments, declared 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[.]" Section 213.070(1) (2016). One such prohibited act is "[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[.]" Section 213.070(2) (2016). Although the aiding and abetting provision has been seldom cited by the appellate courts, and we find no decisions using that 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 2017 amendments to the MHRA, which specify for whom these acts are unlawful, include "an employer," which is generally defined as "a person engaged in an industry affecting commerce who has six or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year . . . ." Section 213.010(8). Although the 2017 amendment to the definition of "employer" found in 213.010(8) removed the qualifier "and any person directly acting in the interest of an employer," the aiding and abetting provision, now found in section 213.070.1(1) remained unchanged. Thus, it has always been unlawful, and remains unlawful to aid or abet the commission of acts prohibited by this chapter. The 2017 change to section 213.070.1, merely requires a person aiding or abetting retaliation to be "an employer, employment agency, labor organization, or place of public accommodation." Section 213.070.1 (as amended). It is undisputed that Armstrong is "an employer," but Armstrong argues that "an employer" means "an employer of the complaining employee." This legal issue is addressed more fully in our discussion of appellants' final point on appeal.
But, to reiterate, before and after the 2017 amendments it was unlawful for an employer to aid or abet any act prohibited by chapter 213 under 213.070.1(1) and further it was a violation of the provisions of chapter 213 to retaliate against a person because the person engaged in protected activity under chapter 213. Section 213.070.1(2). And when such unlawful actions are alleged, the MHRA has always imposed a duty on the Commission to "promptly investigate the complaint," and to issue a Right to Sue letter if requested when the Commission has not completed its administrative process within 180 days. Sections 213.075.3, 213.111.1. These are duties "already defined by law," and as such, mandamus is appropriate. Banks, 410 S.W.3d at 769. Armstrong's second point on appeal is denied.
Employment Relationship between Swoboda and Armstrong
In the final point, which all appellants join in arguing for reversal, is the Commission's point four and Armstrong's point three on appeal. They argue that Armstrong cannot be found liable to Swoboda under any provision of the MHRA because it was never his employer. As previously mentioned, 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. Appellants argue 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 "an employer" means "the employee's employer."
The primary rule in statutory construction is "to give effect to legislative intent as reflected in the plain language of the statute at issue." Parktown Imps., Inc. v. Audi of Am., Inc., 278 S.W.3d 670, 672 (Mo. banc 2009). The plain language of section 213.070.1(2) prohibits retaliation "in any manner against any other person." And although section 213.070.1 was amended to limit its application (as to the wrongdoer) to "an employer, employment agency, labor organization, or place of public accommodation," subsection (2) did not similarly amend the term for the recipient of the discrimination so that it applied only to an employer's employee, employment applicant, worker, or person in a place of public accommodation. Rather, the "any other person" language was unchanged by the statutory amendments.
This language, along with the broad remedial intention of the MHRA, led the Missouri Supreme Court to unequivocally conclude that "section 213.070 does not limit itself to the employer-employee relationship. Keeney v. Hereford Concrete Prods., Inc., 911 S.W.2d 622, 625 (Mo. banc 1995). Keeney specifically contrasted the "exceedingly broad" language in Section 213.070(2), which prohibits retaliation "against any other person," with the "considerably more limited" language of Title VII of the federal Civil Rights Act of 1964, which prohibits an employer from retaliating "against any of his employees." Id. (quoting 42 U.S.C. § 2000e-3(a) (1988)). Despite this authority, appellants maintain that the 2017 amendments to the MHRA mandate the opposite conclusion.
They rely chiefly on the "an employer" addition to section 213.070. We find no cases, post-2017 where this provision was at issue. Moreover, one of the cases appellants cite as supporting their conclusion that an employer-employee relationship is required, in dicta, effectively changes the statutory language, requiring that "the employer took adverse action against [an employee.]" McCrainey v. Kan. City Mo. Sch. Dist., 337 S.W.3d 746, 753 (Mo. App. W.D. 2011) (emphasis added). The issue before the court in McCrainey was whether derogatory comments of a school superintendent directed at female school board members (who were not "employees" of the district), could support a claim of retaliation by an employee who reported the derogatory statements to the school's HR department and was thereafter retaliated against. The Court in McCrainey did not interpret the "any other person" language of what is now section 213.070.1(2); it was instead required to determine the entirely separate question whether the employee who was the victim of retaliation had opposed "any practice prohibited by the [MHRA]." The court in McCrainey was not addressing the aiding and abetting provisions of the statute. If section 213.070 actually included the language, "the employer," we would find this case and appellant's argument more persuasive.
Section 213.070.1(1) retained the "aiding and abetting" provision after the 2017 amendments, and appellants fail to explain how an employer could possibly aid or abet in its own retaliatory conduct against its own employee. Moreover, although the Missouri Supreme Court in Keeney had emphasized that section 213.070(2)'s use of the phrase "against any other person" was substantively different from the corresponding federal statute's use of "against any of his employees," the General Assembly in 2017 did not modify the critical language on which the Keeney decision depended. This is further support for maintaining the plain language interpretation our Supreme Court used to arrive at its conclusion in Keeney. Also, it does not conflict with the legislature's removal of language in the definition of employer in section 213.010(8). The amended definition removed "and any person directly acting in the interest of an employer." Before the amendment to this definition, individual employees or supervisors who violated the statute could be found individually liable for their employer's unfair discriminatory employment practices. The legislature eliminated this individual liability for employees who may not have been properly trained or have had knowledge of the MHRA's provisions. But every "employer" covered by the MHRA, even if it is not the complaining employee's employer, would be a person or entity already subject to the MHRA, and thus more likely to already be familiar with the law's requirements, making it reasonable to expect them to know better than to participate in retaliatory conduct against someone protected by the MHRA. Indeed, in this case, Armstrong was the entity representing the BOPC in its employment discrimination actions. The complaint against Armstrong alleges that members of the firm went beyond mere legal representation and affirmatively took steps to threaten a witness who was to testify in the action. A law firm representing a party in a claim under the act 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.
Armstrong and the Commission contend that a series of prior decisions foreclose holding Armstrong liable for its actions toward Swoboda, since he was not Armstrong's employee. We find each of these cases distinguishable. Howard v. City of Kansas City, 332 S.W.3d 772 (Mo. banc 2011), and Alton v. Missouri Department of Public Safety, 456 S.W.3d 134 (Mo. App. W.D. 2015), construe section 213.055, which defines "unlawful employment practice[s]"; neither case interprets the scope of the statute at issue here—section 213.070. Livingston v. Rehabcare Group East, Inc., 2016 WL 3276945 (E.D. Mo. June 15, 2016), is an unpublished federal district court case which is not binding on this Court. We also note that Livingston never discusses the Missouri Supreme Court's decision in Keeney, or the "aiding and abetting" provision found in section 213.070.1(1); Livingston, accordingly, has limited relevance here.
Finally, in Coleman v. Carnahan, 312 S.W.3d 377 (Mo. App. E.D. 2010), and Sloan v. Bankers Life and Casualty Co., 1 S.W.3d 555 (Mo. App. W.D. 1999), there was no employment relationship involved in the underlying dispute, calling into question whether the MHRA plaintiff had opposed a "practice prohibited by this chapter," as required by what is now section 213.070.1(2) to state a claim of retaliation. In this case, by contrast, there is no question that Swoboda opposed employment discrimination prohibited by the MHRA when he testified in his co-employee's successful discrimination lawsuit against the BOPC, and Swoboda has alleged that he suffered retaliation with respect to his own employment with the BOPC based on that testimony. Further in this case the Commission has in fact provided Swoboda a right to sue letter as to his claims against BOPC. In contrast to Coleman and Sloan, here there is no dispute that Swoboda opposed discrimination in employment, and has alleged he suffered retaliation in his employment. Unlike Coleman and Sloan, this case raises the question as to who may be held liable for the retaliation prohibited by the MHRA in the first place. Because they involve a fundamentally different question, Coleman and Sloan do not assist the appellants here.
Because the plain language of the MHRA and Supreme Court precedent lead us to conclude that a direct employer-employee relationship between Swoboda and Armstrong is not required to support a claim of aiding and abetting the alleged retaliation, the Commission's point three and Armstrong's point three are denied.
Retaliatory Conduct
The Commission's final point on appeal (their first point in their brief) is that the Circuit Court's judgment was in error because Swoboda did not establish that the Armstrong attorneys' alleged threats to Swoboda regarding his testimony against the BPOC were linked to the BPOC's retaliatory actions toward him. We reject this argument. This argument goes to the merits of Swoboda's claim, which the Commission never reached, or even investigated. Swoboda's administrative complaint alleged that Armstrong employees threatened him before he testified in support of another employee in a claim of discrimination against the BOPC, that he was subsequently retaliated against as a result of that testimony, and that Armstrong had violated he MHRA by "aiding and abetting" the retaliation. Given that the Commission did not investigate the merits of Swoboda's charge against Armstrong in dismissing the claim, the Commission's post hoc justification for its dismissal of the charge cannot provide a basis for reversal. Whether or not Swoboda's allegations can be proven, and whether any actions by Armstrong went beyond proper legal representation, will be up to the ultimate fact finder. The Commission's first point on appeal is denied.
The judgment of the Circuit Court which granted the writ of mandamus in favor of Swoboda directed the Commission to rescind its decision to dismiss Swoboda's charge against Armstrong under the MHRA and ordered it to accept Swoboda's charge, and to conduct an investigation thereof is affirmed in part. However, as the Supreme Court held in Lampley, "[o]nce the 180-day time limitation has expired, the Commission must cease all activity on a complaint and issue a right-to-sue letter." Id. at 26. Therefore, the portion of the judgment ordering the Commission to undertake an investigation can no longer be enforced. After the Commission sets aside the dismissal of the complaint, the only action they have authority to take at this point in time is to issue a right-to-sue letter.
Conclusion
For all of the above-stated reasons, we affirm the Circuit Court's Permanent Writ of Mandamus in part directing the Commission to rescind their decision to dismiss Swoboda's charge against Armstrong under the Missouri Human Rights Act. However, because over 180 days have passed since Swoboda filed his complaint with the Commission, it has lost jurisdiction to investigate his claim, and so we reverse the portion of the Circuit Court's Permanent Writ of Mandamus which orders the Commission to investigate that claim and instead order the Commission to issue Swoboda a Right to Sue letter for his claim against Armstrong.
/s/_________
Gary D. Witt, Judge All concur